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Civ Pro

Civ Pro

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ORDINARY CIVIL ACTIONS RULE 1 GENERAL PROVISIONS (BAR) 1.

Civil action one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong; may be ordinary or special Criminal action one by which the state prosecutes a person for a n act or omission punishable by law Special proceeding remedy by which a party seeks to establish a sta tus, a right, or a particular fact 2. Rules of Court shall NOT be applicable to the following, except by analo gy or in a suppletory character, and whenever practicable and convenient a. Election cases; b. Land registration; c. Cadastral proceedings; d. Naturalization proceedings; and e. Insolvency proceedings 2005 notes: In a series of cases, it has been said that the Rules of Court have the force and effect of law. And that it shall be liberally construed in order to promote their object and assist the parties in obtaining just, speedy and in expensive determination of every action and proceeding. Atlas v Navarro: Under the Labor Code, the labor arbiter have jurisdiction over the claims for damages sought to be recovered by EE from ER arising from illegal dismissal or forced resignation Basaya v Militante: RTC has jurisdiction over issue of possession of vessel. Th e replevin case is not involved in labor dispute since question of who has bette r right of possession is outside competence of labor tribunals Tacay v RTC: Claims for damages as to which no amounts were specified may be exp unged or plaintiff may be allowed to amend complaint so as to specify the amount of damages and to pay the requisite fees w/in prescriptive period. 2007 notes: The Principal amount confers jurisdiction or that the totality of cl aims supplies the jurisdictional test. 2007 notes: Relief- redress sought or prayed for by the plaintiff Remedy- appropriate legal form of relief whereby a remedial right may be enforce d. ACTIONS: Real Action Action affecting title to or for recovery of possession or for parti tion or condemnation of or foreclosure of mortgage on real property (ex: Action to foreclose a mortgage). Personal Action All other action not real action, which is based on privity of c ontracts or for recovery of sum of money (ex: Action to cancel the annotation o f the mortgage in the title of the land) Local Action One founded on privity of estates only and there is no privity of c ontracts. Transitory Action One founded on privity of contracts between parties. (BAR) X borrowed money from PNB secured by a real estate mortgage in the amount of P1M. He failed to pay. Can there be foreclosure considering that X is in the USA? HELD: YES, since it is sufficient that the court has jurisdiction over the res ( or the mortgaged property). Jurisdiction in the person is not necessary 2005 notes: If there is deficiency, the court cannot impose deficiency judgment since it has no jurisdiction over the person of the mortgagor. The exception her e is when the defendant or mortgagor voluntarily appears. -- the reason is that ,the court has already acquired jurisdiction over the pers on of the mortgagor.

2005 notes: If the person is not in the Philippines ,the person cannot be summon ed by publication ,but if he has properties, there can be attachment of the same which would convert the action originally in personam to one quasi in-rem by me ans of the attachment. Once property is levied upon, the court may try the case despite the fact that summons has not been served. The reason is that there is j urisdiction over the res. 2005 notes:The judgment however is confined to the property attached, except if he voluntarity appears. 2 Test to determine nature of Action: 1. Ultimate objective- Relief to which plaintiff is entitled based on the facts alleged by him in his complaint although it is not the relief demanded is what d etermines the nature of the action.As such,if it is to recover real property ,th en, it is a real action. 2. Allegation and Prayer Allegations of facts and the relief prayed for may be d eterminative of the nature of the action and not the defenses invoked in the ans wer (DelRosario v CA). The title does not control, it is the body of the plead ing that controls RULE 2 CAUSE OF ACTION CAUSE OF ACTION an act or omission by which a party violates the right of anothe r (Ma-aw v Barrios) . Its elements are: a.existence of a legal right of plaintiff b.correlative duty of a defendant to respect one s right c.act or omission of defendant in violation of the plaintiff s right w/ consequent ial damage to the plaintiff for which he may maintain an action for recovery of damages or other appropriate relief. 2005 notes: Cause of action is determined by the facts alleged therein, not by t he defenses. It is not determined by the title but by the body of the pleading. (BAR) A complaint alleged that the defendant acted in bad faith. However, it di d not contain any averment of facts showing that defendant s act were done in man ner alleged. HELD: the complaint does not contain a cause of action since it does not stat e the ultimate facts constituting the plaintiff s cause of action since allegation of bad faith is a mere conclusions of fact or law. (BAR) A sued B to recover P500,000 based on a promi note due and payable on Dec 5,1998.Complaint was filed on Nov. 30,1998 and summons was served on B on Dec 7 ,98. B interposed a motion to dismiss on ground that complaint states no cause of action. HELD: Motion Granted. In order for cause of action to accrue to a person, ff must be present: a.there must be a right pertaining to a plaintiff b.there is a correlative obligation of the defendant c.there is a violation of plaintiff s right by the defendant d.there is damage suffered by plaintiff. In this case, no violation was committed since the promissory note has not yet matured. (2005 notes: With regard Administrative disputes, there exist a premature cause of action whenever the plaintiff did not exhaust all administrative remedies) (2005 notes:If lawyer of defendant party died, the lawyer of plaintiff should notifiy the court of the lawyer s death (if only former knew) so that there could be substitution, or else any writ of execution against defendant is not valid, aside from that, the act of plaintiff s lawyer of not informing court constitutes indirect contempt and can also be subject of disciplinary action).

RIGHT OF ACTION- right to commence and prosecute an action to obtain the relief sought. Its elements are: a.existence of cause of action b.performance of all conditions precedent to the bringing of the action. c.right to bring and maintain the action must be in the person instituting it. DISTINCTION BETWEEN CAUSE AND RIGHT OF ACTION: a.cause refers to delict while right is the right to institute action. b.cause is determined by pleadings, right is by substantive law c.right of action may be taken away by running of period which do not at all aff ect the cause of action. 2005 notes: Subject matter of the action refers to the physical facts, things ,r eal or personal, the money ,land and chattels and the like, in relation to w/c t he suit is being prosecuted. It refers to the object of the dispute. RULE IN FILING OF COMPLAINT IF ONLY ONE DELICT: There is only one cause of action even if there are several rights violated but belonging to one person. All such right should be alleged in a single complaint, otherwise ,they are barred forever. No man shall be twice vexed for one and sam e cause. Examples: Recovery of damages for injury to person and property should be in only one suit . Only one suit should be filed for recovery of real property and damages Recovery of Taxes/surcharge must be in one suit Partition of property and improvements/damages In ejectment cases, only rentals be recovered as damages. Other damages like ele ctric and water bills are to be recovered in separate suit. 2005 notes: Cause of action commences by filing of complaint or when an addition al defendant is involved as to him, by the filing of the amended complaint. SPLITTING A SINGLE CAUSE OF ACITON Single cause of action may not be split and made basis of 2/more complaints. Effect of such splitting is that filing of 1st may be pleaded in abatement of others on ground of pendency of another action between the same parties for sa me cause and a judgment upon the merits in any one case is available as a bar in the others. Effect: Filing of 1st may be pleaded in abatement of the other or others and a judgment upon the merits in any one is available as a bar to the others. However, if by their nature, reliefs sought for are cognizable by different trib unals, then there would be no splitting if filed in different courts. Examples: a.Action to establish filiation as an illegitimate child and a separate action f or partition. b.Action for unlawfully stopped payment of a check paid as partial payment of a parcel of land cannot be pleaded in abatement by the defendant in an action for foreclosure of mortgage in QC for the balance guaranteed .They are separate acti ons. 2005 notes: It is possible for case of recognition and a claim for inheritance be filed in one proceeding (Tayag v CA) 2005 notes: Test to determine whether such cause is single is that if there is only one delict or wrong, even if there are several rights violated and all of t

hose rights violated must be prayed for in one complaint but the single delict or wrong must be violative of noe contract or transaction, for if there are sepa rate contracts between parties, violation of each would constitute a separate ca use of action. X brought an action against Y for annulment of sale of certain shares of stock. After case was declared in favor of X, he filed another action for recovery o f dividends proper? No, recovery is part of cause of action for annulment of sale of certain shares of stocks and should have been claimed in the first ac tion. Such is constituted splitting a single cause of action. 2005 notes: Effect if defendant files an answer and files another complaint inv oking the counterclaim he interposed in his answer is that it violates the rule against splitting causes of action. Arceo v Oliveros: If complaint is filed and the defense interposes the existence of another action in a counterclaim, the defendant cannot file another suit an d advance the same defense in that separate suit. X filed a complaint against Y, the suit being founded on a breach of contract. If there is a 3rd party defendant, can X recover against such 3rd party on basi s of quasi-delict? HELD: YES, primary purpose of rule on splitting is to avoid circuitry of action and to dispose of in one litigation, the entire subject matter arising from a pa rticular set of facts. Examples of Causes of Action where action are considered incapable of pecunia ry estimation: Specific performance Support Foreclosure of mortgage Annulment of judgement Action questioning validity of mortgage Action annulling a deed of sale or conveyance Recovery of the price paid Action for rescission counterpart of specific performance JOINDER OF CAUSES OF ACTION ( It may be joined cumulatively or alternatively) Several cause of action may be stated in one pleading, in the alternative or o therwise, subject to the rules regarding jurisdiction, venue and joinder of par ties. If said causes of action arise out of same contract,transaction or relat ion between parties, or are demands for money or are of same nature and charact er. GEN RULE: A party may assert in one pleading as many causes of action as he may have against an opposing party. Joinder of causes of action is restricted by jurisidiction, venue and joinder of parties. INSURANCE V US LINES: There was a suit against alternative defendants for (a) b reacg if contract of carriage and (b) violation of arrastre contract. At time of filing, plaintiff did not know at what precise stage of series of transactions the loss complained of happened. Joinder of causes of action and parties is allo wed. RULES: 1.Party joining the causes of action shall comply with the rules on joinder of p arties. 2.Joinder shall not include special civil actions or actions governed by special rules Ex: Forcible entry and unlawful detainer cannot be joined with other causes of

action. 3.Where cause of action are between the same parties but pertain to different ve nues or jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies ther ein. As such ,if one cause falls w/in MTC and the other in RTC, the action should be in the RTC. If cause of action have different venues ,they may be joined in any of the courts of proper venue. Hence, a real action and a personal one may be jo ined either in the RTC of place where real property is located or where the part ies reside. (BAR) Complaint filed before RTC states 2 causes of action ,one for rescission o f contract and the other for recovery of P300,000 both of which arose out of s ame transaction. Is joinder of 2 causes of action proper? Yes, since 1st cause for rescission of contract falls within jurisdiction of RTC since subject is n ot pecuniary of estimation and 2nd cause for recovery of P300,000 is w/in juris diction of lower court and arose out of same transaction both may be joined i n complaint filed w/ RTC. (BAR) A has claim of ownership over a real property in name of B w/ an assessed value of P19000. He has another claim of ownership over a land under B s name w/ v alue of P15T both located in Manila. Can it be joined? No, since in both cases none falls under the jurisdiction of the RTC since the a ssessed value of properties do not exceed P50T, then jurisdiction lies in the MT C. 4.Where claims in all the causes of action are principally for recovery of money , the aggregate amount claimed shall be the test of jurisdiction. JOINDER OF CAUSES OF ACTION IS MERELY PERMISSIVE. THERE IS NO LAW OR JURISPRU DENCE WHICH COMPELS A PARTY TO JOIN ALL HIS CAUSE OF ACTION AND BRING THEM AT ON E AND AT THE SAME TIME. EFFECT OF MISJOINDER OF CAUSES OF ACTION: Effect is their separation. It is the duty of the court to order their separatio n. In PP v Ramos, it has been held that the dismissal of one on jurisdiction or other legal ground does not affect the others if there is no legal ground to dis miss them. Each action must be dealt with according to its own merits. Misjoinder of causes of action is not a ground for dismissal of an action. A mi sjoined cause may, on motion of a pary or on the initiative of the court ,be ser ved and proceeded with separately. But the court may not order the joinder of ca uses of action. 2005 notes: Failure to object to the misjoinder of causes of action is that it i s deemed a waiver and it will be adjudicated with the other causes of action. (BAR) Legal capacity of the union to sue was raised as an issue on appeal despi te the failure to do so in the proceedings before the NLRC. HELD: Failure to do so in the NLRC bars the question on capacity of a party to sue on appeal or on certiorari. TOTALITY RULE: When there are several claims and causes of action between same or different par ties embodied in the same complaint, the amount of the demand shall be the total ity of the claims in all causes of action, irrespective of whether the causes o f action arose out of the same or different transactions. Applicability (whereby it can be filed in a single complaint): 1.In actions where the jurisdiction of the court is dependent on the amount invo lved, the test of jurisdiction shall be the aggregate sum of all the money deman ds, exclusive of interest and costs, irrespective of whether or not the separate

claims are owned by or due to different parties. If any demand is for damages i n a civil action, the amount thereof must be alleged. 2.It applies to cases where 2/more plaintiffs having separate causes of action a gainst a defendant join in a single complaint. As well as to cases where a plaintiff has separate causes of action against 2/mo re defendants joined in a single complaint provided that they arose out of the -same transaction or series of transactions -and there should be common questions of law or fact. 2005 notes: Test is determined by the total demand of all the causes of action i rrespective of whether or not the causes of action arose out of the same or diff erent transactions. Hence, if total demand is within the jurisdiction of the RTC , file it there, If w/in MTC, then file it there. 2005 notes: A petition for adoption cannot be joined w/ a petition for a change of name since it have no relation to each other nor are they of the same nature or character and there is no common question of law and fact. It do not meet t he underlying test of Conceptual Unity demadend to sanction their joinder. 2005 notes: For joinder to exist, dapat they have same nature or character, meet the Conceptual unity test demanded and the common question of fact and law bet ween them must exist. (BAR) A has a cause of action on B as the latter failed to pay his loan of P2M to the former. B likewise failed to pay another loan of P19T to A. Both resides in Manila. May A file a suit at the RTC of Manila and join both causes of action ? HELD: YES, since between parties although pertaining to different jurisdictions. 2005 notes: Plaintiff cannot file an action for sum of money and foreclose the mortgage. Since in Caltex v IAC, he cannot have both, he may choose between the two. (BAR) A and B lent money to X, who failed to pay. May A and B file single suit against X? YES, but since joinder of parties involves different parties, there must be a co mmon question of fact and law. RULE 3 PARTIES TO CIVIL ACTIONS (BAR PROBLEM) Plaintiff- refer to the claiming party, the counter-claimant, the cross claimant or the third (fourth, etc ) party plaintiff. Defendant- refer to the original defending party, the defendant in a counter-cla im, the cross-defendant or the third(fourth, etc ) party defendant. Real Party in Interest- one who is entitled to the avails of the suit. He also i s the person who may be liable if a judgment is rendered against him. They are the parties to the contract. It must have material interest. (BAR) A,the agent of B filed a suit against c w/o impleading B. If you were the counsel for C, would you file a motion to dismiss on the ground of failure to im plead the real party-in-interest?YES, I would file a motion to dismiss on the gr ound of failure to implead the real party in interest. Since A is merely an age nt, he is not the real party in interest, thus , the case is dismissable. After having been furnished w/ a copy of the motion, what course of action would you do, if you were the counsel of A?I would file an amended complaint to imple ad B, the real party in interest citing the following reasons: a.motion to dismiss on the ground of failure to implead to real party in interes t can be considered as a motion to dismiss on the ground that the complaint sta tes no cause of action. The remedy against such motion is to amend the complaint (SUBSTITUTION) to imple ad the real party in interest and that would mean that the complaint would now s tate a cause of action against the real party in interest.

b.the amendment is still a matter of right since no responsible pleading has bee n filed. A motion to dismiss is not a responsive pleading. If you were the judge, would you dismiss the complaint and if not, what would yo u do?I would deny the motion to dismiss. Instead, I would allow A to amend the c omplaint to implead B ,the real party in interest. In fact, I could order the am endment of the complaint to implead the real party in interest at any stage of the proceedings if the real party in interest appears. 4blue95 notes: Every action must be prosecuted and defended in the name of the r eal party in interest. This is mandatory. It is intended to bring before the cou rt parties rightfully interested in the litigation ,so that the only real contro versies will be presented and the judgment ,when entered, will be binding and co nclusive (Salonga v Barnes) (BAR) In a suit for ejectment on the ground of subleasing the premises, the act ion was brought against Virginia, the daughter of Angela and Servillano Ocampo, w/o impleading her mother who inherited the leasehold right from Servillano. An gela was then in an advance age and could not manage the subleased house and lot . It was Virginia who had been accepted the rentals. She contends that she is n ot the party in interest. HELD: Contention is not correct . She had been acting on behalf of her mother, w ho was 92 yrs old and living under her care. Angela (mother) cannot administer the subleased lot and house, let alone appear in court to resist her ejectment. It is Virginia who has been receiving the rent from the sublessee and in turn pa ying the rent on the lot to the private respondent. An indispensable party is a party in interest w/o whom no final determination c an be had of an action. For such party to be a joinder ,follow requisite 3 abo ve. 2005 notes: As such, when an indispensable party is not impleaded in a suit, it is the duty of the court to stop the trial and order the inclusion of such party . Inclusion of such party is a condition sine qua non. 2005 notes: Exception to this rule:Where it appears that the naming of the party would be a mere formality. 2005 notes: If a party is an unwilling plaintiff, he may be joined as a party de fendant. (BAR) MWSS filed a suit to recover a parcel of land which has been converted i nto a subdivision where lots were parceled out to owners. The suit however did n ot implead all the lot owners, hence, a motion to dismiss on the ground that ind ispensable parties were not impleaded. HELD: Suit dismiss. Well settled is the rule that owners of property over w/c reconveyance is asserted are indispensable parties w/o whom no relief is availa ble & w/o whom the court can render no valid judgment. Being indispensable parti es, the absence of all these lot owners renders all subsequent action of the tr ial court null and void for want of authority to act, not only as to the absent parties but even as to those who are present. Necessary Party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. --if necessary party not impleaded in suit, the pleader must state the reason wh y he is omitted. Should court find the reason for omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his per son may be obtained. --if pleader fails to comply w/ order of the court w/o justifiable reason, the c laim is deemed waived. --the non inclusion (of the necessary party) shall not prevent the prosecution of the action but the judgment rendered is w/o prejudice to the rights of such necessary party. (BAR) St. Anne Medical Center filed a petition for certiorari , prohibition and

mandamus. It was found out that it does not possess a juridical personality. Is the case dismissable on that ground? HELD:NO, while only natural or juridical persons are authorized by law to be par ties in a civil action ,yet , the Rules allow the court to add on its own initia tive at any stage of the action, parties of such terms as are just. The true ow ners , the real party in interests can therefore be impleaded. Proper parties are persons who are not indispensable but who ought to be partie s if complete relief is to be accorded as between those already parties, have no t been made parties and are subject to the jurisdiction of the court as to both service of process and venue. Distinction between Indispensable and Proper parties: 1.Indispensable must be joined in order that there may be final determination of an action 2.Proper party must be joined if possible to have an adjudication of the whole c ontroversy and avoid multiplicity of suits. If he cannot be joined ,trial can b e had but shall be w/o prejudice to his rights. Members of the Family: In cases of suit bet members of family, allegation s of earnest efforts towards a compromise is a condition precedent (not jurisdictional) to the filing of such suits. In case of non compliance, the complaint is assailable at any stage of t he proceedings for lack of cause of action. -- if one is not a member of the family, lack of earnest efforts to reach a comp romise should not be considered as a pre-requisite to the maintenance of an acti on (Magbaleta v Gonong) Foreign Corporations: 1.If it is legally engaged in business in the Philippines, it may sue and be sue d in the Philippines 2.If it is illegally engaged in business in the Philippines, it cannot sue but i t can be sued. 3.A foreign corporation not engaged in business in the Philippines may sue in ou r courts on a single isolated transaction, but cannot be sued. Association as Defendant (even if no juridical personality): When 2/more persons associated in any business transact such business under a c ommon name, whether it comprises names of such persons or not, the associates ma y be sued by such common name. However, in their answer, the names of each member who answered must be reveled. An organization w/c does not have juridical personality (like Anti-chinese group ) cannot bring a suit in court. But individual members can sue. 2005 notes: Exception to the rule requiring all members of an association of nat ural person not organized as a juridical entity to be made parties to a suit are : a. Parties are so numerous that it is impracticable to bring them all b4 the cou rt ,in w/c case, one or more may represent the parties. b.2/more person associated in any business ,transact such business under a commo n name, in which case they may be sued by such common name. 2005 notes: A sole proprietorship do not have juridical/legal personality. If ac tion is filed by such,remedy is amendment to implead the real party in interest. 2006 notes:With regard co-ownership, anyone of the co-owners may sue in behalf of common property. Y and Z are not indispensable parties (who owned land by s uccession together with their brother the defendant since Y and Z never participat ed in case of annulment of sale of such land against 3rd party) since a final determination can be had of the action. At most,Y and Z are proper parties and

non-joinder of proper parties is not a ground for dismissal of an action. Cour t may order their joinder at any stage of action so such terms are just. Death or Separation of an Officer of the Philippines if he is a party to suit: Action may be continued and maintained by or against his successor, if w/in 30 d ays after the successor takes office, it is satisfactorily shown that there is a substantial need for so continuing and maintaining it. There may be substitution if it is shown by supplemental pleadings that the succ essor of an officer adopts or continues or threatens to adopt or continue the ac tion of his predecessor (sec16). Incompetence of Parties: The court, upon motion w/ notice, may allow the action to be continued by or aga inst his representation(sec 18) Solicitor General If there is a question on validity of law, treaty, ordinance ,PD or rules, the c ourt may ,at its discretion, require the appearance of the Solicitor general who may be heard in person or through a representative duly authorized by him. Thi s is applicable to all courts (sec22) Alternative Defendants If plaintiff is not sure who to sue ,then he may sue them all as alternative def endants L, in Manila, sold quantitiy of rice for P200,000 to X in Baguio and shipped r ice through R s transport. X refused to pay L ,claiming rice was never delivered t o him. R claimed that it had delivered rice to X. HELD:L sues both X and R as defendants in alternative, inasmuch as he is uncerta in against whom he is entitled to relief. Although a right of relief against one may be inconsistent w/ a right to relief against the other . Unknown Defendants If plaintiff not sure or do not know the name ,then he may use any other name li ke John Doe ,but once the name is ascertained ,then pleading must be amended. Indigent Litigant Party may be authorized to litigate his claim as an indigent if the court upon a n ex parte application and hearing is satistied(even on appeal) that he has no m oney or property sufficient and available for food,shelter and basic necessities for himself and his family. -- adverse party may contest the grant of such authority to litigate as indigent at any time b4 judgment is rendered by the trial court. If found to have given false statements, he shall pay the proper docket fee and other lawful fees. It m ay also cause the dismissal of the action. (BAR) Cong Garcia questioned the approval by the BOI of Petrochem s transfer from Bataan to Batangas. His personality was questioned contending that he has no leg al interest. HELD: He has personality to sue. BOI s contention is not correct since when BOI a pproved Petrochem s application , the inhabitants and petitioner acquired an inter est in the project which they have a right to protect. Their interest is actual, real and vital since it will affect their economic life. In Albano v Reyes: Pet, being a citizen and member of Congress has standing to q uestion the validity of the contract entered by PPA w/ MICIPL, since the latter has important role in the development of the economy w/c is of public interest. DEATH OF A PARTY: If action do not survives (like marriage,legal separation..) ---then the case mu st be dismissed.

Remedy of Party if action does not survive: File a claim before the probate cou rt under rule 86 (Pabico v Jaranilla) In case an action for legal separation is pending. Death before judgment abates the action (SY v Eufemio) but if there is already a final decree of legal separa tion ,it shall continue w/ respect to the dissolution and liquidation of the con jugal partnership of gains. Breach of contract(like action for damages for injury to person arising from a c ontract of carriage) must be dismissed; tort action to remain and shall be filed against the administrator. In Criminal actions: Death of accused during the pendency of appeal of his convi ction extinguishes his criminal liability as well as the civil liability arising solely from the offense charged as a felony. Since claim for civil liability s prings out of and is dependant upon facts which if true would constitute as a cr ime. But if it springs out of other sources of obligations ,then, the action may be b rought against the executor or administrator or on the estate depending on the s ource of the obligation. BAR:One of the parties in an action for judicial partition of property w/ accoun ting and damages, died. No notice was served upon the court, trial was already t erminated when he died. TC rendered decision, lawyer of deceased filed a notice of appeal. Plaintiff moved to dismiss it since decedent lost personality after death and counsel s authority ceased when decedent died. CA held that notice of ap peal was a mere scrap of paper. A motion for reconsideration having been denied, the heirs went to the SC where they alleged that the Appellate court erred in d ismissing their appeal and in not declaring that judgment w/c trial court render ed after the death of said defendant ,was null and void. HELD:Petition not meritorious. It is duty of atty for deceased to inform court o f his client s death and to furnish the court w/ the names and residences of exec utor, administrator or legal representative. In case at bar, no notice was conducted nor a motion for substitution of decea sed defendant was made. Hence, trial court is not expected to know of such death . Negligence was on part of the lawyer. 2006 notes: As such, after death of defendant ,the lawyer cannot anymore appeal the decision. (BAR) A engaged the services of Atty T to represent him in a civil case filed b y O against A. A retainership agreement was executed between A and T whereby A p romised to pay T a retainer sum of P24000 /year and transfer the ownership of l and to T after presentation of A s evidence. A did not comply with his undertaki ng, Atty. T filed a case against A during the trial of civil case against O. Is death of A a valid ground to dismiss money claim of T? No, it shall be allowed to continue until entry of final judgment and it shall al so have same effect w/ regard real property being claimed by Atty. T. However, a favorable judgment be enforce as against the executor/heirs of the deceased. If action survives, like: a. Actions to recover real and personal property against the estate; b. Actions to enforce liens thereon; c. Actions to recover for injury to persons or property by reason of tort; d. Actions to recover money arising from contract, express or implied. As such, it should be commenced against the executors or administrator Action still pending appeal, continue the appeal and after final judgment ,a cla im in administration proceedings may be filed w/in the time limit. Action for foreclosure of mortgage survives. Can be enforced against the adminis trator by a writ of execution. No need to file claim in probate court. a.Plaintiff dies then substitution Action for damages for an injury to personal property survives and need not be p

rosecuted for probate. Action for ejectment survives the death of the lessee. Issue of legality of poss ession is still alive and upon its resolution depends the corollary issue of amo unt of rentals to be recovered. b.Defendant dies: i.claims for recovery of property ,enforce lien, recover damages ,then it can be continued by the executor or heir If debtor dies before an action could be filed against him, the creditors can fi le money claim with the probate court. If claim does not arise from the contract, express or implied, an ordinary actio n may be filed against his executor or administrator. ii.contactual money claims -death before final judgment, then party shall be substituted ,so it continues u ntil final judgment. 2006 notes: Death of defendant (at whatever stage) in action on contractual mone y claims before judgment of RTC NOT ground for dismissal. 2006 notes:Any judgment against estate of deceased will be enforced as money cla im. Writ of preliminary attachment, if any, not dissolved since the new rule me ans that while such money judgment may be entered, the plaintiff cannot be enfor ce it by way of a writ of execution against the administrator or executor but i t shall be filed as a claim against the estate. However, if a writ of prelim att achment was earlier issued, the same shall not be dissolved. -death after final judgment(wala ng appeal and case is tapos) 1.Before execution, then final judgment must be filed with estate court and trea ted as a proven claim. 2.If it is After Levy, then the property levied shall be sold and officer making the sale shall account to the corresponding executor or administrator. 2006 notes: If death occurred prior to levy, the judgment is not enforceable by writ of execution (remedy is that judgment creditor must file in probate court ) Effect of Supervening Death of Defendant: Wife: It did not extinguish his wife s action for partition of their conjugal assets for it is an action that survives. The trial of the case on the merits was already finished before the defendant died. Since it did not informend about that event the trial court may not be faulted for proceeding to render judgment w/o ordering the substitution of the deceased defendant. Its judgment is valid and binding upon the defendant s legal represent atives or successors-in-interest, in so far as his interest in the property subj ect of the action is concerned. 2006 notes: The validity of judgment of the trial court is binding and enforcea ble against the successors in interest for the action survived. (BAR) A filed a complaint against Y in RTC of Cebu for payment of promissory n otein sum of P50T for liquidated damages of P P5000 and Attorney s fees of P5000 after he filed his answer, Y died but his lawyer did not file motion to dismis s. Y s widow filed w/ the above court a special proceeding for settlement of inte state estate of Y, the widow was appointed administratix., the latter did not o bject. In due course, the court rendered decision in favor of A, at the time it was rendered ,the period to file claims in the intestate estate of Y had alread y lapsed. The administratix did not appeal from such decision, and after it beca me final A moved for execution of judgment. The widow opposed contending that d ecision is void since claim did not survive and case should have been dismissed upon death of Y. HELD: Since Y died before final judgment in RTC, the action should have been dis missed and prosecuted as a money claim against his estate. However, since widow

who was appointed administratrix did not object and did not appeal form decision , she is deemed to have waived the right to have claim litigated in estate proce edings and she is estopped from questioning court s jurisdiction. Decision is vali d. Child Acknowledgment & Inheritance (BAR) X is natural child of Y who died. Can X file action to compel acknowledgem ent and maintain a partition proceeding to claim his inheritance in same case? HELD: YES, a natural child having right to compel acknowledgement but who has no t been in fact legally acknowledge may maintain partition proceeding for divisio n of inheritance. It is not necessary for plaintiff to show a prior decree compe lling acknowledgment since in partition suits and distribution,the other person who might take by inheritance before the court and the declaration of heirship i s appropriate to such proceedings (Tayag v CA) Paraphernal Property the husband should be joined as party plaintiff (being an indispensable party) as such,defendant may raise question that husband is indispensable party if he is not joined as party plaintiff. A married woman can be sued alone. However, when she is suing to recover damage s for the use of her separate or exclusive properties, the husband must be join ed as party since the damages pertain to the conjugal partnership (except when t hey are living separately). Failure to join husband in a suit against the wife is not a jurisdictional defec t. It is merely a condition precedent. REQUISITES OF PERMISSIVE JOINDER OF PARTIES: IT IS PERMISSIVE, AND IT IS SO WHEN: a. Right to relief arises out of the same transaction or series of transactions, whether jointly, severally, or in the alternative; b. There is a question of law or fact common to all the plaintiffs and defendant s; Such joinder is not otherwise proscribed by the provisions of the Rules on juris diction and venue. It is also compulsory if there are parties without whom no final determination c an be had of an action. 2005 notes: If court found out that the parties so joined do not have any intere st in the suit, the court may make such order as may be just to prevent any part y from being embarrassed or put to expense in connection w/ any proceedings in w /c he may have no interest (sec6). 2005 notes: Misjoinder or non-joinder of parties is not a ground for motion to dismiss. Parties may be dropped or added by court on such terms as may be just. TRANSFER OF INTEREST --> Action may be continued by or against the original party, unless the court, on motion, directs the transferee to be substituted in the action or joined with the original party; however, if transfer is made before commencement of the act ion, the transferee must necessarily be the party, since only he is the real par ty in interest (sec 19). --> Occurs when in pendency of case,the property subject of litigation was sold. Different remedies in transfer of interest: 1.case will continue against the old party, the buyer is bound by the decision 2.buyer will be the new defendant 3.case against the old party is maintained and the buyer is added as an addition al party.

(BAR) X transferred his interest over an object of the litigation during the pe ndency of the litigation w/o proper substitution. HELD: The real party in interest are all the parties ,the original as well as th e transferee, who must be bound by the judgment. If party has legal capacity (means he is at age of majority) then he may file re lease of claim if he wanted to. However a complaint which was filed by A as attorn ey-in-fact for X must be dismiss on ground that it has no cause of action, dapat, complaint should have been filed in the name of X as plaintiff. CLASS SUIT: Subject matter of the controversy is one of common or general interest to many p ersons ( 2005 notes:a class suit will not lie in action for recovery of propert y where several persons claim ownership and possession of their respective port ions of property. Moreover the 15 number are not numerous enough to justify cl ass suit) RULE 4 VENUE OF ACTIONS Venue is the place where an action must be instituted and tried. Uniform rule on venue in RTC and MTC * It states that all other actions may be commenced and tried where the plaintif f or any of the principal plaintiffs resides, or where defendant resides or in case of non-resident defendant, where he may be found (these things are at the election of the plaintiff) 1. VENUE OF REAL ACTIONS (EX: LEASE OF HOUSE AND LOT, OR SALE OF REAL PR OPERTY ,BASTA REAL PROPERTY IS INVOLVE) in the proper court which has jurisdict ion over the area wherein real property involved or a portion thereof is situate d. (2005 notes: In real actions, when a party did not object to the improper venue in his motion, then, that ground is deemed waived) 2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS in the MTC of the municipa lity or city wherein the real property or a portion thereof is situated. 3. VENUE OF PERSONAL ACTIONS (EX: SUM OF MONEY, AWARD OF HOUSE OR PRIZES), where the plaintiff or any of the principal plaintiffs resides, or where the de fendant or any of the principal defendants resides, or in the case of a non-resi dent defendant where he may be found, at the election of the plaintiff. residence means place where party actually resides at time of action and it must n ot be temporary; does NOT mean permanent home or domicile. Personal actions are transitory since it follows the parties. 2005 notes: In ejectment case, proper place to file the suit is the place where the property is situated. But an agreement that the venue for ejectment suit for violation of contract of lease is in a particular place is valid and binding. (BAR) A, a resident of Pangasinan sued X a resident of La Union in RTC of Que zon City for collection of debt of P1 mil. X did not file a motion to dismiss fo r improper venue but filed his answer raising therein improper venue as an affi rmative defense. He also filed a counterclaim for P80,000 against A for Attorney s fees and expenses for litigation. X moved for a preliminary hearing on said aff irmative defense. For his part ,A filed a motion to dismiss the counterclaim for lack of jurisdiction. Rule on motion to dismiss counterclaim on ground of lack of jurisdiction? There is improper venue. Case for sum of money is a personal action, as such, if the fact that improper venue was not raised in a motion to dismiss is not imp ortant , since if no motion to dismiss is filed, any of the grounds for dismiss al may be pleaded as an affirmative defense in the answer Rule 16,sec5-- (continue on Rule 6)

A motion to dismiss an action may be made within the time for pleading on the g round of improper venue (Rule 16,sec1c). If same is not invoke and the defendant answers, the objection is deemed waived. --the trial court cannot motu propio dismiss a complaint on ground of improper v enue, unless and until defendant objects to the venue in a motion to dismiss, th e venue cannot be truly said to have been improperly laid. --where defendant fails to challenge timely the venue in a motion to dismiss as provided by sec4 of rule 4, and allows the trial to be held and a decision to b e rendered, he cannot on appeal or in a special action to be permitted to challe nge belatedly the wrong venue which is deemed waived. --venue is also deemed waived if defendant files a motion to lift an order of de fault. As such ,even if the action was filed in another place but defendant files answe r w/o invoking improper venue, then such is a waiver of the wrong venue. Acts of defendants w/c gives rise to waiver of an objection with respect to venu e: a.Filing of 2 motions for the lifting of the writ of attachment b.Submission of a memorandum in support of the urgent motion to discharge the wr it of attachment. c.Posting of a counterbond to dissolve the writ of attachment d.Filing of demurrer on an additional ground that petitioner has no cause of act ion e.Filing of a reply to petitioner s opposition to the motion to dismiss. (BAR) A leased his commercial land and building situated in Manila to B ,a resid ent of Malolos, Bulacan. Contract of lease provides that in event A violates co ntract, B may file suit in Manila (A s residence) and if B violates the contract, A may sue B in Malolos. Eventually, B violated the contract, entitling A to sue for ejectment. HELD: A can file action for ejectment either in the Metropolitan Trial Court of Manila or in the Municipal Trial Court of Malolos since both have exclusive or iginal jurisdiction over cases of forcible entry and unlawful detainer or eject ment cases. The stipulation in contract of lease that if B violates the Contrac t ,A may sue B in Malolos is valid since location of real property determines th e venue of action and not jurisdiction over the subject matter. However, since the agreement as to venue is merely permissive, as shown by use of the word may , the action may also be filed in Manila where the real property is located (Villa nueva v. Masqueda) Rules on Venue shall NOT apply: a. In those case where a specific rule or law provides otherwise (e.g., civil ca se for damages in cases of libel, where Article 360 of RPC provides specific rul es on venue); OR Libel: Soriano v IAC, it was held that in libel cases, venue is the RTC of the province or city. Diaz v Adiong, offended party who is at same time a public official can only ins titute an action arising from libel in 2 venues: -place where he holds office -place where alleged libelous article were printed and first published Violation of Anti-fencing Law: Fencing is not a continuing offense that would a llow the filing of an information in the place where the robbery or theft was co mmitted and not necessarily where property unlawfully taken is found to have lat er been acquired (Pp v de Guzman) Tort : at the election of plaintiff Mortgage: filed in place where defendant or any of the plaintiff resides ,at o ption of the plaintiff

b. Where the parties have validly agreed IN WRITING before the filing of the act ion on the EXCLUSIVE venue thereof. --> In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved. Stipulations on Venue: When the agreement on venue is exclusive, the action cannot be filed in another place ( Limjap v Animas). As such if it is not intended to bbe EXCLUSIVE, then t he stipulated venue will be treated as an additional venue. Only Exception: (BAR) X is bound for Samar. He boarded a vessel. The venue of action stated in t he ticket of X is the city of Manila, but X is a resident of Samar. Is stipulati on valid? HELD: NO. In Sweet lines v Teves, where stipulation as to venue in a passenger t icket would be contrary to public policy making courts inaccessible to all who may have need of their services, the stipulation is void and unenforceable. 2005 notes: Agreements as to venue are oppressive when stipulations work injusti ce or deny the parties access to court by reason of poverty. The parties agreed to be sued and sue in the courts of Manila -- it does not preclude the filing of suits in the residence of plaintiff or def endant. The plain meaning is that the parties merely consented to be sued in Man ila. The court cannot read into the clause that plaintiff and defendant bound themselves to file suits only or exclusively in Manila. The agreement did not ch ange or transfer venue, it simply is permissive. The parties solely agrees to ad d the courts of Manila as tribunals to w/c they may resort. For to restrict venu e only to the place stipulated in the agreement is a construction purely based on technicality w/c is contrary to the rule on liberal construction. (BAR)Agreement in contract of carriage provides: Agreement shall be governed by and construed in accordance w/ Singapore Law and a ll disputes be subject to courts in Singapore. HELD: Stipulation is not valid. Parties cannot enter into a contract concernin g jurisdiction of courts (since jurisdiction is conferred by law). If ever the a greement is valid, it is valid to extent only that parties agreed on venue of ac tions. (BAR)Andre, a resident of Angeles City borrowed P300,000 from Manny, a resident of Pasay. Loan agreement provides that parties agree to sue and be sued in the City of manila. In case of non payment of loan, can Manny file his complaint t o collect in Angeles? Yes, since the stipulation city of Manila does not make Man ila the exclusive venue thereof. (2005 notes: if parties did not stipulate on v enue, A can file complaint either in Angeles or in Pasay). (BAR) X & Y entered into a contract of sale, but Y did not affix his signature o n the invoice which contains an agreement as to venue of actions. Is agreement b inding? HELD: YES, in cases of sales of goods where invoices are issued where there is a greement as to venue, there is implied conformity to the terms and conditions of the invoice even if the purchaser did not affix his signature thereto (Sy v Urs ua) Action against non-resident Where defendant is a non-resident ,the action may be commenced at a place where such defendant may be found, but such applies only to non-resident who is here i n the Philippines, but if defendant does not reside and is not found in the Phil , then: a. ACTION AFFECTS THE PLAINTIFF S PERSONAL STATUS - in the court of the place wher

e the plaintiff resides. b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the p roperty or any portion thereof is situated or found. RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS 1.The procedure in the MTCs shall be the same as that in the RTC. 2.Uniform Procedure shall NOT be applicable: a. Where a particular provision expressly or impliedly applies only to either of said courts. b. In civil cases governed by the Rule on Summary Procedure. SUMMARY PROCEDURE: (its rules is not applicable anymore if it is already on appeal) CIVIL CASES: 1. Case of forcible entry with unlawful detainer except where the question of ownership is involved or where the damages or unpaid rentals sought to be recove red by plaintiff exceed P20,000 at time of filing of complaint. 2. All other civil cases ,except probate proceedings ,falling w/in the jurisdict ion of the abovementioned courts where the total amount of plaintiff s claim does not exceed P100,000 exclusive of interest and costs (if in Manila, its P200,000 ) Summary procedure not apply where plaintiff s cause of action is pleaded in the s ame complaint w/ another cause of action to the ordinary procedure, nor to the c omplaint w/ another cause of action to the ordinary procedure nor to a criminal case where offense charged is necessarily related to another criminal case subje ct to ordinary procedure. Effects of Failure to file an answer in a civil case governed by Summary Rules vs. those in a civil case governed by the regular provision of Rules of Court: Under Summary Procedure , upon failure to file an answer in civil case, the cour t ,motu propio or upon motion of the plaintiff shall render judgment as may be w arranted by the facts alleged in the complaint and limited to what is prayed for therein except as to the amount of damages which the court may reduce in its di scretion (Sec.5) Under regular procedure, upon failure to file an answer , the court shall upon m otion of the plaintiff and proof of such failure declare the defendant in defau lt. Thereupon, the court shall proceed to received the plaintiff s evidence and re nder judgment granting him such relief as the complaint and the facts proven may warrant. Such judgment shall not exceed the amount or be different in kind fro m that prayed for (Sec 1&5,Rule 18) 2006 notes:failure to answer,court will then render judgment. 2006 notes:there is no trial, parties just submit affidavits (BAR) JS appeals the decision against him to the RTC w/c affirmed in toto the l ower court s decision. JS then filed a motion for reconsideration. M moves to stri ke out the motion for reconsideration as it is a prohibited pleading under the R ules on Summary Procedure. HELD: It is not tenable since the rule on prohibited pleadings in summary proced ure is applicable only to the Metropolitan and Municipal Trial Court ( Glakihac a v. Aquino,Jan12,1990) PLEADINGS ALLOWED (IT MUST ALL BE VERIFIED) 2006 notes: failure to verify..no problem since it can be cured since defect is formal and not jurisdictional 2006 notes:in criminal cases: complaint or by information 1.complaint

Court can dismiss it outright on any ground apparent therefrom for the dismissal of a civil action after the examination of the complaint and the evidences atta ched. 2.compulsory counterclaim and cross claim pleaded in the answer Cross-claims and compulsory counterclaims not asserted in the answer shall be co nsidered barred (answer to cross-claims and compulsory counterclaim shall be fil ed and served within 10 days from service of the answer in which they are pleade d) 3.answer Filed w/in 10 days from the service of summon(answer to counterclaim, 10 days al so). The answer shall be served on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived exc ept for lack of jurisdiction over the subject matter. If no answer(or filed out of time), court may render judgment motu propio or on motion of plaintiff as may be warranted by the allegations in the complaint, bu t limited to what is prayed for. Provided, court may in its discretion reduce the amount of damages and attorney s fees claimed for being excessive or otherwise unconscionable (sec6). This is w/o prejudice to the application of sec4,rule 18 of rules of court if th ere are 2/more defendants. 2006 notes: Upon filing of civil or criminal case, the court shall issue an ord er declaring whether the case is governed by Rules of Summary procedure or not. (BAR) an ejectment suit filed b4 MTC,Iloilo city.Defendant move to hold in abeya nce the preliminary conference until the case for specific performance has been terminated. MTC granted it. Appeal was made to RTC where Motion to dismiss Appea l was filed on ground that the order was interlocutory. RTC denied motion, but C A allowed appeal from the interlocutory order. Was CA s action proper? YES, since there s a procedural void in the summary proceedings b4 the MTC. There can be no appeal from the order being interlocutory. But neither can a petition for certiorari be filed since ejectment suit is governed by Summary Procedure an d such petition is a prohibited pleading. Hence, party was caught in a procedura l void, thus ,under the extraordinary circumstances, there must be a remedy cons istent w/ the objective of speedy disposition of cases. 2006 notes: Reason why the CA upheld the appeal from an interlocutory order was to fill a procedural void. In fact, the appeal could be treated as a petition f or certiorari under Rule 65,for appeal ordinarily would entail a long process w hich negates an expeditious resolution. Preliminary Conference in Civil Cases Not later than 30 days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to t he preliminary conference unless inconsistent with the Rules of Court. Failure of the plaintiff to appear in the preliminary conference shall be a caus e for the dismissal of his complaint. The defendant who appears in the absence o f the plaintiff shall be entitled to judgment on his counterclaim in accordance with sec6. If a sole defendant shall fail to appear, the plaintiff shall be entitled to jud gment in accordance with sec6. this rule shall not apply where 1 of 2 or more d efendants sued under a common cause of action who had pleaded a common defense s hall appear at the preliminary conference. Record of Preliminary Conference Within 5 days after the termination of the preliminary conference, the court sha ll issue an order stating the matters taken up therein ,like the ff (but not lim ited only to these): 1.the parties arrived at an amicable settlement ,and if so, the terms thereof 2.stipulations or admissions entered into by the parties 3.whether on the basis of the pleadings and the stipulations and admissions made

by the parties, judgment may be rendered w/o the need of further proceedings ,i n which event the judgment shall be rendered w/in 30 days from issuance of the o rder. 4.a clear specification of material facts which remain controverted and 5.such matters intended to expedite the disposition of the case. Submission of Affidavits and Position Papers Within 10 days from receipt of the order mentioned above, the parties shall subm it the affidavits of their witnesses and other evidence on the factual issues de fined in the order, together with their position setting forth the law and the f acts relied upon by them. Judgment: W/in 30 days after the receipt of the last affidavits and position papers or exp iration of period of filing ,the court shall render judgment. Should the court find it necessary to clarify certain material facts, it may , d uring the said period, issue an order specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters w/in 10 days from receipt of order. Judgment shall be rendered w/in 15 days after the receipt of the last clarificat ory affidavits or the expiration of the period for filing the same. The court shall not resort to clarificatory procedure to gain time for the rendi tion of the judgment. PROHIBITED PLEADINGS / MOTIONS: a.Motion to Dismiss the complaint or to quash the complaint or info except -on ground of lack of jurisdiction over the subject matter -failure to comply with the referral to the Lupon As such, if no referral to Lupon prior to filing of case in court, the court sh ould dismiss the case without prejudice, but it can be revived after compliance with the requirement. The rule is inapplicable if accused has been arrested. 2006 notes:even if P1M, pwede pa rin magfile sa lupon. 2006 notes: If answer was already filed, then a motion to dismiss can be allow ed since there is no longer a delay. 2006 notes:motion to dismiss can be raised as an affirmative defense. (BAR)A brought an action for unlawful detainer against B in the MTC. B filed a m otion to dismiss on the ground of lack of cause of action for failure to first refer the dispute to the Brgy lupon. Acting on B s motion, the case was dismissed. A files petition for certiorari with the RTC assailing the MTC dismissal order on ground that B s motion is a prohibited motion under the Revised Rules on Summar y Procedure. Is A correct? No ,since the Rules on Summary Procedure allows a mo tion to dismiss on the ground of failure to comply with provision on referral t o Lupon (Sec.19-A) b.Motion for bill of Particulars c.Motion for new trial ,or for reconsideration of judgment (on the merits) or fo r reopening of trial d.Petition for relief from judgment e.Motion for extension of time to file pleadings, affidavits, or any other paper s. As such ,it did not suspend the running of the period to file answer. f. Memoranda g.Petition for certiorari, mandamus or prohibition against any interlocutory ord er issued by the court h.Motion to declare defendant in default i.Dilatory motions for postponement j.Third party complaints

k.Intervention. 2006 notes: Motion to hear affirmative defense and motion for reconsideration a re not a prohibited pleadings 2006 notes: Failure to object to erroneous adoption of the Rules on Summary Proc edure operates as a waiver of the procedure taken by the inferior court. 2006 notes:absence of referral to lupon is not jurisdictional , so failure to ob ject it during arraignment is deemed a waived. CRIMINAL CASE: 1.Violations of traffic laws 2.Violation of rental laws 3.Violations of municipality or city ordinances 4.Violations of BP 22 5.All criminal cases where penalty prescribed by law for the offense is imprison ment not exceeding 6 months or a fine not exceeding P1000 or both, irrespective of other imposable penalties ,accessory or otherwise ,(all cases of reckless im prudence regardless of value of property is subject to summary procedure). Filing of criminal cases falling under Summary Procedure may be by complaint o r information 4blue 95:in manila and chartered cities, it shall be commenced only by informati on except when the offense cannot be prosecuted de oficio. It is required that the complaint or information must be accompanied by the affi davits of the complainant and his witnesses in such number as there are accused, plus 2 copies for the court s files. Failure to comply with this requirement warr ants dismissal of the case. Duty of the Court: (1.)On basis of complaint or affidavit and other evidence accompanying it ,the c ourt dismissed outright if patently w/o basis or merit and the court may order t he release of the accused in custody (2.)On basis of information or is not dismissed outright, court shall issue an order requiring the accused to submit his counter-affidavit. The prosecution ma y file a reply within 10 days (not 15) after receipt (and it is not extendible) (3.)Upon consideration of complaint or information and affidavits is submitted b y both parties and court finds no cause to try the accused, the case can be dis missed outright ,otherwise, arraignment is set. 4blue95: if accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty ,he shall forthwith be sentenced. There is preliminary conference in criminal cases. And matters to be taken are: -stipulation of facts -propriety of allowing accused to enter a plea of guilty to a lesser offense -other matters to clarify cases and to ensure speedy disposition of cases. 2006 notes: In Pre-trial conference, no admission of the accused can be used aga inst him unless put to writing and signed by the accused and his counsel. 2006 notes: Failure of witness(who submitted affidavit) to appear shall cause his affidavit to be considered as not competent evidence, adverse party may util ize the same for any admissible purpose. Procedure of trial: At the trial, the affidavits submitted by parties shall constitute the direct te stimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the a ffiant fail to testify , his affidavit shall not be considered as competent evid

ence for the party presenting the affidavit, but the adverse party may utilize t he same for any admissible purpose. (BAR) X submitted an affidavit. He was not presented on direct examination,but c ourt allowed the other party to cross-examine him . HELD: This is allowed since affidavits submitted constitute direct testimonies. No witness can testify unless he submitted an affidavit (except on rebuttal and surrebuttal) --Orliva v Gervacio: Register of Deeds or a Doctor can testify even w/o an a ffidavit having been submitted in connection with a specific factual matter rele vant to the issue. 2006 notes: Additional affidavits can be presented provided that it is manifest ed during the preliminary conference .If allowed, the same must be submitted not later than 3 days after termination of the preliminary conference. 2006 notes: Upon filing of an information in a case, the court cannot order the arrest of the accused since no such occur in Summary Procedures. 2006 notes:the court shall NOT order the arrest of the accused except for failur e to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court. 2006 notes:where trial has been conducted, the court shall promulgate judgment n ot later than 30 days after termination of trial. All actions for forcible entry and unlawful detainer are subject to summary proc edure irrespective of amount of damages claimed but the attorney s fees should not exceed P20,000 In a case for illegal detainer under the Revised Rules on Summary Procedure, th e MTC rendered a decision in favor of A.,the lessor, ordering B, the lessee to vacate A s apartment and to pay the back rentals. B appealed to the RTC which aff irmed the MTC decision. A, anticipating another appeal by B, filed a motion for execution pending appeal pursuant to Sec.21 of the Revised Rules on Summary Procedure. B likewise within the reglementary period filed a petiotion for review of the RTC s decision with t he CA. May RTC grant A s motion for execution pending appeal after B filed his pet ition for review with the CA? Yes ,since the decision of RTC is immediately exe cutory despite the appeal (sec21). May B validly oppose the motion for execution pending appeal on the ground that the motion is not based on the good reasons for which an execution pending appea l may be issued under Sec2 of Rule 39? No, since Sec2 is not applicable to this case which falls under Summary procedure. Judgment of the MTC governed by the Rules on Summary Procedure was upheld by the RTC. The requirement to be met before such judgment becomes immediately executo ry are: 1.Judgment of RTC must be first served on the losing party before the same be c onsidered immediately executory under the Rules. Reason is that, if such judgment may be immediately executed w/o prior notice to losing party, then he shall be w/o remedy even against a judgment not supported by any evidence or the applicable law. Rules on Summary Procedure contemplate the filing of a motion for execution on t he part of the prevailing party, w/c like an ordinary motion must be set for hea ring ,otherwise ,it becomes a mere slip of paper w/c judge should ignore. 2.After preliminary conference, the MTC should issue an order clearly and distin ctly setting forth the issues of the case and other matters taken up in the conf erence. The order is an important part of the summary procedure since its receipt to th e parties that begins the 10 day pd to submit the affidavits and other evidence s. W/o such order, the pd does not commence to run. Hence, any judgment rendered by the court w/o such order is violative of due pr

ocess as it denies the parties opportunity to submit the affidavits and position papers. 4blue 95 notes: the affidavits required to be submitted under the rules on summa ry procedure shall state only facts of direct personal knowledge of the affiants w/c are admissible in evidence and shall show their competence to testify to th e matters stated therein. Decisions of RTC (being appellate court) are immediately executory not just on U nlawful Detainer and Forcible Entry but on all cases subject to summary procedur e. RULE 70: Section 19. Immediate execution of Judgment; how to stay same. General Rule: JUDGMENT of the MTC against the defendant in ejectment proceedings is IMMEDIATELY EXECUTORY. Exception: when the following concurs: 1. the defendant perfects his APPEAL; 2. he files sufficient SUPERSEDEAS BOND to pay the rents, damages and costs acqu iring down to the time of judgment appealed form; and 3. he DEPOSITS with he appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period. WHERE SUPERSEDEAS BOND NOT REQUIRED: 1. Where the monetary award in the judgment of the inferior court has been depos ited with the court; 2. where the judgment of the lower court did not make findings with respect o an y amount in arrears, damages or costs against the defendant. Ejectment suits are not suspended or barred by other actions (Wilson Auto Supply Corp. vs. CA, 208 SCRA 108) such as the following: 1. Injunction; 2. consignation of rentals; 3. Accion publiciana; 4. Writ of possession case; 5. Quieting of title 6. Specific Performance with damages; 7. Reformatiion of instrument; 8. reconveyance of property or accion reinvindicatoria; 9. annulment of sale, or title, or document, annulment of deed of sale with assu mption of mortgage and/or to declare the same an equitable mortgage; annulment o f sale with damages. (enumeration from Feria p. 615) Ejectment case is a real action, which is not extinguished by the death of a par ty. (Cañiza vs. CA, 268 SCRA 640) Section 20. Preliminary mandatory Injunction in case of appeal > RTC may issue writ of preliminary mandatory injunction on motion of plaintiff within 10 days from the perfection of the appeal. Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court The judgment of the RC against the defendant shall be immediately executory, wit hout prejudice to a further appeal that may be taken therefrom. It is mandatory for the RTC to order execution of the appealed judgment upon fai lure of defendant to make the monthly deposit of current rentals. (Dehesa vs. Ma calalag, 81 SCRA 543) Prior notice o judgment is required for immediate execution. (Dy vs. CA, 195 SCR A 585) RULE 6 PLEADINGS(GENRULE: VERIFIED) Pleadings are the written statements of the respective claims and defenses of th e parties submitted to the court for appropriate judgment. (kelangan ng allegati

ons and evidence or else judge will not grant it) Ultimate Facts- Principal, determinate and constitutive facts upon the existence of which, the entire cause of action rests Evidentiary Facts- Details or probative matters or particulars of evidence by wh ich the material facts or elements are established. 2006 notes: Documents attached to the pleadings are parts of the latter,such tha t if they are admitted ,there is no need to introduce them in evidence. 2006 notes: relief prayed for in the complaint is not a part of cause of action since plaintiff is entitled to as much relief as to the facts warrant although t hey are not specifically demanded. 2006 notes: motion and position papers are reliefs, it is not a pleading,so no need to verify. KINDS OF DEFENSE: 1. Negative Defense specific denial of the material fact or facts al leged in the pleading of the claimant essential to his cause of action. what other party is saying is not true 2. Affirmative defense admit the allegation but you must present new ma tters that would nevertheless prevent or bar recovery by other party w/c includ es: a. Fraud b. Statute of limitations c. Release d. Payment e. Illegality f. Statue of frauds g. Estoppel h. Former recovery i. Discharge in bankruptcy j. Any other matter by way of confession or avoidance. PLEADINGS ALLOWED BY THE RULES: The claims of a party are asserted in a complaint, counterclaim, cross-claim, th ird (fourth, etc.) party complaint, or complaint-in-intervention. The defenses of a party are alleged in the answer to the pleading asserting a cl aim against him. An answer may be responded to by a reply. 1.Complaint The complaint is the pleading alleging the plaintiff's cause or causes of action . The names and residences of the plaintiff and defendant must be stated in the complaint. 2.Answer An answer is a pleading in which a defending party sets forth his defenses. Answ er may contain a counterclaim or cross claim. Failure to answer a counterclaim would result in default of the non-answering pa rty, exceptions: a.answer would merely repeat the material allegations in the complaint b.failure to answer a complaint in intervention c.condemnation proceedings d.where issues raised in the counterclaim are inseparable from the complaint e.counterclaim is compulsory Defenses and objections not pleaded in answer or motion to dismiss are deemed wa ived (Omnibus Motion Rule). GENRule: whatever you failed to raise, then it is waive. Exception: Court shall dismiss the claim, even without allegation in answer or m otion to dismiss, if any of the following appear from the pleadings or the evide nce on record: a. Lack of jurisdiction over the subject matter (Jurisdiction over the subjec

t matter or nature of an action cannot be conferred by agreement of parties w henever it appears that court has no jurisdiction over the subject matter, it sh all dismiss the action). b. Litis pendentia between same parties for the same cause; c. Res judicata d. Action barred by statute of limitations. COMPULSORY Counterclaim or Crossclaim not raised are deemed barred forever: BAR:Aya, sues Lea for recovery pf land. Lea seeks in turn to be reimbursed of t he value of improvements she had introduced. Should Lea file separate action ag ainst Aya for that purpose? HELD:No, Lea s claim is a compulsory counterclaim in the suit filed by Aya since i t is connected with the occurrence of the subject matter of opposing party s cla im and does not require presence of 3rd parties of whom the court cannot acqu ire jurisdiction. If Lea s claim is not set up in suit filed by Aya, claim is barr ed. 3.Counterclaim A counterclaim is any claim which a defending party may have against an opposing party 2006 notes: A counterclaim need not diminish or defeat the recovery sought by op posing party, but may claim relief exceeding the amount or differ in kind from t hat sought by opposing party s claim (claim for litigation expenses may properly b e made in a counterclaim) 2006 notes: RTC may entertain counterclaim below its jurisdiction provided that it arise out of same transaction or occurrence constitutes subject matter of opp osing party 2006 notes: Counterclaim for unpaid wages is not proper since it is a labor clai m, so it is under NLRC. 2006 notes:A motion to dismiss w/ counterclaim is not sanctioned by the Rules si nce a counterclaim is contained in an answer and not in a motion to dismiss. Wha t defendant should do is to plead the ground of his motion (except improper ven ue) as an affirmative defense in his answer, together w/ his counterclaim, and a sk for a preliminary hearing on his affirmative defense as if a motion to dismi ss has been filed. A counterclaim may be asserted against an original counter-claimant. Ex: A filed action for sum of money against B who filed a counterclaim. A may file counterc laim against b also. (BAR) X filed a complaint against Y who filed an answer w/ counterclaim. X did n ot answer the counterclaim, hence, he was declared in default. Can he still pres ent evidence on his cause of action?Yes, since default in counterclaim does not divest him of a standing in court. This is different from default in main action . Effect where counterclaim is filed beyond the jurisdiction of the MTC: a. It need not be set up but if even it is set up ,it is done so only by way of defense (Calo v Ajax: A counterclaim, even if otherwise compulsory, but amount exceeds t he jurisdiction of the inferior court, will only be considered permissive. Henc e, fact that it is not set-up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it). b. There is a waiver of the excess amount. c. Rules of jurisdiction in an independent action applies to counterclaims. --> Agustin vs. Bacalang A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court s jur isdiction may only be pleaded by way of defense, the purpose of which is to defe

at or weaken the plaintiff s claim, but NOT to obtain affirmative relief. MOREOVE R, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional a mount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial court is void . 2006 notes:if case is w/ MTC, you cannot raise a counterclaim recognizable by RT C( but if in RTC, you can raise counterclaim recognizable by MTC w/c means you can go lower but not higher) (BAR) X filed suit for sum of money against Y in the MTC for P190,000. In his a nswer, Y filed a counterclaim in the amount of P400T against X. can MTC award to Y the amount of P400,000? HELD: NO, outside of its jurisdiction. It can award only P200t, the excess becom es an affirmative defense. PERMISSIVE COUNTERCLAIM (an initiatory pleading) Counterclaim is permissive when a.it does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction b.it must be w/in jurisdiction of the court wherein the case is pending and is c ognizable by the regular courts. BAR:A filed an action against B for recovery of piece of land. B in his answer specifically denied A s claim and interposed as counterclaim the amount of P150,0 00 arising from another transaction, consisting of the price of the car he so ld and delivered to A and which the latter failed to pay. Is B s counterclaim allo wed? B s counterclaim is a permissive counterclaim in as much as it arises out of another transaction that is the subject matter of A s complaint. It is allowed since it is within court s jurisdiction. COMPULSORY COUNTERCLAIM (not an initiatory pleading) is one which, being cognizable by the regular courts of justice 1)arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and 2)does not require for its adjudication the presence of third parties of whom th e court cannot acquire jurisdiction 3)within the jurisdiction of the court both as to the amount and the nature ther eof, except that in an original action before the Regional Trial Court, the coun terclaim may be considered compulsory regardless of the amount An example of compulsory counterclaim is that of a banggaan whereby owner of the cars involved merely alleged the very same facts and evidences ,so no need to p ut them in separate trials, dapat isahin lang. (From Rule 4)A,a resident of Pangasinan sued X a resident of La Union in RTC o f Quezon City for collection of debt of P1 mil. X did not file a motion to dism iss for improper venue but filed his answer raising therein improper venue as a n affirmative defense. He also filed a counterclaim for P80,000 against A for At torney s fees and expenses for litigation. X moved for a preliminary hearing on sa id affirmative defense. For his part ,A filed a motion to dismiss the countercla im for lack of jurisdiction. Rule on motion to dismiss counterclaim on ground o f lack of jurisdiction? Motion should be denied. The counterclaim for attorney s fees and expenses of lit igation is a compulsory counterclaim because it necessarily arose out of and i s connected with the complaint. In an action before the RTC, the counterclaim ma y be considered compulsory regardless of the amount.(continuation on Rule 16) 2006 notes: there is no docket fee if it is marriage payment, motions and compul

sory counterclaim. (BAR) A filed a complaint for sum of money against B in the amount of P500,000 now pending at the RTC Manila. B filed answer w/ counterclaim of P50T arising o ut of the transaction subject matter of the action. How do you treat such coun terclaim? HELD: It is a compulsory counterclaim even if it is within the inferior s court s jurisdiction since the inferior court is a court of general jurisdiction (look a t meaning of compulsory counterclaim). 4.Crossclaim A cross-claim is any claim by one party against a co-party arising out of the tr ansaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the par ty against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. A cross-claim may also be filed against an original cross-claimant. 2005 notes: cross claim is not a matter of right since it must arise out of the subject matter of complaint, it can be filed only against a co-party and it is p roper only where cross-claimant stands to be prejudiced by the filing of the act ion against hm. 2005 notes: If complaint is dismissed, the cross claim should also be dismissed (Bisaya Trans v Republic) and it cannot be filed also after declaration of defau lt of defendant . (BAR) X filed suit vs Y under document where Y&Z are solidarily liable. Y wants to file a cross-claim against Z but he has not yet been summoned. If he files hi s answer w/o the cross claim,what happens to it? It is not barred since a cross claim of defendant against a co-defendant in an action where liability is in sol idum is not barred even when the latter is not summoned. (BAR)B and C borrowed P400,000 from A. The promissory note was executed by B an d C in a joint and several capacity. B,who received the money gave C P200,000. C in turn loaned P100000 out of the P200000 he received to D. In an action filed by A against B and C with the RTC,can B file a cross-claim against C for the am ount of P200000? Yes, A cross claim is a claim filed by one party against a co-party arising out of the occurrence that is the of orig action. 2006 notes:if main action is dismissed: the counterclaim can be prosecuted in sa me or separate action (pero dapat before dismissal of main action, the party alr eady have filed a counterclaim coz if not ,then di yan pwede magpatuloy) 2006 notes:if main action is dismissed: the cross claim is also dismissed. 5.Reply (not mandatory) it only becomes mandatory if answer is premised on action able document. A reply is a pleading, the office or function of which is to deny, or allege fac ts 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.(it is questioning the ge nuiness and due execution of an actionable document. If a party does not file such reply, all the new matters alleged in the answer a re deemed controverted. Another remedy if no reply is that the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. 6.Third-party (fourth ) complaint (W/ LEAVE OF COURT) A third (fourth, etc.) party complaint is a claim that a defending party may, wi th leave of court, file against a person not a party to the action, called the t hird (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.

Purpose is to avoid circuitry of action and unnecessary proliferation of lawsuit s and of disposing expeditiously in one litigation the entire subject matter ari sing from one particular set of facts (Samala v Victor) Arises like when you own property and you lease it to X and X sublease it to Y, when you inspect it ,you notice that it was partly destroyed, so you cannot sue Y since it is X to whom you have the contract of lease with, so X s only remedy is to file third party complaint against Y. A person not a party to an action (like Y above) may be impleaded by the defenda nt (X) either : a.to an allegation of liability of the latter (covered by the phrase: for contri bution, indemnity or subrogation) b.on ground of direct liability to the plaintiff c.both a and b Y may bring defense not only against X but even against the owner or as against the original complaint. Third Party complaint would be disallowed when: 1.resolution of main case would be delayed as when the third party defendant can not be located 2.when there are extraneous matters that would be raised 3.when main action is for declaratory relief Answer to third (fourth, etc.)€ party complaint. € A third (fourth, etc.) party defe ndant may allege in his answer his defenses, counterclaims or cross-claims, incl uding such defenses that the third (fourth, etc.) party plaintiff may have again st the original plaintiff's claim. In proper cases, he may also assert a counter claim against the original plaintiff in respect of the latter's claim against th e third-party plaintiff. How may new parties be impleaded and for what purpose: € When the presence of part ies other than those to the original action is required for the granting of comp lete relief in the determination of a counterclaim or cross-claim, the court sha ll order them to be brought in as defendants, if jurisdiction over them can be o btained. (BAR)X filed complaint against y who instead of consulting a lawyer wrote letter to court stating his position in the suit. can he be declared in default? NO, letter is sufficient as an answer (Cayetano v ceguerra) and it is a substant ial compliance with the requirement as to responsive pleadings. RULE 7 PARTS OF A PLEADING FORMAL REQUIREMENTS OF PLEADINGS: a. Caption b. Title c. Body The body of the pleading sets forth its designation, the allegations of the part y's claims or defenses, the relief prayed for, and the date of the pleading. (a) Paragraphs. - The allegations in the body of a pleading shall be div ided into paragraphs so numbered as to be readily identified, each of which shal l contain a statement of a single set of circumstances so far as that can be don e with convenience. A paragraph may be referred to by its number in all succeedi ng pleadings. (b) Headings. - When two or more causes of action are joined, th e statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of acti on in the complaint, they shall be prefaced by the words "answer to the first ca use of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, the y shall be prefaced by words to that effect. (c) Relief. - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (d) Date . - Every pleading shall be dated.

d. Signature and address Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the p leading; that to the best of his knowledge, information, and belief there is goo d ground to support it; and that it is not interposed for delay. (so if there s bl atant lie and lawyer knew about it,then he can be administratively liable) An unsigned pleading produces no legal effect. However, the court may, in its di scretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberatel y files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to th e court a change of his address, shall be subject to appropriate disciplinary ac tion. e. Verification in some cases Except when otherwise specifically required by law or rule, pleadings need not b e under oath, verified or accompanied by affidavit. Verification must be based on personal knowledge whereby such is based on authen tic record. A pleading required to be verified which contains a verification based on "infor mation and belief," or upon "knowledge, information and belief," or lacks a prop er verification, shall be treated as an unsigned pleading. HOW A PLEADING IS VERIFIED: By an affidavit stating that -Affiant (person verifying) has read the pleading -Allegations therein are true and correct as of his personal knowledge or based on authentic records. (SC Circular 48-2000, effective May 1, 2000) Supporting affidavits of merit required: a. Motion to postpone for absence of evidence (30.3) b. Motion to postpone for illness of a party or counsel (30.4) c. Motion for summary judgment or opposition thereto (35.1,2,3,5) d. Motion for new trial on the ground of FAME or opposition thereto (37.2) e. Petition for relief from judgment (38.3) f. Third-party claim (39.16) g. Proof required of a redemptioner (39.30) h. Motion for preliminary attachment (57.3) i. Motion for dissolution of preliminary injunction (58.6) j. Application for writ of replevin (60.2) k. Claim against the estate of the decedent (86.9) l. Motion for new trial based on newly discovered evidence in criminal cases (12 1.4) What pleadings have to be verified: a. Petition for relief from judgment (38.3) b. Appeal by certiorari from CA to SC (45.1) c. Complaint with prayer for preliminary attachment (57. 3) d. Complaint for injunction (58.4) e. Complaint for replevin (60.2) f. Petition for certiorari (65.1) g. Petition for prohibition (65.2) h. Petition for mandamus (65.3) i. Complaint for forcible entry or unlawful detainer (70.4) j. Petition for appointment of general guardian (93.2) k. Petition for leave to sell or encumber property of estate or guardian (95.1) l. Petition for declaration of competency of the ward (97.1) m. Petition for habeas corpus (102.3) n. Petition for change of name (103.2) o. Petition for voluntary dissolution of a corporation (104.1)

p. Petition for cancellation or correction of entries in the civil registry (108 .1) q. Petition to take deposition in perpetuam rei memoriam (before action or pendi ng appeal) (24.2) r. Motion to set aside a default order of an inferior court s. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party can be fully compensated t. Petition for appointment of receiver u. Petition for review of the decision of an RTC in cases within the exclusive o riginal jurisdiction of the inferior court, by and elevated to the CA. v. Pleadings that need not be verified but must be under oath: w. Denial of the genuineness and due execution of an actionable document (8.8) x. Denial of allegations of usury (8.11) y. Answer to written interrogatories (25.2) z. Answer to request for admission (26.2) aa. Notice of appeal from administrative tribunals to the CA CERTIFICATION AGAINST FORUM-SHOPPING: Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification annexed and filed therewith: a. That he has not commenced any action or filed any claim involving the same is sues in any court, tribunal or quasi-judicial agency; to the best of his knowled ge no such other claim or action pending; b. If there is such other pending action, a complete statement of the present st atus thereof; c. If he should thereafter learn that same or similar action or claim is filed o r pending, he shall report the same within 5 days therefrom to the court where h e filed his complaint. NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEAD ING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; 4blue 95: This arises when lawyer has no knowledge of any forum shopping during filing but after filing during the pendency of the case he knew that his client committed forum shopping and he did not report it. IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SH OPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEM PT. 4blue 95:this arises when the lawyer already knew before filing that the client committed forum shopping. 4blue 95: For Forum-Shopping to exist, there must be:Same transactions involved; Same essential facts and circumstances; andActions raise identical cause of acti on, subject matter, and issues 4blue 95:it must be the party (all of them except if husband and wife since sign ing of 1 constitutes the signing in behalf also of the other) who must not the c ertification and not the lawyer (except if such is an in-house lawyer of a corpo ration) ALL INITIATORY PLEADING MUST HAVE CERTIFICATION OF NON-FORUM SHOPPING ( INCLUDIN G PERMISSIVE COUNTERCLAIM ) RULE 8 (BAR) MANNER OF MAKING ALLEGATIONS IN PLEADINGS 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 fo r his claim or defense, as the case may be, omitting the statement of mere evide ntiary facts. Only ULTIMATE FACTS is included in pleading. If a defense relied on is based on law, the pertinent provisions thereof and the ir applicability to him shall be clearly and concisely stated. Alternative causes of action or defenses. €

Defendant is not prohibited to raise alternative defenses even if such is in con flict with each other.A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defen se or in separate causes of action or defenses. Defenses Not deemed Barred: 1.payment 2.want or illegality of consideration 3.fraud 4.mistake 5.compromise 6.statute of limitations 7.estoppel 8.duress 9.minority 10.imbecility Striking out of pleading or matter contained therein. € Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own i nitiative at any time, the court may order any pleading to be stricken out or th at any sham or false, redundant, immaterial, impertinent, or scandalous matter b e stricken out therefrom. Conflict between allegations of the Complaint and the documents attached thereto : Court should not dismiss complaint. Defendant should be made to answer the same as to establish an issue and an opportunity be given to the plaintiff to reconci le any apparent conflict between the allegations in the complaint and the docume nt attached to support the same and to give defendant ample opportunity to refut e and to show that said conflict is real, material and decisive. Kinds of Allegations or Averments 1.General Averments: a.Conditions precedent In any pleading a general averment of the performance or occurrence of all condi tions precedent shall be sufficient. b.Malice ,intent or condition of the mind Malice, intent, knowledge or other condition of the mind of a person may be aver red generally. c.Judgment In pleading a judgment or decision of a domestic or foreign court, judicial or q uasi-judicial tribunal, or of a board or officer, it is sufficient to aver the j udgment or decision without setting forth matter showing jurisdiction to render it. d.Official acts or documents In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. 2.Specific Averments: a.Capacity to Sue. Facts showing the capacity of a party to sue or be sued or the authority of a pa rty to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be Specifically ave rred. FOREIGN CORPORATION : it must be doing business in the Philippines with license to do so in order to sue , however an exemption to the given requisites is when it is on isolated transactions then the corp even if not doing business or no l icense, it may sue. A party desiring to raise an issue as to the legal existence of any party or the

capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are pe culiarly within the pleader's knowledge. b.Legal existence c.Fraud or Mistake In all averments of fraud or mistake, the circumstances constituting fraud or mi stake must be stated with particularity (specifically). ACTION OR DEFENSE BASED ON DOCUMENT. a. Substance of such document set forth in the pleading; b. Original or copy attached to the pleading as exhibit and deemed to be part of the pleading; OR c. Copy may be set forth in the pleading with like effect. How to contest actionable document: When an action or defense is founded upon a written instrument, copied in or att ached to the corresponding pleading as provided in the preceding section, the ge nuineness and due execution of the instrument shall be deemed admitted unless th e adverse party, under oath, specifically denies them, and sets forth what he cl aims to be the facts; Admission of genuineness and due execution: i. Party whose signature appears admits that he signed it, or that it was signed by another with his authority ii. Was in words and figures as set out at the time it was signed iii. Document was delivered iv. Any formal requisites required by law which it lacks are waived by him The following defenses are cut-off by admission of genuineness and due execution of the document: i. Signature is a forgery ii. Signature is unauthorized iii. Corporation is not authorized under its charter to sign the instrument iv. Party charged signed the instrument in some other capacity than that alleged in the pleading setting it out v. Document was never delivered. The requirement of an oath does not apply when: -the adverse party does not appear to be a party to the instrument -when compliance with an order for an inspection of the original instrument is r efused -when document is not the basis of action or defense PLAINTIFF V RESPONDENT (BAR) X sued Y,a shipping co, based on a contract of carriage contained a bill of lading. The bill ,an actionable document, was pleaded and attached to the co mplaint. Y, w/o alleging anything else, merely assailed the validity of agreeme nt in the bill of lading for being contrary to public policy. After presenting e vidence, X did not formally offer for admission the bill of lading. The court ru led for X. On motion for reconsideration, Y alleged that X failed to prove his a ction as the bill of lading was not formally offered. Decide. Motion denied. No need to formally offer for admission the bill of lading since the failure of Y to deny under oath the genuineness and due execution of bill which was an actionable document constitute an admission thereof. (BAR)In his answer to the complaint, Mario alleged that he does not owe Norma an y sum of money and that he executed prom note only to enable Norma to show the same to her husband to explain the disappearance of the amount from the conjuga l funds as Norma lost the same in the casino. The answer is not verified at the trial, the lawyer of Norma objected to the story since as the answer is not veri fied, he is deemed to have admitted the genuineness and due execution of promis sory note. Decide on the objection: HELD: Objection overruled. A verified answer is necessary in denying the genuine

ss and due execution of the promissory note on which the action is based. Howev er, the defense of Mario does not dispute the genuineness or due execution of the promissory note only to enable Norma to explain the loss of conjugal funds d oes not require a verified answer. PLAINTIFF V RESPONDENT (WHERE 1 IS NOT PARTY TO CONTRACT) (BAR) A filed suits against B and C for recovery of personal property which ac cording to the complaint had been sold to him by defendant s father during latters lifetime under a document entitled Bill of Sale. The substance of the bill was pleaded in complaint and copy thereof was attached in the complaint as an exhib it. B and C filed an answer which disclaimed knowledge of such and averred that signature thereon appears to be a forgery. At the trial , B and C commenced thr ough an expert witness to adduce evidence to prove that seller s signature was a forgery. A objected saying that the genuineness and due execution of Bill of Sale was dimmed admitted since the answer was unverified ,as a matter of law ,i n as much as verification was made only on the express basis of best information and belief HELD: Objection overruled. B and C do not have to deny specifically under oath the genuiness and due execution of the Bill of Sale since they do not appear to be a party thereto. Their answer disclaiming knowledge or information about the Bill of Sale and averring that the signature thereon appears to be a forgery is sufficient to put in issue the genuineness and due execution of said document. 4blue 95:contract of adhesion is valid, but it is strictly construed against the party who made it. MODES OF DENIAL (Specific denial). a.Defendant must specify each material allegation of fact the truth of which he does not admit (what should answering party do if he denies a material alelatio n of fact); Defendant must set forth the substance of the matters upon which he relies to su pport his denial, whenever practicable; b.If denying only part of an averment, he shall specify so much of it as is true and material and shall deny the remainder; --> Negative pregnant a denial which at the same time involves an admi ssion of the substantial facts in the pleading responded to. Negative pregnant is a denial not in accordance with(B),since if you fail to com ply with proper mode of denial (either a,b or c) then it is deemed as an admissi on. c.If defendant does not have knowledge or information sufficient to form a belie f as to the truth of a material averment, he shall so state and this has effect of denial. Effect of Failure to Deny: Allegations not specifically denied, other than those as to amount of unliquidat ed damages deemed admitted. (BAR)In an action for collection of P2M plaintiff bank alleged that defendant Oriental Textile for valuable consideration executed in favor of the bank a pr omissory note for said amount. Defendant filed an answer to the complaint denyin g liability and alleging the Mr. Lim had no authority to negotiate and obtain lo an in its behalf, nor to sign the promissory note. The answer was not verified. During the trial, defendant sought to introduce the evidence to show that Mr. Li m was not authorized to enter into the transaction and sign the note. Plaintiff objected to such evidence claiming that Lim s authority had been admitted by defe ndant s failure to verify the answer. Judge sustained the objection. Was ruling co rrect? HELD: Yes, if a copy of promissory note had been attached to the complaint or s

et forth therein, the failure of defendant to deny specifically under oath the d ue execution of promissory note, or to verify the allegation in its answer that Mr. Lim had no authority to obtain loan or to sign promissory note constitutes a n admission of due execution, hence, the defendant s evidence was properly object ed by plaintiff. 2006 notes: The denial of the averments of the complaint claiming lack of knowledge and information sufficient to form a belief as to the truth of said averments is not a sufficient specific denial. The allegation in the complaint that the defendant obtained a loan from the plaintiff and failed and refused to pay the same, is so plainly and necessarily within the defendant s knowledge that his claim of ignorance must be palpably not true ( Warner Barnes v. Reyes) RULE 9 (BAR)EFFECT OF FAILURE TO PLEAD DECLARATION OF DEFAULT (BAR) a.Defendant entitled to notice of motion to declare him in default and of order of default; b.Motion to set aside order of default may be filed after notice and before judg ment Party may make motion, under oath, to set aside order of default upon proper sho wing that failure to answer was due to FAME; c.if it is denied, he may move to reconsider, d.if reconsideration is denied, he may file the special civil action of certi orari for grave abuse of discretion tantamount to lack or excess of court s juri sdiction (Rule 65,Sec1) or he may file file a petition for certiorari if he has been illegally declare d in default during the pendency of his motion to dismiss or before the expirat ion of time to answer. f.After declaration of default, court may render judgment on the basis of the co mplaint or require claimant to submit evidence; g.Judgment against party in default shall not exceed the amount or differ in kin d from that prayed for nor award unliquidated damages; The failure to answer of defendant does not imply an admission of facts and the causes of action of the plaintiffs since law gives the defaulting parties some m easure of protection since plaintiffs are still required to substantiate their a llegations in the complaint. It is not deemed a waiver of defendant s rights except their right to be heard an d to present evidence in their favor. A plaintiff can be declared in default if he fails to file an answer to a permi ssive counterclaim interposed by the defendant. Remember that a counterclaim is in itself a claim against the other party. Party declared in default cannot participate in a case as a party but it can par ticipate as a witness Effect of order of default party in default entitled to notice of subsequent pro ceedings but not to take part in trial; Partial default if several defending parties and not all in default, the court s hall try the case against all upon the answers thus filed and evidence presented ; No defaults in action for annulment or declaration of nullity of marriage or for legal separation. 2006 notes:Fraud in FAME means extrinsic fraud which is the fraud used for denia l of one party to be heard or to present evidence (BAR) KJ was declared in default. KJ filed an unverified motion to lift order o f default w/o an affidavit of merit of merit attached to it. KJ however attac hed to the motion his answer under oath stating his reasons for failure to file answer on time,as well as his defenses. Will motion to lift order of default pr osper?

Yes, there is substantial compliance although motion is unverified, but the answ er to the motion is verified since answer contains what the motion to lift order of default and the affidavit of merit should contain w/c are the reasons for m ovants failure to answer as well as his defenses. (BAR) Defendant was declared in default by the RTC. Plaintiff was allowed to pre sent evidence in support of his complaint. Photocopies of OR and Orig.copies o f plaintiff on witness stand and marked as exhibits. Said documents were offere d by plaintiff and admitted in evidence by the court on basis of which RTC rend ered judgment in favor of plaintiff,pursuant to the relief of the judgment,def endant appeals to the CA claiming that the judgment is not valid since the RTC b ased judgment on mere photocopies and affidavits of persons presented in court. HELD: Claim of defendant is not valid since after a defendant is declared in de fault, the court shall proceed to render judgment granting the claimant such rel ief as his pleading may warrant unless court in its discretion requires claimant to submit evidence which may be delegated to the clerk of court. 2006 notes: can a party cross examine a witness since he was not able to do so d ue to the fact that he was previously declared in default? It depends on the dis cretion of the court. If there are more than 1 defendants: Despite demands after due date,no payment was made on the note prompting Teresit a to sue the 3 promisors. Summones together with copies of the complaint were served on all of them but only Lito answered. Upon Teresita s motion, Jose and Lu is were declared in default. Against whom and upon what basis should the court t ry the case considering that only Lito of the 3 defendants filed an answer and a default order was issued against Jose and Luis? The court shall try the case ag ainst all of them upon the answer of Lito and render judgment upon the evidence presented (Sec 4,Rule 18) in this case, the answer of Lito inures to the bene fit of Jose and Luis unless the defense of Lito is personal to him alone. If Lito dies after he has presented evidence, same inures to the benefit of Jose and Luis, but if he dies before he has presented evidence, Jose and Luis canno t present such evidence (summary) 1.Upon service of default but before judgment upon default motion to set aside. 2.if there is default judgment- motion for new trial 3.Judgment is final and executory- petition for relief from judgment on grounds of FAMExclusable Negligence. (BAR) ABC Corp filed a suit for replevin against X for failure of the latter to pay his monthly amortization. It prayed for an alternative relief that in case X cannot return the car, X be required to pay the value of the same. He was declared in default. Since X failed to return the car, he was made to pay its value, hence, he questioned the validity of the decision as the relief is d ifferent from that prayed for. HELD: X contention not correct since in an action for replevin, the reliefs pray ed for are alternative. Since both of them were prayed for, X cannot correctly c ontend that the relief granted is different from that prayed for. Suppose ABC merely asked for payment of the monthly amortization, still the cour t cannot require X to deliver the car to the plaintiff since the relief would be different from that prayed fro. It cannot be done since X was declared in defau lt. (BAR)Suppose ABC asked for payment of the principal oblig of P300T without praye r for the payment of interest and penalties. Knowing that the value of car has a ppreciated.The court rendered judgment requiring X to pay P400T plus interest an d penalties. Is award proper? HELD: NO, considering the award exceeded that which was prayed for. The court ,i n default cases, cannot award damages in excess of that prayed for.

Plaintiff merely prayed for the principal oblig, hence, court s decision is limit ed to the prayer. (BAR) Atty Dabo is the Lawyer of defendant. The defendant was served summons o n Jul 6,1983. as of October 17 1983, Atty Dabo had not filed any responsive ple ading on behalf of the defendant on account of numerous social engagements w/ important and prospective clients. On Oct 18, counsel for plaintiff filed w/ cou rt a motion to declare defendant in default.. By way of opposition, Atty Dabo fi led w/ court a motion to admit answer w/ defendant s answer attached thereto. The tendered answer recited facts which constituted valid defense to the claims ass erted in the complaint. The counsel for the plaintiff opposed the admission of answer arguing that it was filed out of time . HELD: Court deny motion to declare defendant in default and admit the answer si nce there appears no prejudice that has been or will be inflicted upon the plai ntiff by delay as manifests from the fact that plaintiff appears to be guilty o f inaction in that it did promptly file a motion to declare defendant in defau lt after the expiration of the period to answer and the fact that no trial had been had when the answer was filed. The answer recited facts which if proven con stitute valid defenses. Jurisdiction over the subject matter or nature of an aciton cannot be conferred by agreement or the parties whenever it appears that court has no jurisdiction o ver subject matter, it shall dismiss the case (even if defendant at first did not file a motion to dismiss the case but only when a writ of execution was issued whereby he raise the issue of jurisdictio n, since the issue can be raised on any stage) RULE 10 AMENDED & SUPPLEMENTAL PLEADINGS I. AMENDED PLEADINGS Refers to facts existing at the time of the commencement of the action Results i n the withdrawal of the original pleading Can sometimes be made as a matter of r ight Pleadings may be amended by a.adding or striking out an allegation or the name of any party b.correcting a mistake in the name of a party or a mistaken or inadequate allega tion or description in any other respect, so that the actual merits of the contr oversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating t he amendments, which shall be indicated by appropriate marks, shall be filed. Effect of amended pleadings. € An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and cla ims or defenses alleged therein not incorporated in the amended pleading shall b e deemed waived. (BAR) A filed a complaint for sum of money against B in the amount of P500T stat ing that of the P1M obligation of the defendant, the latter has already paid P50 0t. Later on ,he filed an amended complaint stating that B has not paid his obli gation. HELD: The amended complaint has the effect of abrogating the original complaint, but effect of payment in the superseded pleading is that it is an admission by A w/c can be adduced against him by B w/c may be received in evidence against A . PROHIBITIONS/LIMITATIONS ON RIGHT TO AMEND PLEADINGS: a. It cannot change substantially the cause of action or defense or theory b. It cannot alter a final judgment on a substantial matter c. It cannot confer jurisdiction d. It cannot cure the premature or non-existing cause of action

e. It cannot be used to delay the proceedings f.it cannot be used to conform to evidence (but it is allowed if amendment is to enable presentation of evidence and not to conform to latter.) g. For purpose of curing violations of forum shopping SUBSTANTIAL AMENDMENTS May be made only upon leave of court, and such is true even if the amendment sub stantially alters the cause of action or the defense. But such leave may be refused if it appears to the court that the motion was mad e with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunit y to be heard. FORMAL AMENDMENTS. € A defect in the designation of the parties and other clearly clerical or typogra phical errors may be summarily corrected by the court at any stage of the action , at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (BAR) X filed a complaint against Y. At trial, Y presented evidence changing his defense w/o prior amendment of his pleadings. Discuss validity of the same: HELD: Y can do it even without amending his answer. It may be pointed out that s ec 5 states that Such amendment of the pleadings as may be necessary to cause th em to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not aff ect the result of the trial of these issues. As such judgment may still be rendered not on the basis of the issues alleged bu t on the basis of the issues discussed and proved in the course of the trial. He nce ,failure of private respondent to amend their pleadings will not affect the result of the trial of these issues. Rosario v Carandang: No amendment to confer jurisdiction is allowed, especially so when it appears on the face of the complaint that court has no jurisdiction. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied co nsent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended an d shall do so with liberality if the presentation of the merits of the action an d the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. MATTER OF RIGHT (no leave of court) any time before a responsive pleading is served or, in the case of a reply, at a ny time within ten (l0) days after it is served. If amendment not allowed, even if it is a matter of right, then , Mandamus is t he remedy Illustrations: 1.A filed a complaint against B ,who filed motion to dismiss. May A still amend his complaint as a matter of right? YES, since no answer or responsive pleading has been filed. A motion to dismiss is not a responsive pleading 2.X filed a complaint against Y,who filed an answer. X has not filed a reply. Ca n Y still amend his answer? Yes, the defendant has right to amend his answer bef ore a reply since no responsive pleading has been filed yet.

3.Suppose Motion for leave to Amend was filed after the dismissal of the complai nt, will motion be still admitted? YES, as long as dismissal has not yet become final, otherwise there is nothing more to amend. 2005 notes: The procedure required if amendment is sought after dismissal is tha t it must be a motion for leave to admit amended pleading, if it is filed after the dismissal of the complaint but before the finality of the order of dismiss al. 4.A filed a complaint against B.B has not yet filed answer. Can A amend the comp laint to introduce a new cause of action? YES, in Atkins v Domingo, amendment pr ior to filing of answer may introduce new causes of action, as such, the summons together w/ the amended complaint must be served upon the defendant. 2006 notes: If answer was already filed(or defendant was served w/ summons in th e original complaint and appeared and filed motion to dismiss) , no need for new summons since court has already acquired jurisdiction over the person of the de fendant. 4blue 95: if many defendants and few have answered, then only those who have not answered that are subject to amendment of pleadings as a matter of right. 2006 notes: The effect of amendment to change relief sought is nothing since it does not change the theory of the case. (BAR) Simultaneous suits were filed by plaintiff against defendants and their su reties for breach of contract. A motion to dismiss on ground of pendency of the 1st action was filed in the 2nd suit. It was denied by TC. CA reverse and held that there was splitting cause of action. There was a motion to amend the complaint to implead all the respondents in one complaint. The tri al court denied it, but CA reversed the order of denial and directed lower court to admit theamended complaint, hence this petition. Petitioners contend that the appellate court acted w/o jurisdiction or with grav e abuse of discretion amounting to lack of jurisdiction in admitting the amended complaint of the respondent corporation, considering that the previous dismissa l of the 2nd complaint for violating rule against splitting cause of action bar red its reinstitution by the amendment of the 1st complaint. HELD: A party may amend his pleading once as a matter of right at any time befo re a responsive pleading is served or, in the case of a reply, at any time withi n ten (l0) days after it is served. This is necessary in order that all matters in the action in dispute may be completely determined in a single proceeding. The amended complaint was filed not to delay nor alter the cause of action of 1 st complaint but to obviate the splitting cause of action and to obtain a speedy determination of the controversy in one proceeding without regard to technicali ty (since pleadings shall be construed liberally!!!) 2006 notes: In determining whether a different cause of action is introduced b y amendments to the complaint, court must ascertain if the facts alleged in the amended complaint show substantially the same wrong with respect to the amended transaction. As such, if there is a new cause of action, there is a need for new summons and such must be had before defendant has appeared in court . Defense of prescription is not waived even if not pleaded in a motion to dismiss or in answer, if plaintiff s allegations in complaint or evidence he presents sho ws clearly that action has prescribe. II.SUPPLEMENTAL PLEADINGS It does not extinguish the existence of the original pleading. Refers to facts arising after the filing of the original pleading Merely an addi tion, and does NOT result in the withdrawal of, the original pleading Always fil ed with leave of court (2005 notes: known as with prior permission of the courts ) Under what circumstances may supplemental pleadings be filed:

1.Upon motion of a party the court may, 2.upon reasonable notice and 3.upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurren ces or events which have happened since the date of the pleading sought to be su pplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (BAR) A complaint for Mandamus/Certiorari with preliminary Injunction w/ prayer for TRO was filed , alleging that there was failure to award the janitorial ser vices to the petitioner despite the fact that it was the lowest bidder. During pendency of case, it filed a supplemental pleading alleging that because of the contract of services for the previous year 1990, the delay in decision of the case rendered it moot and academic w/o obtaining complete relief to redress the wrong committed w/c relief to consisted in unrealized profits, damages and atty s fees. Instead of pursuing its prayer for mandamus, it sought for payment of damages to it. The question is the propriety of the filing of a supplemental complaint to seek for a different relief in view of developments rendering the original relief imp ossible of attainment. It was contended that supplemental complaint would not only radically but substa ntially change the issues by materially varying the grounds of relief. HELD: The supplemental complaint filed should be treated as amendments to origin al complaint or he may be required to file an amended complaint. What was cited in supplemental complaint was a supervening event causing damage to plaintiff due to delay in disposition of case. Such event was not to reinfor ce the original demand but is actually an alternative remedy to which petitioner is entitled to it even before the time of the filing of its original complain t. If petitioner was entitled to the award of the contract, it could have asked eit her for an award of the contract for janitorial services or for damages. The fac t that it opted for the 1st does not preclude it from claiming damages since thr ough no fault of its own ,the year passed w/o an award in its favor, with the re sult that it could no longer demand the execution of a contract in its favor on that year. (BAR)After there was decision against a supplier of Superior Sales, the supplier filed motion to dismiss on ground that there is no proper person suing as plain tiff. On the other hand, lawyer for plaintiff filed motion to amend complaint to make it conform to evidence that real party plaintiff is Mr.Tan. Court denied m otion on ground that it was filed too late and instead it dismissed the case. HELD: court erred in denying amendment to complaint nad dismissing it. Mistake in name of plaintiff (w/c should have been Mr.Tan instead of Superior Sales w /c has no juridical personality) was cured by presentation of evidence (w/o obje ction) that Mr. Tan is the proprietor of Superior Sales. Hence, an amendment o f complaint to conform to evidence was proper and even if no amendment was mad e ,it would not affect the result of the trial on the issue of real party in in terest. JURISDICTIONAL --- WHAT IT MEANS IS THAT IS THE JURISDCITION OF THE COURT AFFECTED? (BAR) An unverified complaint was filed but defendant filed a motion to dismiss on jurisdictional grounds. The lower court merely allowed plaintiff to verify it , but on appeal, RTC sustained the defendant s theory, on the pretext that the inf erior court has no jurisdiction to order its amendment. If you were the ponente on appeal ,decide. HELD: Verification of pleading is a formal not jurisdictional defect( so it does not affect jurisdiction of the court).It is simply intended to secure an assura nce that what are alleged in the pleading are true and correct and not the produ ct of imagination or a matter of speculation, and that the pleading is filed in

good faith. The court may order the correction of the pleading if not verified. (BAR) Car was damaged by Vilma. Judgment was rendered in favor of the owner of the car, however, owner appealed to the RTC and to assure that judgment in his f avor be satisfied.he amended complaint to include Vilma s husband. HELD: The RTC admit the Amended Complaint since the action against Vilma is a quasi-delict, h ence Vilma may be sued alone. The joinder of Vilma s husband is a mere formal ame ndment which may be done on appeal (Cuyugan v. Dizon) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS 2 KINDS OF RESPONSIVE PLEADING: 1.ANSWER (15 DAYS) 2006 notes: If answer was filed out of time , motion for leave to admit answer should be filed and the answer should be attached to it. Answer to complaint 15 days from service, unless different period fixed by the c ourts; Answer to amended complaint if amended as a matter of right, 15 days from being served with copy thereof --> If amended not as a matter of right , 10 days from notice of order admit ting the same --> Answer earlier filed may be answer to amended complaint, if no new answe r is filed --> Applicable to amended counterclaim, cross, third, etc, Answer to counterclaim not necessary: -condemnation proceedings -where answer is a mere repetition of the allegations in the complaint -issues raised are inseparable from those interposed in the complaint Answer to 3rd party complaint 15 days from service EXCEPTION TO 15 DAY PERIOD: Answer of defendant foreign corporation when service of summons is made on the g overnment official designated by law, answer to be filed within 30 days from rec eipt of summons by such entity. Time shall run from the date it receives the summons since service upon the corp oration is not complaint until the summons is transmitted to its home office., however, if summons is served upon its agents ,then time will run from receipt o f such agents or officers in the Philippines. Answer to counterclaim or cross-claim within 10 days from service. If counterclaim/cross claim were not yet existing at time of filing of the answe r, then, counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be pres ented as a counterclaim or a cross-claim by supplemental pleading before judgmen t. The counterclaim/crossclaim since not yet due or existing at time of filing of a nswer, the remedy is Supplemental Pleading (answered w/in 10 days from notice o f the order adimitting the same). 2.REPLY 2006 notes:Reply is optional since if there is no reply, the party is deemed to have controverted all the new matters alleged in the answer except when the answ er is founded on a document. may be filed within 10 days from service of the pleading responded to (BAR) X filed a complaint against Y. After service of summons, X moved for leav e of court to amend the complaint. It was granted and the amended complaint was filed .

Y did not file an answer to the amended pleading hence X filed a motion to decla re Y in default which was granted by the court. HELD: Court s ruling not correct. The rule that defendant should file an answer t o the amended pleading w/in 10 days from notice of the order admitting it is not applicable since Y filed an answer to the original complaint ,such answer woul d serve as his answer to the amended complaint. 2005 notes: This rule above is also applicable to the answer to an amended count erclaim, amended cross claim, amended 3rd,4th,5th complaint and amended complain t in intervention. 60day period to file answer is applicable in cases where service by publication is made, like in ; a.action to establish the status of the plaintiff and the defendant is abroad b.action concerning the property of the defendant located in the Phil c.purpose of action is to exclude the defendant from a claim in the Phil. Pleadings not covered by any period under RoC: a.Complaint w/c is governed by substantive law on prescription b.Compaint in intervention c.Compulsory counterclaim w/c requires a person to be impleaded who is not a par ty to the original action d.Answer to counterclaim which counterclaim is so intimately connected w/ the a llegations of the complaint to require the plaintiff to repeat the complaint. RULE 12 BILL OF PARTICULARS Motion of a party if nalalabuan siya sa certain areas sa kanyang opponent na ple ading. A bill of Particulars becomes part of the pleadings once accepted. A party (before responding to a pleading ) may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient def initeness or particularity to enable him properly to prepare his responsive plea ding. If the pleading is a reply, the motion must be filed within ten (10) days from s ervice thereof. Such motion shall point out the defects complained of, the parag raphs wherein they are contained, and the details desired. Action by the court. € Upon the filing of the motion, the clerk of court must immediately bring it to t he attention of the court which may either deny or grant it outright, or allow t he parties the opportunity to be heard. If the motion is granted, either in whole or in part The compliance therewith must be effected within ten (l0) days from notice of th e order, unless a different period is fixed by the court. The bill of particular s or a more definite statement ordered by the court may be filed either in a sep arate or in an amended pleading, serving a copy thereof on the adverse party. Effect of the Filing of the bill of Particulars(Stay of period to file responsi ve pleading.) € After service of the bill of particulars or of a more definite ple ading, or after notice of denial of his motion, the moving party may file his re sponsive pleading within the period to which he was entitled at the time of fili ng his motion, which shall not be less than five (5) days in any event. Effect of non-compliance. € If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or t he portions thereof to which the order was directed or make such other order as it deems just. (BAR) Appelee filed a motion for bill of particulars. For failure of appellant t o file a Bill of Particulars, the case was dismissed ,hence ,this appeal. HELD: Dismissal proper. Allowance of a motion for more definite statement or bil l of particulars rests within sound discretion of court and such will be respect ed unless there has been a palpable abuse of discretion or a clearly erroneous o rder.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Kinds of service of pleadings: a.Personal service to be done whenever practicable (Most preferred mode) b.Service by mail (ordinary if no registered mail) c.Substituted service (delivering copy to clerk of court with proof of failure o f 1st 2 modes) Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not d one personally. Violation of rule may be cause to consider the paper as not filed. Kinds of service of final orders: -Personal -Registered mail -Publication (if summons by publication) 3. Proof of personal service a. Written admission of party served; b. Official return of the server; or c. Affidavit of party serving, containing a full statement of the date, place an d manner of service. For substitution of Counsel to take effect, the ff requisites must conform: 1.filing of written application for substitution 2.written consent of the client 3.written consent of lawyer to be substituted 4.if such consent cannot be obtained ,the application must be accompanied by pr oof of service thereof, on the attorney to be substituted RULE 14 SUMMONS (BAR-SEC.20) Writ or process issued and served upon the defendant in a civil action for the p urpose of securing his appearance. (Upon filing of the complaint , the clerk of court shall forthwith issue the corresponding summons to the defendant) If summons was wrongfully served, the case is not dismissed since an alias summo ns can be actually served on the defendant. Summons may be made at night as well as during the day or even on a Sunday or h oliday because of its ministerial character. The equivalent of service of summons is the voluntary appearance of the defendan t(provided not raise issue of lack of jurisdiction). Ex: Voluntary appearance of atty; a motion,answer or simple manifestation; telegraphic motion for postponem ent; filing a motion for dissolution of attachment; motion to set aside order of default or failure to question invalid service of summons. Contents of summons a. Signed by the clerk under the seal of the court b. Name of the court and that parties to the action c. Direction that the defendant answer within the time fixed by these rules d. Notice that unless defendant so answers, plaintiff will take judgment by defa ult By whom served: a. Sheriff b. Other proper court officer c. Any suitable person specially authorized by the judge 2005 notes: When service has been completed, the server shall within 5 days ther efrom, serve a copy of the return, personally or by registered mail, to the plai ntiff s counsel nad shall return the summons to the clerk who issued it, accompani ed by proof of service. When extraterritorial service allowed: a. Defendant is a non-resident and is not found in the Philippines and action af fects plaintiff s personal status b. Subject of action is property within the Philippines in which the defendant h as or claims a lien or interest c. Where relief demanded consists in whole or in part in excluding the defendant

from any interest in such property d. When property of defendant has been attached within the Philippines Kinds of extra territorial service a. Personal service b. Publication and summons sent by registered mail to last known address c. Any other matter the court may deem sufficient Service upon private domestic juridical entity refers to corporation, partnershi p, or association organized under Phil. Laws with a juridical personality(cashie r and director not valid): a. President (at office or on his residence) b. Managing partner c. General manager/Assistant Manager d. Corporate secretary e. Treasurer/Finance & Administrative head f. In-house counsel 2005 notes: Summons may also be served on the clerk of a corporation (G&G Tradin g v CA) 2005 notes: When persons associated in business are sued under a common name, se rvice may be effected upon all defendants by serving upon all defendants by ser ving upon any one of them or upon the person in charge of the office/place of bu siness maintained in common name. 2005 notes: Substituted service is not allowed in service of summons on domestic corporations; Service by publication is improper where no diligent efforts were made to ascertain address of officers. (BAR) X,Y,Z are business partners. On Dec 9,2003, X severed his relationship wit h Y &Z. A suit was filed on June 22,2004 against Y &Z and summons was served on them on July 1,2004. Is service upon Y &Z binding on X? NO MORE, since X has already severed his relationship with them before the actio n was brought provided there was due notice (sec9) Service upon minors: Made on him personally and also on his guardian or person exercising parental au thority over him, but the court may order that service made on minor of 15 or mo re years of age shall be sufficient (sec10) Service upon prisoners: Made upon him by serving on the officer having management of the jail where he i s confined (sec9) Service upon Insane/Incompetent person: Made on him personally and on his guardian or person exercising parental authori ty over him (sec10) Service upon private foreign juridical entity transacting business in the Phils: a. Resident agent designated in accord with Law b. If no such agent, on government official designated by law OR c. On any of its officers or agents within the Phils NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC. 2005 notes: It ction is filed which sent it 2005 notes: If neral,if lLGU, is valid where foreing corp has principal office against it in Japan and serive to main office in to the executive judge. defendant is Philippines, summons be served upon on executive head or other officers as law/court in Phil and an a Phil through DFA the Solicitor Ge may direct.

KINDS OF SERVICE OF SUMMONS: a. PERSONAL(BAR): i. Handing a copy to the defendant in person; OR ii. If he refuses to receive and sign for it, by tendering it to him (BAR) The defendant was in the USA when summons was served on his overseer. At t

he Supreme Court it was contended that the court did not acquire jurisdiction ov er him. Is contention correct? YES, Petitioner is a resident temporarily out of the Philippines as such, servic e of summon may be by leave of court be effected out of Phil by personal servic e or by publication in which case a copy of the summons and order of the court b e sent by registered mail to the last known address of the defendant. Failure to comply is a fatal defect as to annul the proceedings taken by the court. 2005 notes: An overseer is not authorized to receive any pleading in behalf of petitioner. b. SUBSTITUTED( BAR): i. Leave copies at his residence, with person of suitable age and discretion res iding therein; OR ii. Leave copies at defendant s office/regular place of business, with competent p erson in charge thereof. It is resorted to when defendant cannot be served within a reasonable time. An e xample is when defendant is in hiding and resorted to intentionally to avoid ser vice of summons or when defendant refuses w/o justifiable reason to receive the summons. Sheriff must make a report of his efforts to find the person and the fact that such efforts failed. This statement must be stated in the proof of service. If substituted service is resorted to w/o complying with the rules, it would not make proceedings valid. Sheriff must show that there is impossibility of servic e and efforts were exerted. 2005 notes: Absence of the sheriff s return about the impossibility of service of summons will not make substituted service void since proof of prior attempts to a resort to personal service may be submitted by plaintiff during the hearing of any incident assailing the validity of the substituted service (as such, sheri ff s negligence should not prejudice plaintiff if what was undisclosed was in fact done) (BAR) Defendant filed an extension of time to file answer w/c court denied and instead, declared defendant in default. Then, he questioned the jurisdiction of the court over him as there was defective substituted service of summons. Is con tention correct? NO, admittedly, sheriff s return is bereft of any particulars on the impossibility of personal service on defendant w/in a reasonable time. However, such flaw was deemed waived when they filed a motion for additional time to file answer. c. BY PUBLICATION Service by publication may be effected by: 1.Publication of summons in a newspaper of general circulation in such places an d for such time as stated in the court order. 2.Sending copy of summons and order of court allowing service by publications by registered mail to last known address of the defendant When service by publication in a newspaper of general publication allowed (there must be leave of court, secured through motion): a. Identity of defendant unknown b. Whereabouts of defendant unknown and cannot be ascertained by diligent inquir y --> (a) and (b), applies to ANY action, even actions in personam c. Defendant is non-resident and the suit is quasi in rem d. Defendant is temporarily out of the country and the suit is quasi in rem Newspaper of general circulation (RA 4883, PD 1079) a. Published for the dissemination of local news and general information b. Has a bona fide subscription list of subscribers c. Published at regular intervals d. Not published for nor devoted to the interest of a particular group of person s

e. Must have been regularly published for at least 2 years before the date of th e publication in question. --> Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. It should be noted that when the appearance of the defendant is precisely to object to the ju risdiction of the court over his person, it cannot be considered as an appearanc e in court. (BAR) X is the sister of Y. After her death, summons was served on her sister. W as there proper service of summons? NONE, since no representative of X. Service of summons is means by which the cou rt acquires jurisdiction over the person. In absence of such service or a valid waiver thereof, the trial and judgment are void. (BAR) A filed a complaint against B. Is there a need to serve summons upon the d efendant if the pleading is amended on the assumption that B has been served w/ summons of the orig pleading? NO, when summons was served on defendant , jurisdiction had already been acquire d by the court over his person. Where defendant has already appeared before the trial court by virtue of summons of orig complaint, the amended complaint may be served upon him w/o need of ano ther summons even if new causes of action are alleged. 2005 notes: If action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. -- If defendant is a non-resident and he is not found in the country, summons ma y be served exterritorialy. Examples: a.action affects the personal status of the plaintiff like declaration of pater nity b.subject matter of action is a property located in Phil in which defendant has a claim or interest c.purpose of action is to exclude defendant from any interest in the property li ke foreclosure of mortgage d.property of defendant has been attached in the Phil. An example is a sum of mo ney case where there was attachment of property of defendant converting the acti on from one of personal to quasi in rem. 2005 notes: In an action in personam, personal service of summons within the for um is essential to the acquisition of jurisdiction over the person of the defend ant who does not voluntarily submit himself to the authority of the court --summons by publication cannot consistently, w/ due process clause ,confer upon the court jurisdiction over the defendants, the proper recourse for creditor in actions in personam is to locate properties ,real or personal , of the defenda nt w/ an unknown address or is abroad and cause them to be attached. --in which case ,attachment converts action into a proceeding in rem or quasi in rem and summons by publication may be deemed valid and effective. 2005 notes: Even if an answer with counterclaim is filed , there is no need to s erve summons since the court has already acquired jurisdiction. (BAR) When sheriff tried to serve summons at the residence of the defendants, h e was informed of the fact that they were not residing in the premises, neverthe less, sheriff left copy of complaint to person present therein together with sum mons. He then certified that defendants were served with summons. Was there prop er service? NONE, since summons served on person not authorized. (BAR) While trial is on going, the lawyer of Mario discovered that there was imp roper service of summons,since it having been sent by registered mail. He filed a motion to dismiss on ground that court had not acquired jurisdiction over Mar

io s person. HELD: Motion denied. Filing of answer and going to trial w/o previous objection to lack of jurisdiction over his person, Mario is deemd to have waived defect o f improper service of summons. (BAR) A filed a case before RTC against B for a tort committed by B while vacati oning at the residence of his brother. The summons were served on B s brother .B s lawyer filed a motion to dismiss and assert that B is not a resident of and cou ld not be found in the Philippines so the court cannot acquire jurisdiction agai nst his person. The motion also alleged that anyway the action has prescribed an d further asserted claim for litigation expense. Assume that B s lawyer was author ized by B to represent him.Decide: The case will not be dismiss on ground of court s lack of jurisdiction . Although, substituted service of summons on B s brother was not valid inasmuch as B was n ot a resident of the Philippines, the motion to dismiss filed by B s lawyer const ituted a voluntary appearance, inasmuch it was not only questioned jurisdiction of court over his person, but also alleged prescription and a claim for litiga tion expenses. (2005 notes)The effect of absence of summons on a judgment would make the judgm ent null and void since the court would not have jurisdiction over the person of the defendant, but if the defendant vouluntarily appeared before the court, h is appearance is equivalent to the service of summons. -- a summon must be serve on additional defendant impleaded in the action so tha t court can acquire jurisdiction over him, unless he makes vouluntary appearance -- a defendant who was substituted for the deceased need not be served w/ summon s since it is the court w/c orders him as legal representative of the deceased to appear and substitute the deceased. RULE 15 MOTIONS An order by a court may be applied for by motion. In every application for an or der not include in a judgment may be called a motion. The motion shall state the order sought to be obtained and the grounds upon w/c it is based, and if necessary shall be accompanied by supporting affidavits an d other papers. All motions must be in writing except: a. Those made in open court; OR b. Those made in the course of a hearing or trial. (BAR) X filed motion to dismiss Y s complaint against him, but did not serve notic e upon Y.If you were judge would you entertain the same. NO, the motion is a litigated motion and the 3day notice rule must be complied w ith. Notice of motion shall be served by the applicant to all parties concerned atleast 3 days b4 the hearing thereof, together w/ copy of the motion, and any affidavits and other papers. 2005 notes: A motion that does not contain a notice of hearing is a mere scrap o f paper, it represents no question w/c merits the attention of the court. Even i f motion was denominated as Urgent . (dapat ,once you file motion it must be accomp anied by a NOTICE OF HEARING!!) (BAR) A copy of the motion for reconsideration was serve upon petitioner, altho ugh service was effected through ordinary mail and not by registered mail as req uired by the rules . But ,the petitioner was given the full opportunity to be he ard and to argue his case when the court a quo required him to file a reply (opp osition) to the motion for reconsideration and subsequently set the motion for o ral argument. What is the effect of the act of the court? It cured the lack of n otice When law really eschews is not lack of previous notice of hearing but lack of opportunity to be heard,then,parties should not rely much on technicalities w/c 4 interest of justice may be relaxed.(Patricio v Leviste)

2005 notes: Notice of motion is required where a party has a right to resist th e relief sought by the motion and principles of natural justice demand that his rights be not affected w/o an opportunity to be heard. --notice of motion shall contain a direction to the parties concerned and shall state the time and place for the hearing of the motion. --notice of motion should be directed to the parties not to the clerk of court. 2005 notes: No motion shall be acted upon by the court w/o proof of service of t he notice, except when the court is satisfied that the rights of the adverse par ty or parties are not satisfied. 2005 notes:Motion for extension of time should be treated w/ liberality(subject to sound discretion of court). 2005 notes: Motions may be heard on shorter notice whenever court for good cause hear motion on shorter notice especially on matters w/c the court may dispose o f on its own motion (sec4) 2005 notes:Purpose of 3day notice is to apprise other party of the same and to p revent surprises. (BAR) The effect if court heard a motion w/o complying w/ 3day notice is that it committed a grave abuse of discretion ,however in Tamargo v CA, while notice of time and place of hearing is mandatory in motions,the SC may suspend its rules thereon to prevent manifest injustice. Exceptions to the three-day notice rule: a. Ex parte motion b. Urgent motion c. When court sets hearing on shorter notice for good cause d. Motion for summary judgment (must be served at least 10 days before the heari ng) A prudent judge would, in the absence of the opposing party in the hearing of a motion, inquire from the other party or inquire from the records the proof of th e service of notice rather than proceed with the hearing. He should not rely on a party s undertaking to notify the adverse party of a scheduled hearing. The ju dge must demand what the rule requires, i.e., proof of such notice on the advers e party. Otherwise, a contentious motion should be considered a mere scrap of p aper which should not have even been received for filing. Subsequent service of the motion on the adverse party may be considered substant ial compliance with the Rule 15, § 6. Failure to attach to the motion proof of se rvice thereof to the adverse party is not fatal when the adverse party had actua lly received a copy of the motion and was in fact present in court when the moti on was heard. (BAR) After a series of postponements by agreement of the parties, counsel for d efendants filed a motion for postponement alleging his appearance in another cou rt w/o proof of service. It was denied,hence, plaintiff was authorized to presen t evidence ex parte. 1 yr later, plaintiff filed a motion for new trial alleging that the defendant s failure to appear was due to excusable negligence. HELD: The grant/denial of motions for postponement is discretionary on the court s. Defendants should not have presumed that the motion for deferment of the pretrial conference would be granted, they have no right to rely on the liberality of the court or on the very generosity of the adverse party. No motion be acted upon by court w/o proof of notice . (BAR) A motion for postponement of trial was filed but it was denied. Order decr eed that right of party to cross examine the witness was waived. HELD: to grant/deny a motion is discretionary on the court but in denying such, the lower should not have ordered the waiver of the respondent s right to cross-ex amine the witness (due process). 2005 notes: A motion attacking a pleading or a proceeding shall include all obj ections then available, and all objections not so included shall be deemed waive d.

--court may dismiss claim if it appears that the court has no jurisdiction over the subject matter,another action is pending bet parties for same cause, or that acton is barred by statute of limitations or by prior judgment. --a motion to admit a pleading or motion should be accompanied by pleading on mo tion sought to be admitted (sec9) RULE 16 MOTION TO DISMISS (BAR,SECS 5-6) GROUNDS FOR MOTION TO DISMISS: All grounds for motion to dismiss should be pleaded, except if lack of jurisdict ion and lack of cause of action since these 2 grounds can be interposed for 1st time on appeal a. Court has no jurisdiction over the person of the defendant Applicable if the defendant has not been properly served w summons unless he vol untarily appears or enters his unlimited appearance If defendant moves for the dismissal of action on ground of improper service of summons,he may move to quash the info but only on that ground. However, if accus ed raises other grounds in motion to quash, he is deemed to have waived that obj ection and to have submitted his person to the jurisdiction of the court (Sanche z v Demtriou) b. Court has no jurisdiction over the subject matter of the claim; 2005 notes: If motion on this ground is denied, party should answer and go to tr ial. However, he may go to SC on Certiorari under Rule 65 if there is grave abu se of discretion amounting to lack of jurisdiction. c. Venue is improperly laid; d. Plaintiff has no legal capacity to sue; e. There is another action pending between the same parties for the same cause; --> Requisites of litis pendentia: i. Identity of parties/interest ii. Identity of rights asserted and prayed for/relief founded on the same facts; iii. Identity of the 2 cases (such that judgment in one would amount to res judi cata in the other) (BAR)X sold property to Y. Due to overpayment , Y filed an action to recover the overpayment. In the meantime, X filed an action for collection of balance..Y fi led a motion to dismiss on ground of lis pendens. X contended that since he has not yet been served w/ summons,first case cannot be invoke. HELD: X s contention not correct. An action commences upon filing of complaint, no t upon service of summons. All elements of lis pendens are present,hence, second action should be dismissed but w/o prejudice to X s right to file counterclaim. 2005 notes: Whatever is judgment in the first will constitute a bar to the secon d 2005 notes: Action for accounting,even if filed first, shold be dismissed for su m of money (Allied Bank v CA) f. Cause of action is barred by a prior judgment or by statute of limitations; --> Requisites of res judicata: i. Final judgment or order ii. Rendered by court of competent jurisdiction iii. On the merits (even without trial, such as cases decided by Judgment on the Pleadings, Summary Judgment, or dismissed for failure to prosecute or for refus al to obey an order of the court) iv. Identity of the parties g. Condition precedent for filing has not been complied with This includes prior recourse to barangay conciliation, or failure to make attemp ts to reach a compromise in cases between members of the same family The court shall not defer the resolution of the motion for the reason that the g round relied upon is not indubitable.

h. Pleading asserting claim states no cause of action; The court cannot consider evidence other than the allegations in the complaint. Allegations in the complaint must be accepted as true and it is not permissible to go beyond tand outside of the facts alleged. The hypothetical admissions is limited to the relevant and material facts well pleaded in the complaint and the inferences fairly deductible therefrom. * considering that fact is only hypothetical ,the defendant can still specifical ly deny in his answer if such motion to dismiss is denied. * w/c means, if motion is denied, pwede pa rin nya ilagay sa answer nya yung gr ounds that constitutes his motion to dismiss. i. Claim or demand in the plaintiff s pleading has been paid, waived, abandon ed, extinguished; j. Claim on which action is founded is unenforceable under the statute of f rauds; Motion to Dismiss must be filed within the time for and before the filing of an answer to complaint. At the hearing of motion to dismiss ,the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved,excep t those not available at the time(sec2) --if case go to trial, evidence presented shall automatically be part of the evi dence of party presenting the same. (BAR)A filed complaint for sum of money vs B who filed motion to dismiss on gro und of payment. He presented evidence of payment at hearing for motion to dismis s.Motion denied. He filed answer. As such, the evidence he presented earlier is automatically considered part of the evidence of B when he goes to trial. The Following are grounds of which if the case is dismissed it shall bar the ref illing of same action or claim but this is w/o prejudice to right of other party to appeal from order of dismissal since such dismissal is a final order not me rely interlocutory. a. Res judicata b. Extinguishment of claim or demand c. Prescription Prescription of action is interrupted when action is filed in court; there is ex trajudicial demand or when there is written acknowledgment of the debt by the de btor himself. With regards acknowledgement of debt, if made prior to expiration, it renews the period, if made after, it reinstates the period. (BAR) X filed complaint for sum of money vs Y. It was dismissed w/o prejudice. Suppose the action was filed based on a written instrum ent and it was filed on the 9th year. Within what pd should X file another case if any? HELD: Within 1 yr since prescription starts to run again when he was notified of the dismissal. Note that no new pd was created only the remainder. 2005 notes: Defense of prescription may be waived, if not properly invoked. But there are cases to show that even if prescription was not set up in a motion to dismiss , or in answer as an affirmative defense, it can be raised on appeal if the allegations and evidence presented show that prescription had set in. d. Unenforceability under the Statute of Frauds The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. --> A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevan t facts which are well pleaded in the complaint. The demurrer does not admit th

e truth of mere epithets charging fraud; nor allegations of legal conclusions; n or an erroneous statement of law; nor matters of evidence; nor to legally imposs ible facts. 2005 notes: The ground for a motion to dismiss that no earnest efforts to a com promise have been availed of is when parties are members of same family, but on ce party is a stranger, like brother in law, the requirement is no longer availa ble. 2005 notes: Once filed an answer, the person cannot anymore file a motion to di smiss. 2005 notes: If party is declared in default ,he can no longer file motion to dis miss. Defendant declared in default is entitled to notice of subsequent proceedings bu t not to take part in the trial (sec3) He may have right to appeal from judgment without the need of filing petition to set aside order of default (Fuentes v Leviste) Actions that court may take on a Motion to Dismiss: a. Grant it remedy of plaintiff is appeal 2005 notes: this is a final order, so losing party (plaintiff) cannot refile cas e of the same action or claim b. Deny NOT appealable; general rule is that the party who filed motion which wa s denied must file an answer but may avail of certiorari, prohibition and manda mus. If denied, defendant must file answer within the balance of the 15-day period, b ut not less than 5 days from the time he received notice of the denial; Nature of order denying motion is an interlocutory. (BAR) A filed a complaint against B before the RTC ,Manila, On the 14th day fro m service of summons, he filed a motion to dismiss, but it was denied. Within wh at pd should B file an answer. HELD: Even though he has only one day left for B to file answer, but since the r ule provides that it should not be less than 5 days, then he has still 5 days le ft to file an answer. 2005 notes: Court may dismiss complaint even if no motion to dismiss or answer i s filed whenever the ground of such dismissal is that it has no jurisdiction. c. Order amendment of the pleading (Rule 6 case) X did not file a motion to dismiss improper venue but filed his an swer raising therein improper venue as an affirmative defense. He also filed a c ounterclaim of P80000 against A for atty s fees nad expenses for litigation. X mo ved for a prelim hearing on said affirmative defense. For his part, A filed moti on to dismiss the counterclaim for lack of jurisdiction. Rule on affirmative def ense on improper venue. HELD: There is improper venue. Case which was filed in Quezon City , is a person al action , it must be filed in residence of either plaintiff (Pangasinan) or de fendant (San Fernando), the fact that it was not raised in a motion to dismiss d oes not matter since the rule that if improper venue is not raised in a motion t o dismiss,it is deemed waived was removed from the Revised Rules of Court. The new Rule provides that if no motion to dismiss has been filed, any of the groun ds for dismissal may be pleaded as an affirmative defense. Extra Territorial Service if party is outside the Philippines: 1.personal service out of the country (w leave of court) 2.service by publication (w leave of court) in a newspaper of general circulatio n in such time and places as the court may order and a copy of summons and order of the court be sent by registered mail to the last known address of defendant. 3.any manner which court may deem sufficient.

-- it must be made outside the Philippines such as the Philippine embassy in the country where the defendant resides. --being non resident, it must be given 60 days to file answer not 15 days. Counterclaim v. Crossclaim: Cross claim is any claim by one party against a co-party arising out of the tra nsaction or occurrence that is the subject matter either of the orig action or of a counterclaim therein. A counterclaim is against an opposing party while a cross claim is against a coparty. 2005 notes: Plaintiff may file a motion to dismiss in a counterclaim since it is considered as an independent complaint against the plaintiff. (BAR) A filed a complaint against B who did not file a motion to dismiss but ins tead interposed some grounds for motion to dismiss as affirmative defense w coun terclaim. The case was dismissed on affirmative defenses. Can counterclaim still be prosecuted? YES, dismissal of complaint on grounds relied upon as affirmative defenses but w /c are grounds for motion to dismiss shall be w/o prejudice to the prosecution i n the same or separate action of a counterclaim pleaded in the answer (sec6) 2005 notes: A motion to dismiss with counterclaim is not sanctioned by Rules of Court since a counterclaim is contained in an answer and not in motion to dismi ss. What the defendant should do is to plead the ground of his motion to dismiss ( except if improper venue) as an affirmative defense in his answer, together wit h his counterclaim, and ask for a preliminary hearing on his affirmative defense as if a motion to dismiss had been filed. A, who is engaged in the tile installation business was sued by EE Industries fo r breach of contract for installing different marble tiles in its offices as pro vided in their contract. W/o filing any motion to dismiss. A filed its answer wi th Counterclaim theorizing that EE Industries has no legal capacity to sue becau se it is not duly registered corporation. By way of counterclaim, A asked for mo ral and actual damages as her business depleted as a result of wdrawal and canc ellation by her clients of their contract due to the filing of the case . Ther e was dismissal after the trial court found that EE is not a registered corporat ion. However, EE set a date for reception of evidence on A s counterclaim that c ould no longer be prosecuted in view of the dismissal of the same case. Is the stand of EE Industries sustainable? No, if no motion to dismiss has been filed, any of the grounds for dismissal pro vided in the RoC may be pleaded as an affirmative defense in the answer which ma y include a counterclaim. The dismissal of complaint on ground that EE is not a registered corporation is w/o prejudice to the prosecution of the counterclaim in the same action since it is a compulsory counterclaim. RULE 17 DISMISSAL OF ACTIONS Dismissal by the plaintiff ( Action may be dismissed by plaintiff w/o order of the court) a. By filling Notice of dismissal any time before service of the answer or a mot ion for summary judgment; a. Dismissal by Plaintiff is considered an adjudication on merits when it has be en dismissed twice. Rule states that dismissal is without prejudice EXCEPT on 2 nd notice of dismissal, which operates as adjudication on the merits when filed by same plaintiff who has once dismissed an action based on or including said cl aim. b. 2 DISMISSAL RULE occurs where complaint had been dismissed by plaintiff w/o o rder of the court by the mere act of serving notice of dismissal. In this case, the 2nd dismissal operates as an adjudication on the merits.

c. (BAR) X moved to dismiss the complaint. The court granted it w/o any qualific ation. What is the nature of the dismissal? It is w/o prejudice. When court issues an order of dismissal upon the plaintiff s instance, and the order is silent, the same is w/o prejudice . The only instance when order of dismissal is w/ prejudice is when the court so orders. 2005 notes: A class suit shall not be dismissed or compromised w/o approval of t he court. b. If answer or motion for summary judgment already served, dismissal by a Motio n for Dismissal, which shall require approval of the court; shall be without pre judice unless otherwise specified by the court a. dismissal is without prejudice to defendant s right to prosecute counterclaim i n a separate action or, if he makes a manifestation within 15 days from notice o f the motion, to prosecute CC in same action. b. (BAR) A filed a complaint vs B, who served an answer w/ counterclaim .A mov ed to dismiss the action. HELD: The dismissal of action does not carry w/ it the dismissal of counterclaim since the rule states that If counterclaim has been pleaded by a defendant prio r to the service upon him of plaintiff s motion to dismiss, dismissal is limited t o the complaint c. Dismissal is without prejudice to defendant s right to prosecute counterclaim i n a separate action or, if he makes a manifestation within 15 days from notice o f the motion, to prosecute CC in same action. Effect of order of dismissal of an action for failure of plaintiff to prosecute: It is w/o prejudice to the right of defendant to prosecute his counterclaim in t he same or in a separate action. It has also the effect of adjudication on the merits unless otherwise declared by the court. 2005 notes: As such ,if plaintiff fails to appear at trial or prosecute his acti on or to comply w/ any order of the court, the action may be dismissed upon moti on of the defendant or upon the court s own motion. The dismissal shall have the effect of an adjudication upon the merits unless otherwise provided by the court . RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintif f s motion or due to plaintiff s fault does not necessarily carry with it the dismis sal of the compulsory CC; defendant is also given option to prosecute the same i n same or separate action. Dismissal of counterclaim, cross-claim, or 3rd-party complaint must be made by c laimant before a responsive pleading or a motion for summary judgment is served, or if there is none, before the introduction of evidence. -- rules in dismissal of complaint is also applicable here. (BAR) O filed a replevin suit vs A. In a joint motion to dismiss filed by partie s, court dismissed the case w/o prejudice. Negotiations failed, hence, O filed m otion to revive w/c court granted. Later, on Jan 16,1974, court dismissed the ca se w/ prejudice on motion of defendant. B4 the CA,latter opined that w/ dismissal of action w/ prejudice, the right to r eplevin died w/ such dismissal. Is CA correct? HELD:YES, the lower court acted in excess of jurisdiction when it granted motion to revive the case filed by O. By Dec 7,1973, the dismissal order of Dec 15,197 2 had long become final and adjudicatory, thereby beyond the power of the court to amend, modify or reverse. 2005 notes: the steps available to plaintiff if it wanted to pursue its claim ag

ainst A was to institute a new action in accordance w. the reservation containe d in the order of dismissal. -- It could not revive the dismissed case by motion or otherwise since such case attained finality. 2005 notes: Instances where court may dismiss action motu propio (meaning walang motion): --in all other instances, there is need for a motion. a.Failure to prosecute for unreasonable length of time It depends upon the circumstances as determined by the court which ordinarily ca nnot be disturbed. b.Failure to appear at the trial (BAR) X,represented by his lawyer, appeared. But Y, the lawyer, failed to appear . Court dismissed the case . Was court s action proper? HELD:NO, failure of plaintiff to appear and not absence of his lawyer is a groun d for dismissal. ( Calalang v CA) 2005 notes:However, in Vide Marahay v Malicor, it states that unwillingness of a party to proceed to trial because of his counsel s absence despite the opportunit y given him to engage the services of counsel is a ground for dismissal for fail ure to prosecute (BAR)X filed a complaint against Y who filed a motion for the appointment of com missioners to assess the value of property to determine the extent of the destru ction made by defendant. X failed to appear at the hearing of the motion, hence ,the court dismissed the case for failure to prosecute. Was action proper? HELD:NO, failure to appear as a ground to dismiss that case is AT THE TRIAL , n ot in a mere incident. 2005 notes: The effect if case has been postponed for several times at instance of plaintiff is that the action may be dismissed upon court s own motion for failu re to prosecute. 2005 notes: The nature of dismissal of the court without any qualification (or u nqualified) due to the continuous failure of the parties to appear at trial is t hat the dismissal is w/o prejudice and has the effect of adjudication on the mer its. c.Failure to comply w/ the rules of court d.Failure to comply w/ the order of the court (BAR) X and Y manifested w/in 1 month they would submit a compromise agreement. They failed to do so,hence, court dismissed it. HELD: Court s action not proper since failure of parties to file the compromise ag reement w/in pd granted them is not a ground for dismissal. e.Lack of jurisdiction 2005 notes: A person may move for dismissal of action even b4 court acquires jur isdiction over his person (Sunga v Lacson) RULE 18 PRE-TRIAL (MANDATORY) After filing and service of last pleading, the plaintiff shall promptly move ex parte that the case be set for pre-trial. What to consider in pre-trial (with noticeof pre-trial serve to counsel or party without counsel) a. Possibility of amicable settlement or arbitration b. Simplification of the issues c. Amendments to the pleadings d. Stipulations or admissions of facts and documents e. Limitation of number of witnesses f. Preliminary reference of issues to a commissioner

g. Propriety of judgment on the pleadings, summary judgments, or dismissal of ac tion h. Other matters for the prompt disposition of the action It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendant s counterclaim, it will b e the latter s duty to set the pre-trial. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex p arte and the court to render judgment on basis thereof. Non-appearance of party excused only if: a. A valid cause is shown therefor OR b. If representative shall appear in his behalf fully authorized in writing to e nter into an amicable settlement, to submit to alternative modes of dispute reso lution, and to enter into stipulations or admissions of facts and of documents, Parties must file pre-trial brief so as to ensure that other party receives it a t least 3 days before pre-trial. Failure to file brief has same effects as fail ure to appear at pre-trial. Proceedings recorded, and court shall issue an order reciting in detail matters taken up. Upon termination of the Pre-trial,court shall issue a pre-trial order w/c contai ns the following: a.recital of matters taken up in the conference b.action taken c.amendments allowed to the pleading d.agreements and admissions made by the parties as to any of the matters conside red and e.explicit definition and limitation of the issues to be tried if the action sha ll proceed to trial. 2005 notes: The contents of the pre-trial order shall control the subsequent co urse of action unless modified before the trial to prevent manifest injustice (s ec7) RULE 19 INTERVENTION (BAR) Remedy by which a third party, not originally impleaded in a proceeding ,becomes a litigant therein to enable him to protect or preserve a right or interest w/c may be affected by such proceeding. 2005 notes: Its purpose is to settle in one action and by a single judgment, the whole controversy among the persons involved 2005 notes: Intervention is not an independent action rather it is auxiliary or supplemental to an existing litigation. It gives person not a party the opportun ity to appear and assert or protect his interest. Grounds for intervention (of a 3rd party claim) a. Legal interest in the matter in litigation b. Interest in the success of either or both parties or interest against both c. Party is so situated as to be adversely affected by the distribution of the c ourt d. Disposition of property in the custody of the court or of an officer thereof. 2 KINDS OF INTERVENTION Motion for leave to intervene may be filed at any time before rendition of judgm ent(w/c means during trial of case). a.The intervenor shall file a pleading with leave of court called a complaint-i

n-intervention if he asserts a claim against or all of the original parties, it shall be made by complaint filed and served in regular form and may be answered as if it were an original complaint. Complaint in intervention is merely collate ral to the principal action. Hence, it will be dismissed if main action is dism issed. A complaint in intervention that seeks affirmative relief prevents a plaintiff f rom taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action. 2005 notes: A defendant cannot be declared in default if he does not file an ans wer to the complaint-in-intervention since he has already filed the answer to th e original complaint. 2005 notes: the effect of dismissal of an action in relation to the motion for intervention is that such motion for intervention must be denied (Matictic v elb inias) b.Or an answer in-intervention if he unites w/ the defending party in resisting a claim against the original parties. It must be filed within 15 days from notice of court admitting the complaint. 2005 notes: When Intervention is filed in an action the court shall consider whe ther or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor s rights ma y be fully protected in a separate proceeding. 2005 notes: The remedy if motion to intervence is granted is that anyone who ob jects can file a petition for Certiorari Ex where person may intervene: a.X sold his land to Y during the period of litigation bet X &Z. Y has to interv ene to protect his right b.If property under receivership,anyone who claims interest in it can intervene in any proceeding c.If an administrator sues another person,the heirs can intervene. Instances where intervention may be denied: a.A person who claims ownership of a property levied upon,may not intervene sinc e his right can be prosecuted in another proceeding (Bayer v Agana) b.In Gibson v Revilla, where reinsurer s intervention was not allowed in a suit by the insured against the insurer. (BAR) A filed a suit against B for recovery of real property at the RTC of Manil a. During the pendency of the suit, B sold land to C where title was issued in f avor of C. Assume that C came to you for advice whether it is necessary for him to intervene in the suit to protect his interest. HELD: No need to intervene. A transferee pendent elite acquires property subject to the outcome of the case. He merely steps into the shoes of the seller. If co urt renderes judgment in favor of seller or not, he is protected since acquired property subject to the outcome of the case. 2005 notes: When judgment becomes final and executory, the remedy is not anymore intervention but to file a separate and independent action before courts of com petent jurisdiction and not to file an ex-parte motion before the court. RULE 20 CALENDAR OF CASES 1. Calendar of cases to be kept by clerk of court for cases set for pre-tri al, trial, those whose trials adjourned or postponed and those with motions set for hearings. 2. Preference given to habeas corpus, election cases, special civil actions and those so required by law.

2005 notes: Assignment of cases to the different branches of a court shall be d one exclusively by raffle, such assignment be done in open session of which adeq uate notice shall be given so as to afford interested parties the opportunity to be present. RULE 22 COMPUTATION OF TIME 1. Computing for any period of time: day of the act or event from which design ated period of time begins to run is to be excluded and the date of performance included. 2. If last day of period falls on Saturday, Sunday or legal holiday in place wh ere court sits, the time shall not run until the next working day. 3. If there is effective interruption of period, it shall start to run on the d ay after notice of the cessation of the cause of the interruption. The day of t he act that caused the interruption is excluded in the computation of the period . RULE 21 SUBPOENA Process directed to a person requiring him to attend and to testify at the hea ring or the trial of an action, or at any investigation conducted under the laws of the Phil or for the taking of the deposition. It may also require him to bring w/ him any books, documents or other things un der his control in which case it is called subpoena duces tecum. Subpoena issued by: a. The court before whom witness is required to attend; b. The court of the place where the deposition is to be taken; c. The officer or body authorized by law to do so in connection with its investi gations; d. Any Justice of the SC or CA in any case or investigation pending within the P hils No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal institution shall be brought outside said institution for appearance or attendance in any court unless authorized by the SC(as such SC must first authorized the judge). 2005 notes: Trial can be conducted at the National Bilibid prison s premises in ca ses of prisoners sentenced to death or life imprisonment if judge is judge of Me tro Manila or provinces of Rizal, Bulacan, Cavite and Laguna (adm circular 6). 2005 notes: A person can refuse to comply or is not bound with the subpoena (thi s applies only to civil cases not to criminal ones) (i) on ground that he resides more than 100 km from place where he testifies. (ii) In case of prisoner, permission of court in w/c case is pending shall also be obtained 2005 notes: A person may be required to testify even if he was not served w/ a subpoena whenever such person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such c ourt or officer. What court will do if witness fails to appear: The court or judge issuing the subpoena ,upon proof of service and of failure of witness ,may issue a warrant to the sheriff or his deputy to arrest the witness and bring him before the court or officer where his attendance is required. And the cost of such warrant and seizure of such witness shall be paid by the wi tness if the court issuing it shall determine that his failure to answer the sub poena was willful and without just excuse. 2005 notes: Failure by any person without adequate cause to obey a subpoena serv ed upon him shall be deemed a contempt of the court from which subpoena issued.

Grounds for quashing subpoena duces tecum a. It is unreasonable or oppressive b. The articles sought to be produced do not appear to be relevant c. Person asking for subpoena does not advance cost of production Ground for quashing subpoena ad testificandum a. The witness is not bound thereby if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a det ention prisoner and no permission is obtained from the court in which his case i s pending --> This is known as the viatory right of the witness; NOTE, however, that the right is available only in CIVIL cases b. Witness fees and kilometrage allowed by rules not tendered when subpoena serv ed. Service of subpoena made in the same manner as personal or substituted service o f summons. MODES OF DISCOVERY Importance of Rules of discovery: Shorten the period of litigation and speed up adjudication. Rules of discovery serves as: a.devices (along with pre trial hearing under rule 18) to narrow and clarify the basic issues between the parties b.devices for ascertaining the facts relative to those issues. Modes of discovery provided for by the Rules of Court: 1.Depositions pending action (Rule 23) 2.Interrogatories to parties (Rule 25) 3.Request for Admission (Rule 26) 4.Production or inspection of documents or things (27) 5.Physical and mental examination of persons (28) DEPOSITIONS: Written testimony of a witness given in the course of a judicial proceeding , in advance of the trial or hearing, upon oral examination or in response to writte n interrogatories and where an opportunity is given for cross-examinations. Kinds of Depositions: 1.Deposition de bene esse or one taken pending action (rule 23) 2.Deposition in perpetua rei memoriam or one taken prior to the institution of an apprehended or intended action (rule 134) What is covered by a deposition: A deponent may be examined on any matter relating to the claim or defense of an y party to the action. The limitations are: Limitations are: a.deponent may not be examined regarding any privilege matter b.deponent may only be examined regarding any matter w/c is relevant to the subj ect of the pending action. c.court may issue orders to protect the parties and deponents or limit the exami nation. Deposition may be used at the trial, hearing of a motion, or at hearing of an i nterlocutory proceeding. Deposition may be used against the party who was present at time of taking, was represented at time of taking or was notified of its taking. (BAR)F sues his brother G to recover ownership of a parcel of land but G within period for pleading, moves to dismiss based on two grounds: suit being between members of same family , the complaint fails to aver that earnest efforts towa rds a compromise have been made, and that ,the action is barred by extinctive pr

escription. Pending resolution of motion to dismiss, f serves notice to take G s deposition, w/c latter opposes, claiming that this stage of proceeding no depo sition can be obtained w/o leave of court. Meanwhile, obviously to meet G s object ions in the motion to dismiss still unresolved, F files an amended complaint see king this time the partition of land bet him and his brother and alleging that e arnest efforts to amicable settlement have been exerted but failed. Is G s objecti on to taking tenable? Yes, since leave of court is necessary for taking of depos ition before an answer. Assuming that the trial court grants leave and g s deposition is duly taken upon o ral examination ,may such deposition be admissible as independent evidence if o ffered by F during the trial to partly prove his cause of action although G is available and present at trial.HELD: Yes, since deposition of G may be used by F who is an adverse party. 2005 notes: Depositions can be taken for witnesses outside the area of jurisdict ion or if witness is outside country. (BAR)In an admiralty case filed by A against Y Shipping Co ,whose principal offi ce is in Manila, in the RTC of Davao, the court issues subpoena duces tecum dir ecting Y the President of such shipping co to appear and testify at trial. How c an A take the testimony of Y and present documents as exhibits other than throug h the subpoena from the RTC? A can take testimony of Y and present documents as exhibits by taking his depositions through oral examinations or written interro gatories(Rule 23). He may also file a motion for production or inspection of doc uments (Rule 27). (BAR) J sues L on sum of money for breach of contract but before trial , J goes to Tokyo on business. He is there when his Atty receives notice of trial,theref ore, lawyer at once serves notice upon L s atty in Manila for taking of J s depositi on before consul in Tokyo. Since L has no money,they did not go to Japan, and hi s lawyer contends that taking of deposition was not at all authorized by court i n Manila since J s atty forgot to secure the court s authority through a motion.--HELD: Contention not tenable. No such authorization is necessary from court in t aking testimony of a party after court acquires jurisdiction over his person an d after answer had been served. 2005 notes: if jurisdiction over person was not yet acquired, the deposition to be taken in foreign state where person is not residing abroad , atty of that per son needs to secure court s authority through a motion. Written testimony of witness in course of judicial proceedings, in advance of tr AFFIDAVITS DEPOSITIONS Little hearing Can sworn for value No be probative testimonial Opportunitywritten statementsevidence Mereandcompetentcross-examination ialcross-examination (hearsay) To party Any BE A witness BY PURPOSEUSEDor MAYcontradict anyone who at deponent s testimony deposition DEPOSITION OF or impeach thethe time of taking theas a witnesswas an officer, di party, Of any purpose Forany or party An adverse managing agent party or not rector,witness, whether a of a public or private corporation For any purpose, IF court finds that: Any party a. Witness is dead; b. Witness resides at a distance more than 100 km from place of trial, UNLESS ab sence procured by party offering the deposition c. Witness is unable to testify because of age, sickness, infirmity, or imprison ment; d. Party offering the deposition has been unable to procure the attendance of th e witness by subpoena; OR e. Other exceptional circumstances make it desirable to allow deposition to be u DEPOSITION (2006 notes) sed. 1.pending action ,no answer filed yet (with leave of court) 2.pending action with answer filed (no leave of court) 3.before action or pending appeal (with leave of court) INTERROGATORIES 1.no answer (with leave of court) 2.with answer (no leave of court) REQUEST FOR ADMISSION (no leave of court) PRODUCTION OR INSPECTION OF DOCUMENTS/THINGS (with leave of court)

PHYSICAL AND MENTAL EXAMINATION ( with leave of court) HYSICAL AND MENTAL EXAMINATION ( with leave of court)ave of court) RULE 23 DEPOSITIONS PENDING ACTION DEPOSITIONS DE BENE ESSE taken for purposes of pending action 1. Depositions pending action a. Taken by leave of court after court obtains jurisdiction over any defendant o r property subject of the action b. Taken without leave after an answer has been served c. Upon the instance of any party d. May be deposition upon oral examination or written interrogatories 2. Scope of examination deponent may be examined regarding any matter not privi leged relevant to the subject of the action 3. Examination and cross-examination proceeds as in trials 4. Use of depositions --> Any part or all of a deposition which is admissible in evidence may be u sed against any party who was present or represented during the taking of the de position or who had notice thereof as follows next table. 5. Depositions and Affidavits distinguished --> Deponent is made the witness of the party offering the deposition. --> If only part of the deposition is introduced, adverse party may require that all of it which is relevant to the part introduced be introduced. 6. Persons before whom depositions may be taken a. Within the Philippines i. Judge ii. Notary public iii. Any person authorized to administer oaths if the parties so stipulate in wr iting b. In foreign countries i. On notice, before a secretary of any embassy or legation, consul-general, con sul, vice-consul, consular agent of the Phils ii. Before such person or officer as may be appointed by commission or under let ters-rogatories iii. Any person authorized to administer oaths if the parties so stipulate. Commission addressed to any authority in a foreign country authorized therein to take down depositions; the taking of such depositions is subject to the rules l aid down by the court issuing the commission Letters Rogatory addressed to judicial authority in the foreign country; the tak ing of the depositions is subject to the rules laid down by such foreign judicia l authority. Outline on how deposition may be used: a.For the purpose of contradicting or impeaching the testimony of the deponent a s a witness. b.Deposition of a party or any one who at the time of taking of the depositio n was an officer, director or managing agent of a public or private corp or asso c w/c is a party may be used by an adverse party for any purpose. c.Deposition of a witness ,whether or not a party , may be used by any party for any purpose if the court finds: i.witness is dead ii.witness is out of province at a greater distance than 50 kilometers from plac e of hearing, or is out of country ,unless it appears that his absence was procu red by the party offering the deposition iii.witness is unable to attend or testify due to age, sickness , infirmity or imprisonment. iv.party offering the deposition has been unable to procure the attendance of witness by subpoena. v.upon application and notice, that such exceptional circumstances exist as to m ake it desirable in the interest of justice and with due regard to the importan ce of presenting the testimony of witnesses orally in open court to allow the de

position to be used. d.if only part of deposition is offered in evidence by a party, the adverse part y may require him to introduce all of it w/c is relevant to the part introduced, and any party may introduce any other part. (BAR) A sued b. A took deposition of C ,his intended witness. Later on A died, h e was substituted by his son D. When D attempted to use deposition, B objected on ground that one who took it was already dead, hence, D cannot use it. HELD: B s contention not tenable. Substitution of parties does not affect the righ t to use depositions previously taken (sec5). (BAR) Suppose a case was filed by A against B.The deoposition of C was taken by A,but case was dismissed. Another action involving the same subject was filed by A. Can A use deposition taken previously? HELD: YES. Sec5 provides that when action has been dismissed and another action is afterwards brought between same parties or their representatives or successor s in interest, all depositions lawfully taken and filed in the former action may be used in the latter as if originally taken therein. 2005 notes: Objection to depositions be taken at trial or hearing but errors or irregularities of any kind which might have been obviated, cured or removed if p romptly presented are waived unless reasonable objection thereto is made at the taking of the deposition. 2005 notes: A person who took deposition of another is not obligated to make lat ter a witness since he may or may not use the deposition (sec7) 7. Persons disqualified to take depositions a. Relative within 6th degree of consanguinity or affinity of any party b. Employee of any party c. Counsel of any party d. Relative within the same degree of party s counsel e. Employee of party s counsel f. Anyone financially interested in the action 8. Depositions upon written interrogatories --> Party desiring to take such deposition shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name and descriptive title of the officer before whom the depositi on is to be taken; --> Party so served may serve cross-interrogatories upon the proponent withi n 10 days thereafter --> Re-direct interrogatories served within 5 days --> Re-cross interrogatories served within 3 days 9. Effects of errors and irregularities in the depositions a. As to notice waived unless written objection is promptly served upon the part y giving the notice b. As to disqualification of officer waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known o r could be discovered with reasonable diligence c. As to competency or relevancy of evidence - NOT waived by failure to make the m before or during the taking of the deposition, unless ground is one which migh t have been obviated or removed if presented at that time d. As to oral exam and other particulars - Errors occurring at the oral exam in the manner of taking the deposition, in the form of questions and answers, in oa th or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition. e. As to form of written interrogatories - waived unless served in writing upon party propounding them within the time allowed for serving succeeding cross or o ther interrogatories and within 3 days after the service of the last interrogato ries authorized. f. As to manner of preparation - errors as to manner in which the testimony is t

ranscribed or the deposition is prepared, signed, certified, sealed, indorsed, t ransmitted, filed or otherwise dealt with by the officer are waived unless a mot ion to suppress the deposition or some part of it is made with reasonable prompt ness after such defect is, or with due diligence might have been, ascertained. --> A deposition, in keeping with its nature as a mode of discovery, should be t aken before and not during trial. IN fact, the rules on criminal practice parti cularly on the defense of alibi states that when a person intends to rely on suc h a defense, that person must move for the taking of the deposition of his witne ss within the time provided for filing a pre-trial motion. No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the partie s; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. Sec. 14. Stipulations regarding taking of depositions. If the parties so stipulate in writing, depositions may be taken before any pers on authorized to administer oaths, at any time or place, in accordance with thes e Rules, and when so taken may be used like other depositions. Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to take the deposition of any person upon oral examination shal l give reasonable notice in writing to every other party to the action. The noti ce shall state the time and place for taking the deposition and the name and add ress of each person to be examined, if known, and if the name is not known, a ge neral description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the co urt may for cause shown enlarge or shorten the time. Sec. 16. Orders for the protection of parties and deponents. After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the depos ition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written in terrogatories, or that certain matters shall not be inquired into, or that the s cope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposit ion shall be opened only by order of the court, or that secret processes, develo pments, or research need not be disclosed, or that the parties shall simultaneou sly file specified documents or information enclosed in sealed envelopes to be o pened as directed by the court; or the court may make any other order which just ice requires to protect the party or witness from annoyance, embarrassment, or o ppression. Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken shall put the witness on o ath and shall personally, or by some one acting under his direction and in his p resence, record the testimony of the witness. The testimony shall be taken steno graphically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, o r to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the of ficer upon the deposition. Evidence objected to shall be taken subject to the ob jections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the office rs, who shall propound them to the witness and record the answers verbatim. Sec. 18. Motion to terminate or limit examination. At any time during the taking of the deposition, on motion or petition of any pa rty or of the deponent and upon a showing that the examination is being conducte d in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the offi cer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in

section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pe nding. Upon demand of the objecting party or deponent, the taking of the deposit ion shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to th e witness for examination and shall be read to or by him, unless such examinatio n and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposit ion by the officer with a statement of the reasons given by the witness for maki ng them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or ref uses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or abse nce of the witness or the fact of the refusal to sign together with the reason g iven therefor, if any, and the deposition may then be used as fully as though si gned, unless on a motion to suppress under section 29 (f) of this Rule, the cour t holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. Sec. 20. Certification and filing by officer. The officer shall certify on the deposition that the witness was duly sworn to b y him and that the deposition is a true record of the testimony given by the wit ness. He shall then securely seal the deposition in an envelope indorsed with th e title of the action and marked "Deposition of (here insert the name of witness )" and shall promptly file it with the court in which the action is pending or s end it by registered mail to the clerk thereof for filing. Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the parties. Sec. 22. Furnishing copies. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. Sec. 23. Failure to attend of party giving notice. If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the n otice, the court may order the party giving the notice to pay such other party t he amount of the reasonable expenses incurred by him and his counsel in so atten ding, including reasonable attorney s fees. Sec. 24. Failure of party giving notice to serve subpoena. If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not at tend, and if another party attends in person or by counsel because he expects th e deposition of that witness to be taken, the court may order the party giving t he notice to pay to such other party the amount of the reasonable expenses incur red by him and his counsel in so attending, including reasonable attorney s fees. Sec. 25. Deposition upon written interrogatories; service of notice and of inter rogatories. A party desiring to take the deposition of any person upon written interrogatori es shall serve them upon every other party with a notice stating the name and ad dress of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10 ) days thereafter, a party so served may serve cross-interrogatories upon the pa rty proposing to take the deposition. Within five (5) days thereafter, the latte r may serve re-direct interrogatories upon a party who has served cross- interro gatories. Within three (3) days after being served with re-direct interrogatorie s, a party may serve recross-interrogatories upon the party proposing to take th e deposition.

Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of thi s Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. Sec. 27. Notice of filing and furnishing copies. When a deposition upon interrogatories is filed, the officer taking it shall pro mptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. Sec. 28. Orders for the protection of parties and deponents. After the service of the interrogatories and prior to the taking of the testimon y of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order spec ified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in t he notice or that it shall not be taken except upon oral examination. Sec. 29. Effects of errors and irregularities in depositions. (a) As to notice.- All errors and irregularities in the notice for taking a depo sition are waived unless written objection is promptly served upon the party giv ing the notice. (b) As to disqualification of officer.- Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unle ss made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to competency or relevancy of evidence.- Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waiv ed by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (d) As to oral examination and other particulars.- Errors and irregularities occ urring at the oral examination in the manner of taking the deposition, in the fo rm of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured i f promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. (e) As to form of written interrogatories.- Objections to the form of written in terrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for se rving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. (f) As to manner of preparation.- Errors and irregularities in the manner in whi ch the testimony is transcribed or the deposition is prepared, signed, certified , sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer u nder sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppr ess the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL DEPOSITIONS IN PERPETUAM REI MEMORIAM taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal. 1. Depositions before action A person desiring to perpetuate his own testimony or that of another person rega rding any matter that may be cognizable in any court of the Phils may file a ver ified petition in the court of the place of the residence of any expected advers e party, which petition shall be entitled in the name of the petitioner and shal l show: a. That petitioner expects to be a party to an action in a court of the Phils bu

t is presently unable to bring it or cause it to be brought; b. The subject matter of the expected action and his interest therein; c. The facts which he desires to establish by the proposed testimony and his rea sons for desiring to perpetuate it; d. The names or description of the persons he expects will be the adverse partie s and their addresses so far as known; e. The name and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each. 2. Use of deposition If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving th e same subject matter subsequent brought in accordance with the provisions of Ru le 23. RULE 25 INTERROGATORIES TO PARTIES 1. Interrogatories and the answers thereto should be filed in court and served o n adverse parties, so that the answers may constitute judicial admissions. 2. Effect of failure to serve written interrogatories a party not served with su ch may NOT be compelled by the adverse party to give testimony in open court or deposition pending appeal. RULE 26 ADMISSION BY ADVERSE PARTY 1. Request for admission A written request for the admission of the other party of the genuineness of any material or document or request for the truth of any material and relevant matt er of fact set forth in the request may be filed and served upon the other party at any time after issues have been joined. 2. Implied admission Each of the matter requested to be admitted shall be deemed admitted within a pe riod designated in the request, which shall not be less than 15 days after servi ce thereof or within such further time as the court may allow on motion, UNLESS, party requested serves upon the party requesting a sworn statement either speci fically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. 3. Effect of admission Admission is only for the purpose of the pending action and shall NOT constitute an admission for any other person nor may it be used against him in any other p roceeding. 4. A party who fails to file and serve a request for admission on the adverse p arty of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon, A,plaintiff, through lawyer, sent to defendant B,through B s counsel, a request fo r admission of certain facts stated therein material to the case pending betw een them. B did not reply at all. On appeal from adverse decision, A assigned er ror the trial court s disregard of the facts, the admission of w/c was the subject of his unanswered request. A contended that as his request for admission for ms part of the records of the case, although not formally submitted in evidenc e and records do not show that defendant ever replied thereto.,there was clear j udicial admission by defendant of all material facts stated in request and that had the TC considered said admission, it would have made contrary findings of f act. Is plaintiff correct? Yes, failure of B to make sworn statement either denying specifically the fact s of w/c an admission was requested or setting forth in detail the reasons why h e could not truthfully either admit or deny these facts, constitutes an implied admission of facts. This being a judicial admission, no need to submit same form ally in evidence. 2005 notes: Court cannot admit evidence the certified copies of request for adm ission and the reply thereto in the previous case.

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS 4blue 95:it must be relevant to the case 1. Any party may move (leave of court) for the court in which the action is pend ing to order any party to: a. Produce and permit the inspection and copying or photographing of any designa ted documents, papers, books, accounts, letters, photographs, objects or tangibl e things, not privileged, which: i. Constitute or contain evidence material to any matter involved in the action AND ii. Are in his possession, custody or control. b. Permit entry upon designated land or other property in his possession or cont rol for the purpose of inspecting, measuring, surveying, or photographing the pr operty or any designated relevant object or operation thereon. 2. The order: a. Shall specify the time, place and manner of making the inspection and taking copies AND b. May prescribe such terms and conditions which are just. RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS 4blue 95: remedy to be availed of party if opponent don t want to be or is unwilli ng to be physically or mentally checked. 1. If the mental or physical condition of a party is in controversy, the court m ay order him to submit to a physical or mental examination by a physician. 2. The party examined waives any privilege (physician patient privilege) he may have in that action regarding the testimony of the person who has examined or ma y examine him with respect to that same mental or physical examination by: a. Requesting and obtaining a report of the examination so ordered OR b. Taking the deposition of the examiner. 4blue 95: the rule permitting the mental examination of any party litigant is av ailable only in actions where mental condition of such party is the issue in con troversy. 4blue 95: you can avail of more than 1 mode of discovery. RULE 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY 1. If a party/deponent refused to answer: a. The examination may be completed on other matters b. The examination may be adjourned c. The proponent may apply to the court for order to compel answer --> The court may then order: i. The refusing party or his counsel to pay the expenses incurred in obtaining t he order, including the attorney s fees (if it finds the refusal to answer without substantial justification) ii. The proponent or his counsel to pay the expenses incurred in opposing the ap plication, including attorney s fees (if it finds the application to be without su bstantial justification) 2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court, the refusal may be considered a contempt of that court. 3. If a party/officer or managing agent of a PARTY REFUSES to obey an order requ iring him: a. To answer designated questions b. To produce a thing for inspection or to permit entry upon property c. To submit to a physical or mental examination --> the court may order: i. That the matters regarding which the questions were asked, or the character o f the land or the thing, or the physical and mental condition of the party be ta ken to be established (w/c means that facts shall be established w/o undergoing with any of the modes of discovery). ii. The disallowance of the disobedient party s claims and the prohibition of the

disobedient party to present evidence iii. The striking out of the pleadings or parts thereof iv. The dismissal of the action or parts thereof v. Rendering judgment by default against the disobedient party OR vi. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination. However, in criminal cases, accused is compelled to undergo physical & mental ex amination (read: self incrimination) 4. If a party refuses to attend or serve answers, the court may: a. Strike out all or any part of any pleading of that party. b. Dismiss the action or any part thereof. c. Enter a judgment by default against that party, OR/AND d. Order that party to pay reasonable expenses incurred, including attorney s fees . 5. The Republic of the Philippines cannot be required to pay expenses and attor ney s fees under this Rules. RULE 30 TRIAL It is an examination before a competent tribunal of the facts or law put to iss ue in a case, for the purpose of determining the issue. ORDER OF TRIAL OF CIVIL ACTIONS: Trial shall be limited to the issues stated in the pre-trial order and shall pro ceed as follows: a. The plaintiff shall adduce evidence in support of his complaint; b. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and third-party complaint; c. The 3rd-party defendant, if any, shall adduce evidence of his defense, counte rclaim, cross-claim, and 4th party complaint; d. The 4th party and so forth, if any, shall adduce evidence of the material fac ts pleaded by them; e. The parties against whom any counterclaim or cross-claim has been pleaded, sh all adduce evidence in support of their defense, in the order to be prescribed b y the court; f. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduc e evidence upon their original case; and g. Upon admission of the evidence, the case shall be deemed submitted for decisi on, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or 3rd party defendants and so forth, having separate defe nses appear by different counsel, the court shall determine the relative order o f presentation of their evidence. If parties agree in writing on the facts involved in the action, they may then a sk court to render judgment thereon w/o the introduction of evidence. If agreeme nt of facts is partial, trial shall be held as to others. 2005 notes: An agreed stipulation of facts can be the basis of a judgment since such stipulation is conclusive on the parties as well as on the court. Neither of the parties may w/draw from the agreement, nor may the court ignore the same (Mcguire v Manufacturers Life Ins) 2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the parties so agree in writing, the court may de legate the reception of evidence to its clerk of court who is a member of the ba r. The clerk shall have no power to rule on objections to any question or to th e admission of exhibits, which objections shall be resolved by the court upon su bmission of his report and the transcripts within 10 days from the termination o f the hearing.

(2005 notes) Civil cases may be adjudicated w/o trial such as : Summary judgment , Judgment on the Pleadings, Summary Procedure and Sec 3 of Rule 17. While Crimi nal case may not be adjudicated w/o trial ,while exceptions are: Plea of guilty, motion to quash on ground of doubtful jeopardy or extinction of criminal actio n or liability and motion to dismiss on ground of violation of right to speedy trial. (2005 notes) Before rendition of judgment , party declared in default may: 1.file motion under oath to set aside order of default on grounds of fraud, ac cident, mistake or excusable negligence and that he has meritorious defense. And if denied, he may move to reconsider and if reconsideration is denied, he may file special civil action of certiorari for grave abuse of discretion tanta mount to lack or excess of lower court s jurisdiction. 2.File petition for certiorari (if he has been illegally declared in defalt and such must be filed during the pendency of his motion to dismiss or before expi ration of time to answer) (2005 notes)After judgment but before its finality File motion for new trial on grounds of FAME or a motion for reconsideration on ground of excessive damages, insufficient evidence or the decision being contra ry to law (Sec2 Rule 37) and if still, motion is denied, appeal is available und er Rules 40 or 41. (2005 notes)A judgment which has become final and executory can still be questio ned ,attack or set aside,namely: 1.Petition for relief of judgment under Rule 38 on grounds of fraud, accident, mistake or excusable negligence within 60 days from learning of judgment and n ot more than 6 months from its entry. 2.Direct action to annul or enjoin the enforcement of the judgment when the defe ct is not apparent on its face or from the recitals contained in the judgment. 3.Direct action, such as certiorari or by collateral attack against a judgment w hich is void on its face or when the nullity of the judgment is apparent by vir tue of its own recitals(macabingkil v. people s homesite) Postponement of Trial on ground of lack of evidence: a. filing of motion to postpone on ground of absence of evidence b. accompanied by requisite affidavit showing materiality of evidence expected t o be obtained c. due diligence has been used to procure it. (2005 notes) A court may order denial of motion to postpone especially so when s uch motion even if it allege a valid and justifiable reason for continuance, it is not accompanied by the requisite affidavit under oath stating that X was sick and that his presence in trial is indispensable and character of illness is suc h as to render his non-appearance excusable. Requisite medical certificate under oath was not attached to the motion. RULE 31 CONSOLIDATION OR SEVERANCE Consolidation of actions is proper when 2/more actions involve the same or a com mon question of law or facts and the said actions are pending before the same co urt. BUT the court may order a separate trial of any claim, cross-claim, counterclaim , or third-party complaint, in furtherance of convenience or in the interest of justice or to avoid prejudice. 2005 notes: There is no period where actons should be consolidated and that it can be done for the first time even on appeal. Modes of consolidating actions: a.recasting the case already instituted ,conducting only one hearing and renderi ng only one decision. b.consolidating existing cases, conducting only one hearing and rendering only o ne decision

c.without recasting or consolidating the case, the principal case is heard and t he hearing of the others is suspended until the judgment has been rendered in th e first case. RULE 32 TRIAL BY COMMISSIONER Trial by commissioner may be conducted when : 1.Both parties agree in writing to have the case referred to a commissioner pwede rin sa clerk of court Apurillo v Garciano even if such declared defective, it is merely procedural and can be waived by express or implied consent of the pa rties 2.When court upon motion of one of the parties or motu proprio : a. Trial requires examination of a long account of either side b. Taking of an account is necessary for the information of the court before jud gment or for carrying a judgment order into effect c. Question of fact, other than upon the pleadings, arises upon motion or otherw ise, in any stage of the case. 2005 notes: trial by commissioner shall be conducted in all respects as thought the same had been before the court. It is also valid to refer a case to the cler k of court as commissioner to receive evidence and make report valid such defect i s procedural which can be waived expressly/impliedly by parties. If party object s, he must do it on time and in the trial. 2005 notes: Kreidt v McCullough , it states that the weight which should be con sidered to the commissioner s findings shall depend largely on the peculiar condit ions of each case and it would seem advisable to leave the courts free to deal w ith each case in the light of certain general principles of jurisprudence. 2005 notes: The court will only review only so much as may be drawn in question by proper objections.It is not expected to rehear the case upon the entire recor d. Notice of filing of the report of the commissioner must be sent to the parties f or purpose of giving them an opportunity to present objection (Santos v Guzman) This rule is not absolute. Manila Trading v Phil Labor Union: Although parties were not notified of the fi ling of the commissioner s report, and the court failed to set aside report for he aring, if the parties who appeared b4 commisioner were duly represented by couns el and given opportunity to be heard, the requirement of due process has been sa tisfied, and a decision on basis of such report w/ other evidence of the case is a decision w/c meets the requirements of fair and open hearing. 2005 notes: The commissioner s report is not binding upon the court w/c is free t o adopt ,modify or alter whole or part of it. Court may receive further evidence or recommit the report with instructions (Baltazar v Limpin) RULE 33 DEMURRER TO EVIDENCE 4blue 95:It is a motion to dismiss filed by the defendant after the plaintiff ha d rested his case on the ground of insufficiency of evidence. 4blue 95:it does not matter whether it has leave of court or none. Demurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relie f. The effects are: 1.If motion denied defendant has the right to present evidence 2.If motion granted, but reversed on appeal defendant deemed to have waived the right to present evidence.

4blue 95: the risky part here is when it is granted. Is there a need to make findings of facts in resolving a demurrer to evidence: It depends. -if order grants the motion or demurrer to evidence, there is a need to make fin dings of facts since it is an adjudication on the merits. -if order denies it ,there is no need to make findings of facts since it is a me re interlocutory order. demurer in criminal v. civil In CRIMINAL CASES, after prosecution rested, court may dismiss case on the groun d of insuffiency of evidence (1) on its own motion after giving the prosecution an opportunity to be heard or (2) on motion of accused filed w/ prior leave of court.If court denies motion , accused may adduce evidence in his defense. (3)When accused files such motion to dismiss w/o express leave of court, and if such motion to dismiss based on insufficiency of evidence is denied then he wai ves right to present evidence and submits case for judgment on the basis of evi dence for the prosecution. 4blue 95: in both (2)& (3), when motion is granted by court, then accused is acq uitted and prosecution cannot anymore appeal the criminal aspect of the case. In CIVIL CASES, defendant has right to adduce evidence if his motion for dismiss al is denied. However, If motion granted, but reversed on appeal,defendant deeme d to have waived the right to present evidence As a general rule, motions is a move by party seeking an action on grounds not r aised or stated in the pleading. However, an exemption is when such motions are based on grounds already stated i n the pleading and these are the ff: 1. demurrer to evidence (rule 33) 2. judgment on the pleading (rule 34) 3. summary judgments (rule 35) the 3 mentioned above ,according to 4blue 95 are also called as unique judgments . RULE 34 JUDGMENT ON THE PLEADINGS (BAR) Judgment on the Pleadings is proper(grounds): a. If answer fails to tender an issue; or b. If answer otherwise admits the material allegations of the adverse party s plea ding --> Then court may, on motion of that party, direct judgment on the pleading s A s answer admits the material allegations of B s complaint. May the court motu pro prio render judgment on the pleadings? No,a motion must be filed by the adverse party and the court cannot motu proprio render judgment on the pleadings. However, the material facts alleged in the complaint shall always be proved in a ctions for: a. Declaration of nullity of marriage b. Annulment of marriage c. Legal separation Effects of a motion for judgment on pleadings: i.If one party prays for judgment on the pleadings without offering proof as to the truth of his own allegations and w/o giving the opposing party an opportunit y to introduce evidence, he is understood to adimit the truth of all material al legations of the opposing party and to rest his motion for judgment on those al

legations taken together with such of his own as are admitted in the pleadings. ii.movant for judgment on pleadings must be considered to have waived or renounc ed his claim for damages and to have consented to such judgment as warranted by the material allegations of his complaint that are admitted by the defendant. Si nce allegations as to the amount of damages are not deemed admitted even if not specifically denied. 2005 notes: It is not required to submit supporting papers since everything is b ased on the pleadings. 2005 notes: The defendant may move for judgment on the pleadings if the complain t does not contain a cause of action. 2005 notes: Remedy against a judgment on the pleadings is appeal by certiorari u pon pure question of law since a judgment on the pleadings does not raise questi ons of fact, as the judgment is based only on the pleadings alone and the judgme nt is final. 2005 notes: Judgment may be rendered based on issues not raised in pleadings if evidence therto is presented w/ the express or implied consent of the adverse p arty. 2005 notes: In cases governed by summary procedure, motion that should be filed in case defendant does not file an answer is motion to render judgment as may be warranted by the allegations in the complaint and the annexes thereto, and not a motion for judgment on the pleadings since latter is prohibited on summary pro cedure and that it presupposes that an answer has been file (if judgment on the pleadings) Judgment on pleading v Summary Judgment (rule 35) i.Judgment on pleadings, answer does not tender an issue , in summary judgment , there is an issue tendered in the answer but it is not genuine or real issue a s may be shown by affidavits and depositions that there is no real issue and tha t the party is entitled to judgment as a matter of right. ii.Judg on pleadings: movant must give a 3-day notice of hearing Summary Judgment, opposing party is given 10 days notice. iii.Judg on pleadings, the entire case may be terminated while in summary judgme nt, it may only be partial. iv.Judg on pleadings, only the plaintiff or the defendant as far as the counterc laim ,cross-claim or 3rd party complaint is concerned can file the same, while i n summary judgment, either the plaintiff or defendant may file it. Judgment by default v. Judgment on pleading i.JD: defendant did not file an answer JP: defendant file answer but answer did not tender an issue or admitted the m aterial allegations in the complaint ii.JD:evidence is received JP:evidence is not received as the same is based on the pleadings alone. iiiJP:decision is based on the allegations in the pleadings, while in JD, decisi on is based on the evidence presented. (BAR) In an action for recovery of a sum of money,the plaintiff averred in the complaint that on Jan 15,1990, the defendant obtained a loan from the plaintiff in the sum of P100,000 which he promised to pay to the latter on or before July 15,1990plus interest at rate of 18% per annum from Jan 15,1990 until fully paid and that the aforesaid loan has long been overdue but despite repeated demands , the defendant failed and refused to pay the aforesaid sum and interest. Answeri ng the complaint, the defendant denied the aforequoted averments and gave reason for the denial his lack of knowledge or info sufficient to form a belief as to the truth of said averment. What is the effect of such denial? With such form of denial, what course of action maybe availed of by the plaintiff?The denial of the averments of the complaints is not a sufficient specific denial. The all egation in the complaint that defendant obtained a loan from plaintiff and faile d and refused to pay the same is so plainly and necessarily within the defendant s

knowledge that his claim of ignorance must be palpably not true.Since the answe r tenders no issue or otherwise admits the material allegations of the complain , the plaintiff may properly file a motion for judgment on the pleadings. --> Motions for summary judgment may be filed by the claimant or by the defendin g party. The defending party may file such motion, pursuant to Rule 35, §2 at any t ime , as distinguished from §1 where the claimant may file the motion at any time af ter the answer is filed. 2005 notes: Legal Effect when before trial in MTC the defendant offers in writin g to allow judgment to be taken against him for a specific amount and plaintiff accepts offer. Under Sec9 of Rule 5, if defendant at any time before the trial offers in writi ng to allow judgment to be taken against him for a specified sum, plaintiff may immediately have judgment therefore, w/ costs then accrued. But if he does not a ccept such offer before trial, and fails to recover in action a sum in excess of offer, hecannot recover costs,but costs must be adjudged against him and if he recovers,costs will be deducted from his recovery. The offer and failure to acc ept it cannot affect recovery otherwise than as to costs (BAR)X filed w/ RTC a complaint against Y for the collection of P20,000 attachin g therewith the corresponding promissory note executed by ZY in his favor. Y fil ed his answer denying all material allegations of complaint for the reason that he does not have knowledge sufficient to constitute a belief as to the truth of allegations therein contained. Y likewise interposed the defense that he was u nable to pay his indebtedness to X because of a typhoon w/c reduces his income. HELD:As counsel for X, I would file a motion for judgment on pleadings ,inasmuc h as the answer tenders no issue or otherwise admits material allegations of com plaint. B s answer denying all material allegations of complaint for lack of suf ficient knowledge is not specific denial inasmuch as rule authorizing an answer to that effect does not apply where fact as to which want of knowledge is assert ed is so plainly and necessarily within the defendant s knowledge that his avermen t of ignorance must be palpably untrue. (BAR)A brought an action against her husband B for annulment of marriage on grou nd of psychological incapacity. B filed his answer to the complaint admitting all the allegations. May A move for judgment on the pleadings?No, material facts must always be proved (Sec1) and that the court shall order the prosecutor to i nvestigate whether or not a collusion between parties exist and if there is none ,to intervene for the State in order to see to it that the evidence submitted is not fabricated (Sec3,Rule 9). Evidence must have to be presented in accordance with the requirements set down by the SC in Republic v. CA and Molina (268 SCRA1 98) RULE 35 SUMMARY JUDGMENTS It assumes that scrutinizing thefacts will disclose that the issues presented by the pleadings need not be tried since they are so patently unsubstantial as not to be genuine issues as to any material facts or where the facts appear undispu ted and certain. Based not only on pleadings but also on affidavits, deposition, and admissions o f the parties showing that, except as to the amount of damages, there is no genu ine issue. 2005 notes: VERY IMPORTANT!!! For summary judgment to operate, there must be a M otion for summary judgment that must be filed (Cadirao v Estenzo). A claimant (claim ,counterclaim ,cross claim or to obtain a declaratory relief) may file motion for summary judgment anytime after the pleading in answer theret o has been served, and may move w/ supporting affidavits for a summary judgment in his favor upon or on all parts thereof.

A defendant ( party against whom claim is asserted or a declaratory relief is soug ht) may at any time move with the supporting affidavits for a summary judgment i n his favor as to all or any party thereof. Motion shall be served at least 10 days before the time specified for the hearin g. Although Rule does not specifically provide, also unavailable in actions for ann ulment of and declaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions to recover upon a claim , or to recover a debt or a liqui dated demand for money, or to obtain declaratory relief. 2005 notes: The test in granting summary judgment is whether the pleadings, affi davits and exhibits in support of the motion are sufficient to overcome the oppo sing papers and to justify a finding as a matter of law that there is no defense to the action or the claim is clearly meritorious (Galicia v Polo). Judgment on the pleadings and summary judgment distinguished: Judgment on the pleadings -Proper when there is no genuine issue between the par ties. Based exclusively on the pleadings alone without introduction of evidence . Available in any action, except the 3 exceptions .A judgment on the pleadings may be rendered when the answer to complaint,counterclaim, cross claim or 3rd pa rty complaints fails to tender an issue or otherwise admits the material allegat ions of the adverse party s pleadings. Summary judgment(2005 notes) - one rendered by a court without a trial on motion either a claimant or a defending party with at least 10 days notice before the time specified for the hearing, when the pleading ,supporting affidavits made on personal knowledge which are not rebutted w/ opposing affidavits,depositions o r admissions, show that except as to the amount of damages there is no genuine issue as to any material fact and that the moving party is entitled to a judgme nt as a matter of law. Form and Contents of affidavits/supporting papers in a motion for summary judgme nt: a.made on personal knowledge b.set forth facts as would be admissible in evidence c.show affirmatively that affiant is competent to the matters stated therein. d.sworn or certified copies of all papers or parts thereof referred to in an aff idavit shall be attached thereto or served therewith. Summary judgment is proper when there is failure to deny under oath the genuinen ess and due execution of notes attached to the complaint as this is deemed to be an admission of existence and validity of the liability of the defendant. No summary judgment can be had if a statement of account is not denied since pro of is necessary in so far as amount of damages is concerned. (BAR) X filed a complaint against Y.After the answer was filed, X filed a motion for summary judgment attaching thereto affidavits etc Y did not file opposing aff idavits. Give effect of Y s inaction. HELD: Rule is that Y should have filed opposing affidavits otherwise summary jud gment would be rendered. The rule is not absolute since if there are factual iss ues ,failure to file counter-affidavits is not fatal (Consunji v Jamandre) (BAR) Ness filed a complaint for sum of money against Pinky for P1M who filed an answer admitting liability but she is still checking the correctness of the sam e. Ness filed a motion for summary judgment .If you were the judge, would you gr ant the motion? HELD:YES, answer does not tender a genuine issue. A suit for recovery of sum of money where defendants admitted in their answer , plaintiff s averments except as to the amount due, the correctness of which they are still checking , summary ju dgment may be rendered (PNB v Leather Co). (BAR) X filed a complaint for ejectment against Y who filed an answer alleging t

hat X s title over the land is void. May X file a motion for summary judgment? HELD:NO, In action for ejectment ,where one of the defenses is that the title of the plaintiff is void, summary judgment is not proper. There is an issue of fa ct (w/c is a genuine issue) What should court do if a motion for summary judgment is filed and a judgment is not rendered upon it in full? Court ,when trial is necessary, at hearing the motion, by examining the pleading s and evidence before it and by interrogating the counsel ,shall ascertain what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear w/o substantia l controversy ,including the extent to which the amount of damages or other rel ief is not in controversy,and directing such further proceedings in the action a s are just. Upon the trial of the action, the facts so specified shall be deemed established and trial shall be conducted accordingly After rendering judgment , the court shall proceed to assess the amount of damag es and should also state the facts and the law on which it is based 2005 notes: There can be partial judgment, such is merely interlocutory and not a final judgment. It does not dispose of the case totally since the case can sti ll be tried on the basis of the remaining issues. 2005 notes: Partial summary judgment is final and appealable without awaiting t he judgment in remaining causes of action, if the following requisites are pr esent: -2 causes of action are separate and independent causes of action and the defe ndant s counterclaim does not arise out of the transaction or occurrence which is the subject matter of said cause of action. In such case, judgment may be rende red pursuant to the rule of judgments at various stages. -affidavits, depositions and admissions submitted by the plaintiff show that,exc ept as to the amount of damages, there is no genuine issue as to any material fa ct and plaintiff is entitled to a judgment as a matter of law(testimonial eviden ce is not required to prove absence of any genuine issue to any material fact). Defendant may appeal w/in remaining period or 6 days from notice of decision, s ince 9 days had elapsed when he moved for reconsideration 10 days after notice. (BAR) X filed an action against B for recovery of a house and lot including dam ages in the sum of P12,000. After summons and a copy of complaint were served upon defendant , plaintiff filed a motion for summary judgment based on affidav its. After due hearing on motion,court granted the same. If you are the Atty f or defendant, what step would you take to protect interest of your client? Fil e motion for reconsideration of order granting the motion, calling the attentio n of court to its error in awarding the damages claimed in the case. The rule requires that in cases of claims for damages, same must be proven by evidence co nsidering that they are by nature speculative and in case at bar, proof other than mere affidavits are necessary before court could award such damages. 2005 notes: Effect of submission of affidavits in bad faith (ex:purpose of delay ), court shall forthwith order the party employing them to pay the other party the amount of the reasonable expenses w/c the filing of the affidavits caused hi m to incur, including reasonable attorney s fees and any offending party or attorn ey may be adjudged guilty of contempt. 2005 notes: there is no need for trial in case a motion for summary judgment is filed since it is demonstrated by affidavits, depositions or admissions of those issues ,however if such demonstrations is considered sham, the court may is ju stified in dispensing with the trial and rendering summary judgment (Galicia v P olo). 2005 notes: Rules on Summary Judgment is applicable to all cases (Roque v Encarn

acion). When court renders summary judgment ,the remedy of the aggrieved party is Appea l ( Aqualyre v CA) * in a situation where writ of execution had already been issued and there is ab solutely no legal basis for rendition of summary judgment, CERTIORARI is the rem edy. (BAR) X filed a complaint. Y ,the defendant filed an answer w/ counterclaim larg er in amount than the main claim by the plaintiff. May Y file a motion for summa ry judgment? HELD: YES, Summary judgment may be rendered if the counterclaim is for a sum of money larger than that demanded in the complaint provided that the counterclaim is valid (Sugay v IAC) if counterclaim is a sham, then ,summary judgment may not be rendered. 2005 notes: When there is an issue of fact joined by parties , neither of them can pray for summary judgment (Archipelago Builders v IAC) (BAR) A filed a complaint for sum of money vs B for P414182.46 representing the value of steel bars delivered to B. the latter filed an answer stating that he owes A the amount of P380T representing the value of steel bars given for free a s per oral agreement, to make up for the deficiencies in weight and stress of th e defective steel bars delivered. A filed a motion for summary judgment which co urt granted. Was court s action proper? HELD:NO, since the answer raised substantial and triable issues of fact, like th e total amount of steel bars delivered. The genuine triable issues must be venti lated to determine w/c allegations of fact are correct, and not by a perfunctory resolution which in effect deprives a litigant his day in court. (BAR) PAGCOR filed a complaint for recovery of personal properties vs Marcelo an d others. Answer was filed .After plaintiff presented evidence, the defendants f iled a demurrer to evidence on the grounds of : 1.RTC s non jurisdiction over the case inasmuch as the subject properties were bro ught under sequestration and 2.PAGCOR s failure to prove its ownership , RTC granted the motion stating that the Sandiganbayan has exclusive jurisdiction w/c was affirmed by the CA. Is CA s ruling proper? HELD: NO, since the mere fact that the properties were under sequestration does not divest the RTC of its jurisdiction. Furthermore, it could have been more pru dent for the CA to remand the case to the RTC in order that the defendants may b e given the opportunity to present evidence w/c by having opted to file a demurr er that was subsequently granted, they were not able to do so. 2005 notes: What is contemplated by the Rules on Demurrer to Evidence pertains to the merits of the case. In the case at bar, the demurrer was focused principa lly on the RTC s lack of jurisdiction (PAGCOR v CA). RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF Judgment-it is the final consideration and determination by a court of the right s of parties as those rights w/c presently exist upon matters submitted in an ac tion or proceeding(Gotamco v Chan Seng) Rendition/promulgation of judgment shall be constituted by the filing of the dec ision, judgment or final order w/ the clerk of court, not the signing of the sam e. 2005 notes: The date of the finality of the judgment or final order shall be dee med to be the date of its entry. The judgment or final order shall be entered b y the clerk in the book of entries of judgments if no appeal or motion for new t rial or consideration is filed within 15 days

Essential Requisites of a valid judgment: a.court must have jurisdiction over subject matter b.jurisdiction over person of defendant or of the res c.jurisdiction over the issues d.court must render judgment after hearing 2005 notes: there is a need to make findings of facts in a judgment so that part ies may not be left in the dark as to the basis for the decision (Nicos v CA) if s uch decision do not state the reason or basis ,then it is void (Suarez v CA) Findings of facts Statements of facts and not conclusions of law. If judgment of lower court was rendered without findings of facts, on appeal, th e appellate judge may remand the case for purpose of making such findings (Nicos v CA) The requirement that there should be findings of facts is not applicable to: a.order which is merely interlocutory b.order does not dispose the case on the merits 2006 notes: A minute resolution is not a decision ,hence, it need not comply wit h the requirements of the Constitution. 2006 notes: Judgment holding a person liable for atty s fees must state the reason for the award. Article 2208 of CC requires a factual, legal and equitable justi fication for such award. Without such justification, the award is a conclusion w /o a premise, its basis being improperly left to the discretion of the court (mi rasol v dela cruz) since atty s fees cannot be recovered as a matter of right. 4blue95 notes: If the reason for the award is not stated in the body of the deci sion, it may be disallowed on appeal (Abrogar v IAC) 4blue95 notes: The requirements that decisions must contain statements of facts and of law is not applicable to decisions of DOLE, since it applies only to cour ts of record. DOLE and NLRC are non-litigous and summary in nature w/o regard to legal technicalities. PROMULGATION OF JUDGMENT

4blue95: judgment must be in writing,personally and directly prepared by the jud ge which must state clearly and distinctly the facts and law on which it is base d and it should contain dispositive part and should be signed by the judge and f iled with the clerk of court. 4blue95:the 30 days is used if the records from the lower court is also being in cluded in the appeal (aka RECORD on APPEAL) Availablethe pleadings,depositions, DEFENDANT and affidavits Based on BY DEFAULTand EVIDENCE DEFENDANT. JUDGMENT ON THEtopleadings UNLESS latter is presents SUMMARY JUDGMENTPLEADINGS and (if admissionsrequired)a counterclaim SOLELY both PLAINTIFF COMPLAINTPLAINTIFF, only to on KINDS OF JUDGMENTS 1.SIN PERJUICIO JUDGMENT One that make reservation in favor of some parties as to the right to do somethi ng in a separate and further proceedings. It is not a binding judgment. 2005 notes: Court cannot reserve the right of a party to file another action exc ept if the court is granted the power to give an order or judgment w/o prejudice . (BAR) X filed a complaint against Y, who filed an answer w/ counterclaim. After trial, the court dismissed the counterclaim w/o prejudice to the filing of anot her action. Is reservation valid? HELD:NO,as the dismissal has effect of res judicata, the reservation was erroneo us and has no legal effect (Gatus v CA) 2005 notes: a judgment based on compromise has the force of law and is conclusiv e upon the parties. It has the effect of res judicata (World Machine v IAC) -- a person not privy to a case may join a compromise . If there is breach ,he c an be sued (Rodriguez v Alikpala) 2005 notes: An incomplete judgment is one that does not dispose of all issues of a case validly raised. It is not final until it is completed. Ex: A judgment of foreclosure of mortgage that does not state how much is the obligation. 2005 notes: If judgment is void ,no rights are vested/obtained which neither bui lds nor bars anyone and under which all acts are performed and all claims flowin g out are void. Mittimus Final process for carrying into effect the decision of the appellate court and t he transmittal to the court a quo. It is predicated upon the finality of the jud gment (De Guzman v Reyes) Error Clerical When it does not involve an exercise of judicial functions. Obiter dictum Opinion expressed by a court upon some question of law w/c are not necessary to the decision of a case before it. A court s resolution of an issue not involved in the case but passed upon since it is necessary for the adjudication thereof is not obiter dictum.

2. JUDGMENT UPON A COMPROMISE One rendered by the court on the basis of a compromise agreement entered into be tween the parties. It is immediately executory in the absence of a motion to set aside on the ground of fraud, mistake 3.JUDGMENT UPON THE MERITS one that is rendered after consideration of the evidence submitted by the partie s during the trial of the case. 3. JUDGMENT BY CONFESSION Rendered when a party expressly agrees to the other party s claim or acknowledges the validity of the claim against him. 2kinds: a.COGNOVIT ACTIONEM- defendant after service instead of entering a plea, acknowl edged and confessed that the plaintiff s cause of action was just and rightful b.CONFESSOIN RELICTA VERIFICATIONE- after pleading and before trial, the defend ant both confessed the plaintiff s cause of action and withdrew or abandoned his p lea or other allegations ,whereupon judgment was entered against him without pro ceeding to trial. 4.CLARIFICATORY JUDGMENT Rendered to clarify an ambiguous judgment or one difficult to comply with 5.JUDGMENT NON PRO TUNC Judgment intended to enter into record the acts which had already been done but which do not appear in the records. 6.CONDITIONAL JUDGMENT The effectivity of which depends upon the occurrence or non-occurrence of an eve nt. A court cannot render conditional judgment since a case should be decided in its totality, resolving all interlocking issues in order to render justice to all c oncerned and to end the litigation once and for all. 7.MEMORANDUM DECISION Decision of the appellate court which adopts the findings and the conclusion of the trial court. REQUIREMENT FOR VALIDITY OF MEMORANDUM DECISIONS Embodies the findings of facts and conclusions of law of the lower court in an a nnex attached to and made an indispensable part of the decision. It cannot incor porate the findings of facts and conclusion of law of the lower court by remote reference. PROMULGATION OF DECISION Process by which a decision is published ,officially announced ,made known to th e public or delivered to the clerk of court for filing ,coupled with notice to t he parties or their counsel. 2005 notes: there is a need of notice of judgment to the parties since no judgme nt or order is binding on parties unless notice is duly served on them by any of the modes prescribed by law. IMMUTABILITY OF JUDGMENT: Final judgment cannot be modified even if the purpose is to correct perceived er roneous conclusions of the facts or law. Exceptions: a.correction of clerical errors b.making of nunc pro tunc entries which cause no prejudice to any party c.where judgment is void 4blue95 notes: Court may clarify its judgment even if it has already become fina l, it does not modify it but only interprets the same for purpose of clarifying an ambiguity.

(BAR) A judge tried the case. After his retirement,he penned the decision. Is de cision valid? HELD: NO,since he has no more authority to do so (Pp v Labao) (BAR)Writ of Execution were returned unsatisfied by the Sheriff on the executio n of a final judgment rendered in favor of A for a sum of money against B on Jun e 5,1983. On June 30,1988, A found some property in name of B so that he immedia tely filed on July 1,1988 a motion for issuance of an Alias Writ of Execution. W ill you grant the writ? HELD: NO, The date of Finality of judgment shall be deemed to be the date of its entry. Since there was already a Writ of Execution, it is presupposed that the judgment was entered the same time it became final (June 20m1983) or 15 days aft er its promulgation. Hence, more than 5 years has elapse already, so the motion should be denied. SEVERAL JUDGMENTS It may be rendered in an action against several defendants, the court may rende r judgment against one or more of them, leaving the action to proceed against th e others. Remedy of party is that he may appeal if he disagrees with the court, not certi orari under rule 65.If he does not appeal, it would become final and executory. 2006 notes: several judgment means a separate judgment 2006 notes: a court may render separate judgment at various stages but if so ren dered, the court may stay its enforcement until the rendition of the subsequent judgment. -- if judgment is enforced at a certain stage, it may not be enforced right awa y since the court may order the stay of judgment and may prescribe such conditio ns as are necessary to secure the benefit thereof to the party in whose favor th e judgment is entered. SEPARATE JUDGMENTS Judgment rendered to dispose of one of the several claims for relief presented i n an action, made at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurr ence which is the subject matter of the claim, which terminates such claim. Act ion shall proceed as to other claims 2006 notes: If judgment is rendered against an association, the judgment shall s et out their individual or proper names if known (sec6) DIRECT ATTACK OF A JUDGMENT Rule 37 NEW TRIAL OR RECONSIDERATION

4blue95: an order denying a motion for new trial is not appeallable. The aggriev ed party has a FRESH PERIOD within which to file his appeal (Neypes v CA, Septembe r 14,2005) GROUNDS: fraud, accident ,mistake or excusable negligence or newly discovered ev MOTION FOR NEW TRIAL RECONSIDERATION idence w/c could not with reasonable diligence, have discovered and produced at GROUNDS: and which if presented would evidence is insufficient the trialdamages awarded are excessive,probably alter the result to justify the Second motion may be allowed so the as based on grounds not existing at time th decision or final order ,or thatlong decision or final order is contrary to law If a motion is the Secondmotion was made same party is prohibited e 1stnew trialfromgranted the trial court will set aside the judgment or final o If court case that excessive novo and will be awarded or rder ,thefinds stands trial dedamages have been tried anew.that the judgment or final order is contrary to the evidence or law, it may amend such judgment or fi Available even on appeal but only final orders nal order accordingly judgments oron the ground of newlythe trial and appellate against the both discovered evidence courts. 2005 notes: Motion for new trial may be filed w/in the period for perfecting an appeal, hence be filed before finality of judgment. 2005 notes:Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is FAME; for NEWLY-DISCOVERED EVIDENCE, it must be supported by affidavits of witnesses b y whom such evidence is expected to be given, or by duly authenticated documents to be introduced. 2005 notes: Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law, with express reference to the testimonial or documentary evidence or the p rovisions of law alleged to be contrary to such findings. DIFFERENT FORMS OF ATTACKING A JUDGMENT a. COLLATERAL ATTACK Made when there is another action to obtain a different relief. An attack on ju dgment made as an incident in said action when the judgment on its face is null and void as where it is patent that the court which rendered said judgment has no jurisdiction. b. DIRECT ATTACK Attack of a judgment in an action or proceeding to annul judgment, this being th e main objective Examples: i. Before Finality: -Motion for new trial or reconsideration (37) If motion for reconsideration is denied, party should appeal since 2nd motion fo r recon is prohibited. -Appeal Reckoning pt is not from rendition but from notice of judgment ii. After Finality: -Petition for relief from judgment (38) Must be filed within 60 days after petitioner learns of the judgment and not mor e than 6 months from entry of judgment or proceeding taken -Annulment of Judgment (47) Filed within 4 yrs from discovery of fraud or before the right to question juris diction is barred by laches or estoppel -Certiorari (65) Filed within 60 days from notice of the judgment ,order or resolution sought to be assailed. -Quo Warranto (66) File within 1 year from usurpation 2006 notes: A party may appeal from judgment and at same time file petition for certiorari against the order denying the motion for new trial since former is di rected against the judgment and latter is directed against the order denying the motion for new trial. (BAR) A decision was rendered. A motion for new trial was granted. A new judgme

nt was rendered. What is the effect of the rendition of such new judgment? HELD: Pd of appeal shall commence to run again from service of the new judgment . This is true even if the new judgment merely restated the old one. (BAR) Xfiled a complaint against Y. Judgment was rendered against Y, who filed a motion for new trial which was granted . On certiorari to the CA, the latter gr anted the petition and set aside the order of the lower court granting the new t rial . The CA rendered the judgment . HELD: The new decision had the effect of re-promulgating the lower court s decisio n. Defendant has another 15 days to appeal from the original decision from reins tatement of the same. MOTION FOR NEW TRIAL: (BAR)Regional Trial court rendered a judgment for the plaintiff Mr. Santos and against defendant Mr. Carandang. Defendant received the decision on July 15,19 88 . On July 25,1988 defendant filed a motion for extension of time for 10 days from July 30,1988,w/in w/c to file a motion for reconsideration. The court fai led to act on the motion for extension but defendant filed on Aug 5,1988 his mot ion for reconsideration w/in the 10 day extension pd prayed. Plaintiff on Aug 15 ,filed a motion for the issuance of a Writ of Execution alleging that the judgm ent had already become final and executory. Rule on motion. HELD: Motion for execution is granted. A motion for extension of time w/in whi ch to file a motion for reconsideration is not allowed, except in the Supreme Co urt. (BAR)In a case falling w/in the original exclusive jurisdiction of the municipa l court, judgment was rendered in favor of plaintiff A and pursuant to the pro visions of RA 6031, said decision was appealed by defendant B to the RTC w/c th ereafter reversed the decision of the municipal court and dismissed A s complaint . Is there any remedy in law still available to A w/c may allow him to challenge the decision of the RTC? Yes, A may file a petition for review w/ the CA w/in the reglementary period (read the grounds for new trial) Forgotten evidence is not a ground for new trial (Pp v Ducay) (BAR) What is the effect of denial of motion for new trial on ground of FAME?Agg rieved party can no longer avail of the remedy of petition for relief of judgmen t. Effect of granting of a motion for new trial: The original judgment shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same i s material and competent to establish the issues, shall be used at the new trial without retaking the same (sec6) Motion for new trial shall be resolve within 30 days from the time it is submitt ed for resolution (sec4) Motion shall include all grounds then available or those available at time of fi ling of the same. If party does not allege all grounds for new trial available at time of filing, it shall be deemed waived (sec5) 2006 notes: If motion for new trial does not served upon the adverse party with notice, then , it cannot be acted upon by the court (Manila Surety v Fidelity) 2006 notes: Filing and service of a motion for new trial shall suspend the perio d of appeal if the motion is subsequently denied, for as long as it was duly ser ved and there was notice. 2006 notes: Motion for new trial may be filed before the SC provided that it is filed before the judgment becomes executory. 2006 notes: Remedy of party in default if judgment has already been rendered is a motion for new trial under rule 37( Circle Financial corp v CA) If motion is denied, remedy is appeal not by certiorari or prohibition (Rizo v Solano)

Second motion for new trial: Based on ground not existing nor available when first motion was made,may be fil ed within the remaining period after deducting the time during which the first m otion was pending (sec5) --- so that if the first motion was filed on the 10th day, then,the party still has 5 days within which to file the motion for new trial. (4blue95is not sure if such is repealed by the FRESH PERIOD RULE) Partial New Trial: If grounds for a motion for new trial appear to the court to affect the issues o nly as to a part, or less than all of the matters in controversy, or only one ,o r less than all, of the parties to it, the court may order a new trial as to suc h issues if severable w/o interfering w/ the judgment upon the rest(sec7) Effect:When less than all of the issues are ordered retried, the court may eithe r enter a final judgment as to the rest or stay the entry of final judgment unti l after the new trial (sec8) Not mentioned TRIAL Rules TRIAL Specifically mentioned THEbut is nevertheless a recognized procedural recourse MOTION FOR NEWin the OFin the rules REOPENING or device deriving validity and acceptance from long established usage May properly be presented only after either Proper only after promulgation of judgment or both the parties have formally of 4blue95: it is actually mentioned in the Rules of CrimPro (RULE 119 sec24) Controlled by no other rule that the Based upon specific grounds set forthparamount interest of justice ,resting enti fered and closed their evidence before judgment. rely on the sound discretion of a trial court, the exercise of which discretion will not be reviewed on appeal unless a clear abuse thereof is shown. 4blue95:For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party s evidence. 4BLUE95: MNT & MR SHOULD BE FILED WITH THE COURT WHICH RENDERED THE JUDGMENT OR FINAL ORDER QUESTIONED OR SOUGHT TO BE RECONSIDERED. Affidavit of Merits: One which recites the nature and character of the fraud ,accident, mistake or ex cusable negligence on which the motion is based and movant s good and substantial cause of action or defense and the evidence he intends to present if the motion is granted. The evidence must be of such nature as to warrant reasonable belief that the res ult of the case would probably be otherwise, if a new trial is granted. 2006 notes: As such ,fraud shall be proved by affidavit of merits When it is not necessary: 1.when party was deprived of his day in court through no fault or negligence on his part 2.judgment by default was rendered before the period to answer expired 3.when the jurisdiction of the court is being questioned 2006 notes: The absence of affidavit of merits shall make the motion a mere pro forma. (BAR) F sues his brother G to recover ownership of a parcel of land but G withi n period for pleading, moves to dismiss based on two grounds: suit being betwee n members of same family , the complaint fails to aver that earnest efforts tow ards a compromise have been made, and that ,the action is barred by extinctive p rescription. Pending resolution of motion to dismiss, f serves notice to take G s deposition, w/c latter opposes, claiming that this stage of proceeding no dep osition can be obtained w/o leave of court. Meanwhile, obviously to meet G s objec tions in the motion to dismiss still unresolved, F files an amended complaint se eking this time the partition of land bet him and his brother and alleging that earnest efforts to amicable settlement have been exerted but failed. Is G s object ion to taking tenable? Yes, since leave of court is necessary for taking of depo

sition before an answer. Assuming that the trial court grants leave and G s deposition is duly taken upon o ral examination ,may such deposition be admissible as independent evidence if o ffered by F during the trial to partly prove his cause of action although G is available and present at trial.HELD: Yes, since deposition of G may be used by F who is an adverse party. 2006 notes: Depositions can be taken for witnesses outside the area of jurisdict ion or if witness is outside country. In an admiralty case filed by A against Y Shipping Co ,whose principal office is in Manila, in the RTC of Davao, the court issues subpoena duces tecum directin g Y the President of such shipping co to appear and testify at trial. How can A take the testimony of Y and present documents as exhibits other than through the subpoena from the RTC? A can take testimony of Y and present documents as exhi bits by taking his depositions through oral examinations or written interrogator ies(Rule 23). He may also file a motion for production or inspection of document s (Rule 27). (BAR)J sues L on sum of money for breach of contract but before trial , J goes t o Tokyo on business. He is there when his Atty receives notice of trial,therefo re, lawyer at once serves notice upon L s atty in Manila for taking of J s depositio n before consul in Tokyo. Since L has no money,they did not go to Japan, and his lawyer contends that taking of deposition was not at all authorized by court in Manila since J s atty forgot to secure the court s authority through a motion. HELD: Contention not tenable. No such authorization is necessary from court in t aking testimony of a party after court acquires jurisdiction over his person an d after answer had been served. 2006 notes: if jurisdiction over person was not yet acquired, the deposition to be taken in foreign state where person is not residing abroad , atty of that per son needs to secure court s authority through a motion. PRO FORMA MOTION FOR NEW TRIAL OR RECONSIDERATION SHALL NOT TOLL THE PERIOD FOR APPEAL. It is one which merely reiterates the evidence presented in the trial (Llantero v CA) or based on grounds existing when the first motion was filed. It occurs when the motion for new trial alleges exactly the same things as alleg ed in the motion for reconsideration ,thereby, being a pro forma, it does not su spend the period granted by law for perfecting an appeal. It also occurs when a person filed a new trial on ground of newly discovered evi dence and he did not specifically describe the evidence. RULE 38 (BAR) RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS This is available only when a judgment or order is final (Pan Asiatic v CA) --if not final , the remedy is motion for reconsideration or new trial. --suppose there was erroneous interpretation of rules w/o FAME, the remedy is m andamus Applies Available AFTER judgmentbecomes final otherexecutory RULE 37 toBEFOREjudgmentfinal orderand and executory 38 judgments, final orders only judgments or becomes final and proceedings like land proceedings,s It is proceedings and discoveredknowledge GROUNDS: FAME within time to appealevidence pecialavailed and Newlyorder of execution of the judgment and within 6 months 60 days from If denied, order of denial is not appealable ,hence, remedy is appeal from the j from entry of judgment If denied, the order denying a petition for relief is not appealable,the remedy udgment Petition remedy verified Motion need Equitablemust Legal remedynotcivil action is appropriatebebe verified under Rule 65. 4blue95: the two periods fixed by Rule 38 for the filing of a petition are not e xtendible and are never interrupted. 4blue95:a party who has filed a timely motion for new trial and/or reconsiderati on cannot file a petition for relief after his motion has been denied. These rem edies are exclusive of each other. It is only in appropriate cases where a party

aggrieved by the judgment has not been able to file a motion for new trial and/ or reconsideration that a petition for relief can be filed. Petition for relief from judgment filed within 60 days after learning of judgmen t and not more than 6 months after such judgment was entered --> Must be supported by affidavit showing the FAME and the facts constituting t he petitioner s good or substantial cause of action or defense --> (BAR) Judge T of MTC Manila rendered a judgment or issued a final order in a case handled by Atty M, who alleges that the judgment or order was entered agai nst his client through fraud . In what court should Atty M file a petition for rel ief from judgment? HELD: He may file it with the same court and in same case praying that the judgm ent or order be set aside. The rule mentioned above is applicable in the RTC since it is in accordance w/ t he uniform procedure rule for MTC and RTC. A petition for relief from judgment or final order is applicable also to a proce eding taken after entry of the judgment or final order such as the order of exec ution. The reckoning pt of the 60day pd ,8 month pd, would be the service of the writ of execution ( Cayetano v Esguerra) --- it is also available in case of denial of appeal whereby party is prevented by FAME from taking an appeal . Party who has filed a timely motion for new trial cannot file a petition for rel ief after the former is denied. The two remedies are exclusive of one another. After petition is filed, court shall order adverse parties to answer within 15 d ays from receipt. After answer is filed or expiration of period thereof, court shall hear the petition. If granted, judgment set aside and court shall proceed as if timely motion for n ew trial has been granted; if granted against denial of appeal, court shall give due course to appeal. (BAR) Suppose the decision was served upon a counsel who was appointed Chief of Police, and there is a lapse of period , is the remedy of petition for relief of judgment since the judgment did not acquire the character of finality, as the service of decision was made upon the counsel of record who was appointed Chief of Police. (BAR)X filed an action against Y in the Municipal court of IloIlo. Y failed to appear and file his answer on time. So,he was declared in default. On Feb 6,196 3, judgment by default was rendered against him. On Feb 14 or 8 days later, Y fi led a petition to set aside judgment by default claiming excusable negligence fo r his failure to appear and answer. The petition was denied, and so Y filed a no tice of appeal from the judgment by default and order denying his petition to s et the same. X moved for dismissal of appeal on ground that the default judgmen t was not appealable. Motion was denied. In CFI, X renewed his motion to dismiss appeal, but again it was denied. Was denial of X s motion to dismiss appeal corr ect? No,denial not correct. Y had no right to appeal from judgment by default w/ in 1 day after notice thereof as provided by Sec13,Rule 5 and consequently he di d not regain his standing in court to enable him to exercise his right to appeal from judgment by default. Sec 2 Rule 41 w/c gives a defendant in default the ri ght to appeal from judgment by default has been presented by him,is not applicab le to inferior courts. What may be done after filing of the petition for relief from judgment. 1.court may order the filing of an answer if it is in proper form and substance within 15 days from receipt of the petition. 2.court may give due course to it, if it gives due course, the order is interloc utory If it dismisses, it is final and it is not appealable but the petitioner may res ort to Rule 65 if there was grave abuse of discretion amounting to lack of juris diction 3.motion to dismiss may be filed if not filed in the proper court or if filed be

yond the 60-day period from discovery and 6 months from entry rule. Issues to be proved at the hearing of the petition: 1.whether there was really fraud ,accident ,mistake or excusable negligence 2.whether there is good and sufficient affidavit of merit. 2006 notes: if court requires an answer to be filed, the respondent should ,in h is answer ,must deny the existence of FAME and the sufficiency of merits. If declared in default, the remedy of part after finality aside from petition fo r relief or new trial is that the party may move for annulment of judgment un der Rule 47 for extrinsic fraud or lack of jurisdiction. (BAR)A decision of the RTC adverse to Delia was received by her counsel on Jan 13,1994. As Delia was leaving for Canada she forthwith instructed her counsel to appeal because she was prevented from fully presenting her case in court throug h fraudulent acts of the prevailing party. When she returned abroad on Aug 1,19 94, she discovered that her case was not appealed as her counsel had died a day after she left. Moreover, the other party has filed a motion for issuance or a w rit of execution which remains pending in court. As new counsel, what course wil l you pursue? I would file a petition for relief under Rule 38 on the ground that my client s fa ilure to appeal on time was due to the death of her lawyer one day after she le ft for Canada ( look also on Rule 47). Or I would file an action for annulment of the judgment with the CA on ground o f extrinsic collateral fraud since my client was prevented from fully presenting her case in court through fraudulent acts of the prevailing party (Sec 9,BP129 20 05 notes) (BAR)X sued Y for breach of contract with damages after Y filed his answer, the parties amicably settled. The court rendered judgment based on said compromise. Within the pd to perfect the appeal , Y filed motion for new trial under Rule 37 alleging vitiation of his consent due to mistake and prayed that the agreeme nt be set aside. HELD: Judgment by compromise is not appeallable, hence motion for new trial is not proper. Y should file motion to set aside agreement on ground of mistake or he could file a petition for relief under Rule 38 or file a new action to annul the agreement within the prescriptive period (Saminiada v Mata) 4BLUE95 notes: Clients are bound by the negligence or mistakes of their lawyers , however, if negligence is gross that it would result in the client s deprivation of his property without due process of law , then, the negligence of the lawye r is not binding upon the client.

Proceedings after answer is filed(sec6): TWO HEARINGS UNDER RULE 38 1. Hearing to determine whether the judgment should be set aside and 2. If in the affirmative , then , another hearing on the merits of the case. Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appelaed case as if a timely and proper appeal had been made(sec7). RULE 39 (BAR) EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS EXECUTION remedy provided by law for the enforcement of a final judgment. AGAINST WHOM ISSUED: execution can only issue against a party and not against on e who has not had his day in court. WRIT OF EXECUTION: judicial writ issued to an officer authorizing him to execute the judgment of the court. ESSENTIAL REQUISITE OF A WRIT OF EXECUTION: a writ of execution to be valid, mus t conform strictly to the decision or judgment which gives it life. It cannot vary the terms of the judgment it seeks to enforce. FINAL JUDGMENT OR ORDER one which disposes of the whole subject matter or termin ates the particular proceedings or action, leaving a nothing to be done by the c ourt but to enforce by execution what has been determined. EXECUTION OF JUDGMENT TEST TO DETERMINE WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY: if the judgment or order leaves nothing more for the court to do with respect to the me rits of the case, it is a FINAL ORDER. Otherwise, it is an INTERLOCUTORY ORDER. EXECUTION AS A MATTER OF RIGHT: 1. on motion; 2. upon a judgment or order that disposes of the action or proceeding; AND 3. upon expiration of the period to appeal there from and NO appeal has been d uly perfected. GENERAL RULE: court cannot refuse execution UNLESS (I-NEED-U) 1. Execution is UNJUST OR IMPOSSIBLE; 2. Equitable grounds like a CHANGE IN SITUATION of the parties which makes exec ution inequitable; 3. Judgment NOVATED by parties; 4. Execution is Enjoined; 5. Judgment has become DORMANT; 6. Where the judgment turns out to be Incomplete or conditional.

QUASHAL OF WRIT PROPER WHEN: 1. Improvidently issued; 2. Defective in substance; 3. Issued against the Wrong party; 4. Judgment already Satisfied; 5. Issued Without authority; 6. A Change in the situation of the parties renders execution inequitable; 7. The controversy was never Submitted to the court. 4blue95: the dispositive portion of the decision is that part that becomes the s ubject of execution Exceptions: 1. where there is ambiguity, the body of the opinion may be referred to for purp oses of construing the judgment because the dispositive part of a decision, must find support from the decision s ratio decidendi; (Mutual Security Ins. Corp, vs . CA, 153 SCRA 678) 2. where extensive and explicit discussion and settlement of the issue is found in the body of the decision. 4blue95: when the writ of execution varies the terms of the dispositive portion, the defeated party can file; 1. motion to quash the writ of execution, if denied; 2. file petition for certiorari under Rule 65 with prayer for TRO If lower court refuses to issue writ of execution, the remedy of winning party i s to file a motion with the appellate court informing the latter of such refusal and an order can be issued requiring lower court to issue writ of execution. In this case, mandamus is not the remedy (sec1) (BAR) A judgment was rendered by Judge X.It has already become final and executo ry. If the judge refuses to issue the writ of execution ,what remedy can you ava il of to enforce it ?File a petition for mandamus to compel him to issue the wri t. This is so since execution is now a matter of right which can be compelled by mandamus. (BAR)In his answer to complaint, Mario alleged that he does not owe Norma any su m of money, and that he executed the promi note only to enable Norma to show the same to her husband to explain the disappearance of the amount from their conju gal funds(since Norma lost it in a casino).The answer is not verified.The trial court rendered judgment against Mario w/c was received by his lawyer on Sep3 199 0 and by plaintiff s lawyer on Sep 18,1990. On Sep 19,1990, Norma filed motion for execution pending appeal alleging that the appeal is dilatory and Mario has no valid defenses besides. Norma is already destitute and needs the money badly. Ma rio opposed motion for execution since his appeal has been perfected on Sep 18,1 990, the trial court can no longer act on said motion. DECIDE: Motion was timely since it was filed before the perfection of an appeal of Mario. The appeal was perfected upon expiration of the last day to appeal by any party w/c is on Sep 20 (last day to appeal by Norma since her lawyer rece ived copy on Sep 5,1990). DISCRETIONARY EXECUTION DISCRETIONARY Discretionary MATTER court; Period to appeal has already there to no appeal whether there May issue before the lapse oflapsed is appeal EXECUTION AS Aupon theOF RIGHTperiodandinquiry on is perfected is GOOD REASON f Ministerial or Executionduty of the court PROVIDED there are no supervening events. Execution pending period to appeal or during appeal is a matter of discretion; may issue only upon good reasons to be stated in a special order after hearing. a. By trial court even after the perfection of the appeal for so long as the mot ion for execution was filed while the TC has jurisdiction over the case and is i n possession or the records, upon motion of the prevailing party with notice to

the adverse party b. Appellate court after the TC has lost jurisdiction --> Example: P receives judgment: June 3 D receives judgment: June 1 D files notice of appeal: June 5 When does trial court lose jurisdiction? June 18 BUT, if P also files a notice of appeal on June 10, trial court loses jurisdicti on on that date. --> Execution with respect to appealed cases- there is no need to await remand o f the records. --> If ground is the advance age of plaintiff, same can be a good reason for gra nt of execution pending appeal. --> Execution with respect to consequential and exemplary damages should be post poned until such time as the merits of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite pending resol ution (BAR) X filed complaint against Y. Judgment was rendered in favor of X who immed iately filed motion for execution pending appeal. As such X should file such mot ion when decision is pending appeal ,that is,b4 perfection of appeal 4blue95 notes: Even if Y perfected the appeal, X can still file such motion as l ong as it is b4 perfection of appeal and the record has not yet been forwarded b y the trial court. The good reasons must be superior circumstances demanding urgency which will out weigh the injury or damage should the losing party secure a reversal of the judg ment. --good reasons is not always required that it should be stated in a special orde r. It is not strictly construed such statement in special order specially so if it would defeat the interest of justice ,as long as such reasons may be found so mewhere in the record. Absent such, it would nullify immediate execution(since i t would tantamount to be an abuse of judicial discretion where no sufficient rea sons would appear either in special order or by reference ,in the motion for exe cution or in other pleadings).. --it is sufficient that good reasons are stated in the motion for execution to w hich the order of execution makes reference. 4blue95 notes: Rule on execution pending appeal shall be interpreted restrictive ly since it is a matter of discretion on part of the trial court. 4blue95 notes: Several or separate judgments may be executed in same manner as a judgment or final order pending appeal (sec2b) Court may grant a motion for execution pending appeal while it has jurisdiction over the case and is in possession of either the original record or record on ap peal ,at time of the filing of such motion .It can do so even before expiration of period to appeal (sec2) --- motion for execution pending appeal is filed on time, it may be granted afte r the court has lost jurisdiction but before the transmission of the records to the appellate court . ---if court has already lost jurisdiction over the case,motion for execution pen ding appeal may be filed in the appellate court. GROUNDS FOR EXECUTION PENDING APPEAL: 1.insolvency of a defeated party 2.danger of forfeiture by winning party of its valuable lots through foreclosure of creditors defeated party 3.filing of bond not considered as a good reason to justify immediate execution, i t is merely imposed as an additional factor for the protection of the debtor.

4.it can be added also that old age of winning party can justify execution pendi ng appeal 5.wastage of asset 4blue95 notes: there can never be execution pending appeal if there is an award of moral and exemplary damages since such is dependent on outcome of main case. Unlike in actual damages for which the person may clearly be held liable if he b reaches a specific contract and the amounts of which are fixed and certain (Inte rnational school v CA) 4blue95 notes: there can never be immediate execution in an action for damages a nd atty s fees where claim is not secured by a mortgage or pledge (Heiman v Cabrer a) otherwise, every judgment on an unsecured claim would then be subject to imme diate execution as a matter of course despite the rule that execution shall issu e only upon a final judgment. 4blue95 notes: A sin perjuicio judgment is not final since it leaves something m ore to be done as it reserves the performance of an act. (BAR) H filed an action for ejectment against R in the Court of Manila. Judgment was rendered after a declaration of default against R. R filed a petition for r elief in RTC of Manila, w/ an ex-parte urgent motion for a restraining order. Af ter hearing petition,court dismissed petition and lifted restraining order issue d during the hearing. 5 days later, upon motion of H, the City Court issued an o rder granting the writ of execution. R moved to set aside the Writ contending th at decision of RTC has not yet become final . Is R s contention tenable?NO, fact that decision has not become final is immaterial since the court expressly lifte d the restraining order when it dismissed the petition for relief. Upon lifting of the restraining order, there was no obstacle to the execution of the judgment SUMMARY: May judgment in a civil case be executed pending appeal? 1.the motion for execution pending appeal maybe granted upon good reasons by the appellate court. 2.a judgment in an action for injunction for receivership and accounting is exec utory pending appeal unless otherwise ordered by the court. 3.a judgment rendered against the defendant in an action of forcible entry or i llegal detainer is immediately executory (Sec8, Rule 70) Section 3. Stay of Discretionary Execution. The party against whom an execution is directed may file a supersedeas bond to s tay discretionary execution. SUPERSEDEAS BOND one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. 4blue95: Supersedeas bond guarantees satisfaction of the judgment in case of aff irmance on appeal, not other things like damage to property pending the appeal. The court may, in its discretion, order an execution before the expiration of th e time within which to appeal provided; 1. There is a motion for execution filed by the wining party; 2. There is notice of said motion to the adverse party; and 3. there are good reasons stated in a special order after due hearing (BAR) In an action for collection of P2M ,plaintiff bank alleged that defendant Double T for valuable consideration executed in favor of bank a promi note for s uch amount. Defendant files answer to complainant denying liability and allegin g that J had no authority to negotiate and obtain a loan in its behalf nor sign the promi note. The answer was not verified.

During trial, defendant sought to introduce evidence showing that J was not auth orized to sign promi note for and in behalf of Double T.Plaintiff objected to su ch evidence claiming the J s authority had been admitted by defendant s failure to v erify answer. Suppose that no objection was made, and judgment was rendered in favor of bank. The latter filed a motion for execution pending appeal and forthwith filed a bon d in a sum double the amount adjudged. May court grant such motion on ground tha t a bond was filed? HELD: NO, mere filing of bond is not sufficient reason for execution pending app eal. Since no objection was made by bank to defendant s evidence of lack of author ity of J, the same was admissible and constituted a good defense to bank s action. When court may order execution even before an executory judgment and pending an appeal a. Lapse of time would make the ultimate judgment ineffective; b. Appeal is clearly dilatory; c. Judgment is for support and the beneficiary is in need thereof; d. Articles subject of the case are perishable; e. Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the action; f. Movants were in extreme need of the premises subject of the suit and the bond to answer for damages in case of reversal on appeal (supersedeas bond) was post ed by them; g. Judgment debtor is in imminent danger of insolvency; h. Prevailing party is of advanced age and in a precarious state of health and t he right in the judgment is non-transmissible being for support; i. Prevailing party posts sufficient bond to answer for damages in case of rever sal of judgment --> But in most cases, the mere filing of a bond is not sufficient justifica tion for discretionary execution. GENERAL RULE: an order of execution is NOT appealable otherwise there would be n o end to the litigation between the parties. EXCEPTIONS: 1. When the terms of the judgment are not very clear; 2. When the order of execution varies with the tenor, of the judgment. 4blue95: Filing a bond is merely imposed as an additional factor for the protect ion of the debtor. To consider the mere posting of a bond a good reason for exec ution would make immediate execution of a judgment pending appeal routinary, the rule rather than the exception (International School, Inc. [manila] vs. CA GR N o 131109, June 29, 1999, citing Roxas vs. CA) Section 4. judgments NOT Stayed By Appeal 1. INJUNCTION 2. RECEIVERSHIP 3. ACCOUNTING 4. SUPPORT 5. Such other judgments declared to be immediately executory unless otherwise or dered by the trial court. The reason the non-stay of judgment for support is because support is immediatel y needed and its delay may unduly prejudice the one in need of it. 2006 notes: An execution of a judgment of support cannot prescribe even though such motion on ground that it was obtained 7 yrs ago. Since support is an obliga tion continuing in nature ,the court never loses jurisdiction to enforce the sa me. (BAR) X filed an action for support against his father Y. The trial court render ed judgment which was appealed by Y. State effect of taking the appeal. HELD: Taking of appeal shall not suspend the enforceable character of the decisi

on unless otherwise provided by the trial court(sec4) Section 5. effect of reversal of executed judgment. If reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue orders of restitution or reparation of damages as e quity and justice may warrant under the circumstances. (BAR) Suppose judgment was rendered by RTC and executed on appeal n appeal ,what should the trial court do when it is remanded? HELD: Where judgment executed is reversed totally or partially on ial court ,on motion ,after case is remanded to it,may issue such itution as equity and justice may warrant under the circumstances urt cannot do it motu propio since it must be in motion. but reversed o appeal, the tr orders of rest (sec5). The co

WRIT OF EXECUTION The lifetime of a writ of execution is 60 days from its receipt by the officer require to enforce it . Suppose on the 60th day , the sheriff levied on the propery of the judgment deb tor and sold it only a month after. Is the sale valid? Yes, as long as the writ has been levied w/in the lifetime. Writ of Execution can be issued against a person not a privy to a case. * latter s remedy in which he did not avail of was to intervene in the case in que stion involving rights over the same parcel of land (Lising v Plan) * In case of a motion for demolition, the respondent must be given the opportuni ty to intervene to guide the court in disposing of the motion in view of the cla im that his house was erected on the disputed lot, and yet ,he was not an origin al party. He must be given a chance to raise it and prove it since in case of ex ecution, the court has the power to determine all issues of facts and law which may be involved in the execution (Seavan carrier v GTI Sports). * Suppose lessee is evicted, the judgment can be enforced against the sublessee who was not a party since the possession is independent upon the possession of the lessee. (BAR) If decision of MTC is affirmed by the RTC and in turn appealed to the CA and finally decided by the latter, may the winning party move for execution imm ediately in the lower court? HELD:YES, if appeal has been duly perfected and the case has been finally resol ved, such execution may forthwith be applied for in the lower court from w/c the action originated, on motion of the judgment oblige, submitting therewith, cer tified true copies of the judgment/s or final order/s sought to be enforced and of the entry thereof, with notice to the adverse party. -- the appellate court may ,on motion in the same case, when the interest of jus tice requires, direct the court of origin to issue the writ of execution (SC Cir no 24-94) (BAR) A judgment was rendered by Judge Liwag in 1987 w/c became final and execut ory in 1988. In 1984, the plaintiff moved for the execution of the same. The def endant did not object ,hence, a writ of execution was issued. Is the writ of exe cution valid? HELD: NO, failure to interpose any objection to a writ of execution issued upon motion after 5 yrs from final judgment does not validate the same (Decena v Delo s Angeles) (BAR): A judgment was rendered by court in favor of R and against F in sum of P 20M. When sheriff was in process of enforcing writ of execution, R stopped a lev y being made on the properties of F since he and F had agreed that amount due wi ll be increased to P22M payable in 11 monthly installments of P2T each w/ G ,sis ter of F guaranteeing payment. After paying 4 installments. F and G stopped payi ng. R asked court to issue an Alias Writ of Execution for the remaining amount. Shou ld court issue it?

NO, subsequent agreement increasing the amount due and making it payable in inst allments constitutes a novation of the judgment. Hence, judgment could no longer be enforced. Novation to exist, it is imperative that it be so declared in unequivocal terms or that the old and the new contract be on every point incompatible with each ot her. (BAR): A, driver of a taxicab owned by C injured M. After writ of execution in respect of damages, it was returned by Sheriff w/ report that A was insolvent, M applied to the Court for another writ of execution directed against C the owner . Can such writ be issued by Court? YES, A judgment conviction sentencing a defendant employee to pay an indemnity i s conclusive upon the employer in an action for enforcement of the latter s subsid iary liability and such judgment is binding and conclusive w/ regard the amount of indemnity.A separate civil action is not necessary and enforcement of ER s subs idiary liability can also be made in a criminal proceeding. 2006 notes: A Cashier s check is deemed cash. This is particularly true if the che ck had been certified by the bank ,since by the certification, the funds represe nted by the check are transferred from the credit of the maker to that of the pa yee or holder, and for all intents and purposes, the latter becomes the deposito r of the drawee bank. Moreover, under Section 9, the judgment debtor can now pay in certified bank checks. 4blue 95 notes:Judgment obligor is given option to choose which property may be levied on sufficient to satisfy the judgment. EXECUTION BY MOTION OR INDEPENDENT ACTION. MODE OF ENFORCEMENT: 1. By motion within 5 years from date of its entry(motion to execute); 2. by independent action after 5 years from entry AND before it is barred by sta tute of limitations (10 years from entry) 4blue95: Judgment for support does not become dormant, thus it can always be exe cuted by motion. 5-year period may be extended by the conduct of judgment debtor. A revived judgment is a new judgment thus another 5/10 year period to execute an d revive is given the party. (BAR)After entry of Final judgment on May 5,1964, a land belonging to debtor was levied upon on execution by the sheriff by furnishing the debtor w/ a copy of t he writ of execution on June 1,1968. The levy however was annotated on the Certi ficate of Title only on Dec 1,1968. Thereafter, no action was taken to sell prop erty. On Dec. 5,1975 the debtor filed an action to cancel the notation of the le vy on the ground of prescription. If you were judge, would you grant prayer of d ebtor? GRANTED. The 10 year period for enforcing said judgment expired on May 4,1974. A lthough levy on execution was timely made in 1968 w/in reglementary 5 year peri od, the sale on execution should have been made before the lapse of 10 year peri od. Consequently, the motion to cancel the annotation of the levy, which was fil ed on Dec 5,1975 after the judgment had prescribed was proper. (BAR) Writ of Execution were returned unsatisfied by the sheriff on execution of a final judgment rendered in favor of A for the sum of money against B on j une 5,1983. On June 30,1988 A found some property in name of B so that he immed iately filed on July 1,1988 a motion for the issuance of an alias writ of exec ution. Will you grant the writ? Answer depends on when the judgment was entered . If the final judgment was entered on June 5,1983, I will not grant the Writ s ince more than 5 years had elapsed from date of entry of the judgment or from d

ate it became final and executory. However, if final judgment rendered on June 5 ,1983 was entered after July 1,1983, I would grant the writ. (BAR) A obtained a judgment against B for the payment of money. For failure t o appeal ,the judgment became final on July 5,1995. Writs of execution were ret urned unsatisfied, for the sheriff was unable to find property of B subject to execution. On June 30,1984 , A located some property of B where upon A immedia tely filed in July 1984 a motion for issuance of an alias writ of execution. Wi ll the writ be granted? No, since a motion for issuance of an alias writ of execution may be granted o nly within 5 years from entry of judgment on July 5,1975. It will be necessary for A to file an action to enforce or revive the judgment before the lapsed of 10 years. (BAR) Vic Makarinig, resident of Digos city ,secured a favorable judgment in an ejectment case against Juan Palo-koy.,resident of Tagum City from Metropolitan c ourt of Davao. The judgment entered on July 16,1991 (bday ni 4Blue95) had not y et been executed. In July 17,1997 (bday ng tita ni 4blue95), Vic decided to enfo rce the judgment. What is the procedure to be followed by Vic in enforcing the j udgment? Vic can enforce the judgment by an independent action since reviving the judgmen t can no longer be enforce by a motion as the 5 year period w/in which a judgmen t may be enforced by a motion has already expired. Instances when a person may be considered as having waive right to reopen a judg ment: 1.when he acquiesces in the rendition of the judgment or in the judgment as rend ered 2.where he acknowledges the binding effect or force of judgment 3.where he receives or retains benefits accruing to him under the judgment 4.where he voluntarily pays the amount in judgment 5.where he offers his property to be sold on execution w/o objection 6.where party vs whom a default or other interlocutory judgment is taken submits to and ratifies it by participating in the further proceedings in the action DOUBLE REVIVAL OF JUDGMENT: After 5 yr pd to execute a judgment has already lapsed, it can be executed by a ction provided that it is done within the pd of 10 yrs from its entry or date of finality. The revived judgment can still be revived as the law says that the revived judg ment may also be enforced by motion within 5 yrs from date of its entry and ther eafter by action before it is barred by the statute of limitations --it means that revived judgment can be revived provided that it is done within 10 yrs from finality of the revived judgment (sec6) --it also means that judgment has double finality since the original judgment ha s its own pd of finality and entry (sec6) Section 7. Execution In Case of Death of Party. In case of death of the JUDGMENT OBLIGEE, execution will issue in any case. In case of death of JUDGMENT OBLIGOR BEFORE LEVY: > Execution will issue if the action is for the recovery of real or personal pro perty or any lien thereon. > Execution will NOT issue if the action is or the recovery of a sum of money. I n this situation, the judgment oblige should file a claim against the estate of the judgment obligor under Rule 66. In case of death of JUDGMENT OBLIGOR AFTER LEVY, execution will issue in any cas e. REASON: After a valid levy, the property is already separated from the estate of the deceased and is deemed in custodia legis. (BAR) X obtained a judgment against Y. He moved for the execution of the same. T he court granted it within the 5 yr period. The sheriff levied upon the properti

es of Y within the 5 yr pd. Can he sell the properties levied upon on the 6th ye ar? HELD: YES, since it was levied upon with the 5 yr pd but the sale cannot take pl ace beyond the 10 yr period. (Ansaldo v Fidelity) (BAR) A judgment was rendered in favor of A vs B. If B dies and the claim is one for sum of money ,what should be done by A to protect his interest in the judgm ent. HELD: He must file his claim in the estate proceedings w/in the 10 yr period .If there is no pending settlement proceeding, he should commence one and file his money claim therein (PNB v Villarin) Section 8. Issuance, Form and Contents of a Writ of Execution Appeal is the remedy for an order denying the issuance of a writ of execution. EXECUTION OF JUDGMENTS FOR MONEY, HOW ENFORCE 1. immediate payment on demand 2. Satisfaction by levy; 3. Garnishment of debts and credits. Refers GARNISHto money, stocks, credits and other incorporeal property which ATTACHMENTcorporeal property in the possession of the judgment debtor belong to judgment debtor but is in the possession or under the control of a third person The judgment obligor shall pay in cash, or certified bank check payable to the j udgment obligee or any other form of payment acceptable to the obligee (Sec. 9 [ a]) LEVY act by which an officer sets apart or appropriate a part of the whole of th e property of the judgment debtor for purposes of the execution sale. The sheriff can validly levy any properties of the judgment obligor which may be disposed of for value but not exempt from execution. The judgment obligor has t he option to choose which property to levy upon. If he does not exercise the opt ion the officer shall FIRST levy on the personal properties, if any and then on the real properties of the personal properties are insufficient to answer for th e judgment (Sec. 9[b]) The levy on execution creates a lien in favor of the judgment oblige over the ri ght, title and interest of the judgment obligor in such property of the time of the levy, subject to liens and encumbrances then existing (Sec. 12) GARNISHMENT act of appropriation by the court when property of debtor is in the hands of third person The sheriff may levy of debts due the judgment obligor and other credits, includ ing bank deposits, financial interests, royalties, commissions and other persona l property not capable of manual delivery in the possession, or control third pa rties (Sec. 9[c]) The garnishee or the 3rd person who is in possession of the property of the judg ment debtor is deemed a forced intervenor. 4blue95 notes: Salary of public officials cannot be garnished since checks prepa red as salary due to a public official that had not yet been delivered did not y et belong to him and still had the character of public fund, and may not be garn ished to satisfy the judgment (Dela Victoria v Burgos) EXECUTION OF JUDGMENTS FOR SPECIFIC ACT. 1. Conveyance, delivery of deeds, or other specific acts, vesting title; 2. Sale of real or personal property; 3. delivery or restitution of real property; 4. removal of improvements on property subject of execution; 5. delivery of personal property. If the party REFUSES TO VACATE THE PROPERTY, remedy is NOT contempt. The Sheriff must oust the party. But if demolition is involved, there must be a special ord er.

If the party REFUSES TO DELIVER, sheriff will take possession and deliver it to the winning party. When the party REFUSES TO COMPLY, court can appoint some other person at the exp ense of the disobedient party and the act done shall have the same effect as if the required party performed it, the disobedient party incurs no liability for contempt. Remedies against executory judgments or orders: a. Petition for relief b. Direct attack c. Collateral attack - judgment is null on its face or court had no jurisdiction Property exempt from execution. Except as otherwise expressly provided by law, the ff. property, and no other, s hall be exempt from execution: 1. The judgment obligor s family homes as provided, by law, or the homestead in wh ich he resides, and land necessarily used in connection therewith; 2. ordinary tools and implements personally used by him in his trade, employment , or livelihood; 3. three horses, or three cows, or three carabaos, or other beasts of burden, su ch as the judgment obligor may select necessarily used by him in his ordinary oc cupation; 4. his necessary clothing and articles for ordinary personal use, excluding jewe lry; 5. household furniture and utensils necessary for housekeeping, and used for tha t purpose by the judgment obligor and his family, such as the judgment obligor m ay select of value not exceeding 100,000 pesos 6. provisions for individual or family use sufficient for 4 months; 7. the professional libraries and equipment of judges, lawyers, physicians, phar macist, dentists, engineers, surveyors, clergymen, teachers, and other professio nals, not exceeding 300,000 pesos in value; 8. one fishing boat and accessories not exceeding the total value of 100,000 pes o owned by a fisherman and by the awful use of which he earns his livelihood; 9. so much of the salaries, wages, or earnings of the judgment obligor fro his p ersonal services within the 4 months preceding the levy as are necessary for the support of his family; 10. lettered gravestones; 11. monies, benefits, privileges, or annuities, occurring or in any manner grown out of any life insurance; 12. the right to receive legal support or money or property obtained as such sup port, or any pension or gratuity from the government; 13. properties specially exempted by law but no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon. NOTE: other, properties specially exempted from execution; 1. property mortgage to the DBP; (Sec. 26, CA 458) 2. property taken over by the Alien Property Administration; 3. savings of national prisoners deposited with the postal Savings Bank; 4. Backpay of pre-war civilian employees; (RA 304) 5. Philippine government backpay to guerillas; (RA 897) 6. produce, work animals and farm implements of agricultural lessees, subject to limitations; (sec. 21, RA 6389) 7. benefits from private retirement systems of companies and establishments, wit h limitations; (RA. 6389) 8. laborer s wages, except for debts incurred for food, shelter, clothing and medi cal attendance; (Art. 1708 NCC) 9. benefit payments from the SSS; (Sec. 16, RA 1161, as amended by PD 24, 64 and

177) 10. copyrights and other rights in intellectual property under the former copyri ght law, PD 49; (cf. Sec. 239. 3, R.A. 8293) 11. bonds issued under RA 1000; (NASSCO vs CIR L-17874M, Aug. 31, 1963) Section 14. return of the writ of execution The writ shall be returnable to the court issuing it immediately after the judgm ent has been satisfied in part or in full. EXECUTION OF SPECIAL JUDGMENT When judgment requires the performance of any act other than judgment for money and judgments for specific act , a certified copy of the judgment shall be attac hed o the writ. The writ or execution shall be served upon the party required to obey the same a nd such party may be punished for contempt if he disobeys. SPECIAL JUDGMENTS one which can only be complied with by the judgment obligor b ecause of his personal qualifications or circumstances. (e.g., contract to pose for FHM, if the personal qualification of Diana Zubiri was the main consideratio n) In all these cases, failure or refusal to comply with the judgment is punishable as contempt. But a judgment for the vacation of the premises occupied by the le ssee is not a special judgment ,so that the refusal of the lessee to vacate is n ot contemptuous . Section 15. Notice of sale of property on execution. 1.PERISHABLE PROPERTY: posting written notice of the time and place of the sale in 3 public places, preferably in conspicuous areas of the municipal or city hal l, post office and public market where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; 2.OTHER PERSONAL PROPERTY: by posting similar notice in 3 public places above-me ntioned for not less than 5 days; 3.REAL PROPERTY: by posting for 20 days in 3 public places particularly describi ng the property and stating where the property is to be sold, and if the assesse d value of the property exceeds P50,000 by publishing a copy of the notice once a week for 2 consecutive weeks in 1 newspaper selected by raffle, whether in Eng lish, Filipino, or any major regional language published, edited and circulated or in the absence thereof, having general circulation in the province or city; 4.IN ALL CASES, written notice of the sale shall be given to the judgment obligo r, at least 3 days before the sale, except as provided in par (a) hereof where n otice shall be given at any time before the sale. (BAR) In a civil case, plaintiff filed on April 19,1991 an ex-parte motion for e xecution of judgment. Upon receiving it, the presiding judge examined the record and issued on same day an order granting the motion since as stated in his orde r the judgment is now final and executory since the sheriff s return shows that de cision was properly served upon the defendant on April 3,1991 and no appeal was perfected on time The defendant then filed a motion to set aside the order of exe cution, contending that the order is void on two grounds : (1) it violates rule on 3-day notice for motions and (2) date of service, April 3,1991 entered in the sheriff s return is a typographic al error since service was actually made on April 8,1991 so that when court orde red execution on April 19,1991, the decision was not yet final and executory. At the hearing of the motion, defendant cited several cases on the need to notif y the adverse party before a contentious motion can be resolved. He argued that sheriff s return being hearsay has to be confirmed by the situation the proponent of the return has the burden of proving its correctness. This cannot be done unl ess the sheriff testifies in court and is correspondingly subjected to cross exam ination. The sheriff was not presented in court as a witness. HELD: Motion to set aside denied A motion for execution of a final and executory judgment is not a contentious mo

tion that requires a 3-day notice before resolution. Such a motion may be grante d ex parte. The sheriff s return is a public document made in performance of a duty by a publi c officer and is prima facie evidence of the facts stated therein. Hence,no need for sheriff to testify unless defendant had presented evidence contradicting th e sheriff s return. REMEDIES OF THIRD PARTY CLAIMANT 1. Summary hearing before the court which authorized the execution; 2. TERCERIA or third party claim filed with the sheriff; 3. Action for damages on the bond posted by judgment creditors; or 4. Independent reinvidicatory action. The remedies are cumulative and may be resorted to by the third party claimant i ndependent of or separately from he others. If the winning party files a bond, it is only then that the sheriff can take the property in his possession. IF NO BOND, cannot proceed with the sale. 4blue95 notes: Third person cannot file a motion for intervention since the thir d party claim is simply an invocation of the court s power of supervision and con trol over the actuations of its officers and employees to the end that it be ass ured that these conform to the law (US v Manalo) (BAR) A obtained a judgment for money against B. The sheriff enforcing the corre sponding writ went to C who is the pledge of a ring B had given as security of a loan and insisted on taking possession of the ring for the purpose of eventu ally selling it at the execution sale to satisfy the judgment of debt of B. Has C the obligation to surrender the ring?No, C has the right to retain the ring in his possession until the loan is paid. If sheriff should take it, C may file a third party claim (BAR)RTC of Manila rendered decision against R ordering her to pay damages to C. After decision became final,personal properties of R in Bulacan were levied on execution by the sheriff. S filed an action for injunction before RTC of Bulacan . C filed motion to dismiss alleging that Bulacan court could not interfere w/ a ction taken by the Manila court.RTC of Bulacan denied motion. C filed petition for certiorari alleging that the RTC of Bulacan did not have jurisdiction to enj oin the sale since (1)Act constituted an interference w/ order issued by court w / concurrent jurisdictionand (2) S did not file a 3rd party claim w/ provincial sheriff before filing the action. DECIDE: Dismiss petition a.First contention not tenable, S,a 3rd party claimant may vindicate her claim b y action. A judgment rendered in her favored declaring her to be the owner of pr operty would not constitute interference w/ powers of court w/c rendered the jud gment to enforce w/c the execution was levied. If that be so, then an interlocutory order such as preliminary injunction upon a claim and prima facie showing of ownership cannot be considered as such interfe rence either. Moreover, court w/c rendered judgment did not direct the sheriff t o levy upon the particular property in dispute. The order was for him to levy uo n properties of the judgment debtor w/o specifying them,not upon properties of 3 rd party (Abiera v CA). b.Second contention not tenable also since Rules of Court provides that nothing therein contained shall prevent a 3rd party claimant to vindicate his claim to the property by any proper action. Hence, filing of a 3rd party claim is not a p rerequisite to filing of action for injunction. (BAR) A s property was levied upon on execution to satisfy a judgment obtained by B against C. Instead of seeking relief in the case in w/c the judgment being ex ecuted was obtained, A filed a new action against the sheriff for recovery of th e property, with a prayer for a writ of preliminary injunction to restrain him ( the sheriff) from selling the property during the pendency of the suit. Was act ion proper?YES, A 3rd party claimant ,or even a 3rd person who has not filed a 3 rd party complaint w/ the sheriff who has made the levy on execution ,can vindic ate his claim to the property levied upon by filing the proper action. The new a

ction will not constitute an interference into the process of the court w/c has issued the writ, for the direction in the writ is for the sheriff to levy upon p roperty of party w/c has lost in the action and not upon the property belonging to another. Nor would the new action disturb the possession of property in custo dia legis for aside from the recognition of Sec17 of the proprietary of such ind ependent action, possession by sheriff of 3rd party s property is unlawful and is not in possession of the court SALE ON EXECUTION Notice of sale is required before levied property can be sold at a public auctio n (Sec. 15) However, at any time before the sale of property on execution, the judgment obli gor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. (Sec. 18) Remedy against an irregular sale is MOTION TO VACATE OR SET ASIDE THE SALE to be filed in the court which issued the writ. Persons disqualified from participating in the execution sale: a. Officer conducting the execution sale or his deputy; b. Guardian with respect to the property under his guardianship; c. Agents, the property entrusted to them, unless with principal s consent; d. Executors and administrators, the property of the estate under administration ; e. Public officers and employees, the property of the State or any subdivision t hereof, or any GOCC, the administration of which has been entrusted to them; f. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees connected with the administration of justice, the property and ri ghts in litigation or levied upon an execution before the court within whose jur isdiction or territory they exercise their respective functions; g. Lawyers, the property and rights which may be the subject of litigation in wh ich they take part by virtue of their profession; h. Others specifically disqualified by law. (e.g. seller of goods who exercise r ight of resale of goods). Section 17. Penalty for selling without notice, or removing or defacing notice Selling w/o notice or Willfully removing or defacing notice, to pay: 1. punitive damages to any person injured thereby P 5,000 2. actual damages both to be recovered by motion in the same action. Section 19. How property sold on execution; who may direct and order of sale. All sales of property under execution must be made: 1. at public auction; 2. to the highest bidder; 3. to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, NO more proper ty shall be sold and any EXCESS shall be promptly delivered to the judgment obli gor or his authorized representative, unless otherwise directed by the judgment or order of the court. Section 20. Refusal of purchaser to pay The officer may again sell the property to the highest bidder and shall not be r esponsible for any loss occasioned thereby. But the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the ord er. Section 21. Judgment obligee as purchaser When the purchaser is the judgment obligee, and no third party claim has been fi led, he need not pay the amount of the bid if it does NOT exceed the amount of h is judgment. If it does, he shall pay only the excess. Section 22. Adjournment of sale With written consent of the judgment obligor and obligee- to any date and time a

greed upon. Without such agreement from day to day if it becomes necessary to do so for lack of time. Section 23. Conveyance to purchaser of personal property capable of manual deliv ery When purchaser pays the purchase price, the personal property, capable of manual delivery, must be delivered to him and if desired execute and deliver to him a certificate of sale. Section 24. Conveyance to purchaser of personal property not capable of manual d elivery In this case the officer MUST execute and deliver to the purchaser a certificate of sale. Section 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds. Contents of the certificate of sale: 1. a particular Description of the real property sold; 2. the Price paid for each distinct lot or parcel; 3. the Whole price paid by him; 4. a statement that the Right of redemption expires 1 year from the date of the registration of the certificate of sale. Section 26. Certificate of sale where property claimed by third person The certificate of sale to be issued shall make express mention of the existence of such third party claim. REDEMPTION RIGHT OF REDEMPTION: 1. Personal Property NONE; she sale is absolute 2. Real Property there is a right of redemption. WHO may redeem: Only the following: a. JUDGMENT OBLIGOR, or HIS SUCCESSOR IN INTEREST, in the whole or any part of t he property; OR b. REDEMPTIONER who is a creditor having a: 1) Lien by ATTACHMENT on the property sold subsequent to the lien under which th e property was sold; 2) Lien by JUDGMENT on the property sold subsequent to the lien under which the property was sold; 3) Lien by MORTGAGE on the property sold subsequent to the lien under which the property was sold. WHEN CAN REDEMPTION BE MADE: 1.BY THE JUDGMENT OBLIGOR: Within one (1) year from the date of registration of the certificate of sale. The ff stipulations pertain to redemption by judgment o bligor: 1. purchases price; 2. 1% interest thereon, up to the time of redemption; 3. any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate; 4. IF the purchaser be also a creditor having a prior lien to that of the redemp tioner, other than the judgment under which such purchase was made, the amount o f such other lien, with interest. 2.BY THE REDEMPTIONER: 1. within one year from the date of registration of the certificate of sale; or 2. Within sixty days from the last redemption by another redemptioner. The ff stipulations pertain to redemption BY THE REDEMPTIONER: 1. amount paid on the last redemption; 2. 2% interest thereon; 3. any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him; 4. with interest on such last-named amount; 5. amount of any liens held by said last redemptioner prior to his own, with int

erest. 3.BUT IN ALL CASES the judgment obligor shall have the entire period of 1 year f rom the date of the registration of the sale to redeem the property. 4blue95:If the judgment obligor redeems. NO further redemption is allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to hi m a certificate of redemption acknowledged before a notary public or other offic er authorized to take acknowledgments of conveyances of real property. (Sec. 29) 4blue95:The redemption price for subsequent redemption shall be the same. (redem ption price becomes higher and higher). CAN REDEMPTION BE PAID IN OTHER FORMS THAN CASH? YES. The rule is construed liberally in allowing redemption ( rather than defeat the right) and it has been allowed in the case of a cashier s check, certified ba nk checks and even checks. The offer to redeem must be accompanied with a bona fide tender or delivery of t he redemption price. However, a formal offer to redeem with a tender is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the court s, within the period to redeem. RIGHTS OF THE JUDGMENT OBLIGOR: 1. remain in possession of the property; 2. cannot be ejected; 3. use the property in the same manner it was previously used; 4. make necessary repairs to buildings thereon while he occupies the property; 5. use it in the ordinary course of husbandry; (Sec. 31) 6. Collect rents, earnings and income derived form the property until the expira tion of period of redemption. (Sec. 32) Section 30. Proof required of redemption Redemptioner must produce to the officer, or person form whom he seeks to redeem , and serve with his notice to the officer. 1. copy of the judgment or final order; 2. certified by the clerk of court wherein the judgment or final order is entere d; or 3. if he redeems upon a mortgage or other lien, a memorandum of the record there of, certified by the RD; or 4. original or certified copy of any assignment necessary to establish his claim ; 5. affidavit executed by him or his agent showing the amount than actually die o n the lien. Section 33. Deed and possession to be given at expiration of redemption period; by whom executed or given The PURCHASER is entitle to a CONVEYANCE AND POSSESSION of the property if there is no redemption made within 1 year from date of the registration of the certif icate of sale, or LAST REDEMPTIONER whenever 60 days have elapsed and no other r edemption has been made. He is substituted to and acquires all the rights, title, interests and claim of the judgment obligor to the property at the time of levy. The deed of conveyance is what operates to transfer to the purchaser whatever ri ghts the judgment debtor had in the property. The certificate of sale after exec ution sale merely is a memorial of the fact of sale and does not operate as a co nveyance. The purchaser acquires no better right than what the judgment debtor has in the property levied upon. Thus, if the judgment debtor had already transferred the p

roperty executed prior to , the execution purchaser WHEN A THIRD PERSON IS IN hearing and determine the

the levy and no longer has an interest in the property acquires no right. POSSESSION, the procedure is for the court to order a nature of such adverse possession.

Section 34. Recovery of price if sale is not effective; revival of judgment The purchaser may recover the purchase price when: 1. The purchaser or his successor-in-interest FAILS TO RECOVER POSSESSION of the property or; 2. is evicted due to: a. Irregularities in the proceedings concerning the sale; or b. Judgment has been reversed or set aside; or c. The property sold was exempt from execution; or d. A third person has vindicated his claim to the property. 4blue95: he may recover from the judgment oblige the price paid, with interest o r so much thereof as has not been delivered to the judgment obligor; 1. on motion in the same action or 2. in a separate action; or 3. he may on motion, have the original judgment revived in his name. REMEDIES OF THE JUDGMENT CREDITOR IN AID OF EXECUTION 1. if the execution is returned unsatisfied, he may cause examination of the jud gment debtor as to his property and income. (Sec. 36) 2. He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession. (Sec. 3 7) 3. If after examination, the court finds property of the judgment debtor, either in his own hands or that of any person, the court may order the property applie d to the satisfaction of the judgment. (Sec. 37) A party or other person may be compelled, by an order or subpoena, to attend bef ore the court or commissioner to testify as provided in Sec. 36 & 37 (Sec. 38) 4. If the court finds the earnings of the judgment debtor are more than sufficie nt for his family s needs, it may order payment in installments. (sec. 40) 5. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interferences with such property. (Sec. 41) 6. If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interes t (Sec. 42) 7. If the person alleged to have the properly of the judgment debtor or be indeb ted to him claims an adverse interest in the property, or denies the debt, the c ourt may authorize the judgment-creditor to institute an action to recover the p roperty, forbid its transfer and may punish disobedience for contempt. (Sec. 43) Section 44. entry of satisfaction of judgment by clerk of court Section 45. Entry of satisfaction with or without admission Section 46. When Principal Bound by Judgment Against Surety The principal is bound by the same judgment form the time he has notice of the a ction or proceeding and has been given an opportunity at the surety s request, to join the defense. The sheriff cannot sell all properties levied upon, he can only sell a sufficien t portion of personal/real properties of the judgment obligor which has been lev ied upon. The sheriff cannot demand that payment be made in his name since rule says that in no case shall executing sheriff demand that any payment by check be made paya ble to him (PAL v CA) otherwise, there would be no such payment.That is payment to a wrong person.

The effect if judgment-obligee puts up a bond is that it is merely an equivalent to the personal interference of the indemnitor and his bondsmen in the course o f the proceedings by directing or requesting the sheriff to hold and sell the g oods as if they were the property of the defendants in attachment. -- In doing this, they assume the direction and control of the sheriff s future ac tion in so far as it constitutes a trespass, and they become to that extent the principals and their agent in the transaction. --This makes them responsible for the continuance of the wrongful possession and for the sale and conversion of the goods, in other words, for all the real dama ges which plaintiff sustains ( Lovejoy v Murray) THE EFFECT OF FOREIGN JUDGMENTS Provided that the foreign tribunal had jurisdiction 1. IN CASE OF JUDGMENT AGAINST A SPECIFIC THING, the judgment is CONCLUSIVE upon the TITLE TO THE THING; 2. IN CASE OF A JUDGMENT AGAINST A PERSON, the judgment is PRESUMPTIVE EVIDENCE of a right as between the parties and their successors-in-interest by a subseque nt title In both instances, the judgment may be repelled by evidence of want of jurisdict ion, notice, collusion, fraud or clear mistake of law or fact. EFFECT OF JUDGMENT OR FINAL ORDERS The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased per son, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order i s conclusive upon the title to the thing, the will or administration, or the con dition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter d irectly adjudged or as to any other matter that could have been raised in relati on thereto, conclusive between the parties and their successors in interest by t itle subsequent to the commencement of the action or special proceeding, litigat ing for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in inte rest, that only is deemed to have been adjudged in a former judgment or final or der which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. 4blue95: sec47 Refers to judgments which are considered as conclusive and may be rebutted directly by means of relief from judgment or annulment of judgment or indirectly by offering them in evidence under the parole evidence rule. Par A refers to rule ON RES JUDICATA on judgments IN REM Will to Probate the thing thing Titleor administration. Against ofspecific AS TO EFFECT: aoraFINAL or administration of the facie evidence of the death JUDGMENTCONCLUSIVEORDER However, ONLY primaestate of a deceased person of the t will In respect to the personal, political, or legal condition or status of a particu estator or Intestate Condition, lar person status or relationship of the person Par B is referred to as bar by former judgment or RES JUDICATA in judgments IN PER SONAM RES JUDICATA A matter adjudged; it is a rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or, causes of action. (Blac k s Law Dictionary) REQUISITES: 1. A FINAL judgment or order;

2. JURISDICTION over the subject matter and the parties by the court rendering i t; 3. Judgment UPON THE MERITS; 4. Between the two cases: a. There is identify of parties; and b. Identify of subject matter; and c. Identify of cause of action. THERE IS IDENTITY OF CAUSE OF ACTION when the two actions are based on the same delict or wrong committed by the defendant even if the remedies are different. Under the doctrine of res judicata, no matter how erroneous a judgment may be, o nce it becomes final, it cannot be corrected. Par C is known as conclusiveness of judgment TER ACTION PENDANT or preclusion of issued or rule of AU

CONCLUSIVENESS OF JUDGMENT issues actually and directly resolved in a former sui t cannot again be raised in any future case between the sane parties involving a different cause of action. > has the effect of preclusion only of issues. > Parties in both actions may be the same but the causes of action are different The is ONLY OF of parties, subject matter MATTER ALL MATTERS ThereBY FORMER JUDGMENT CONCLUSIVENESSidentify of BAR firstidentify JUDGMENTPARTIES ANDABSOLUTEand causes of actiondirectly adjudg judgment constitutes as an SUBJECT BAR TO The first judgment is conclusive adjudged. ed and those that might have beenonly as to matters directly adjudged and actual ly litigated in the first action. Second action can be prosecuted. (BAR) In 1960, the SC ruled that P, a Filipino citizen ,who sold his land to C, Chinese, in violation of the constitution could not recover said land under the principle of pari delicto. In 1970, another case involving different parties,SC ruled that a Filipino vendo r may ,under certain conditions recover lands for the Filipino. In view of this ruling, P filed a second complaint against C for recovery of same land. HELD: 2nd complaint dismissed on ground of bar of prior judgment. All requisites for res judicata are present. The first case was tried and decided by a court o f competent jurisdiction; parties, subject matter and causes of action are sam e. As such it must be no longer be disturbed (Lee Bun Ting v. Aligaen) LAW OF THE CASE legal conclusions announced on the first appeal, whether on the general law or the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to strict obedience and conformity t hereto, but they become and remain the law of the case in all other steps, wheth er in the lower court or in the appellate court on a subsequent appeal. A Final and Executory judgment may no longer be changed or amended by the court except for clerical errors or mistakes . Otherwise, there would be no end to lit igation (PNB v CA) 2006 notes: a decision promulgated after a judge s retirement cannot be validly pr omulgated. To be valid, it must be duly signed and promulgated during the incumb ency of the judge who signed it (Pp v Labao) 2006 notes: In case of conflict between dispositive portion and the body of the decision, the former controls ,irrespective of what appears in the body of the d ecision. Except: where inevitable conclusion from the findings of facts is so in dubitable and clear as to show that there was a mistake in the dispositive porti on (Aguirre v Aguirre) 2006 notes: A court may clarify its judgment when there is ambiguity caused by a n omission or mistake in the dispositive portion, by amendment even after the j udgment has become final. When there is Ambiguity of a Judgment: Remedy is clarification of the same even if it is now final and before appeal is perfected. The trial court has jurisdiction to clarify it even after finality.

If it has already been appealed to the CA, then the latter can clarify the ambig uity in its decision when it resolves the assigned errors In Rep v Delos Angeles, it was said that when there is ambiguity, the judgment s hould be read in connection with the entire record and construed accordingly. Th e pleadings and the evidence can also be considered. APPEALS Court loses jurisdiction over the subject matter of the case upon the approval of the record on appeal filed in due time and the expiration of the time to appe al of the other parties (sec9) RULE 40 APPEAL FROM MTC TO RTC Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to which MTC pertains. File notice of appeal with the MTC which r endered decision appealed from within 15 days after notice of such judgment. Record on appeal is filed within 30 days and required only for special proceedin gs The period of appeal shall be interrupted by a timely motion for new trial or re consideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed (sec2). Appellate docket fees paid to clerk of court of MTC - payment not a condition pr ecedent for perfection of appeal but must nonetheless be paid within the period for taking appeal; Procedure for appeal from cases dismissed without trial for lack of jurisdiction : a. If affirmed because the MTC has no jurisdiction, RTC will try case on the mer its as if it has original jurisdiction; b. If reversed, the case shall be remanded to the MTC; c. If the first level court tried the case on the merits without jurisdiction, t he RTC should not dismiss the case but shall decide it in the exercise of origin al jurisdiction. 2005 notes: when defendant in a civil action received a note of judgment of t he MTC on Dec 10, the last day of filing appeal is on Dec.26 since last day (De c25) is a holiday as provided on Rule 22. However, he cannot validly move for ex tension of the pd for filing a motion for reconsideration of the decision in vie w of the Xmas holidays as stated on Habaluyas v. Japson and as such, the appeal shall be deemed perfected upon expiration of last day to appeal by any party ( Rule 41 sec9) (*BAR)JS appeals the decision against him to the RTC w/c affirmed in toto the l ower court s decision. Suppose that instead of filing a motion for recon w/ RTC, J S filed a notice of appeal w/ the RTC stating that he is appealing to the CA on the ground that the judgment is contrary to law and the facts of the case. As la wyer for the opposing party, on what ground will you oppose the appeal? HELD: On ground that the proper procedure is the filing of a petition for review w/ CA (sec22 BP129 ). The filing of notice of appeal is proper if the case was origina lly filed in the RTC. The filing of the motion for new trial shall have the effect of interrupting the period of appeal. (BAR) A was funished a copy of the decision on Dec 9,1996. He filed motion for n ew trial on Dec 15,1996. Motion was denied on Dec 20 within what period should A take the appeal? HELD: take his appeal on or before Jan 4,1997, that is 15 days after notice of the judgment or order. It must be observed that Dec 9,1996 the day when A received a copy of the decisi on should not be counted, since in the computation of a period, the first day sh

all be excluded and the last day shall be included.(civil code) Dec 15,1996, the day when he filed the motion for new trial should not likewise be counted in the 15-day pd since it was at that time when the pd of appeal was interrupted. It should be excluded. From Dec 9 to Dec 15, 5 days lapsed. The period started to run again on Dec 26 a nd from that time up to Jan 4,1997, 10 days lapsed, so the last day for taking a ppeal is Jan 4. (4blue95 says that such ruling above is repealed by the FRESH PERIOD Rule) Sec. 3. How to appeal. € The appeal is taken by filing a notice of appeal with the court that rendered th e judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed fro m, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other ca ses of multiple or separate appeals. The form and contents of the record on appeal shall be as provided in section 6, Rule 41. Copies of the notice of appeal, and the record on appeal where required, shall b e served on the adverse party. Appeal is deemed perfected when: 1.A party s appeal by notice of appeal is deemed perfected as to him upon the fili ng of the notice of appeal in due time 2.A party s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. 2005 notes: If appeal is by notice of appeal ,the court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties. Residual Jurisdiction of the Court: Prior to the transmittal of the original record to the appellate court, the tria l court retains jurisdiction: a.to issue orders for the preservation of the rights of parties, w/c do not invo lve any matter litigated b.approve compromise prior to transmittal of records c.permit appeals by an indigent d.order execution pending appeal in accordance w/ sec2, meaning that motion for execution was filed b4 the expiration of the period to appeal e.allow withdrawal of the appeals 2005 notes: In petition for review, cut-off period when court may no longer exer cise residual jurisdiction is before the CA gives due course to the petition. 2005 notes: In petition for bail when such is denied, the accused cannot go to t he SC directly due to the hierarchy of court, as such inferior should be filed w/ RTC, then CA then SC. (BAR) An info was quashed by the MTC.The fiscal filed a motion for recon w/c was denied hence he filed a petition for certiorari w/ the CA, which dismissed the case based on the hierarchy of courts, ruling that the petition should have been filed w/ RTC. Is CA s ruling correct? HELD: YES, under the hierarchy of courts ,the petition should have been initiall y filed w/ RTC. There is a hierarchy of courts determining the venue of proper f orum for availment of the extraordinary remedies ofr certiorari, prohibition ,ma ndamus, quo warranto and habeas corpus. (BAR) After judgment ,the losing party appealed but the same was filed outside t he period allowed by the law. Appellant reasoned out by saying that there was an

erroneous understanding of the law on appeal by counsel and hence, invoked a re laxation of the Rules. If you were ponente, how would you decide? HELD: I would decide against the appellant since a mistake in the understanding of the law on appeals is not compelling enough or a highly exceptional circumst ance to depart from the rule on perfection of appeals in the manner and w/in the period prescribed by law. Such manner and pd prescribed are not only mandatory but jurisdictional, the failure to comply to such renders judgment final and exe cutory (Batara v CA) Sec. 5. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amou nt of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record o r the record on appeal, as the case may be. Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the appeal, the clerk of court o r the branch clerk of court of the lower court shall transmit the original recor d or the record on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy of his let ter of transmittal of the records to the appellate court shall be Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of the complete record or the record on appeal, the clerk of co urt of the Regional Trial Court shall notify the parties of such fact. (b) Within fifteen (15) days from such notice, it shall be the duty of the appel lant to submit a memorandum which shall briefly discuss the errors imputed to th e lower court, a copy of which shall be furnished by him to the adverse party. W ithin fifteen (15) days from receipt of the appellant s memorandum, the appellee m ay file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal. (c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The Region al Trial Court shall decide the case on the basis of the entire record of the pr oceedings had in the court of origin and such memoranda as are filed. Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction. €If an appeal is taken from an order of the lower court dismissing the case withou t a trial on the merits, the Regional Trial Court may affirm or reverse it, as t he case may be. In case of affirmance and the ground of dismissal is lack of jur isdiction over the subject matter, the Regional Trial Court, if it has jurisdict ion thereover, shall try the case on the merits as if the case was originally fi led with it. In case of reversal, the case shall be remanded for further proceed ings. (VERY IMPORTANT )If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall n ot dismiss the case if it has original jurisdiction thereof, but shall decide th e case in accordance with the preceding section, without prejudice to the admiss ion of amended pleadings and additional evidence in the interest of justice. RULE 41 APPEAL FROM THE RTC Appeal may be taken from a judgment or final order that completely disposes of t he case or of a particular matter therein. No appeal may be taken from: a. Order denying a motion for new trial or recon; (BAR) A filed a complaint w/ the municipal court against B. Judgment was rendere d in favor of A. While the decision was received by B s lawyer, such lawyer howev er, had to go to the USA to undergo a heart bypass operation. He failed to notif y his client B of the decision, hence, period to appeal lapsed. What is B s remedy ? HELD: File petition for relief from judgment due to accident, the accident bein

g the sudden departure of B s lawyer due to his heart operation. Suppose the petition is denied,can B appeal from the order of denial? NO, an app eal may not be taken from an order denying a petition for relief, or any similar motion seeking relief from judgment. But is there still remedy for B?YES, if order was denied w/o or in excess of jur isdiction, B can file a petition for certiorari under rule 65. b. Order denying a petition for relief or any similar motion seeking relief from judgment; c. Interlocutory order; 2005 notes: the remedy then if interlocutory order is not appealable is that par ty should wait for final judgment or order and may assign such interlocutory ord er as an error of the court on appeal. d. Order disallowing or dismissing an appeal; e. Order denying a motion to set aside a judgment by consent, confession, compro mise on the ground of fraud, mistake, or duress, or any other ground vitiating c onsent; f. Order of execution; --> Not appealable because execution is only the result of the judgment. If order of execution is not in accord with the dispositive portion, remedy is cer tiorari under Rule 65. g. Judgment or final order for or against one or more of several parties or in s eparate claims, while the main case is pending, unless the court allows an appea l therefrom; h. Order dismissing an action without prejudice; --> In all these cases, aggrieved party may file an appropriate civil action und er Rule 65. MODES OF APPEAL FROM DECISION OF RTC ( OUTLINE, SEC2). € (a) (Writ of Error or )Ordinary appeal.- The appeal to the Court of Appeals in c ases decided by the Regional Trial Court in the exercise of its original jurisdi ction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the ad verse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (b) Petition for review.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. (if what is raised is only q uestions of law ,then it must be dismissed) 2005 notes: If appeal from RTC in exercise of appellate jurisdiction is by notic e of appeal instead of petition for review, it must be dismissed on ground of er roneous appeal (SC Cir 2-90) 2005 notes: If judgment of MTC is decided on appeal by RTC, the appeal shall be made by petition for review to the CA which may be given due course only when pe tition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or formal order sought to be reviewed( sec22 ,BP 129) (c) Appeal by certiorari.- In all cases where only questions of law are raised o r involved, the appeal shall be to the Supreme Court by petition for review on c ertiorari in accordance with Rule 45. 2005 notes: SC may (1)take cognizance of and decide such issues of facts or (2) refer the same to the CA for determination ( SC Cir No.2-90)

PROCEDURE FOR TAKING AN APPEAL FROM RTC TO CA UNDER THE INTERIM RULES AND THE PE RIOD PROVIDED THEREIN: 1. If interim actions or proceedings were originally filed in the RTC, the appea l shall be taken by filing a notice of appeal with the RTC within 15 days from n otice of judgment or order, except in habeas corpus cases (Rule 18a,Interim rule s) 2.In special proceedings ,in accordance with Rule 109 and other cases where mult iple appeals are allowed, the period shall be 30 days, a record on appeal being required ( Sec 18b,Interim rules) 2005 e of 2005 ,it notes: Only the appellate court determines that the issues on appeal are on law or facts(PNB v Romillo) notes: Trial court cannot disallow an appeal on ground that it is frivolous is only the appellate court (Sabenal v Goruspe)

RULES ON APPEAL: a.No trial de novo anymore The appellate courts must decide the case on the basis of the record, except whe n the proceedings were not duly recorded as when there was absence of a qualifie d stenographer. b.no new parties c.no change of theory d.no new matters e.there can be amendments of pleadings to conform to the evidence submitted befo re the trial court f.liability of solidary defendant who did not appeal is not affected by appeal o f solidary debtor g.appeal by guarantor does not inure to the principal h.in ejectment case, the RTC cannot award to the appellant on his counterclaim m ore than the amount of damages beyond the jurisdiction of the city courts i.appellate court cannot dismiss the appealed case for failure to prosecute sinc e the case must be decided on basis of the record. 2005 notes: When obligation of the other solidary debtors is so dependent on tha t of their co-debtors ,the release of the one who appealed provided it be not on grounds personal to such appealing defendant , operates as well to the other wh o did not appeal (Universal motors v CA) Notice of Appeal Mere filing of such notice, does not divest court of jurisdiction. The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed from, specify the court to which the appeal is be ing taken, and state the material dates showing the timeliness of the appeal. Party s appeal by notice of appeal deemed perfected as to him upon the filing of t he notice of appeal in due time (it must be perfected before the expiration of t he last day of appeal, it is reckoned by receipt of such notice by the other par ty, if no appeal is taken, the decision, no matter how erroneous becomes final a nd executory) Court loses jurisdiction over case upon perfection of the appeals filed in due t ime and expiration of time to appeal of other parties Contents of Notice on appeal: a. Names of the parties to the appeal; b. Specify judgment or final order or part thereof appealed from; c. Court to which the appeal is being taken; d. Material dates showing timeliness of appeal; 2005 notes: No need for court to approve such notice of appeal since the appeal is deemed perfected upon expiration of the last day to appeal by any party.(Rule is true if no requirement of record on appeal)

Record of Appeal Where record of appeal is required,it is deemed perfected as to appellant with r espect to the subject matter upon the approval of the record on appeal filed in due time (30 days from notice of judgment or final order) Court loses jurisdiction only over subject matter upon approval of records on ap peal filed in due time and expiration of the time to appeal of other parties. It is required in the following: a.special proceedings b.multiple or separate appeals c.order of expropriation in eminent domain proceedings d.judgment for recovery of property or partition w/ accounting e.judgment for or against one or more of several defendants, leaving the action to proceed against the others f.foreclosure of mortgage 2005 notes: When court orders the amendment of the record on appeal, the appella nt shall redraft it to include those matters which were ordered included and sha ll be submitted for approval (sec7) 2005 notes:Joint record on appeal can be filed where both parties are appellants , they may file a joint record on appeal within 30 days from notice of the judgm ent or final order or that fixed by the court (sec8). Contents of Record on appeal: a. Full names of all parties to the proceedings shall be stated in the caption; b. Include judgment or final order from which appeal taken; c. In chronological order, copies of only such pleadings, petitions, etc. and al l interlocutory orders as are related to the appealed judgment; d. Data showing that appeal perfected in time - material data rule; e. If an issue of fact is to be raised, include by reference all the evidence, o ral or documentary, taken upon the issues involved. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal with the RTC within 15 days from notice of its judgment. Record on appeal required only for special proceedings and where multiple appe als allowed filed within 30 days. Motion for extension of time to file a motion for new trial or reconsideration i s prohibited. General Rule: An ordinary appeal stays the execution of a judgment Exceptions: a. Decisions of quasi-judicial body appealed to the CA b. Executions pending appeal c. Cases covered by Summary Procedure (BAR) X was served with notice of judgment rendered by the RTC on June 1,1982. O n June 10,within the pd to appeal, X filed a notice of appeal. The judge ,howeve r, on June 20, disapproved the appeal on ground that X did not file the record o n appeal and the appeal bond. As counsel for X, what step will you take? HELD: I will file motion for recon calling attention of the court in disapprovin g the appeal that it acted w/ grave abuse of discretion amounting to lack of jur isdiction. If court denies motion, I will file with the Intermediate Appellate court a peti tion for certiorari. When the 15 day period to appeal expired on June 17, the co urt had no authority to disapproved the appeal. After all, section 23 of Interim Rules provides that if the 15 day period to appeal from the judgment of the cou rt which expired on June 16, the appeal was deemed perfected. In disapproving th e appeal taken by X in accordance w/ law, the court acted w/ grave abuse of disc retion amounting to lack of jurisdiction correctible by certiorari.

2005 notes: The filing of the record on appeal bond had been eliminated whenever an appeal is taken from the judgment of the RTC. X filed his notice of appeal o n June 10, within the 15 days period to appeal, counted from his notice of the j udgment on June 1, 1982. 2005 notes: Motion for extension of time or motion for new trial (nor a pro form a motion) to file a motion for new trial did not interrupt the period of appeal since it is not allowed. The judgment ,therefore,becomes final and executory. 2005 notes:The pd for which the second motion for reconsideration is pending is not deducted from the 15-day period to appeal.If appeal period lapses during suc h pendency, the decision becomes final and executory (Distilleria Limtuaco v IAC ) 2005 notes: Order of execution cannot be appealed, it is final and executory, bu t rule is not absolute since it has its exceptions, like: a.when the terms of the judgment are varied (Paulino v CA) b.when terms of the judgment are not clear and there is room for interpretation (De Guzman v CA) 2005 notes:Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA. 2005 notes:Where only questions of law are raised, by petition for review on cer tiorari with SC. 2005 notes: Court may dismiss appeal after the record is transmitted on appellat e court(CA or SC) on ground that it was taken out of time or that issues raise i s purely legal. RULES ON THE EFFECT OF THOSE WHO DID NOT APPEAL FROM A JUDGMENT (2005 UPDATES) a.If liability of one who failed to appeal is dependent on the appellant s liabili ty, the appeal inures to his benefit (Usay v Palma) b.If rights and liabilities of those who did not appeal and those who appealed a re so dependent on each other ,the reversal of judgment as to one would operate as a reversal as to all (Dir of Lands v Reyes) If not, the judgment as to those who failed to appeal shall become final and exe cutory.(Citytrust bank v CA) The reason for such is that one who did not appeal cannot obtain from the appellate court any affirmative relief toher than those granted in the decision of the lower court. c.A third party who did not appeal but is held liable on appeal cannot claim aff irmative relief against a third party defendant (Go v Go) d.Appellate courts cannot reverse or modify decisions as to those who did not ap peal (Reyes v IAC) exceptions: i.Trial court failed to award interest on damages which may be awarded by the CA in its discretion in view of Art 2210,NCC (Lima v Laguna) ii.Exemplary damages and attorney s fees that were erroneously deleted by the CA ( Kapalaran Bus lines v Coronado) iii.If court affirms the decision on appeal or clarifies it, it may increase the award of damages.(Filinvest Credit Corp v CA) Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amo unt of the appellate court docket and other lawful fees. Proof of payment of sai d fees shall be transmitted to the appellate court together with the original re cord or the record on appeal (sec4). Failure to pay appellate docket fees within the reglamentary period is ground fo r dismissal of appeal. 2005 notes:RTC can entertain motion to ot yet been transmitted (Vivo v Arca) 2005 notes: Even if appeal has already jurisdiction but b4 transmittal of the -issue orders for protection of rights dismiss appeal provided that record has n been perfected & court has already loses record , it may still do the ff (sec9): of parties w/c do not involve any matter

litigated on appeal -approve compromises -permit appeals of indigent litigants -order execution pending appeal -allow w/drawal of appeal 2005 notes: TC may dismiss appeal after its perfection provided that complete re cord/record on appeal has not yet been transmitted to the appellate court and it may be done motu propio or on motion. RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA FRESH PERIOD RULE: A party litigant may either file his notice of appeal within 15 days from receip t of the RTC s decision or file it within 15 days from receipt of order denying hi s motion for new trial or motion for reconsideration. (Neypes v CA, Sept 14,2005 ) Prior to this rule, the SC ruled that a motion for new trial only interrupted th e running of the 15 day appeal period. However, in this new rule (Fresh Period), the SC deems it necessary to change th e old rule and to afford litigants fair opportunity to appeal their cases. The new rule aims to make the appeal period uniform to be counted from receipt of th e order denying the motion for new trial, motion for reconsideration (whether fu ll or partial) or any final order or resolution). Upon proper motion and the payment of the full amount of the docket and other la wful fees and the deposit for costs before the expiration of the reglementary pe riod, the Court of Appeals may grant an additional period of fifteen (15) days o nly within which to file the petition for review. Fresh Period rule applies to: Rule 40 Rule 42 Rule 43 Rule 45 4blue 95:it is applicable only to Motion for New trial and Motion for Reconsider ation. 2006 notes: If originate from MTC to RTC, the proper procedure in the CA is PETI TION FOR REVIEW on ground that the facts contained in the decision are not suppo rted by substantial evidence as basis thereof and the conclusions are clearly a gainst the law and jurisprudence ( May also appeal to the SC by a petition for review on certiorari on questions of law only ) 4blue95 notes: If originally filed with RTC, proper procedure in the CA is NOTI CE OF APPEAL Form and contents of petition for review (from RTC to CA) In 7 legible copies: a. Full names of parties to case, without impleading the lower courts or judges thereof; b. Indicate specific material dates showing it was filed on time; c. Concise statement of matters involved, issues raised, specification of errors of fact or law, or both allegedly committed by the RTC, and the reasons or argu ments relied upon for the allowance of the appeal; d. Accompanied by clearly legible duplicate originals or true copies of the judg ments or final order of both MTC and RTC; e. Certification under oath of non-forum shopping. 2005 notes: Judges in the lower courts are not impleaded in a petition for revie w since they are only performing their duties and as such, are mere nominal part ies (MWSS v CA) CA upon filing of the petition may: a. Require respondent to file a comment; or

b. Dismiss the petition if it finds: i. Patently without merit ii. Prosecuted manifestly for delay iii. Questions raised are to insubstantial to require consideration Contents of comment (of respondent): In 7 legible copies, accompanied by certified true copies of material portions o f record and other supporting papers: a. State whether or not appellee accepts the statement of matters involved in th e petition; b. Point out such insufficiencies or inaccuracies as he believes exists in petit ioner s statement of matters; c. State reasons why petition should not be give due course. 2005 notes: The court will not require the respondent to file an answer since th e comment to the petition is a substitute for the answer. When may CA give due course to the petition(sec6): If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof withou t such comment or pleading having been submitted, the Court of Appeals finds pri ma facie that the lower court has committed an error of fact or law that will wa rrant a reversal or modification of the appealed decision, it may accordingly gi ve due course to the petition. Sec. 7. Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk of cour t of the Regional Trial Court to elevate the original record of the case includi ng the oral and documentary evidence within fifteen (15) days from notice. Appellate court may consider matters that were not assigned on appeal if (Catho lic Bishop of Balanga v CA): 1.they are closely related to an assigned error 2.If matters are indispensable or necessary to the just resolution of the pleade d issues 3.they were assigned in the lower court 2006 notes: Once a court acquires jurisdiction, it has a wide discretion to loo k upon matters which, although not raised as an issue, would give life and meani ng to the law. Ignoring such issues would be an abdication of judiciary s primordi al objective which is just resolution of the disputes (Logronio v Taleseo) Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely filing of a petition for review and the payment of the corre sponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the o ther parties. However, before the Court of Appeals gives due course to the petition, the Regio nal Trial Court may issue orders for the protection and preservation of the righ ts of the parties which do not involve any matter litigated by the appeal, appro ve compromises, permit appeals of indigent litigants, order execution pending ap peal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal . (b) Except in civil cases decided under the Rule on Summary Procedure, the appea l shall stay the judgment or final order unless the Court of Appeals, the law, o r these Rules shall provide otherwise. (BAR) X filed a complaint for unlawful detainer against Y. Judgment was rendered by the MTC in favor of X. On appeal to the RTC, it was affirmed in toto. Y fil

ed a petition for review w/ the CA. State the effect of such petition. HELD: Petition does not stay the judgment or final order considering that it was decided under the Rules on Summary Procedure, all ejectment cases being governe d by such rule. The exceptions are: 1.when CA orders otherwise 2.when Rules provide otherwise (sec 8b) In short, the judgment of the RTC is immediately executory. Sec. 9. Submission for decision. € If the petition is given due course, the Court of Appeals may set the case for o ral argument or require the parties to submit memoranda within a period of fifte en (15) days from notice. The case shall be deemed submitted for decision upon t he filing of the last pleading or memorandum required by these Rules or by the c ourt itself. 2005 notes: If court commits an error of judgment, like dismissing a complaint, the remedy available since such error is one of procedure not jurisdiction, is a ppeal. RULE 43 APPEALS FROM THE QUASI-JUDICIAL AGENCIES TO THE CA 4blue95:Party adversely affected by a decision of the CTA en banc may file with the Supreme Court a petition for review on certiorari pursuant to Rule 45 within 15 days from notice of judgment or final order or resolution appealed from or o f the denial of petitioner s motion for new trial or reconsideration filed in due time after notice of judgment. Upon proper motion and the payment of the full amount of the docket fee before t he expiration of the reglementary period, the Court of Appeals may grant an addi tional period of fifteen (15) days only within which to file the petition for re view. No further extension shall be granted except for the most compelling reaso n and in no case to exceed fifteen (15) days. Quasi-judicial agencies covered: a. Civil Service Commission; b. Central Board of Assessment Appeals; c. Securities and Exchange Commission; d. Office of the President; e. Land Registration Authority; f. Social Security Commission; g. Civil Aeronautics Board; h. Bureau of Patents, Trademarks and Technology Transfer; i. National Electrification Administration; j. Energy Regulatory Board; k. National Telecommunications Commission; l. Department of Agrarian Reform under RA No. 6657; m. GSIS; n. Employees Compensation Commission; o. Agricultural Inventions Board; p. Insurance Commission; q. Construction Industry Arbitration Commission; r. Voluntary arbitrators --> St. Martin s Funeral Home vs. NLRC - DECISIONS OF THE NLRC ORIGINAL ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC --> Fabian vs. Desierto Appeals from decisions of the Office of the Ombudsma n in administrative disciplinary cases should be taken to the CA under Rule 43. ? According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any app eal by way of petition for review from a decision, final resolution or order of the Ombudsman, or special civil action relative to such decision, filed with the

SC after March 15, 1999 shall no longer be referred to the CA, but shall be dis missed. Sec. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legi ble copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the pe tition intended for the Court of Appeals shall be indicated as such by the petit ioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposi t for costs within fifteen (15) days from notice of the denial. Sec. 6. Contents of the petition for review . (a) state the full names of the parties to the case, without impleading the cour t or agencies either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved and the grounds relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a certified true c opy of the award, judgment, final order or resolution appealed from, together wi th certified true copies of such material portions of the record referred to the rein and other supporting papers; and (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. The petition shall state the specific material dates showing that it was filed within the period fixed herein. Sec. 7. Effect of failure to comply with requirements. € The failure of the petitioner to comply with any of the foregoing requirements r egarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which s hould accompany the petition shall be sufficient ground for the dismissal thereo f. Sec. 8. Action on the petition. € The Court of Appeals may require the respondent to file a comment on the petitio n, not a motion to dismiss, within ten (10) days from notice, or dismiss the pet ition if it finds the same to be patently without merit, prosecuted manifestly f or delay, or that the questions raised therein are too unsubstantial to require consideration. Sec. 9. Contents of comment. The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly legible certified true copies of such materia l portions of the record referred to therein together with other supporting pape rs. The comment shall (a) point out insufficiencies or inaccuracies in petitioner s statement of facts a nd issues; and (b) state the reasons why the petition should be denied or dismissed. A copy the reof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals. Sec. 10. Due course. € If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or upon the expiration of the perio d for the filing thereof, and on the basis of the petition or the records the Co urt of Appeals finds prima facie that the court or agency concerned has committe d errors of fact or law that would warrant reversal or modification of the award , judgment, final order or resolution sought to be reviewed, it may give due cou rse to the petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned, when supported by substantial evidence, shall

be binding on the Court of Appeals. Sec. 11. Transmittal of record. Within fifteen (15) days from notice that the petition has been given due course , the Court of Appeals may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceedin g under review. The record to be transmitted may be abridged by agreement of all parties to the proceeding. The Court of Appeals may require or permit subsequen t correction of or addition to the record. Sec. 12. Effect of appeal. € The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such term s as it may deem just. 2005 notes:If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a peri od of fifteen (15) days from notice. The case shall be deemed submitted for deci sion upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals. PROCEDURE IN COURT OF APPEALS RULE 44 ORDINARY APPEALED CASES Questions that may be raised on appeal. Whether or not the appellant has filed a motion for new trial in the court below , he may include in his assignment of errors any question of law or fact that ha s been raised in the court below and which is within the issues framed by the pa rties. 2005 notes: an appelant in a civil case pending in CA filed a motion for re ception of specified evidence for the purpose of clarifying facts already in the record in order that the court would be better to be able to resolve r elevant factual issues raised on appeal. such motion will not prosper, since th e CA may receive evidence in appealed cases only when a motion for new trial on ground of newly discovered evidence is granted by it ( sec 9,bp 129) 2005 notes: Clerk of court of the CA upon receipt of the original record or reco rd on appeal and the accompanying documents and exhibits transmitted by the lowe r court and proof of payment of the docket and other lawful fees shall docket th e case and notify the parties of the same. Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of p ayment of the docket and other lawful fees, the clerk of court of the Court of A ppeals shall docket the case and notify the parties thereof. The appellant shall,within 10 days from receipt of the notice in appeals by reco rd on appeal ,file with the clerk of court 7 clearly legible copies of the appro ved record on appeal, together with the proof of service of 2 copies upon the ap pellee. An unauthorized alteration, omission or addition in the approved record on appea l shall be ground for dismissal of appeal. Any unauthorized alteration, omission or addition in the approved record on appe al shall be a ground for dismissal of the appeal. Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of court of the C ourt of Appeals shall so inform said court and recommend to it measures necessar y to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. Sec. 6. Dispensing with complete record. Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult caus es, the court, on its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits so far available

are sufficient to decide the issues raised in the appeal, and shall issue an ord er explaining the reasons for such declaration. The appellant s brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a digest of the arguments an d page references, and a table of cases alphabetically arranged, textbooks and s tatutes cited with references to the pages where they are cited; (b) An assignment of errors intended to be urged, which errors shall be separate ly, distinctly and concisely stated without repetition and numbered consecutivel y; (c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to t he record; (d) Under the heading "Statement of Facts," a clear and concise statement in a n arrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; (e) A clear and concise statement of the issues of fact or law to be submitted t o the court for its judgment; (f) Under the heading "Argument," the appellant s arguments on each assignment of error with page references to the record. The authorities relied upon shall be c ited by the page of the report at which the case begins and the page of the repo rt on which the citation is found; (g) Under the heading "Relief," a specification of the order or judgment which t he appellant seeks; and (h) In cases not brought up by record on appeal, the appellant s brief shall conta in, as an appendix, a copy of the judgment or final order appealed from. 2005 notes: It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evide nce, oral and documentary, are attached to the record, seven (7) copies of his l egibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. The appellee s brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a digest of the arguments an d page references, and a table of cases alphabetically arranged, textbooks and s tatutes cited with references to the pages where they are cited; (b) Under the heading "Statement of Facts," the appellee shall state that he acc epts the statement of facts in the appellant s brief, or under the heading "Counte r-Statement of Facts," he shall point out such insufficiencies or inaccuracies a s he believes exist in the appellant s statement of facts with references to the p ages of the record in support thereof, but without repetition of matters in the appellant s statement of facts; and (c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The aut horities relied on shall be cited by the page of the report at which the case be gins and the page of the report on which the citation is found. 2005 notes:Within forty-five (45) days from receipt of the appellant s brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof u pon the appellant. 2005 notes:Within twenty (20) days from receipt of the appellee s brief, the appel lant may file a reply brief answering points in the appellee s brief not covered i n his main brief. 2005 notes:In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda wit

hin a non-extendible period of thirty (30) days from receipt of the notice issue d by the clerk that all the evidence, oral and documentary, is already attached to the record. The failure of the appellant to file his memorandum within the period therefor m ay be a ground for dismissal of the appeal. 2005 notes: Extension of time for the filing of briefs will not be allowed, exce pt for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended(sec12). 2005 notes:Where there are several appellants or appellees, each counsel represe nting one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them(sec11) RULE 45 (BAR)APPEAL BY CERTIORARI TO THE SUPREME COURT Certiorari as mode of appeal: From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law, or other courts whenever authorized by law, by filing a petition for review on certiorari with the SC within 15 days from notice of judgment. 2005 notes: Only questions of law may be raised in a petition for certiorari ,al though SC has option to put into account questions of facts raised taking into a ccount the attendant circumstances and decide the same or to refer case to the C A for determination (AFP Mutual Benefit v CA) The 3 Grounds upon which SC dismiss petition: -appeal is w/o merit -prosecuted manifestly for delay -questions raised are too unsubstantial to require consideration 2005 notes: Rule 45 is applicable to both civil and criminal cases except in cri m cases where penalty is death, reclusion perpetua or life imprisonment since SC r eview it by means of automatic review by notice of appeal. (sec9) 2005 notes: Other requirement for petitions filed w/ SC and CA (Cir No. 28-91): a.he has not commenced any other action or proceeding involving the same issues in the SC, CA or other tribunal or agency. b.to the best of his knowledge ,no such action or proceeding is pending before a ny court c.if there is such other action,he must state the status of the same d.if he should thereafter learn that a similar action or proceeding has been fil ed or is pending before any court, he undertakes to promptly inform said courts and such other tribunal or agency w/in 5 days therefrom. Review is discretionary (sec6): A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The followi ng, while neither controlling nor fully measuring the court s discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore de termined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or (b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, a s to call for an exercise of the power of supervision. 2005 notes: A petition for review on certiorari (Rule 45) may be treated as one for certiorari under Rule 65 if it is alleged that the respondents have abused t heir discretion in their questioned actions (Triste v Leyte College Board of Tru stees) CONTENTS OF A PETITION (BAR) FOR REVIEW BY CERTIORARI UNDER THIS RULE ARE:

a.concise statement of matters involved b.the Assignment of errors made in court below c.reasons relied on for allowance of the petition d.accompanied w/ a true copy of judgment sought to be reviewed together w/ 12 co pies of record on appeal, if any and of pettiioner s brief as filed in CA. e.A verified statement of the date when notice of judgment and denial of motion for reconsideration (if any) 1. Question of Law exists when doubt or difference arises as to what the la w is, based on a certain state of facts Question of Fact exists when doubt or difference arises as to the truth or the falsehood of alleged facts What petitioner do at time of the filing of the petition: The petitioner shall pay the corresponding docket and other lawful fees to the c lerk of court of the Supreme Court and deposit the amount of P500.00 for costs a t the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together w ith the petition. 2005 notes: the requirement of proof of service is mandatory, hence, it must be strictly complied with. 2005 notes: the effect of service of copy of petition upon the lower court and t he adverse party is equivalent to notice of appeal. 2005 notes: The findings of facts of the CA are generally final and conclusive u pon the SC (Cayabyab v IAC) Exception: Findings of fact of the CA may be reviewed by the SC on appeal by cer tiorari when: a. The conclusion is a finding grounded entirely on speculations, surmises, or c onjectures; b. The inference made is manifestly mistaken, absurd, or impossible; c. There is grave abuse of discretion; d. The judgment is based on misapprehension of facts; e. Findings of fact of trial court and CA are conflicting; f. The CA, in making its findings, went beyond the issues of the case and the sa me is contrary to the admissions made; g. CA manifestly overlooked certain relevant facts not disputed by the parties a nd which, if properly considered, would justify a different conclusion. 2005 notes: The power of review of CA s decision by the SC is discretionary and wi ll not be granted unless there are special and important reasons therefore. Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that the issues raised involve a pure question of law, and that the m ode of appeal is erroneous. That is the prerogative of the CA, not the RTC judg e. A notice of appeal need not be approved by the judge, unlike a record on app eal. 2005 notes: A party cannot resort to certiorari when appeal is still available s ince the former is proper only when there is no appeal and since certiorari is s anctioned as a patent,capricious and whimsical exercise of discretion by a tri al judge. However, under Echaus v. CA , whenever appeal under 45 is not speedy a nd adequate, then certiorari may be resorted to. (Rule 8 case)A motion to dismiss Norma s complaint was granted ,what is the remedy of Norma against Mario? Remedy of Norma is an appeal by certiorari under Rule 45 of the Rules of court or to file a motion for reconsideration with a reque st to have another summons served on Mario. (Rule 8 case) Suppose motion to dismiss Norma s complaint was denied, what is the remedy of Mario? Recourse of Mario is not an immediate appeal since the order

is interlocutory, however, since the issue raised is lack of jurisdiction over h is person, he may file a petition for certiorari under Rule 65 of the Rules of C ourt (Newsweek v IAC 142 SCRA 171). Defendant X filed a motion to dismiss plaintiff Y s complaint b4 RTC. The court gr ants motion. The remedy of Y is to appeal to CA from the order of dismissal w/ in 15 days from notice thereof by filing w/ RTC a notice of appeal and serving a copy thereof to the adverse party.However, if questions of law is purely in volved, then file a petition for review on certiorari with the SC w/in 15 days a lso However, if the court denies the motion to dismiss of X, X cannot appeal the denial since it is merely interlocutory and only final judgments or orders are subject to appeal (Rule 51) However, he may bring the denial of his motion to a ppellate (superior) courts by filing a petition for certiorari on ground of lac k or excess of jurisdiction or grave abuse of discretion. (Newsweek v. IAC) Rule 45 (Appeal to SC from CA,SB and RTC) Rule 65 (Special Civil law of Grounds are: errors of Action)- the lower court Grounds are: grave abuse of discretion tantamount to lack or excess of jurisdic No need for Motion for Recon tion Motion for Recon generally required (lower court/judge not impleaded) Not an An appeal interlocutory orders rendered be generally Applies to final the impleaded as party in excess/lack of jurisdiction Relatesappeal in judgments (lower court/judge isstrict sense cannot respondent) availed of as substitute for 60 days from notice of judgment,final order or resolution appealed fromassailed 15 lost appeal a sought to be RULE 46 ORIGINAL CASES In all cases originally filed in the Court of Appeals, the party instituting the action shall be called the petitioner and the opposing party the respondent. Sec. 2. To what actions applicable. This Rule shall apply to original actions for certiorari, prohibition, mandamus and quo warranto. Except as otherwise provided, the actions for annulment of judgment shall be gov erned by Rule 47, for certiorari, prohibition and mandamus by Rule 65, and for q uo warranto by Rule 66. 2005 notes: CA exercises exclusive original jurisdiction over all actions for an nulment of judgments of the RTC. Sec. 3. Contents and filing of petition; effect of non-compliance with requireme nts. € The petition shall contain the full names and actual addresses of all the petiti oners and respondents, a concise statement of the matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for. It shall be filed in seven (7) clearly legible copies together with proof of ser vice thereof on the respondent with the original copy intended for the court ind icated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent thereto. The certification s hall be accomplished by the proper clerk of court or by his duly authorized repr esentative, or by the proper officer of the court, tribunal, agency or office in volved or by his duly authorized representative. The other requisite number of c opies of the petition shall be accompanied by clearly legible plain copies of al l documents attached to the original. The petitioner shall also submit together with the petition a sworn certificatio n that he has not theretofore commenced any other action involving the same issu es in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he m ust state the status of the same; and if he should thereafter learn that a simil ar action or proceeding has been filed or is pending before the Supreme Court, t he Court of Appeals, or different divisions thereof, or any other tribunal or ag ency, he undertakes to promptly inform the aforesaid courts and other tribunal o r agency thereof within five (5) days therefrom. The petitioner shall pay the corresponding docket and other lawful fees to the c

lerk of court and deposit the amount of P500.00 for costs at the time of the fil ing of the petition. The failure of the petitioner to comply with any of the foregoing requirements s hall be sufficient ground for the dismissal of the petition. Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over the person of the respondent by the se rvice on him of its order or resolution indicating its initial action on the pet ition or by his voluntary submission to such jurisdiction. 2005 notes: Mere service upon the respondent of copies of the petition does not confer upon the court jurisdiction over the person of the respondent. The servic e of the order or resolution therefore, can be considered as a substitute for th e service of summons which is the normal process by w/c a court acquires jurisdi ction over the person of the respondent. 2005 notes: Suppose upon knowledge by respondent of a petition for certiorari ha ving been filed w/ the CA and w/o the court issuing an order or resolution, he f iled an answer or comment and losses the case, he cannot invoke the fact that the court did not acquire jurisdiction over him since due to his voluntary appea rance by filing of an answer or counterclaim, he is estopped from questioning th e very jurisdiction w/c he invoke. Sec. 5. Action by the court. The court may dismiss the petition outright with specific reasons for such dismi ssal or require the respondent to file a comment on the same within ten (10) day s from notice. Only pleadings required by the court shall be allowed. All other pleadings and papers may be filed only with leave of court. Sec. 6. Determination of factual issues. Whenever necessary to resolve factual issues, the court itself may conduct heari ngs thereon or delegate the reception of the evidence on such issues to any of i ts members or to an appropriate court, agency or office. Sec. 7. Effect of failure to file comment. € When no comment is filed by any of the respondents, the case may be decided on t he basis of the record, without prejudice to any disciplinary action which the c ourt may take against the disobedient party. (BAR) X filed a petition for certiorari b4 the CA questioning the order of the R TC. Y was required to file his comment, but failed to do so. CA decided in favor of Y, hence, X questioned the order contending that it should have been decided in his favor since Y did not file a comment. HELD: X is not correct. The rule does not say that it shall be decided in favor of X right away. If the records would show that position of Y is proper, then co urt may still decide in favor of Y. The situation is akin to a default case wher e the plaintiff failed to prove cause of action, as such, court can still dismis s the case filed by plaintiff. RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS 2005 notes: It is the Court of Appeals that has exclusive original jurisdciton o ver actions for annulment of judgments of the RTC. -- remedy of annulment of judgments of RTC is available in the CA if ordinary re medies of new trial ,appeal, petition for relief or other appropriate remedies are no longer available through no fault of petitioner.. Grounds for annulment of a. Extrinsic fraud not or new trial or petition b. Lack of jurisdiction. Periods: a. For extrinsic fraud judgment of RTC in civil cases: available as a ground if availed of earlier in a motion f for relief 4 years from discovery;

b. Lack of jurisdiction

must be filed before action barred by laches.

2005 notes: Actions are barred by estoppel or laches since if a judgment can be attacked anytime,then , there would be no stability of judgment which is disast rous in the administration of justice. 2005 notes: Normally , if judgment is a total nullity like when the court has no jurisdiction over subject matter, it is void and action does not prescribe. How ever, rule admits of exceptions like laches and estoppel. Effects of judgment of annulment gives the CA authority to order the trial court on motion to try the case if the ground for annulment is extrinsic fraud, but n ot if it is lack of jurisdiction. --> Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is attributable to the plaintiff in the original action. (BAR) A, a grocery owner, sued B before the RTC for payment of some merchandise. When the sheriff failed to effect service of summons on B at Rizal, the address stated in the complaint, the court ordered the publication of summons and a cop y of the complaint in a newspaper of gen circulation in Rizal. Since B is not a nymore residing in Rizal ,he was not anymore aware of the collection suit again st him, he failed to file his answer. He was declared in default and a judgment was in due time rendered against him. One year after date of judgment, a levy on execution was made on B s properties.What remedies ,including provisional ones wo uld B avail? HELD:B could have the judgment of RTC annulled availing of same time the provr em of temporary restraining order and a writ of preliminary injunction against the sheriff to enjoin the execution sale. The annulment should be sought by acti on filed before the intermediate appellate court. Sec. 4. Filing and contents of petition. The action shall be commenced by filing a verified petition alleging therein wit h particularity the facts and the law relied upon for annulment, as well as thos e supporting the petitioner s good and substantial cause of action or defense, as the case may be. The petition shall be filed in seven (7) clearly legible copies, together with s ufficient copies corresponding to the number of respondents. A certified true co py of the judgment or final order or resolution shall be attached to the origina l copy of the petition intended for the court and indicated as such by the petit ioner. The petitioner shall also submit together with the petition affidavits of witnes ses or documents supporting the cause of action or defense and a sworn certifica tion that he has not theretofore commenced any other action involving the same i ssues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, h e must state the status of the same, and if he should thereafter learn that a si milar action or proceeding has been filed or is pending before the Supreme Court , the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribuna l or agency thereof within five (5) days therefrom. Upon filing of an action to annul a judgment, court may either do 2 things: 1.Should the court find no substantial merit in the petition, the same may be di smissed outright with specific reasons for such dismissal. 2.Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the respondent. If petition to annul a judgment is filed, what procedure may be followed: Since it is an original action, a motion to dismiss may be filed. The CA may iss ue a TRO or injunction so as to avoid execution of the judgment especially so th at it has already become final and executory. There may also be trial and if th at is so, then, the CA may refer it to a member of the court or judge of the RTC for reception of evidence. It must not however be referred to the judge who dec

ided the case since the judge may no longer be considered as one with independen t mind insofar as case is concerned. Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order o r resolution and render the same null and void, without prejudice to the origina l action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court ma y on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. Sec. 8. Suspension of prescriptive period. The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality o f the judgment of annulment. However, the prescriptive period shall not be suspe nded where the extrinsic fraud is attributable to the plaintiff in the original action. Sec. 9. Relief available. The judgment of annulment may include the award of damages, attorney s fees and ot her relief. If the questioned judgment or final order or resolution had already been execute d, the court may issue such orders of restitution or other relief as justice and equity may warrant under the circumstances. 2005 notes: An action to annul a judgment or final order of a Municipal Trial co urt shall be filed in the RTC having jurisdiction over the same. It shall be tre ated as an ordinary civil actions and Rule 47 is applicable thereto. (BAR) A filed a complaint for sum of money against B at the RTC,Quezon City, whi ch rendered a judgment in favor of A. B s counsel was furnished a copy of the judg ment but kept it for one month and came to realize later on that he should have appealed from it. He then filed an action for annulment of the judgment w/ CA. I f you were A s counsel, what courtse of action would you undertake. HELD: I would file a motion to dismiss the action on ground that B has no cause of action to file the action/suit to annul the judgment since he lost his right to file a motion for reconsideration, or appeal, or petition for relief though his own fault. It is a requirement that for the remedy of annulment to be availa ble ,the loss of such rights must be through no fault of B,the petitioner. If you were the ponente, how would you decide? I would dismiss the action for same reasons stated above. Since action to annul is not a matter of right as it is subject to the condition that the right to fil e motion for recon should not have been lost through thefault of the petitioner. The facts are clear that B s counsel was negligent and his negligence is attributa ble to B. Lastly since the availment of the right is subject to a condition, the non-compliance with the condition would not warrant the exercise of such right. 2005 notes: After compromise judgment, and ent of agreement, the other party may file judgment under Rule 47 since a compromise nd an order denying a motion to set aside a lable. if other party moved for the amendm petition in CA for the annulment of judgment is immediately executory a judgment by compromise is not appeal

(RULE 38..) A decision of the RTC adverse to Delia was received by her counsel on Jan 13,1994. As Delia was leaving for Canada she forthwith instructed her co unsel to appeal because she was prevented from fully presenting her case in cour t through fraudulent acts of the prevailing party. When she returned abroad on Aug 1,1994, she discovered that her case was not appealed as her counsel had die d a day after she left. Moreover, the other party has filed a motion for issuanc e or a writ of execution which remains pending in court. As new counsel, what co urse will you pursue to protect her interest? I would file an action for annul ment of the judgment with the CA on ground of extrinsic and collateral fraud s

ince my client was prevented from fully presenting her case in court through f raudulent acts of the prevailing party. RULE 48 PRELIMINARY CONFERENCE At any time during the pendency of a case, the court may call the parties and th eir counsel to a preliminary conference: (a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised; (b) To define, simplify and clarify the issues for determination; (c) To formulate stipulations of facts and admissions of documentary exhibits, l imit the number of witnesses to be presented in cases falling within the origina l jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other latters which may aid the court in the prompt disposit ion of the case. Sec. 2. Record of the conference. The proceedings at such conference shall be re corded and, upon the conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations and admissions made, and the iss ues defined. Sec. 3. Binding effect of the results of the conference. Subject to such modific ations which may be made to prevent manifest injustice, the resolution in the pr eceding section shall control the subsequent proceedings in the case unless, wit hin five (5) days from notice thereof, any party shall satisfactorily show valid cause why the same should not be followed. RULE 49 ORAL ARGUMENT Section 1. When allowed. At its own instance or upon motion of a party, the cour t may hear the parties in oral argument on the merits of a case, or on any mater ial incident in connection therewith. The oral argument shall be limited to such matters as the court may specify in i ts order or resolution. Sec. 2. Conduct of oral argument. Unless authorized by the court, only one counsel may argue for a party. The dura tion allowed for each party, the sequence of the argumentation, and all other re lated matters shall be as directed by the court. Sec. 3. No hearing or oral argument for motions. Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse party may file objections to the motion within five (5) days from service, upon the e xpiration of which such motion shall be deemed submitted for resolution. RULE 50 DISMISSAL OF APPEAL Grounds for dismissal of appeal by the CA: a. Failure of the record on appeal to show on its face that the appeal was taken within the reglamentary period; b. Failure to file the notice of appeal or record on appeal within the period; c. Failure of the appellant to pay the docket and other lawful fees; d. Unauthorized alterations, omissions, or additions in the approved record on a ppeal; e. Failure of the appellant to serve and file the required number of copies of h is brief or memorandum within the time provided; f. Absence of specific assignment of errors in appellants brief or page referenc es to the record; g. Failure of the appellant to take necessary steps for the completion or correc tion of the record within the time limited by the order; h. Failure of appellant to appear at the preliminary conference or to comply wit h orders, circulars, or directives of the court without justifiable cause i. Judgment or order appealed from is not appealable. (BAR) A filed a complaint before the RTC vs B. The court rendered a judgment in

favor of A,hence, B appealed to the CA raising pure questions of law. If you wer e the ponente on appeal, what would you do? HELD: Dismiss the appeal on ground that the appeal raised pure questions of law ,whereby such can be reviewed only by the SC. Furthermore, an appeal erroneousl y taken to the CA shall not be transferred to the appropriate court but shall be dismissed outright. 2005 notes: An appeal may be withdrawn as of right at any timebefore the filing of the appellee s brief. Thereafter, the withdrawal may be allowed in the discret ion of the court (sec3). RULE 51:JUDGMENT 1. Memorandum decisions are permitted in the CA. 2. After judgment or final resolution of the CA and dissenting or separate opini ons if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and caus e true copies to be served upon parties or counsel. 3. Date when judgment or final resolution becomes executory shall be deemed as d ate of entry. A case shall be deemed submitted for judgment: A. In ordinary appeals.1) Where no hearing on the merits of the main case is held, upon the filing of t he last pleading, brief, or memorandum required by the Rules or by the court its elf, or the expiration of the period for its filing. 2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the c ourt, or the expiration of the period for its filing. B. In original actions and petitions for review.1) Where no comment is filed, upon the expiration of the period to comment. 2) Where no hearing is held, upon the filing of the last pleading required or pe rmitted to be filed by the court, or the expiration of the period for its filing . 3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or perm itted to be filed by the court, or the expiration of the period for its filing. Sec. 2. By whom rendered. € The judgment shall be rendered by the members of the court who participated in t he deliberation on the merits of the case before its assignment to a member for the writing of the decision. Sec. 3. Quorum and voting in the court. € The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do no t reach a unanimous vote, the clerk shall enter the votes of the dissenting Just ices in the record. Thereafter, the Chairman of the division shall refer the cas e, together with the minutes of the deliberation, to the Presiding Justice who s hall designate two Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of five Just ices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rule and the concu rrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. 2005 notes: SC may affirm decisions of lower courts on other grounds since there may have been errors committed or points ignored by the trial courts(Valdez v T uazon) 2005 notes: If appellate court find material errors in the proceedings, it shoul d remand the case for retrial. If new trial is not necessary, it may reverse the judgment and remand it with directions to the lower court to enter a particular judgment (Hilario v Hicks)

2005 notes: The above cited rule is not absolute since remand is not necessary i f the SC can resolve the dispute on the basis of the records before it (Montinol a v IAC) Sec. 4. Extent of Power of CA in an appeal case. The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. 2005 notes: Reversal of decision on appeal as against a party who did not appeal is binding on parties to the suit but does not inure to the benefit of parties who did not join in the appeal (Cayaba v CA) Sec. 5. Form of decision. Every decision or final resolution of the 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 from those set forth in the decision, order, or resolution appealed fro m. 2005 notes: findings of facts of the trial court are binding on appeal, since it should be given great weight and should not be disturbed unless for strong and cogent reasons (Shaf v CA) 2005 notes: An appellee who did not appeal cannot obtain any affirmative relief, he can only obtain what he get from the lower court (De Lima v LTC) Exceptions to the rule that damages in favor of appellee who did not appeal may not be increased: a.award of legal interest at the discretion of the court under art 2210,NCC. b.award of attorney s fees c.exemplary damages may be increased in favor of the appellee( Echaus v CA) Sec. 6. Harmless error. No error in either the admission or the exclusion of evidence and no error or de fect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take s uch action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. Sec. 7. Judgment where there are several parties. In all actions or proceedings, an appealed judgment may be affirmed as to some o f the appellants, and reversed as to others, and the case shall thereafter be pr oceeded with, so far as necessary, as if separate actions had been begun and pro secuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. Sec. 8. Not all errors may be assigned on appeal be resolve No error which does not affect the jurisdiction over the subject matter or the v alidity of the judgment appealed from or the proceedings therein will be conside red unless stated in the assignment of errors, or closely related to or dependen t on an assigned error and properly argued in the brief, save as the court may p ass upon plain errors and clerical errors. Sec. 9. Promulgation and notice of judgment. € After the judgment or final resolution and dissenting or separate opinions, if a ny, are signed by the Justices taking part, they shall be delivered for filing t o the clerk who shall indicate thereon the date of promulgation and cause true c opies thereof to be served upon the parties or their counsel 2005 notes: Memorandum decision is allowable under the Rules, but the decision i tself w/c incorporates by reference the decision appealed from must provide for direct access to the facts and law being adopted , which must be contained in a

statement attached to the said decision (Francisco v Permskul) Sec. 10. Entry of judgments and final resolutions. € If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final resolution shall forthwith be en tered by the clerk in the book of entries of judgments. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the judgment or final resolution and shall be signed by the clerk, with a certificat e that such judgment or final resolution has become final and executory. Sec. 11. Execution of judgment. Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the motion for its execution may only be f iled in the proper court after its entry. In original actions in the Court of Appeals, its writ of execution shall be acco mpanied by a certified true copy of the entry of judgment or final resolution an d addressed to any appropriate officer for its enforcement. (BAR) Where should the prevailing party file the motion for execution if judgme nt was appealed and it became final and executory on appeal? It shall be filed at the court of origin where the prevailing party shall submit certified true copies of the judgment of the appellated court and the entry the reof (sec1,Rule 39) (BAR) Where should prevailing party file a motion for execution in an original c ase filed w/ the CA or SC? He should file it w/ CA or SC which shall issue the writ of execution directed t o an appropriate officer for its execution or enforcement (sec11) 2005 notes: The appropriate officer need not even be a sheriff. It is sufficient if he is a responsible officer. It can even be a police officer but this is a d iscretionary act of the Court as to who the officer shall be. (BAR) If motion for execution pending appeal is filed with the CA, what shall la tter do after granting it? In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a time that it is in possession of the original record or t he record on appeal, the resolution granting such motion shall be transmitted to the lower court from which the case originated, together with a certified true copy of the judgment or final order to be executed, with a directive for such co urt of origin to issue the proper writ for its enforcement (sec11). RULE 52:MOTION FOR RECONSIDERATION Section 1. Period for filing. A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15) days from notice thereof, with proof of service on the adver se party. Sec. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the sa me party shall be entertained. Sec. 3. Resolution of motion. In the Court of Appeals, a motion for reconsideration shall be resolved within n inety (90) days from the date when the court declares it submitted for resolutio n. Sec. 4. Stay of execution. The pendency of a motion for reconsideration filed on time and by the proper par ty shall stay the execution of the judgment or final resolution sought to be rec onsidered unless the court, for good reasons, shall otherwise direct. RULE 53:NEW TRIAL Section 1. Period for filing; ground.

At any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due di ligence and which is of such a character as would probably change the result. Th e motion shall be accompanied by affidavits showing the facts constituting the g rounds therefor and the newly discovered evidence. Sec. 2. Hearing and order. € The Court of Appeals shall consider the new evidence together with that adduced at the trial below, and may grant or refuse a new trial, or may make such order, with notice to both parties, as to the taking of further testimony, either oral ly in court, or by depositions, or render such other judgment as ought to be ren dered upon such terms as it may deem just. (BAR)Does it mean that when a motion for new trial on the ground of newly discov ered evidence is filed, the CA will conduct a trial like what is being done in t rial courts? HELD: Yes, Sec 4 provides: Unless the court otherwise directs, the procedure in t he new trial shall be the same as that granted by a Regional Trial Court . It fur ther provides that CA may issue an order for taking of further testimony ,either orally in court or by depositions (sec2) In short, CA conducts trial like a tri al court does. Sec. 3. Resolution of motion. € In the Court of Appeals, a motion for new trial shall be resolved within ninety (90) days from the date when the court declares it submitted for resolution. RULE 54 INTERNAL BUSINESS Section 1. Distribution of cases among divisions. All the cases of the Court of Appeals shall be allotted among the different divi sions thereof for hearing and decision. The Court of Appeals, sitting en banc, s hall make proper orders or rules to govern the allotment of cases among the diff erent divisions, the constitution of such divisions, the regular rotation of Jus tices among them, the filling of vacancies occurring therein, and other matters relating to the business of the court; and such rules shall continue in force un til repealed or altered by it or by the Supeme Court. Sec. 2. Quorum of the Court. A majority of the actual members of the court shall constitute a quorum for its session en banc. Three members shall constitute a quorum for its sessions of a d ivision. The affirmative votes of the majority of the members present shall be n ecessary to pass a resolution of the court en banc. The affirmative votes of thr ee members of a division shall be necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the writing o f the opinion by any member of the division. RULE 55 :PUBLICATION OF JUDGMENTS AND FINAL RESOLUTION Section 1. Publication. The judgments and final resolutions of the court shall be published in the Offic ial Gazette and in the Reports officially authorized by the court in the languag e in which they have been originally written, together with the syllabi therefor prepared by the reporter in consultation with the writers thereof. Memoranda of all other judgments and final resolutions not so published shall be made by the reporter and published in the Official Gazette and the authorized reports. Sec. 2. Preparation of opinions for publication. The reporter shall prepare and publish with each reported judgment and final res olution a concise synopsis of the facts necessary for a clear understanding of t he case, the names of counsel, the material and controverted points involved, th e authorities cited therein, an a syllabus which shall be confined to points of law. Sec. 3. General make-up of volumes.

The published decisions and final resolutions of the Supreme Court shall be call ed "Philippine Reports," while those of the Court of Appeals shall be known as t he "Court of Appeals Reports." Each volume thereof shall contain a table of the cases reported and the cases cited in the opinions, with a complete alphabetical index of the subject matters of the volume. It shall consist of not less than s even hundred pages printed upon good paper, well bound and numbered consecutivel y in the order of the volume published. € RULE 56 PROCEDURE IN THE SUPREME COURT Original cases cognizable exclusive list: a. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus; b. Disciplinary proceedings against judges and attorneys; c. Cases affecting ambassadors, other public ministers, and consuls. Grounds for dismissal of appeal in the SC a. Failure to take appeal within the reglementary period; b. Lack of merit in the petition; c. Failure to pay the requisite docket fee and other lawful fees or to make depo sit for costs; d. Failure to comply with the requirements regarding proof of service and conten ts of and the documents which should accompany the petition; e. Failure to comply with any circular, directive or order of the SC without jus tifiable cause; f. Error in choice or mode of appeal g. Case is not appealable to the SC. Discretionary upon SC (and CA) to call for preliminary conference similar to pre -trial. General Rule: Appeal to SC by notice of appeal shall be dismissed. Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same oc casion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Section 3, Rule 122) REPEALED ALREADY, since in Pp v Mateo, automatic review is now veste d in the CA. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision or appropriate action, without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 45. 2005 notes: If appeal is taken to the wrong court, it shall be dismissed and it shall not toll the running of the prescriptive period. The judgment becomes fina l and executory. This rule is equally applicable in case of error in the choice or mode of appeal (Rule 56) . 2005 notes: The practice of remanding the case to proper court has already been done away by the rules (rule 56) (BAR) X filed a case w/ RTC. After judgment ,he filed an appeal by certiorari w/ the SC citing issues of facts .State cause of action that SC may take. HELD: It may refer to the CA for decision or appropriate action. Note that this is an exception to the general rule that if appeal is taken to wrong court it sh all be dismissed. Sec. 7. Procedure if opinion is equally divided. Where the Court en banc is equa lly divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the Court shall be dismissed; in appealed cases , the judgment or order appealed from shall stand affirmed; and on all incidenta l matters, the petition or motion shall be denied.

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