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10
CIVIL PROCEDURE
RULE 1 GENERAL PROVISIONS Statutes regulating the procedure of courts will be construed as applicable to actions pending and undetermined at the time of their passage so long as vested rights will not be impaired. Under the 1987 Constitution, the rulemaking power of the Supreme Court has the following limitations: 1. shall provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade, and 3. Shall not diminish, increase or modify substantive rights (Art. VIII Sec. 5[5]). Section 3. Cases governed. ACTION CLAIM
An ordinary suit in a court of justice A right possessed by one against another
Judgment is Judgment is Judgment binding on the binding only binding upon whole world upon parties particular impleaded or persons, but their the real motive successors in is to deal with interest real property or to subject said property to certain claims. Ex. Land Ex. action to Ex. Unlawful registration recover detainer or case; probate damages; forcible entry; proceedings action for judicial for allowance breach of foreclosure of of a will. contract mortgage.
One party prosecutes The moment said another for the claim is filed before a enforcement or court, the claim is protection of a right converted into an or the prevention or action or suit. redress of a wrong.
PERSONAL ACTION
MIXED ACTION
Formal demand of Special features not ones legal rights in a found in ordinary civil court of justice in the actions manner prescribed by the court or by the law
Ownership or personal property is Both real and possession of sought to be personal real property is recovered or where properties are involved damages for breach involved of contract are sought Founded on Founded on privity Founded on privity of of contract both estate ex. Accion Ex. Action for a sum ex. Accion reinvidicatoria of money publiciana with a claim for damages
The distinction is significant in the determination of venue. With respect to mixed actions, the rules on venue of real actions shall govern, i.e., where the real property is located.
TRANSITORY ACTION
Generally, must be brought where the party resides regardless of where the cause of action arose
Section 6. Construction. General Rule: Liberal construction . Exceptions: a. reglementary periods b. rule on forum shopping RULE 2 CAUSE OF ACTION Section 2. Cause of Action, defined. Essential elements of cause of action 1. Existence of a legal right of the plaintiff; 2. Correlative legal duty of the defendant to respect ones right; 3. Act or omission of the defendant in violation of the plaintiffs legal right; and 4. Compliance with a condition precedent. CAUSE OF ACTION RIGHT OF ACTION
delict or wrongful act remedial right or right or omission committed to relief granted by by the defendant in law to a party to violation of the institute an action primary rights of the against a person who plaintiff has committed a delict or wrong against him The reason for the the remedy or means action afforded or the consequent relief the formal statement right that is given of alleged facts the right to litigate because of the occurrence of the alleged facts Determined by facts determined by as alleged in the substantive law complaint and not the prayer therein
Ex. Action to recover Ex. Action to recover real property sum of money
Section 5. Commencement of action. An action is commenced by: 1. filing of the complaint (the date of the filing determines whether or not the action has already prescribed); and 2. payment of the requisite docket fees (determined on the basis of the amount of the claim including the damages indicated in body or the prayer of the pleading) It is not simply the filing of the complaint or the appropriate initiatory pleading but also the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period. An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court. The date of the filing of an amended complaint joining additional defendant is the date of the commencement of the action with regard to such additional defendant.
RELIEF
REMEDY
SUBJECT MATTER
the redress, the the thing, protection, procedure or wrongful act, award or type of contract or coercive action which property measure which may be which is
the plaintiff prays the court to render in his favor as a consequence of the delict committed by the defendant
availed of by directly the plaintiff involved in the as the means action, to obtain the concerning desired which the relief wrong has been done and with respect to which the controversy has arisen.
Section 4. Splitting a single cause of action, effect of. SPLITTING OF CAUSE OF ACTION is the practice of dividing one cause of action into different parts and making each part subject of a separate complaint. Applies NOT only to complaints but also to counterclaims and crossclaims. Remedy against splitting a single cause of action: A. Motion to dismiss on the ground of: Litis pendentia, if the first complaint is still pending (Rule 16, Sec. 1[e]); or Res judicata, if any of the complaints is terminated by final judgment (Rule 16, Sec. 1[f]) B. An answer alleging either of the above-cited grounds as affirmative defense (Rule 16, Sec. 6) General Rule on Divisible Contract A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. Doctrine of Anticipatory Breach Even if the contract is divisible in its performance and the future periodic deliveries are not yet due, if the obligor has already manifested his refusal to comply with his future periodic obligations, the contract is entire and the breach total, hence there can only be one action for damages (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)
Section 6. Misjoinder of causes of action. Not a ground for dismissal of an action. A misjoined cause of action may be severed and proceeded with separately.
Impleading the beneficiary as a party in the suit is now mandatory, in cases allowed to be prosecuted or defended by a representative. CLASSIFICATION OF PARTIES IN INTEREST 1. Indispensable parties those without whom no final determination can be had of an action. (must be joined) 2. Necessary (or proper) parties those who are not indispensable but ought to be parties 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. (may or may not be joined) 3. Representative parties someone acting in fiduciary capacity. Maybe a trustee, guardian, executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal 4. Pro forma parties those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Sec. 4. 5. Quasi parties those in whose behalf a class or representative suit is brought. Section 5. persons. Minor or incompetent
REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION: 1. he must be a natural or juridical person or an entity authorized by law; 2. he must have a legal capacity to sue; and 3. he must be the real party in interest. PLAINTIFFS- Those having an interest in the subject matter of the action or in obtaining the relief demanded. DEFENDANTS: 1. persons who claim an interest in the controversy or the subject thereof adverse to the plaintiff; or 2. who are necessary to a complete determination or settlement of the questions involved therein; or 3. all those who ordinarily should be joined as plaintiffs but who do not consent thereto, the reason therefore being stated in the complaint. Neither a dead person nor his estate may be a party plaintiff in a court actionConsidering that capacity to be sued is correlative of the capacity to sue, to the same extent, a decedent does not have the capacity to be sued and may not be named a party defendant in a court action (Ventura vs. Militante 316 SCRA 226). Section 3. Representatives as parties. REAL PARTY IN INTEREST the party who stands to be benefited in the suit or the party entitled to the avails of the suit.
Under the present rule, a person need not be judicially declared to be incompetent in order that the court may appoint a guardian ad litem. It is enough that he be alleged to be incompetent. The suit can be brought by or against the minor or incompetent person personally BUT with the assistance of his parents or guardian.
Section parties.
6.
Permissive
joinder
of
PERMISSIVE JOINDER the aggregate sum of all the claims, determines the jurisdiction of the court. Requisites of permissive joinder of parties. 1. Right to relief arises out of the same transaction or series of transactions; 2. There is a question of law or fact common to all the plaintiffs or defendants; and 3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue. SERIES OF TRANSACTIONS transactions connected with the same subject of the action. INDISPENSABLE PARTIES
The action cannot proceed unless they are joined No valid judgment if indispensable party is not joined
SOLIDARY DEBTORS either is indispensable and the other is not even a necessary party because complete relief may be obtained from either. Section 9. Non-joinder of necessary parties to be pleaded. The non-inclusion of a necessary party may be excused only on meritorious grounds. The court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant. The only sanction for failure to implead a necessary party when ordered by the court and jurisdiction can be obtained over said party is a waiver of the claim against him. This is considered as an exception to the provision on penalties imposed on a disobedient party under Sec. 3 of Rule 17 which would have entailed the dismissal of the complaint itself. Section 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action. Objections to defects in parties should be made at the earliest opportunity the moment such defect becomes apparent by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded. If there is misjoinder, a separate action should be brought against the party misjoined. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.
NECESSARY PARTIES
The action can proceed even in the absence of some necessary parties The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined
They are those with They are those whose such an interest in the presence is necessary controversy that a to adjudicate the final decree would whole controversy but necessarily affect their whose interests are so rights so that the court far separable that a cannot proceed final decree can be without their presence made in their absence without affecting them
JOINT DEBTORS indispensable party with respect to own share and a necessary party with respect to the share of the others.
Section 12. Class suit. REQUISITES OF A CLASS /REPRESENTATIVE SUIT. 1. subject matter of the controversy is one of common or general interest to many persons; 2. parties affected are so numerous that it is impracticable to bring them all before the court; 3. parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned. Class Suit
There is one single cause of action pertaining to numerous persons
Section 15. Entity without juridical personality as defendant. They may be sued under the name by which they are generally known, but they cannot sue under such name for lack of juridical personality. The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. (Sec. 8, Rule 14) INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. Death of party; duty of counsel (Sec. 16) This provision applies where the claim is not thereby extinguished as in cases involving property and property rights such as: 1. recovery of real and personal property against the estate. 2. enforcement of liens on such properties 3. recovery for an injury to person or property by reason of tort or delict committed by the deceased. In this case, the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. In case of minor heirs, the court may appoint a guardian ad litem for them. The substitute defendant need not be summoned. The ORDER OF SUBSTITUTION shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party
Section 14. Unknown identity or name of defendant. Requisites: 1. there is a defendant 2. his identity or name is unknown 3. fictitious name may be used because of ignorance of defendants true name and said ignorance is alleged in the complaint 4. identifying description may be used: sued as unknown owner, heir, devisee, or other designation 5. amendment to the pleading when identity or true name is discovered 6. defendant is the defendant being sued, not a mere additional defendant Service of summons upon a defendant whose identity is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14 of Rule 14.
Place where the action Power of the court to is instituted hear and decide a case May be waived Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot be waived Substantive
Requisites: 1. The action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely incidental thereto. 2. The claim, subject of the action, arose from a contract, express or implied, entered into by the
Procedural
May be changed by the Cannot be the subject written agreement of of the agreement of the parties the parties
The Court should not dismiss the complaint or counterclaim if they are not verified. The requirement is merely a formal one, and not jurisdictional. It should therefore simply direct the party concerned to have it verified. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE. 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon) 2. Motion for a bill of particulars 3. Motion for a new trial or for reconsideration of a judgment or for reopening of trial 4. Petition for relief from judgment 5. Motion for extension of time to file pleadings, affidavits, or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third party complaints 12. Interventions The filing of a prohibited pleading will not suspend the period to file an answer or to appeal. Although a motion to dismiss is a prohibited pleading, its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. While a motion to declare the defendant in default is prohibited by the rules on
W/in 10 days from receipt of summons, defendant answers, incoporating compulsory counterclaim or crossclaim, and serves a copy on plaintiff
If Defendant fails to answer in 10 days The court, motu propio or on plaintiffs motion, may render judgment based on facts alleged in the complaint w/o prejudice to R9, S3 (c)
If plaintiff fails to appear in prelim conference, complaint may be dismissed. Defendant entitled to decision based on his counterclaim. All crossclaims dismissed.
If sole defendant fails to appear, plaintiff entitled to judgment based on complaint and what is proved therein
W/in 10 days from receipt of order, submission by the parties of affidavits and
position papers
Rendition of judgment w/in 30 days from receipt of last affidavit, or w/in 15 days after last
clarificatory paper
CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW: 1. Where one party is the government or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; 4. Offenses where there is no private offended party; 5. Where the dispute involves real properties located in different cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, EXCEPT where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 7. Such other classes of disputes which the President may determine in the interest of justice. However, the court may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement, non criminal cases not falling within the authority of the latter. While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay.
No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication UNLESS 1. there has been a confrontation between the parties before the lupon chairman or pangkat, AND 2. that no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto.
PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. Pleadings defined. PLEADINGS the written allegations of the parties of their respective claims and defenses submitted to the court for appropriate judgment. A motion to dismiss is NOT a pleading . It is the allegations or averments in the pleading that determines the jurisdiction of the court and the nature of the action. PLEADING MOTION
It relates to the cause An application for an of action; interested order not included in in the matters to be the judgment included in the judgment. May be initiatory Cannot be initiatory as they are always made in a case already filed in court May be filed even after judgment
Section 3. Complaint. COMPLAINT is a concise statement of the ultimate facts constituting the plaintiffs cause or causes of action, with
Settlement
Award to be made after the lapse of the period to repudiate and w/in 10 days thereafter
Pangkat convenes not later than 3 days from its constitution and summons the parties
Pangkat must arrive at a settlement w/in 15 days from the day it convenes
Conciliation (hearing)
Settlement
Note: Repudiation shall only be allowed on ground of vitiation of consent by fraud, violence or intimidation. Failure of Conciliation hearings at the Pangkat Level and of Arbitration hearings shall also lead to the issuance of certification for filing a complaint in court.
DOCTRINE OF ANCILLARY JURISDICTION In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6 ). If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived (Agustin vs. Bacalan). In Calo vs. Ajax Intl, the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. COMPULSORY COUNTERCLAIM PERMISSIVE COUNTERCLAIM
Section 8. Cross-claim CROSS-CLAIM any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or counterclaim. If it is not set up in the action, it is barred, except: 1. when it is outside the jurisdiction of the court or; 2. if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. In which case, the considered permissive. cross-claim is
One which arises out It does not arise out of of or is necessarily nor is it necessarily connected with the connected with the transaction or subject matter of the occurrence that is the opposing partys subject matter of the claim. opposing partys claim. It does not require for It may require for its its adjudication the adjudication the presence of third presence of third parties of whom the parties over whom the court cannot acquire court cannot acquire jurisdiction. jurisdiction. It is barred if not set up in the action. Need not be answered; no default. It is NOT barred even if not set up in the action. Must be answered, otherwise, the defendant can be declared in default.
The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking affirmative relief. Cross Claim Counterclaim 3rd-party Complaint
Against a co- Against an Against a party opposing party person not a party to the action Must arise out of the transaction that is the subject matter of the orig. action or of a counterclaim therein. May arise out of Must be in or be necessarily respect of connected with the the transaction opponents or that is the claim subject matter (Plaintiff) of the opposing partys claim, in which case, it is called a compulsory counterclaim, or it may not, in which case it is called a permissive counterclaim.
GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. EXCEPTION: If it is an after-acquired counterclaim, that is, such claim matured after filing of the answer. In this case, it may be pleaded by filing an amended answer or a supplemental answer or pleading.
Section 10. Reply. REPLY - the response of the plaintiff to the defendants answer.
Leave of court to file a third-party complaint may be obtained by motion under Rule 15. Summons to new party (third, fourth, etc.) is needed for the court to obtain jurisdiction over his person, since he is not an original party. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central Surety & Insurance Co. L-27802, Oct. 26, 1968). Section 12. Bringing new parties.
COMPLAINT IN INTERVENTION
Same
Initiative is with the Initiative is with a person already a party non-party who seeks to the action. to join the action.
Distinguished from 3rd-party complaint: A 3rd-party complaint is proper when not one of the third-party defendants therein is a party to the main action. But if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under this section. RULE 7 PARTS OF A PLEADING Section 3. Signature and address. The signature of the counsel is a certification that: 1. That he has read the pleading; 2. There is good ground to support it; and 3. It is not interposed for delay Only the original copies must be signed. UNSIGNED PLEADING may be stricken out as sham and false, and the action may proceed as though the pleading has not been served. It has no legal effect. Section 4. Verification. Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules. A verification must now be based on personal knowledge or based on authentic records.
TESTS to determine whether the thirdparty complaint is in respect of plaintiffs claim: 1. Where it arises out of the same transaction on which the plaintiffs claim is based, or, although arising out of another or different transaction, is connected with the plaintiffs claim; 2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim against the original defendant; and 3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiffs claim.
Certificate of non-forum shopping is not required in a compulsory counterclaim (UST Hosp. vs. Surla). EFFECT OF FAILURE TO COMPLY: 1. Not curable by amendment of said pleading 2. shall be cause for the dismissal of the case, without prejudice, unless otherwise provided, upon motion and after hearing EFFECT OF SUBMISSION OF FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN: 1. indirect contempt 2. administrative and criminal actions EFFECT OF WILFULL AND DELIBERATE FORUM SHOPPING: 1. shall be ground for summary dismissal of the case with prejudice; 2. direct contempt. RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING
Two permissible ways of pleading an actionable document: 1. By setting forth the substance of such document in the pleading and attaching said document thereto as an annex (contents of the document annexed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached); or 2. By setting forth said document verbatim in the pleading. Where the actionable document is properly alleged, the failure to specifically deny under oath the same results in: 1. The admission of the genuineness and due execution of said document, EXCEPT that an oath is not required: a. When the adverse party was not a party to the instrument; and b. When an order for the inspection of the original document was not complied with. 2. The document need not be formally offered in evidence. GENUINENESS That the document is not spurious, counterfeit, or of different import on its face from the one executed by the party, or that the party whose signature it bears has signed it and that at the time it was signed it was in words and figures exactly as set out in the pleadings. DUE EXECUTION That the document was signed voluntarily and knowingly by the party whose signature appears thereon. Defenses that the opposing party may set up even after failure to deny under oath: 1. Mistake; 2. fraud;
of
BUT the following defenses are waived: a. forgery in the signature; b. want of authority of an agent or corporation; c. want of delivery; or d. the party charged signed the instrument in some other capacity Section 10. Specific Denial THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. By specifically denying each material allegation of the other party and, whenever possible, setting forth the substance of the matters relied upon for such denial; 2. Part admission or part denial; 3. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing partys pleading (must be made in good faith). A denial must not be general. A general denial is regarded as an admission of the facts stated in the complaint and entitles plaintiff to a judgment on the pleadings. NEGATIVE PREGNANT a form of denial which at the same time involves an affirmative implication favorable to the opposing party; It is in effect, an admission of the averment to which it is directed; It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. Section 11. Allegation not specifically denied deemed admitted. GENERAL RULE: Allegations NOT specifically denied deemed admitted
NO default may be declared in the following actions: 1. Annulment of marriage 2. Declaration of nullity of marriage 3. Legal Separation 4. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed The court cannot motu proprio declare a defendant in default. For defendant to be declared in default, the plaintiff must: 1. File a MOTION to declare defendant in default 2. Prove that summons have been properly served on the defendant 3. Prove that the defendant really failed to answer within the proper period. CAUSES OF DEFAULT 1. Failure to answer within the proper period 2. Non-compliance with the order of the court to file a bill of particulars or in case of insufficient compliance therewith (Rule 12, Section 4) 3. Refusal to comply with the modes of discovery (Rule 29, Section 3, par. c) 4. Failure to furnish plaintiff with a copy of the answer If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint, hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default. EFFECT OF ORDER OF DEFAULT: 1. While the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings.
issued by the court, Rendered by the court on plaintiffs motion following a default for failure of the order or after it defendant to file his received, ex parte, responsive pleading plaintiffs evidence. seasonably.
DEFAULT
After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default
Defendant answers Motion granted: Court issues order of default and renders judgment, or require plaintiff to submit evidence ex parte.
Before judgment by default is rendered, defendant may: 1. move to set aside order of default upon showing: a. FAME b. He has a meritorious defense 2. Avail of Rule 65 in proper cases
Motion for new trial or reconsideration at any time after service of judgment by default and within 15 (30) days therefrom
Perfect appeal from said judgment by default within the balance of said 15 (30) - day period
Court sets aside order of default and defendant is allowed to file an answer
Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof
PARTIAL DEFAULT:
EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT BY DEFAULT: Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages. RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS AMENDMENTS Section 1. Amendments in general. When the complaint is amended, 2 situations may arise: 1. If the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint; 2. If the amended complaint alleges a new cause of action, then that cause of action is deemed commenced upon the filing of the amended complaint. Section 2. Amendments as a matter of right. Amendment for the first time is a matter of right before a responsive pleading is filed, or in case of a Reply, within 10 days after it was served. Since a motion to dismiss is NOT a responsive pleading, an amendment may be had even if an order of dismissal has been issued as long as the amendment is made before order of dismissal becomes final. Section 3. Amendments by leave of court. Instances when amendment by leave of court may not be allowed: 1. When cause of action, defense or theory of the case is changed; 2. Amendment is intended to confer jurisdiction to the court;
Refers to facts Refers to facts arising existing at the time of after the filing of the the commencement original pleading. of the action. Take the place of the Taken together with original pleading. the original pleading. Can be made as a Always with leave of matter of right as court when no responsive pleading has yet been filed
Section 7. Filing of amended pleadings. The amended pleading supersedes the original pleading. An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the
Section 3. By whom served. Summons may be served by: 1. Sheriff 2. Sheriffs deputy, or 3. Other proper court officers, or 4. For justifiable reasons, by any suitable person authorized by the court issuing the summons. Enumeration is EXCLUSIVE. ALIAS SUMMONS issued when original has not produced its effect because it is defective in form or manner of service, and when issued, supersedes the first (Section 5). KINDS 1. 2. 3. OF SERVICE OF SUMMONS: personal service substituted service by publication
In actions in personam where the defendant cannot be served with summons personally or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed. (Citizens Surety vs. Court Appeals) SERVICE OF SUMMONS ON DIFFERENT ENTITIES
Service on entity Upon any or all w/o juridical defendants being sued personality under common name; or person in charge of office Service upon minors and incompetents In case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. In case of incompetents: by serving on him personally AND upon his legal guardian, but not
Extraterritorial service
Section 20. Voluntary appearance. Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the
9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished 10. Claim is unenforceable under the Statute of Frauds 11. Non-compliance with a condition precedent for filing claim MOTION TO DISMISS MOTION TO DISMISS UNDER RULE 16 UNDER RULE 33 (demurrer to evidence)
Grounded on preliminary objections. based on insufficiency of evidence.
may be filed by any May be filed only by defending party the defendant against against whom a claim the complaint of the is asserted in the plaintiff. action. should be filed within May be filed only after the time for but prior the plaintiff has to the filing of the completed the answer of the presentation of his defending party to the evidence. pleading asserting the claim against him. If denied, defendant If denied, defendant answers, or else he may present evidence may be declared in if granted, plaintiff default appeals and the Order If granted, plaintiff of the dismissal is may appeal or if reversed, the subsequent case is not defendant loses his barred, he may re-file right to present the case evidence.
Effect of motion to dismiss: A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. However, such admission is limited only to all material and relevant facts which are well pleaded in the complaint. An action cannot be dismissed on a ground not alleged in the motion even if said ground is provided for in Rule 16.
Section 5. Effect of dismissal GENERAL RULE: The action or claim may be refiled. EXCEPTION: The action cannot be refiled if it was dismissed on any of these grounds: 1. Res judicata; 2. Prescription; 3. Extinguishment of the claim or demand; 4. Unenforceability under the Statute of Frauds. Section 6. Pleading grounds as affirmative defenses. If no motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16, INCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and preliminarily heard in the discretion of the court. Dismissal under this section WITHOUT prejudice to the prosecution in the same or separate action of a COUNTERCLAIM pleaded in the answer RULE 17 DISMISSAL OF ACTIONS Section 1. Dismissal upon notice by plaintiff. Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the defendant has answered or moved for a summary judgment. But notice of dismissal requires an order of the court confirming the dismissal. Such dismissal is WITHOUT PREJUDICE, EXCEPT: 1. Where the notice of dismissal so provides; 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE); 3. Even where the notice of dismissal does not provide that it is with
REMEDY
Appeal from the order of dismissal Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under Rule 65
Section 4. Time to plead. Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss, counted from his receipt of the denial order, but not less than 5 days in any event. The same rule of granting only the balance of the period is followed where the court, instead of denying the motion to dismiss, orders the amendment of the pleading challenged by the motion, in which case, the balance of the period to
CAUSES FOR DISMISSAL 1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint 2. Plaintiff fails to prosecute his action for an unreasonable length of time (NOLLE PROSEQUI) 3. Plaintiff fails to comply with these Rules or any order of the court. Unjustifiable inaction on the part of plaintiff to have the case set for trial is a ground for dismissal for failure to prosecute. Complaint may be dismissed 1. Upon motion of the defendant, or 2. Upon courts own motion. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (WITH PREJUDICE), unless otherwise declared by the court.
SECTION 3
Dismissal is not procured by plaintiff though justified by causes imputable to him;
Dismissal is a matter Dismissal is a matter of procedure, without of evidence, an prejudice unless adjudication on the otherwise stated in merits; the order of the court or on plaintiffs motion to dismiss his own complaint; Dismissal is without Dismissal is without prejudice to the right prejudice to the right of the defendant to of the defendant to prosecute his prosecute his counterclaim in a counterclaim on the separate action unless same or separate w/in 15 days from action. notice of the motion he manifests his intention to have his counterclaim resolved in the same action
RULE 18 PRE-TRIAL PRE-TRIAL- a mandatory conference and personal confrontation before the judge between the parties and their respective counsel. The plaintiff must promptly move ex parte that the case be set for pre-trial , and this he must do upon the service and filing of the last pleading. The pre-trial and trial on the merits of the case must be held on separate dates. When non-appearance of a party may be excused (Sec.4): 1. If a valid cause is shown therefore 2. If a representative shall appear in his behalf fully authorized in writing to: a. Enter into an amicable settlement b. Submit to alternative modes of dispute resolution c. Enter into stipulations or admissions of facts and of documents A special authority for an attorney to compromise is required under Sec. 23, Rule 138. Under Art. 1878 (c) of the Civil Code, a special power of attorney is required.
EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof. Pre-trial brief. It is the mandatory duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein. Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial. Record of pre-trial. The contents of the PRE-TRIAL order shall control the subsequent course of the action, UNLESS modified before trial to prevent manifest injustice. A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pretrial order, as well as in cross-examining the witness in regard to said evidence.
FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT PAGE.
No Settlement
Amicable Settlement
Failure to Appear
If plaintiff is Absent, when so required to attend, the court may dismiss the case
TRIAL If evidence is insufficient to prove plaintiffs cause of action or defendants counterclaim, court rules in favor of either one or dismisses the case
RULE 19 INTERVENTION WHO may intervene? 1. One who has legal interest in the matter in litigation 2. One who has legal interest in the success of either of the parties, 3. One who has an interest against both parties 4. One who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. FACTORS TO BE CONSIDERED BY THE COURT 1. Whether or not the intervention will unduly delay or prejudice
2. Whether or not the intervenors rights may be fully protected in a separate proceeding. The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. INTERVENTION
An ancillary action.
INTERPLEADER
An original action.
Proper in any of the Presupposes that the four situations plaintiff has no mentioned in this interest in the subject Rule. matter of the action or has an interest therein, which in whole or in part, is
competent authority, or for the taking of his deposition. SUBPOENA DUCES TECUM a process directed to a person requiring him to bring with him books, documents, or other things under his control. Section 2. By whom issued WHO may issue 1. Court before whom the witness is required to attend 2. Court of the place where the deposition is to be taken 3. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body 4. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. SUBPOENA TO A PRISONER must be for a valid purpose; if prisoner required to appear in court is sentenced to death, reclusion perpetua or life imprisonment and is confined in prison must be authorized by the SC. Section 4. QUASHING A SUBPOENA. A. Subpoena DUCES TECUM may be quashed upon proof that: 1. It is unreasonable and oppressive; 2. The articles sought to be produced do not appear prima facie to be relevant to the issues; 3. The person asking for the subpoena does not advance the cost for the production of the articles desired. B. Subpoena AD TESTIFICANDUM may be quashed if the witness is not bound thereby. In EITHER case, the subpoena may be quashed for failure to tender the witness fees and kilometrage allowed by the Rules. GENERAL RULE a. The court which issued the subpoena may issue a warrant for the arrest of the witness and
Section 2. Time to intervene. At any time before rendition judgment by the trial court.
of
JUSTIFICATION: Before judgment is rendered, the court, for good cause shown, may still allow the introduction of additional evidence and that is still within the liberal interpretation of the period for trial. Since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case. REMEDIES FOR THE DENIAL OF INTERVENTION: 1. APPEAL 2. MANDAMUS if there is grave abuse of discretion If there is improper granting of intervention, the remedy of the party is certiorari. RULE 21 SUBPOENA SUBPOENA SUMMONS
an order to appear and Order to answer testify or to produce complaint books and documents may be served to a Served on the non-party defendant needs tender of does not need tender kilometrage, of kilometrage and attendance fee and other fees reasonable cost of production fee
SUBPOENA AD TESTIFICANDUM a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by
RULE 23 DEPOSITIONS PENDING ACTION DEPOSITION is a 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 written interrogatories and where an opportunity is given for crossexamination. Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding. CLASSIFICATIONS OF DEPOSITIONS 1. Depositions on ORAL EXAMINATION and Depositions upon WRITTEN INTERROGATORIES 2. Depositions DE BENE ESSE those taken for purposes of a pending action (Rule 23) ; and 3. Depositions IN PERPETUAM REI MEMORIAM - those taken to perpetuate evidence for purposes of anticipated action, or in the event of further proceedings in a case on appeal, and to preserve it against danger of loss (Rule 24). WHEN TAKEN WITH LEAVE OF COURT 1. after jurisdiction has been obtained over any defendant or over the property which is the subject of the action and BEFORE answer.
A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence. Exception: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness (Sec.8) Exception to the Exception: Unless the deposition is that of any adverse party, and unless, of course, the deposition is used for impeaching or contradicting the deponent (Sec.8). Section 10 and 11. Persons before whom depositions may be taken.
USE
By any party for contradicting or impeaching the testimony of deponent as witness
WITHIN THE PHILIPPINES: 1. judge 2. notary public 3. any person authorized to administer oaths, as stipulated by the parties in writing OUTSIDE THE PHILIPPINES: 1. on notice, before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Phil. 2. before such person or officer as may be appointed by commission or letters rogatory 3. any person authorized to administer oaths, as stipulated by the parties in writing Section 12. rogatory. Commission or letters
A party or any one By an adverse party for who at the time of any purpose the deposition was an OFFICER, DIRECTOR, or MANAGING AGENT of a public or private corp., partnership, or association which is a party Witness, whether or not a party By any party for any purpose if the court finds the 5 instances occurring
SCOPE OF INQUIRY IN DEPOSITIONS: 1. Matter which is relevant to the subject of the pending action; 2. Not privileged 3. Not restricted by a protective order Certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment. Section 7. Effect of taking depositions.
COMMISSION
LETTERS ROGATORY
Issued to a nonIssued to the judicial foreign officer appropriate judicial who will directly take officer of the foreign the testimony country who will direct somebody in said foreign country to take down testimony Applicable rules of Applicable rules of procedure are those of procedure are those of the requesting court the foreign court requested to act Resorted to if Resorted to if the
Section 18. Motion to terminate or limit examination. MAY BE FILED: 1. any time during the taking of the deposition 2. on motion or petition of any party or of the deponent; or 3. upon showing that the examination is conducted in : a. bad faith b. in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Depositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available. Depositions under this Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. Section 6. Use of deposition. If deposition is taken under this Rule, it may be used in any action involving the SAME SUBJECT MATTER subsequently brought. Section 7. Depositions pending appeal. Sec. 7 is the procedure in perpetuating testimony AFTER JUDGMENT IN THE RTC
RULE 25 INTERROGATORIES TO PARTIES PURPOSE of Written Interrogatories: to elicit facts from any adverse party (answers may also be used as admissions of the adverse party) Written interrogatories and the answers thereto must both be FILED and SERVED. Interrogatories
A party may properly seek disclosure of matters of proof which may later be made a part of the records as evidence.
Bill of Particulars
A party may properly seek disclosure only of matters which define the issues and become a part of the pleadings.
A party may serve written interrogatories: 1. WITHOUT LEAVE OF COURT after answer has been served, for the first set of interrogatories. 2. WITH LEAVE OF COURT before answer has been served (REASON: at that time, the issues are not yet joined and the disputed facts are not yet clear, when more than one set of interrogatories is to be served.) A judgment by default may be rendered against a party who fails to answer written interrogatories Only one set of interrogatories by the same party is allowed. Leave of court is necessary for succeeding sets of interrogatories. Section 6. Effect of failure to serve written interrogatories. Rule 25 and Rule 26 are directed to the party who fails and refuses to RESORT to the discovery procedures, and should not be confused with the provisions of Rule 29 which provides for sanctions or other consequences upon a party who refuses
The justification for this provision is that the party in need of relevant facts having foregone the opportunity to inquire into the same from the other party through means available to him, he should not thereafter be permitted to unduly burden the latter with courtroom appearances or other cumbersome processes. Unless a party had been served written interrogatories, he may not be compelled by the adverse party: 1. to give testimony in open court, or 2. give a deposition pending appeal. The only exception is when the court allows it for GOOD CAUSE shown and to prevent a failure of justice. Depositions Upon Interrogatories to Written Parties under Rule Interrogatories to 25 Parties under Rule 23 Sec. 25
As to Deponent Party or ordinary witness As to Deponent party only
As to Procedure As to Procedure With intervention of no intervention. the officer authorized Written by the Court to take interrogatories are deposition directed to the party himself As to Scope Direct, cross, redirect, re-cross Interrogatories no fixed time As to Scope only one set of interrogatories Interrogatories 15 days to answer unless extended or reduced by the court
2. he waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY SANCTIONS 1. Contempt; 2. Payment of reasonable fees; 3. The matters regarding which the questions were asked, character or description of land et al., be taken to be in accordance with the claim of party obtaining the order; 4. Prohibition on the refusing party to produce evidence or support or oppose designated claims or defenses; 5. Striking out pleadings, order the dismissal of the action or stay the action until compliance or to render judgment by default. 6. Order the arrest of the refusing party except in cases of physical or mental examination. RULE 30 TRIAL TRIAL judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments. GENERAL RULE: when an issue exists, trial is necessary. Decision should not be made without trial. EXCEPTIONS: when there may be judgment without trial: 1. Judgment on the Pleading (Rule 34) 2. Summary Judgment (Rule 35) 3. Judgment on Compromise 4. Judgment by Confession 5. Dismissal with Prejudice (Rule 17)
means of compelling production of evidence The Rules is limited to may be directed to a the parties to the person whether a action party or not The order under this may be issued upon an Rule is issued only ex parte application. upon motion with notice to the adverse party
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an imbecile or insane person, while the physical condition of the party is generally involved in PHYSICAL INJURIES cases. Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege. Section 4. Waiver of privilege. Where the party examined requests and obtains a report on the results of the examination the consequences are: 1. he has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition, AND
Unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pretrial order. Section 6. Agreed statements of facts. This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. The parties may also stipulate verbally in open court. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown, such as error or fraud. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation. Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION. Section 8. Suspension of actions. Art. 2030 of the Civil Code. Every civil action or proceeding shall be suspended 1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer. Section 9. Judge to receive evidence; delegation to clerk of court. GENERAL RULE: the judge must himself personally receive and resolve the evidence of the parties. However, the reception of such evidence may be delegated under the following conditions: 1. The delegation may be made only in defaults or ex parte hearings, or an agreement in writing by the parties.
Defendant presents evidence to support his defense/countercla im/crossclaim/ third party complaint
DECISION
MOTION TO DISMISS
presented before a responsive pleading (answer) is made by the defendant The ground is based it may be based on on insufficiency of any of those evidence enumerated in Rule 16
Movant shall have the Movant is deemed to right to present his have waived his right evidence to present evidence. The decision of the
denial is INTERLOCUTORY. Sec. 1 , Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based), will not apply. The denial is NOT appealable.
JUDGMENT ON DEMURRER TO EVIDENCE is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the GROUND that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. RULE 34 JUDGMENT ON THE PLEADINGS A judgment on the pleadings must be on motion of the claimant. (NO SUPPORTING PAPERS ARE REQUIRED BECAUSE EVERTHING IS BASED ON THE PLEADINGS.) HOWEVER, if at the pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. GROUNDS: 1. Answer fails to tender an issue because of: a. general denial of the material allegations of the complaint; b. insufficient denial of the material allegations of the complaint ; or 2. Answer admits material allegations of the adverse partys pleading By moving for judgment on the pleading, plaintiff waives his claim for unliquidated damages. Claim for such damages must be alleged and proved.
CIVIL CASES
CRIMINAL CASES
Defendant need not ask leave of court is for leave of court; necessary so that the accused could present his evidence if the demurrer is denied if the court finds if the court finds the plaintiffs evidence prosecutions insufficient, it will evidence insufficient, grant the demurrer by it will grant the dismissing the demurrer by complaint. The rendering judgment judgment of dismissal is acquitting the appealable by the accused. Judgment plaintiff. If plaintiff of acquittal is not appeals and judgment appeallable; double is reversed by the jeopardy sets-in appellate court, it will decide the case on the basis of the plaintiffs evidence with the consequence that the defendant already loses his right to present evidence no res judicata in dismissal due to demurrer if court denies if court denies the demurrer, defendant demurrer: will present his If demurrer was with evidence leave, accused may present his evidence If the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecutions evidence
NO JUDGMENT ON THE PLEADINGS IN ACTIONS FOR 1. Declaration of nullity of marriage 2. Annulment of marriage 3. Legal Separation
Motion to Dismiss
RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists NO genuine issue or controversy as to any material fact. Who can File 1. Plaintiff: he must wait for the answer to be filed and served, and thus for the issue to be joined, before he can move for summary judgment. 2. Defendant: he can move for summary judgment at anytime, that is, anytime after filing and service of the complaint even before he answers The motion for summary judgment must be supported by (1) affidavit, (2) depositions of the adverse party or a third party, or (3) admissions of the adverse party, all intended to show that: a. there is no genuine issue as to any material fact, except damages which must always be proved, and b. the movant is entitled to a judgment as a matter of law. The summary judgment may be a judgment on the merits, in which case, an appeal may be taken therefrom. SUMMARY JUDGMENT JUDGMENT JUDGMENT ON THE BY DEFAULT PLEADINGS (Rule 9)
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF JUDGMENT- final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. The date of finality of the judgment or final order shall be deemed to be the date of its entry. REQUISITES OF A JUDGMENT: 1. It should be in writing, personally and directly prepared by the judge 2. Must state clearly and distinctly the facts and the law on which it is based 3. It should contain a dispositive part and should be signed by the judge and filed with the clerk of court. PROMULGATION- the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel.
PROMULGATION OF JUDGMENT
Court Renders Decision
Losing Party
Within 15/30 days from notice of judgment: Motion for reconsideration; or motion for new trial
If no appeal is taken or did not avail of remedies, judgment becomes final and executory
Section 4. Several judgments. Several judgment is proper where the liability of each party is clearly separable and distinct from his coparties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other. A several judgment is NOT proper in actions against solidary debtors. Section 6. Separate Judgments Proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The action shall proceed as to the remaining claims.
Judgment NUNC PRO TUNC (literally means now for then) rendered to enter or record such judgment as has been formerly rendered but has not been entered as thus rendered its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect. Judgment upon Agreement or Compromise A compromise agreement between the parties to a case on which the decision of the court was based has upon the parties the effect and authority of res judicata. It is immediately executory. Judgment by Confession Judgment upon confession is one which is rendered against a party upon his petition or consent. It usually happens when the defendant appears in court and confesses the right of the plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs demand. Two kinds of judgment by confession 1. A judgment by COGNOVIT ACTIONEM here, the defendant after service instead of entering a plea, acknowledged and confessed that the plaintiffs cause of action was just and rightful. 2. A judgment by CONFESSION RELICTA VERIFICATIONE after pleading and before trial, the defendant both confessed the plaintiffs cause of action and withdrew or abandoned his plea or other allegations, whereupon judgment was entere against him without proceeding to trial. Judgment upon Compromise Judgment by Confession
Clarificatory Judgment rendered by the court, upon motion, when a judgment previously rendered is ambiguous and difficult to comply with. AMENDED OR CLARIFIED JUDGMENT
It is an entirely new decision and supersedes the original judgment
SUPPLEMENTAL DECISION
Does not take the place of or extinguish the original judgment
Court makes a Serves to bolster or thorough study of the add to the original original judgment and judgment renders the amended and clarified judgment only after considering all the factual and legal issues
Second motion for new trial based on grounds not existing or available when 1st motion was filed Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial
An order denying a motion for new trial is not appealable. NEW TRIAL - the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of
findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is merely intended to delay the proceedings OR if there is no affidavit of merit. Section 6. Effect of granting of motion for new trial When motion is granted, the original judgment is thereby vacated and the action stands for trial de novo, but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial taking the same. The order denying a motion for new trial is NOT appealable. MOTION FOR NEW MOTION FOR TRIAL REOPENING OF THE TRIAL
Not mentioned in the Rules but is nevertheless a recognized procedural recourse or device deriving validity and acceptance from long established usage NOTE: It is actually mentioned in the Rules of Criminal Procedure Proper only after May properly be promulgation of presented only after judgment either or both the parties have formally offered and closed their evidence before judgment Based upon specific Controlled by no other grounds set forth rule than the under Rule 37 in civil paramount interests of cases and Rule 121 in justice, resting entirely criminal cases 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 Specifically mentioned in the Rules
MOTION FOR
REQUISITES for NEWLY-DISCOVERED EVIDENCE 1. Must have been discovered after trial 2. Could not have been discovered and produced at the trial 3. If presented, would alter the result of the action 4. Otherwise it is called FORGOTTEN EVIDENCE. A motion suspends or tolls the running of the reglementary period for appeal except when the same is pro-forma. PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the
within 6 months from entry of judgment If denied, the order If denied, the order of denial is NOT denying a petition for appealable, hence relief is NOT remedy is appeal appealable; the from the judgment remedy is appropriate civil action under Rule 65 Legal remedy Equitable remedy Motion need not be Petition must be verified verified
TWO HEARINGS UNDER RULE 38 1. Hearing to determine whether the judgment should be set aside 2. If yes, a hearing on the merits of the case. The period fixed by Rule 38 is nonextendible and is never interrupted. RULE 39 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 one 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, must 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
RULE 38
Available AFTER judgment has become final and executory Applies to judgments, final orders and other proceeding: 1.Land Registration 2.Special Proceedings 3. Order of Execution
Execution is a matter of right after expiration of period to appeal and no appeal is perfected
If the winning party does not move for execution w/in 5 years but before 10 years from the date of entry of judgment, the same can only be revived by means of a new action / petition
Discretionary execution upon good reasons stated in a special order after due hearing
Losing party is made to indemnify thru: 1. payment with interest; 2. levy and sale of personal property; 3. levy and sale of real property; 4. delivery of personal and real property
TEST TO DETERMINE WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY: The test is whether
1. When the terms of the judgment are not very clear; 2. When the order of execution varies with the tenor of the judgment. 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 ordered by the trial court. Section 6. Execution By Motion Or Independent Action. MODE OF ENFORCEMENT 1. By motion within 5 years from date of its entry 2. By independent action after 5 years from entry AND before it is barred by statute of limitations Judgment for support does not become dormant, thus it can always be executed 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 and revive is given the party. Section 7. Execution In Case Of Death Of Party. If the obligor dies AFTER entry but BEFORE LEVY on his property, execution will be issued for recovery of real or personal property or enforcement of a lien thereon. But for a sum of money, judgment cannot be enforced by writ but as a claim against his estate/probate proceedings. If he dies AFTER a VALID LEVY has been made, execution sale proceeds. Section 8. Issuance, Form and Contents of a Writ of Execution.
GROUNDS FOR EXECUTION PENDING APPEAL: 1. Insolvency of the judgment debtor. 2. Wastage of asset by judgment debtor. Section 3. Stay of Discretionary Execution. The party against whom an execution is directed may file a supersedeas bond to stay 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. Supersedeas bond guarantees satisfaction of the judgment in case of affirmance 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 the time within which to appeal provided: 1. There is a motion for execution filed by the winning 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. GENERAL RULE: an order of execution is NOT appealable otherwise there would be no end to the litigation between the parties. EXCEPTIONS:
GARNISHMENT
refers to money, stocks, credits and other incorporeal property which belong to judgment debtor but is in the possession or under the control of a third person
Section 16. Proceedings Where Property Claimed By Third Person. 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 third party claimant independently of or separately from the others. If 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. SALE ON EXECUTION Notice of sale is required before levied property can be sold at public auction (Sec. 15). Remedy against an irregular sale is MOTION TO VACATE OR SET ASIDE THE SALE to be filed in the court which issued the writ. REDEMPTION (Secs. 27 & 28) Right of Redemption: 1. Personal Property NONE; sale is absolute 2. Real Property there is a right of redemption
7.
2.
Section 46. When Principal Bound By Judgment Against Surety. The principal is bound by the same judgment from the time he has notice of the action or proceeding and has been given an opportunity at the suretys request, to join the defense. Section 47. Effect Of Judgment Or Final Orders. 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 in judgments IN REM JUDGMENT or FINAL ORDER
Against a specific thing Probate of a will or administration of the estate of a deceased person
3.
4.
EFFECT: CONCLUSIVE AS TO
Title to the thing Will or administration However, ONLY prima facie evidence of the death of the testator or intestate
5.
Par (B) is referred to as bar by former judgment or RES JUDICATA in judgments IN PERSONAM RES JUDICATA - final judgments on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties or their privies in all later suits on points determined in the former judgment. REQUISITES: 1. A FINAL judgment or order 2. JURISDICTION over the subject matter and the parties by the court rendering it 3. Judgment UPON THE MERITS 4. Between the two cases: IDENTITY OF PARTIES IDENTITY OF SUBJECT MATTER IDENTITY 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, once it becomes final, it cannot be corrected. The only grounds are lack of jurisdiction, collusion or fraud. Par. (C) is known as conclusiveness of judgment or rule of AUTER ACTION PENDENT CONCLUSIVENESS OF JUDGMENT has the effect of preclusion only of issues. parties in both actions may be the same but the causes of action are different. BAR BY FORMER CONCLUSIVENESS OF JUDGMENT JUDGMENT
Section 48. Effect Of Foreign Judgment Or Final Orders: 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 successorsin-interest by a subsequent title. In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or
Appeal decision of MTC by filing notice of appeal and pay appellate court docket fee in the same MTC within 15 days from receipt of judgment
Notice to parties that an appeal is being taken from the decision of MTC
clear mistake of
law or fact.
Within 15 days from notice of appeal: appellant submits memorandum to the RTC appellee files his own memorandum 15 days from receipt of appellants memorandum
ORDINARY APPEAL - an appeal by notice of appeal from a judgment or final order of a lower court on questions of fact and law. APPEAL TO THE RTC Mode of Appeal Notice of Appeal within fifteen (15) days from receipt of decision. After an appeal to the RTC has been perfected, the MTC loses its jurisdiction over the case and any motion for the execution of the judgment should be filed with the RTC. The Summary Rules no longer apply when the cases is on appeal. Section 2. When to Appeal. 1. Within 15 days after notice of judgment or final order; 2. Where a record on appeal is required, within 30 days from notice of judgment or final order by filing a notice of appeal and a record on appeal; 3. Period to appeal shall be interrupted by a timely motion for new trial or reconsideration. 4. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Section 3. How to Appeal. By Notice of Appeal: 1. File a notice of appeal with the trial court. 2. The notice of appeal must indicate: a. parties b. judgment or final order appealed from
ORDINARY APPEAL
Matter of right All the records are elevated from the court of origin Notice of record on appeal is filed with the court of origin
By Record on appeal: 1. for special proceedings such as probate; and 2. in such other cases where multiple appeals are allowed as in partition and in expropriation. Section 4. Perfection of Appeal; effect thereof. Appeal is deemed perfected: 1. by notice of appeal: as to him, upon the filing of the notice of appeal in due time; 2. by record on appeal: as to him, upon the approval of the record on appeal filed in due time. Effect of a perfected appeal: The court loses jurisdiction upon the perfection or approval of appeal and when the period of appeal for other parties expire. Residual power of the court prior to the transmittal of the original record or record on appeal: 1. to issue orders for the preservation of the rights of the parties which do not involve matters litigated by appeal; 2. to approve compromise prior to the transmittal of the record;
5.
4. 5. 6.
Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction If lower court dismissed case without trial on the merits: RTC may: 1. Affirm, or 2. Reverse, in which case, it shall remand the case for further proceedings. If dismissal is due to lack of jurisdiction over the subject matter: RTC may: 1. Affirm; if RTC has jurisdiction, shall try the case on the merits as if the case was originally filed with it, or 2. Reverse, in which case, it remand the case for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter: RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. RULE 41 APPEAL FROM REGIONAL TRIAL COURTS APPEALABLE CASES 1. Judgments or final orders that completely disposes of the case. 2. A particular matter in a judgment declared by the Rules to be appealable.
Remedy in cases where appeal is not allowed Special civil action of certiorari or prohibition if there is lack or excess of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty. INTERLOCUTORY ORDER An order which does not dispose of the case but leave something else to be done by the trial court on the merits of the case. A judgment based on compromise is not appealable and is immediately executory. Section 2. Modes of appeal.
Ordinary Petition for appeal review (appeal by writ [Rule 42] of error) Case is decided Case is by the RTC in decided by its original the MTC. jurisdiction Appealed to Appealed to the the RTC. CA Petition for review with the CA Petition for review on certiorari [Rule 45] The case raises only a question of law
The period to appeal is MANDATORY and JURISDICTIONAL. Failure to appeal on time makes the decision final and executory and deprives the appellate court of jurisdiction. However in few instances the court has allowed due course to such appeals on strong and compelling reasons of justice.
Within 15 days Within 15 days Within 15 from the notice from notice of days from of the judgment the decision notice of the for notice of to be judgment or appeal and reviewed or order or within 30 days from the denial of the for records on denial of a MR MR or new appeal. The or new trial. trial. period for filing is interrupted by a timely motion for reconsideration or new trial.
RULE 42 PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS Petition for review is not a matter of right but discretionary on the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed; OR dismiss the petition if it finds that it is patently without merit, or prosecuted manifestly for delay, or the questions raised therein are too unsubstantial to require consideration. It is merely discretionary on the CA to order the elevation of the records. This is because until the petition is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Procedure, the judgments are immediately executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case. RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND THE QUASI-JUDICIAL AGENCIES TO THE CA Judgments and final orders or resolutions of the NLRC are reviewable by the COURT OF APPEALS in an original action
Section 7. Approval of record on appeal. Procedure if the appeal is through a record on appeal 1. file record on appeal 2. appellee may file an objection within 5 days from his receipt thereof 3. if there is no objection the court may: approve it as presented; OR direct its amendment on its own or upon the motion of the adverse party 4. if an amendment is ordered the appellant must redraft the record within the time ordered or if there is no time, within 10 days from receipt 5. submit the record for approval with notice on the adverse party
within 30 days Shorter, briefer, only one issue involved - no subject index or assignment of errors just facts and law applicable
RULE 44 ORDINARY APPEALED CASES Section 9. Appellants reply brief. Failure to file appellant's brief on time is a ground for dismissal of the appeal. If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. The failure of the appellant to make specific assignment of errors in his brief or page references to the record as required in this section is a ground for dismissal of his appeal. Section 15. Questions that may be raised on appeal. The appeal can raise only questions of law or fact that 1. were raised in the court below; and 2. are within the issues framed by the parties thereon. BRIEF vs. MEMORANDUM BRIEF MEMORANDUM
If given due course, parties may submit memoranda Appellant serves copies of petition on adverse parties and to the lower court, and pay the corresponding docket fees
Any party files a petition for review on certiorari w/in 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial
Appeals to the SC can be taken from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or such other courts as maybe authorized by law and only by verified petition for review on certiorari on questions of law except only in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic review.
GENERAL RULE: the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. EXCEPTIONS to CONCLUSIVENESS OF FACTS: 1. When the finding is grounded entirely on speculations, surmise or conjecture; 2. When inference made is manifestly absurd, mistaken or impossible; 3. When the judgment is premised on a misrepresentation of facts; 4. When there is grave abuse of discretion in the appreciation of facts; 5. When the findings of fact are conflicting; 6. When the CA in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees; 7. When the findings of fact of the CA are at variance with those of the trial court, the SC has to review the evidence in order to arrive at the correct findings based on the record; 8. When the findings of fact are conclusions without citation of
QUESTIONS OF LAW
QUESTIONS OF FACT
doubt or controversy doubt or difference as to what the law is arises as to the truth on certain facts or falsehood of facts, or as to probative value of the evidence presented if the appellate court the determination can determine the involves evaluation or issue raised without review of evidence reviewing or evaluating the evidence Can involve questions query invites the of interpretation of calibration of the the law with respect whole evidence to certain set of facts considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation
Certiorari under Rule 45 vs. certiorari under Rule 64/65 ( special civil action)
RULE 46 ORIGINAL CASES Section 2. To what actions applicable. Under B.P. Blg. 129, the CA has original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not they are in aid of its appellate jurisdiction, and it has exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts.
It is a mode of appeal
Involves the review of Directed against an the judgment award interlocutory order of or final order on the the court or where merits there is no appeal or any other plain, speedy or adequate remedy Must be made within filed not later than 60 the reglementary days from notice of period judgment, order or resolution appealed from Stays the judgment or Unless a writ of order appealed from preliminary injunction or temporary restraining order is issued does not stay the challenged proceeding The petitioner and the The parties are the respondent are the aggrieved party original parties to the against the lower action, and the lower court or quasi-judicial court or quasi-judicial agency and the agency is not prevailing parties impleaded Motion for Motion for reconsideration is not reconsideration or for required new trial is required If a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner ( SC Admin. Matter 002-03 ) The court is in the exercise of its Court exercises original jurisdiction
Section 4. Jurisdiction over person, how acquired. JURISDICTION IS ACQUIRED: 1. Over the PETITIONER - by filing of the petition. 2. Over the RESPONDENT - by the service on the latter of the order or resolution indicating the courts initial action on the petition and NOT by the service on him of the petition or by his voluntary submission. Section 5. Action by the court. PROCEDURAL OUTLINE (original cases in the Court of Appeals) 1. Filing of the petition 2. Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. 3. Require respondents to file COMMENT within 10 days from NOTICE 4. Court may require the filing of a REPLY or such other pleadings as it may deem necessary 5. Determination of FACTUAL ISSUES, the court may delegate
Section. 5. Action by the court. Two stages: 1. A preliminary evaluation of the petition for prima facie merit therein, and 2. The issuance of summons as in ordinary civil cases and such appropriate proceedings thereafter as contemplated in Sec. 6. The rule allows the CA to dismiss the petition outright as in special civil actions. For the court to acquire jurisdiction over the respondent, the rule requires the issuance of summons should prima facie merit be found in the petition and the same is given due course. RULE 48 PRELIMINARY CONFERENCE Section 3. Binding effect of the results of the conference In the CA, this procedural device may be availed of not only in original actions but also in cases on appeal wherein a new trial was granted on the ground of newly discovered evidence. The CA can act as a trier of facts, hence the preliminary conference authorized is a convenient adjunct to such power and function. RULE 49 ORAL ARGUMENT Section 3. No hearing or oral argument for motions Motions in the SC and the CA do not contain notices of hearing as no oral arguments will be heard in support thereof; and if the appellate court desires to hold a hearing thereon, it will itself set the date with notice to the parties. RULE 50
LACK OF JURISDICTION
4 years from Before it is barred discovery by laches or estoppel Trial court Original action
With respect to petitions for review and motions for reconsideration, the Constitution merely requires a statement of the legal basis for the denial thereof or refusal of due course thereto. The court may opt, but it is not required to issue an extended resolution thereon. Section 6. HARMLESS ERROR The court, at every stage of the proceeding, must disregard any error or defect which does not affect the substantial rights of the parties such as error in admission or exclusion of evidence or error or defect in the ruling or order. Section 8. Questions that may be decided Only errors claimed and assigned by a party will be considered by the court, except errors affecting its jurisdiction over the subject matter. To this exception has now been added errors affecting the validity of the judgment appealed from or the proceedings therein. Even if the error complained of by a party is not expressly stated in his
accdg. to the judgment or to aid execution; 4. when appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation. A person who refuses or neglects to deliver property within his control and which is the subject of the action to the receiver may be punished for contempt and liable to the receiver for the money or the value of the property PLUS damages. The receiver shall also file a bond before entering upon his duties separate from the bond filed by the applicant. RULE 60 REPLEVIN The sheriff shall retain the property for 5 days. Within such period, the adverse party may object to the sufficiency of the applicants bond or surety or he may file a counter-bond. After 5 days and the adverse party failed to object or his counter-bond is insufficient, the sheriff shall deliver the property to the applicant. Distinctions
REPLEVIN May be sought only when the principal action is recovery of personal property. ATTACHMENT Available even if recovery of property is only incidental to the relief sought.
PROHIBITION
Directed against a court, tribunal or a person exercising judicial powers Based on the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction Always the main action
RULE 59 RECEIVERSHIP WHEN MAY BE GRANTED 1. applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost or materially injured unless a receiver is appointed; 2. in foreclosure of mortgage, when the property is in danger of being wasted or dissipated and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties; 3. after judgment, to preserve the property during the pendency of an appeal or to dispose of it
Can be sought only when May be resorted to even defendant is in actual if the property is in possession of the possession of a third property. person. CANNOT be availed of Can be AVAILED of even when property is in if property is in custodia legis CUSTODIA LEGIS. Available before defendant answers Available from commencement but before entry of judgment
RULE 61 SUPPORT PENDENTE LITE When may be applied for: at the commencement of the action or at any time before judgment or final order. Failure to comply with an order granting support pendente lite may warrant the issuance of an order of execution against the non-complying party. He may likewise be liable for contempt. See matrix on provisional remedies more detailed information.