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CIVIL PROCEDURE NOTES (ATTY.

GUEVARRA, 2D)
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OVERVIEW OF CIVIL PROCEDURE


ORDINARY CIVIL ACTIONS V. CRIMINAL ACTIONS (WHEREIN
THE STATE IS A PARTY)
STAGES OF COURT PROCEEDINGS IN CIVIL CASES For civil actions, A v. B
Ordinary civil actions v. special civil actions
Initiation of actions
-exchange of pleadings WHAT IS THE DIFFERENCE BETWEEN INITIATION OF ACTION
-clarification of facts and issues AND COMMENCEMENT OF ACTION?
In initiation of action, before the exchange of pleadings, there is
the commencement of action, which is through the filing of the
Judgment on the pleadings
Type Title Here complaint by the plaintiff.
Also note that upon filing of complaint, there is issuance of
summons, to which the complaint is attached to.
Summary judgment
THE VERTICAL AND HORIZONTAL THINKING OF JURISDICTION
AND VENUE
Pre-trial When we think of jurisdiction, think vertically. There is level to
speak of.
After jurisdiction, there is venue. When we speak of venue this
Modes of Discovery time, we think horizontally. Which RTC or MTC should we file
the case in? This is addressed by rule 4 of the Rules Of Court.

Trial
JURISDICTION

Rendition of Judgment or final order

Remedies after rendition of judgment or final order


VENUE
A. Motions
B. Appeal
C. Exceptional remedies
NOTE:
Jurisprudence mentions that the failure to pay docket fees or
the proper amount, the action has not yet been commenced
Entry of Judgment

UPON FILING OF THE COMPLAINT, A SUMMONS IS GIVEN TO


Execution of judgment THE DEFENDANT AND THERE IS AN ORDER FOR HIM TO FILE

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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AN ANSWERKEY PERSON IS THE PROCESS SERVER AND THIS Another is a motion for summary judgment. This must be
MIGHT BE THE SAME WITH THE SHERIFF supported by affidavits or depositions.

THE NEXT STEP IS THE EXCHANGE OF PLEADINGS


Upon receipt of the complaint, the defendant has two options: NEXT TO PRE-TRIAL IS THE TRIAL PROPER
one is to file an answer to the complaint wherein the defenses When we talk of trial proper, you associate this all the time
are mentionedwhich is either negative or affirmative. Another with evidence.
option is the filing of a motion to dismiss. Types of evidence ordinarily speaks of testimonial and
Examples of affirmative defense are statute of frauds, statute documentary evidence. Testimonial evidence talks about
of limitations/prescription, payment. presentation of evidence while documentary evidence talks about
the presentation of authenticated evidence.
NOTE: A PRACTICAL OBSERVATION Regarding trial, upon presentation of your own witness, there
For a motion to dismiss, this is dreaded by most lawyers. Rule 16 will be direct examination. This will be followed by a cross-
governs the grounds for a motion to dismissexamples are examination. This can be followed by a redirect examination
prescription, lack of jurisdiction over person of defendant or then followed, if allowed by a recross-examination.
subject matter, failure to cite a cause of action, etc. Upon presentation of evidence, parties may be required by the
It could be the situation wherein the alllegations cannot be court to file their respective memoranda. Seldom does the court
intelligently answered by the defendant that clarifications must resort to oral arguments. The memoranda summarizes the
be made. A bill of particulars may be filed. evidence presented by both parties and makes an argument that
the preponderance of evidence is with your side.
AFTER EXCHANGE OF PLEADING, ISSUES HAVE BEEN JOINED.
A COURT RENDERS A FINAL JUDGMENT UNDER RULE 36
NEXT STEP IS PRE-TRIAL. After the rendition of judgment, there are remedies available to
In pre-trial, there is determination of possibility of amicable a losing party.
settlement through submission of issues to ADR or alternative A motion for reconsideration or new trial may be filed. A
dispute resolution (mediation, conciliation, arbitration) petition for relief of judgment may also be filed.
You cannot discuss an issue, which wasnt discussed during the Under petition for relief, the decision has becomes final and
pre-trial. executory but for some reason, you feel that you have been
deprived of your day in court.
FOR MOTIONS, If the motion for reconsideration is denied after appropriate
There are motions that can put an end to the proceedings. hearing, the order is the final order and terminates the whole
One is the motion for judgment on the pleadings. thing.
This happens when an answer has been filed and there is no
denial of the allegations. JUDGMENT/DECISION V. FINAL ORDER: WHATS THE DIFF?
The plaintiff may file said motion since the defendant admits Judgment/decision=trial on the merits
anyway. Final order=otherwise terminates the case

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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THE REMEDY MOST COMMON IS THE APPEAL there has been a grave abuse of discretion amounting to lack or
MTC RTC CA SC excess of jurisdiction on the part of any branch or
RTC pure questions of law SC instrumentality of the Government.
mix of questions of law and fact CA
BP 129: JUDICIAL REORGANIZATION ACT OF 1980
OTHER EXTRAORDINARY REMEDIES AVAILABLE Supreme Court
Certiorari (under rule 65, its not a form of appeal and is an Court of Appeals
original action); Regional Trial Courts
Annulment of judgment (rule 47, grounds are extrinsic fraud Municipal Trial Courts/Metropolitan Trial Courts/Municipal
fraud perpetuated resulting to deprivation of your day in court Circuit Trial Courts
and lack of jurisdictiondragon you can slay anytime unless
barred by laches and estoppel) CONSTITUTIONAL COMMISSIONS
1. Commission on Elections
LAST STAGE IS THE EXECUTION OF JUDGMENT. THE LEAD 2. Commission on Audit
ACTOR IS THE SHERIFF. 3. Civil Service Commission
The sheriff must demand first.
The judgment debtor may voluntarily pay. EXAMPLES OF ADMINISTRATIVE AGENCIES EXERCISING
The second step is to levy the properties belonging to the QUASI-JUDICIAL POWERS (most of them are regulatory and
debtor. exercise adjudicatory powers)
After the levy, there will be an execution sale. 1. NTC
The property will be in custodia legis. 2. HLURB
The judgment debtor may redeem property within 1 year. 3. NLRC
4. SEC
BETWEEN JUDGMENT AND EXECUTION ARE THE PROVISIONAL 5. DARAB
REMEDIESATTACHMENT, RECEIVERSHIP, SUPPORT PENDENTE
LITE, REPLEVIN, ETC. THE INITIAL PURPOSE IS
ORGANIZATION OF COURTS
PRESERVATION.

THE SUPREME COURT


PRELIMINARY CONSIDERATIONS: JUDICIAL POWER
The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its
DEFINITION OF JUDICIAL POWER IN THE CONSTITUTION discretion, in division of three, five, or seven Members. Any
The judicial power shall be vested in one Supreme Court and in vacancy shall be filled within ninety days from the occurrence
such lower courts as may be established by law. thereof.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally COURT OF APPEALS
demandable and enforceable, and to determine whether or not

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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The Court of Appeals shall consist of a Presiding Justice and 68 Lipa, Lucena, Puerto Princessa, San Pablo, Tagaytay, and Trece
Associate Justices and shall be appointed by the President of Martires;
the Philippines and shall sit in 23 divisions of three justices each
The Presiding Justice and Associate Justices shall have the same 6. The Fifth Judicial Region, consisting of the provinces of Albay,
qualifications as those provided for in the Constitution for Camarines Sur, Camarines Norte, Catanduanes, Masbate, and
Justices of the Supreme Court Sorsogon, and the cities of Legaspi, Naga and Iriga;

REGIONAL TRIAL COURTS 7. The Sixth Judicial Region, consisting of the provinces of Aklan,
There are 13 overall but with many branches Antique, Capiz, Iloilo, La Calota, Roxas, San Carlos, and Silay,
It is important to know the 13 judicial regions and the subprovince of Guimaras;

1. The First Judicial Region, consisting of the provinces of Abra, 8. The Seventh Judicial Region, consisting of the provinces of Bohol,
Benguet, Ilocos Norte, Ilocos Sur, La Union, Mountain Province, Cebu, Negros Oriental, and Siquijor, and the cities of Bais,
and Pangasinan, and cities of Baguio, Dagupan, Laog and San Canlaon, Cebu, Danao, Dumaguete, Lapu-lapu, Mandaue,
Carlos; Tagbilaran, and Toledo,

2. The Second Judicial Region, consisting of the provinces of 9. The Eighth Judicial Region, consisting of the provinces or Eastern
Batanes, Cagayan, Ifugao, Kalinga-Apayao, Nueva Viscaya, and Samar, Leyte, Northern, Samar, Southern Leyte, Ormoc, and
Quirino; Tacloban:

3. The Third Judicial Region, consisting of the provinces of Bataan, 10. The Ninth Judicial Region, consisting of the provinces of Basilan,
Bulacan (except the municipality of valenzuela), Nueva Ecija, Sulu, Tawi-Tawi, Zamboanga del Sur, and the cities of Dapitan,
Pampanga, Tarlac, and Zambales, and the cities of Angeles, Dipolog, Pagadian, and Zamboanga;
Cabanatuan, Olongapo, Palayan and San Jose;
11. The Tenth Judicial Region, consisting of the provinces of Agusan
4. The National Capital Judicial Region, consisting of the cities of del Norte, Agusan del Sur, Bukidnon, Camiguin, Misamis
Manila, Quezon, Pasay, Caloocan and Mandaluyong, and the Occidental, Misamis Oriental, and Surigao del Norte, and the
municipalities of Navotas, Malabon, San Juan, Makati, Pasig, cities of Butuan, Cagayan de Oro, Gingoog, Ozamis, Oroquieta,
Pateros, Taguig, Marikina, Paraaque, Las Pias, Muntinlupa, and Surigao, and Tangub;
Valenzuela;
12. The Eleventh Judicial Region, consistingnof the provinces of
5. The Fourth Judicial Region, consisting of the provinces of Davao del Norte, Davao Oriental, Davao del Sur, South Cotabato,
Batangas, Cavite, Laguna, Marinduque, Mindoro Occidental, and Surigao del Sur, and the cities of Davao, and General
Mindoro Oriental, Palawan, Quezon, Rizal (except the cities and Santos; and
municipalities embraced within the National Capital Judicial
Region0, Romblon, and Aurora, and the cities of Batangas, Cavite,

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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13. The Twelfth Judicial Region, consisting of the provinces of Lanao b. Error of judgmentcourt had jurisdiction to rule;
del Norte, Lanao del Sur, Maguindanao, North Cotabato, and remedy is to appeal
Sultan Kudarat, and the cities of Cotabato, Iligan, and Marawi.
CLASSES OF JURISDICTION
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, 1. General v. limited
AND MUNICIPAL CIRCUIT TRIAL COURTS a. General jurisdictionextends to all controversies which
Metropolitan trial court is created in each metropolitan area may be brought before a court within the legal bounds
created by law of rights and remedies
Municipal trial court is created in each other city or municipality b. Limited or special jurisdictionis confined to particular
Municipal Circuit trial court is created in each circuit comprising causes or can be exercised only under the limitations
such cities and municipalities as are grouped together pursuant and circumstances prescribed by the statute
to law 2. Original v. appellate
a. Originalinherent in a court of first instance
SPECIAL COURTS b. Appellatepower and authority conferred upon a
1. Family courts superior court to rehear and determine causes which
2. Special criminal courts have been tried in inferior courts
3. Commercial courts 3. Over subject matter v. over person v. over the property
a. Over subject matterpower to hear and determine
cases of the general class to which the proceedings in
JURISDICTION OF THE COURTS
question belong
b. Over the personpower to render a personal judgment
WHAT IS JURISDICTION? against a person and is acquired by the voluntary
It is the legal authority to hear and determine a cause or the appearance of the party in court and his submission to
right to act in a case its authority, or by the coercive power of legal process
exerted over the person
CERTAIN PRINCIPLES TO REMEMBER WITH REGARD c. Over the propertyseizure of the property under legal
JURISDICTION process of the court, whereby it is held to abide by
1. Conferred by law over the cause or subject matter (it is law such order as the court makes, and with respect to the
that DETERMINES jurisdiction) persons whose rights in the property are to be
a. Jurisdiction cannot be stipulated by the parties affected; it may be attained by constructive service of
b. Cannot be affected by estoppel or laches process, it not being necessary that they should
c. Tigam v. Sibonghanoy is more of an exception than the brought within the reach of the process of the court or
rule should receive actual notice
2. Error of jurisdiction v. error of judgment 4. Exclusive v. concurrent/coordinate
a. Error of jurisdictionvoid or voidable; remedy is the a. Exclusiveconfined to a particular tribunal or grade of
filing of a petition for prohibition or certiorari courts and possessed by it to the exclusion of all others

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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b. Concurrentexercise by different courts at the same of whether the causes of action arose out of the same or
time over the same subject matter and within the same different transactions
territory, and wherein litigants may, in the first 3. Exclusive original jurisdiction over cases of forcible entry and
instance, resort to either indifferently (note: remember unlawful detainer: Provided, That when, in such cases, the
the doctrine of judicial hierarchy) defendant raises the question of ownership in his pleadings and
the question of possession cannot be resolved without deciding
MUNICIPAL TRIAL COURTS the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
APPELLATE JURISDICTION 4. Exclusive original jurisdiction in all civil actions which involve
None title to, or possession of, real property, or any interest therein
MTC is the lowest court in the judicial hierarchy where the assessed value of the property or interest therein
does not exceed Twenty thousand pesos (P20,000.00) or, in civil
ORIGINAL AND CONCURRENT actions in Metro Manila, where such assessed value does not
None also exceed Fifty thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses
ORIGINAL AND EXCLUSIVE JURISDICTION OVER THE and costs: Provided, That value of such property shall be
FOLLOWING determined by the assessed value of the adjacent lots.
1. Exclusive original jurisdiction over civil actions and probate 5. Inclusion and exclusion of voters
proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the REGIONAL TRIAL COURTS
personal property, estate, or amount of the demand does not
exceed P300,000 or, in Metro Manila where such personal ORIGINAL AND EXCLUSIVE
property, estate, or amount of the demand does not exceed 1. In all civil actions in which the subject of the litigation is
P400,000 exclusive of interest damages of whatever kind, incapable of pecuniary estimation;
attorney's fees, litigation expenses, and costs, the amount of 2. In all civil actions which involve the title to, or possession of,
which must be specifically alleged: Provided, That where there real property, or any interest therein, where the assessed value
are several claims or causes of action between the same or of the property involved exceeds Twenty thousand pesos
different parties, embodied in the same complaint, the amount of (P20,000.00) or for civil actions in Metro Manila, where such the
the demand shall be the totality of the claims in all the causes value exceeds Fifty thousand pesos (50,000.00) except actions
of action, irrespective of whether the causes of action arose out for forcible entry into and unlawful detainer of lands or
of the same or different transactions; buildings, original jurisdiction over which is conferred upon
2. Admiralty and maritime cases where the demand or claim doesnt Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
exceed P300,000 or in Metro Manila, where such demand doesnt Circuit Trial Courts;
exceed P400,000. Where there are several claims or causes of 3. In all actions in admiralty and maritime jurisdiction where he
action between the same or different parties, embodied in the demand or claim exceeds three hundred thousand pesos
same complaint, the amount of the demand shall be the totality (P300,000.00) or , in Metro Manila, where such demand or claim
of the claims in all cases in all the causes of action irrespective exceeds four hundred thousand pesos (400,000.00);

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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4. In all matters of probate, both testate and intestate, where the


gross value of the estate exceeds three hundred thousand pesos ORIGINAL AND CONCURRENT WITH THE SUPREME COURT
(P300,000.00) or, in probate matters in Metro Manila, where 1. Original jurisdiction to issue writs of mandamus, prohibition,
such gross value exceeds four hundred thousand pesos certiorari, habeas corpus, and quo warranto, and auxiliary writs
(400,000.00); or processes, whether or not in aid of its appellate jurisdiction;
5. In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction or any court, ORIGINAL AND CONCURRENT WITH THE SUPREME COURT AND
tribunal, person or body exercising judicial or quasi-judicial REGIONAL TRIAL COURT
functions; 1. Petitions for habeas corpus and quo warranto
6. In all other cases in which the demand, exclusive of interest, 2. Petitions for the issuance of writs of certiorari, prohibition and
damages of whatever kind, attorney's fees, litigation expenses, mandamus against lower courts or bodies
and costs or the value of the property in controversy exceeds
three hundred thousand pesos (300,000.00) or, in such other APPELLATE JURISDICTION
abovementioned items exceeds four hundred thousand pesos 1. Ordinary appeal
(200,000.00). (as amended by R.A. No. 7691*) a. From RTC: Rule 45
b. From RTC: constitutional, tax, and jurisdiction
ORIGINAL AND CONCURRENT WITH THE SUPREME COURT c. Appeal from decisions or orders from the Family courts
1. Actions affecting ambassadors and other public ministers and 2. Appeal by petition for review
consuls NB:
1. If its questions of facts, questions of facts and law, questions of
ORIGINAL AND CONCURRENT WITH THE SUPREME COURT AND lawgo to the Court of Appeals under Rule 43
COURT OF APPEALS 2. RTC in exercise of its original jurisdictiondepends on the
1. In the issuance of writs of certiorari, prohibition, mandamus, quo questions raised
warranto, habeas corpus and injunction which may be enforced in a. If it is questions of law then go straight to the
any part of their respective regions Supreme Court
b. If it is a mix of questions of law and factthen go first
APPELLATE JURISDICTION to the CA
1. Regional Trial Courts shall exercise appellate jurisdiction over all
cases decided by Metropolitan Trial Courts, Municipal Trial WHERE WILL YOU FILE FOR ANNULMENT OF JUDGMENT/FINAL
Courts, and Municipal Circuit Trial Courts in their respective ORDER OF THE MTC BASED ON EXTRINSIC FRAUD OR LACK OF
territorial jurisdictions. JURISDICTION?
You will file it with the RTC
COURT OF APPEALS Why? Because the RTC is the court which has jurisdiction over
all cases not within the exclusive jurisdiction of any court,
ORIGINAL AND EXCLUSIVE tribunal, person or body exercising jurisdiction or any court,
1. Actions for annulment of judgments of the RTC on the ground of tribunal, person or body exercising judicial or quasi-judicial
extrinsic fraud and lack of jurisdiction functions

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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It is by nature an appeal to the Supreme Court on pure


SUPREME COURT questions of law
You are making a plea to the court
ORIGINAL AND EXCLUSIVE This denotes discretion
1. Petitions for the issuances of writs of certiorari, prohibition, and
mandamus against the following
RULE 1: GENERAL PROVISIONS
a. Court of Appeals
b. Commission on Elections
c. Commission on Audit Section 1. Title of the Rules. These Rule shall be known and
d. Sandiganbayan cited as the Rules of Court. (1)

APPELLATE JURISDICTION Section 2. In what courts applicable. These Rules shall apply
1. From the RTCin its exercise of original jurisdiction, involving in all the courts, except as otherwise provided by the
questions of law Supreme Court. (n)
2. From the CAin its exercise of its original and exclusive
jurisdiction, as well as its exercise of appellate jurisdiction Section 3. Cases governed. These Rules shall govern the
procedure to be observed in actions, civil or criminal and
APPEAL (AN EXERCISE ON APPEAL) special proceedings.

ORDINARY APPEAL (a) A civil action is one by which a party sues another for the
For example you file with the RTC in its original jurisdiction and enforcement or protection of a right, or the prevention or
you lose redress of a wrong, (1a, R2)
You appeal to the CA on the questions of fact
A civil action may either be ordinary or special. Both are
PETITION FOR REVIEW governed by the rules for ordinary civil actions, subject to
Second time to appeal to a higher court the specific rules prescribed for a special civil action. (n)

MTCYOU LOSEORDINARY APPEALRTCYOU LOSE (b) A criminal action is one by which the State prosecutes a
AGAINPETITION FOR REVIEW, SECOND APPEALCOURT OF APPEALS person for an act or omission punishable by law. (n)

(c) A special proceeding is a remedy by which a party seeks to


Petition for review: discretion to give course on the appeal
establish a status, a right, or a particular fact. (2a, R2)

PETITION FOR CERTIORARI WHAT ARE THE DIFFERENT KINDS OF ACTION?


Rule 65, original action
1. Civil action
2. Criminal action
PETITION FOR REVIEW ON CERTIORARI, APPEAL BY
3. Special proceedings
CERTIORARI

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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certain persons are has a right to be property


CIVIL ACTIONS entitled to be heard heard on the strength
An action by which a party sues another for the enforcement or on defense of alleging facts which
protection of a right, or the prevention or redress of a wrong if true show an
inconsistent interest
CRIMINAL ACTIONS
One by which the State prosecutes a person for an act or
Section 4. In what case not applicable. These Rules shall not
omission punishable by law
apply to election cases, land registration, cadastral,
naturalization and insolvency proceedings, and other cases not
SPECIAL PROCEEDINGS herein provided for, except by analogy or in a suppletory
Remedy by which a party seeks to establish a status, right or character and whenever practicable and convenient. (R143a)
particular fact
WHEN ARE THE RULES NOT APPLICABLE?
ACTION V. PROCEEDING
1. Election cases
Actionformal demand of ones legal rights in a court of justice
2. Land registration
in the manner prescribed by the court of by the law
3. Cadastral
Special proceedingapplication or proceeding to establish the
4. Naturalization
status or right of a party or a particular fact 5. Insolvency proceedings
6. And other cases not herein provided for
REAL ACTIONS V. PERSONAL ACTIONS
Real actionsactions affecting title to, or possession of real
Section 5. Commencement of action. A civil action is
property, or interest therein, or forcible entry and detainer
commenced by the filing of the original complaint in court. If
actions
an additional defendant is impleaded in a later pleading, the
Personal actionsactions founded on privity of contract or for
action is commenced with regard to him on the dated of the
the enforcement or resolution of a contract, or for recovery of filing of such later pleading, irrespective of whether the
personal property
motion for its admission, if necessary, is denied by the court.
(6a)
ACTIONS IN PERSONAM, IN REM, QUASI IN REM
IN PERSONAM IN REM QUASI IN REM WHEN DOES AN ACTION COMMENCE?
Claim against some The object is to bar An individual is named It is commenced by the filing of the original complaint in court
particular person, with indifferently all who as defendant and the In case of an additional defendant, action is commenced with
a judgment which is might be minded to purpose of the regard to him on the dated of the filing of such later pleading,
generally in theory at make an objection of proceeding is to irrespective of whether the motion for its admission, if
least, binds his body, any sort against the subject his interest necessary, is denied by the court.
or to bar some right sought to be therein to the
individual claim or established, and if obligation or lien Section 6. Construction. These Rules shall be liberally
objection so that only anyone in the world burdening the construed in order to promote their objective of securing a

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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just, speedy and inexpensive disposition of every action and Section 3. One suit for a single cause of action. A party may
proceeding. (2a) not institute more than one suit for a single cause of action.
(3a)
RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
Section 4. Splitting a single cause of action; effect of. If
two or more suits are instituted on the basis of the same
Section 1. Uniform procedure. The procedure in the Municipal cause of action, the filing of one or a judgment upon the
Trial Courts shall be the same as in the Regional Trial Courts, merits in any one is available as a ground for the dismissal of
except (a) where a particular provision expressly or impliedly the others. (4a)
applies only to either of said courts, or (b) in civil cases
governed by the Rule on Summary Procedure. (n) PURPOSE OF THE RULE
To prevent repeated litigation between the same parties with
Section 2. Meaning of terms. The term "Municipal Trial respect to the same subject of controversy and to protect the
Courts" as used in these Rules shall include Metropolitan Trial defendant from unnecessary vexation, and to avoid costs and
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, expenses incurred for numerous suits
and Municipal Circuit Trial Courts. (1a) This rule also applies to counterclaims and crossclaims

Section 5. Joinder of causes of action. A party may in one


CIVIL ACTIONS: ORDINARY CIVIL ACTIONS
pleading assert, in the alternative or otherwise, as many
RULE 2: CAUSE OF ACTION
causes of action as he may have against an opposing party,
subject to the following conditions:
Section 1. Ordinary civil actions, basis of. Every ordinary civil
action must be based on a cause of action. (n) (a) The party joining the causes of action shall comply with
the rules on joinder of parties;
Section 2. Cause of action, defined. A cause of action is the
act or omission by which a party violates a right of another. (b) The joinder shall not include special civil actions or actions
(n) governed by special rules;

ELEMENTS OF A CAUSE OF ACTION (c) Where the causes of action are between the same parties
1. Legal right of the plaintiff but pertain to different venues or jurisdictions, the joinder
2. Correlative obligations of the defendant may be allowed in the Regional Trial Court provided one of the
3. Act or omission of the defendant in violation of the plaintiffs causes of action falls within the jurisdiction of said court and
said legal right the venue lies therein; and

RIGHT OF ACTION (d) Where the claims in all the causes action are principally
Remedial right belonging to a person for recovery of money, the aggregate amount claimed shall be
the test of jurisdiction. (5a)

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Real actionsthose affecting title to or possession of real


TOTALITY RULE property
1. The party joining the causes of action shall comply with the Personal actionsall other actions
rules on joinder of parties;
2. The joinder shall not include special civil actions or actions VENUE OF REAL ACTIONS
governed by special rules; The venue is the same for RTC and MTC
3. Where the causes of action are between the same parties but The court which has jurisdiction over the area wherein the real
pertain to different venues or jurisdictions, the joinder may be property involved or a portion thereof is situated
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue QUESTION: PROPERTY IS LOCATED IN PARANAQUE. DOES
lies therein; and THE RTC OF LAOAG HAVE JURISDICTION OVER THE REAL
4. Where the claims in all the causes action are principally for ACTION?
recovery of money, the aggregate amount claimed shall be the Yes but it will be the improper venue
test of jurisdiction. In civil cases, jurisdiction and venue is not the same

Section 6. Misjoinder of causes of action. Misjoinder of Section 2. Venue of personal actions. All other actions may
causes of action is not a ground for dismissal of an action. A be commenced and tried where the plaintiff or any of the
misjoined cause of action may, on motion of a party or on the principal plaintiffs resides, or where the defendant or any of
initiative of the court, be severed and proceeded with the principal defendants resides, or in the case of a non-
separately. (n) resident defendant where he may be found, at the election of
the plaintiff. (2[b]a)
RULE 4: VENUE OF ACTIONS
Section 3. Venue of actions against nonresidents. If any of
the defendants does not reside and is not found in the
Section 1. Venue of real actions. Actions affecting title to or Philippines, and the action affects the personal status of the
possession of real property, or interest therein, shall be plaintiff, or any property of said defendant located in the
commenced and tried in the proper court which has Philippines, the action may be commenced and tried in the
jurisdiction over the area wherein the real property involved, court of the place where the plaintiff resides, or where the
or a portion thereof, is situated. property or any portion thereof is situated or found. (2[c]a)

Forcible entry and detainer actions shall be commenced and ACTION AFFECTING THE PROPERTY OF NONRESIDENT
tried in the municipal trial court of the municipality or city DEFENDANT
wherein the real property involved, or a portion thereof, is If the action affects the property of the non-resident defendant
situated. (1[a], 2[a]a) located in the Philippines, the venue is the place where the
property or any portion thereof is situated
REAL ACTIONS DISTINGUISHED FROM PERSONAL ACTIONS
JURISDICTION OVER THE DEFENDANT IS LIMITED TO THE RES

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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In proceedings in rem or quasi in rem against a non-resident who WHO IS THE PLAINTIFF?
is not served personally within the state, and who doesn't Generally is the claiming party
appear, the relief must be confined to the res, and the court
cannot lawfully render personal judgment against him HOW ABOUT THE DEFENDANT, WHO IS HE?
He is the defending party
Section 4. When Rule not applicable. This Rule shall not
apply. A v. B v. C

(a) In those cases where a specific rule or law provides *A is the plaintiff
otherwise; or *B is the defendant as well as the third-party plaintiff
*C is the third-party defendant
(b) Where the parties have validly agreed in writing before
the filing of the action on the exclusive venue thereof. (3a,
Section 2. Parties in interest. A real party in interest is the
5a)
party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit.
N.B
Unless otherwise authorized by law or these Rules, every
1. Rules on venue is for the convenience of the parties
action must be prosecuted or defended in the name of the real
2. In case of improper venue, when you file the action once again,
party in interest. (2a)
there is a payment of docket fees anew

WHO IS THE REAL PARTY IN INTEREST?


RULE 3: PARTIES TO CIVIL ACTIONS He is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the
suit
Section 1. Who may be parties; plaintiff and defendant. Only
natural or juridical persons, or entities authorized by law may
be parties in a civil action. The term "plaintiff" may refer to Section 3. Representatives as parties. Where the action is
the claiming party, the counter-claimant, the cross-claimant, allowed to be prosecuted and defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall
or the third (fourth, etc.) party plaintiff. The term
be included in the title of the case and shall be deemed to be
"defendant" may refer to the original defending party, the
the real property in interest. A representative may be a
defendant in a counter-claim, the cross-defendant, or the
trustee of an expert trust, a guardian, an executor or
third (fourth, etc.) party defendant. (1a)
administrator, or a party authorized by law or these Rules. An
WHO MAY BE PARTIES? agent acting in his own name and for the benefit of an
1. Natural persons undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging
2. Juridical persons
to the principal. (3a)
3. Entities authorized by law

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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WHAT HAPPENS IF AN ACTION IS ALLOWED TO BE Section 6. Permissive joinder of parties. All persons in whom
PROSECUTED OR DEFENDED BY A REPRESENTATIVE OR ONE or against whom any right to relief in respect to or arising
ACTING IN A FIDUCIARY CAPACITY? out of the same transaction or series of transactions is
The beneficiary shall be included in the title of the case and alleged to exist, whether jointly, severally, or in the
shall be deemed to be the real property in interest alternative, may, except as otherwise provided in these Rules,
join as plaintiffs or be joined as defendants in one complaint,
WHO IS DEEMED A REPRESENTATIVE? where any question of law or fact common to all such
1. Trustee of an express trust plaintiffs or to all such defendants may arise in the action;
2. Guardian but the court may make such orders as may be just to
3. Executor or administrator prevent any plaintiff or defendant from being embarrassed or
4. Party authorized by law or these Rules put to expense in connection with any proceedings in which he
5. Note that an agent acting on his own name and for the benefit may have no interest. (6n)
of an undisclosed principal may sue and be sued without joining
the principal except when the contract involves things belonging REQUISITES FOR PERMISSIVE JOINDER OF PARTIES
to the principal 1. Right to relief with respect to or arising out of the same
transaction or series of transactions
IS THIS VALIDX BANK, FOR AND BEHALF OF Y V. X? 2. Common question of law or fact in the action
No
It should have been Y, represented by X bank v. X Section 7. Compulsory joinder of indispensable parties.
Parties in interest without whom no final determination can be
Section 4. Spouses as parties. Husband and wife shall sue or had of an action shall be joined either as plaintiffs or
be sued jointly, except as provided by law. (4a) defendants. (7)

EXCEPTIONS TO THE GENERAL RULE INDISPENSIBLE PARTY V. NECESSARY PARTY


1. A spouse without just cause abandons the other or fails to INDISPENSIBLE PARTY NECESSARY PARTY
comply with his or her obligation to the family with respect to One whose interest will be One whose interest in the
marital, parental or property relations affected by the courts action in controversy and subject matter is
2. A spouse of age mortgages, encumbers, alienates or otherwise the litigation and without whom no distinct and divisible from the
disposes of his or her exclusive property final determination of the case can interest of the other parties and
3. The regime of separation of property governs be had will not necessarily be prejudiced
by a judgment which does complete
Section 5. Minor or incompetent persons. A minor or a person justice to the parties in court
alleged to be incompetent, may sue or be sued with the Should be joined under any and all Should be joined whenever possible
assistance of his father, mother, guardian, or if he has none, a conditions, his presence being sine since it would merely permit
guardian ad litem. (5a) que non in the exercise of judicial complete relief between him and
power those already parties to the action

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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With respect to the indispensable party, the dismissal of the


Section 8. Necessary party. A necessary party is one who is complaint
not indispensable but who ought to be joined as a party if With respect to the necessary party, waiver
complete relief is to be accorded as to those already parties,
or for a complete determination or settlement of the claim Section 10. Unwilling co-plaintiff. If the consent of any party
subject of the action. (8a) who should be joined as plaintiff can not be obtained, he may
be made a defendant and the reason therefor shall be stated
Section 9. Non-joinder of necessary parties to be pleaded. in the complaint. (10)
Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth his Section 11. Misjoinder and non-joinder of parties. Neither
name, if known, and shall state why he is omitted. Should the misjoinder nor non-joinder of parties is ground for dismissal of
court find the reason for the omission unmeritorious, it may an action. Parties may be dropped or added by order of the
order the inclusion of the omitted necessary party if court on motion of any party or on its own initiative at any
jurisdiction over his person may be obtained. stage the action and on such terms as are just. Any claim
against a misjoined party may be severed and proceeded with
The failure to comply with the order for his inclusion, without separately. (11a)
justifiable cause, shall be deemed a waiver of the claim
against such party. Section 12. Class suit. When the subject matter of the
controversy is one of common or general interest to many
The non-inclusion of a necessary party does not prevent the persons so numerous that it is impracticable to join all as
court from proceeding in the action, and the judgment parties, a number of them which the court finds to be
rendered therein shall be without prejudice to the rights of sufficiently numerous and representative as to fully protect
such necessary party. (8a, 9a) the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to
WHAT IS THE EFFECT OF A NON-JOINDER? intervene to protect his individual interest. (12a)
Should the court find the reason for the omission unmeritorious,
it may order the inclusion of the omitted necessary party if REQUISITES OF A CLASS SUIT
jurisdiction over his person may be obtained. 1. The subject matter of the controversy is one of the common or
The failure to comply with the order for his inclusion, without general interest to many persons
justifiable cause, shall be deemed a WAIVER of the claim 2. The interested persons are so numerous that it is impracticable
against such party. to join them all as parties
The waiver presupposes that the continuance of the proceeding
shall reach the knowledge of the necessary party PHILIPPINE DOCTORS IN THE UNITED STATES WOULD LIKE
TO FILE A CLASS SUIT AGAINST THE PRODUCERS OF
WHAT ARE THE REPERCUSSIONS OF NOT INCLUDING A DESPERATE HOUSEWIVES FOR THE REMARK AGAINST THEM IN
NECESSARY PARTY AND INDISPENSABLE PARTY? AN EPISODE. WILL THIS PROSPER?

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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No since these doctors have different interests in their filing of executor or administrator and the court may appoint a
the suit guardian ad litem for the minor heirs.
The class suit shall not prosper
The court shall forthwith order said legal representative or
Section 13. Alternative defendants. Where the plaintiff is representatives to appear and be substituted within a period
uncertain against who of several persons he is entitled to of thirty (30) days from notice.
relief, he may join any or all of them as defendants in the
alternative, although a right to relief against one may be If no legal representative is named by the counsel for the
inconsistent with a right of relief against the other. (13a) deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
Section 14. Unknown identity or name of defendant. Whenever party, within a specified time to procure the appointment of
the identity or name of a defendant is unknown, he may be an executor or administrator for the estate of the deceased
sued as the unknown owner heir devisee, or by such other and the latter shall immediately appear for and on behalf of
designation as the case may require, when his identity or true the deceased. The court charges in procuring such
name is discovered, the pleading must be amended accordingly. appointment, if defrayed by the opposing party, may be
(14) recovered as costs. (16a, 17a)

Section 15. Entity without juridical personality as defendant. DEATH OF THE CLIENT TERMINATES THE ATTORNEY-CLIENT
When two or more persons not organized as an entity with RELATIONSHIP
juridical personality enter into a transaction, they may be In the absence of a retainer of his deceased client, the attorney
sued under the name by which they are generally or commonly would thereafter have no further power or authority to appear
known. or take any further action in the case, save to inform the court
of the clients death and take the necessary steps to safeguard
In the answer of such defendant, the name and addresses of the deceaseds right in the case
the persons composing said entity must all be revealed. (15a)
WHAT IS THE DUTY OF COUNSEL?
Section 16. Death of party; duty of counsel. Whenever a Whenever a party to a pending action dies, and the claim is not
party to a pending action dies, and the claim is not thereby thereby extinguished, it shall be the duty of his counsel to
extinguished, it shall be the duty of his counsel to inform the inform the court within thirty (30) days after such death of the
court within thirty (30) days after such death of the fact fact thereof, and to give the name and address of his legal
thereof, and to give the name and address of his legal representative or representatives.
representative or representatives. Failure of counsel to If no legal representative is named by the counsel for the
comply with his duty shall be a ground for disciplinary action. deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
The heirs of the deceased may be allowed to be substituted party, within a specified time to procure the appointment of an
for the deceased, without requiring the appointment of an executor or administrator for the estate of the deceased and

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 16 -

the latter shall immediately appear for and on behalf of the WHAT HAPPENS TO THE ACTION UPON THE DEATH OR
deceased. SEPARATION OF THE PUBLIC OFFICER INVOLVED?
Priority is given to the legal representative of the deceased The action may be continued and maintained by or against his
successor if, within thirty (30) days after the successor takes
DEATH OF INCOMPETENT WARD office or such time as may be granted by the court, it is
This extinguishes the guardianship satisfactorily shown to the court by any party that there is a
The guardian if appointed as the administrator of the estate, substantial need for continuing or maintaining it and that the
shall be the legal representative of the deceased and shall successor adopts or continues or threatens to adopt or continue
appear for and on behalf of the interest of the deceased in his to adopt or continue the action of his predecessor
capacity as the administrator, and no longer as the judicial
guardian of the incompetent ward WHAT SHOULD BE DONE BEFORE SUBSTITUTION?
Before a substitution is made, the party or officer to be
TEST TO DETERMINE WHETHER ACTION SURVIVES OR NOT affected, unless expressly assenting thereto, shall be given
The question as to whether an action survives or not depends on reasonable notice of the application therefor and accorded an
the nature of the action and the damages sued for opportunity to be heard.

NOTE: Section 18. Incompetency or incapacity. If a party becomes


1. Nullity of proceedings in case of non-substitution despite notice incompetent or incapacitated, the court, upon motion with
or knowledge of parties notice, may allow the action to be continued by or against the
2. However, if there is no notice of death of party and the court incompetent or incapacitated person assisted by his legal
has no knowledge thereof, the proceedings arent set aside guardian or guardian ad litem. (19a)

Section 17. Death or separation of a party who is a public WHAT HAPPENS IN CASE A PARTY BECOMES INCOMPETENT OR
officer. When a public officer is a party in an action in his INCAPACITATED?
official capacity and during its pendency dies, resigns, or The court upon motion with notice may allow the action to be
otherwise ceases to hold office, the action may be continued continued by or against the incompetent or incapacitated person
and maintained by or against his successor if, within thirty assisted by his guardian or guardian ad litem
(30) days after the successor takes office or such time as
may be granted by the court, it is satisfactorily shown to the Section 19. Transfer of interest. In case of any transfer of
court by any party that there is a substantial need for interest, the action may be continued by or against the
continuing or maintaining it and that the successor adopts or original party, unless the court upon motion directs the person
continues or threatens to adopt or continue to adopt or to whom the interest is transferred to be substituted in the
continue the action of his predecessor. Before a substitution action or joined with the original party. (20)
is made, the party or officer to be affected, unless expressly
assenting thereto, shall be given reasonable notice of the CAN AN ACTION BE CONTINUED UPON TRANSFER OF
application therefor and accorded an opportunity to be heard. INTEREST?
(18a)

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Yes, the action may be continued by or against the original judgment rendered in the case favorable to the indigent,
party unless the court otherwise provides.
Unless the court upon motion directs the person to whom the
interest is transferred to be substituted in the action or joined Any adverse party may contest the grant of such authority at
with the original party any time before judgment is rendered by the trial court. If
the court should determine after hearing that the party
Section 20. Action and contractual money claims. When the declared as an indigent is in fact a person with sufficient
action is for recovery of money arising from contract, express income or property, the proper docket and other lawful fees
or implied, and the defendant dies before entry of final shall be assessed and collected by the clerk of court. If
judgment in the court in which the action was pending at the payment is not made within the time fixed by the court,
time of such death, it shall not be dismissed but shall instead execution shall issue or the payment thereof, without
be allowed to continue until entry of final judgment. A prejudice to such other sanctions as the court may impose.
favorable judgment obtained by the plaintiff therein shall be (22a)
enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person. Section 22. Notice to the Solicitor General. In any action
(21a) involving the validity of any treaty, law, ordinance, executive
order, presidential decree, rules or regulations, the court, in
WHAT HAPPENS IF THE DEFENDANT IN AN ACTION FOR its discretion, may require the appearance of the Solicitor
MONEY CLAIMS DIES DURING PENDENCY OF THE ACTION? General who may be heard in person or a representative duly
An action shall not be dismissed but shall instead be allowed to designated by him. (23a)
continue until entry of final judgment
A favorable judgment obtained by the plaintiff therein shall be
RULE 14: SUMMONS
enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person
SUMMONS
Section 21. Indigent party. A party may be authorized to Served by the officer of the court duly authorized or designated
litigate his action, claim or defense as an indigent if the by the court
court, upon an ex parte application and hearing, is satisfied
that the party is one who has no money or property sufficient Section 1. Clerk to issue summons. Upon the filing of the
and available for food, shelter and basic necessities for complaint and the payment of the requisite legal fees, the
himself and his family. clerk of court shall forthwith issue the corresponding summons
to the defendants. (1a)
Such authority shall include an exemption from payment of
docket and other lawful fees, and of transcripts of Section 2. Contents. The summons shall be directed to the
stenographic notes which the court may order to be furnished defendant, signed by the clerk of court under seal and contain
him. The amount of the docket and other lawful fees which (a) the name of the court and the names of the parties to the
the indigent was exempted from paying shall be a lien on any action; (b) a direction that the defendant answer within the

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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time fixed by these Rules; (c) a notice that unless the matter therein alleged, it should be served upon the defendant
defendant so answers plaintiff will take judgment by default with the same formalities as to the original complaint and
and may be granted the relief applied for. summons

A copy of the complaint and order for appointment of guardian EXCEPTIONS TO THE ABOVE
ad litem if any, shall be attached to the original and each 1. When jurisdiction had already been acquired over the defendants
copy of the summons. (3a) who had appeared in court and filed a motion to dismiss
2. When defect in the summons is deemed waived
WHAT ARE THE CONTENTS OF A SUMMONS?
1. It shall be directed to the defendant Section 3. By whom served. The summons may be served by
2. Signed by the clerk of court under seal the sheriff, his deputy, or other proper court officer, or for
3. Contains the name of the court justifiable reasons by any suitable person authorized by the
4. Contains the names of the parties to the action court issuing the summons. (5a)
5. Contains a direction that the defendant answer within the time
fixed by the rules Section 4. Return. When the service has been completed, the
6. Contains a notice that unless the defendant so answers plaintiff server shall, within five (5) days therefrom, serve a copy of
will take judgment by default and may be granted the relief the return, personally or by registered mail, to the plaintiff's
applied for counsel, and shall return the summons to the clerk, who issued
7. Copy of the complaint shall be attached to the summons it, accompanied by proof of service. (6a)

IF AN ADDITIONAL DEFENDANT IS JOINED, SUMMONS MUST WHAT IS THE PURPOSE OF THE RETURN?
BE SERVED UPON HIM. EXCEPTIONS It is to enable the plaintiff to know and start counting
1. Where it is sought to bring in the administrator of a deceased Answer within 15 days
party defendant in substitution of the deceased
2. Where upon the decease of an original defendant, his infant Section 5. Issuance of alias summons. If a summons is
heirs are made parties returned without being served on any or all of the defendants,
3. In cases of substitution of the deceased by legal representatives the server shall also serve a copy of the return on the
or heirs under Rule 3 plaintiff's counsel, stating the reasons for the failure of
service, within five (5) days therefrom. In such a case, or if
WHEN SERVICE OF NEW SUMMONS WITH AMENDED the summons has been lost, the clerk, on demand of the
COMPLAINT IS NECESSARY plaintiff, may issue an alias summons. (4a)
1. If new causes of action are alleged in amended complaint filed
before the defendant has appeared in court, another summons HOW CAN AN ALIEN SUMMONS BE ISSUED?
must be served on the defendant with the amended complaint When the original summons is lost
2. Where the defendant defaults as to the original complaint, and Failure to serve the original summons
an amended complaint is filed while such default exists, to The plaintiff would have to file a motion for issuance of alias
sustain a judgment upon the amended complaint as to any new summons and this should be addressed to the clerk of court

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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HOW IS SUBSTITUTED SERVICE MADE?


Section 6. Service in person on defendant. Whenever 1. By leaving copies of the summons at the defendant's residence
practicable, the summons shall be served by handling a copy with some person of suitable age and discretion then residing
thereof to the defendant in person, or, if he refuses to therein, or
receive and sign for it, by tendering it to him. (7a) 2. By leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.
WHAT PERSONAL SERVICE ON DEFENDANT MEANS?
Actual delivery or tender of the summons to the defendant SUBSTITUTED SERVICE OF SUMMONS UPON DEFENDANT
personally TEMPORARILY ABSENT FROM THE PHILIPPINES, VALID.
So it naturally means that service of summons to a dead person Summons in a suit in personam against a resident of the
is void Philippines who is temporarily absent therefrom may be validly
This service is the primary requirement effected by substituted service under this present section

SUMMONS WAS SERVED TO THE DEFENDANT. INSTEAD OF Section 8. Service upon entity without juridical personality.
FILING AN ANSWER, A MOTION TO DISMISS FOR LACK OF When persons associated in an entity without juridical
JURISDICTION OVER PERSON. HOW COULD THIS BE personality are sued under the name by which they are
PROPERLY MADE WITHOUT VOLUNTARY APPEARANCE AND generally or commonly known, service may be effected upon
SURRENDER OF PERSON TO JURISDICTION OF COURT? all the defendants by serving upon any one of them, or upon
This is done by the filing of what is called a SPECIAL the person in charge of the office or place of business
APPEARANCE maintained in such name. But such service shall not bind
Special entry of appearance to submit motion to dismiss and individually any person whose connection with the entity has,
without surrendering person to the court upon due notice, been severed before the action was brought.
(9a)
Section 7. Substituted service. If, for justifiable causes, the
defendant cannot be served within a reasonable time as Section 9. Service upon prisoners. When the defendant is a
provided in the preceding section, service may be effected (a) prisoner confined in a jail or institution, service shall be
by leaving copies of the summons at the defendant's residence effected upon him by the officer having the management of
with some person of suitable age and discretion then residing such jail or institution who is deemed deputized as a special
therein, or (b) by leaving the copies at defendant's office or sheriff for said purpose. (12a)
regular place of business with some competent person in
charge thereof. (8a) Section 10. Service upon minors and incompetents. When the
defendant is a minor, insane or otherwise an incompetent,
REQUISITES FOR SUBSTITUTED SERVICE service shall be made upon him personally and on his legal
1. It is only when the defendant cannot be served personally within guardian if he has one, or if none his guardian ad litem whose
a reasonable time that substituted service may be made appointment shall be applied for by the plaintiff. In the case
2. Impossibility of prompt service of a minor, service may also be made on his father or mother.
(l0a, 11a)

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Instead, there must be continuity of conduct and intention to


Section 11. Service upon domestic private juridical entity. establish a continuous business
When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a TO WHOM SERVICE MAY BE MADE
juridical personality, service may be made on the president, 1. Resident agent
managing partner, general manager, corporate secretary, 2. To the government official designated by law to that effect
treasurer, or in-house counsel. (13a) 3. Or any of its officers or agents within the Philippines

STRICT COMPLIANCE WITH THE RULE IS REQUIRED Section 13. Service upon public corporations. When the
In service of summons to a domestic corporation, the list of defendant is the Republic of the Philippines, service may be
officers is exclusive effected on the Solicitor General; in case of a province, city
It could only be served to either the president, managing or municipality, or like public corporations, service may be
partner, general manager, corporate secretary, treasurer, or in- effected on its executive head, or on such other officer or
house counsel officers as the law or the court may direct. (15)
Note however that service can be done outside the principal
place of business of the corporation TO WHOM SHOULD SUMMONS BE SERVED IN CASE THE
Note also that in case of substituted service, the summons REPUBLIC OF THE PHILIPPINES IS THE DEFENDANT?
should be tried to serve to all of the above officers before It may be effected on the Solicitor General
substituted service can be actually permitted to be done (ika
nga, if you are the process server, hanapin mo muna bawat isa IN CASE OF A PROVINCE, CITY OR MUNICIPALITY OR LIKE
at halughugin mo sila bago mo masabi na dapat substituted PUBLIC CORPORATIONS?
service na lang ) Service may be effected on its executive head or on such officer
or officers as the law or the court may direct
Section 12. Service upon foreign private juridical entities.
When the defendant is a foreign private juridical entity which Section 14. Service upon defendant whose identity or
has transacted business in the Philippines, service may be whereabouts are unknown. In any action where the defendant
made on its resident agent designated in accordance with law is designated as an unknown owner, or the like, or whenever
for that purpose, or, if there be no such agent, on the his whereabouts are unknown and cannot be ascertained by
government official designated by law to that effect, or on diligent inquiry, service may, by leave of court, be effected
any of its officers or agents within the Philippines. (14a) upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order.
WHAT CONSTITUTES DOING BUSINESS (16a)
One single business transaction doesn't constitute doing business
within the meaning of the law, and that transactions which are Section 15. Extraterritorial service. When the defendant does
occasional, incidental, and casual, not of a character to indicate not reside and is not found in the Philippines, and the action
the purpose to engage in business doesn't constitute the doing or affects the personal status of the plaintiff or relates to, or
engaging in business contemplated in law the subject of which is, property within the Philippines, in

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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which the defendant has or claims a lien or interest, actual or Section 15 is not for the purpose of vesting jurisdiction over the
contingent, or in which the relief demanded consists, wholly or person of the defendant but for complying with the requirement
in part, in excluding the defendant from any interest therein, of fair play or due process
or the property of the defendant has been attached within
the Philippines, service may, by leave of court, be effected SERVICE OF SUMMONS ON A NON-RESIDENT WHO IS NOT
out of the Philippines by personal service as under section 6; FOUND IN THE PHILIPPINES
or by publication in a newspaper of general circulation in such 1. By personal service
places and for such time as the court may order, in which 2. By publication in a newspaper of general circulation in such
case a copy of the summons and order of the court shall be places and for such time as the court may order, in which case a
sent by registered mail to the last known address of the copy of the summons and order of the court should be sent by
defendant, or in any other manner the court may deem registered mail to the last known address of the defendant
sufficient. Any order granting such leave shall specify a 3. By any other manner which the court may deem sufficient
reasonable time, which shall not be less than sixty (60) days
after notice, within which the defendant must answer. (17a) A CASE WAS FILED FOR COLLECTION OF MONEY AGAINST A
PERSON WHO MIGRATED TO CANADA. WHAT IS THE
In the case of non-resident defendants who are not found in the RECOURSE OF PLAINTIFF?
Philippines, extraterritorial service of summons is allowed only in The action cannot prosperan action in personam
an action in rem and quasi in rem, that is, when the action The court cannot have jurisdiction over the person
affects the personal status of the plaintiff, or any property of What is the recourse? Convert the action into an action in rem
the defendant located in the Philippines or quasi in rem. Then you can do extraterritorial service.
Publication in newspaper of general circulation and registered o Affects personal status
mail to last known address o Subject is property or any lien or any interest
o Exclude defendant from any property or interest
SERVICE OF SUMMONS ON RESIDENT DEFENDANTS IN AN therein
ACTION IN PERSONAM
If defendant cannot be personally served, substituted service is AN ACTION WAS FILED FOR ANNULMENT OF MARRIAGE AND
needed to acquire jurisdiction over the person of the defendant SUPPORT. DEFENDANT IS CURRENTLY LIVING IN JAPAN.
who refuses to voluntarily submit himself to the authority of the WILL THE ACTIONS SUBSIST?
court The action for support will not be enforceable and it will be
invalid.
SERVICE OF SUMMONS IN AN ACTION IN REM OR QUASI IN An action for support is a personal action
REM The only action that would be subsisting will be the action for
If the action is in rem or quasi in rem on the other hand, annulment of marriage. It is an action in rem and affects the
jurisdiction over the person of the defendant isnt essential for personal status of both parties.
giving the court jurisdiction so long as the court acquires
jurisdiction over the property HOW DO YOU USUALLY CONVERT AN ACTION IN PERSONAM
TO AN ACTION IN REM?

BY: MA. ANGELA LEONOR C. AGUINALDO


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Do preliminary attachment a copy of the publication shall be attached and by an


affidavit showing the deposit of a copy of the summons and
WHAT IS THE RES? order for publication in the post office, postage prepaid,
Property wherein defendant may have an interest directed to the defendant by registered mail to his last known
Attachment of property in the Philippinesthere is no address. (21)
qualification between real and personal property
ATTY. G: all cases pertained to real property and there is no Section 20. Voluntary appearance. The defendant's voluntary
reason for the prohibition of personal property to be attached appearance in the action shall be equivalent to service of
since your only purpose is for you to publish in newspaper of summons. The inclusion in a motion to dismiss of other grounds
general circulation and not to acquire jurisdiction aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (23a)
Section 16. Residents temporarily out of the Philippines.
When any action is commenced against a defendant who *Remember that summons cannot be given by mail!!!
ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be also
RULE 6: KINDS OF PLEADINGS
effected out of the Philippines, as under the preceding
section. (18a)
Section 1. Pleadings defined. Pleadings are the written
Section 17. Leave of court. Any application to the court statements of the respective claims and defenses of the
under this Rule for leave to effect service in any manner for parties submitted to the court for appropriate judgment. (1a)
which leave of court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff or some person PLEADINGS, DEFINED
on his behalf, setting forth the grounds for the application. These are the written statements of the respective claims and
(19) defenses of the parties submitted to the court for appropriate
judgment
Section 18. Proof of service. The proof of service of a
summons shall be made in writing by the server and shall set PLEADINGS MOTIONS
forth the manner, place, and date of service; shall specify any CLAIMS DEFENSES
papers which have been served with the process and the name Complaint
of the person who received the same; and shall be sworn to Counterclaim Affirmative
when made by a person other than a sheriff or his deputy. Cross-claim Negative Anything that you are
(20) Third-party complaint asking for the court
Claim-in-intervention
Section 19. Proof of service by publication. If the service has
been made by publication, service may be proved by the Reply
affidavit of the printer, his foreman or principal clerk, or of Counter-cross-claim
the editor, business or advertising manager, to which affidavit Counter-counterclaim

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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If the relief demanded is not the proper one which may be


granted under the law, it doesnt characterize or determine the
Section 2. Pleadings allowed. The claims of a party are nature of the plaintiffs action, and that the relief to which the
asserted in a complaint, counterclaim, cross-claim, third plaintiff is entitled based on the facts alleged by him in the
(fourth, etc.)-party complaint, or complaint-in-intervention. complaint, although it is not the relief demanded, is what
determines the nature of the action
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him. ALLEGATIONS OF CONDITION PRECEDENT
If the plaintiffs right of action depends upon a condition
An answer may be responded to by a reply. (n) precedent, he must allege and prove the fulfillment of the
condition or the legal excuse for its non-fulfillment
WHAT ARE THOSE CONSIDERED AS PLEADINGS? And if he omits such allegation, his complaint or petition will be
1. Complaint bad on demurrer
2. Counterclaim
3. Cross-claim EXHIBITS NOT SUFFICIENT
4. Third-party complaint, etc. Exhibits attached to a complaint dont take the place of
5. Complaint-in-intervention allegations
6. Answer They are referred to and annexed for the purpose merely of
7. Reply supporting the allegations of fact made in the complaint

Section 3. Complaint. The complaint is the pleading alleging Section 4. Answer. An answer is a pleading in which a
the plaintiff's cause or causes of action. The names and defending party sets forth his defenses. (4a)
residences of the plaintiff and defendant must be stated in
the complaint. (3a) WHAT IS THE ANSWER?
It is the pleading in which the defending party sets forth his
WHAT IS THE COMPLAINT? defenses
It is the pleading alleging the plaintiff's cause or causes of
action. The names and residences of the plaintiff and defendant Section 5. Defenses. Defenses may either be negative or
must be stated in the complaint. affirmative.

ULTIMATE FACTS (a) A negative defense is the specific denial of the material
Essential facts constituting the plaintiffs cause of action fact or facts alleged in the pleading of the claimant essential
The complaint should contain a concise statement of the to his cause or causes of action.
ultimate facts constituting a plaintiffs cause of action and not
evidentiary facts or legal conclusions (b) An affirmative defense is an allegation of a new matter
which, while hypothetically admitting the material allegations
RELIEF in the pleading of the claimant, would nevertheless prevent or

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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bar recovery by him. The affirmative defenses include fraud, courts of justice, arises out of or is connected with the
statute of limitations, release, payment, illegality, statute of transaction or occurrence constituting the subject matter of
frauds, estoppel, former recovery, discharge in bankruptcy, the opposing party's claim and does not require for its
and any other matter by way of confession and avoidance. (5a) adjudication the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be
NEGATIVE DEFENSE within the jurisdiction of the court both as to the amount and
Specific denial the nature thereof, except that in an original action before
the Regional Trial Court, the counter-claim may be considered
AFFIRMATIVE DEFENSE compulsory regardless of the amount. (n)
Allegation of a new matter which, while hypothetically admitting
the material allegations in the pleading of the claimant, would REQUIREMENTS OF A COMPULSORY COUNTERCLAIM
prevent or bar recovery 1. It must arise out of, or be necessarily connected with, the
transaction or occurrence that it is the subject matter of the
HOW TO PLEAD AFFIRMATIVE DEFENSES opposing partys or co-partys claim
In pleading estoppel, the facts constituting estoppel should be 2. It doesnt require for its adjudication the presence of third
alleged persons of whom the court cannot acquire jurisdiction
In all averments of fraud and mistake, the circumstances 3. It must be within the jurisdiction of the court, and is cognizable
constituting fraud or mistake must be stated with particularity. by the regular courts of justice
Malice, intent, knowledge or some other condition of the mind of
the person may be averred generally REQUIREMENTS OF A PERMISSIVE COUNTERCLAIM
1. It doesnt arise out of or isnt necessarily connected with the
Section 6. Counterclaim. A counterclaim is any claim which a transaction or occurrence that is the subject matter of the
defending party may have against an opposing party. (6a) opposing partys claim
2. It doesnt require for its adjudication the presence of third
NATURE OF COUNTERCLAIM parties of whom the court cannot acquire jurisdiction
Nature of a cross-complaint 3. It must be within the jurisdiction of the court, and is cognizable
Although it may be alleged in the answer, it is not part of the by the regular courts of justice
answer
It is a distinct and independent cause of action. Section 8. Cross-claim. A cross-claim is any claim by one
Upon its filing, the same proceedings are had as in the original party against a co-party arising out of the transaction or
complaint. For this reason, it must be answered within 10 days occurrence that is the subject matter either of the original
from service action or of a counterclaim therein. Such cross-claim may
When a counterclaim is properly interposed, the defendant include a claim that the party against whom it is asserted is
becomes in respect of all matters pleaded, an actor or may be liable to the cross-claimant for all or part of a
claim asserted in the action against the cross-claimant. (7)
Section 7. Compulsory counterclaim. A compulsory
counterclaim is one which, being cognizable by the regular

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 9. Counter-counterclaims and counter-crossclaims. A


counter-claim may be asserted against an original counter- Section 11. Third, (fourth, etc.) party complaint. A third
claimant. (fourth, etc.) party complaint is a claim that a defending
party may, with leave of court, file against a person not a
A cross-claim may also be filed against an original cross- party to the action, called the third (fourth, etc.) party
claimant. (n) defendant for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim. (12a)
Section 10. Reply. A reply is a pleading, the office or
function of which is to deny, or allege facts in denial or TESTS TO DETERMINE PROPRIERTY OF A THIRD-PARTY
avoidance of new matters alleged by way of defense in the COMPLAINT
answer and thereby join or make issue as to such new 1. Whether it arises out of the same transaction on which the
matters. If a party does not file such reply, all the new plaintiffs claim is based, or the third-partys claim, although
matters alleged in the answer are deemed controverted. arising out of another or different contract or transaction, is
connected with the plaintiffs claim
If the plaintiff wishes to interpose any claims arising out of 2. Whether the plaintiff could have joined him originally as
the new matters so alleged, such claims shall be set forth in defendantbut this could only be applied if there could be
an amended or supplemental complaint. (11) asserted against the defendant as the third-party defendant,
jointly and severally, or in the alternative, any right to relief
PROPER FUNCTION OF A REPLY arising out of the same transaction
To allege new matters in avoidance of any affirmative defense in 3. The abovementioned is not always applicable. Another rule is
the answer that a third-party complaint is proper if he would be liable to
the plaintiff or to the defendant for all or part of the plaintiffs
WHEN REPLY IS NOT NECESSARY claim against the original defendant, although the liability might
It is not necessary to file a reply if the only purpose is to deny have arose from a different transaction.
the new matters alleged in the answer because even if he 4. Whether the third-party defendant may assert any defenses
doesnt make a reply, all the new matters will be deemed which the third-party plaintiff has or may have to the plaintiffs
controverted claim. If he may properly assert such defenses, then he would
be a proper third-party defendant. Otherwise, he is not and the
WHEN REPLY IS IMPROPER claim against him cannot be considered a third-party complaint.
A reply to a counterclaim or crossclaim is improper 5. A defendant cannot file a third-party complaint in a different
An answer thereto must be frilled instead within 10 days from capacity in which he is being sued. Otherwise, his claim against
receipt thereof the third-party defendant would not be in respect to the
plaintiffs claim.
WHAT HAPPENS IF A REPLY IS NOT FILED?
All new matters alleged in the answer are deemed controverted NOTE:
Controverted? It means that the new matters are deemed 1. Indemnity
opposed to or disputed by the plaintiff 2. Contribution

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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3. Subrogation but in subsequent pleadings, it shall be sufficient if the name


of the first party on each side be stated with an appropriate
LEAVE OF COURT, HOW OBTAINED. indication when there are other parties.
By motion under rule 15
Their respective participation in the case shall be indicated.
OTHER IMPORTANT THINGS (1a, 2a)
Allowance of third-party complaint is discretionary
Summons on third-party defendant is necessary Section 2. The body. The body of the pleading sets fourth its
Original claimant may amend pleading designation, the allegations of the party's claims or defenses,
If the original complaint is dismissed, the third-party complaint the relief prayed for, and the date of the pleading. (n)
shall also be dismissed
(a) Paragraphs. The allegations in the body of a pleading
Section 12. Bringing new parties. When the presence of shall be divided into paragraphs so numbered to be readily
parties other than those to the original action is required for identified, each of which shall contain a statement of a single
the granting of complete relief in the determination of a set of circumstances so far as that can be done with
counterclaim or cross-claim, the court shall order them to be convenience. A paragraph may be referred to by its number in
brought in as defendants, if jurisdiction over them can be all succeeding pleadings. (3a)
obtained. (14)
(b) Headings. When two or more causes of action are joined
Section 13. Answer to third (fourth, etc.)party complaint. A the statement of the first shall be prefaced by the words
third (fourth, etc.) party defendant may allege in his answer "first cause of action,'' of the second by "second cause of
his defenses, counterclaims or cross-claims, including such action", and so on for the others.
defenses that the third (fourth, etc.) party plaintiff may
have against the original plaintiff's claim. In proper cases, he When one or more paragraphs in the answer are addressed to
may also assert a counterclaim against the original plaintiff in one of several causes of action in the complaint, they shall be
respect of the latter's claim against the third-party plaintiff. prefaced by the words "answer to the first cause of action"
(n) 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, they shall be prefaced by words to
RULE 7: PARTS OF A PLEADING
that effect. (4)

Section 1. Caption. The caption sets forth the name of the (c) Relief. The pleading shall specify the relief sought, but it
court, the title of the action, and the docket number if may add a general prayer for such further or other relief as
assigned. may be deemed just or equitable. (3a, R6)

The title of the action indicates the names of the parties. (d) Date. Every pleading shall be dated. (n)
They shall all be named in the original complaint or petition;

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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ALLEGATIONS BY EXPRESS REFERENCE "knowledge, information and belief", or lacks a proper


Each cause of action must contain all of the essential facts verification, shall be treated as an unsigned pleading. (6a)
necessary to constitute a cause of action, but where a complaint
contains two or more causes of action, allegations contained in WHAT IS VERIFICATION AND HOW IS IT DONE?
one cause may be incorporated in the other by express A pleading is verified by an affidavit that the affiant has read
reference without the necessity of rewriting the same in the the pleading and that the allegations therein are true and
second cause correct of his knowledge and belief
A pleading required to be verified which contains a verification
Section 3. Signature and address. Every pleading must be based on "information and belief", or upon "knowledge,
signed by the party or counsel representing him, stating in information and belief", or lacks a proper verification, shall be
either case his address which should not be a post office box. treated as an unsigned pleading.
It is a statement under oath made by a party attesting to
The signature of counsel constitutes a certificate by him that causing preparation of the complaint and that he has read and
he has read the pleading; that to the best of his knowledge, understood the same to be correct and true
information, and belief there is good ground to support it; and
that it is not interposed for delay. Section 5. Certification against forum shopping. The plaintiff
or principal party shall certify under oath in the complaint or
An unsigned pleading produces no legal effect. However, the other initiatory pleading asserting a claim for relief, or in a
court may, in its discretion, allow such deficiency to be sworn certification annexed thereto and simultaneously filed
remedied if it shall appear that the same was due to mere therewith: (a) that he has not theretofore commenced any
inadvertence and not intended for delay. Counsel who action or filed any claim involving the same issues in any
deliberately files an unsigned pleading, or signs a pleading in court, tribunal or quasi-judicial agency and, to the best of his
violation of this Rule, or alleges scandalous or indecent knowledge, no such other action or claim is pending therein;
matter therein, or fails promptly report to the court a change (b) if there is such other pending action or claim, a complete
of his address, shall be subject to appropriate disciplinary statement of the present status thereof; and (c) if he should
action. (5a) thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five
Section 4. Verification. Except when otherwise specifically (5) days therefrom to the court wherein his aforesaid
required by law or rule, pleadings need not be under oath, complaint or initiatory pleading has been filed.
verified or accompanied by affidavit .(5a)
Failure to comply with the foregoing requirements shall not be
A pleading is verified by an affidavit that the affiant has curable by mere amendment of the complaint or other
read the pleading and that the allegations therein are true initiatory pleading but shall be cause for the dismissal of the
and correct of his knowledge and belief. case without prejudice, unless otherwise provided, upon motion
and after hearing. The submission of a false certification or
A pleading required to be verified which contains a non-compliance with any of the undertakings therein shall
verification based on "information and belief", or upon constitute indirect contempt of court, without prejudice to

BY: MA. ANGELA LEONOR C. AGUINALDO


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the corresponding administrative and criminal actions. If the If the acts of the party or his counsel clearly constitute willful
acts of the party or his counsel clearly constitute willful and and deliberate forum shopping, the same shall be ground for
deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct
summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
contempt, as well as a cause for administrative sanctions. (n)
RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
WHAT SHOULD BE CONTAINED IN THE SWORN STATEMENT?
1. That he has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi- Section 1. In general. Every pleading shall contain in a
judicial agency and, to the best of his knowledge, no such other methodical and logical form, a plain, concise and direct
action or claim is pending therein; statement of the ultimate facts on which the party pleading
2. If there is such other pending action or claim, a complete relies for his claim or defense, as the case may be, omitting
statement of the present status thereof; and the statement of mere evidentiary facts. (1)
3. If he should thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report that fact If a defense relied on is based on law, the pertinent
within five (5) days therefrom to the court wherein his aforesaid provisions thereof and their applicability to him shall be
complaint or initiatory pleading has been filed. clearly and concisely stated. (n)

TEST TO DETERMINE FORUM-SHOPPING NOTE: Unlike a complaint, which only alleges ultimate facts, the answer
Identity of parties may cite legal provisions relied upon for defense.
Rights or causes of action
Reliefs sought Section 2. Alternative causes of action or defenses. A party
may set forth two or more statements of a claim or defense
WHAT IS THE CONSEQUENCE OF FAILURE TO COMPLY WITH alternatively or hypothetically, either in one cause of action
CERTIFICATION REQUIREMENTS? or defense or in separate causes of action or defenses. When
Failure to comply with the foregoing requirements shall not be two or more statements are made in the alternative and one
curable by mere amendment of the complaint or other initiatory of them if made independently would be sufficient, the
pleading but shall be cause for the dismissal of the case without pleading is not made insufficient by the insufficiency of one or
prejudice, unless otherwise provided, upon motion and after more of the alternative statements. (2)
hearing.
ALTERNATIVE CAUSES OF ACTION OR DEFENSES
WHAT IF THERE IS FINDING THAT THE STATEMENT DISTINGUISHED FROM ALTERNATIVE RELIEFS
SUBMITTED IS FALSE? Should be distinguished from alternative reliefs
It shall constitute indirect contempt of court A single cause of action may entitle a party to alternative
This is without prejudice to the corresponding administrative and reliefs
criminal actions
ALTERNATIVE ALLEGATIONS

BY: MA. ANGELA LEONOR C. AGUINALDO


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There are cases where facts, essential to the plaintiffs cause of On the other hand, if the defendant wishes to raise an issue as
action, are within the knowledge of the defendant, but of which to his legal capacity to be sued, he may question the jurisdiction
the plaintiff is so imperfectly informed that he cannot state of the court over his person
them with certainty, even on information and belief
He may however know that one out of two or more sets of facts Section 5. Fraud, mistake, condition of the mind. In all
is true without knowing which of them is true averments of fraud or mistake the circumstances constituting
The facts being essential to his cause of action, he must state fraud or mistake must be stated with particularity. Malice,
them in one form or another and cannot very well file his intent, knowledge, or other condition of the mind of a person
complaint before so doing may be averred generally.(5a)
The proper procedure is for the plaintiff to state the facts
within his knowledge with certainty, but to plead in the Section 6. Judgment. In pleading a judgment or decision of a
alternative the, to him, doubtful facts, which are wholly within domestic or foreign court, judicial or quasi-judicial tribunal,
the defendants knowledge, and call upon the defendant to make or of a board or officer, it is sufficient to aver the judgment
a full disclosure of these facts or decision without setting forth matter showing jurisdiction
to render it. (6)
INCONSISTENT DEFENSES
It is sufficient that they are consistent with itself NOTE: Under this provision, the jurisdiction of the court a quo is
presumed.
Section 3. Conditions precedent. In any pleading a general
averment of the performance or occurrence of all conditions Section 7. Action or defense based on document. Whenever an
precedent shall be sufficient. (3) action or defense is based upon a written instrument or
document, the substance of such instrument or document shall
Section 4. Capacity. Facts showing the capacity of a party to be set forth in the pleading, and the original or a copy
sue or be sued or the authority of a party to sue or be sued thereof shall be attached to the pleading as an exhibit, which
in a representative capacity or the legal existence of an shall be deemed to be a part of the pleading, or said copy
organized association of person that is made a party, must be may with like effect be set forth in the pleading. (7)
averred. A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to sue or HOW TO PLEAD AN ACTION OR DEFENSE BASED ON A
be sued in a representative capacity, shall do so by specific DOCUMENT
denial, which shall include such supporting particulars as are The substance of the document must be set forth in the
peculiarly within the pleader's knowledge. (4) pleading
The original or copy of the document shall be attached to the
SPECIFIC NEGATIVE AVERMENT OR SPECIFIC DENIAL pleading as an exhibit, or said copy shall be set forth in the
If the defendant wishes to raise an issue as to the plaintiffs pleading (You summarize the actionable document and then you
legal capacity to sue, he may file a motion to dismiss on that attach as annex the actionable document)
ground, or set it up as an affirmative defense

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 8. How to contest such documents. When an action or 3. The corporation wasnt authorized under the charter to sign the
defense is founded upon a written instrument, copied in or instrument
attached to the corresponding pleading as provided in the 4. The party charged signed the instrument in some other capacity
preceding section, the genuineness and due execution of the than that alleged in the complaint
instrument shall be deemed admitted unless the adverse party, 5. At the time the document was signed, it was not in the words
under oath specifically denies them, and sets forth what he and figures exactly as set out in the pleading
claims to be the facts, but the requirement of an oath does 6. The document was never delivered
not apply when the adverse party does not appear to be a
party to the instrument or when compliance with an order for WHEN IS THE PROVISION NOT APPLICABLE (WHEN OATH IS
an inspection of the original instrument is refused. (8a) NOT REQUIRED IN A SPECIFIC DENIAL)
1. When adverse party doesnt appear to be a party to the
MEANING OF GENUINENESS AND DUE EXECUTION instrument
The party whose signature the document bears admits that he 2. When compliance with an order for the inspection of the original
signed it or that it was signed by another for him with his instruments is refused
authority
That at the time it was signed, it was in words and figures Inasmuch as it is sufficient to attach a copy of the instrument
exactly as set out in the pleading of the party relying upon it to or copy it in the pleading, it may be necessary for the
That the document was delivered, and that any formal requisites adverse party to examine the original in order to verify the
required by law, such as a seal, an acknowledgement, or revenue genuineness of the signature and other details
stamp, which it lacks, are waived by him
SPECIFIC DENIAL UNDER OATH MUST BE BASED ON PERSONAL
GENUINENESS DUE EXECUTION KNOWLEDGE
The instrument is not spurious, If signed by agent, it was with It is necessary that the genuineness and due execution of the
counterfeit, or of different import authority from the principal instrument shall be specifically denied before an issue is raised
on its face from the one executed upon this point
Where the name of the corporation This means that the defendant must declare under oath that he
is signed to the document which is didnt sign the document or that it is otherwise false or
the basis of the action, that the fabricated
officer executing the contract had
authority to bind the corporation SPECIFIC DENIAL NOT UNDER OATH
and that the corporation had the What is deemed admitted only is the genuineness and due
capacity to enter the contract execution of the instrument

Section 9. Official document or act. In pleading an official


DEFENSES WAIVED BY ADMISSION
document or official act, it is sufficient to aver that the
1. Forgery of the signature
document was issued or the act done in compliance with law.
2. Unauthorized signature
(9)

BY: MA. ANGELA LEONOR C. AGUINALDO


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those as to the amount of unliquidated damages, shall be


Section 10. Specific denial. A defendant must specify each deemed admitted when not specifically denied. Allegations of
material allegation of fact the truth of which he does not usury in a complaint to recover usurious interest are deemed
admit and, whenever practicable, shall set forth the admitted if not denied under oath. (1a, R9)
substance of the matters upon which he relies to support his
denial. Where a defendant desires to deny only a part of an MATERIAL AVERMENTS
averment, he shall specify so much of it as is true and Those important to the claim
material and shall deny only the remainder. Where a You dont have to make a denial to each and every sentence in
defendant is without knowledge or information sufficient to the complaint (it is a matter of style but there is a substantial
form a belief as to the truth of a material averment made to element into it)
the complaint, he shall so state, and this shall have the Some lawyers deny or try to answer each and every sentence to
effect of a denial. (10a) cover all areas but this can be forgone with since many are
actually embellishments to the complaint
DEFENDANT IS WITHOUT KNOWLEDGE OR INFORMATION When there are conclusions of facts and of law, even if there
SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH OF A was no denial of such, these wouldnt be considered as admitted
MATERIAL AVERMENT MADE IN THE COMPLAINT
This must be availed of with sincerity and in good faith, EXCEPTIONS TO THE RULE: NO SPECIFIC DENIAL SHALL BE
certainly neither for the purpose of confusing the adverse party DEEMED ADMITTED
as to what allegations of the complaint are really put in issue 1. Conclusions of facts and laws
nor for the purpose of delay 2. Immaterial averments
This defense is not applicable where the fact as to which want 3. Unliquidated damages (v. liquidated damagespre-agreed amount
of knowledge is asserted is, to the knowledge of the court, so of money to be paid in case of breach of agreement)must be
plainly and necessarily within the defendants knowledge that his proven
averment of ignorance must be palpably untrue
If there is something in the allegations you can neither admit Section 12. Striking out of pleading or matter contained
nor deny, then just deny it and it will be considered as a specific therein. Upon motion made by a party before responding to a
denial pleading or, if no responsive pleading is permitted by these
Rules, upon motion made by a party within twenty (20) days
NEGATIVE PREGNANT after the service of the pleading upon him, or upon the court's
Where a fact alleged with some qualifying or modifying own initiative at any time, the court may order any pleading
language, and the denial is specific to be stricken out or that any sham or false, redundant,
This is an ambiguous pleading since it cannot be ascertained immaterial, impertinent, or scandalous matter be stricken out
whether it is the fact or only the qualification that is intended therefrom. (5, R9)
to be denied
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
Section 11. Allegations not specifically denied deemed
admitted. Material averment in the complaint, other than

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 1. Amendments in general. Pleadings may be amended No. What is proper is to have the wife move for the dismissal of
by adding or striking out an allegation or the name of any her original complaint and then file another complaint for the
party, or by correcting a mistake in the name of a party or a different cause of action.
mistaken or inadequate allegation or description in any other What is the basis for this? The context of Section 1Pleadings
respect, so that the actual merits of the controversy may may be amended by adding or striking out an allegation or the
speedily be determined, without regard to technicalities, and name of any party, or by correcting a mistake in the name of a
in the most expeditious and inexpensive manner. (1) party or a mistaken or inadequate allegation or description in
any other respect, so that the actual merits of the controversy
Amendments may speedily be determined, without regard to technicalities,
and in the most expeditious and inexpensive manner.

Formal Substantial Section 2. Amendments as a matter of right. A party may


amend his pleading once as a matter of right at any time
before a responsive pleading is served or, in the case of a
WHAT IS A FORMAL AMENDMENT? WHAT IS A SUBSTANTIAL AMENDMENT? reply, at any time within ten (10) days after it is served. (2a)
Designation of parties (plaintiff|defendant) Adding or striking an allegation
Clerical or typographical errors Mistaken or inadequate allegation or WHEN A MATTER OF RIGHT
description in any other manner
A plaintiff may amend his complaint once as a matter of right at
any time before the answer
There being no responsive pleading to a reply, a reply may be
HOW CAN THIS BE MADE? HOW CAN THIS BE MADE?
amended within 10 days after it is served, without regard as to
Motu propio Before service of the responsive pleading
Motion of the party himself When not as matter of right? whether the action has been placed in the trial calendar
With leave of court. Defendant has the right to amend his answer before the reply is
served on him

If a matter of right: AN ANSWER IS A RESPONSIVE PLEADING, A MOTION TO


D mailed his responsive pleading to P DISMISS IS NOT
Amended before copy was served by court
A plaintiff may amend his complaint as a matter of right after
CAN PLAINTIFF STILL AMEND? Yes but 1x.
the filing of motion to dismiss by the defendant but before the
service of an answer
SITUATION: WHAT IF WIFE FILED A CASE FOR LEGAL There is no need for the court to allow the admission of an
SEPARATION AGAINST THE HUSBAND, WITH MANY amended complaint that is filed after the defendant files a
ALLEGATIONS AGAINST THE LATTER. BEFORE THE HUSBAND motion to dismiss but before the service of an answer
REPLIES, THE WIFE CHANGES HER MIND AND WOULD ONLY
WANT A SEPARATION OF PROPERTY. IS AMENDMENT WHEN ANOTHER SUMMONS MUST BE SERVED ON DEFENDANT;
PROPER? WHEN ANOTHER SUMMONS IS UNNECESSARY

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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If new causes of action are alleged in the amended complaint 7. A new cause of action included in an amended complaint doesnt
filed before the defendant has appeared in court, another relate back to the date of filing of the original complaint under
summons must be served on the defendant with the amended the statute of limitations
complaint
If the defendant has already appeared in court, a new summons MAY A COMPLAINT STATING NO CAUSE OF ACTION BE CURED
isnt necessary, and the defendant may be served a copy of the BY AMENDMENT?
amended complaint either by personal service, by mail or by Yes, if in fact a cause of action exists but the statement
substituted service thereof is defective for failure to allege essential facts

Section 3. Amendments by leave of court. Except as provided Section 4. Formal amendments. A defect in the designation of
in the next preceding section, substantial amendments may be the parties and other clearly clerical or typographical errors
made only upon leave of court. But such leave may be refused may be summarily corrected by the court at any stage of the
if it appears to the court that the motion was made with action, at its initiative or on motion, provided no prejudice is
intent to delay. Orders of the court upon the matters caused thereby to the adverse party. (4a)
provided in this section shall be made upon motion filed in
court, and after notice to the adverse party, and an HOW ARE FORMAL AMENDMENTS MAY BE CORRECTED?
opportunity to be heard. (3a) 1. Motu propio
2. On motion
NOTES ON THIS SECTION:
1. Amendments to pleadings liberally allowed in the furtherance of RELEVANT RULINGS OF THE COURT
justice 1. Complaint may be amended by substituting the real party in
2. An answer containing a general denial may be amended so as to interest as party plaintiff after the case has been submitted to
contain a specific denial the SC for decision on the merits
3. A plaintiff cannot after defendants answer, amend his complaint 2. Amendment to cure defect of party plaintiff may be made in the
by changing the cause of action or adding a new one without SC even after the final decision is rendered
previously obtaining a leave of court
4. Lack of plaintiffs capacity to sue may be raised by amendment Section 5. Amendment to conform to or authorize presentation
after both parties had already rested their cases of evidence. When issues not raised by the pleadings are
5. A cause of action which hasnt yet accrued cannot be cured by tried with the express or implied consent of the parties they
amended or supplemental pleadings shall be treated in all respects as if they had been raised in
6. In an obligation payable in installments with an acceleration the pleadings. Such amendment of the pleadings as may be
clause, inasmuch as the cause of action exists with respect to necessary to cause them to conform to the evidence and to
all the installments due and unpaid at the time of filing of the raise these issues may be made upon motion of any party at
complaint, a supplemental complaint may be filed for the any time, even after judgment; but failure to amend does not
subsequent accruing installments effect 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

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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pleadings to be amended and shall do so with liberality if the Section 6. Supplemental pleadings. Upon motion of a party
presentation of the merits of the action and the ends of the court may, upon reasonable notice and upon such terms as
substantial justice will be subserved thereby. The court may are just, permit him to serve a supplemental pleading setting
grant a continuance to enable the amendment to be made. (5a) forth transactions, occurrences or events which have happened
since the date of the pleading sought to be supplemented. The
WHAT IS THIS SECTION ALL ABOUT? adverse party may plead thereto within ten (10) days from
This rule allows a complaint which states no cause of action to notice of the order admitting the supplemental pleading. (6a)
be cured either by evidence presented without objection or, in
the event of an objection sustained by the court, by an DISTINCTION BETWEEN AMENDED AND SUPPLEMENTAL
amendment of the complaint with leave of court PLEADINGS
For example, during the course of the trial, the other party AMENDED PLEADINGS SUPPLEMENTAL PLEADINGS
introduces evidence for a new cause of action, which wasnt Proper in order to allege facts Proper in order to allege facts
mentioned anywhere in the pleadings submitted or in the pre- which occurred prior to the filing which occurred after the filing of
trial order of the original pleadings, but for the original pleadings
This section isnt applicable if no evidence whatsoever is which reason, such as oversight,
introduced inadvertence, or subsequent
discovery, were not alleged therein
AMENDMENT WITHOUT OBJECTION Designed to include matters Are designed to cover matters
It isnt necessary to amend the pleading in order to make it occurring before the filing of the subsequently occurring but
conform to the evidence bill but either overlooked or not pertaining to the original cause
The result of the trial will not be affected because of the known at the time
consent of both parties
SUPPLEMENTAL ANSWER AFTER JUDGMENT
AMENDMENT WITH OBJECTION
Should be allowed where the defendant invokes therein a fact,
If the adverse party objects to the presentation of evidence of
which, although known to him at the time he submitted his
an essential fact not alleged in the pleading, the court may
answer, he justifiably cannot then assert because of the danger
sustain the objection
involved. Consequently, a new trial was in order.
But the court shall freely allow the pleadings to be amended
A supplemental answer cannot be filed after judgment has
when the presentation of the merits of the action will be
become final
subserved thereby and the admission of such evidence wouldnt
prejudice the objecting party in maintaining his action or
ISNT THERE A SHORTER PERIOD GIVEN WITH THE TEN-DAY
defense upon the merits
PERIOD TO FILE A RESPONSIVE PLEADING?
After the amendment has been allowed and made, the evidence
No because the 10-day period is counted from the date of notice
objected to may be presented, for in such case, the fact to be
of the order admitting the supplemental pleading and not upon
proved is already alleged in the pleading
the filing of said pleading
It is discretionary upon the court to decide

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 35 -

Section 7. Filing of amended pleadings. When any pleading is GOVERNMENT OFFICIALS DESIGNATED BY LAW TO RECEIVE
amended, a new copy of the entire pleading, incorporating the SUMMONS
amendments, which shall be indicated by appropriate marks, 1. Foreign corporationSEC
shall be filed. (7a) 2. Foreign banking corporationBangko Sentral Deputy Governor In-
Charge of the supervising and examining departments should
NOTE: Unlike a supplemental pleading which may allege separately the there be no Philippine agent designed to receive such
events that occurred after the original pleading, an amended pleading 3. Foreign insurance companyInsurance Commissioner
should incorporate all events which occurred prior to the original pleading
in a new copy of the entire pleading. Section 3. Answer to amended complaint. When the plaintiff
files an amended complaint as a matter of right, the
Section 8. Effect of amended pleadings. An amended pleading defendant shall answer the same within fifteen (15) days after
supersedes the pleading that it amends. However, admissions in being served with a copy thereof.
superseded pleadings may be received in evidence against the
pleader, and claims or defenses alleged therein not Where its filing is not a matter of right, the defendant shall
incorporated in the amended pleading shall be deemed waived. answer the amended complaint within ten (l0) days from notice
(n) of the order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint if no new
answer is filed.
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
(What is important to know is how to count the period)
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third (fourth,
Section 1. Answer to the complaint. The defendant shall file etc.)party complaint, and amended complaint-in-intervention.
his answer to the complaint within fifteen (15) days after (3a)
service of summons, unless a different period is fixed by the
court. (la) Section 4. Answer to counterclaim or cross-claim. A
counterclaim or cross-claim must be answered within ten (10)
NOTE: The date of service of the summons is excluded in the days from service. (4)
computation of the fifteen days.
NOTE: A compulsory counterclaim that merely reiterates special
Section 2. Answer of a defendant foreign private juridical defenses which are deemed controverted even without a reply, or raises
entity. Where the defendant is a foreign private juridical issues which are deemed automatically joined by the allegations of the
entity and service of summons is made on the government complaint, need not be answered. However, a compulsory counterclaim
official designated by law to receive the same, the answer which raises issues not covered by the complaint should be answered
shall be filed within thirty (30) days after receipt of summons within 10 days from service thereof; otherwise, the plaintiff may be
by such entity. (2a) declared in default.

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 36 -

Section 5. Answer to third (fourth, etc.)-party complaint. The court may also, upon like terms, allow an answer or other
The time to answer a third (fourth, etc.)party complaint shall pleading to be filed after the time fixed by these Rules. (7)
be governed by the same rule as the answer to the complaint.
(5a) NOTE:
1. A motion for extension of time to plead must be filed before the
Section 6. Reply. A reply may be filed within ten (10) days expiration of the time sought to be extended
from service of the pleading responded to. (6) 2. If the last day of the period for filing a pleading falls on a
Saturday, Sunday or holiday, any extension of time to file the
Section 7. Answer to supplemental complain. A supplemental same should be counted from the expiration of the period
complaint may be answered within ten (10) days from notice of regardless of the fact that said date is a Saturday, Sunday, or a
the order admitting the same, unless a different period is holiday.
fixed by the court. The answer to the complaint shall serve as 3. In case the date the pleading is due falls on a Sunday. You file
the answer to the supplemental complaint if no new or a motion for extension on a Friday. How will the period be
supplemental answer is filed. (n) counted? From the original deadline, in this case Sunday. The
15-day period will be counted from Sunday and not when the
Section 8. Existing counterclaim or cross-claim. A compulsory motion for extension has been filed.
counterclaim or a cross-claim that a defending party has at 4. In case you file a motion for extension of time to plead and the
the time he files his answer shall be contained therein. (8a, court acts on the motion for a long time, the period will run still
R6) from the original due date of the pleading. (The court is in
actuality just affirming your motion)
Section 9. Counterclaim or cross-claim arising after answer. 5. What if in case the court shall deny the motion for extension of
A counterclaim or a cross-claim which either matured or was time? You assumed that you can file the pleading during the
acquired by a party after serving his pleading may, with the expected extended period. What will happen is that your
permission of the court, be presented as a counterclaim or a opponent capitalizes on this. What is important is that the
cross-claim by supplemental pleading before judgment. (9, R6) motion is filed already and is in the records of the court. You
can bank on this and use it to indulge the court not to strike out
Section 10. Omitted counterclaim or cross-claim. When a the motion.
pleader fails to set up a counterclaim or a cross-claim 6. In filing the motion for extension of time to plead, there is no
through oversight, inadvertence, or excusable neglect, or when mention in the rules on how long the time will be. You need to
justice requires, he may, by leave of court, set up the indicate the number of days and it shall be discretionary on the
counterclaim or cross-claim by amendment before judgment. part of the court on whether to grant that number of days or
(3, R9) not. The rules will usually specify the number of days to be
granted in motions for extension with respect to higher courts.
Section 11. Extension of time to plead. Upon motion and on
such terms as may be just, the court may extend the time to PLEADING TO BE FILED WHEN TO FILE
plead provided in these Rules. Answer to the complaint; answer Within 15 days from service of
to a third party complaint summons

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 37 -

Answer by foreign juridical entity If it is made on the government Counterclaim or crossclaim arising May, with the permission of the
official designated by law to or maturing after filing of an court, be presented as a
receive the same, the answer shall answer counterclaim or a cross-claim by
be filed within thirty (30) days supplemental pleading before
after receipt of summons by such judgment
entity.

*For examplein case of a foreign RULE 9: EFFECT OF FAILURE TO PLEAD


insurance company, summons was
served to the Insurance commission Section 1. Defenses and objections not pleaded. Defenses and
on November 11. The company objections not pleaded either in a motion to dismiss or in the
received it by the 20th. The 30- answer are deemed waived. However, when it appears from the
days should be counted from the pleadings or the evidence on record that the court has no
20th of November and not the 11th. jurisdiction over the subject matter, that there is another
Answer to amended complaint It depends. action pending between the same parties for the same cause,
(also applicable to answer to an or that the action is barred by a prior judgment or by statute
amended counterclaim, croosclaim, If it is a matter of right, the of limitations, the court shall dismiss the claim. (2a)
3rd party complaint, compliant-in- defendant shall answer the same
intervention) within fifteen (15) days after being WHAT IS THE OMNIBUS MOTION RULE?
served with a copy thereof. Defenses and objections not pleaded either in a motion to dismiss
or in the answer are deemed waived.
When it is not a matter of right, In connection with summons, in case summons wasnt properly
the defendant shall answer the served on you. You want to question jurisdiction of court over
amended complaint within ten (l0) your person. You file by special appearance a motion to dismiss.
days from notice of the order The first ground youll mention is that there is no jurisdiction
admitting the same. over your person. Under the omnibus motion rule, you can add
An answer earlier filed may serve other grounds. The inclusion of these grounds will not be
as the answer to the amended considered as a voluntary appearance. This is only compliance
complaint if no new answer is filed. with the rules that you have to mention every ground.

Reply Within 10 days from the filing of EXCEPTIONS


the pleading to be responded to 1. Lack of jurisdiction over the subject matter
Answered to supplemental Within 10 days from the notice of Jurisdiction over the person must be reasonably raised.
complaint order admitting the same Voluntary appearance shall be deemed a waiver of this
Existing counterclaim or crossclaim The same time with filing of his defense. The assertion however of affirmative defenses
answer shall not be construed as an estoppel or as a waiver of
such defense.

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 38 -

Where the court itself clearly has no jurisdiction over WHEN SUPPLEMENTAL ANSWER IS PROPER
the subject matter or the nature of the action, the A supplemental answer is proper if the counterclaim or
invocation of this defense may be done at any time. it crossclaim matures or is acquired after the answer is filed
is neither for the courts nor the parties to violate or In both cases, the amended or supplemental answer must be
disregard that rule, let alone confer that jurisdiction, filed with leave of court before judgment
the matter being legislative in character. Barring
highly meritorious and exceptional circumstances, such THE ONE COMPELLING TEST OF COMPULSORINESS
as hereinbefore exemplified, neither estoppel nor waiver Any claim a party has against an opposing party that is logically
shall apply related to the claim being asserted by the opposing party and
2. Pendency of another action between the same parties for the that isnt within the exceptions to the rule is a compulsory
same cause or litis pendentia counterclaim
3. Bar by prior judgment or res judicata A counterclaim is logically related to the opposing partys claim
4. Statute of limitations or prescription where separate trials of each of their respective claims would
involve a substantial duplication of effort and time by the
If these grounds appear from the pleadings or the evidence on parties and the courts
record, the court shall dismiss the claim Where multiple claims involve many of the same factual issues,
The former rule limited the exceptions to failure to state a or the same factual and legal issues, or where they are off-
cause of action and lack of jurisdiction over the subject matter shoots of the same basic controversy between the parties,
The waiver under this section isnt irrevocable and relief may be fairness and considerations of convenience and of economy
obtained from the consequences of such waiver by amendment require that the counterclaimants be permitted to maintain his
with section 3 and 5 of Rule 10 cause of action
A motion to dismiss for failure to state a cause of action may be
made after the answer has been filed, or at any stage of the CLAIM FOR ATTORNEYS FEES
proceedings when the motion is based upon a plaintiffs failure to In respect of attorneys fees, where a claim therefor arises out
state a cause of action of the filing of the complaint, they, too should be considered as
The failure to state a cause of action may however be cured in the nature of a compulsory counterclaim
under Section 5 of Rule 10 They should be pleaded or prayed for in the answer to the
complaint in order to be revocable, otherwise, they would be
Section 2. Compulsory counterclaim, or cross-claim, not set up barred
barred. A compulsory counterclaim, or a cross-claim, not set But a claim against the lawyer of plaintiff cannot be filed as a
up shall be barred. (4a) counterclaim and should be filed in a separate action

WHEN AMENDED ANSWER IS PROPER AFTER-ACQUIRED COUNTERCLAIM IS NOT COMPULSORY


If the counterclaim or crossclaim already existed at the time After-acquired counterclaimone of the recognized exemptions
the original answer is filed, but due to oversight, inadvertence, to the general rule that a counterclaim is compulsory and must
or excusable neglect, it wasnt set up be asserted if it arises out of the same transactions as the
opposing partys claim

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 39 -

It is not barred even if it not set up in the previous case as a WHAT IF THERE IS FAILURE TO ANSWER TO A
counterclaim COUNTERCLAIM?
It may by the courts permission be included in the same case by
way of supplemental pleading before judgment
And the same may be allowed unless the case has progressed so A VS. B
far that it may be inconvenient or confusing to allow the
additional claim to be pleaded (counterclaim)

COMPULSORY COUNTERCLAIM CURES JURISDICTIONAL


If the counterclaim is compulsory, A will not be declared in
DEFECT, IF ANY, IN COMPLAINT
default.
Although the original claim involves less than the jurisdictional
If the counterclaim is permissive, A can be declared in default
amount, jurisdiction can be sustained if the compulsory
The same goes with a cross-claim. It must be answered.
counterclaim falls within the jurisdictional amount

WHAT WOULD HAPPEN IF IT IS THE COMPLAINT YOU FAILED


WHAT IS THE EFFECT OF FAILURE TO ANSWER A THIRD-
TO FILE?
PARTY COMPLAINT?
Your cause of action may prescribe and you may be held guilty
The same situation
of laches
The third-party complainant may file a motion to declare the
third-party defendant in default
Section 3. Default; declaration of. If the defending party
fails to answer within the time allowed therefor, the court
WHAT IF THE COMPLAINT IS AMENDED AND YOU FAILED TO
shall, upon motion of the claiming party with notice to the
ANSWER THE AMENDED COMPLAINT. WHAT WOULD BE THE
defending party, and proof of such failure, declare the
CONSEQUENCE?
defending party in default. Thereupon, the court shall proceed
The original answer will stand and that in case of new matters
to render judgment granting the claimant such relief as his
raised in the amended complaint, it will be risky to just sit on
pleading may warrant, unless the court in its discretion
the amended complaint
requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court. (1a, R18)
WHAT IF THERE IS A SUPPLEMENTAL COMPLAINT AND THERE
WAS FAILURE TO ANSWER. WHAT WOULD BE THE
(a) Effect of order of default. A party in default shall be
CONSEQUENCE?
entitled to notice of subsequent proceedings but not to take
The answer in the original complaint shall be deemed to be the
part in the trial. (2a, R18)
answer to the supplemental complaint
It is riskier for one not to answer the supplemental complaint
(b) Relief from order of default. A party declared in default
there are new occurrences or transactions that have been
may at any time after notice thereof and before judgment file
included you havent covered yet in your defense
a motion under oath to set aside the order of default upon
proper showing that his failure to answer was due to fraud,
accident, mistake or excusable negligence and that he has a

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 40 -

meritorious defense. In such case, the order of default may be The claiming party must prove that the defendant is in default
set aside on such terms and conditions as the judge may (the most important proof is the sheriffs returnit indicates the
impose in the interest of justice. (3a, R18) date when the defendant received the summons; another is to
refer to the records of the casethere is no answer filed by the
(c) Effect of partial default. When a pleading asserting a defendant). Important to establish the starting point as well as
claim states a common cause of action against several the records.
defending parties, some of whom answer and the others fail to
do so, the court shall try the case against all upon the WHAT CAN BE A POSSIBLE GROUND THAT THE DEFENDANT
answers thus filed and render judgment upon the evidence CAN RAISE TO OPPOSE THE DECLARATION OF DEFAULT?
presented. (4a, R18). The answer was filed within the reglementary period but then it
is not in the records yet because you filed it using registered
(d) Extent of relief to be awarded. A judgment rendered mail (proof will be the return card)
against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated WHAT WILL HAPPEN IF THE DEFENDANT IS DECLARED IN
damages. (5a, R18). DEFAULT?
A party in default shall be entitled to notice of subsequent
(e) Where no defaults allowed. If the defending party in an proceedings but not to take part in the trial.
action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order the WHAT IS THE REMEDY OF THE DEFENDANT IN CASE OF
prosecuting attorney to investigate whether or not a collusion DECLARATION OF DEFAULT?
between the parties exists, and if there is no collusion, to File a motion to set aside the order of default
intervene for the State in order to see to it that the The motion must be under oath and must be accompanied by an
evidence submitted is not fabricated. (6a, R18) affidavit of merit (shows that the failure to file was due to
fraud, accident, mistake or excusable negligencestate the
SITUATION: YOU HAVE UNTIL TODAY TO FILE AN ANSWER TO particular facts constituting the same; and show that you have
THE COMPLAINT BUT YOU FILED YOUR ANSWER A WEEK a meritorious defense)
FROM NOW. ARE YOU IN DEFAULT? There should proper showing that his failure to answer was due
No, the delay in filing a pleading doesnt automatically declare to fraud, accident, mistake or excusable negligence and that he
one to be in default has a meritorious defense.
In such case, the order of default may be set aside on such
WHAT IS THE PROCEDURE IN DECLARING A PARTY IN terms and conditions as the judge may impose in the interest of
DEFAULT? justice.
The opposing party shall file a motion to declare defendant in
default WITH RESPECT TO THE PLAINTIFF, WHAT IS THE
The motion and notice shall be sent to the defendant SIGNIFICANCE OF THE ORDER OF DEFAULT?
A hearing shall be set for the motion and the court may require Most probably, it would be a favorable judgment
the parties to submit evidence

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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THE GENERAL RULE IS THAT NO TRIAL WILL BE COMMENCED thereof. Such motion shall point out the defects complained
IN CASE OF DEFAULT. THE JUDGE MAY STILL REQUIRE THE of, the paragraphs wherein they are contained, and the
PRESENTATION OF EVIDENCE. details desired. (1a)
In case of ex parte presentation of evidence, the clerk of court
may be the one to receive the evidence to be submitted by the Section 2. Action by the court. Upon the filing of the motion,
plaintiff. This is discretionary on the part of the court. the clerk of court must immediately bring it to the attention
of the court which may either deny or grant it outright, or
SHOULD THE JUDGE CHOOSE TO RENDER JUDGMENT NOW, allow the parties the opportunity to be heard. (n)
WITHOUT NEED TO PRESENT EVIDENCE BY THE PLAINTIFF,
WHAT ARE THE LIMITATIONS TO THE JUDGMENT THAT THE The motion should be set for hearing
COURT MAY RENDER? However, to avoid delay, the motion should be immediately
A judgment rendered against a party in default shall not exceed brought to the attention of the court for appropriate action
the amount or be different in kind from that prayed for nor whether to grant or deny it or hold a hearing thereon
award unliquidated damages.
Section 3. Compliance with order. If the motion is granted,
IN CASE THE DEFENDANT IS DECLARED IN DEFAULT, DOES IT either in whole or in part, the compliance therewith must be
AUTOMATICALLY MEAN THAT THE PLAINTIFF IS THE VICTOR? effected within ten (10) days from notice of the order, unless
It doesnt automatically mean that the movant is the ultimate a different period is fixed by the court. The bill of
victor because the court must still decide the merits of the case particulars or a more definite statement ordered by the court
Section 1 of Rule 9 may be filed either in a separate or in an amended pleading,
serving a copy thereof on the adverse party. (n)
WHAT ARE THE CASES ON WHICH THERE COULDNT BE ANY
ORDER OF DEFAULT? The bill of particulars must be submitted either separately or
1. Declaration of nullity of marriage incorporated in an amended pleading within 10 days from notice
2. Legal separation of the order granting the motion
3. Annulment cases
4. Summary procedure Section 4. 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 the
RULE 12: BILL OF PARTICULARS
portions thereof to which the order was directed or make such
other order as it deems just. (1[c]a)
Section 1. When applied for; purpose. Before responding to a
pleading, a party may move for a definite statement or for a Failure to comply may be a ground for dismissal
bill of particulars of any matter which is not averted with The dismissal unless made without prejudice, would be a bar to
sufficient definiteness or particularity to enable him properly any subsequent action on the same cause
to prepare his responsive pleading. If the pleading is a reply,
the motion must be filed within ten (10) days from service

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 5. Stay of period to file responsive pleading. After No because if the ultimate facts are not there and the cause of
service of the bill of particulars or of a more definite action is not properly laid down, then the remedy is to file a
pleading, or after notice of denial of his motion, the moving motion to dismiss
party may file his responsive pleading within the period to The filing of bill of particulars pertain not to the cause of
which he was entitled at the time of filing his motion, which action
shall not be less than five (5) days in any event. (1[b]a)
Section 6. Bill a part of pleading. A bill of particulars
If the motion is granted, the moving party may file his becomes part of the pleading for which it is intended. (1[a]a)
responsive pleading within the period remaining at the time when
he filed the motion for bill of particulars, but in any event not The bill of particulars becomes an integral part of the pleading
less than 5 days, counted from the service of the bill of being supplied
particulars or amended pleading
If the motion isnt granted, the movant has the same period,
RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS
counted from notice of denial, within which to file his responsive
AND OTHER PAPERS
pleading
The filing of motion for bill of particulars suspends the running
of the period to file an answer or a motion to dismiss. It is Section 1. Coverage. This Rule shall govern the filing of all
resumed upon the amended complaint being filed in compliance pleadings and other papers, as well as the service thereof,
with the order of the court granting the motion. except those for which a different mode of service is
prescribed. (n)
IS IT POSSIBLE THAT THE DEFENDANT BE THE ONE ASKED OF
A BILL OF PARTICULARS? Section 2. Filing and service, defined. Filing is the act of
Yes, in case of a reply to be filed by the plaintiff presenting the pleading or other paper to the clerk of court.

IN CASE THE DEFENDANT FAILS TO COMPLY? Service is the act of providing a party with a copy of the
In case of a counterclaim, it may be dismissed pleading or paper concerned. If any party has appeared by
In case of his defense itself, for example fraud was posed as counsel, service upon him shall be made upon his counsel or
defense without specifying facts constituting the same. The one of them, unless service upon the party himself is ordered
defense of fraud will be stricken out but not the whole answer. by the court. Where one counsel appears for several parties,
In case the whole defense was ambiguous and there was no he shall only be entitled to one copy of any paper served upon
compliance, the defense will be stricken out and he would then him by the opposite side. (2a)
be considered in default.
FILING V. SERVICE
IN A BILL OF PARTICULARS, ARE WE CONTEMPLATING THE Filing is the act of presenting the pleading or other paper to the
ULTIMATE FACTS CONSTITUTING THE CAUSE OF ACTION? clerk of court (filing=clerk of court)
Service is the act of providing a party with a copy of the
pleading or paper concerned (service=adverse party)

BY: MA. ANGELA LEONOR C. AGUINALDO


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1. Personal service to his person or counsel (if not found,


WHEN SERVICE UPON PARTY HIMSELF MAY BE ORDERED first try out the office of either counsel or person
1. When the attorney of record cannot be located either because himself and in case there is no office, the residence of
he gave no address or changed his given address again either counsel or person himself)
2. An order to show cause why a party shouldnt be punished for 2. Note that compared to service of summons, the above
contempt for disobeying a special judgment situation still considered as personal service
3. It could also be done through registered mail
OTHER PLEADINGS 4. In case the two cannot be availed of, there will be
Pertains to pleadings after the complaint substituted service (delivery to the clerk of court)

Section 3. Manner of filing. The filing of pleadings, Section 4. Papers required to be filed and served. Every
appearances, motions, notices, orders, judgments and all other judgment, resolution, order, pleading subsequent to the
papers shall be made by presenting the original copies complaint, written motion, notice, appearance, demand, offer
thereof, plainly indicated as such, personally to the clerk of of judgment or similar papers shall be filed with the court,
court or by sending them by registered mail. In the first case, and served upon the parties affected. (2a)
the clerk of court shall endorse on the pleading the date and
hour of filing. In the second case, the date of the mailing of PAPERS REQUIRED TO BE FILED AND SERVED
motions, pleadings, or any other papers or payments or 1. Papers coming from the court
deposits, as shown by the post office stamp on the envelope a. Judgments, Orders, Resolutions, etc.
or the registry receipt, shall be considered as the date of b. Filing first then the clerk of court through the process
their filing, payment, or deposit in court. The envelope shall server, will be served
be attached to the record of the case. (1a) 2. Papers coming from the parties
a. Motions, Appearances, Pleadings
TRANSMISSION THROUGH PRIVATE LETTER-FORWARDER, NOT b. Service first before filing
RECOGNIZED
The date of delivery of pleading to a private letter-forwarding WHAT CONSTITUTES PROMULGATION?
agency, isnt to be considered as the date of filing thereof in Judgments, orders, and resolutions of the court should first be
court, and that in such cases, the date of actual receipt by the filed with the clerk of court before they are served upon the
court and not the date of delivery to the private carrier is parties concerned
deemed to be the date of filing of the pleading The act of filing constitutes rendition or promulgation thereof
In the case of pleadings subsequent to the original complaint and
MANNER OF FILING written motions, etc. they should be first served on the parties
Papers coming from the courtpresenting original copies thereof affected before they are filed with the court
to the clerk of court personally (it is HIGHLY impractical to Ex-parte written motions are now required to be served on the
have it sent through registered mail) parties affected, although they need not be set for hearing
Papers coming from the court

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 5. Modes of service. Service of pleadings motions, Distinguished from substituted service at his residence or
notices, orders, judgments and other papers shall be made constructive service by publication
either personally or by mail. (3a)
SERVICE OF PAPERS DISTINGUISHED FROM SERVICE OF FINAL
MODES OF SERVICE ORDERS OR JUDGMENTS
1. Personal service Service of papers may be made by personal service, registered
2. By mail mail, if available, and if not, by ordinary mail or substituted
3. Substituted service or publication service
Service of final orders or judgmentsshall be served either
MODES OF SERVICE MAY NOT BE CHANGED BY PARTIES personally, or by registered mail, or by publication
1. The mere fact that a party was either informed of, or gained
access to, the records of the court and was thus able to take a Section 7. Service by mail. Service by registered mail shall
look at the decision, doesnt constitute service be made by depositing the copy in the post office in a sealed
2. A party isnt considered as having been served with the envelope, plainly addressed to the party or his counsel at his
judgment merely because he heard the judge dictating the said office, if known, otherwise at his residence, if known, with
judgment in open court; it is necessary that he be served with a postage fully prepaid, and with instructions to the postmaster
copy of the signed judgment that he has been filed with the to return the mail to the sender after ten (10) days if
clerk of court undelivered. If no registry service is available in the locality
of either the senders or the addressee, service may be done
SERVICE OF SUMMONS V. SERVICE OF PLEADINGS by ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)
Service of summonsimportant to acquire jurisdiction
Service of pleadingsafter either service of summons or HOW IS REGISTERED MAIL DONE?
voluntary appearance of defendant, he may then be served with It is made by depositing the copy in the post office in a sealed
pleadings either personally or by mail envelope, plainly addressed to the party or his counsel at his
office, if known, otherwise at his residence, if known, with
Section 6. Personal service. Service of the papers may be postage fully prepaid, and with instructions to the postmaster to
made by delivering personally a copy to the party or his return the mail to the sender after ten (10) days if undelivered
counsel, or by leaving it in his office with his clerk or with a If no registry service is available in the locality of either the
person having charge thereof. If no person is found in his senders or the addressee, service may be done by ordinary mail
office, or his office is not known, or he has no office, then by
leaving the copy, between the hours of eight in the morning Section 8. Substituted service. If service of pleadings,
and six in the evening, at the party's or counsel's residence, if motions, notices, resolutions, orders and other papers cannot
known, with a person of sufficient age and discretion then be made under the two preceding sections, the office and
residing therein. (4a) place of residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of
MEANING OF SERVICE PERSONALLY court, with proof of failure of both personal service and
Service of process on one by actual delivery thereof to him

BY: MA. ANGELA LEONOR C. AGUINALDO


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service by mail. The service is complete at the time of such Service by ordinary mail=complete upon expiration of 10 days
delivery. (6a) after mailing unless otherwise provided by the court
Service by registered mail=complete upon actual receipt by the
WHAT IS SUBSTITUTED SERVICE WITH RESPECT TO SERVICE addressee or after 5 days from the date he received the first
OF PLEADINGS? notice of the postmaster, whichever date is earlier
It is when personal service and registered mail cannot be made
because either the office and place of residence of the party or Section 11. Priorities in modes of service and filing. Whenever
his counsel being unknown practicable, the service and filing of pleadings and other
Substituted service may be made by delivering the copy to the papers shall be done personally. Except with respect to
clerk of court, with proof of failure of both personal service and papers emanating from the court, a resort to other modes
service by mail must be accompanied by a written explanation why the service
Service is complete at time of delivery or filing was not done personally. A violation of this Rule may
be cause to consider the paper as not filed. (n)
WHAT IS THE PROOF BEING CONTEMPLATED IN THIS
SECTION? Section 12. Proof of filing. The filing of a pleading or paper
Proof of filing if it is in the records shall be proved by its existence in the record of the case. If
Or with respect to registered mail, the registry receipt card and it is not in the record, but is claimed to have been filed
affidavit of the person who did the mailing personally, the filing shall be proved by the written or
stamped acknowledgment of its filing by the clerk of court on
Section 9. Service of judgments, final orders, or resolutions. a copy of the same; if filed by registered mail, by the
Judgments, final orders or resolutions shall be served either registry receipt and by the affidavit of the person who did
personally or by registered mail. When a party summoned by the mailing, containing a full statement of the date and place
publication has failed to appear in the action, judgments, final of depositing the mail in the post office in a sealed envelope
orders or resolutions against him shall be served upon him also addressed to the court, with postage fully prepaid, and with
by publication at the expense of the prevailing party. (7a) instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered. (n)
Section 10. Completeness of service. Personal service is
complete upon actual delivery. Service by ordinary mail is Section 13. Proof of Service. Proof of personal service shall
complete upon the expiration of ten (10) days after mailing, consist of a written admission of the party served, or the
unless the court otherwise provides. Service by registered official return of the server, or the affidavit of the party
mail is complete upon actual receipt by the addressee, or serving, containing a full statement of the date, place and
after five (5) days from the date he received the first notice manner of service. If the service is by ordinary mail, proof
of the postmaster, whichever date is earlier. (8a) thereof shall consist of an affidavit of the person mailing of
facts showing compliance with section 7 of this Rule. If
WHEN IS SERVICE COMPLETE? service is made by registered mail, proof shall be made by
Personal service=complete upon actual delivery such affidavit and the registry receipt issued by the mailing
office. The registry return card shall be filed immediately

BY: MA. ANGELA LEONOR C. AGUINALDO


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upon its receipt by the sender, or in lieu thereof the WHAT ARE SOME EXAMPLES OF RELIEFS PRAYED FOR APART
unclaimed letter together with the certified or sworn copy of FROM THE ULTIMATE OBJECTIVES SET FORTH IN PLEADINGS?
the notice given by the postmaster to the addressee. (10a) 1. Motion for continuance (used most of the time interchangeably
with postponement)if you dont want the trial to proceed during
Section 14. Notice of lis pendens. In an action affecting the that date and time, you file a motion for postponement before
title or the right of possession of real property, the plaintiff that date and time; on the other hand, if the trial is already
and the defendant, when affirmative relief is claimed in his ongoing and you want to continue it some other time, you file a
answer, may record in the office of the registry of deeds of motion for continuance to reschedule the hearing to a different
the province in which the property is situated notice of the time and date
pendency of the action. Said notice shall contain the names of 2. Motion to declare other party in default | motion to set aside
the parties and the object of the action or defense, and a the order of default
description of the property in that province affected thereby. 3. Motion for extension of time to file pleading
Only from the time of filing such notice for record shall a 4. Motion for application for temporary restraining order
purchaser, or encumbrancer of the property affected thereby, 5. Motion for application for preliminary injunction
be deemed to have constructive notice of the pendency of the 6. Motion for application for temporary injunction
action, and only of its pendency against the parties designated 7. Motion for judgment on the pleadings/Motion for summary
by their real names. judgmentmotions that seek judgment on the whole case

The notice of lis pendens hereinabove mentioned may be Section 2. Motions must be in writings. All motions shall be in
cancelled only upon order of the court, after proper showing writing except those made in open court or in the course of a
that the notice is for the purpose of molesting the adverse hearing or trial. (2a)
party, or that it is not necessary to protect the rights of the
rights of the party who caused it to be recorded. (24a, R-14) HOW SHOULD MOTIONS BE MADE?
It should be in writing except those made in open court or in the
court of the hearing or trial
RULE 15: MOTIONS
Section 3. Contents. A motion shall state the relief sought to
Section 1. Motion defined. A motion is an application for be obtained and the grounds upon which it is based, and if
relief other than by a pleading. (1a) required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and
WHAT IS A MOTION? other papers. (3a)
It is a written application for relief other than by a pleading
Pleadingscomplaints, answers, counterclaims, crossclaims, third- WHAT SHOULD THE MOTION CONTAIN?
party/fourth-party complaints 1. Relief sought to be obtained
Used interchangeably with APPLICATIONS 2. Grounds upon which it is based

BY: MA. ANGELA LEONOR C. AGUINALDO


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3. And if required by the Rules or necessary to prove facts alleged Every written motion required to be heard and the notice of
therein, it shall be accompanied by supporting affidavits or other the hearing thereof shall be served in such a manner as to
papers ensure its receipt by the other party at least three (3) days
a. If the facts are already in the records or can be before the date of hearing, unless the court for good cause
deduced from the records, then there is no need to sets the hearing on shorter notice. (4a)
accompany the motion by supporting affidavits or other
documents LITIGATED MOTIONS
b. If the facts dont exist yet in the records or cannot be When the adverse party needs to be heard as his rights may be
deduced from the records, then there is a need to prejudiced otherwise
accompany the motion with supporting affidavits or
other documents EX PARTE MOTIONS
Not prejudicial to the adverse party
WHAT IS AN EXAMPLE OF MOTION WHEREIN THE May be filed in the absence of hearing
SUPPORTING FACTS CANNOT BE DEDUCED FROM OR EXISTING
YET IN THE RECORDS? Section 5. Notice of hearing. The notice of hearing shall be
Motion to set aside the order of defaultthe proof that you addressed to all parties concerned, and shall specify the time
have filed in time the answer (by showing the registry receipt or and date of the hearing which must not be later than ten (10)
return card) days after the filing of the motion. (5a)
1. Registry receiptproves that you indeed filed the
pleading (remember that date of posting is equivalent to WHAT IS THE RULE WITH REGARD NOTICE OF HEARING?
date of filing) It shall be addressed to all parties concerned
2. Return cardshows that the other party has received It shall specify the time and date of the hearing
the pleading This must not be later than 10 days after the filing of the
motion

MOTION TO _________ NOTICE OF Section 6. Proof of service necessary. No written motion set
DISMISS _________ HEARING for hearing shall be acted upon by the court without proof of
_______ _________
service thereof. (6a)
_______ PRAYER _________
_________ _________
WHAT IS THE EFFECT OF HAVING NO PROOF OF SERVICE?
The court shall not act upon the written motion set for hearing
Section 4. Hearing of motion. Except for motions which the
court may act upon without prejudicing the rights of the Section 7. Motion day. Except for motions requiring immediate
adverse party, every written motion shall be set for hearing action, all motions shall be scheduled for hearing on Friday
by the applicant. afternoons, or if Friday is a non-working day, in the afternoon
of the next working day. (7a)

BY: MA. ANGELA LEONOR C. AGUINALDO


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WHEN IS MOTION DAY? YOU DIDN'T RAISE AS DEFENSE A GROUND IN ANY OF YOUR
All motions shall be scheduled for hearing on Friday afternoons PLEADINGS THEN DURING TRIAL, YOU PRESENT EVIDENCE
or if Friday is a non-working day, in the afternoon of the next FOR THE SAME.
working day Using omnibus motion rule, it wouldn't be valid and would be
Except for motions requiring immediate action deemed waived
But if litigation progressed with the consent of the other party,
Section 8. Omnibus motion. Subject to the provisions of then it will be accepted
section 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then Section 9. Motion for leave. A motion for leave to file a
available, and all objections not so included shall be deemed pleading or motion shall be accompanied by the pleading or
waived. (8a) motion sought to be admitted. (n)

WHAT AGAIN IS THE OMNIBUS MOTION RULE? WHAT SHOULD ACCOMMODATE A MOTION FOR LEAVE?
A motion attacking a pleading, order, judgment, or proceeding It shall be accompanied by the pleading or motion sought to be
shall include all objections then available, and all objections not admitted
so included shall be deemed waived.
Section 10. Form. The Rules applicable to pleadings shall
WHAT AGAIN ARE THE EXCEPTIONS TO THE GENERAL RULE? apply to written motions so far as concerns caption,
1. Res judicata designation, signature, and other matters of form. (9a)
2. Litis pendentia
3. Presciption or statute of limitations
RULE 16: MOTION TO DISMISS
4. Lack of jurisdiction over subject matter

YOU FILE A MOTION TO DISMISS ON THE GROUND OF Section 1. Grounds. Within the time for but before filing the
PRESCRIPTION, FOR EXAMPLE. THE MOTION HAS BEEN answer to the complaint or pleading asserting a claim, a
DENIED. CAN YOU NOW IN DEFENSE RAISE OTHER GROUNDS, motion to dismiss may be made on any of the following
TAKING INTO CONSIDERATION THE OMNIBUS MOTION RULE? grounds:
With respect to your motion to dismiss, all the other grounds
raised are deemed waived (a) That the court has no jurisdiction over the person of the
You can raise other grounds as affirmative defense in your defending party;
answer and whatever not raised during the answer, then it is
deemed waived (b) That the court has no jurisdiction over the subject matter
Looking at the totality of the case, when a ground has not been of the claim;
raised in any of your pleadings, then it is deemed waived
(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

BY: MA. ANGELA LEONOR C. AGUINALDO


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AN ANSWER, HE FILED A MOTION TO DISMISS. IF YOU WERE


(e) That there is another action pending between the same THE OPPOSING COUNSEL, WOULD YOU OBJECT TO THIS OR
parties for the same cause; MOVE FOR THE STRICKENING OFF THE RECORDS OF MOTION
TO DISMISS?
(f) That the cause of action is barred by a prior judgment or A motion for extension of time is inconsistent with a motion to
by the statute of limitations; dismiss
If your motion for extension of time to file an answer, and then
(g) That the pleading asserting the claim states no cause of you file a motion to dismiss, there is smear of bad faith in this
action; case
But if your motion was for extension of time to file an answer or
(h) That the claim or demand set forth in the plaintiff's other appropriate pleading, then you file a motion to dismiss,
pleading has been paid, waived, abandoned, or otherwise there is no bad faith
extinguished; So in practice, do not specify what you are going to file

(i) That the claim on which the action is founded is NOTE: A recent circular admonishes defendants to file a motion to
unenforceable under the provisions of the statute of frauds; dismiss upon service of summons to them. There may be good reason for
and this since there are situations wherein there are baseless grounds for a
motion to dismiss. However, this is not an outright prohibition though. It
(j) That a condition precedent for filing the claim has not must have been better to say to exercise prudence in filing of motions to
been complied with. (1a) dismiss but not dictate what should and should not be filed.

WHO MAY FILE A MOTION TO DISMISS? WHAT ARE THE GROUNDS FOR A MOTION TO DISMISS?
The defendant with respect to the plaintiff 1. That the court has no jurisdiction over the person of the
The plaintiff with respect to the counterclaim defending party;
The third-party with respect to the third-party claimant 2. That the court has no jurisdiction over the subject matter of
The cross-defendant with respect to the cross-claimant the claim;
Either the original plaintiff or the original defendant or both 3. That venue is improperly laid;
with respect to the complaint in intervention 4. That the plaintiff has no legal capacity to sue;
5. That there is another action pending between the same parties
WHEN DOES THE DEFENDANT NEED TO FILE THE MOTION TO for the same cause;
DISMISS? 6. That the cause of action is barred by a prior judgment
Within the 15-day period for him to file an answer to the 7. That the cause of action is barred by the statute of limitations;
complaint or any other pleading asserting a claim 8. That the pleading asserting the claim states no cause of action;
9. That the claim or demand set forth in the plaintiff's pleading has
BEFORE FILING THE ANSWER, A MOTION FOR EXTENSION OF been paid, waived, abandoned, or otherwise extinguished;
TIME TO FILE ANSWER WAS GRANTED BY THE COURT. ON 10. That the claim on which the action is founded is unenforceable
THE LAST DAY OF EXTENSION PERIOD, INSTEAD OF FILING under the provisions of the statute of frauds; and

BY: MA. ANGELA LEONOR C. AGUINALDO


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11. That a condition precedent for filing the claim has not been As a result, the court acquired no jurisdiction over the infants,
complied with. (1a) and the judgment will of necessity have to be set aside

HOW IS JURISDICTION OVER THE PERSON OF THE HOW IS JURISDICTION OVER SUBJECT MATTER ACQUIRED?
DEFENDANT ACQUIRED? Jurisdiction over subject matter is conferred by law and is
1. Service in person or substituted service of summons determined by the allegations of the complainant and the
2. Voluntary appearance character of the relief sought

SUMMONS WAS LEFT IN THE CUSTODY OF YOUR HOUSEMATE, PENDENCY OF ANOTHER ACTION V. JURISDICTION
WHO IS 15 YEARS OLD AND HARDLY CAPABLE OF SPEAKING Pendency of another action is not a proper ground to question
FILIPINO. EVENTUALLY YOU RECEIVE THE SUMMONS AND the jurisdiction of the court
READ THE COMPLAINT. YOU SECURED COUNSEL. DUE TO HIS The pendency of another action and lack of jurisdiction are
HECTIC SCHEDULE, HE FILED FOR EXTENSION OF TIME. THEN entirely different from one another
HE FILED A MOTION TO DISMISS DUE TO LACK OF
JURISDICTION OVER PERSON OF DEFENDANT. IF YOU WERE SOMEBODY FILES A PETITION FOR A PROBATE FOR A WILL
THE JUDGE, WOULD YOU GRANT THE MOTION? WITH THE MTC OF PASAY CITY. THE VALUE OF THE ESTATE
No IS P1 MILLION PESOS. MAY THE OPPOSITOR MOVED FOR
When the counsel filed a motion for extension of time which was DISMISSAL OF THE ACTION DUE TO LACK OF JURISDICTION
tantamount to the voluntary appearance and thus, the court OVER THE SUBJECT MATTER OF THE CASE?
acquired jurisdiction over the person Yes
The filing of motion asking for affirmative relief is a voluntary But if the opposing parties have been informed of the
appearance proceedings and didn't file a motion to dismiss, the court can still
What could be done to prevent court from acquiring jurisdiction dismiss the case due to lack of jurisdiction over the subject
over the person is to file a special appearance just to file a matter
motion to dismiss
The right action plan would be to file a motion to dismiss within RESIDENCE OF DECEASED IN PROBATE PROCEEDINGS IS A
the reglementary period and raise the lack of jurisdiction over MATTER OF VENUE
the person of defendantdon't anymore file for extension of time The place of residence of the deceased is not an element of
In the opening paragraph of the motion to dismiss, write outright jurisdiction but of venue
that undersigned counsel under special appearance, submits this
motion to dismiss TRIAL COURT CANNOT MOTU PROPIO DISMISS THE CASE ON
IMPROPER VENUE
LACK OF JURISDICTION OVER PERSON OF INFANT DEFENDANT The trial court cannot preempt the prerogative of the defendant
That no guardian ad litem was ever appointed is an omission to object to the improper laying of the venue by motu propio
which no acquiescence or conformity on the part of the minors dismissing the case.
or of their attorney can cure Unless and until the defendants objects to the venue in a motion
to dismiss, the venue cannot be truly said to have been

BY: MA. ANGELA LEONOR C. AGUINALDO


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improperly laid, as for all practical intents and purposes, the It may happen therefore that the first action be the one
venue, though technically wrong, may be acceptable to the dismissed
parties for whose convenience has been devised
HOW TO DETERMINE WHICH ACTION SHOULD BE DISMISSED
PLAINTIFF FILES A COMPLAINT AGAINST DEFENDANT IN RTC GIVEN THE PENDENCY OF THE TWO ACTIONS
IN QUEZON CITY. THE PLAINTIFF RESIDES IN MAKATI AND 1. The date of filing, with preference generally given to the first
THE DEFENDANT IN MANILA. CAN DEFENDANT FILE A MOTION action filed to be retained
TO DISMISS DUE TO IMPROPER VENUE? THE ACTION IS FOR 2. Whether the action sought to be dismissed was filed merely to
DAMAGES. preempt the later action or to anticipate the filing and lay the
Yes basis for its dismissal
For personal actions, plaintiff has the choice of filing complaint 3. Whether the action is the appropriate vehicle for litigating the
in his area of residence or the residence of defendant issues between the parties
For real actions, where the property is situated
In this case, the venue was improperly laid in an area neither WIFE FILES A CASE FOR LEGAL SEPARATION IN RTC MANILA.
the residence of the plaintiff nor defendants THEY ARE RESIDENTS OF THE CITY OF MANILA. THEY HAVE
LOTS OF PROPERTIES, A BULK OF WHICH IS LOCATED IN
LACK OF CAPACITY TO SUE LAGUNA. THEN THE WIFE FILES A PETITION FOR
When the proper circumstances are not present-- DISSOLUTION OF CONGUJAL PARTNERSHIP OF GAINS IN THE
1. The necessary qualifications to appear the trial, such as when RTC OF CALAMBA, LAGUNA. MAY THE HUSBANDS MOTION TO
the plaintiff is not in the full exercise of his civil rights DISMISS RIGHTFULLY PROSPER, USING AS LITIS PENDENTIA
2. The character or representation he claims, which is a matter of AS GROUND?
evidence Note that in an action for legal separation, a consequence is to
dissolve the conjugal partnership of gains
REQUIREMENTS OF LIS PENDENS You may be accused of splitting your cause of action since
1. The same parties, or at least such as represent the same dissolution of property regime is a necessary consequence of an
interest action for legal separation
2. The same rights asserted, and the same relief prayed for
3. This relief must be founded on the same facts, and the title or FIRST CASE WAS FILED BY THE PEDESTRIAN AGAINST THE
essential basis of the relief sought must be the same DRIVER OF THE BUS FOR HITTING HIM. SECOND CASE WAS
4. The identity in these particulars should be such that if the FILED AGAINST THE OWNER. WILL A MOTION TO DISMISS
pending case has already been disposed of, it could be pleaded in PROSPER RIGHTFULLY?
bar as a former adjudication of the same matter between the The original cause of action as against the employer would be
same parties based on tort or quasi-delictfailure of supervision over his
employees
A PRIOR PENDING ACTION ISNT REQUIRED The original cause of action as against the bus driver would be
The rules don't require as a ground for dismissal of a complaint based on his criminal negligence
that there is a pending action

BY: MA. ANGELA LEONOR C. AGUINALDO


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There would be no litis pendentia, there is absence of the four Art. 1134. Ownership and other real rights over immovable property are
requisites acquired by ordinary prescription through possession of ten years. (1957a)

REQUISITES OF RES JUDICATA Art. 1135. In case the adverse claimant possesses by mistake an area
1. The former judgment or order must be final greater, or less than that expressed in his title, prescription shall be
a. Final in the sense that the time to appeal has already based on the possession. (n)
lapsed
b. Final in the sense that it is not interlocutorythe case Art. 1136. Possession in wartime, when the civil courts are not open, shall
has been disposed of not be counted in favor of the adverse claimant.
2. It must have been rendered by a court having jurisdiction over
the subject matter and of the parties Art. 1137. Ownership and other real rights over immovables also prescribe
3. It must be a judgment or order on the merits through uninterrupted adverse possession thereof for thirty years,
a. It can be a judgment on the merits without examination without need of title or of good faith. (1959a)
of evidence or trial
b. If it is a judgment on the pleadings or upon notice of Art. 1138. In the computation of time necessary for prescription the
dismissal by the plaintiff following rules shall be observed:
4. There must be identity of parties, subject matter, and of cause
of action between the first and second actions (1) The present possessor may complete the period necessary for
prescription by tacking his possession to that of his grantor or
PRESCRIPTION predecessor in interest;

Art. 1132. The ownership of movables prescribes through uninterrupted (2) It is presumed that the present possessor who was also the
possession for four years in good faith. possessor at a previous time, has continued to be in possession during the
intervening time, unless there is proof to the contrary;
The ownership of personal property also prescribes through uninterrupted
possession for eight years, without need of any other condition. (3) The first day shall be excluded and the last day included.
(1960a)
With regard to the right of the owner to recover personal property lost
or of which he has been illegally deprived, as well as with respect to CHAPTER 3
movables acquired in a public sale, fair, or market, or from a merchant's PRESCRIPTION OF ACTIONS
store the provisions of Articles 559 and 1505 of this Code shall be
observed. (1955a) Art. 1139. Actions prescribe by the mere lapse of time fixed by law.
(1961)
Art. 1133. Movables possessed through a crime can never be acquired
through prescription by the offender. (1956a) Art. 1140. Actions to recover movables shall prescribe eight years from
the time the possession thereof is lost, unless the possessor has acquired
the ownership by prescription for a less period, according to Articles

BY: MA. ANGELA LEONOR C. AGUINALDO


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1132, and without prejudice to the provisions of Articles 559, 1505, and
1133. (1962a) However, when the action arises from or out of any act, activity, or
conduct of any public officer involving the exercise of powers or
Art. 1141. Real actions over immovables prescribe after thirty years. authority arising from Martial Law including the arrest, detention and/or
trial of the plaintiff, the same must be brought within one (1) year. (As
This provision is without prejudice to what is established for the amended by PD No. 1755, Dec. 24, 1980.)
acquisition of ownership and other real rights by prescription. (1963)
Art. 1147. The following actions must be filed within one year:
Art. 1142. A mortgage action prescribes after ten years. (1964a)
(1) For forcible entry and detainer;
Art. 1143. The following rights, among others specified elsewhere in this
Code, are not extinguished by prescription: (2) For defamation. (n)

(1) To demand a right of way, regulated in Article 649; Art. 1148. The limitations of action mentioned in Articles 1140 to 1142, and
1144 to 1147 are without prejudice to those specified in other parts of
(2) To bring an action to abate a public or private nuisance. (n) this Code, in the Code of Commerce, and in special laws. (n)

Art. 1144. The following actions must be brought within ten years from Art. 1149. All other actions whose periods are not fixed in this Code or in
the time the right of action accrues: other laws must be brought within five years from the time the right of
action accrues. (n)
(1) Upon a written contract;
Art. 1150. The time for prescription for all kinds of actions, when there is
(2) Upon an obligation created by law; no special provision which ordains otherwise, shall be counted from the
day they may be brought. (1969)
(3) Upon a judgment. (n)
Art. 1151. The time for the prescription of actions which have for their
Art. 1145. The following actions must be commenced within six years: object the enforcement of obligations to pay principal with interest or
annuity runs from the last payment of the annuity or of the interest.
(1) Upon an oral contract; (1970a)

(2) Upon a quasi-contract. (n) Art. 1152. The period for prescription of actions to demand the fulfillment
of obligation declared by a judgment commences from the time the
Art. 1146. The following actions must be instituted within four years: judgment became final. (1971)

(1) Upon an injury to the rights of the plaintiff; Art. 1153. The period for prescription of actions to demand accounting
runs from the day the persons who should render the same cease in their
(2) Upon a quasi-delict; functions.

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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THE GROUND MUST APPEAR ON THE FACE OF THE


The period for the action arising from the result of the accounting runs INSTRUMENT
from the date when said result was recognized by agreement of the The ground of lack of cause of action must appear on the face
interested parties. (1972) of the instrument

Art. 1154. The period during which the obligee was prevented by a WHAT ARE THE EXCEPTIONS TO THE RULE THAT A MOTION
fortuitous event from enforcing his right is not reckoned against him. (n) TO DISMISS BASED ON FAILURE TO STATE CAUSE OF ACTION
ADMITS THE TRUTH OF THE ALLEGATIONS IN THE
Art. 1155. The prescription of actions is interrupted when they are filed COMPLAINT?
before the court, when there is a written extrajudicial demand by the Doesn't admit of allegations which the court may take judicial
creditors, and when there is any written acknowledgment of the debt by notice of as not true, or which are legally impossible, or facts
the debtor. (1973a) inadmissible in evidence, or facts which appear by record or by
documents included in the pleadings to be unfounded

TEST TO ASCERTAIN IF COMPLAINANT STATES NO CAUSE OF


CAUSES OF EXTINGUISHMENT OF OBLIGATIONS
ACTION
1. Payment or performance
The test of the sufficiency of the facts found in a petition, to
2. By the loss of the thing due
constitute a cause of action, is whether or not, admitting the
3. By the condonation or remission of the debt
facts alleged, the court could render a valid judgment on the
4. By the confusion or merger of the rights of creditor or debtor
merits upon the same in accordance with the prayer in the
5. By compensation
petition.
6. By Novation
To determine whether or not a complaint states a cause of
7. Othersannulment, rescission, fulfillment of a resolutory
action the allegations of the said complaint must be accepted as
condition, and prescription, as governed by the pertinent
true and correct and any apparent contradiction between said
provisions of the Code
allegations and statements or recitals contained in an instrument
incorporated in the complaint itself, shouldn't be held to affect
UNENFORCEABLE CONTRACTS
or refute said allegations, unless said statements in the said
instrument are basic or ultimate facts and not merely recitals or
claims by one of the parties in the said instrument Art. 1403. The following contracts are unenforceable, unless they are
ratified:
A MOTION TO DISMISS WAS FILED BASED ON LACK OF CAUSE
OF ACTION. PERUSAL OF ANNEXES THE COMPLAINT WOULD (1) Those entered into in the name of another person by one who has
SHOW THAT THE OBLIGATION IS NOT YET DUE. MAY THE been given no authority or legal representation, or who has acted beyond
COURT CONSIDER THE ANNEXES TO THE COMPLAINT? his powers;
It depends since if the annexes have no connection with the
ultimate cause of action, then it can be not looked at by the (2) Those that do not comply with the Statute of Frauds as set
court forth in this number. In the following cases an agreement hereafter
made shall be unenforceable by action, unless the same, or some note or

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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memorandum, thereof, be in writing, and subscribed by the party charged, With reference to actions between family members, there should
or by his agent; evidence, therefore, of the agreement cannot be be earnest efforts to have amicable settlement
received without the writing, or a secondary evidence of its contents: Lupon barangay certification that there was no amicable
settlement or compromise
(a) An agreement that by its terms is not to be performed
within a year from the making thereof; WHY WOULD A DEFENDANT CHOOSE TO FILE AN ANSWER
WITH AFFIRMATIVE DEFENSE THAN A MOTION TO DISMISS?
(b) A special promise to answer for the debt, default, or To set the ground for a counterclaim against the plaintiff
miscarriage of another; Even if the complaint is dismissed, the case wouldnt be finis in
which a remaining matter still has to be adjudicated
(c) An agreement made in consideration of marriage, other than
a mutual promise to marry; WHAT IS THE POSSIBLE REPERCUSSION IN THE ABOVE-
STATED MOVE?
(d) An agreement for the sale of goods, chattels or things in If you file an answer with affirmative defenses, instead of a
action, at a price not less than five hundred pesos, unless the buyer motion to dismiss, you can ask the court to conduct a preliminary
accept and receive part of such goods and chattels, or the evidences, or hearing on your affirmative defense
some of them, of such things in action or pay at the time some part of Picture this. The court grants your motion for preliminary
the purchase money; but when a sale is made by auction and entry is hearing. After this, the court determines that the ground has
made by the auctioneer in his sales book, at the time of the sale, of the basis (ex. Prescription). The court will now dispose that part of
amount and kind of property sold, terms of sale, price, names of the the case and then conduct a hearing on the remaining
purchasers and person on whose account the sale is made, it is a counterclaims. In this case, is this strategy fool-proof? The
sufficient memorandum; answer is no because to grant the preliminary hearing is fully
discretionary on the part of the judge. You may be denied the
(e) An agreement of the leasing for a longer period than one strategy at first instance. You may be dragged into a full-
year, or for the sale of real property or of an interest therein; blown hearing.

(f) A representation as to the credit of a third person. WHAT GROUND COULD POSSIBLY RESULT IN AN ORDER TO
AMEND THE PLEADING?
(3) Those where both parties are incapable of giving consent to a The ground that there is no cause of actionsome would dismiss
contract. the case outright but there are some which are not strict with
the rules and will allow the plaintiff to amend his complaint to
Art. 1874. When a sale of a piece of land or any interest therein is state a cause of action
through an agent, the authority of the latter shall be in writing;
otherwise, the sale shall be void. (n) Section 2. Hearing of motion. At the hearing of the motion,
the parties shall submit their arguments on the questions of
COMPLIANCE WITH CONDITIONS PRECEDENT law and their evidence on the questions of fact involved
except those not available at that time. Should the case go

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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to trial, the evidence presented during the hearing shall 1. Res judicata
automatically be part of the evidence of the party presenting 2. Statute of limitations
the same. (n) 3. Claim set forth in the pleading has been paid, waived, abandoned
or otherwise extinguished
Section 3. Resolution of Motion. After the hearing, the court 4. Claim is unenforceable under the statute of frauds
may dismiss the action or claim, deny the motion, or order the
amendment of the pleading. Section 6. Pleading grounds as affirmative defenses. If no
motion to dismiss has been filed, any of the grounds for
The court shall not defer the resolution of the motion for the dismissal provided for in this Rule may be pleaded as an
reason that the ground relied upon is not indubitable. affirmative defense in the answer and, in the discretion of the
court, a preliminary hearing may be had thereon as if a
In every case, the resolution shall state clearly and distinctly motion to dismiss had been filed. (5a)
the reasons therefor. (3a)
The dismissal of the complaint under this section shall be
WHAT CAN THE COURT DO IN RESOLVING THE MOTION TO without prejudice to the prosecution in the same or separate
DISMISS? action of a counterclaim pleaded in the answer. (n)
1. It can dismiss the claim or action
2. Deny the motion WHAT IS THE REMEDY OF A DEFENDANT IN CASE HIS MOTION
3. Order the amendment of the pleading TO DISMISS IS DENIED?
The defendant should file his answer within the remaining period
Section 4. Time to plead. If the motion is denied, the movant and then cite his grounds to dismiss the case as affirmative
shall file his answer within the balance of the period defense
prescribed by Rule 11 to which he was entitled at the time of The defendant may file in not less than 5 days
serving his motion, but not less than five (5) days in any
event, computed from his receipt of the notice of the denial. WHAT IS THE PURPOSE OF RAISING AGAIN THE GROUNDS AS
If the pleading is ordered to be amended, he shall file his AFFIRMATIVE DEFENSE?
answer within the period prescribed by Rule 11 counted from Evidence presented in a motion shall be automatically reproduced
service of the amended pleading, unless the court provides a and made part as evidence during the trial
longer period. (4a) This doesnt prevent one from presenting evidence during the
trial proper
Section 5. Effect of dismissal. Subject to the right of Once all the evidence is presented and evaluates the totality of
appeal, an order granting a motion to dismiss based on evidence considered produced and reproduced, the court may
paragraphs (f), (h) and (i) of section 1 hereof shall bar the actually resolve the case in favor of the defending party
refiling of the same action or claim. (n) If you dont reiterate the ground as an affirmative defense, then
it is deemed waived under the omnibus motion rule
WHAT GROUNDS IN A MOTION TO DISMISS WILL CAUSE A
BAR FOR THE REFILING OF THE SAME ACTION? MOTION TO DISMISS

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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IF DENIED File answer and plead as affirmative defenses the NOTA BENE: the essential difference between this rule and the
(remedies grounds for a motion to dismissyou can reiterate or previous rule is that in rule 16, the dismissal is on account of the
available to the add grounds defendants action while in this present rule, the dismissal is on account
defendant) File a petition for certiorari if there is grave abuse of the plaintiffs action.
of discretion on the part of the court denying your
motion to dismiss THREE WAYS FOR THE PLAINTIFF TO EFFECT DISMISSAL OF
Ex. A court has apparently no jurisdiction over the AN ACTION
subject matter and yet denies the motion to dismiss 1. By mere notice
IF GRANTED Re-file the complaint 2. By motion
(remedies 3. Due to the fault of plaintiff
granted to the What are the grounds for which no re-filing is
plaintiff) allowed? Section 1. Dismissal upon notice by plaintiff. A complaint may
1. Res judicata be dismissed by the plaintiff by filing a notice of dismissal at
2. Statute of limitations any time before service of the answer or of a motion for
3. Claim set forth in the pleading has been summary judgment. Upon such notice being filed, the court
paid, waived, abandoned or otherwise shall issue an order confirming the dismissal. Unless otherwise
extinguished stated in the notice, the dismissal is without prejudice, except
4. Claim is unenforceable under the statute of that a notice operates as an adjudication upon the merits
frauds when filed by a plaintiff who has once dismissed in a
If it is anything else aside from the above, then competent court an action based on or including the same
there could be re-filing. claim. (1a)

Re-filing doesn't preclude you from appealing as well. HOW IS DISMISSAL UPON NOTICE BY PLAINTIFF DONE?
Appeal A complaint may be dismissed at the instance of the plaintiff
He files a notice of dismissal any time before service of the
answer or of a motion for summary judgment
For thefollowing grounds
1. Res judicata
WHAT DOES THE COURT DO UPON FILING OF SUCH NOTICE?
2. Statute of limitations
The court shall issue an order confirming the dismissal
3. Claim set forth in the pleading has been
Unless otherwise provided, the dismissal is without prejudice
paid, waived, abandoned or otherwise
extinguished
4. Claim is unenforceable under the statute of WHEN IS THE DISMISSAL WITH PREJUDICE TO A REFILING
frauds OF ANOTHER ACTION?
When the notice operates as an adjudication upon the merits
It is an adjudication upon the merits when filed by the plaintiff
RULE 17: DISMISSAL OF ACTIONS who has once dismissed in a competent court an action based on
or including the same claim

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 2. Dismissal upon motion of plaintiff. Except as


EFFECT OF NOTICE OF DISMISSAL BY PLAINTIFF BEFORE provided in the preceding section, a complaint shall not be
SERVICE OF ANSWER OR MOTION FOR SUMMARY JUDGMENT dismissed at the plaintiff's instance save upon approval of the
Before service of answer or motion for summary judgment, the court and upon such terms and conditions as the court deems
dismissal is without prejudice, except in the following proper. If a counterclaim has been pleaded by a defendant
o If it is stated that the dismissal is with prejudice prior to the service upon him of the plaintiffs motion for
o Or if the plaintiff has once dismissed in a competent dismissal, the dismissal shall be limited to the complaint. The
court an action based on or including the same claim dismissal shall be without prejudice to the right of the
Note that the dismissal of the previous action before answer defendant to prosecute his counterclaim in a separate action
doesnt constitute res judicata unless within fifteen (15) days from notice of the motion he
manifests his preference to have his counterclaim resolved in
WHEN TWO-DISMISSAL RULE DOESNT APPLY the same action. Unless otherwise specified in the order, a
Section 1 of Rule 30 contemplates a case wherein a first action dismissal under this paragraph shall be without prejudice. A
was dismissed finally, followed by the dismissal of a second class suit shall not be dismissed or compromised without the
action based on or including the claim covered by the first action approval of the court. (2a)
The rule doesnt apply to a situation where the first action is
still pending, and the claim involved in the second action was HOW WOULD THE DISMISSAL UPON NOTICE AFFECT A
merely reinstated in the pending first action DEFENDANTS COUNTERCLAIM?
If a defendant has pleaded a counterclaim prior to the filing of
SITUATION: WIFE FILES AN ACTION FOR LEGAL SEPARATION plaintiff of a notice of dismissal, the dismissal shall be limited to
FOR AN ATTEMPT ON HER LIFE BY HER HUSBAND. SHE WAS the complaint
THEN PERSUADED TO DROP THE COMPLAINT. BEFORE THE The dismissal shall be without prejudice to the counterclaim
HUSBAND FILES THE COMPLAINT, SHE WITHDRAWS THE
COMPLAINT. ANOTHER TIME CAME AND SHE FILED FOR WHEN IS DISMISSAL WITH PREJUDICE TO THE RIGHT OF
DECLARATION OF NULLITY OF MARRIAGE UNDER ARTICLE 36. DEFENDANT TO PROSECUTE HIS COUNTERCLAIM?
AGAIN, BEFORE HUSBAND FILES AN ANSWER, SHE MOVES FOR When within 15 days from notice of the motion, he manifests his
THE DISMISSAL. AND THEN ANOTHER TIME, SHE FILES FOR preference to have his counterclaim resolved in the same action
THE DECLARATION OF NULLITY OF MARRIAGE. DOES THE
TWO-DISMISSAL RULE APPLY? WHEN DOES THE PRESCRIPTIVE PERIOD START TO RUN WITH
No, the two-dismissal rule doesn't apply RESPECT TO THE COUNTERCLAIM?
The claim in the first action doesn't necessarily exist in the When you filed the original answer with counterclaim, the
second action. The facts constituting the action for legal prescriptive period is broken and interrupted. And when the
separation may be different and independent from the facts to complaint has been dismissed, and there has been no
be established in the declaration of nullity based on manifestation of filing a separate action for the counterclaim,
psychological incapacity the prescriptive period starts anew
For example, there is a written contract. Prescriptive period for
this is 10 years. On the 9th year, a complaint was filed. The

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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answer to the complaint included a counterclaim involving the the dismissal of any counterclaim, cross-claim, or third-party
contract. Then the complaint was dismissed. Defendant didn't complaint. A voluntary dismissal by the claimant by notice as
manifest if he would prosecute the counterclaim in same action. in section 1 of this Rule, shall be made before a responsive
What is the remaining period for the defendant to file his pleading or a motion for summary judgment is served or, if
counterclaim? He has a fresh 10-year period to file his there is none, before the introduction of evidence at the trial
complaint. or hearing. (4a)

Section 3. Dismissal due to fault of plaintiff. If, for no SUMMARY


justifiable cause, the plaintiff fails to appear on the date of HOW EFFECTED WHAT SHALL THE WHAT IS THE
the presentation of his evidence in chief on the complaint, or COURT DO? LEGAL EFFECT?
to prosecute his action for an unreasonable length of time, or BY MERE NOTICE OF DISMISSAL
to comply with these Rules or any order of the court, the Before the filing of The court shall issue The dismissal is
complaint may be dismissed upon motion of the defendant or the answer or motion an order confirming generally without
upon the court's own motion, without prejudice to the right of for summary judgment the plaintiffs prejudice (it is the
the defendant to prosecute his counterclaim in the same or in dismissal of the plaintiffs prerogative
a separate action. This dismissal shall have the effect of an complaint if the dismissal is with
adjudication upon the merits, unless otherwise declared by the or without prejudice)
court. (3a)
Exception: two-
AT WHAT INSTANCES CAN ACTION BE DISMISSED DUE TO dismissal rulewhen
FAILURE OF PLAINTIFF? the notice operates as
1. If he fails to appear on the date of the presentation of his an adjudication on the
evidence in chief on the complainthis non-appearance is a merits. It is
manifestation of his unwillingness to proceed with the trial or adjudication upon the
loss of interest to continue prosecution merits when filed by
2. Fails to prosecute his action for an unreasonable length of time the plaintiff who has
3. Fails to comply with the Rules or any order of the court once dismissed in a
competent court an
HOW CAN THE COMPLAINT BE DISMISSED? action based on or
1. By motion of the defendant including the same
2. Motu propio claim
NOTE: This is without prejudice to the right of defendant to prosecute BY MOTION
his counterclaim. And further, the dismissal shall have the effect of an
By filing of a motion Is without prejudice
adjudication upon the merits, unless otherwise declared by the court.
by the plaintiff even to the defendants
if the defendant has counterclaim except
Section 4. Dismissal of counterclaim, cross-claim, or third-
filed his answer within 15 days, after
party complaint. The provisions of this Rule shall apply to

BY: MA. ANGELA LEONOR C. AGUINALDO


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service of notice of prosecution


motion, he manifests 2. Fails to prosecute
intent to prosecute his action for an
action on another unreasonable
proceeding length of time
3. Fails to comply
Generally, the with the Rules or
dismissal will not any order of the
prejudice plaintiff court
from filing another
action. An exception
is when the court RULE 18: PRE-TRIAL
declares otherwise.
The court has the Section 1. When conducted. After the last pleading has been
power to impose served and filed, if shall be the duty of the plaintiff to
conditions, as well as promptly move ex parte that the case be set for pre-trial
to decide if its with or (5a, R20)
without prejudice.
DUE TO FAULT OF THE PLAINTIFF NOTE:
By motion of the The general rule is After the last pleading has been filed or the period for filing
defendant or motu that the dismissal will the same has expired, it is no longer the duty of the clerk of
proprio be with prejudice court to set the case for pre-trail
considered as an The plaintiff should promptly file a motion ex parte without a
1. If he fails to adjudication on the notice of hearing for the purpose
appear on the merits and would be
date of the considered as res WHAT IS THE LAST PLEADING AS CONTEMPLATED IN THIS
presentation of judicata PROVISION?
his evidence in The answer is normally the last pleading but when the
chief on the defendants answer contains a compulsory counterclaim,
complainthis non- plaintiffs answer to it is the last pleading (answer to the
appearance is a compulsory counterclaim need not be filed)
manifestation of If the answer contains a permissive counterclaim, the answer to
his unwillingness this will be the last pleading and in this case, an answer should
to proceed with be filed since otherwise would entail default of the plaintiff
the trial or loss of (same process should still be followed thoughmotion to declare
interest to in default, etc.)
continue

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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When the defendants answer has a cross-claim, the answer of (f) The advisability of a preliminary reference of issues to a
the cross-defendant is the last pleading commissioner;
Where the plaintiffs answer to a counterclaim has a
counterclaim against the other party or a cross-claim against a (g) The propriety of rendering judgment on the pleadings, or
co-defendant, the answer of the co-defendant to the cross-claim summary judgment, or of dismissing the action should a valid
is the last pleading ground therefor be found to exist;
And where the plaintiff files a reply alleging facts in denial or
avoidance of new matters by way of defense in the answer, such (h) The advisability or necessity of suspending the
reply constitutes the last pleading proceedings; and
To make it simple, it depends on the defenses raised in the
answerif it is affirmative or negative defenses. This is (i) Such other matters as may aid in the prompt disposition of
important to know if a reply is needed to be filed or not. the action. (1a, R20)

WHAT HAPPENS WHEN PRE-TRIAL IS SET BEFORE THE LAST WHAT ARE THE MODES OF DISPUTE RESOLUTION?
PLEADING IS FILED? 1. Mediationmediation centers attached to the court
If the pre-trial is set before the last pleading is filed, it is 2. Arbitrationparties may agree on this in the contract as a mode
premature of settling their disputes
Consequently, the declaration of default is illegal and may be 3. Conciliation
set aside on certiorari
SUBMISSION TO ALTERNATIVE MODES OF DISPUTE
Section 2. Nature and purpose. The pre-trial is mandatory. RESOLUTION
The court shall consider: The most important purpose of a pre-trial
Alternative modes of dispute resolution are adjuncts of the pre-
(a) The possibility of an amicable settlement or of a trial
submission to alternative modes of dispute resolution;
SETTLEMENT OF ISSUES
(b) The simplification of the issues; To give direction to the trial
Limits the issues to be settled during trial proper
(c) The necessity or desirability of amendments to the
pleadings; THE POSSIBILITY OF OBTAINING STIPULATIONS OR
ADMISSIONS OF FACTS AND OF DOCUMENTS TO AVOID
(d) The possibility of obtaining stipulations or admissions of UNNECESSARY PROOF
facts and of documents to avoid unnecessary proof; You have to be prepared for this
This requires you to be very knowledgeable on the background of
(e) The limitation of the number of witnesses; the case

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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THE ADVISABILITY OF PRELIMINARY REFERENCE OF ISSUES The appearance of the party himself or his representative with
TO A COMMISSIONER written authority is necessary for an amicable settlement or a
There might have been no need to go into pre-trial submission to alternative modes of dispute resolution, and
The action adopted might have been premature stipulations or admissions of facts and documents
The rules oblige not only the lawyers but the parties as well to
WHAT PRELIMINARY MATTERS MAY BE REFERRED TO A appear for the pre-trial before the court, and when a party
COMMISSIONER? fails to appear at the pre-trial conference, he may be non-
Often times, the commissioner referred here is the clerk of suited or considered in default
court It is imperative for the representative, in case party himself
If the subject matter of the complaint constitutes voluminous cannot attend, to have special authority to make such
documents or accounting matters substantive agreements as only the client otherwise has
capacity to make
THE PROPRIETY OF RENDERING JUDGMENT ON THE
PLEADINGS, OR SUMMARY JUDGMENT, OR OF DISMISSING Section 5. Effect of failure to appear. The failure of the
THE ACTION SHOULD A VALID GROUND THEREFOR BE FOUND plaintiff to appear when so required pursuant to the next
TO EXIST preceding section shall be cause for dismissal of the action.
What would be settled is the propriety and the judgment itself The dismissal shall be with prejudice, unless otherwise ordered
With respect to dismissing the action should a valid ground by the court. A similar failure on the part of the defendant
therefor be found to exist, this refers to grounds that were shall be cause to allow the plaintiff to present his evidence
previously not raised or otherwise denied by the court ex parte and the court to render judgment on the basis
preliminarily thereof. (2a, R20)

Section 3. Notice of pre-trial. The notice of pre-trial shall WHAT IF THE PLAINTIFF FAILS TO APPEAR WITHOUT DUE
be served on counsel, or on the party who has no counsel. The NOTICE AND VALID EXCUSE? (SITUATION: PLAINTIFF AND
counsel served with such notice is charged with the duty of COUNSEL FAILS TO APPEAR DURING PRE-TRIAL, OR THE
notifying the party represented by him. (n) COUNSEL APPEARS?)
It shall be a cause for the dismissal of the complaint with
Section 4. Appearance of parties. It shall be the duty of the prejudice, except if otherwise provided for by the court
parties and their counsel to appear at the pre-trial. The non- The defendant may be allowed to present evidence on his
appearance of a party may be excused only if a valid cause is counterclaim if any
shown therefor or if a representative shall appear in his
behalf fully authorized in writing to enter into an amicable WHAT IF THE DEFENDANT IS THE ONE WHO FAILED TO
settlement, to submit to alternative modes of dispute APPEAR?
resolution, and to enter into stipulations or admissions of The plaintiff may be allowed to present his evidence ex parte
facts and of documents. (n)
WILL THE ABSENCE OF THE COUNSEL AFFECT THE PRE-TRIAL?
NOTE: WILL THE RULES MENTIONED BE APPLICABLE?

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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There is no legal effect the amendments allowed to the pleadings, and the agreements
What matters is that the principal is there or admissions made by the parties as to any of the matters
The counsel may be reprimanded or fined or sanctioned by the considered. Should the action proceed to trial, the order shall,
court for non-appearance explicitly define and limit the issues to be tried. The contents
of the order shall control the subsequent course of the
Section 6. Pre-trial brief. The parties shall file with the action, unless modified before trial to prevent manifest
court and serve on the adverse party, in such manner as shall injustice. (5a, R20)
ensure their receipt thereof at least three (3) days before
the date of the pre-trial, their respective pre-trial briefs NOTE: Everything here will control the trial proper!!!
which shall contain, among others:
A.M. No. 03-1-09-SC
(a) A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution,
RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY
indicating the desired terms thereof;
TRIAL COURT JUDGES AND CLERKS OF COURT IN THE
CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-
(b) A summary of admitted facts and proposed stipulation of
DISCOVERY MEASURES
facts;

(c) The issues to be tried or resolved; I. PRE-TRIAL


A. Civil Cases
(d) The documents or exhibits to be presented stating the
purpose thereof; 1. Within one day from receipt of the complaint:

(e) A manifestation of their having availed or their intention 1.1 Summons shall be prepared and shall contain a reminder to
to avail themselves of discovery procedures or referral to defendant to observe restraint in filing a motion to dismiss
commissioners; and and instead allege the grounds thereof as defenses in the
Answer, in conformity with IBP-OCA Memorandum on Policy
(f) The number and names of the witnesses, and the substance Guidelines dated March 12, 2002. A copy of the summons is
of their respective testimonies. hereto attached as Annex "A;" and

Failure to file the pre-trial brief shall have the same effect 1.2 The court shall issue an order requiring the parties to
as failure to appear at the pre-trial. (n) avail of interrogatories to parties under Rule 25 and request
for admission by adverse party under Rule 26 or at their
Section 7. Record of pre-trial. The proceedings in the pre- discretion make use of depositions under Rule 23 or other
trial shall be recorded. Upon the termination thereof, the measures under Rules 27 and 28 within five days from the
court shall issue an order which shall recite in detail the filing of the answer.1 A copy of the order shall be served
matters taken up in the conference, the action taken thereon,

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upon the defendant together with the summons and upon the
plaintiff. A copy of the Notice of Pre-trial Conference is hereto
attached as Annex "B."
Within five (5) days from date of filing of the reply, the
plaintiff must promptly move ex parte that the case be set The rule on the contents of the pre-trial brief must strictly
for pre-trial conference. If the plaintiff fails to file said motion be complied with.
within the given period, the Branch COC shall issue a notice of pre-
trial. The parties are bound by the representations and statements
in their respective pre-trial briefs.
2. The parties shall submit, at least three (3) days before the pre-
trial, pre-trial briefs containing the following: 3. At the start of the pre-trial conference, the judge shall
immediately refer the parties and/or their counsel if
a. A statement of their willingness to enter into an amicable authorized by their clients to the PMC mediation unit for
settlement indicating the desired terms thereof or to submit purposes of mediation if available. If mediation fails, the
the case to any of the alternative modes of dispute judge will schedule the continuance of the pre-trial
resolution; conference. Before the continuance, the Judge may refer the
case to the Branch COC for a preliminary conference to assist
b. A summary of admitted facts and proposed stipulation of the parties in reaching a settlement, to mark the documents
facts; or exhibits to be presented by the parties and copies thereof
to be attached to the records after comparison and to
c. The issues to be tried or resolved; consider such other matters as may aid in its prompt
disposition.
d. The documents or exhibits to be presented, stating the
purpose thereof. ( No evidence shall be allowed to be presented and During the preliminary conference, the Branch COC shall also
offered during the trial in support of a party's evidence-in-chief ascertain from the parties the undisputed facts and admissions
other than those that had been earlier identified and pre-marked on the genuineness and due execution of the documents
during the pre-trial, except if allowed by the court for good cause marked as exhibits. The proceedings during .the preliminary
shown); conference shall be recorded in the "Minutes of Preliminary
Conference" to be signed by both parties and/or counsel, the
e. A manifestation of their having availed or their intention to form of which is hereto attached as Annex. "C".
avail themselves of discovery procedures or referral to
commissioners; and The minutes of preliminary conference and the exhibits shall
be attached by the Branch COC to the case record before the
f. The number and names of the witnesses, the substance of pre-trial.
their testimonies, and the approximate number of hours that
will be required by the parties for the presentation of their WHAT IS THE DUTY OF THE BRANCH CLERK OF COURT DURING
respective witnesses. THE PRELIMINARY CONFERENCE?

BY: MA. ANGELA LEONOR C. AGUINALDO


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1. To assist the parties in reaching a settlement a. Given the evidence of the plaintiff presented in his pre-
2. To mark the documents or exhibits to be presented by the trial brief to support his claim, what manner of compromise is
parties and copies thereof to be attached to the records after considered acceptable to the defendant at the present stage?
comparison
3. To consider such other matters as may aid in its prompt b. Given the evidence of the defendant described in his pre-
disposition. trial brief to support his defense, what manner of compromise
4. To ascertain from the parties the undisputed facts and is considered acceptable to the plaintiff at the present
admissions on the genuineness and due execution of the stage?
documents marked as exhibits
If not successful, the court shall confer with the party and
Pre-trial his counsel separately.
__________
If the manner of compromise is not acceptable, the judge
1,2 3 4 shall confer with the parties without their counsel for the
Mediation Branch clerk of court Preliminary conference same purpose of settlement.

5. If all efforts to settle fail, the trial judge shall:


4. Before the continuation of the pre-trial conference, the
judge must study all the pleadings of the case, and determine
a. Adopt the minutes of preliminary conference as part of the
the issues thereof and the respective positions of the parties
pre-trial proceedings and confirm markings of exhibits or
thereon to enable him to intelligently steer the parties
substituted photocopies and admissions on the genuineness and
toward a possible amicable settlement of the case, or, at the
due execution of documents;
very least, to help reduce and limit the issues. The judge
should not allow the termination of pre-trial simply because
b. Inquire if there are cases arising out of the same facts
of the manifestation of the parties that they cannot settle
pending before other courts and order its consolidation if
the case. He should expose the parties to the advantages of
warranted;
pre-trial. He must also be mindful that there are other
important aspects of the pre-trial that ought to be taken up
c. Inquire if the pleadings are in order. If not, order the
to expedite the disposition of the case.7
amendments if necessary;

The Judge with all tact, patience, impartiality and with due
d. Inquire if interlocutory issues are involved and resolve the
regard to the rights of the parties shall endeavor to persuade
same;
them to arrive at a settlement of the dispute.8 The court
shall initially ask the parties and their lawyers if an amicable
e. Consider the adding or dropping of parties;
settlement of the case is possible. If not, the judge may
confer with the parties with the opposing counsel to consider
f. Scrutinize every single allegation of the complaint, answer
the following:
and other pleadings and attachments thereto and the contents

BY: MA. ANGELA LEONOR C. AGUINALDO


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of documents and all other evidence identified and pre-marked his formal offer of evidence after the presentation of his last
during pre-trial in determining further admissions of facts and witness and the opposing party is required to immediately
documents. To obtain admissions, the Court shall ask the interpose his objection thereto. Thereafter, the Judge shall
parties to submit the depositions taken under Rule 23, the make the ruling on the offer of evidence in open court.
answers to written interrogatories under Rule 25 and the However the judge has the discretion to allow the offer of
answers to request for admissions by the adverse party under evidence in writing in conformity with Section 35, Rule 132;
Rule 26. It may also require the production of documents or
things requested by a party under Rule 27 and the results of j. Determine the most important witnesses to be heard and limit the
the physical and mental examination of persons under Rule 28; number of witnesses (Most Important Witness Rule). The facts to
be proven by each witness and the approximate number of
g. Define and simplify the factual and legal issues arising hours per witness shall be fixed;
from the pleadings. Uncontroverted issues and frivolous
claims or defenses should be eliminated. For each factual k. At his discretion, order the parties to use the affidavits of
issue, the parties/counsel shall state all the evidence to witnesses as direct testimonies subject to the right to object to
support their positions thereon. For each legal issue, inadmissible portions thereof and to the right of cross-examination by
parties/counsel shall state the applicable law and the other party. The affidavits shall be based on personal
jurisprudence supporting their respective positions thereon. If knowledge, shall set forth facts as would be admissible in
only legal issues are presented, the judge shall require the evidence, and shall show affirmatively that the affiant is
parties to submit their respective memoranda and the court competent to testify to the matters stated therein. The
can proceed to render judgment; affidavits shall be in question and answer form, and shall
comply with the rules on admissibility of evidence;
h. Determine the propriety of rendering a summary judgment
dismissing the case based on the disclosures made at the pre- PROS AND CONS OF THIS PROVISION
trial or a judgment based on the pleadings, evidence identified For situations of first-time witnesses to a trial, the affidavit in
and admissions made during pre-trial; question and answer form might be truly recommended (direct
examination shall be skipped)expedient proceedings
i. Ask parties to agree on the specific trial dates for One element will be missing with a judicial affidavitthe judge
continuous trial in accordance with Circular No. 1-89 dated will not be able to observe the demeanor of the witness
January 19, 1989; adhere to the case flow chart determined Ergo, the element of direct examination shall be lost together
by the court, which shall contain the different stages of the with the observation of demeanor and conduct of the witness
proceedings up to the promulgation of the decision and use the
time frame for each stage in setting the trial dates. The One-Day l. Require the parties and/or counsel to submit to the Branch
Examination of Witness Rule, that is, a witness has to be fully COC the names, addresses and contact numbers of the
examined in one (1) day only, shall be strictly adhered to subject to witnesses to be summoned by subpoena;
the courts' discretion during trial on whether or not to extend the
direct and/or cross-examination for justifiable reasons. On the last m. Order the delegation of the reception of evidence to the
hearing day allotted for each party, he is required to make Branch COC under Rule 30; and

BY: MA. ANGELA LEONOR C. AGUINALDO


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9. The court shall endeavor to make the parties agree to an


n. Refer the case to a trial by commissioner under Rule 32. equitable compromise or settlement at any stage of the proceedings
before rendition of judgment.
During the pre-trial, the judge shall be the one to ask questions on
issues raised therein and all questions or comments by counsel or
RULE 19: INTERVENTION
parties must be directed to the judge to avoid hostilities between
the parties.
Section 1. Who may intervene. A person who has a legal
CLARIFICATORY ASPECT OF THE PROCEEDINGS interest in the matter in litigation, or in the success of either
The only one who would ask is the investigating prosecutor of the parties, or an interest against both, or is so situated
If any counsel would have a question, he would submit the as to be adversely affected by a distribution or other
question to the prosecutor and request that the latter ask the disposition of property in the custody of the court or of an
question officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or
6. The trial judge shall schedule the pre-trial in the not the intervention will unduly delay or prejudice the
afternoon sessions and set as many pre-trial conferences as adjudication of the rights of the original parties, and whether
may be necessary. or not the intervenor's rights may be fully protected in a
separate proceeding. (2[a], [b]a, R12)
7. All proceedings during the pre-trial shall be recorded. The
minutes of each pre-trial conference shall contain matters LEGAL INTEREST
taken up therein more particularly admissions of facts and Direct and immediate interest
exhibits and shall be signed by the parties and their counsel. It not pertaining to any other kind of interestfor example
there is an action for annulment of marriage of two actors. A
8. The judge shall issue the required Pre-Trial Order within person who is just interested in the successful prosecution of
ten (10) days after the termination of the pre-trial. Said the suit may not intervene.
Order shall bind the parties, limit the trial to matters not
disposed of and control the course of the action during the SITUATION: B IS LARGELY INDEBTED TO A. X, A THIRD
trial. A sample Pre-Trial Order is hereto attached as Annex PARTY TO THE SUIT THOUGHT THAT IF A SUCCESSFULLY
"D." COLLECTS FROM B, A WOULD BE ABLE TO PAY HIM. DOES X
HAVE A LEGAL INTEREST IN THE MATTER OF LITIGATION?
However, the Court may opt to dictate the Pre-Trial Order in No, X is just interested in the outcome
open court in the presence of the parties and their counsel A correct example would beA sold his Benz to B but the latter
and with the use of a computer, shall have the same failed to pay in full. One year lapsed and he was prompted to
immediately finalized and printed. Once finished, the parties file a case against B to rescind the contract and get back the
and/or their counsel shall sign the same to manifest their car. In the case, the bank intervened, which is the one who
conformity thereto. financed the purchase of the car by A. It turned out that A
hasn't paid in full for the car yet and he sold it to another.

BY: MA. ANGELA LEONOR C. AGUINALDO


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The aforementioned also applicable as an example of legal Denial of intervention is not a mere interlocutory order but a
interest against both parties final order with respect to the third person
Appeal however is not an efficacious remedy because for sure, it
SITUATION: A SUIT INSTITUTED BY THE CREDITOR AGAINST would take a long time
THE SURETY. THE PRINCIPAL DEBTOR KNEW THAT WHEN THE What can be done is to resort to filing a petition for certiorari
SURETY LOSES THE CASE, THE SURETY WILL DEMAND FROM under Rule 65 and allege grave abuse of discretion
HIM. THE SURETY MUST BE ABLE TO DEFEND THE CASE
PROPERLY AND SHOW THAT THE DEBTOR IS NOT LIABLE. Section 2. Time to intervene. The motion to intervene may be
MAY THE PRINCIPAL DEBTOR INTERVENE? filed at any time before rendition of judgment by the trial
Yes he may since he has a legal interest in the success of either court. A copy of the pleading-in-intervention shall be
party attached to the motion and served on the original parties. (n)

SITUATION: PLAINTIFF WAS ABLE TO GET A PRELIMINARY WHEN INTERVENTION ALLOWED EVEN AFTER JUDGMENT
ATTACHMENT AGAINST THE DEFENDANT. THE SHERIFF BEGAN In the case of Director of Lands v. Court of Appeals,
SEIZING PROPERTY OF THE DEFENDANT. ONE OF THESE intervention was allowed because the intervenors were
SEIZED PROPERTY IS A VEHICLE WHICH WAS PARKED IN THE indispensable parties that without them no final adjudication of
GARAGE OF THE DEFENDANT. WHAT WOULD THE TRUE the controversy could be made
OWNER OF THE VEHICLE DO?
The third party must intervene in the case and prove that the Section 3. Pleadings-in-intervention. The intervenor shall file
property is righteously owned by him and not the defendant a complaint-in-intervention if he asserts a claim against
The third party will be adversely affected by any disposition or either or all of the original parties, or an answer-in-
sale of property in custodia legis intervention if he unites with the defending party in resisting
a claim against the latter. (2[c]a, R12)
REQUISITES FOR INTERVENTION
1. Have legal interest in the matter in litigation NOTE:
2. Have legal interest in the success of either of the parties If interest is adverse to both, then it should be a complaint-in-
3. Have legal interest against both intervention
4. Be so situated as to be adversely affected by a distribution or If the interest is sided with the defendant, then what should be
other disposition of property in the custody of the court or of an filed is the answer-in-intervention
officer thereof If the intervenor would side with the plaintiff, then it would be
5. Intervention will not unduly delay or prejudice the adjudication complaint-in-intervention
of the rights of the original parties What the third party should do first is to file a MOTION FOR
6. Intervenors rights may not be fully protected in a separate LEAVE TO INTERVENEthis would be set for hearing wherein the
proceeding parties will be given opportunity to be heard
o Take note that for every motion for leave, it is required
WHAT IS THE REMEDY OF A PERSON DENIED INTERVENTION? that you attach the pleading to be filed. In the case

BY: MA. ANGELA LEONOR C. AGUINALDO


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of intervention, it may be a complaint-in-intervention or investigation conducted by competent authority, or for the


an answer-in-intervention. taking of his deposition. It may also require him to bring with
If the motion is granted, the period to answer to the complaint him any books, documents, or other things under his control, in
or answer-in-intervention begins to run from the receipt of the which case it is called a subpoena duces tecum. (1a, R23)
motion for leave to intervene.
Once the complaint-in-intervention is admitted, the answer of SUMMONS SUBPOENA
the original parties must be filed within 15 days from notice of Addressed to the defending party Addressed to a witness
order admitting the intervention Required to acquire jurisdiction It can be classified into three
over the person of defending party subpoena duces tecum, subpoena ad
Section 4. Answer to complaint-in-intervention. The answer testificandum, and subpoena ad
to the complaint-in-intervention shall be filed within fifteen testificandum et duces tecum
(15) days from notice of the order admitting the same, unless
a different period is fixed by the court. (2[d]a, R12)
SUBPOENA AD TESTIFICANDUM
It is a process directed to a person requiring him to attend and
RULE 20: CALENDAR OF CASES to testify at
o The hearing or the trial of an action, or
o At any investigation conducted by competent authority,
Section 1. Calendar of cases. The clerk of court, under the
o Or for the taking of his deposition
direct supervision of the judge, shall keep a calendar of cases
for pre-trial, for trial, those whose trials were adjourned or
SUBPOENA DUCES TECUM
postponed, and those with motions to set for hearing.
It is process ordering him to bring with him any books,
Preference shall be given to habeas corpus cases, election
documents, or other things under his control
cases, special civil actions, and those so required by law. (1a,
R22)
Section 2. By whom issued. The subpoena may be issued by
Section 2. Assignment of cases. The assignment of cases to
(a) the court before whom the witness is required to attend;
the different branches of a court shall be done exclusively by
raffle. The assignment shall be done in open session of which
(b) the court of the place where the deposition is to be
adequate notice shall be given so as to afford interested
taken;
parties the opportunity to be present. (7a, R22)

(c) the officer or body authorized by law to do so in


RULE 21: SUBPOENA connection with investigations conducted by said officer or
body; or
Section 1. Subpoena and subpoena duces tecum. Subpoena is a
(d) any Justice of the Supreme Court or of the Court of
process directed to a person requiring him to attend and to
Appeals in any case or investigation pending within the
testify at the hearing or the trial of an action, or at any
Philippines.

BY: MA. ANGELA LEONOR C. AGUINALDO


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HOW DO YOU SECURE A SUBPOENA?


When application for a subpoena to a prisoner is made, the You file a request addressed to the branch clerk of court to
judge or officer shall examine and study carefully such issue a subpoena
application to determine whether the same is made for a valid Indicate the name of the court, name of the party to whom
purpose. subpoena is directed, etc.
In case of subpoena duces tecum, you should reasonably describe
No prisoner sentenced to death, reclusion perpetua or life the books, documents, or things demanded
imprisonment and who is confined in any penal institution shall
be brought outside the said penal institution for appearance WHAT IS THE PROPER REMEDY IN CASE OF AN ISSUED
or attendance in any court unless authorized by the Supreme SUBPOENA DUCES TECUM TO ENFORCE THE PRODUCTION OF
Court (2a, R23) DOCUMENTS WHICH THE WITNESS IS NOT BOUND TO
PRODUCE?
WHO ISSUES THE SUBPOENA? File a motion to vacate or set aside the subpoena
1. The court before whom the witness is required to attend;
2. The court of the place where the deposition is to be taken; Section 4. Quashing a subpoena. The court may quash a
3. The officer or body authorized by law to do so in connection subpoena duces tecum upon motion promptly made and, in any
with investigations conducted by said officer or body; or event, at or before the time specified therein if it is
4. Any justice of the Supreme Court or of the court of appeals in unreasonable and oppressive, or the relevancy of the books,
any case or investigation pending within the philippines. documents or things does not appear, or if the person in whose
behalf the subpoena is issued fails to advance the reasonable
Section 3. Form and contents. A subpoena shall state the cost of the production thereof.
name of the court and the title of the action or investigation,
shall be directed to the person whose attendance is required, The court may quash a subpoena ad testificandum on the
and in the case of a subpoena duces tecum, it shall also ground that the witness is not bound thereby. In either case,
contain a reasonable description of the books, documents or the subpoena may be quashed on the ground that the witness
things demanded which must appear to the court prima facie fees and kilometrage allowed by these Rules were not
relevant. (3a, R23) tendered when the subpoena was served. (4a, R23)

WHAT SHALL THE SUBPOENA CONTAIN? GROUNDS FOR QUASHING A SUBPOENA AD TESTIFICANDUM
1. The name of the court (usually the signatory is the clerk of 1. The person is not bound thereby
court) a. When the person resides more than 100 kilometers from
2. The title of the action or investigation the where he should testify
3. Shall be directed to the person whose attendance is required, b. In the case of detention prisonerthere was no approval
4. And in the case of a subpoena duces tecum, it shall contain the for his release
reasonable description of the books, documents, or things c. In case of those who are serving their sentence of
demanded which must appear to the court prima facie relevant either the death penalty, reclusio perpetua or life

BY: MA. ANGELA LEONOR C. AGUINALDO


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imprisonment, until the SC gives approval, he is not Section 6. Service. Service of a subpoena shall be made in
bound by the subpoena the same manner as personal or substituted service of
2. Witness fees and kilometrage allowed were not tendered summons. The original shall be exhibited and a copy thereof
delivered to the person on whom it is served, tendering to him
GROUNDS FOR QUASHING A SUBPOENA DUCES TECUM the fees for one day's attendance and the kilometrage allowed
1. If its unreasonable and oppressive by these Rules, except that, when a subpoena is issued by or
2. Irrelevant or immaterial to the subject matter of the action or on behalf of the Republic of the Philippines or an officer or
the investigation agency thereof, the tender need not be made. The service
3. The person asked to produce don't have control or custody over must be made so as to allow the witness a reasonable time for
the documents preparation and travel to the place of attendance. If the
4. When the cost of producing, photocopying or bringing the books subpoena is duces tecum, the reasonable cost of producing the
and documents wasn't provided by the person requiring the books, documents or things demanded shall also be tendered.
subpoena (6a, R23)

Section 5. Subpoena for depositions. Proof of service of a Section 7. Personal appearance in court. A person present in
notice to take a deposition, as provided in sections 15 and 25 court before a judicial officer may be required to testify as
of Rule 23, shall constitute sufficient authorization for the if he were in attendance upon a subpoena is sued by such
issuance of subpoenas for the persons named in said notice by court or officer. (10, R23)
the clerk of the court of the place in which the deposition is
to be taken. The clerk shall not, however, issue a subpoena WHAT DOES THIS PROVISION MEAN?
duces tecum to any such person without an order of the court. It simply means that you are present during the trial
(5a, R23) In this situation, Section 7 will be applied to you and that you
may be required to testify without the need of subpoena to be
WHEN SUBPOENA IS UNNECESSARY directed against him
A party to an action need not be served with a subpoena for the
purpose of taking his deposition Section 8. Compelling attendance. In case of failure of a
It is sufficient to serve him notice of the taking of his deposition witness to attend, the court or judge issuing the subpoena,
However, if no subpoena is served, he cannot be punished for upon proof of the service thereof and of the failure of the
contempt under Section 9 of this Rule witness, may issue a warrant to the sheriff of the province,
or his deputy, to arrest the witness and bring him before the
WHEN ORDER OF COURT NECESSARY court or officer where his attendance is required, and the
An express order of the court is necessary for the issuance by cost of such warrant and seizure of such witness shall be paid
the clerk of a subpoena duces tecum to a witness for taking of by the witness if the court issuing it shall determine that his
his deposition, because the officer before whom the deposition is failure to answer the subpoena was willful and without just
taken has no authority to rule on objection, including a motion to excuse. (11, R23)
quash

BY: MA. ANGELA LEONOR C. AGUINALDO


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Section 9. Contempt. Failure by any person without adequate allowable period after such interruption shall start to run on
cause to obey a subpoena served upon him shall be deemed a the day after notice of the cessation of the cause thereof.
contempt of the court from which the subpoena is issued. If
the subpoena was not issued by a court, the disobedience The day of the act that caused the interruption shall be
thereto shall be punished in accordance with the applicable excluded in the computation of the period. (n)
law or Rule. (12a R23)
SITUATION: UNFAVORABLE JUDGMENT WAS RENDERED. YOU
Section 10. Exceptions. The provisions of sections 8 and 9 of FILED A MOTION FOR RECONSIDERATION ON THE 14 TH DAY.
this Rule shall not apply to a witness who resides more than AFTER A MONTH, THE MOTION FOR RECONSIDERATION WAS
one hundred (100) kilometers from his residence to the place DENIED. IN HOW MANY DAYS CAN YOU STILL APPEAL?
where he is to testify by the ordinary course of travel, or to In Neypes case, it was held that in case of a motion for
a detention prisoner if no permission of the court in which his reconsideration being denied, there is a fresh 15-year period to
case is pending was obtained. (9a, R23) appealthis is the new rule

WHAT ARE THE EXCEPTIONS TO THE RULES ON COMPELLING


RULE 23: DEPOSITIONS PENDING ACTION
ATTENDANCE AND CONTEMPT?
1. Shall not apply to a witness who resides more than 100
kilometers from his residence to the place where he is to testify Section 1. Depositions pending action, when may be taken. By
by the ordinary course of travel leave of court after jurisdiction has been obtained over any
2. Detention prisoner if no permission of the court in which his case defendant or over property which is the subject of the action,
is pending was obtained or without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be
taken, at the instance of any party, by deposition upon oral
RULE 22: COMPUTATION OF TIME
examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as
Section 1. How to compute time. In computing any period of provided in Rule 21. Depositions shall be taken only in
time prescribed or allowed by these Rules, or by order of the accordance with these Rules. The deposition of a person
court, or by any applicable statute, the day of the act or confined in prison may be taken only by leave of court on such
event from which the designated period of time begins to run terms as the court prescribes. (1a, R24)
is to be excluded and the date of performance included. If
the last day of the period, as thus computed, falls on a Section 2. Scope of examination. Unless otherwise ordered by
Saturday a Sunday, or a legal holiday in the place where the the court as provided by section 16 or 18 of this Rule, the
court sits, the time shall not run until the next working day. deponent may be examined regarding any matter, not
(a) privileged, which is relevant to the subject of the pending
action, whether relating to the claim or defense of any other
Section 2. Effect of interruption. Should an act be done party, including the existence, description, nature, custody,
which effectively interrupts the running of the period, the condition, and location of any books, documents, or other

BY: MA. ANGELA LEONOR C. AGUINALDO


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tangible things and the identity and location of persons having justice and with due regard to the importance of presenting
knowledge of relevant facts. (2, R24) the testimony of witnesses orally in open court, to allow the
deposition to be used; and
Section 3. Examination and cross-examination. Examination
and cross-examination of deponents may proceed as permitted (d) If only part of a deposition is offered in evidence by a
at the trial under sections 3 to 18 of Rule 132. (3a, R24) party, the adverse party may require him to introduce all of
it which is relevant to the part introduced, and any party may
Section 4. Use of depositions. At the trial or upon the introduce any other parts. (4a, R24)
hearing of a motion or an interlocutory proceeding, any part
or all of a deposition, so far as admissible under the rules of Section 5. Effect of substitution of parties. Substitution of
evidence, may be used against any party who was present or parties does not affect the right to use depositions previously
represented at the taking of the deposition or who had due taken; and, when an action has been dismissed and another
notice thereof, in accordance with any one of the following action involving the same subject is afterward brought
provisions; between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly
(a) Any deposition may be used by any party for the purpose filed in the former action may be used in the latter as if
of contradicting or impeaching the testimony of deponent as a originally taken therefor. (5, R24)
witness;
Section 6. Objections to admissibility. Subject to the
(b) The deposition of a party or of any one who at the time of provisions of section 29 of this Rule, objection may be made
taking the deposition was an officer, director, or managing at the trial or hearing, to receiving in evidence any deposition
agent of a public or private corporation, partnership, or or part thereof for any reason which would require the
association which is a party may be used by an adverse party exclusion of the evidence if the witness were then present
for any purpose; and testifying (6, R24)

(c) The deposition of a witness, whether or not a party, may Section 7. Effect of taking depositions. A party shall not be
be used by any party for any purpose if the court finds: (1) deemed to make a person his own witness for any purpose by
that the witness is dead, or (2) that the witness resides at a taking his deposition. (7, R24)
distance more than one hundred (100) kilometers from the
place of trial or hearing, or is out of the Philippines, unless it Section 8. Effect of using depositions. The introduction in
appears that his absence was procured by the party offering evidence of the deposition or any part thereof for any purpose
the deposition, or (3) that the witness is unable to attend or other than that of contradicting or impeaching the deponent
testify because of age, sickness, infirmity, or imprisonment, or makes the deponent the witness of the party introducing the
(4) that the party offering the deposition has been unable to deposition, but this shall not apply to the use by an adverse
procure the attendance of the witness by subpoena; or (5) party of a deposition as described in paragraph (b) of section
upon application and notice, that such exceptional 4 of this Rule. (8, R24)
circumstances exist as to make it desirable, in the interest of

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Section 9. Rebutting deposition. At the trial or hearing any before any person authorized to administer oaths, at any time
party may rebut any relevant evidence contained in a or place, in accordance with these Rules and when so taken
deposition whether introduced by him or by any other party. may be used like other depositions. (14a, R24)
(9, R24)
Section 15. Deposition upon oral examination; notice; time and
Section 10. Persons before whom depositions may be taken place. A party desiring to take the deposition of any person
within the Philippines. Within the Philippines depositions may upon oral examination shall give reasonable notice in writing,
be taken before any judge, notary public, or the person to every other party to the action. The notice shall state the
referred to in section 14 hereof. (10a, R24) time and place for taking the deposition and the name and
address of each person to be examined, if known, and if the
Section 11. Persons before whom depositions may be taken in name is not known, a general description sufficient to identify
foreign countries. In a foreign state or country, depositions him or the particular class or group to which he belongs. On
may be taken (a) on notice before a secretary of embassy or motion of any party upon whom the notice is served, the court
legation, consul general, consul, vice-consul, or consular agent may for cause shown enlarge or shorten the time. (15, R24)
of the Republic of the Philippines, (b) before such person or
officer as may be appointed by commission or under letters Section 16. Orders for the protection of parties and
rogatory; or (c) the person referred to in section 14 hereof. deponents. After notice is served for taking a deposition by
(11a, R24) oral examination, upon motion seasonably made by any party
or by the person to be examined and for good cause shown,
Section 12. Commission or letters rogatory. A commission or the court in which the action is pending may make an order
letters rogatory shall be issued only when necessary or that the deposition shall not be taken, or that it may be
convenient, on application and notice, and on such terms, and taken only at some designated place other than that stated in
with such direction as are just and appropriate. Officers may the notice, or that it may be taken only on written
be designated in notices or commissions either by name or interrogatories, or that certain matters shall not be inquired
descriptive title and letters rogatory may be addressed to the into, or that the scope of the examination shall be held with
appropriate judicial authority in the foreign country. (12a, no one present except the parties to the action and their
R24) officers or counsel, or that after being sealed the deposition
shall be opened only by order of the court, or that secret
Section 13. Disqualification by interest. No deposition shall processes, developments, or research need not be disclosed, or
be taken before a person who is a relative within the sixth that the parties shall simultaneously file specified documents
degree of consanguinity or affinity, or employee or counsel of or information enclosed in sealed envelopes to be opened as
any of the parties, or who is a relative within the same directed by the court or the court may make any other order
degree, or employee of such counsel; or who is financially which justice requires to protect the party or witness from
interested in the action. (13a, R24) annoyance, embarrassment, or oppression. (16a, R24)

Section 14. Stipulations regarding taking of depositions. If Section 17. Record of examination, oath; objections. The
the parties so stipulate in writing, depositions may be taken officer before whom the deposition is to be taken shall put

BY: MA. ANGELA LEONOR C. AGUINALDO


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the witness on oath and shall personally, or by some one submitted to the witness for examination and shall be read to
acting under his direction and in his presence, record the or by him, unless such examination and reading are waived by
testimony of the witness. The testimony shall be taken the witness and by the parties. Any changes in form or
stenographically unless the parties agree otherwise. All substance which the witness desires to make shall be entered
objections made at the time of the examination to the upon the deposition by the officer with a statement of the
qualifications of the officer taking the deposition, or to the reasons given by the witness for making them. The deposition
manner of talking it, or to the evidence presented, or to the shall then be signed by the witness, unless the parties by
conduct of any party, and any other objection to the stipulation waive the signing or the witness is ill or cannot be
proceedings, shall be noted by the officer upon the deposition. found or refuses to sign. If the deposition is not signed by the
Evidence objected to shall be taken subject to the objections. witness, the officer shall sign it and state on the record the
In lieu of participating in the oral examination, parties served fact of the waiver or of the illness or absence of the witness
with notice of taking a deposition may transmit written or the fact of the refusal to sign together with the reason be
interrogatories to the officers, who shall propound them to given therefor, if any, and the deposition may then be used as
the witness and record the answers verbatim. (17, R24) fully as though signed, unless on a motion to suppress under
section 29 (f) of this Rule, the court holds that the reasons
Section 18. Motion to terminate or limit examination. At any given for the refusal to sign require rejection of the
time during the taking of the deposition, on motion or petition deposition in whole or in part. (19a, R24)
of any party or of the deponent, and upon a showing that the
examination is being conducted in bad faith or in such manner Section 20. Certification, and filing by officer. The officer
as unreasonably to annoy, embarrass, or oppress the deponent shall certify on the deposition that the witness was duly
or party, the court in which the action is pending or the sworn to by him and that the deposition is a true record of
Regional Trial Court of the place where the deposition is being the testimony given by the witness. He shall then securely
taken may order the officer conducting the examination to seal the deposition in an envelope indorsed with the title of
cease forthwith from taking the deposition, or may limit the the action and marked "Deposition of (here insert the name of
scope and manner of the taking of the deposition, as provided witness)" and shall promptly file it with the court in which
in section 16 of this Rule. If the order made terminates the the action is pending or send it by registered mail to the
examination, it shall be resumed thereafter only upon the clerk thereof for filing. (20, R24)
order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the Section 21. Notice of filing. The officer taking the deposition
deposition shall be suspended for the time necessary to make shall give prompt notice of its filing to all the parties. (21,
a notice for an order. In granting or refusing such order, the R24)
court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may Section 22. Furnishing copies. Upon payment of reasonable
deem reasonable. (18a, R24) charges therefor, the officer shall furnish a copy of the
deposition to any party or to the deponent. (22, R24)
Section 19. Submission to witness; changes; signing. When the
testimony is fully transcribed, the deposition shall be

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Section 23. Failure to attend of party giving notice. If the shall be delivered by the party taking the deposition to the
party giving the notice of the taking of a deposition fails to officer designated in the notice, who shall proceed promptly,
attend and proceed therewith and another attends in person in the manner provided by sections 17, 19 and 20 of this Rule,
or by counsel pursuant to the notice, the court may order the to take the testimony of the witness in response to the
party giving the notice to pay such other party the amount of interrogatories and to prepare, certify, and file or mail the
the reasonable expenses incurred by him and his counsel in so deposition, attaching thereto the copy of the notice and the
attending, including reasonable attorney's fees. (23a, R24) interrogatories received by him. (26, R24)

Section 24. Failure of party giving notice to serve subpoena. Section 27. Notice of filing and furnishing copies. When a
If the party giving the notice of the taking of a deposition of deposition upon interrogatories is filed, the officer taking it
a witness fails to serve a subpoena upon him and the witness shall promptly give notice thereof to all the parties, and may
because of such failure does not attend, and if another party furnish copies to them or to the deponent upon payment of
attends in person or by counsel because he expects the reasonable charges therefor. (27, R24)
deposition of that witness to be taken, the court may order
the party giving the notice to pay to such other party the Section 28. Order for the protection of parties and deponents.
amount of the reasonable expenses incurred by him and his After the service of the interrogatories and prior to the
counsel in so attending, including reasonable attorney's fees. taking of the testimony of the deponent, the court in which
(24a, R24) the action is pending, on motion promptly made by a party or
a deponent, and for good cause shown, may make any order
Section 25. Deposition upon written interrogatories; service of specified in sections 15, 16 and 18 of this Rule which is
notice and of interrogatories. A party desiring to take the appropriate and just or an order that the deposition shall not
deposition of any person upon written interrogatories shall be taken before the officer designated in the notice or that
serve them upon every other party with a notice stating the it shall not be taken except upon oral examination. (28a, R24)
name and address of the person who is to answer them and
the name or descriptive title and address of the officer Section 29. Effect of errors and irregularities in depositions.
before whom the deposition is to be taken. Within ten (10)
days thereafter, a party so served may serve cross- (a) As to notice. All errors and irregularities in the notice
interrogatories upon the party proposing to take the for taking a deposition are waived unless written objection is
deposition. Within five (5) days thereafter, the latter may promptly served upon the party giving the notice.
serve re-direct interrogatories upon a party who has served
cross-interrogatories. Within three (3) days after being (b) As to disqualification of officer. Objection to taking a
served with re-direct interrogatories, a party may serve deposition because of disqualification of the officer before
recross-interrogatories upon the party proposing to take the whom it is to be taken is waived unless made before the
deposition. (25, R24) taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
Section 26. Officers to take responses and prepare record. A reasonable diligence.
copy of the notice and copies of all interrogatories served

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(c) As to competency or relevancy of evidence. Objections to Section 1. Depositions before action; petition. A person who
the competency of witness or the competency, relevancy, or desires to perpetuate his own testimony or that of another
materiality of testimony are not waived by failure to make person regarding any matter that may be cognizable in any
them before or during the taking of the deposition, unless the court of the Philippines may file a verified petition in the
ground, of the objection is one which might have been court of the place of the residence of any expected adverse
obviated or removed if presented at that time. party. (1a R134)

(d) As to oral examination and other particulars. Errors and Section 2. Contents of petition. The petition shall be entitled
irregularities occurring at the oral examination in the manner in the name of the petitioner and shall show: (a) that the
of taking the deposition in the form of the questions or petitioner expects to be a party to an action in a court of
answers, in the oath or affirmation, or in the conduct of the the Philippines but is presently unable to bring it or cause it
parties and errors of any kind which might be obviated, to be brought; (b) the subject matter of the expected action
removed, or cured if promptly prosecuted, are waived unless and his interest therein; (c) the facts which he desires to
reasonable objection thereto is made at the taking of the establish by the proposed testimony and his reasons for
deposition. desiring to perpetuate it; (d) the names or a description of
the persons he expects will be adverse parties and their
(e) As to form of written interrogatories. Objections to the addresses so far as known; and (e) the names and addresses of
form of written interrogatories submitted under sections 25 the persons to be examined and the substance of the
and 26 of this Rule are waived unless served in writing upon testimony which he expects to elicit from each, and shall ask
the party propounding them within the time allowed for for an order authorizing the petitioner to take the depositions
serving succeeding cross or other interrogatories and within of the persons to be examined named in the petition for the
three (3) days after service of the last interrogatories purpose of perpetuating their testimony. (2, R134)
authorized.
Section 3. Notice and service. The petitioner shall serve a
(f) As to manner of preparation. Errors and irregularities in notice upon each person named in the petition as an expected
the manner in which the testimony is transcribed or the adverse party, together with a copy of the petition, stating
deposition is prepared, signed, certified, sealed, indorsed, that the petitioner will apply to the court, at a time and
transmitted, filed, or otherwise dealt with by the officer place named therein, for the order described in the petition.
under sections 17, 19, 20 and 26 of this Rule are waived unless At least twenty (20) days before the date of the hearing, the
a motion to suppress the deposition or some part thereof is court shall cause notice thereof to be served on the parties
made with reasonable promptness after such defect is, or with and prospective deponents in the manner provided for service
due diligence might have been, ascertained. (29a, R24) of summons. (3a, R134)

Section 4. Order and examination. If the court is satisfied


RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
that the perpetuation of the testimony may prevent a failure
or delay of justice, it shall make an order designating or
describing the persons whose deposition may be taken and

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specifying the subject matter of the examination and whether conditions as are prescribed in these Rules for depositions
the depositions shall be taken upon oral examination or taken in pending actions. (7a, R134)
written interrogatories. The depositions may be taken in
accordance with Rule 23 before the hearing. (4a, R134)
RULE 25: INTERROGATORIES TO PARTIES
Section 5. Reference to court. For the purpose of applying
Rule 23 to depositions for perpetuating testimony, each Section 1. Interrogatories to parties; service thereof. Under
reference therein to the court in which the action is pending the same conditions specified in section 1 of Rule 23, any
shall be deemed to refer to the court in which the petition party desiring to elicit material and relevant facts from any
for such deposition was filed. (5a, R134) adverse parties shall file and serve upon the latter written
interrogatories to be answered by the party served or, if the
Section 6. Use of deposition. If a deposition to perpetuate party served is a public or private corporation or a
testimony is taken under this Rule, or if, although not so partnership or association, by any officer thereof competent
taken, it would be admissible in evidence, it may be used in to testify in its behalf. (1a)
any action involving the same subject matter sub-sequently
brought in accordance with the provisions of sections 4 and 5 Section 2. Answer to interrogatories. The interrogatories
of Rule 23. (6a, R134) shall be answered fully in writing and shall be signed and
sworn to by the person making them. The party upon whom
Section 7. Depositions pending appeal. If an appeal has been the interrogatories have been served shall file and serve a
taken from a judgment of a court, including the Court of copy of the answers on the party submitting the
Appeals in proper cases, or before the taking of an appeal if interrogatories within fifteen (15) days after service thereof
the time therefor has not expired, the court in which the unless the court on motion and for good cause shown, extends
judgment was rendered may allow the taking of depositions of or shortens the time. (2a)
witnesses to perpetuate their testimony for in the event of
further proceedings in the said court. In such case the party Section 3. Objections to interrogatories. Objections to any
who desires to perpetuate the testimony may make a motion in interrogatories may be presented to the court within ten (10)
the said court for leave to take the depositions, upon the days after service thereof, with notice as in case of a motion;
same notice and service thereof as if the action was pending and answers shall be deferred until the objections are
therein. The motion shall state (a) the names and addresses of resolved, which shall be at as early a time as is practicable.
the persons to be examined and the substance of the (3a)
testimony which he expects to elicit from each, and (b) the
reason for perpetuating their testimony. If the court finds Section 4. Number of interrogatories. No party may, without
that the perpetuation of the testimony is proper to avoid a leave of court, serve more than one set of interrogatories to
failure or delay of justice, it may make an order allowing the be answered by the same party. (4)
deposition to be taken, and thereupon the depositions may be
taken and used in the same manner and under the same Section 5. Scope and use of interrogatories. Interrogatories
may relate to any matters that can be inquired into under

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section 2 of Rule 23, and the answers may be used for the the preceding paragraph and his compliance therewith shall be
same purposes provided in section 4 of the same Rule. (5a) deferred until such objections are resolved, which resolution
shall be made as early as practicable. (2a)
Section 6. Effect of failure to serve written interrogatories.
Unless thereafter allowed by the court for good cause shown Section 3. Effect of admission. Any admission made by a
and to prevent a failure of justice, a party not served with party pursuant to such request is for the purpose of the
written interrogatories may not be compelled by the adverse pending action only and shall not constitute an admission by
party to give testimony in open court, or to give a deposition him for any other purpose nor may the same be used against
pending appeal. (n) him in any other proceeding. (3)

Section 4. Withdrawal. The court may allow the party making


RULE 26: ADMISSION BY ADVERSE PARTY
an admission under the Rule, whether express or implied, to
withdraw or amend it upon such terms as may be just. (4)
Section 1. Request for admission. At any time after issues
have been joined, a party may file and serve upon any other Section 5. Effect of failure to file and serve request for
party may file and serve upon any other party a written admission. Unless otherwise allowed by the court for good
request for the admission by the latter of the genuineness of cause shown and to prevent a failure of justice a party who
any material and relevant document described in and exhibited fails to file and serve a request for admission on the adverse
with the request or of the truth of any material and relevant party of material and relevant facts at issue which are, or
matter of fact set forth in the request. Copies of the ought to be, within the personal knowledge of the latter,
documents shall be delivered with the request unless copy shall not be permitted to present evidence on such facts. (n)
have already been furnished. (1a)
RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR
Section 2. Implied admission. Each of the matters of which an
THINGS
admission is requested shall be deemed admitted unless, within
a period designated in the request, which shall not be less
than fifteen (15) days after service thereof, or within such Section 1. Motion for production or inspection; order. Upon
further time as the court may allow on motion, the party to motion of any party showing good cause therefor, the court in
whom the request is directed files and serves upon the party which an action is pending may (a) order any party to produce
requesting the admission a sworn statement either denying and permit the inspection and copying or photographing, by or
specifically the matters of which an admission is requested or on behalf of the moving party, of any designated documents,
setting forth in detail the reasons why he cannot truthfully papers, books, accounts, letters, photographs, objects or
either admit or deny those matters. tangible things, not privileged, which constitute or contain
evidence material to any matter involved in the action and
Objections to any request for admission shall be submitted to which are in his possession, custody or control, or (b) order
the court by the party requested within the period for and any party to permit entry upon designated land or other
prior to the filing of his sworn statement as contemplated in property in his possession or control for the purpose of

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inspecting, measuring, surveying, or photographing the Section 4. Waiver of privilege. By requesting and obtaining a
property or any designated relevant object or operation report of the examination so ordered or by taking the
thereon. The order shall specify the time, place and manner of deposition of the examiner, the party examined waives any
making the inspection and taking copies and photographs, and privilege he may have in that action or any other involving the
may prescribe such terms and conditions as are just. (1a) same controversy, regarding the testimony of every other
person who has examined or may thereafter examine him in
respect of the same mental or physical examination. (4)
RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY


Section 1. When examination may be ordered. In an action in
which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in Section 1. Refusal to answer. If a party or other deponent
its discretion order him to submit to a physical or mental refuses to answer any question upon oral examination, the
examination by a physician. (1) examination may be completed on other matters or adjourned
as the proponent of the question may prefer. The proponent
Section 2. Order for examination. The order for examination may thereafter apply to the proper court of the place where
may be made only on motion for good cause shown and upon the deposition is being taken, for an order to compel an
notice to the party to be examined and to all other parties, answer. The same procedure may be availed of when a party
and shall specify the time, place, manner, conditions and scope or a witness refuses to answer any interrogatory submitted
of the examination and the person or persons by whom it is to under Rules 23 or 25.
be made. (2)
If the application is granted, the court shall require the
Section 3. Report of findings. If requested by the party refusing party or deponent to answer the question or
examined, the party causing the examination to be made shall interrogatory and if it also finds that the refusal to answer
deliver to him a copy of a detailed written report of the was without substantial justification, it may require the
examining physician setting out his findings and conclusions. refusing party or deponent or the counsel advising the refusal,
After such request and delivery, the party causing the or both of them, to pay the proponent the amount of the
examination to be made shall be entitled upon request to reasonable expenses incurred in obtaining the order, including
receive from the party examined a like report of any attorney's fees.
examination, previously or thereafter made, of the same
mental or physical condition. If the party examined refuses to If the application is denied and the court finds that it was
deliver such report, the court on motion and notice may make filed without substantial justification, the court may require
an order requiring delivery on such terms as are just, and if a the proponent or the counsel advising the filing of the
physician fails or refuses to make such a report the court application, or both of them, to pay to the refusing party or
may exclude his testimony if offered at the trial. (3a) deponent the amount of the reasonable expenses incurred in
opposing the application, including attorney's fees. (1a)

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Section 2. Contempt of court. If a party or other witness of a party for disobeying any of such orders except an order
refuses to be sworn or refuses to answer any question after to submit to a physical or mental examination. (3a)
being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a Section 4. Expenses on refusal to admit. If a party after
contempt of that court. (2a) being served with a request under Rule 26 to admit the
genuineness of any document or the truth of any matter of
Section 3. Other consequences. If any party or an officer or fact serves a sworn denial thereof and if the party requesting
managing agent of a party refuses to obey an order made the admissions thereafter proves the genuineness of such
under section 1 of this Rule requiring him to answer document or the truth of any such matter of fact, he may
designated questions, or an order under Rule 27 to produce apply to the court for an order requiring the other party to
any document or other thing for inspection, copying, or pay him the reasonable expenses incurred in making such
photographing or to permit it to be done, or to permit entry proof, including attorney's fees. Unless the court finds that
upon land or other property or an order made under Rule 28 there were good reasons for the denial or that admissions
requiring him to submit to a physical or mental examination, sought were of no substantial importance, such order shall be
the court may make such orders in regard to the refusal as issued. (4a)
are just, and among others the following:
Section 5. Failure of party to attend or serve answers. If a
(a) An order that the matters regarding which the questions party or an officer or managing agent of a party wilfully fails
were asked, or the character or description of the thing or to appear before the officer who is to take his deposition,
land, or the contents of the paper, or the physical or mental after being served with a proper notice, or fails to serve
condition of the party, or any other designated facts shall be answers to interrogatories submitted under Rule 25 after
taken to be established for the purposes of the action in proper service of such interrogatories, the court on motion
accordance with the claim of the party obtaining the order; and notice, may strike out all or any part of any pleading of
that party, or dismiss the action or proceeding or any part
(b) An order refusing to allow the disobedient party to thereof, or enter a judgment by default against that party,
support or oppose designated claims or defenses or prohibiting and in its discretion, order him to pay reasonable expenses
him from introducing in evidence designated documents or incurred by the other, including attorney's fees. (5)
things or items of testimony, or from introducing evidence of
physical or mental condition; Section 6. Expenses against the Republic of the Philippines.
Expenses and attorney's fees are not to be imposed upon the
(c) An order striking out pleadings or parts thereof, or staying Republic of the Philippines under this Rule. (6)
further proceedings until the order is obeyed, or dismissing
the action or proceeding or any part thereof, or rendering a NOTES ON MODES OF DISCOVERY
judgment by default against the disobedient party; and 1. There is the possibility of availing of summary judgment after
availing oneself of the modes of discoverythis is what is meant
(d) In lieu of any of the foregoing orders or in addition of considering the same with pre-trial techniques
thereto, an order directing the arrest of any party or agent

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2. In litigation, don't get the impression that in litigation, you can 12. A sample situation under rule 27, a complaint may be filed
disclose facts and evidence and then later on will spring an against one for a transaction that happened years ago. He
ambush against the adverse party. This is not like the movies. wants to know what document the plaintiff holds before he files
That is not theoretically and practically done in litigation. (full his answer. He can file for the motion for production of those
disclosure of facts) documents. Gusto mo malaman kung anong ebidensya meron ang
3. Either party will be able to assess if you are going to fight or kabilang partido.
not (promote early settlement) 13. Why is there no arrest with respect to physical and mental
4. Prevent surprisesif you don't mark the evidence or present the examination? There is an incriminating aspect with respect to
witness during the pre-trial, the judge may theoretically this one.
speaking, disallow it
5. The deposition pending action will be used by the proponent as a
MIDTERM EXAMS
basis for contradicting or impeaching the testimony of the
QUESTIONS AND ANSWERS
witness during the trial. Remember that merely taking ones
deposition will make him a witness. It may be the case that this
witness will testify in favor of the other. You may now use the 1. Sometime in September 2001, Alex and Lyra entered into a
prior deposition to impeach his testimony in case of contradiction, contract over a piece of land for the amount of P500000. There
which is detrimental to the case of the proponent. is an agreement that there is no transfer of possession and title
6. There are certain limitations to the qualification of a deposition until the full payment of the price.
officer
7. In the capacity of a deposition officer, he is the alter ego of Rescission is a personal action. It is also incapable of pecuniary
the judge on the pending case. He cannot however rule on the estimation.
objections but can only note the same. The venue to file the action shall depend on the plaintiff.
8. The premise under Rule 23 is that there is a pending action in
court. With written interrogatories, the set of questions come 2. Camille sued Nicka in the MTC of Pasig for the payment of
with the notice. P150,000 promissory note. There is a stipulation in the
9. In written interrogatories, it is an example of tediousness. In promissory note that any action relating to the promissory note
preparing the cross-interrogatories, you have to think about how shall be exclusively be filed in the appropriate court in
the deponent will actually answer the question. One question Mandaluyong City. Nicka filed an answer with affirmative
may lead to many cross-interrogatories. The process of defense as well as counterclaim. Judge Oberio granted a
preparing the questions is difficult. preliminary hearing on the affirmative defense and dismissed the
10. The premise under Rule 24 is that there has been no action yet. complaint and ruled on the counterclaim, ordering Camille to
The rule can also pertain to cases pending appeal and there is a return the SCRA to Nicka. Camille filed for motion for
possibility of remanding the case to the lower court. There is reconsideration, averring that since there is improper venue, why
the instance of perpetuating the testimonies. should there be a ruling on the counterclaim?
11. In rule 26, the admission is limited to the genuineness of the
materials described or contained in the request. The improper venue only was in relation to the complaint. The
exclusive venue stipulation wasn't applicable to the counterclaim

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for the return of the SCRA books. The counterclaim was was tantamount to voluntary appearance which cured the
permissive. It depends on whether there has been payment of defect.
docket fees on the counterclaim. If there was payment, then
there is jurisdiction. 5. William, Aldwill and Gene inherited a parcel of land. Gene
migrated to Australia. Aldwill filed an action for partition.
3. Geoff sued Raffy and Red who are brothers. The other owed Gene was served summons by publication and by sending by
Geoff on a promissory note while the other was liable on a courier the summons to his residence in Australia. The court
bouncing check. Raffy filed a motion a dismiss due to misjoinder ordered the partition and ordered William and Gene to reimburse
of parties and lack of jurisdiction over his person. the costs of construction, etc.

There has been a misjoinder of parties. It is also not a ground Was there jurisdiction over the res? Yes. The res here is the
to dismiss the case. property interest.
Regarding the jurisdiction over the claim against Raffy, the
court doesn't have jurisdiction over the claim since it is only Can the court order Gene to pay costs? No. There was no
P200000. jurisdiction over the person of Gene. This is not a personal
action and thus there couldn't be any personal judgment against
How about the totality rule? It is not applicable if there has one who is abroad.
been a proper joinder of causes of action or proper joinder of
parties. 6. Atty. Macasaet got drunk, became drunk and got beaten up. He
was hospitalized for two weeks. He was then declared in
If you are the judge, how would you proceed with the action? default. He filed a motion for reconsideration, attaching therein
You will sever the cause of action against the other wherein I his certification.
don't have jurisdiction over. I will proceed on the action against
Red. The proper motion to file is a motion to set aside the order of
default. There should be compliance with requirements like an
4. Nancy filed a complaint against Chibu for eating a staple wire affidavit of merit, verification, etc.
from Chibus Noodle House. Rommel served a summons to Chibus
residence and gave the summons to the househelper. He then 7. Darwin failed to appear together with counsel during the pre-
served also a copy of the summons in the business establishment. trial. His common-law wife was the one who wanted to appear
Instead of filing an answer, he filed for motion for extension of for Darwin but was disallowed. Did the judge act correctly to
time. He then he filed a motion to dismiss for lack of allow Trish to present her evidence ex parte?
jurisdiction over person.
No. The proper action should be to dismiss the case. If there
There should be a discussion on proper service. There should has been counterclaims, then that is when the defendant be
first be personal service. You should try to serve personally allowed to present evidence.
summons to defendant before resorting to substituted service.
Nonetheless, Chibu filed a motion for extension of time. This

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8. Kaye, a jeweler, filed a complaint against Jamie for recovery of Section 1. Notice of Trial. Upon entry of a case in the trial
the diamond ring. She alleges mistake. Jamies lawyer filed a calendar, the clerk shall notify the parties of the date of its
motion for bill of particulars, averring mistake should be made trial in such manner as shall ensure his receipt of that notice
particularity but the other counsel said that it is a state of at least five (5) days before such date. (2a, R22)
mind and could be averred generally. The judge denied the
motion. Section 2. Adjournments and postponements. A court may
adjourn a trial from day to day, and to any stated time, as
The judge wasn't correct by denying the motion since mistake the expeditious and convenient transaction of business may
should be averred with particularity. On the question of filing a require, but shall have no power to adjourn a trial for a
motion to dismiss, he can file within the period of no less than 5 longer period than one month for each adjournment nor more
days. He can cite failure to cite a cause of action as ground for than three months in all, except when authorized in writing
the facts constituting mistake wasn't mentioned. by the Court Administrator, Supreme Court. (3a, R22)

9. There was a class suit regarding recovery of winnings from the SECTION MERE DIRECTORY
softdrink company relating to the contest it had before. A This section is merely directory and a violation doesn't nullify a
compromise agreement was entered into by the parties and it judicial proceeding
was settled that the winners of the crowns shall be paid the To be read with the continuous trial systemthe whole
30% of the face value of the crowns and that they will file a proceeding shall be terminated and ready for judgment within 90
notice of dismissal. Joco was one of the winners and held 5 days from the date of initial hearing, unless for meritorious
crowns. He is dissatisfied with the compromise agreement. reasons, an extension is allowed
What can be his relief and may it be done?
DOCKET FEE ON MOTION FOR POSTPONEMENT
He can intervene. He can intervene before judgment is finally No fee shall be imposed when a motion is found to be based on
rendered. Second, the court must approve the compromise justifiable and compelling reasons
agreement in case of a class suit.
Section 3. Requisites of motion to postpone trial for absence
of evidence. A motion to postpone a trial on the ground of
RULE 30: TRIAL
absence of evidence can be granted only upon affidavit
showing the materiality or relevancy of such evidence, and
Remember: Trial is associated with presentation of evidence, which that due diligence has been used to procure it. But if the
leads to the rendering of judgment on the merits. adverse party admits the facts to be given in evidence, even
if he objects or reserves the right to object to their
WHAT IS TRIAL? admissibility, the trial shall not be postponed. (4a, R22; Bar
Trying or weighing the evidencedetermining the credence or Matter No. 803, 21 July 1998)
validity of the evidence presented
GROUNDS FOR ADJOURNMENT
1. Failure to adduce evidence

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2. Conflict of schedule of counsel to render his presence at the trial impossible a continuance
3. Suspension of actions should be granted, if it appears that has been guilty of no
4. Illness of counsel or party negligence
2. A continuance is properly refused where it appears that the
REQUISITESAN AFFIDAVIT SHOWING party is not too ill to attend trial. The fact of illness must be
1. That the evidence expected to be obtained is material established either in the shape of the affidavit or the
2. That due diligence has been used to procure it certificate of the physician

TRIAL SHOULD NOT BE POSTPONED IF THE ADVERSE PARTY CONTINUANCE IS DISCRETIONARY


ADMITS THE FACTS TO BE GIVEN IN EVIDENCE, EVEN IF HE General rulethe granting or refusing of a motion for
OBJECTS OR RESERVES THE RIGHT TO OBJECT TO THEIR continuance is in the sound discretion of the trial court, and that
ADMISSION the appellate court will not interfere with the exercise of this
An admission to avoid a continuance must be an admission of the discretion, unless the action of the trial court is clearly
facts to be given in evidence and not merely an admission that erroneous, or is in clear abuse of its discretion
such evidence would be given
There is a distinction between the two that in the first, it ENGAGEMENT OF PARTYS ATTORNEY IN ANOTHER TRIAL
admits the truth of the proposed testimony, whereas the second This may be a ground for granting a continuance
merely admits the tenor thereof If without the previous knowledge and consent of an attorney,
two cases handled by him are set for trial in different courts on
Section 4. Requisites of motion to postpone trial for illness of the same date, he may ask for postponement of one of them
party or counsel. A motion to postpone a trial on the ground However, when an attorney accepts a case, knowing that the
of illness of a party or counsel may be granted if it appears hearing thereof is set for a date on which he cannot appear,
upon affidavit or sworn certification that the presence of because of the trial of another case, which has been set
such party or counsel at the trial is indispensable and that previously, he has no right to presume that the court shall
the character of his illness is such as to render his non- necessarily grant his motion for postponement of the hearing
attendance excusable. (5a, R22)
MOTION FOR CONTINUANCE SHOULD BE FILED IN
REQUISITESAN AFFIDAVIT SHOWING ACCORDANCE WITH SECTION 4 RULE 15 WHICH REQUIRES AT
1. That the presence of the party or counsel at the trial is LEAST 3 DAYS NOTICE EXCEPT FOR GOOD CAUSE
indispensable Reason is to enable the adverse party to notify his witness not
2. That the character of his illness is such as to render non- to appear on the day set for trial and avoid the considerable
attendance excusable trouble and expense of coming to court

NOTES: A MOTION FOR CONTINUANCE ON GROUND OF AMICABLE


1. The illness of the party or counsel is not ipso facto a cause for SETTLEMENT SHOULD BE GRANTED
continuance of the cause, but where a partys presence at the Where a transfer of the hearing to some other time was sought
trial is indispensable and the character of his illness is such as for reasonable grounds, as when the parties are trying to reach

BY: MA. ANGELA LEONOR C. AGUINALDO


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an amicable settlement of their controversy, it behooves the If several defendants or third-party defendants, and so forth,
court to grant the same in order to afford the parties having separate defenses appear by different counsel, the
opportunity to thresh out their differences out of court court shall determine the relative order of presentation of
their evidence. (1a, R30)
Section 5. Order of trial. Subject to the provisions of section
2 of Rule 31, and unless the court for special reasons ORDER OF TRIAL
otherwise directs, the trial shall be limited to the issues 1. After the clerk of court has placed in the trial calendar, the
stated in the pre-trial order and shall proceed as follows: case shall be set for trial and notice will be given at least 5
days from notice to prepare
(a) The plaintiff shall adduce evidence in support of his 2. The plaintiff shall present evidence in support of his complaint
complaint; the plaintiff shall present in the stage allotted for him
3. The defendant shall adduce evidence with respect to defense,
(b) The defendant shall then adduce evidence in support of his counterclaim, cross-claim and third-party complaints
defense, counterclaim, cross-claim and third-party complaints; 4. The third-party defendant, if any, shall adduce evidence in
support of his defense, counterclaim, cross-claim, and fourth-
(c) The third-party defendant if any, shall adduce evidence of party complaint, if any
his defense, counterclaim, cross-claim and fourth-party 5. The fourth-party defendant, if any, shall adduce evidence of the
complaint; material facts pleaded by them
6. The parties against whom any counterclaim or cross-claim has
(d) The fourth-party, and so forth, if any, shall adduce been pleaded, shall adduce evidence in support of their defense,
evidence of the material facts pleaded by them; in the order prescribed by the court
7. The parties may then produce rebutting evidence unless the
(e) The parties against whom any counterclaim or cross-claim court in furtherance of justice and for good reasons, permits
has been pleaded, shall adduce evidence in support of their them to adduce evidence upon their original case
defense, in the order to be prescribed by the court; 8. Upon admission of the evidence, the case shall be deemed
submitted for decision
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in the EVIDENCE IN CHIEF
furtherance of justice, permits them to adduce evidence upon Main evidence presented by the parties in support of their
their original case; and principal claims
Plaintiffevidence presented in support of his complaint
(g) Upon admission of the evidence, the case shall be deemed Defendantevidence presented in support of his defenses
submitted for decision, unless the court directs the parties to This is different from rebutting evidence
argue or to submit their respective memoranda or any further
pleadings. IF THE PLAINTIFF PRESENTS EVIDENCE IN CHIEF, IS HE
ALLOWED TO ANTICIPATE DEFENSES EVIDENCE IN CHIEF,
AND THEN PRESENT REBUTTING EVIDENCE?

BY: MA. ANGELA LEONOR C. AGUINALDO


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He can but it is not proper since the first time to present


evidence should be for evidence in chief FORMAL OFFER OF DOCUMENTARY EVIDENCE
Exhibit Description Purpose
PLAINTIFFS PRESENTATION OF EVIDENCE WITH RESPECT TO A P.N xxx
COUNTERCLAIMS IS RELEVANT IF THE COUNTERCLAIM IS B xxx xxx
PERMISSIVE.
Because if it is compulsory counterclaims, then the defendant
WHEN PLAINTIFF SUBMITS THE FORMAL OFFER OF EVIDENCE,
would naturally have presented the same evidence as in his
THE DEFENDANT IS GIVEN TIME TO OBJECT TO THE FORMAL
defenses
OFFER
This is in relation to evidence
SOME COURTS ALLOW A SUR-REBUTTAL
The defendant may question the admissibility or relevance of the
This rarely happens
evidence submitted
WHAT IS THE USUAL REQUIREMENT OF THE COURTS BEFORE
NOTES:
THE CASE IS SUBMITTED FOR DECISION?
1. Additional evidence may be allowed to be offered at the
The parties are made to submit the memorandum containing a
rebuttal state of the trial for good reasons in furtherance of
summary of evidence and arguments presented
justice
o If plaintiff, why the reliefs prayed for should be
granted?
ANN BOUGHT PASTRIES FROM OUTLET OF A WELL-KNOWN
o If defendant, why the case should be dismissed?
BAKESHOP. SHE GOT FOOD POISONING. SHE FILED A
o You cite the laws and how it is relevant to the case of
COMPLAINT.
the party
WHO CAN SHE SUE?
It is in this portion that there is slantingnatural thing to do by
The owner of the bakeshop outlet
the parties
The bakeshop itself
WHO CAN THE BAKESHOP SUE?
UPON ADMISSION OF THE EVIDENCE
Supplier of the flour
Before a witness is examined, there should be an offer of the
THE BAKESHOP OUTLET AVERS THAT IT RECEIVES DELIVERY
witness testimony (offer of testimony)
EVERYDAY FROM BAKESHOP.
Absent this, there would be irrelevance of the testimony of the
Cross-claim against the bakeshop
witness
But most of the time, this defect is easily cured by the judges in
1. Ann shall present evidence on her complaint
the interest of justice
2. The sales outlet shall present evidence with respect to defenses
This is the same with documentary evidence wherein the witness
and cross-claim against bakeshop
on the stand admits and authenticates the documentary evidence
3. The bakeshop shall present evidence with respect to defenses
Documentary evidence is deemed admitted when after
and cross-claim against sales outlet. It shall then present
presentation of all evidence, the party shall make in writing a
evidence against supplier of flour, assuming court grants leave to
formal offer of documentary evidence
file a third-party complaint.

BY: MA. ANGELA LEONOR C. AGUINALDO


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4. Supplier will present its defenses against the bakeshop and The parties are allowed to amend their pleadings to conform to
evidence regarding counterclaim against bakeshop the evidence presented or to authorized the amendment of the
5. In rebuttal, Ann will present rebuttal evidence against either or pleadings
both the bakeshop or sales outlet
6. The sales outlet can also present evidence for defenses with Section 6. Agreed statement of facts. The parties to any
respect to cross-claim action may agree, in writing, upon the facts involved in the
7. The bakeshop shall present evidence against third-party litigation, and submit the case for judgment on the facts
defendants answer agreed upon, without the introduction of evidence.

WHAT IF A PARTY WHO IS BOTH DEFENDANT AND THIRD- If the parties agree only on some of the facts in issue, the
PARTY PLAINTIFF AND HE PRESENTS DOCUMENTARY trial shall be held as to the disputed facts in such order as
EVIDENCE. DOES IT HAVE TO BE SEPARATELY PRESENTED AS the court shall prescribe. (2a, R30)
FORMAL OFFERS OF EVIDENCE OR CAN IT BE DONE IN A
SINGLE PLEADING? NB. The agreement on statement of facts is not limited to the pre-trial
What is normally done is that once evidence in chief is stage.
presented, a formal offer of evidence is submitted already
If necessarily rebuttal evidence is presented, then another offer Section 7. Statement of judge. During the hearing or trial of
is made with respect to the rebutting evidence (formal offer of a case any statement made by the judge with reference to
rebuttal evidence) the case, or to any of the parties, witnesses or counsel, shall
be made of record in the stenographic notes. (3a, R30)
NB: In pre-trial, the evidence is just marked but it is in the trial, the
evidence is presented and offered. However, for the evidence to be NB. This sometimes gives the reason for a judges disqualification or
considered is the formal offer of the evidence. inhibition from the case.

WHEN IS IT THAT THERE IS A REVERSAL OF TRIAL IN CIVIL Section 8. Suspension of actions. The suspension of actions
CASES? shall be governed by the provisions of the Civil Code. (n)
It is when there are affirmative defenses on the part of the
defendant Section 9. Judge to receive evidence; delegation to clerk of
There will be a hearing on affirmative defenses and the original court. The judge of the court where the case is pending shall
defendant will be allowed to show evidence to support the personally receive the evidence to be adduced by the parties.
affirmative defenses However, in default or ex parte hearings, and in any case
where the parties agree in writing, the court may delegate
ONLY THE ISSUES RAISED IN PRE-TRIAL SHALL BE the reception of evidence to its clerk of court who is a
DISCUSSED DURING THE TRIAL. MAY THE COURT ADMIT OF member of the bar. The clerk of court shall have no power to
ADDITIONAL ISSUES DURING TRIAL PROPER? rule on objections to any question or to the admission of
If the adverse party consents to the trial of an issue not raised exhibits, which objections shall be resolved by the court upon
in the pleadings, then it is allowed

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submission of his report and the transcripts within ten (10) motions or setting them for hearing on any other day or time
days from termination of the hearing. (n) must be immediately stopped.

ADMINISTRATIVE CIRCULAR NO. 3-99 January 15, 1999 II. Judges must be punctual at all times.

STRICT OBSERVANCE OF SESSION HOURS OF TRIAL COURTS III. The Clerk of Court, under the direct supervision of the
AND EFFECTIVE MANAGEMENT OF CASES TO ENSURE THEIR Judge, must comply with Rule 20 of the 1997 Rules of Civil
SPEEDY DISPOSITION Procedure regarding the calendar of cases.

TO: ALL TRIAL COURT JUDGES AND THEIR PERSONNEL AND IV. There should be strict adherence to the policy on avoiding
THE INTEGRATED BAR OF THE PHILIPPINES: postponements and needles delay.

To insure speedy disposition of cases, the following guidelines Sections 2, 3 and 4 of Rule 30, 1997 Rules on Civil Procedure
must be faithfully observed: on adjournments and postponements and on the requisites of a
motion to postpone trial for absence of evidence or for illness
I. The session hours of all Regional Trial Courts, Metropolitan or a party or counsel should be faithfully observed.
Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts shall be from 8:30 Lawyers as officers of the court, are enjoined to cooperate
A.M. to noon and from 2:00 P.M. to 4:30 P.M. from Monday to with judges to ensure swift disposition of cases.
Friday. The hours in the morning shall be devoted to the
conduct of trial, while the hours in the afternoon shall be V. The mandatory continuous trial system in civil cases
utilized for (1) the conduct of pre-trial conferences; (2) contemplated in Administrative Circular No. 4, dated 22
writing of decisions, resolutions, or orders; or (3) the September 1988, and the guidelines provided for in Circular
continuation of trial on the merits, whenever rendered No. 1-89, dated 19 January 1989, must be effectively
necessary, as may be required by the Rules of Court, implemented. For expediency, these guidelines in civil cases
statutes, or circular in specified cases. are hereunder restated with modifications, taking into account
the relevant provisions of the 1997 Rules of Civil Procedure:
However, in multi-sala courts in places where there are few
practicing lawyers, the schedule may be modified upon request A. Pre-Trial
of the Integrated Bar of the Philippines such that one-half of
the branches may hold their trial in the morning and the 1. Within five (5) days after the last pleading joining the
other half in the afternoon. issues has been filed and served, the plaintiff must move ex
parte that the case be set for pre-trial conference.
Except those requiring immediate action, all motions should be
scheduled for hearing on Friday afternoons, or if Friday is a 2. The parties shall submit, at least three (3) days before the
non-working day, in the afternoon of the next business day. conference, pre-trial briefs containing the following:
The unauthorized practice of some judges of entertaining

BY: MA. ANGELA LEONOR C. AGUINALDO


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a. A statement of their willingness to enter into an amicable the pre-trial that ought to be taken up to expedite the
settlement indicating the desired terms thereof, or to submit disposition of the case.
the case to any of the alternative modes of dispute
resolution; 4. At the pre-trial conference, the following shall be done:

b. A summary of admitted facts and proposed stipulation of a. The judge will all tact, patience and impartiality shall
facts; endeavor to persuade the parties to arrive at a settlement of
the dispute; if no amicable settlement is reached, then he
c. The issues to be tried or resolved; must effectively direct the parties toward the achievement of
the other objectives or goals of pre-trial set forth in Section
d. The number and names of the witnesses to be presented, an 2, Rule 18, 1997 Rules of Civil Procedure.
abstract of their testimonies, and the appropriate number of
hours that will be required by the parties for the b. If warranted by the disclosures at the pre-trial, the judge
presentation of their respective evidence; may either forthwith dismiss the action, or determine the
propriety of rendering a judgement on the pleadings or a
e. Copies of all documents intended to be presented with a summary judgement.
statement of the purposes of their offer;
c. The judge shall define the factual issues arising from the
f. A manifestation of their having availed or their intention to pleadings and endeavor to cull the material issues.
avail themselves of any discovery procedure, or of the need of
referral of any issues to commissioners; d. If only legal issues are presented, the judge shall require
the parties to submit their respective memoranda and
g. Applicable laws and jurisprudence; thereafter render judgment.

h. The available trial dates of counsel for complete e. If trial is necessary, the judge shall fix the trial dates
presentation of evidence, which must be within a period of required to complete presentation of evidence by both parties
three months from the first day of trial. within ninety (90) days from the date of initial hearing.

3. Before the pre-trial conference, the judge must study the 5. After the pre-trial conference, the judge should not fail to
pleadings of every case, and determine the issues thereof and prepare and issue the requisite pre-trial order, which shall
the respective positions of the parties thereon to enable him embody the matters mentioned in Sec. 7, Rule 18 of the 1997
to intelligently steer the parties toward a possible amicable Rules of Civil Procedure.
settlement of the case or, at the very least, to help reduce
and limit the issues. The judge should avoid the undesirable 6. Failure of the plaintiff to appear at the pre-trial shall be
practice of terminating the pre-trial as soon as the parties a cause for dismissal of the action. A similar failure of the
have indicated that they cannot settle the controversy. He defendant shall be a cause to allow the plaintiff to present
must be mindful that there are other important aspects of

BY: MA. ANGELA LEONOR C. AGUINALDO


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his evidence ex-parte and the court to render judgement on imposed on the judge and the lawyers for failure to comply
the basis thereof. with this requirement due to causes attributable to them.

7. Failure to file pre-trial briefs shall have the same effect 8. Each party is bound to complete the presentation of his
as failure to appear at the pre-trial. evidence within the dates assigned to him. After the lapse of
said dates, the party is deemed to have completed the
8. The judge should encourage the effective use of pre-trial presentation of evidence. However, upon verified motion based
discovery procedures (Administrative Circular No. 1 dated 28 on compelling reasons, the judge may allow a party additional
January 1988, 2.1) trial dates in the afternoon; provided that said extension will
not go beyond the three-month limit computed from the first
B. Trial trial date except when authorized in writing by the Court
Administrator, Supreme Court.
1. Unless the docket of the court requires otherwise, not more
than four (4) cases shall be scheduled for trial daily. VI. All trial judges must strictly comply with Circular No. 38-
98, entitled "Implementing the Provisions of Republic Act No.
2. The Presiding Judge shall make arrangements with the 8493" ("An Act to Ensure a Speedy Trial of All Cases Before
prosecutor and the Public Attorneys Office (PAO) so that a the Sandiganbayan, Regional Trial Court, Metropolitan Trial
relief prosecutor and a PAO attorney are always available in Court, Municipal Trial Court in Cities, Municipal Trial Court,
case the regular prosecutor or (PAO) attorneys are absent. and Municipal Circuit Trial Court, Appropriating Funds
Therefor, and for Other Purposes") issued by the Honorable
3. Contingency measures must likewise be taken for any Chief Justice Andres R. Narvasa on 11 August 1998 and which
unexpected absence of the stenographer and other support took effect on 15 September 1998.
staff assisting in the trial.
VII.
4. The issuance and service of subpoenae shall be done in
accordance with Administrative Circular No. 4 dated 22 1. As a constant reminder of what cases must be decided or
September 1988. resolved, the judge must keep a calendar of cases submitted
for decision, noting therein the exact day, month and year
5. The judge shall conduct trial with utmost dispatch, with when the 90-day period is expire. As soon as a case is
judicious exercise of the courts power to control trial submitted for decision, it must be noted in the calendar of the
proceedings to avoid delay. judge; moreover, the records shall be duly collated with the
exhibits and the transcripts of stenographic notes, as well as
6. The judge must take notes of the material and relevant the trial notes of the judge, and placed in the judge's
testimonies of witnesses to facilitate his decision-making. chamber.

7. The trial shall be terminated within ninety (90) days from 2. In criminal cases, the judge will do well to announce in
initial hearing. Appropriate disciplinary sanctions may be open court at the termination of the trial the date of the

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promulgation of the decision, which should be set within 90 3. Without recasting or consolidating the cases, the principal one is
days from the submission of the case for decision. heard, the hearing on the others being suspended until judgment
has been rendered on the first case
3. All Judges must scrupulously observe the period prescribed
in Section 15, Article VIII of the Constitution. WHEN CONSOLIDATION PROPER
A joint hearing becomes a matter of duty if two or more cases
This Circular shall take effect on 1 February 1999, and the are tried before the same judge or even if filed with the
Office of the Court Administrator shall ensure faithful different branches of the same court of first instance, provided
compliance therewith. one of the cases hasn't been partially tried
However, the fact that one case has already been partially tried
City of Manila, 15 January 1999. should not justify the refusal of the trial judge in consolidating
the same with the other case if the evidence already submitted
to the said judge in the first case could be submitted as part of
RULE 31: CONSOLIDATION OR SEVERANCE the evidence in the second case, without further need of re-
taking the testimonies of the witnesses, if both cases involve the
Section 1. Consolidation. When actions involving a common same parties, the same subject matter and the same issues
question of law or fact are pending before the court, it may
order a joint hearing or trial of any or all the matters in Section 2. Separate trials. The court, in furtherance of
issue in the actions; it may order all the actions consolidated, convenience or to avoid prejudice, may order a separate trial
and it may make such orders concerning proceedings therein as of any claim, cross-claim, counterclaim, or third-party
may tend to avoid unnecessary costs or delay. (1) complaint, or of any separate issue or of any number of
claims, cross-claims, counterclaims, third-party complaints or
CONSOLIDATION, WHEN PROPER issues. (2a)
When actions involving a common question of law or fact are
pending before the court In view of the liberal provisions of the Rules of Court regarding
joinder of causes of action and permissive joinder of parties, a
DIFFERENCE WITH PERMISSIVE JOINDER OF PARTIES single action may involve several actions, some of which only
In consolidation, it doesn't arise out of the same transaction or affect certain parties thereto
series of transactions on as to permit permissive joinder of
parties CONSOLIDATION DISTINGUISHED FROM SEVERANCE
Consolidationinvolves separate actions having a common question
MODES OF CONSOLIDATING ACTIONS OR SPECIAL of law or fact which may be jointly tried
PROCEEDINGS Severancecontemplates a single action having a number of
1. Recasting the cases already instituted, conducting only one claims, counterclaims, cross-claims, third party complaints, or
hearing and rendering only one decision issues which may be separately tried
2. The existing cases are consolidated, only one hearing is held and
only one decision is rendered

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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ASSUMPTION: THERE WAS PROPER JOINDER OF PLAINTIFFS mistake or abuse in the performance of the task entrusted to
AND PROPER JOINDER OF DEFENDANTS. HOW IS THIS him, the holding of a new trial by reason thereof alone isnt
CONNECTED WITH CONSOLIDATION? justified
The parties in the consolidated cases can be different.
There could be the same questions of facts and laws involved. REFERENCE WITH CONSENT OF BOTH PARTIES
This should happen in the same court Any or all of the issues in a case to be agreed upon by the
parties
CASE A INVOLVES A CASE AGAINST DEFENDANT. CASE B This still leaves room for the judge because it is still him that
ALSO INVOLVES THE SAME DEFENDANT AND THE SAME has to make the final decision and furthermore, it is only the
ISSUES BUT DIFFERENT PLAINTIFFS. factual issues that is tackled by the commissioner
It is the defendant that moves for consolidation in either court
SPECIAL CIVIL ACTIONS & SPECIAL PROCEEDINGS IN WHICH
CASE A FILED IN RTC CAGAYAN DE ORO INVOLVING VESSEL COMMISSIONERS ARE APPOINTED
COLLISSION AT SEA. THE SAME ISSUE AT CASE B FILED IN 1. Eminent domain
CEBU CITY. CAN IT BE CONSOLIDATED? 2. Partition of real estate
Yes upon consent of the parties and the judge 3. Trial of contested claims
Venue is the consideration
Section 2. Reference ordered on motion. When the parties do
not consent, the court may, upon the application of either or
RULE 32: TRIAL BY COMMISSIONER
of its own motion, direct a reference to a commissioner in the
following cases:
Section 1. Reference by consent. By written consent of both
parties, the court may order any or all of the issues in a case (a) When the trial of an issue of fact requires the
to be referred to a commissioner to be agreed upon by the examination of a long account on either side, in which case
parties or to be appointed by the court. As used in these the commissioner may be directed to hear and report upon the
Rules, the word "commissioner" includes a referee, an auditor whole issue or any specific question involved therein;
and an examiner. (1a, R33)
(b) When the taking of an account is necessary for the
EFFECT OF REFERENCE WITHOUT CONSENT information of the court before judgment, or for carrying a
An irregularity in the appointment of a commissioner must be judgment or order into effect.
reasonably raised in the trial court where the defect could still
be rendered, either before the parties proceed with the hearing (c) When a question of fact, other than upon the pleadings,
or before the court hands down the ruling arises upon motion or otherwise, in any stage of a case, or for
It is a procedural point that can be waived by consent of the carrying a judgment or order into effect. (2a, R33)
parties, express or implied
If the errors in procedure are not prejudicial to the parties IN WHAT CASES CAN THE COURT APPOINT A COMMISSIONER,
because there is no proof that the commissioner committed any EITHER MOTU PROPIO AT THE MOTION OF EITHER PARTY?

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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1. When the trial of an issue of fact requires the examination of a 1. Reference by consent
long account on either side, in which case the commissioner may 2. Motion to refer to commissionerone of the parties object to a
be directed to hear and report upon the whole issue or any reference
specific question involved therein; 3. Reference by motu propio
2. When the taking of an account is necessary for the information
of the court before judgment, or for carrying a judgment or WHAT MAY THE ORDER OF REFERENCE SPECIFY?
order into effect. 1. May specify or limit the powers of the commissioner
3. When a question of fact, other than upon the pleadings, arises 2. May direct him to report only upon particular issues
upon motion or otherwise, in any stage of a case, or for carrying 3. May direct him to do or perform particular acts
a judgment or order into effect. 4. To receive and report evidence only
NOTE: the above issues that the judge himself can also do but to 5. May fix the date for beginning and closing the hearings and for
expedite the process, there is a reference to a commissioner the filing of his report

QUESTION OF FACT ARISING UPON MOTION WHAT ARE POWERS TO BE EXERCISED BY THE
Evidence on motion is presented by evidence by affidavits or COMMISSIONER?
dispositions or by oral testimony 1. The power to regulate the proceedings in every hearing before
him
Section 3. Order of reference; powers of the commissioner. 2. Power to do all acts and take all measures necessary or proper
When a reference is made, the clerk shall forthwith furnish for the efficient performance of his duties under the order
the commissioner with a copy of the order of reference. The 3. He may issue subpoenas and subpoenas duces tecum,
order may specify or limit the powers of the commissioner, and 4. He may swear witnesses
may direct him to report only upon particular issues, or to do 5. Unless otherwise provided in the order of reference, he may rule
or perform particular acts, or to receive and report evidence upon the admissibility of evidence
only and may fix the date for beginning and closing the 6. The trial or hearing before him shall proceed in all respects as it
hearings and for the filing of his report. Subject to other would if held before the court
specifications and limitations stated in the order, the
commissioner has and shall exercise the power to regulate the WHAT IS THE UNDERLYING PRINCIPLE REGARDING THE
proceedings in every hearing before him and to do all acts and POWER OF THE COMMISSIONER?
take all measures necessary or proper for the efficient His powers are an extension of the judges power
performance of his duties under the order. He may issue The proceedings before him is an extension of the trial
subpoenas and subpoenas duces tecum, swear witnesses, and proceedings
unless otherwise provided in the order of reference, he may
rule upon the admissibility of evidence. The trial or hearing Section 4. Oath of commissioner. Before entering upon his
before him shall proceed in all respects as it would if held duties the commissioner shall be sworn to a faithful and
before the court. (3a, R33) honest performance thereof. (14, R33)

BY WHAT MODE CAN THERE BE TRIAL BY COMMISSIONER?

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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Section 5. Proceedings before commissioner. Upon receipt of grounds of objections to the findings of the report, if they so
the order of reference and unless otherwise provided therein, desire. Objections to the report based upon grounds which
the commissioner shall forthwith set a time and place for the were available to the parties during the proceedings before
first meeting of the parties or their counsel to be held within the commissioner, other than objections to the findings and
ten (10) days after the date of the order of reference and conclusions therein, set forth, shall not be considered by the
shall notify the parties or their counsel. (5a, R33) court unless they were made before the commissioner. (10,
R33)
Section 6. Failure of parties to appear before commissioner.
If a party fails to appear at the time and place appointed, EFFECT OF FAILURE TO NOTIFY PARTIES
the commissioner may proceed ex parte or, in his discretion, The failure to grant the parties in due form the opportunity to
adjourn the proceedings to a future day, giving notice to the object to the report may in some instances constitute a grave
absent party or his counsel of the adjournment. (6a, R33) error in violation of the substantial rights of the parties

Section 7. Refusal of witness. The refusal of a witness to Section 11. Hearing upon report. Upon the expiration of the
obey a subpoena issued by the commissioner or to give period of ten (10) days referred to in the preceding section,
evidence before him, shall be deemed a contempt of the court the report shall be set for hearing, after which the court
which appointed the commissioner. (7a R33) shall issue an order adopting, modifying, or rejecting the
report in whole or in part, or recommitting it with
Section 8. Commissioner shall avoid delays. It is the duty of instructions, or requiring the parties to present further
the commissioner to proceed with all reasonable diligence. evidence before the commissioner or the court. (11a, R33)
Either party, on notice to the parties and commissioner, may
apply to the court for an order requiring the commissioner to Section 12. Stipulations as to findings. When the parties
expedite the proceedings and to make his report. (8a, R33) stipulate that a commissioner's findings of fact shall be final,
only questions of law shall thereafter be considered. (12a,
Section 9. Report of commissioner. Upon the completion of R33)
the trial or hearing or proceeding before the commissioner, he
shall file with the court his report in writing upon the Section 13. Compensation of commissioner. The court shall
matters submitted to him by the order of reference. When his allow the commissioner such reasonable compensation as the
powers are not specified or limited, he shall set forth his circumstances of the case warrant, to be taxed as costs
findings of fact and conclusions of law in his report. He shall against the defeated party, or apportioned, as justice
attach thereto all exhibits, affidavits, depositions, papers and requires. (13, R33)
the transcript, if any, of the testimonial evidence presented
before him. (9a, R33) SUMMARY OF PROCEEDINGS BEFORE A COMMISSIONER
1. Order of reference is given to the commissioner
Section 10. Notice to parties of the filing of report. Upon the 2. The commissioner takes his oath
filing of the report, the parties shall be notified by the clerk, 3. Proceedings before the commissionerhe shall receive evidence
and they shall be allowed ten (10) days within which to signify with respect to the issues given to him

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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4. He will file his report with the clerk of court


5. Upon receipt of the report, the clerk of court shall attach it to WHEN CAN THE DEFENDANT FILE A DEMURRER TO EVIDENCE?
the records of the case After the plaintiff has finished presentation of evidence
6. The clerk of the court shall notify the parties about the filing
of the commissioners report WHAT CAN THE DEFENDANT DO AFTER THE PRESENTATION OF
7. Within 10 days, the parties are allowed to object to any finding EVIDENCE OF THE PLAINTIFF?
of the commissioner 1. He can file a demurrer to evidence on the basis that the facts and
8. After the lapse of the 10 days, the report shall be set for law presented by the plaintiff has not shown any right to relief
hearing, after which, the court shall adopt, modify, or reject the 2. The defendant may present evidence on his own behalf unless he
report in whole or in part, or recommitting it with instructions, has waived the same
or require parties to present further evidence before the
commissioner or the court IS THERE A NEED TO FILE A MOTION FOR LEAVE OF COURT?
9. When the parties then stipulate that the findings of fact shall No. The rules doesn't require.
be final, only questions of law shall thereafter be considered
WHAT IS THE REMEDY OF THE ACCUSED IF THE DEMURRER TO
EVIDENCE IS DENIED?
RULE 33: DEMURRER TO EVIDENCE
As a general rule, there can be no appeal or certiorari on the
denial of the demurrer to evidence, since it is an interlocutory
Section 1. Demurrer to evidence. After the plaintiff has order which doesnt pass judgment on the merits of the case
completed the presentation of his evidence, the defendant may
move for dismissal on the ground that upon the facts and the WHAT WOULD HAPPEN IF THE MOTION IS GRANTED BUT ON
law the plaintiff has shown no right to relief. If his motion is APPEAL, THE ORDER OF DISMISSAL IS REVERSED?
denied he shall have the right to present evidence. If the He shall be deemed to have waived the right to present evidence
motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to DEMURRER Granted Plaintiff CA/SC Affirming
present evidence. (1a, R35) appeals Reversing The
plaintiff
WHAT IS A DEMURRER TO EVIDENCE? wins
It is a motion to dismiss the case filed by the defense after the the
prosecution rests on the ground of insufficiency of the evidence of case
the prosecution Denied Defense
It has been said that a motion to dismiss under the Rules of Court will present
takes place of a demurrer, which pleading raised questions of law evidence
as to sufficiency of the pleading apparent on the face thereof
In the same manner as a demurrer, a motion to dismiss presents WHY IS THE DEFENDANT PENALIZED WHEN ON APPEAL, THE
squarely before the court a question as to the sufficiency of the DEMURRER IS REVERSED?
facts alleged therein to constitute a cause of action This is to discourage the filing of demurrer to evidence

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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If you have strong evidence for your defense, then present it PLEADINGS AND A SUMMARY JUDGMENT?
In motions for summary judgment, the answer tenders an issue but
WHAT HAPPENS TO THE COUNTERCLAIMS WHEN THERE IS after admissions, affidavits, and depositions, it is found that there
DEMURRER TO EVIDENCE? is no genuine issue presented
The dismissal of the complaint is the only one affected and the In a motion for judgment on the pleadings, the answer doesn't
other claims shall proceed tender an issue at all

RULE 34: JUDGMENT ON THE PLEADINGS RULE 35: SUMMARY JUDGMENTS

Section 1. Judgment on the pleadings. Where an answer fails Section 1. Summary judgment for claimant. A party seeking to
to tender an issue, or otherwise admits the material recover upon a claim, counterclaim, or cross-claim or to obtain
allegations of the adverse party's pleading, the court may; on a declaratory relief may, at any time after the pleading in
motion of that party, direct judgment on such pleading. answer thereto has been served, move with supporting
However, in actions for declaration of nullity or annulment of affidavits, depositions or admissions for a summary judgment in
marriage or for legal separation, the material facts alleged in his favor upon all or any part thereof. (1a, R34)
the complaint shall always be proved. (1a, R19)
WHAT IS THE BASIS FOR FILING FOR SUMMARY JUDGMENT?
WHEN CAN A MOTION FOR JUDGMENT ON THE PLEADINGS BE If the pleadings, supporting affidavits, depositions, and admissions
FILED? on file, show that, except as to the amount of damages, there is
1. When the answer hasn't tendered an issue no genuine issue as to any material fact and that the moving
2. When the answer admits the material allegations of the adverse party is entitled to a judgment as a matter of law
partys pleading
a. This happens when there are general denials in the WHEN CAN THERE BE NO GENUINE ISSUE AS TO ANY
answer MATERIAL FACT?
1. When there has been a stipulation of facts
WHEN IS JUDGMENT ON THE PLEADINGS NOT ALLOWED? 2. When the defendant has posed the defense of payment, by
1. When the answer has tendered an issue affidavits, depositions, or admissions, the fact of payment has been
2. When the answer does not admit the material allegations of the establishedit would only be right for the defendant to file for
adverse partys pleading summary judgment (except on the issue of damages)
3. When it is an action for declaration of nullity or annulment of
marriage or for legal separation WHEN CAN THE CLAIMANT ASK FOR A SUMMARY JUDGMENT?
At any time after the pleading in answer thereto has been served
NOTE: Judgment on the pleadings is the fastest way to terminate
proceedings compared to demurrer to evidence and summary judgments. WHY CAN THE CLAIMANT JUST FILE FOR SUMMARY
JUDGMENT AFTER AN ANSWER HAS BEEN FILED?
WHAT IS THE DIFFERENCE BETWEEN A JUDGMENT ON THE It is only upon the answer that the plaintiff knows the metes and

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
- 98 -

bounds of the defense of the defendant AFFIDAVITS, DEPOSITIONS OR ADMISSIONS?


It is only upon the answer that the plaintiff can properly At least 3 days before the hearing set on the motion
strategize
Section 4. Case not fully adjudicated on motion. If on motion
Section 2. Summary judgment for defending party. A party under this Rule, judgment is not rendered upon the whole case
against whom a claim, counterclaim, or cross-claim is asserted or for all the reliefs sought and a trial is necessary, the
or a declaratory relief is sought may, at any time, move with court at the hearing of the motion, by examining the pleadings
supporting affidavits, depositions or admissions for a summary and the evidence before it and by interrogating counsel shall
judgment in his favor as to all or any part thereof. (2a, R34) ascertain what material facts exist without substantial
controversy and what are actually and in good faith
WHY CAN THE DEFENDANT FILE FOR SUMMARY JUDGMENT controverted. It shall thereupon make an order specifying the
OUTRIGHT, EVEN WITHOUT FILING AN ANSWER? facts that appear without substantial controversy, including
Because as a defendant, you already know the metes and bounds the extent to which the amount of damages or other relief is
the claim of the plaintiff not in controversy, and directing such further proceedings in
You can outright strategize to refute or disclaim the plaintiff the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the
WHEN CAN THE DEFENDING PARTY ASK FOR SUMMARY controverted facts accordingly. (4a, R34)
JUDGMENT?
It may asked for at any time by the defending party Section 5. Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal
Section 3. Motion and proceedings thereon. The motion shall knowledge, shall set forth such facts as would be admissible
be served at least ten (10) days before the time specified for in evidence, and shall show affirmatively that the affiant is
the hearing. The adverse party may serve opposing affidavits, competent to testify to the matters stated therein. Certified
depositions, or admissions at least three (3) days before the true copies of all papers or parts thereof referred to in the
hearing. After the hearing, the judgment sought shall be affidavit shall be attached thereto or served therewith. (5a,
rendered forthwith if the pleadings, supporting affidavits, R34)
depositions, and admissions on file, show that, except as to
the amount of damages, there is no genuine issue as to any Section 6. Affidavits in bad faith. Should it appear to its
material fact and that the moving party is entitled to a satisfaction at any time that any of the affidavits presented
judgment as a matter of law. (3a, R34) pursuant to this Rule are presented in bad faith, or solely for
the purpose of delay, the court shall forthwith order the
WHEN MUST A MOTION FOR SUMMARY JUDGMENT BE offending party or counsel to pay to the other party the
SERVED? amount of the reasonable expenses which the filing of the
It needs to be served at least 10 days before the time specified affidavits caused him to incur including attorney's fees, it
for hearing on the motion may, after hearing further adjudge the offending party or
counsel guilty of contempt. (6a, R34)
WHEN CAN THE ADVERSE PARTY SERVE OPPOSING

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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N.B: You don't have to go to full trial in this remedy. You would just judgments. The date of finality of the judgment or final order
need to submit depositions, affidavits, etc. to be able to ask for summary shall be deemed to be the date of its entry. The record shall
judgment. contain the dispositive part of the judgment or final order and
shall be signed by the clerk, within a certificate that such
judgment or final order has become final and executory. (2a,
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
10, R51)

Section 1. Rendition of judgments and final orders. A WHY IS IT IMPORTANT TO KNOW THE ENTRY OF JUDGMENT?
judgment or final order determining the merits of the case To know when to order execution of judgment
shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on ENTRY OF JUDGMENT
which it is based, signed by him, and filed with the clerk of When the judgment becomes final and executory
the court. (1a)
Section 3. Judgment for or against one or more of several
TWO THINGS TO CONSIDER IN JUDGMENTS parties. Judgment may be given for or against one or more of
1. Facts of the case several plaintiffs and for or against one or more of several
2. Law to be applied defendants. When justice so demands, the court may require
the parties on each side to file adversary pleadings as
WHAT DISTINGUISHES JUDGMENT FROM A FINAL ORDER between themselves and determine their ultimate rights and
They both terminate an action but in judgment, there is a obligations. (3)
conclusion of law on the facts and matters presented. It is on
the merits. While a final order, it gives disposition of a matter Section 4. Several judgments. In an action against several
not related to the main issue of the case. defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the
RENDITION OF JUDGMENTS action to proceed against the others. (4)
1. Determination of the merits of the case
2. Shall be in writing Section 5. Separate judgments. When more than one claim
3. Personally and directly prepared by the judge for relief is presented in an action, the court, at any stage,
4. Stating clearly and distinctly the facts and the law on which it upon a determination of the issues material to a particular
is based claim and all counterclaims arising out of the transaction or
5. Signed by the judge occurrence which is the subject matter of the claim, may
6. Filed with the clerk of court render a separate judgment disposing of such claim. The
judgment shall terminate the action with respect to the claim
Section 2. Entry of judgments and final orders. If no appeal so disposed of and the action shall proceed as to the
or motion for new trial or reconsideration is filed within the remaining claims. In case a separate judgment is rendered the
time provided in these Rules, the judgment or final order shall court by order may stay its enforcement until the rendition of
forthwith be entered by the clerk in the book of entries of a subsequent judgment or judgments and may prescribe such

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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conditions as may be necessary to secure the benefit thereof awarded are excessive, that the evidence is insufficient to
to the party in whose favor the judgment is rendered. (5a) justify the decision or final order, or that the decision or
final order is contrary to law. (1a)
IF THERE IS NO SUCH ORDER FROM THE COURT, WHAT WILL
HAPPEN? *The motion for reconsideration contemplated here is a motion for
The most prudent thing to do for a practicing lawyer is to file reconsideration for any final order or judgment. Nonetheless, it also
the notice of appeal since there is no express order from the contemplates any adverse order.
court staying the execution
You will not lose anything by filing a notice of appeal outright WHAT ARE THE GROUNDS FOR A MOTION FOR NEW TRIAL?
1. Fraud, accident, mistake or excusable negligence which ordinary
Section 6. Judgment against entity without juridical prudence could not have guarded against and by reason of which
personality. When judgment is rendered against two or more such aggrieved party has probably been impaired in his rights; or
persons sued as an entity without juridical personality, the 2. Newly discovered evidence, which he could not, with reasonable
judgment shall set out their individual or proper names, if diligence, have discovered and produced at the trial, and which if
known. (6a) presented would probably alter the result.

MOTION FOR RECONSIDERATION OF A FINAL ORDER OR


RULE 37: NEW TRIAL OR RECONSIDERATIONS
JUDGMENT
1. Damages awarded are excessive
Section 1. Grounds of and period for filing motion for new trial 2. Insufficient evidence to justify the decision or final order
or reconsideration. Within the period for taking an appeal, 3. The decision or final order is contrary to law
the aggrieved party may move the trial court to set aside the
judgment or final order and grant a new trial for one or more Section 2. Contents of motion for new trial or reconsideration
of the following causes materially affecting the substantial and notice thereof. The motion shall be made in writing
rights of said party: stating the ground or grounds therefor, a written notice of
which shall be served by the movant on the adverse party.
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by A motion for new trial shall be proved in the manner provided
reason of which such aggrieved party has probably been for proof of motion. A motion for the cause mentioned in
impaired in his rights; or paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A
(b) Newly discovered evidence, which he could not, with motion for the cause mentioned in paragraph (b) shall be
reasonable diligence, have discovered and produced at the supported by affidavits of the witnesses by whom such
trial, and which if presented would probably alter the result. evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
Within the same period, the aggrieved party may also move
for reconsideration upon the grounds that the damages

BY: MA. ANGELA LEONOR C. AGUINALDO


ATENEO LAW 2010
CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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A motion for reconsideration shall point out a specifically the The judgment will be vacated and the parties will be brought
findings or conclusions of the judgment or final order which back to their original status and also, there will be a trial de
are not supported by the evidence or which are contrary to novo
law making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be WHAT IS THE EFFECT ON THE JUDGMENT IF THE MOTION FOR
contrary to such findings or conclusions. NEW TRIAL WAS NEWLY-DISCOVERED EVIDENCE?
The judgment will be vacated and the evidence newly-introduced
A pro forma motion for new trial or reconsideration shall not shall be added to the evidence on record
toll the reglementary period of appeal. (2a)
WHAT IF A MOTION FOR NEW TRIAL WAS FILED ON THE 8 TH
WHAT IS A PRO FORMA MOTION FOR RECONSIDERATION AND DAY TO MAKE AN APPEAL. EVENTUALLY THE MOTION IS
WHAT ARE THE CONSEQUENCES? DENIED. HOW MUCH PERIOD IS THERE REMAINING TO MAKE
There is a is pro forma motion when there is no compliance with AN APPEAL?
the requirements
The consequence of such motion is that it will not toll the WHAT IF THE MOTION FOR NEW TRIAL WAS EVENTUALLY
reglementary period of appeal DENIED, CAN YOU FILE A SECOND MOTION FOR NEW TRIAL?
It depends on whether your ground exists during the time youy
WHEN DID WE FIRST ENCOUNTER THE REQUIREMENT OF AN first filed your motion
AFFIDAVIT OF MERIT? If it existed during the time you first filed, then it is barred due
In the filing of a motion for setting aside order of default to omnibus motion rule
If it existed after you have filed the same, then it can still be
WHAT IS THE PURPOSE OF AN AFFIDAVIT OF MERIT? raised in a second motion
It is an affidavit showing the movant has a meritorious claim or
defense and that his rights have been impaired *FAME must go into your evidence (totality of your evidence) in the
context of a motion for new trial
AT WHAT STAGE MAY THE MOVANT FILE HIS MOTION?
During the period to make the appeal Section 3. Action upon motion for new trial or reconsideration.
The trial court may set aside the judgment or final order and
*it is the movant himself who should file the affidavit of merit grant a new trial, upon such terms as may be just, or may
deny the motion. If the court finds that excessive damages
WHAT IS THE EFFECT OF THE GRANTING OF A MOTION FOR have been awarded or that the judgment or final order is
RECONSIDERATION? contrary to the evidence or law, it may amend such judgment
The effect on the judgment is that will be reversed or modified or final order accordingly. (3a)

WHAT IS THE EFFECT OF THE GRANTING OF A MOTION FOR Section 4. Resolution of motion. A motion for new trial or
NEW TRIAL? reconsideration shall be resolved within thirty (30) days from
the time it is submitted for resolution. (n)

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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trial or reconsideration is not appealed, the remedy being an


Section 5. Second motion for new trial. A motion for new appeal from the judgment or final order. (n)
trial shall include all grounds then available and those not so
included shall be deemed waived. A second motion for new CAN YOU APPEAL A DENIAL OF MOTION FOR NEW TRIAL?
trial, based on a ground not existing nor available when the No
first motion was made, may be filed within the time herein The remedy is to appeal the final order or judgment
provided excluding the time during which the first motion had Another remedy is to file a petition for certiorari on the denied
been pending. motion for new trial

No party shall be allowed a second motion for reconsideration THE ADVERSE PARTY LOSES THE CASE. HE FILED A MOTION
of a judgment or final order (4a, 4, IRG) FOR NEW TRIAL BUT WAS DENIED. EVEN HIS MR WAS
DENIED. THEN THE ADVERSE PARTY FILES A PETITION FOR
Section 6. Effect of granting of motion for new trial. If a CERTIORARI. THE OTHER PARTY FILES A MOTION FOR
new trial is granted in accordance with the provisions of this EXECUTION. VALID?
Rules the original judgment or final order shall be vacated, Yes. The motion for execution was valid since the judgment has
and the action shall stand for trial de novo; but the recorded become final and executory already
evidence taken upon the former trial, insofar as the same is The losing party should have filed a notice of appeal.
material and competent to establish the issues, shall be used
at the new trial without retaking the same. (5a)
RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS
Section 7. Partial new trial or reconsideration. If the
grounds for a motion under this Rule appear to the court to
affect the issues as to only a part, or less than an of the Section 1. Petition for relief from judgment, order, or other
matter in controversy, or only one, or less than all, of the proceedings. When a judgment or final order is entered, or
parties to it, the court may order a new trial or grant any other proceeding is thereafter taken against a party in
reconsideration as to such issues if severable without any court through fraud, accident, mistake, or excusable
interfering with the judgment or final order upon the rest. negligence, he may file a petition in such court and in the
(6a) same case praying that the judgment, order or proceeding be
set aside. (2a)
Section 8. Effect of order for partial new trial. When less
than all of the issues are ordered retried, the court may IS PETITION FOR RELIEF A NEW ACTION?
either enter a judgment or final order as to the rest, or stay The same case is the subject
the enforcement of such judgment or final order until after There is no new action
the new trial. (7a) Talks about the same groundsfraud, accident, mistake, and
excusable negligence nonetheless, it pertains to a judgment and
Section 9. Remedy against order denying a motion for new final order already unlike in the previous rule
trial or reconsideration. An order denying a motion for new

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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WHY WOULD ONE STILL FILE A PETITION FOR RELIEF WHEN ASSUMING THE COURT IS VALID, CAN THE PETITIONER USE
THE DEFEATED PARTY CAN FILE AN APPEAL INSTEAD? ANY GROUND TO FILE A PETITION FOR RELIEF?
Even when appeal is available, the circumstance was made known Yes, it may use mistake on a dubious question of law
when the remedy isnt available anymore The SC usually grants due course to the appeal
The judgment or final order has become executory already The first remedy one should take though is petition for relief
FAME has prevented the person from taking the appeal under Section 2

WHAT IF FAME WAS DISCOVERED DURING 15 TH DAY, CAN THE WHAT IS THE THIRD REMEDY AVAILABLE TO THE PARTY IN
PETITIONER FILE A PETITION FOR RELIEF INSTEAD BECAUSE CASE OF DENIAL OF PETITION FOR RELIEF?
APPEAL CANNOT BE TAKEN OR PETITION FOR NEW TRIAL Petition for certiorari since appeal isnt available to you
WOULD BE INCONVENIENT?
No Section 3. Time for filing petition; contents and verification.
Try to move heaven and earth to file that petition for new trial A petition provided for in either of the preceding sections of
this Rule must be verified, filed within sixty (60) days after
Section 2. Petition for relief from denial of appeal. When a the petitioner learns of the judgment, final order, or other
judgment or final order is rendered by any court in a case, proceeding to be set aside, and not more than six (6) months
and a party thereto, by fraud, accident, mistake, or excusable after such judgment or final order was entered, or such
negligence, has been prevented from taking an appeal, he may proceeding was taken, and must be accompanied with
file a petition in such court and in the same case praying that affidavits showing the fraud, accident, mistake, or excusable
the appeal be given due course. (1a) negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or defense,
YOU FILE A NOTICE OF APPEAL WITHIN THE 15-DAY PERIOD. as the case may be. (3)
YOU FILED IT WITH THE SAME COURT WHICH RENDERED
JUDGMENT. YOUR MESSENGER FAILED TO PAY THE APPEAL REQUIREMENTS
FEE, IN ORDER TO PERFECT THE APPEAL. PETITIONER FILES 1. Petition must be verified
A PETITION FOR RELIEF. VALID? 2. It must be filed within 60 days after he learns of the judgment,
final order, or other proceeding and not more than 6 months
after such judgment or order was entered or proceeding was
NOTICE OF APPEAL WAS DUE ON A SATURDAY. THINKING taken
THAT IT SHOULD BE FILED ON THE NEXT WORKING DAY, YOU 3. Accompanied with affidavits showing the fraud, accident,
FILED IT ON A MONDAY. THE COURT DENIED THE NOTICE ON mistake, or excusable negligence relied upon
THE GROUND OF BEING FILED OUT OF TIME. WAS THE 4. Accompanied with affidavits of meritsthe facts constituting the
COURT CORRECT IN DENIAL OF THE NOTICE OF APPEAL? petitioners good and substantial cause of action or defense, as
In answering the question, whether the notice of appeal falls the case may be
under the same rule of computation of time. (Jurisprudence
though holds that the court was valid) WHAT WILL HAPPEN UPON GRANT OF PETITION FOR RELIEF
UNDER SECTION 1?

BY: MA. ANGELA LEONOR C. AGUINALDO


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The judgment or final order shall be set aside and new trial will shall be dismissed; but if it finds said allegations to be true,
be done with respect to issues identified in the petition filed it shall set aside the judgment or final order or other
The new trial when conducted, the judge will render judgment on proceeding complained of upon such terms as may be just.
the case Thereafter the case shall stand as if such judgment, final
order or other proceeding had never been rendered, issued or
WHAT ARE THE VICTORIES OF ONE WHO FILED A PETITION taken. The court shall then proceed to hear and determine the
FOR RELIEF? case as if a timely motion for a new trial or reconsideration
1. One is when the court grants the petition and the judgment or had been granted by it. (6a)
final order is set aside
2. When the court considers the evidence with respect to the WHAT ANSWER CONTEMPLATES IN THIS PROVISION?
raised issues, and decided later in favor of the petitioner The other partys comment to the petition

Section 4. Order to file an answer. If the petition is Section 7. Procedure where the denial of an appeal is set
sufficient in form and substance to justify relief, the court in aside. Where the denial of an appeal is set aside, the lower
which it is filed, shall issue an order requiring the adverse court shall be required to give due course to the appeal and
parties to answer the same within fifteen (15) days from the to elevate the record of the appealed case as if a timely and
receipt thereof. The order shall be served in such manner as proper appeal had been made. (7a)
the court may direct, together with copies of the petition and
the accompanying affidavits. (4a)
SPECIAL CIVIL ACTIONS

Section 5. Preliminary injunction pending proceedings. The


RULE 62: INTERPLEADER
court in which the petition is filed may grant such preliminary
injunction as may be necessary for the preservation of the
rights of the parties, upon the filing by the petitioner of a WHY ARE THEY SPECIAL CIVIL ACTIONS?
bond in favor of the adverse party, conditioned that if the Because their subject matters are special
petition is dismissed or the petitioner fails on the trial of the
case upon its merits, he will pay the adverse party all Section 1. When interpleader proper. Whenever conflicting
damages and costs that may be awarded to him by reason of claims upon the same subject matter are or may be made
the issuance of such injunction or the other proceedings against a person who claims no interest whatever in the
following the petition, but such injunction shall not operate to subject matter, or an interest which in whole or in part is not
discharge or extinguish any lien which the adverse party may disputed by the claimants, he may bring an action against the
have acquired upon, the property, of the petitioner. (5a) conflicting claimants to compel them to interplead and litigate
their several claims among themselves. (1a, R63)
Section 6. Proceedings after answer is filed. After the filing
of the answer or the expiration of the period therefor, the Section 2. Order. Upon the filing of the complaint, the court
court shall hear the petition and if after such hearing, it shall issue an order requiring the conflicting claimants to
finds that the allegations thereof are not true, the petition interplead with one another. If the interests of justice so

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require, the court may direct in such order that the subject Section 7. Docket and other lawful fees, costs and litigation
matter be paid or delivered to the court. (2a, R63) expenses as liens. The docket and other lawful fees paid by
the party who filed a complaint under this Rule, as well as
Section 3. Summons. Summons shall be served upon the the costs and litigation expenses, shall constitute a lien or
conflicting claimants, together with a copy of the complaint change upon the subject matter of the action, unless the
and order. (3, R63) court shall order otherwise. (6a, R63)

Section 4. Motion to dismiss. Within the time for filing an


RULE 63: DECLARATORY RELIEF AND SIMILAR REMEDIES
answer, each claimant may file a motion to dismiss on the
ground of impropriety of the interpleader action or on other
appropriate grounds specified in Rule 16. The period to file Section 1. Who may file petition. Any person interested under
the answer shall be tolled and if the motion is denied, the a deed, will, contract or other written instrument, or whose
movant may file his answer within the remaining period, but rights are affected by a statute, executive order or
which shall not be less than five (5) days in any event, regulation, ordinance, or any other governmental regulation
reckoned from notice of denial. (n) may, before breach or violation thereof bring an action in the
appropriate Regional Trial Court to determine any question of
Section 5. Answer and other pleadings. Each claimant shall construction or validity arising, and for a declaration of his
file his answer setting forth his claim within fifteen (15) days rights or duties, thereunder. (Bar Matter No. 803, 17 February
from service of the summons upon him, serving a copy thereof 1998)
upon each of the other conflicting claimants who may file
their reply thereto as provided by these Rules. If any An action for the reformation of an instrument, to quiet title
claimant fails to plead within the time herein fixed, the court to real property or remove clouds therefrom, or to consolidate
may, on motion, declare him in default and thereafter render ownership under Article 1607 of the Civil Code, may be
judgment barring him from any claim in respect to the subject brought under this Rule. (1a, R64)
matter.
Section 2. Parties. All persons who have or claim any interest
The parties in an interpleader action may file counterclaims, which would be affected by the declaration shall be made
cross-claims, third-party complaints and responsive pleadings parties; and no declaration shall, except as otherwise provided
thereto, as provided by these Rules. (4a, R63) in these Rules, prejudice the rights of persons not parties to
the action. (2a, R64)
Section 6. Determination. After the pleadings of the
conflicting claimants have been filed, and pre-trial has been Section 3. Notice on Solicitor General. In any action which
conducted in accordance with the Rules, the court shall involves the validity of a statute, executive order or
proceed to determine their respective rights and adjudicate regulation, or any other governmental regulation, the Solicitor
their several claims. (5a, R63) General shall be notified by the party assailing the same and
shall be entitled to be heard upon such question. (3a, R64)

BY: MA. ANGELA LEONOR C. AGUINALDO


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Section 4. Local government ordinances. In any action or not on the petition when a complaint is filed
involving the validity of a local government ordinance, the
corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified and RULE 65: CERTIORARI, PROHIBITION AND MANDAMUS
entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified Section 1. Petition for certiorari. When any tribunal, board
and entitled to be heard. (4a, R64) or officer exercising judicial or quasi-judicial functions has
acted without or in excess its or his jurisdiction, or with
Section 5. Court action discretionary. Except in actions grave abuse of discretion amounting to lack or excess of
falling under the second paragraph of section 1 of this Rule, jurisdiction, and there is no appeal, or any plain, speedy, and
the court, motu proprio or upon motion, may refuse to adequate remedy in the ordinary course of law, a person
exercise the power to declare rights and to construe aggrieved thereby may file a verified petition in the proper
instruments in any case where a decision would not terminate court, alleging the facts with certainty and praying that
the uncertainty or controversy which gave rise to the action, judgment be rendered annulling or modifying the proceedings
or in any case where the declaration or construction is not of such tribunal, board or officer, and granting such incidental
necessary and proper under the circumstances. (5a, R64) reliefs as law and justice may require.

Section 6. Conversion into ordinary action. If before the final The petition shall be accompanied by a certified true copy of
termination of the case, a breach or violation of an instrument the judgment, order or resolution subject thereof, copies of
or a statute, executive order or regulation, ordinance, or any all pleadings and documents relevant and pertinent thereto,
other governmental regulation should take place, the action and a sworn certification of non-forum shopping as provided in
may thereupon be converted into an ordinary action, and the the third paragraph of section 3, Rule 46. (1a)
parties shall be allowed to file such pleadings as may be
necessary or proper. (6a, R64) CERTIORARI: PUBLIC RESPONDENT
Board, judge, or officer
WHY WERE THE SIMILAR REMEDIES LUMPED TOGETHER WITH Exercising judicial or quasi-judicial functions
DECLARATORY RELIEF IN THIS RULE? Who has ACTED without jurisdiction, in excess of jurisdiction, or
Unlike other civil actions wherein there is violation already of with grave abuse of discretion
the right of the plaintiff, in these remedies, there has been no o Note: interlocutory orders or orders issued during the
breach yet of any right and you would like to prevent any course of the case
conflict in the future o True or false. Certiorari can only be filed for
interlocutory orders. The answer is false. A petition
PETITION FOR DECLARATORY COMPLAINT FOR REFORMATION, for certiorari may also be filed for final orders
RELIEF QUIETING OF TITLE, OR The proper remedy for an interlocutory order is the appealyou
CONSOLIDATION OF TITLE UNDER can raise it as an assignment of error when you appeal the
ARTICLE 1607 whole decision adverse to you
The court has the discretion to act It will undergo the same process as

BY: MA. ANGELA LEONOR C. AGUINALDO


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Public Exercising Has acted:


No appeal may be taken from:
respondent: judicial or without
Board quasi jurisdiction,
Officer judicial in excess of 1. An order denying a petition for relief or any similar
Tribunal functions jurisdiction, motion seeking relief from judgment;
or with
grave absue 2. An interlocutory order;
of discretion
No appeal is available or
3. An order disallowing or dismissing an appeal;
No other plain, speedy, etc. remedy
4. An order denying a motion to set aside a judgment
by consent, confession or compromise on the ground of fraud,
WHO IS THE PRIVATE RESPONDENT? mistake or duress, or any other ground vitiating consent;
He is the party most interested to have the decision petitioned to
be sustained 5. An order of execution;

ATTY. GS ASSESSMENT OF THE ELEMENTS FOR A PETITION 6. A judgment or final order for or against one or
FOR CERTIORARI: more of several parties or in separate claims, counterclaims,
1. Body, officer or tribunal EXERCISING JUDICIAL OR QUASI- cross-claims and third-party complaints, while the main case
JUDICIAL FUNCTIONS is pending, unless the court allows an appeal therefrom; and
2. It has acted without jurisdiction, in excess of jurisdiction, with
grave abuse of jurisdiction 7. An order dismissing an action without prejudice.
3. There is no appeal available or there is no other plain, speedy,
adequate remedy In any of the foregoing circumstances, the aggrieved party
may file an appropriate special civil action as provided in Rule
65.
A.M. No. 07-7-12-SC December 4, 2007
RULE 45
AMENDMENTS TO RULES 41, 45, 58 AND 65 OF THE RULES OF
COURT SECTION 1. Filing of petition with Supreme Court. A party
desiring to appeal by certiorari from a judgment, final order
RULE 41 or resolution of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court or other
SECTION 1. Subject of appeal. An appeal may be taken from courts, whenever authorized by law, may file with the
a judgment or final order that completely disposes of the Supreme Court a verified petition for review on certiorari. The
case, or of a particular matter therein when declared by petition may include an application for a writ of preliminary
these Rules to be appealable. injunction or other provisional remedies and shall raise only
questions of law, which must be distinctly set forth. The

BY: MA. ANGELA LEONOR C. AGUINALDO


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petitioner may seek the same provisional remedies by verified restraining order exceed twenty (20) days, including the
motion filed in the same action or proceeding at any time original seventy-two hours provided herein.
during its pendency.
In the event that the application for preliminary injunction is
RULE 58 denied or not resolved within the said period, the temporary
restraining order is deemed automatically vacated. The
SEC. 5. Preliminary injunction not granted without notice; effectivity of a temporary restraining order is not extendible
exception. No preliminary injunction shall be granted without without need of any judicial declaration to that effect, and no
hearing and prior notice to the party or persons sought to be court shall have authority to extend or renew the same on
enjoined. If it shall appear from facts shown by affidavits or the same ground for which it was issued.
by the verified application that great or irreparable injury
would result to the applicant before the matter can be heard However, if issued by the Court of Appeals or a member
on notice, the court to which the application for preliminary thereof, the temporary restraining order shall be effective
injunction was made, may issue ex parte a temporary for sixty (60) days from service on the party or person sought
restraining order to be effective only for a period of twenty to be enjoined. A restraining order issued by the Supreme
(20) days from service on the party or person sought to be Court or a member thereof shall be effective until further
enjoined, except as herein provided. Within the twenty-day orders.
period, the court must order said party or person to show
cause at a specified time and place, why the injunction should The trial court, the Court of Appeals, the Sandiganbyan or
not be granted. The court shall also determine, within the the Court of Tax Appeals that issued a writ of preliminary
same period, whether or not the preliminary injunction shall injunction against a lower court, board, officer, or quasi-
be granted, and accordingly issue the corresponding order. judicial agency shall decide the main case or petition within
six (6) months from the issuance of the writ.
However, subject to the provisions of the preceding sections,
if the matter is of extreme urgency and the applicant will RULE 65
suffer grave injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding judge of a Sec. 4. When and where to file the petition. The petition
single-sala court may issue ex parte a temporary restraining shall be filed not later than sixty (60) days from notice of
order effective for only seventy-two (72) hours from issuance, the judgment, order or resolution. In case a motion for
but shall immediately comply with the provisions of the next reconsideration or new trial is timely filed, whether such
preceding section as to service of summons and the documents motion is required or not, the petition shall be filed not later
to be served therewith. Thereafter, within the aforesaid than sixty (60) days counted from the notice of the denial of
seventy-two (72) hours, the judge before whom the case is the motion.
pending shall conduct a summary hearing to determine whether
the temporary restraining order shall be extended until the If the petition relates to an act or an omission of a municipal
application for preliminary injunction can be heard. In no case trial court or of a corporation, a board, an officer or a
shall the total period of effectivity of the temporary person, it shall be filed with the Regional Trial Court

BY: MA. ANGELA LEONOR C. AGUINALDO


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exercising jurisdiction over the territorial area as defined by expiration of the period for filing, the court finds that the
the Supreme Court. It may also be filed with the Court of allegations of the petition are true, it shall render judgment
Appeals or with the Sandiganbayan, whether or not the same for such relief to which the petitioner is entitled.
is in aid of the courts appellate jurisdiction. If the petition
involves an act or an omission of a quasi-judicial agency, However, the court may dismiss the petition if it finds the
unless otherwise provided by law or these rules, the petition same patently without merit or prosecuted manifestly for
shall be filed with and be cognizable only by the Court of delay, or if the questions raised therein are too unsubstantial
Appeals. to require consideration. In such event, the court may award
in favor of the respondent treble costs solidarily against the
In election cases involving an act or an omission of a municipal petitioner and counsel, in addition to subjecting counsel to
or a regional trial court, the petition shall be filed administrative sanctions under Rules 139 and 139-B of the
exclusively with the Commission on Elections, in aid of its Rules of Court.
appellate jurisdiction.
The Court may impose motu proprio, based on res ipsa loquitur,
Sec. 7. Expediting proceedings; injunctive relief. The court in other disciplinary sanctions or measures on erring lawyers for
which the petition is filed may issue orders expediting the patently dilatory and unmeritorious petitions for certiorari.
proceedings, and it may also grant a temporary restraining
order or a writ of preliminary injunction for the preservation ON WHAT MATTERS IS APPEAL NOT AVAILABLE?
of the rights of the parties pending such proceedings. The No appeal may be taken from:
petition shall not interrupt the course of the principal case, 1. An order denying a petition for relief or any similar motion seeking
unless a temporary restraining order or a writ of preliminary relief from judgment;
injunction has been issued, enjoining the public respondent 2. An interlocutory order;
from further proceeding with the case. 3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment by consent,
The public respondent shall proceed with the principal case confession or compromise on the ground of fraud, mistake or
within ten (10) days from the filing of a petition for certiorari duress, or any other ground vitiating consent;
with a higher court or tribunal, absent a temporary 5. An order of execution;
restraining order or a preliminary injunction, or upon its 6. A judgment or final order for or against one or more of several
expiration. Failure of the public respondent to proceed with parties or in separate claims, counterclaims, cross-claims and
the principal case may be a ground for an administrative third-party complaints, while the main case is pending, unless the
charge. court allows an appeal therefrom; and
7. An order dismissing an action without prejudice.
Sec. 8. Proceedings after comment is filed. After the
comment or other pleadings required by the court are filed, or WHAT WOULD BE AVAILABLE TO A PARTY IN CASE THERE IS
the time for the filing thereof has expired, the court may NO APPEAL AVAILABLE?
hear the case or require the parties to submit memoranda. If, In any of the foregoing circumstances, the aggrieved party may
after such hearing or filing of memoranda or upon the file an appropriate special civil action as provided in Rule 65.

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TEMPORARY RESTRAINING ORDER NEEDED TO PREVENT Section 2. Petition for prohibition. When the proceedings of
EXECUTION OF JUDGMENT PETITIONED any tribunal, corporation, board, officer or person, whether
The court in which the petition is filed may issue orders expediting exercising judicial, quasi-judicial or ministerial functions, are
the proceedings, and it may also grant a temporary restraining without or in excess of its or his jurisdiction, or with grave
order or a writ of preliminary injunction for the preservation of abuse of discretion amounting to lack or excess of
the rights of the parties pending such proceedings jurisdiction, and there is no appeal or any other plain, speedy,
The petition shall not interrupt the course of the principal case, and adequate remedy in the ordinary course of law, a person
unless a temporary restraining order or a writ of preliminary aggrieved thereby may file a verified petition in the proper
injunction has been issued, enjoining the public respondent from court, alleging the facts with certainty and praying that
further proceeding with the case. judgment be rendered commanding the respondent to desist
The public respondent shall proceed with the principal case within from further proceedings in the action or matter specified
ten (10) days from the filing of a petition for certiorari with a therein, or otherwise granting such incidental reliefs as law
higher court or tribunal, absent a temporary restraining order or a and justice may require.
preliminary injunction, or upon its expiration.
Failure of the public respondent to proceed with the principal case The petition shall likewise be accompanied by a certified true
may be a ground for an administrative charge. copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent
WHAT IS BEING ASKED FOR IN FILING A PETITION FOR thereto, and a sworn certification of non-forum shopping as
CERTIORARI? provided in the third paragraph of section 3, Rule 46. (2a)
To have the order set aside, modified, reversed or other incidental
relief
Public Exercising Has acted:
WHAT DOES OTHER INCIDENTAL RELIEFS CONTEMPLATE? respondent: judicial or without
The dismissal of the complaint Board quasi jurisdiction,
In this case, the dismissal of the complaint will lead also to the Officer judicial or in excess
dismissal of the case Tribunal ministerial of
Corporation functions jurisdiction,
or with
WHAT IF INSTEAD OF FILING A MOTION TO DISMISS, YOU
grave
FILED AN ANSWER WITH AN AFFIRMATIVE DEFENSE OF abuse of
PRESCRIPTION AND THERE WAS A COUNTERCLAIM. A No appeal is available or discretion
MOTION FOR PRELIMINARY HEARING FOR THE AFFIRMATIVE No other plain, speedy, etc. remedy
DEFENSE WAS FILED BUT THIS WAS DENIED. A PETITION
FOR CERTIORARI WAS FILED LATER ON AND IT WAS
GRANTED. WHICH IS AFFECTED BY THIS? WHAT RELIEFS IS THE PETITIONER SEEKING WITH
The dismissal of the complaint but not the dismissal of the PROHIBITION?
counterclaim

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The court may also allow the petitioner to file a reply but this
THE CASE WAS FILED WITH THE IMPROPER VENUE. YOU has to be preceded by a leave of court
FILED A MOTION TO DISMISS BUT WAS DENIED. THE The court shall be placed in a position to discern on whether to
MOTION FOR RECONSIDERATION WAS ALSO DENIED. WHAT give due course to the petition or not
IS THE PROPER REMEDY? Presuming due course has been given, the parties shall be ordered
To be precise, a petition for certiorari because you are attacking to submit memoranda and the court shall conduct a hearing
the order denying the motion to dismiss. A petition for The court may then now grant the petition or dismiss
prohibition shall also be proper to stop the judge from pursuing
the execution of the order.
Insufficiency in Due coursesubmit
IF YOU WERE THE CLERK OF COURT IN THE COURT OF form? In substance? memorandum and
APPEALS AND A PETITION FOR PROHIBITION WAS FILED. hold a hearing
WHAT WOULD YOU BE LOOKING FOR TO ASSESS THE
IMMEDIATE DISMISSAL OF THE PETITION (SUFFICIENCY IN
FORM)?
A certified true copy of the order being petitioned
A certified true copy of the order denying the motion for
reconsideration
Copies of all pleadings and documents relevant and pertinent
thereto
Sworn certification of non-forum shopping
Order to respondent
to comment Due course or not
HOW ABOUT WITH RESPECT TO SUBSTANCE?
Sufficient allegations that will make it fall under Rule 65
Sufficient allegations showing that there is no appeal or other
speedy, adequate remedy available under the law
The timeliness of the filing of the petitionwithin the 60-day
counted from the notice of the order denying the motion for
reconsideration if you filed an MR or from the date of receipt of
order

GIVEN THE PETITION PASSED BASE 1. WHAT IS INCUMBENT Respondent Respondent


FOR THE OTHERS TO DO? comments and this comments and this
Order to respondent to commentthis is equivalent to service of serves as service of serves as service of
summons (remember that the private respondent has already been summons summons
served a copy of the petition)
The comment is equivalent to an answer

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Section 3. Petition for mandamus. When any tribunal, resulting from such office, trust, or station
corporation, board, officer or person unlawfully neglects the 2. When the board, officer, or person unlawfully excludes another
performance of an act which the law specifically enjoins as a from the use or enjoyment of a right or office to which such
duty resulting from an office, trust, or station, or unlawfully other is entitled
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other Section 4. When and where petition filed. The petition shall
plain, speedy and adequate remedy in the ordinary course of be filed not later than sixty (60) days from notice of the
law, the person aggrieved thereby may file a verified petition judgment, order or resolution. In case a motion for
in the proper court, alleging the facts with certainty and reconsideration or new trial is timely filed, whether such
praying that judgment be rendered commanding the motion is required or not, the sixty (60) day period shall be
respondent, immediately or at some other time to be specified counted from notice of the denial of said motion.
by the court, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained The petition shall be filed in the Supreme Court or, if it
by the petitioner by reason of the wrongful acts of the relates to the acts or omissions of a lower court or of a
respondent. corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as
The petition shall also contain a sworn certification of non- defined by the Supreme Court. It may also be filed in the
forum shopping as provided in the third paragraph of section Court of Appeals whether or not the same is in aid of its
3, Rule 46. (3a) appellate jurisdiction, or in the Sandiganbayan if it is in aid
of its appellate jurisdiction. If it involves the acts or
omissions of a quasi-judicial agency, unless otherwise provided
unlawfully neglects the performance by law or these Rules, the petition shall be filed in and
Board
of an act which the law specifically cognizable only by the Court of Appeals.
Tribunal
Office enjoins as a duty resulting from such
office, trust, or station No extension of time to file the petition shall be granted
Person
unlawfully excludes another from the except for compelling reason and in no case exceeding fifteen
use or enjoyment of a right or office (15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No.
to which such other is entitled 00-2-03-SC)

Section 5. Respondents and costs in certain cases. When the


No plain, speedy,
petition filed relates to the acts or omissions of a judge,
adequate remedy
court, quasi-judicial agency, tribunal, corporation, board,
officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent or
TWO TYPES OF MANDAMUS respondents, the person or persons interested in sustaining the
1. When the board, officer or person unlawfully neglects the proceedings in the court; and it shall be the duty of such
performance of an act which the law specifically enjoins as a duty private respondents to appear and defend, both in his or their

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own behalf and in behalf of the public respondent or of the rights of the parties pending such proceedings. The
respondents affected by the proceedings, and the costs petition shall not interrupt the course of the principal case
awarded in such proceedings in favor of the petitioner shall unless a temporary restraining order or a writ of preliminary
be against the private respondents only, and not against the injunction has been issued against the public respondent from
judge, court, quasi-judicial agency, tribunal, corporation, further proceeding in the case. (7a)
board, officer or person impleaded as public respondent or
respondents. Section 8. Proceedings after comment is filed. After the
comment or other pleadings required by the court are filed, or
Unless otherwise specifically directed by the court where the the time for the filing thereof has expired, the court may
petition is pending, the public respondents shall not appear in hear the case or require the parties to submit memoranda. If
or file an answer or comment to the petition or any pleading after such hearing or submission of memoranda or the
therein. If the case is elevated to a higher court by either expiration of the period for the filing thereof the court finds
party, the public respondents shall be included therein as that the allegations of the petition are true, it shall render
nominal parties. However, unless otherwise specifically judgment for the relief prayed for or to which the petitioner
directed by the court, they shall not appear or participate in is entitled.
the proceedings therein. (5a)
The court, however, may dismiss the petition if it finds the
Section 6. Order to comment. If the petition is sufficient in same to be patently without merit, prosecuted manifestly for
form and substance to justify such process, the court shall delay, or that the questions raised therein are too
issue an order requiring the respondent or respondents to unsubstantial to require consideration. (8a)
comment on the petition within ten (10) days from receipt of a
copy thereof. Such order shall be served on the respondents WHAT ARE THE GROUNDS FOR THE DISMISSAL OF THE
in such manner as the court may direct together with a copy PETITION?
of the petition and any annexes thereto. 1. If it finds the same to be patently without merit
2. Prosecuted manifestly for delay
In petitions for certiorari before the Supreme Court and the 3. That the questions raised therein are too unsubstantial to require
Court of Appeals, the provisions of section 2, Rule 56, shall be consideration
observed. Before giving due course thereto, the court may
require the respondents to file their comment to, and not a Section 9. Service and enforcement of order or judgment. A
motion to dismiss, the petition. Thereafter, the court may certified copy of the judgment rendered in accordance with
require the filing of a reply and such other responsive or the last preceding section shall be served upon the court,
other pleadings as it may deem necessary and proper. (6a) quasi-judicial agency, tribunal, corporation, board, officer or
person concerned in such manner as the court may direct, and
Section 7. Expediting proceedings; injunctive relief. The court disobedience thereto shall be punished as contempt. An
in which the petition is filed may issue orders expediting the execution may issue for any damages or costs awarded in
proceedings, and it may also grant a temporary restraining accordance with section 1 of Rule 39. (9a)
order or a writ of preliminary injunction for the preservation

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2. When upon complaint or otherwise he has good reason to believe


RULE 66: QUO WARRANTO
that any case specified in the preceding section can be established
by proof, must commence such action
Section 1. Action by Government against individuals. An action
for the usurpation of a public office, position or franchise may WHEN MAY HE FILE THE QUO WARRANTO?
be commenced by a verified petition brought in the name of When there is a request or upon the request of another person
the Republic of the Philippines against:
WHAT IS THE DIFFERENCE WITH SECTION 3?
(a) A person who usurps, intrudes into, or unlawfully holds or There is no basis in Section 3 that the tip received is good
exercises a public office, position or franchise; information or not, that is why it is discretionary on the part of
the Solicitor General. In case he decides to give course, there
(b) A public officer who does or suffers an act which, by the should be demand for certain requirements.
provision of law, constitutes a ground for the forfeiture of his
office; or QUO WARRANTO MANDAMUS
The defendant is the person who is The defendant is the person
(c) An association which acts as a corporation within the
usurping the public office preventing the plaintiff from
Philippines without being legally incorporated or without
exercising the public office
lawful authority so to act. (1a)

Section 2. When Solicitor General or public prosecutor must WHAT MAKES QUO WARRANTO A SPECIAL CIVIL ACTION?
commence action. The Solicitor General or a public 1. It needs to be verified or made under oath
prosecutor, when directed by the President of the Philippines, 2. There are circumstances when the quo warranto proceedings are
or when upon complaint or otherwise he has good reason to instituted in behalf of the State by the OSG
believe that any case specified in the preceding section can 3. The statute of limitations for this action is shorter compared to
be established by proof, must commence such action. (3a) other actionsit is vested with public interest and public policy
4. There is an unusual proceeding pre-trial wherein a hearing will
QUO WARRANTO be conducted first to determine whether the court will entertain
Intruder into a public position the proceeding further with the action

WHO MAY INITIATE QUO WARRANTO PROCEEDINGS? Section 3. When Solicitor General or public prosecutor may
1. OSG commence action with permission of court. The Solicitor
2. Private person/in his own namehe must prove that he has the General or a public prosecutor may, with the permission of the
right to occupy the public position court in which the action is to be commenced, bring such an
action at the request and upon the relation of another person;
WHEN SOLICITOR GENERAL OR PUBLIC PROSECUTOR MUST but in such case the officer bringing it may first require an
COMMENCE ACTION? indemnity for the expenses and costs of the action in an
1. When directed by the president of the Philippines amount approved by and to be deposited in the court by the
person at whose request and upon whose relation the same is

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brought. (4a) WHAT TO DO IN CASE THERE ARE OTHER POSSIBLE


CLAIMANTS TO THE PUBLIC POSITION?
Section 4. When hearing had on application for permission to All possible claimants to the position should be impleaded in the
commence action. Upon application for permission to action instituted
commence such action in accordance with the next preceding
section, the court shall direct that notice be given to the Section 7. Venue. An action under the preceding six sections
respondent so that he may be heard in opposition thereto; and can be brought only in the Supreme Court, the Court of
if permission is granted, the court shall issue an order to that Appeals, or in the Regional Trial Court exercising jurisdiction
effect, copies of which shall be served on all interested over the territorial area where the respondent or any of the
parties, and the petition shall then be filed within the period respondents resides, but when the Solicitor General
ordered by the court. (5a) commences the action, it may be brought in a Regional Trial
Court in the City of Manila, in the Court of Appeals, or in the
Section 5. When an individual may commence such an action. Supreme Court. (8a)
A person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another may bring WHERE CAN A QUO WARRANTO BE FILED?
an action therefor in his own name. (6) 1. Supreme Court
2. Court of Appeals
Section 6. Parties and contents of petition against usurpation. 3. Regional Trial Court
When the action is against a person for usurping a public *Follow still hierarchy of courts
office, position or franchise, the petition shall set forth the
name of the person who claim to be entitled thereto, if any, WHEN A CORPORATION STILL OPERATES NOTWITHSTANDING
with an averment of his right to the same and that the EXPIRATION OF CORPORATE TERM, WHERE DO YOU FILE THE
respondent is unlawfully in possession thereof. All persons who QUO WARRANTO PROCEEDING?
claim to be entitled to the public office, position or franchise You must file it with the SEC
may be made parties, and their respective rights to such
public office, position or franchise determined, in the same Section 8. Period for pleadings and proceedings may be
action. (7a) reduced; action given precedence. The court may reduce the
period provided by these Rules for filing pleadings and for all
WHAT SHALL BE THE CONTENTS OF A PETITION FOR QUO other proceedings in the action in order to secure the most
WARRANTO? expeditious determination of the matters involved therein
1. Shall set forth the name of the person who claim to be entitled consistent with the rights of the parties. Such action may be
thereto given precedence over any other civil matter pending in the
2. Averment of the right to the same court. (9a)
3. The respondent is unlawfully in possession thereof
4. All persons who claim to be entitled to the public office, position, Section 9. Judgment where usurpation found. When the
or franchise may be made parties respondent is found guilty of usurping into, intruding into, or
unlawfully holding or exercising a public office, position or

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franchise, judgment shall be rendered that such respondent be action of quo warranto
ousted and altogether excluded therefrom, and that the There is no prohibition to ask for damages outright as an
petitioner or relator, as the case may be, recover his costs. incidental relief during the main action
Such further judgment may be rendered determining the
respective rights in and to the public office, position or Section 11. Limitations. Nothing contained in this Rule shall
franchise of all the parties to the action as justice requires. be construed to authorize an action against a public officer or
(10a) employee for his ouster from office unless the same be
commenced within one (1) year after the cause of such ouster,
Section 10. Rights of persons adjudged entitled to public or the right of the petitioner to hold such office or position,
office; delivery of books and papers; damages. If judgment arose, nor to authorize an action for damages in accordance
be rendered in favor of the person averred in the complaint to with the provisions of the next preceding section unless the
be entitled to the public office he may, after taking the oath same be commenced within one (1) year after the entry of the
of office and executing any official bond required by law, judgment establishing the petitioner's right to the office in
take upon himself the execution of the office, and may question. (16a)
immediately thereafter demand of the respondent all the
books and papers in the respondent's custody or control WHAT IS THE REASON BEHIND THAT SHORT LIMITATION OF
appertaining to the office to which the judgment relates. If TIME?
the respondent refuses or neglects to deliver any book or There is public interest involved in a quo warranto proceeding
paper pursuant to such demand, he may be punished for If you claim any legal right, you need to enforce it outright
contempt as having disobeyed a lawful order of the court. The
person adjudged entitled to the office may also bring action Section 12. Judgment for costs. In an action brought in
against the respondent to recover the damages sustained by accordance with the provisions of this Rule, the court may
such person by reason of the usurpation. (15a) render judgment for costs against either the petitioner, the
relator, or the respondent, or the person or persons claiming
WHAT OTHER RELIEF CAN YOU PRAY FOR IN A QUO to be a corporation, or may apportion the costs, as justice
WARRANTO PROCEEDING NOT GIVEN IN THE OTHER SPECIAL requires. (17a)
CIVIL ACTIONS?
Damages arising from the deprivation of the right of plaintiff to
RULE 67: EXPROPRIATION
enjoy the public office
He who asks for damages must commence an action for damages
within one year from when there was entry of judgment (when Section 1. The complaint. The right of eminent domain shall
judgment became final and executory) be exercised by the filing of a verified complaint which shall
state with certainty the right and purpose of expropriation,
WOULD NOT THE FILING AN ACTION FOR DAMAGES BE describe the real or personal property sought to be
INCONSISTENT WITH THE RULES ON SPLITTING OF ACTION? expropriated, and join as defendants all persons owning or
The provision on the filing for damages comes into play only when claiming to own, or occupying, any part thereof or interest
you decide to just institute the action for damages after the main therein, showing, so far as practicable, the separate interest

BY: MA. ANGELA LEONOR C. AGUINALDO


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of each defendant. If the title to any property sought to be of taxation to be held by such bank subject to the orders of
expropriated appears to be in the Republic of the Philippines, the court. Such deposit shall be in money, unless in lieu
although occupied by private individuals, or if the title is thereof the court authorizes the deposit of a certificate of
otherwise obscure or doubtful so that the plaintiff cannot deposit of a government bank of the Republic of the
with accuracy or certainty specify who are the real owners, Philippines payable on demand to the authorized government
averment to that effect shall be made in the complaint. (1a) depositary.

WHAT IS THE DIFFERENCE BETWEEN EMINENT DOMAIN AND If personal property is involved, its value shall be
EXPROPRIATION? provisionally ascertained and the amount to be deposited shall
Eminent domain is the power of the state be promptly fixed by the court.
Expropriation is the action instituted by the government in
exercise of this power After such deposit is made the court shall order the sheriff
or other proper officer to forthwith place the plaintiff in
WHO MAY BE A PETITIONER IN AN EXPROPRIATION ACTION? possession of the property involved and promptly submit a
National government and in case there is a law, the local report thereof to the court with service of copies to the
governments (Local Government Code) parties. (2a)

WHO EXERCISES THE POWER OF EMINENT DOMAIN? WHAT MUST YOU DO TO ENTER OR TAKE THE PROPERTY UPON
It is under the purview of the executive departmentsthe FILING OF THE COMPLAINT?
administrative agencies: the DPWH, DOTC, DAR, DENR, etc. Put up a deposit equivalent to the assessed value of the
property for the purposes of taxation in case of real property
WHAT PROPERTIES MAY BE EXPROPRIATED? In case of personal property, its value shall be provisionally
Private propertiesreal and personal properties ascertained and the amount shall be promptly fixed by the court
This deposit shall be made in money unless in lieu thereof the
WHAT SHOULD THE COMPLAINT FOR EXPROPRIATION court authorizes the deposit of a certificate of deposit of a
CONTAIN? government bank of the Philippines payable on demand to the
Right and authority to expropriate authorized government depositary
Purpose of expropriationpurpose should be public purpose
Description of the real or personal property to be expropriated WHAT ARE THE PURPOSES FOR THE DEPOSIT?
1. Compensationif the expropriator wins the action, then the
Section 2. Entry of plaintiff upon depositing value with defendant will be paid for the property taken away from him
authorized government depositary. Upon the filing of the 2. Indemnityif the expropriator doesn't win the action and the
complaint or at any time thereafter and after due notice to defendant as well won in his defenses, notwithstanding the
the defendant, the plaintiff shall have the right to take or occupation of the government, it will be for the damages
enter upon the possession of the real property involved if he suffered by the defendant
deposits with the authorized government depositary an amount
equivalent to the assessed value of the property for purposes

BY: MA. ANGELA LEONOR C. AGUINALDO


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Section 3. Defenses and objections. If a defendant has no It shall specifically designate or identify the property in which
objection or defense to the action or the taking of his he claims to have an interest, state the nature and extent of
property, he may file and serve a notice of appearance and a the interest claimed, and adduce all his objections and defenses
manifestation to that effect, specifically designating or to the taking of his property
identifying the property in which he claims to be interested, No counterclaim, cross-claim or third-party complaint shall be
within the time stated in the summons. Thereafter, he shall alleged or allowed
be entitled to notice of all proceedings affecting the same.
Section 4. Order of expropriation. If the objections to and
If a defendant has any objection to the filing of or the the defenses against the right of the plaintiff to expropriate
allegations in the complaint, or any objection or defense to the property are overruled, or when no party appears to
the taking of his property, he shall serve his answer within defend as required by this Rule, the court may issue an order
the time stated in the summons. The answer shall specifically of expropriation declaring that the plaintiff has a lawful
designate or identify the property in which he claims to have right to take the property sought to be expropriated, for the
an interest, state the nature and extent of the interest public use or purpose described in the complaint, upon the
claimed, and adduce all his objections and defenses to the payment of just compensation to be determined as of the date
taking of his property. No counterclaim, cross-claim or third- of the taking of the property or the filing of the complaint,
party complaint shall be alleged or allowed in the answer or whichever came first.
any subsequent pleading.
A final order sustaining the right to expropriate the property
A defendant waives all defenses and objections not so alleged may be appealed by any party aggrieved thereby. Such
but the court, in the interest of justice, may permit appeal, however, shall not prevent the court from determining
amendments to the answer to be made not later than ten (10) the just compensation to be paid.
days from the filing thereof. However, at the trial of the
issue of just compensation whether or not a defendant has After the rendition of such an order, the plaintiff shall not be
previously appeared or answered, he may present evidence as permitted to dismiss or discontinue the proceeding except on
to the amount of the compensation to be paid for his such terms as the court deems just and equitable. (4a)
property, and he may share in the distribution of the award.
(n) WHEN CAN THE COURT ISSUE THE ORDER OF
EXPROPRIATION?
WHAT DOES THE DEFENDANT NEED TO DO IN CASE THERE IS (FIRST ORDER THAT THE COURT WILL ISSUE)
NO OBJECTION OR DEFENSE TO THE ACTION? When the objections of defendant has been overruled
He may file a notice of appearance and a manifestation to that When no party appears to defend as required by the rules
effect
N.B: This is a type of action wherein MULTIPLE APPEALS are allowed.
WHAT DOES THE DEFENDANT NEED TO DO IN CASE THERE ARE The first one is the order of expropriation. The other order which can
OBJECTIONS OR DEFENSES? be appealed is order fixing the just compensation.
He shall serve his answer within the time stated in the summons

BY: MA. ANGELA LEONOR C. AGUINALDO


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REVIEW: WHAT ARE THE TWO ORDERS WHICH CAN BE This is for practical reasons so that you will get paid with a fair
APPEALED? amount for the property being expropriated
1. Order of expropriation The question is that the compensation shall not be just if there
2. Order fixing the just compensation is no participation in the proceedings ascertaining the just
compensation
WHAT IF THE IST ORDER (ORDER OF CONDEMNATION) IS
APPEALED? HOW LONG IS THE APPEAL PERIOD ALLOWED? WHAT DOES JUST COMPENSATION COMPRISE?
The appeal period is not the ordinary 15 days, instead, the Fair market value (value determined by the market forces
appellant is given 30 daysyou will need to file a notice of usually determined by the vicinity wherein property is located)
appeal as well as a record of appeal plus the consequential damages and deduct therefrom
The photocopies of all pleadings submitted shall constitute the consequential benefits
record of appeal because the original record will have to remain Note that the consequential benefits shall in no case exceed the
with the trial court where there is pendency of the action consequential damages assessed or the owner be deprived of the
actual value of his property so taken (you shield the fair market
Section 5. Ascertainment of compensation. Upon the rendition value)
of the order of expropriation, the court shall appoint not Impose the interest on the amount due the owner of the
more than three (3) competent and disinterested persons as propertythe sum of the fair market value, consequential
commissioners to ascertain and report to the court the just damages less consequential benefits (6% interest)then multiply
compensation for the property sought to be taken. The order it with the number of years
of appointment shall designate the time and place of the first
session of the hearing to be held by the commissioners and
Just compensation = [(fair market value + consequential damages
specify the time within which their report shall be submitted
consequential benefits) x 6% legal interest x # of years] + attorneys
to the court.
fees
Copies of the order shall be served on the parties. Objections
to the appointment of any of the commissioners shall be filed Section 6. Proceedings by commissioners. Before entering
with the court within ten (10) days from service, and shall be upon the performance of their duties, the commissioners shall
resolved within thirty (30) days after all the commissioners take and subscribe an oath that they will faithfully perform
shall have received copies of the objections. (5a) their duties as commissioners, which oath shall be filed in
court with the other proceedings in the case. Evidence may be
ARE YOU REQUIRED TO ATTEND THE PROCEEDINGS IN introduced by either party before the commissioners who are
ASCERTAINING THE JUST COMPENSATION? IN CASE OF authorized to administer oaths on hearings before them, and
PENDING APPEAL, IS IT WISE TO ATTEND THE PROCEEDINGS the commissioners shall, unless the parties consent to the
FOR ASCERTAINING JUST COMPENSATION? contrary, after due notice to the parties, to attend, view and
It is still okay to continue participating and you will not be examine the property sought to be expropriated and its
estopped surroundings, and may measure the same, after which either
party may, by himself or counsel, argue the case. The

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commissioners shall assess the consequential damages to the therewith, the court may, after hearing, accept the report
property not taken and deduct from such consequential and render judgment in accordance therewith, or, for cause
damages the consequential benefits to be derived by the shown, it may recommit the same to the commissioners for
owner from the public use or purpose of the property taken, further report of facts, or it may set aside the report and
the operation of its franchise by the corporation or the appoint new commissioners; or it may accept the report in
carrying on of the business of the corporation or person part and reject it in part and it may make such order or
taking the property. But in no case shall the consequential render such judgment as shall secure to the plaintiff the
benefits assessed exceed the consequential damages assessed, property essential to the exercise of his right of
or the owner be deprived of the actual value of his property expropriation, and to the defendant just compensation for the
so taken. (6a) property so taken. (8a)

Section 7. Report by commissioners and judgment thereupon. WHAT HAPPENS NEXT AFTER THE COURT APPROVES IN TOTO
The court may order the commissioners to report when any THE REPORT OF THE COMMISSIONERS?
particular portion of the real estate shall have been passed The court shall issue the order fixing the just compensation
upon by them, and may render judgment upon such partial The plaintiff or expropriator shall deliver the payment to the
report, and direct the commissioners to proceed with their defendant
work as to subsequent portions of the property sought to be
expropriated, and may from time to time so deal with such Section 9. Uncertain ownership; conflicting claims. If the
property. The commissioners shall make a full and accurate ownership of the property taken is uncertain, or there are
report to the court of all their proceedings, and such conflicting claims to any part thereof, the court may order
proceedings shall not be effectual until the court shall have any sum or sums awarded as compensation for the property to
accepted their report and rendered judgment in accordance be paid to the court for the benefit of the person adjudged in
with their recommendations. Except as otherwise expressly the same proceeding to be entitled thereto. But the judgment
ordered by the court, such report shall be filed within sixty shall require the payment of the sum or sums awarded to
(60) days from the date the commissioners were notified of either the defendant or the court before the plaintiff can
their appointment, which time may be extended in the enter upon the property, or retain it for the public use or
discretion of the court. Upon the filing of such report, the purpose if entry has already been made. (9a)
clerk of the court shall serve copies thereof on all interested
parties, with notice that they are allowed ten (10) days within Section 10. Rights of plaintiff after judgment and payment.
which to file objections to the findings of the report, if they Upon payment by the plaintiff to the defendant of the
so desire. (7a) compensation fixed by the judgment, with legal interest
thereon from the taking of the possession of the property, or
Section 8. Action upon commissioners' report. Upon the after tender to him of the amount so fixed and payment of
expiration of the period of ten (10) days referred to in the the costs, the plaintiff shall have the right to enter upon the
preceding section, or even before the expiration of such property expropriated and to appropriate it for the public use
period but after all the interested parties have filed their or purpose defined in the judgment, or to retain it should he
objections to the report or their statement of agreement have taken immediate possession thereof under the provisions

BY: MA. ANGELA LEONOR C. AGUINALDO


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of section 2 hereof. If the defendant and his counsel absent


themselves from the court, or decline to receive the amount Section 14. Power of guardian in such proceedings. The
tendered, the same shall be ordered to be deposited in court guardian or guardian ad litem of a minor or of a person
and such deposit shall have the same effect as actual judicially declared to be incompetent may, with the approval
payment thereof to the defendant or the person ultimately of the court first had, do and perform on behalf of his ward
adjudged entitled thereto. (10a) any act, matter, or thing respecting the expropriation for
public use or purpose of property belonging to such minor or
Section 11. Entry not delayed by appeal; effect of reversal. person judicially declared to be incompetent, which such minor
The right of the plaintiff to enter upon the property of the or person judicially declared to be incompetent could do in
defendant and appropriate the same for public use or purpose such proceedings if he were of age or competent. (14a)
shall not be delayed by an appeal from the judgment. But if
the appellate court determines that plaintiff has no right of
RULE 69: PARTITION
expropriation, judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the restoration to
the defendant of the possession of the property, and to Section 1. Complaint in action for partition of real estate. A
determine the damages which the defendant sustained and may person having the right to compel the partition of real estate
recover by reason of the possession taken by the plaintiff. may do so as provided in this Rule, setting forth in his
(11a) complaint the nature and extent of his title and an adequate
description of the real estate of which partition is demanded
Section 12. Costs, by whom paid. The fees of the and joining as defendants all other persons interested in the
commissioners shall be taxed as a part of the costs of the property. (1a)
proceedings. All costs, except those of rival claimants
litigating their claims, shall be paid by the plaintiff, unless an WHO MAY DEMAND PARTITION?
appeal is taken by the owner of the property and the A person who has the right to compel the partition of real estate
judgment is affirmed, in which event the costs of the appeal Co-owners or co-heirs (they are a species of co-owners)
shall be paid by the owner. (12a)
BROTHERS CO-OWN A ONE-HECTARE PROPERTY. ONE OF THE
Section 13. Recording judgment, and its effect. The judgment BROTHERS DOESN'T KNOW WHAT TO DO WITH THE PROPERTY.
entered in expropriation proceedings shall state definitely, by WITHOUT PARTITION, ALL OWN A PRO-INDIVISO SHARE. IN
an adequate description, the particular property or interest WHAT WAYS CAN THE BROTHER ASK FOR THE PARTITION?
therein expropriated, and the nature of the public use or 1. Extrajudiciallypartition agreement
purpose for which it is expropriated. When real estate is 2. Judicial partitionaction for partition
expropriated, a certified copy of such judgment shall be
recorded in the registry of deeds of the place in which the WHAT MAY BE THE SUBJECT OF PARTITION?
property is situated, and its effect shall be to vest in the Real property
plaintiff the title to the real estate so described for such Personal property
public use or purpose. (13a)

BY: MA. ANGELA LEONOR C. AGUINALDO


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WHICH COURT HAS JURISDICTION OVER PARTITION CASES? Whether or not the plaintiff has the right to ask for partition and
It depends on the value of the personal property and the assessed whether or not there is any legal obstacle to the partition
value of the real property
Why are we basing the jurisdiction on the assessed value with WHAT IS THE FIRST ORDER APPEALLABLE?
respect to partition cases? Because partition involves a real Order of partition
actionownership and possession are issues involved
WHAT IF THERE IS AN AGREEMENT ON PARTITION?
WHAT IS THE PROPER VENUE FOR AN ACTION FOR The court shall confirm the partition so agreed upon by all the
PARTITION? parties and such partition, together with the order confirming the
Where the real property is located same, shall be recorded in the registry of deeds
If the property is movable, it may either be in the residence of
the plaintiff or the defendant N.B.: Accounting needs to be included in the action, otherwise, there
will be splitting of action. The expenses and damages shall be included in
WHAT ARE THE CONTENTS OF THE PETITION FOR PARTITION? the accounting for the property.
1. The nature and extent of his title
2. An adequate description of the real estate of which partition is Section 3. Commissioners to make partition when parties fail
demanded to agree. If the parties are unable to agree upon the
3. Joining as defendants all others persons interested in the property partition, the court shall appoint not more than three (3)
(all co-owners of the property should be impleaded, they are competent and disinterested persons as commissioners to make
indispensible parties) the partition, commanding them to set off to the plaintiff and
to each party in interest such part and proportion of the
Section 2. Order for partition and partition by agreement property as the court shall direct. (3a)
thereunder. If after the trial the court finds that the
plaintiff has the right thereto, it shall order the partition of WHAT FACTORS SHALL THE COMMISIONERS CONSIDER?
the real estate among all the parties in interest. Thereupon They shall hear the parties as to their preference on the portion
the parties may, if they are able to agree, make the partition of the property to best apart to them and the comparative value
among themselves by proper instruments of conveyance, and thereof
the court shall confirm the partition so agreed upon by all The commissioners shall set apart the lots or parcels of land as
the parties, and such partition, together with the order of will be most advantageous and equitable having due regard to the
the court confirming the same, shall be recorded in the improvements, situation, and quality of the different parts thereof
registry of deeds of the place in which the property is
situated. (2a) Section 4. Oath and duties of commissioners. Before making
such partition; the commissioners shall take and subscribe an
A final order decreeing partition and accounting may be oath that they will faithfully perform their duties as
appealed by any party aggrieved thereby. (n) commissioners, which oath shall be filed in court with the
other proceedings in the case. In making the partition, the
WHAT IS THE FIRST ISSUE TO BE SETTLED BY THE COURT? commissioners shall view and examine the real estate, after

BY: MA. ANGELA LEONOR C. AGUINALDO


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due notice to the parties to attend at such view and


examination, and shall hear the parties as to their preference Section 6. Report of commissioners; proceedings not binding
in the portion of the property to be set apart to them and until confirmed. The commissioners shall make a full and
the comparative value thereof, and shall set apart the same accurate report to the court of all their proceedings as to
to the parties in lots or parcels as will be most advantageous the partition, or the assignment of real estate to one of the
and equitable, having due regard to the improvements, parties, or the sale of the same. Upon the filing of such
situation and quality of the different parts thereof. (4a) report, the clerk of court shall serve copies thereof on all
the interested parties with notice that they are allowed ten
Section 5. Assignment or sale of real estate by commissioners. (10) days within which to file objections to the findings of the
When it is made to appear to the commissioners that the real report, if they so desire. No proceeding had before or
state, or a portion thereof, cannot be divided without conducted by the commissioners and rendered judgment
prejudice to the interests of the parties, the court may order thereon. (6a)
it assigned to one of the parties willing to take the same,
provided he pays to the other parties such amount as the WHAT IF A PARTY OBJECTS TO THE ORDER CONFIRMING THE
commissioners deem equitable, unless one of the interested REPORT OF THE COMMISSIONER?
parties asks that the property be sold instead of being so He is allowed to appeal the same within 30-day period
assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such WHAT IS THE THIRD ORDER APPEALLABLE?
conditions and within such time as the court may determine. Order for accounting
(5a)
REVIEW. THREE ORDERS APPEALLABLE IN AN ACTION FOR
WHAT IS THE REMEDY TO THE PARTIES IF THE PARTITION OF PARTITION?
THE PROPERTY WOULD BE PREJUDICIAL TO THE OWNERS? 1. Order of partition
It may be assigned to one of the co-owners provided he pays to 2. Order approving commissioners report
the other parties an equitable amount as the commissioners may 3. Order for accounting
ascertain
It may also be sold to a third party through a public sale Section 7. Action of the court upon commissioners report.
Upon the expiration of the period of ten (10) days referred to
WHAT IF ONE OF THE CO-OWNERS IS WILLING TO BUY THE in the preceding section or even before the expiration of such
WHOLE PROPERTY SUBJECT TO REIMBURSEMENT OF THE period but after the interested parties have filed their
OTHER CO-OWNERS AND ANOTHER OBJECTS? WHAT WILL objections to the report or their statement of agreement
HAPPEN? therewith the court may, upon hearing, accept the report and
The court shall order the commissioners to sell the real property render judgment in accordance therewith, or, for cause shown
at public sale under such conditions and within such time as the recommit the same to the commissioners for further report of
court may determine facts; or set aside the report and appoint new commissioners;
This prevails over the assignment because a public sale redounds or accept the report in part and reject it in part; and may
to the best benefit of all make such order and render such judgment as shall effectuate

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a fair and just partition of the real estate, or of its value, if real estate to the party making the payment, and the effect
assigned or sold as above provided, between the several of the judgment shall be to vest in the party making the
owners thereof. (7) payment the whole of the real estate free from any interest
on the part of the other parties to the action. If the
Section 8. Accounting for rent and profits in action for property is sold and the sale confirmed by the court, the
partition. In an action for partition in accordance with this judgment shall state the name of the purchaser or purchasers
Rule, a party shall recover from another his just share of and a definite description of the parcels of real estate sold to
rents and profits received by such other party from the real each purchaser, and the effect of the judgment shall be to
estate in question, and the judgment shall include an vest the real estate in the purchaser or purchasers making
allowance for such rents and profits. (8a) the payment or payments, free from the claims of any of the
parties to the action. A certified copy of the judgment shall
Section 9. Power of guardian in such proceedings. The in either case be recorded in the registry of deeds of the
guardian or guardian ad litem of a minor or person judicially place in which the real estate is situated, and the expenses
declared to be incompetent may, with the approval of the of such recording shall be taxed as part of the costs of the
court first had, do and perform on behalf of his ward any act, action. (11a)
matter, or thing respecting the partition of real estate, which
the minor or person judicially declared to be incompetent Section 12. Neither paramount rights nor amicable partition
could do in partition proceedings if he were of age or affected by this Rule. Nothing in this Rule contained shall be
competent. (9a) construed so as to prejudice, defeat, or destroy the right or
title of any person claiming the real estate involved by title
Section 10. Costs and expenses to be taxed and collected. under any other person, or by title paramount to the title of
The court shall equitably tax and apportion between or among the parties among whom the partition may have been made,
the parties the costs and expenses which accrue in the action, nor so as to restrict or prevent persons holding real estate
including the compensation of the commissioners, having regard jointly or in common from making an amicable partition
to the interests of the parties, and execution may issue thereof by agreement and suitable instruments of conveyance
therefor as in other cases. (10a) without recourse to an action. (12a)

Section 11. The judgment and its effect; copy to be recorded Section 13. Partition of personal property. The provisions of
in registry of deeds. If actual partition of property is made, this Rule shall apply to partitions of estates composed of
the judgment shall state definitely, by metes and bounds and personal property, or of both real and personal property, in so
adequate description, the particular portion of the real estate far as the same may be applicable. (13)
assigned to each party, and the effect of the judgment shall
be to vest in each party to the action in severalty the portion
RULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE
of the real estate assigned to him. If the whole property is
assigned to one of the parties upon his paying to the others
the sum or sums ordered by the court, the judgment shall Section 1. Complaint in action for foreclosure. In an action
state the fact of such payment and of the assignment of the for the foreclosure of a mortgage or other encumbrance upon

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real estate, the complaint shall set forth the date and due then the plaintiff shall upon motion the deficiency
execution of the mortgage; its assignments, if any; the names ask for the execution of the order.
and residences of the mortgagor and the mortgagee; a Upon grant of the motion for
description of the mortgaged property; a statement of the execution, the property shall be
date of the note or other documentary evidence of the sold in public auction by the
obligation secured by the mortgage, the amount claimed to be sheriff. A certificate of sale shall
unpaid thereon; and the names and residences of all persons be issued to the highest bidder.
having or claiming an interest in the property subordinate in
right to that of the holder of the mortgage, all of whom shall A motion to confirm the sale shall
be made defendants in the action. (1a) be filed. This is needed otherwise
the confirmation of sale shall be
DEBTOR OWES THE CREDITOR P1 MILLION. CREDITOR WANTS void. This is also needed to cut the
TO COLLECT THE MONEY. WHAT ARE THE REMEDIES equity of redemption.
AVAILABLE TO THE CREDITOR?
1. Collection suit Take note: there is no right to
2. Foreclose the mortgage redeem but only an equitable right
to redeem. The period to exercise
MORTGAGEE: NON-BANK the right to redeem shall be from
Judicial foreclosure Extrajudicial foreclosure the date of public auction to the
Rule 68 date of confirmation.
The first appealable order shall be Sheriff
the ordering the defendant to pay Further, the equity of redemption
the unpaid amount to the plaintiff Notice and publication requirements cannot be said to be a short period
for a period of not less than 90 because it the order for
days and not more than 120 days. Auction sale confirmation is an appealable
Failure to pay within the said order.
period shall lead to the sale of the Certificate of sale to be registered
property and whatever proceeds with the RD In case there is a deficiency in the
shall be applied to the unpaid proceeds, the plaintiff shall file a
obligation. One-year redemption period that motion for deficiency judgment. In
will run from registration case the defendant still doesn't
In case the debtor was able to have money to pay for the
pay, the obligation shall be Final deed deficiency, then his property shall
extinguished and the property be levied and it will be open to
shall be returned to the debtor. Take note that the main diff is execution.
that in this kind of foreclosure, you
In case there was failure to pay, will have to file a suit to recover MORTGAGEE: BANK

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Judicial foreclosure Extrajudicial foreclosure such rights of redemption as may be allowed by law.
The bank has a right of redemption Right of redemption:
for a period of one year whether it For individuals, 1 year Upon the finality of the order of confirmation or upon the
is an individual or juridical entity expiration of the period of redemption when allowed by law,
Juridical entity, any time prior to the purchaser at the auction sale or last redemptioner, if any,
Amount of redemption shall be the the registration with the RD shall be entitled to the possession of the property unless a
interest and other charges (maximum of 90 days) third party is actually holding the same adversely to the
indicated in the contract judgment obligor. The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from the court which
ordered the foreclosure. (3a)
99-10-05-0 march 10 2007 re procedure of extrajudicial
foreclosure
Section 4. Disposition of proceeds of sale. The amount
realized from the foreclosure sale of the mortgaged property
Section 2. Judgment on foreclosure for payment or sale. If
shall, after deducting the costs of the sale, be paid to the
upon the trial in such action the court shall find the facts set
person foreclosing the mortgage, and when there shall be any
forth in the complaint to be true, it shall ascertain the
balance or residue, after paying off the mortgage debt due,
amount due to the plaintiff upon the mortgage debt or
the same shall be paid to junior encumbrancers in the order
obligation, including interest and other charges as approved by
of their priority, to be ascertained by the court, or if there
the court, and costs, and shall render judgment for the sum so
be no such encumbrancers or there be a balance or residue
found due and order that the same be paid to the court or to
after payment to them, then to the mortgagor or his duly
the judgment obligee within a period of not less than ninety
authorized agent, or to the person entitled to it. (4a)
(90) days nor more than one hundred twenty (120) days from
the entry of judgment, and that in default of such payment
Section 5. How sale to proceed in case the debt is not all due.
the property shall be sold at public auction to satisfy the
If the debt for which the mortgage or encumbrance was held
judgment. (2a)
is not all due as provided in the judgment as soon as a
sufficient portion of the property has been sold to pay the
Section 3. Sale of mortgaged property; effect. When the
total amount and the costs due, the sale shall terminate; and
defendant, after being directed to do so as provided in the
afterwards as often as more becomes due for principal or
next preceding section, fails to pay the amount of the
interest and other valid charges, the court may, on motion,
judgment within the period specified therein, the court, upon
order more to be sold. But if the property cannot be sold in
motion, shall order the property to be sold in the manner and
portions without prejudice to the parties, the whole shall be
under the provisions of Rule 39 and other regulations
ordered to be sold in the first instance, and the entire debt
governing sales of real estate under execution. Such sale shall
and costs shall be paid, if the proceeds of the sale be
not affect the rights of persons holding prior encumbrances
sufficient therefor, there being a rebate of interest where
upon the property or a part thereof, and when confirmed by
such rebate is proper. (5a)
an order of the court, also upon motion, it shall operate to
divest the rights in the property of all the parties to the
Section 6. Deficiency judgment. If upon the sale of any real
action and to vest their rights in the purchaser, subject to

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property as provided in the next preceding section there be a judicial foreclosure of real estate mortgages under this Rule
balance due to the plaintiff after applying the proceeds of insofar as the former are not inconsistent with or may serve
the sale, the court, upon motion, shall render judgment to supplement the provisions of the latter. (8a)
against the defendant for any such balance for which, by the
record of the case, he may be personally liable to the
plaintiff, upon which execution may issue immediately if the
RULE 70: FORCIBLE ENTRY AND UNLAWFUL DETAINER
balance is all due at the time of the rendition of the
judgment; otherwise; the plaintiff shall be entitled to
execution at such time as the balance remaining becomes due Section 1. Who may institute proceedings, and when. Subject
under the terms of the original contract, which time shall be to the provisions of the next succeeding section, a person
stated in the judgment. (6a) deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a lessor, vendor,
Section 7. Registration. A certified copy of the final order of vendee, or other person against whom the possession of any
the court confirming the sale shall be registered in the land or building is unlawfully withheld after the expiration or
registry of deeds. If no right of redemption exists, the termination of the right to hold possession, by virtue of any
certificate of title in the name of the mortgagor shall be contract, express or implied, or the legal representatives or
cancelled, and a new one issued in the name of the purchaser. assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful
Where a right of redemption exists, the certificate of title in deprivation or withholding of possession, bring an action in the
the name of the mortgagor shall not be cancelled, but the proper Municipal Trial Court against the person or persons
certificate of sale and the order confirming the sale shall be unlawfully withholding or depriving of possession, or any
registered and a brief memorandum thereof made by the person or persons claiming under them, for the restitution of
registrar of deeds upon the certificate of title. In the event such possession, together with damages and costs. (1a)
the property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum ELEMENTS OF AN ACTION FOR FORCIBLE ENTRY
thereof shall be made by the registrar of deeds on said 1. There is unlawful deprivation of physical possession of any land or
certificate of title. building
2. By force, intimidation, strategy, threat, stealth
If the property is not redeemed, the final deed of sale 3. Plaintiff was in prior possession of the property
executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of A WAS THE OWNER OF A PROPERTY IN THE PROVINCE TO
deeds; whereupon the certificate of title in the name of the WHICH HE SPENDS HIS SUMMER IN. ONE TIME, DURING HIS
mortgagor shall be cancelled and a new one issued in the name VISIT TO THE PLACE, HE SAW THERE WAS CONSTRUCTION OF
of the purchaser. (n) A HOUSE GOING ON. THERE WERE POSTS STANDING AND
PREPARATION FOR THE PLACING OF ROOF. CAN YOU
Section 8. Applicability of other provisions. The provisions of VALIDLY DEMOLISH THE CONSTRUCTION?
sections 31, 32 and 34 of Rule 39 shall be applicable to the Yes using the doctrine of self-help

BY: MA. ANGELA LEONOR C. AGUINALDO


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It depends on the assessed value of the real propertyif above


WHAT IF THE CONSTRUCTION WAS COMPLETE AND THAT THE P20,000, its with the RTC
FAMILY WAS ALREADY RESIDING THEREIN?
There was already deprivation and the law warrants that the WHAT IS THE DOWNSIDE OF FILING AN ACCION PUBLICIANA
proper judicial measure should be taken INSTEAD?
File a case for forcible entry It will be more costly because of the longer period to litigate
An accion publiciana is not anymore covered by the rules on
ELEMENTS OF UNLAWFUL DETAINER summary procedure
1. Possession of any land or building is unlawfully withheld
2. After expiration or termination of the right to hold possession Section 2. Lessor to proceed against lessee only after demand.
3. Prior possession by the plaintiff is not an essential element Unless otherwise stipulated, such action by the lesser shall be
commenced only after demand to pay or comply with the
RAFFY BOUGHT THE CONDOMINUM UNIT FROM GEOFF. HE conditions of the lease and to vacate is made upon the lessee,
DIDN'T LIVE IN THE SAID UNIT BUT LEASED IT OUTRIGHT TO or by serving written notice of such demand upon the person
NICKA. THE LEASE CONTRACT HAS EXPIRED AND YET NICKA found on the premises if no person be found thereon, and the
HASN'T LEFT THE UNIT. WAS THERE PRIOR POSSESSION? lessee fails to comply therewith after fifteen (15) days in the
Yes, there was possession by virtue of ownership case of land or five (5) days in the case of buildings. (2a)

WHAT TRIGGERS AN ACTION FOR UNLAWFUL DETAINER? ONE OF THE IMPORTANT PROVISIONS IN THE LEASE
When there is a demand to vacate the property due to breach of CONTRACT IS THE MONTHLY RENT. WHAT IF THE LESSEE HAS
contract or expiration of contract, and the occupant refuses to DEFAULTED IN PAYMENT OF 3 MONTHS RENT, AND THE
vacate the property after 15 days in the case of land or 5 days in LESSOR DEMANDS THE RENTS IN ARREARS AND COMPLIANCE
the case of buildings TO THE CONTRACT, OTHERWISE, HE SHOULD VACATE THE
PREMISES. DOES THERE EXIST A CAUSE OF ACTION FOR
WHAT IS THE RECKONING PERIOD TO FILE AN ACTION FOR UNLAWFUL DETAINER?
UNLAWFUL DETAINER? No, the demand should have been a conjunction of the payment
You must reckon it from the lapse of the grace period to vacate for rents-in-arrears and to vacate the premises
15 days in the case of land or 5 days in the case of buildings
A note from an Ampil studentinaccurate pala si Ampil kasi sabi WHAT IF THERE WAS COMPLIANCE TO THE DEMAND TO PAY
niya from last demand letter daw THE RENTS-IN-ARREARS, IS THERE A CAUSE OF ACTION FOR
UNLAWFUL DETAINER?
IF THE ONE-YEAR PERIOD HAS LAPSED, WHAT WILL HAPPEN? Yes because the breach has already been committed and that
You have to make use of the second remedy by filing a different there was intention to rescind the contract notwithstanding the
action payment made by the lessee
Accion publicianabetter right of possessionor reconvenyance
WHAT IF THERE WAS VACATION OF THE PREMISES AND YET
WHERE DO YOU FILE THE ACTIONS AFOREMENTIONED? THERE WAS NO PAYMENT?

BY: MA. ANGELA LEONOR C. AGUINALDO


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Remedy lies elsewhere but not one for ejectment outright on any of the grounds for the dismissal of a civil
It can be one for collection suit or similar other remedy action which are apparent therein. If no ground for dismissal
is found, it shall forthwith issue summons. (n)
Section 3. Summary procedure. Except in cases covered by
the agricultural tenancy laws or when the law otherwise Section 6. Answers. Within ten (10) days from service of
expressly provides, all actions for forcible entry and unlawful summons, the defendant shall file his answer to the complaint
detainer, irrespective of the amount of damages or unpaid and serve a copy thereof on the plaintiff. Affirmative and
rentals sought to be recovered, shall be governed by the negative defenses not pleaded therein shall be deemed waived,
summary procedure hereunder provided. (n) except lack of jurisdiction over the subject matter. Cross-
claims and compulsory counterclaims not asserted in the
ACTIONS COVERED BY THE RULES ON SUMMARY PROCEDURE answer shall be considered barred. The answer to
1. Ejectment case counterclaims or cross-claims shall be served and filed within
2. Money claims or personal property involved doesn't exceed ten (10) days from service of the answer in which they are
P100,000 pleaded. (5 RSP)
3. Civil aspect of BP22
CAN THE DEFENDANT POSE THE DEFENSE OF OWNERSHIP IN A
FORCIBLE ENTRY?
Yes
WHAT MAKES EJECTMENT CASES SUMMARY IN NATURE?
1. When only certain pleadings are allowed and certain motions are DOES THE COURT LOSE JURISDICTION?
prohibited, delay may be avoided in the proceedings The jurisdiction is determined by the allegations in the complaint
2. Shorter periods to comply with submission of documents and regardless of the defenses put up by the defendant
affidavits
3. Affidavits will be submitted in lieu of presentation of witnesses DOES IT MEAN THAT THE COURT CANNOT RULE ON THE ISSUE
and cross-examination and when the court finds the need to OF OWNERSHIP?
clarify some issues, the parties shall submit additional affidavits It can but only to the extent as incidental or provisional to the
4. Memorandum and position papers may also be submitted. These issue of possession
position papers contain the legal arguments supporting its position The ruling on ownership if ever doesn't constitute res judicata

Section 4. Pleadings allowed. The only pleadings allowed to Section 7. Effect of failure to answer. Should the defendant
be filed are the complaint, compulsory counterclaim and cross- fail to answer the complaint within the period above provided,
claim pleaded in the answer, and the answers thereto. All the court, motu proprio or on motion of the plaintiff, shall
pleadings shall be verified. (3a, RSP) render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein. The
Section 5. Action on complaint. The court may, from an court may in its discretion reduce the amount of damages and
examination of the allegations in the complaint and such attorney's fees claimed for being excessive or otherwise
evidence as may be attached thereto, dismiss the case unconscionable, without prejudice to the applicability of

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section 3 (c), Rule 9 if there are two or more defendants. Section 9. Record of preliminary conference. Within five (5)
(6, RSP) days after the termination of the preliminary conference, the
court shall issue an order stating the matters taken up
WHAT IS THE EFFECT OF FAILURE TO ANSWER? therein, including but not limited to:
The plaintiff shall right away take judgment
1. Whether the parties have arrived at an amicable
Section 8. Preliminary conference; appearance of parties. Not settlement, and if so, the terms thereof;
later than thirty (30) days after the last answer is filed, a
preliminary conference shall be held. The provisions of Rule 18 2. The stipulations or admissions entered into by the parties;
on pre-trial shall be applicable to the preliminary conference
unless inconsistent with the provisions of this Rule. 3. Whether, on the basis of the pleadings and the stipulations
and admission made by the parties, judgment may be rendered
The failure of the plaintiff to appear in the preliminary without the need of further proceedings, in which event the
conference shall be cause for the dismissal of his complaint. judgment shall be rendered within thirty (30) days from
The defendant who appears in the absence of the plaintiff issuance of the order;
shall be entitled to judgment on his counterclaim in
accordance with the next preceding section. All cross-claims 4. A clear specification of material facts which remain
shall be dismissed. (7, RSP) converted; and

If a sole defendant shall fail to appear, the plaintiff shall 5. Such other matters intended to expedite the disposition of
likewise be entitled to judgment in accordance with the next the case. (8, RSP)
preceding section. This procedure shall not apply where one of
two or more defendants sued under a common cause of action Section 10. Submission of affidavits and position papers.
defense shall appear at the preliminary conference. Within ten (10) days from receipt of the order mentioned in
the next preceding section, the parties shall submit the
No postponement of the preliminary conference shall be affidavits of their witnesses and other evidence on the
granted except for highly meritorious grounds and without factual issues defined in the order, together with their
prejudice to such sanctions as the court in the exercise of position papers setting forth the law and the facts relied
sound discretion may impose on the movant. (n) upon by them. (9, RSP)

WHAT IF PLAINTIFF FAILS TO APPEAR? Section 11. Period for rendition of judgment. Within thirty
This will cause the dismissal of the complaint (30) days after receipt of the affidavits and position papers,
or the expiration of the period for filing the same, the court
WHAT IF THE DEFENDANT FAILS TO APPEAR? shall render judgment.
Judgment will be rendered by the court on the basis of the
allegations of the complaint However, should the court find it necessary to clarify certain
material facts, during the said period, issue an order

BY: MA. ANGELA LEONOR C. AGUINALDO


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specifying the matters to be clarified, and require the parties


to submit affidavits or other evidence on the said matters 8. Motion to declare the defendant in default;
within ten (10) days from receipt of said order. Judgment shall
be rendered within fifteen (15) days after the receipt of the 9. Dilatory motions for postponement;
last affidavit or the expiration of the period for filing the
same. 10. Reply;

The court shall not resort to the foregoing procedure just to 11. Third-party complaints;
gain time for the rendition of the judgment. (n)
12. Interventions. (19a, RSP)
Section 12. Referral for conciliation. Cases requiring referral
for conciliation, where there is no showing of compliance with WHAT MOTIONS PROHIBITED?
such requirement, shall be dismissed without prejudice, and 1. Motion to dismiss the complaint except on the ground of lack of
may be revived only after that requirement shall have been jurisdiction over the subject matter, or failure to comply with
complied with. (18a, RSP) section 12;
2. Motion for a bill of particulars;
Section 13. Prohibited pleadings and motions. The following 3. Motion for new trial, or for reconsideration of a judgment, or for
petitions, motions, or pleadings shall not be allowed: reopening of trial;
4. Petition for relief from judgment;
1. Motion to dismiss the complaint except on the ground of 5. Motion for extension of time to file pleadings, affidavits or any
lack of jurisdiction over the subject matter, or failure to other paper;
comply with section 12; 6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
2. Motion for a bill of particulars; interlocutory order issued by the court;
8. Motion to declare the defendant in default;
3. Motion for new trial, or for reconsideration of a judgment, 9. Dilatory motions for postponement;
or for reopening of trial; 10. Reply;
11. Third-party complaints;
4. Petition for relief from judgment; 12. Interventions. (19a, RSP)

5. Motion for extension of time to file pleadings, affidavits or Section 14. Affidavits. The affidavits required to be
any other paper; submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in
6. Memoranda; evidence, and shall show their competence to testify to the
matters stated therein.
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court; A violation of this requirement may subject the party or the

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counsel who submits the same to disciplinary action, and shall allegations of the complaint are true, it shall render judgment
be cause to expunge the inadmissible affidavit or portion in favor of the plaintiff for the restitution of the premises,
thereof from the record. (20, RSP) the sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises,
Section 15. Preliminary injunction. The court may grant attorney's fees and costs. If a counterclaim is established,
preliminary injunction, in accordance with the provisions of the court shall render judgment for the sum found in arrears
Rule 58 hereof, to prevent the defendant from committing from either party and award costs as justice requires. (6a)
further acts of dispossession against the plaintiff.
WHAT IS THE PRINCIPAL PRAYER IN AN ACTION FOR
A possessor deprived of his possession through forcible from EJECTMENT?
the filing of the complaint, present a motion in the action for Possession
forcible entry or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to restore him in his WHAT OTHER RELIEFS CAN ONE BE ENTITLED TO IN AN
possession. The court shall decide the motion within thirty EJECTMENT SUIT?
(30) days from the filing thereof. (3a) The sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises,
WHAT PROVISIONAL REMEDIES CAN ONE ASK FORN IN AN attorney's fees and costs
EJECTMENT ACTION?
Preliminary prohibitory injunctionto prevent the defendant from Section 18. Judgment conclusive only on possession; not
committing further acts of dispossession against the plaintiff conclusive in actions involving title or ownership. The
Preliminary mandatory injunctionto bring the situation back to judgment rendered in an action for forcible entry or detainer
when it was before the deprivation (status quo ante) shall be conclusive with respect to the possession only and
Temporary restraining order is just a species of preliminary shall in no wise bind the title or affect the ownership of the
injunction land or building. Such judgment shall not bar an action
between the same parties respecting title to the land or
WHY IS THE ONLY PRELIMINARY INJUNCTION THE building.
PROVISIONAL REMEDY ALLOWED?
There should be settlement of the dispute outright because of the The judgment or final order shall be appealable to the
avoidance of possible violence that may happen appropriate Regional Trial Court which shall decide the same
on the basis of the entire record of the proceedings had in
Section 16. Resolving defense of ownership. When the the court of origin and such memoranda and/or briefs as may
defendant raises the defense of ownership in his pleadings and be submitted by the parties or required by the Regional Trial
the question of possession cannot be resolved without deciding Court. (7a)
the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. (4a) Section 19. Immediate execution of judgment; how to stay
same. If judgment is rendered against the defendant,
Section 17. Judgment. If after trial court finds that the execution shall issue immediately upon motion unless an appeal

BY: MA. ANGELA LEONOR C. AGUINALDO


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has been perfected and the defendant to stay execution files of the lawful possession of land or building pending the appeal
a sufficient supersedeas bond, approved by the Municipal Trial by virtue of the execution of the judgment of the Municipal
Court and executed in favor of the plaintiff to pay the rents, Trial Court, damages for such deprivation of possession and
damages, and costs accruing down to the time of the judgment restoration of possession and restoration of possession may be
appealed from, and unless, during the pendency of the appeal, allowed the defendant in the judgment of the Regional Trial
he deposits with the appellate court the amount of rent due Court disposing of the appeal. (8a)
from time to time under the contract, if any, as determined
by the judgment of the Municipal Trial Court. In the absence WHAT IS AVAILABLE TO THE PLAINTIFF IN CASE THE
of a contract, he shall deposit with the Regional Trial Court JUDGMENT WAS RENDERED IN FAVOR OF THE DEFENDANT?
the reasonable value of the use and occupation of the Appeal to the appropriate RTC
premises for the preceding month or period at the rate RTC that has territorial jurisdiction over the MTC which rendered
determined by the judgment of the lower court on or before judgment
the tenth day of each succeeding month or period. The In case the unfavorable judgment was reversed, and the defendant
supersedeas bond shall be transmitted by the Municipal Trial ultimately loses the case, then he would have to shoulder all costs
Court, with the papers, to the clerk of the Regional Trial and pay the appropriate amount of rentals, etc.
Court to which the action is appealed.
WHAT IF THE DEFENDANT LOSES THE CASE?
All amounts so paid to the appellate court shall be deposited Primary remedy is to perfect the appeal
with said court or authorized government depositary bank, and Since an ejectment case is summary in nature, to avoid himself
shall be held there until the final disposition of the appeal, from being booted out, he needs to file a superdeas bond only if
unless the court, by agreement of the interested parties, or there is mention in the judgment awarding damages, unpaid
in the absence of reasonable grounds of opposition to a motion rentals, etc.
to withdraw, or for justifiable reasons, shall decree During the pendency of the appeal, defendant should deposit of
otherwise. Should the defendant fail to make the payments periodic amounts with the appellate court covering rentals, costs,
above prescribed from time to time during the pendency of etc.
the appeal, the appellate court, upon motion of the plaintiff, If the defendant fails to comply with any of the above, judgment
and upon proof of such failure, shall order the execution of shall be executory insofar as the restoration of possession is
the judgment appealed from with respect to the restoration concerned
of possession, but such execution shall not be a bar to the The amount of unpaid rentals, damages and other costs are not
appeal taking its course until the final disposition thereof on executory because the payment has already been secured by the
the merits. superdeas bond posted by the defendant

After the case is decided by the Regional Trial Court, any WHAT IF THE DEFENDANT HAS BEEN FOUND TO BE
money paid to the court by the defendant for purposes of the ULTIMATELY ENTITLED TO THE PROPERTY?
stay of execution shall be disposed of in accordance with the In any case wherein it appears that the defendant has been
provisions of the judgment of the Regional Trial Court. In any deprived of the lawful possession of the land or building and that
case wherein it appears that the defendant has been deprived he is entitled to possession, he will be awarded damages for such

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deprivation of possession and restoration of possession and equivalent or higher rank, or by a fine not exceeding two
restoration may be allowed him hundred pesos or imprisonment not exceeding one (1) day, or
both, if it be a lower court. (1a)
Section 20. Preliminary mandatory injunction in case of
appeal. Upon motion of the plaintiff, within ten (10) days WHAT ARE THE OFFENSES THAT CAN LEAD TO CONTEMPT OF
from the perfection of the appeal to the Regional Trial Court, COURT?
the latter may issue a writ of preliminary mandatory 1. A person guilty of misbehavior in the presence of or so near a
injunction to restore the plaintiff in possession if the court is court as to obstruct or interrupt the proceedings before the same
satisfied that the defendant's appeal is frivolous or dilatory 2. Disrespect toward the court
or that the appeal of the plaintiff is prima facie meritorious. 3. Offensive personalities toward others
(9a) 4. Refusal to be sworn as a witness
5. Refusal to testify as a witness
Section 21. Immediate execution on appeal to Court of Appeals 6. Refusal to subscribe an affidavit or deposition when lawfully
or Supreme Court. The judgment of the Regional Trial Court required to do so (deposition officer is an agent of the court)
against the defendant shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom. Attack is on the court itselfproximity; near the court or infront
(10a) the court

WHAT HAPPENS IF THE CASE IS FURTHER APPEALED TO THE WHAT IS THE PENALTY WHEN ONE IS CITED IN DIRECT
COURT OF APPEALS? CONTEMPT?
The decision of the RTC shall be immediately be executory If Regional Trial Court or a court of equivalent or higher rank
o Fine not exceeding P10000 or
o Imprisonment not exceeding 10 days
o Or both
RULE 71: CONTEMPT
If lower court
o Fine not exceeding P200
o Or imprisonment not exceeding 1 day
Section 1. Direct contempt punished summarily. A person o Or both
guilty of misbehavior in the presence of or so near a court as
to obstruct or interrupt the proceedings before the same, *Distinction between criminal and civil contempt doesn't have
including disrespect toward the court, offensive personalities any practical value
toward others, or refusal to be sworn or to answer as a Criminal contemptaffront upon the court
witness, or to subscribe an affidavit or deposition when Civil contempta private person is affected
lawfully required to do so, may be summarily adjudged in The end result would still be a possible penalty of imprisonment
contempt by such court and punished by a fine not exceeding
two thousand pesos or imprisonment not exceeding ten (10) Section 2. Remedy therefrom. The person adjudged in direct
days, or both, if it be a Regional Trial Court or a court of contempt by any court may not appeal therefrom, but may

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avail himself of the remedies of certiorari or prohibition. The (e) Assuming to be an attorney or an officer of a court, and
execution of the judgment shall be suspended pending acting as such without authority;
resolution of such petition, provided such person files a bond
fixed by the court which rendered the judgment and (f) Failure to obey a subpoena duly served;
conditioned that he will abide by and perform the judgment
should the petition be decided against him. (2a) (g) The rescue, or attempted rescue, of a person or property
in the custody of an officer by virtue of an order or process
REMEDY OF A PERSON CITED IN DIRECT CONTEMPT of a court held by him.
Certiorari or prohibition under Rule 65
But nothing in this section shall be so construed as to prevent
Section 3. Indirect contempt to be punished after charge and the court from issuing process to bring the respondent into
hearing. After a charge in writing has been filed, and an court, or from holding him in custody pending such
opportunity given to the respondent to comment thereon proceedings. (3a)
within such period as may be fixed by the court and to be
heard by himself or counsel, a person guilty of any of the GROUNDS FOR INDIRECT CONTEMPT
following acts may be punished for indirect contempt; 1. Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions
(a) Misbehavior of an officer of a court in the performance of 2. Disobedience of or resistance to a lawful writ, process, order, or
his official duties or in his official transactions; judgment of a court, including the act of a person who, after
being dispossessed or ejected from any real property by the
(b) Disobedience of or resistance to a lawful writ, process, judgment or process of any court of competent jurisdiction,
order, or judgment of a court, including the act of a person enters or attempts or induces another to enter into or upon such
who, after being dispossessed or ejected from any real real property, for the purpose of executing acts of ownership or
property by the judgment or process of any court of possession, or in any manner disturbs the possession given to the
competent jurisdiction, enters or attempts or induces another person adjudged to be entitled thereto
to enter into or upon such real property, for the purpose of 3. Any abuse of or any unlawful interference with the processes or
executing acts of ownership or possession, or in any manner proceedings of a court not constituting direct contempt under
disturbs the possession given to the person adjudged to be section 1 of this Rule
entitled thereto; a. Filing petitions for certiorari or prohibition to impede
execution of a judgment or order
(c) Any abuse of or any unlawful interference with the 4. Any improper conduct tending, directly or indirectly, to impede,
processes or proceedings of a court not constituting direct obstruct, or degrade the administration of justice
contempt under section 1 of this Rule; a. Most common example is rule on sub judice
publicationwhen you discuss court proceedings or
(d) Any improper conduct tending, directly or indirectly, to comments on the merits of a pending case to the public
impede, obstruct, or degrade the administration of justice; or media
5. Assuming to be an attorney or an officer of a court, and acting as

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such without authority shall be accompanied with supporting documents and affidavits
6. Failure to obey a subpoena duly served and papers involved therein
7. The rescue, or attempted rescue, of a person or property in the Compliance with requirements for filing initiatory pleadings
custody of an officer by virtue of an order or process of a court If petition for contempt is related to a principal action pending in
held by him court, such shall allege that fact but said petition shall be
a. Example is property preliminary attached property docketed and decided separately
getting it without authorization from the sheriffs
custody Section 5. Where charge to be filed. Where the charge for
indirect contempt has been committed against a Regional Trial
COURT ADJUDGED PRESENT OCCUPANT TO BE NOT ENTITLED Court or a court of equivalent or higher rank, or against an
TO LAND. HE WAS BEING ORDERED TO VACATE. HE REFUSES officer appointed by it, the charge may be filed with such
TO VACATE. WHAT IS THE PROPER REMEDY? court. Where such contempt has been committed against a
Remedy is not to cite him in contempt lower court, the charge may be filed with the Regional Trial
Remedy is to file a motion for execution Court of the place in which the lower court is sitting; but the
Failure to follow the writ of execution, the adverse party may be proceedings may also be instituted in such lower court subject
held in contempt to appeal to the Regional Trial Court of such place in the
same manner as provided in section 11 of this Rule. (4a; Bar
Section 4. How proceedings commenced. Proceedings for Matter No. 803, 21 July 1998)
indirect contempt may be initiated motu propio by the court
against which the contempt was committed by an order or any Section 6. Hearing; release on bail. If the hearing is not
other formal charge requiring the respondent to show cause ordered to be had forthwith, the respondent may be released
why he should not be punished for contempt. from custody upon filing a bond, in an amount fixed by the
court, for his appearance at the hearing of the charge. On
In all other cases, charges for indirect contempt shall be the day set therefor, the court shall proceed to investigate
commenced by a verified petition with supporting particulars the charge and consider such comment, testimony or defense
and certified true copies of documents or papers involved as the respondent may make or offer. (5a)
therein, and upon full compliance with the requirements for
filing initiatory pleadings for civil actions in the court Section 7. Punishment for indirect contempt. If the
concerned. If the contempt charges arose out of or are respondent is adjudged guilty of indirect contempt committed
related to a principal action pending in the court, the petition against a Regional Trial Court or a court of equivalent or
for contempt shall allege that fact but said petition shall be higher rank, he may be punished by a fine not exceeding
docketed, heard and decided separately, unless the court in thirty thousand pesos or imprisonment not exceeding six (6)
its discretion orders the consolidation of the contempt charge months, or both. If he is adjudged guilty of contempt
and the principal action for joint hearing and decision. (n) committed against a lower court, he may be punished by a fine
not exceeding five thousand pesos or imprisonment not
SEPARATE ACTION TO BE FILED FOR INDIRECT CONTEMPT exceeding one (1) month, or both. If the contempt consists in
A verified petition shall be filed with supporting particulars and the violation of a writ of injunction, temporary restraining

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order or status quo order, he may also be ordered to make be suspended until a bond is filed by the person adjudged in
complete restitution to the party injured by such violation of contempt, in an amount fixed by the court from which the
the property involved or such amount as may be alleged and appeal is taken, conditioned that if the appeal be decided
proved. against him he will abide by and perform the judgment or
final order. (10a)
The writ of execution, as in ordinary civil actions, shall issue
for the enforcement of a judgment imposing a fine unless the WHAT IF THE DEFENDANT IS ACQUITTED, IS THERE A REMEDY
court otherwise provides. (6a) AVAILABLE TO THE STATE?
None
Section 8. Imprisonment until order obeyed. When the The state cannot institute proceedings for contempt once again for
contempt consists in the refusal or omission to do an act this will be tantamount to a violation of the right against double
which is yet in the power of the respondent to perform, he jeopardy
may be imprisoned by order of the court concerned until he
performs it. (7a) Section 12. Contempt against quasi-judicial entities. Unless
otherwise provided by law, this Rule shall apply to contempt
Section 9. Proceeding when party released on bail fails to committed against persons, entities, bodies or agencies
answer. When a respondent released on bail fails to appear exercising quasi-judicial functions, or shall have suppletory
on the day fixed for the hearing, the court may issue another effect to such rules as they may have adopted pursuant to
order of arrest or may order the bond for his appearance to authority granted to them by law to punish for contempt. The
be forfeited and confiscated, or both; and, if the bond be Regional Trial Court of the place wherein the contempt has
proceeded against, the measure of damages shall be the been committed shall have jurisdiction over such charges as
extent of the loss or injury sustained by the aggrieved party may be filed therefor. (n)
by reason of the misconduct for which the contempt charge
was prosecuted, with the costs of the proceedings, and such
PROVISIONAL REMEDIES
recovery shall be for the benefit of the party injured. If
RULE 57: PRELIMINARY ATTACHMENT
there is no aggrieved party, the bond shall be liable and
disposed of as in criminal cases. (8a)
ENUMERATION OF PROVISIONAL REMEDIES ARE
Section 10. Court may release respondent. The court which PROVISIONAL FOR VARIOUS REASONS
issued the order imprisoning a person for contempt may This remedy is subject to the outcome of the case (as of a
discharge him from imprisonment when it appears that public preliminary attachment)
interest will not be prejudiced by his release. (9a) Preserve the property pending litigation (as of the provisional
remedy of receivership)
Section 11. Review of judgment or final order; bond for stay. Remedy is intended to preserve or maintain the situation (as of a
The judgment or final order of a court in a case of indirect preliminary injunction)
contempt may be appealed to the proper court as in criminal
cases. But execution of the judgment or final order shall not

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Section 1. Grounds upon which attachment may issue. At the


commencement of the action or at any time before entry of WHEN MAY ONE ASK FOR PRELIMINARY ATTACHMENT?
judgment, a plaintiff or any proper party may have the 1. Commencement of the action
property of the adverse party attached as security for the 2. At any time before the entry of judgment
satisfaction of any judgment that may be recovered in the
following cases: WHAT ARE THE GROUNDS UPON WHICH ATTACHMENT MAY
ISSUE?
(a) In an action for the recovery of a specified amount of 1. In an action for the recovery of a specified amount of money or
money or damages, other than moral and exemplary, on a damages, other than moral and exemplary, on a cause of action
cause of action arising from law, contract, quasi-contract, arising from law, contract, quasi-contract, delict or quasi-delict
delict or quasi-delict against a party who is about to depart against a party who is about to depart from the Philippines with
from the Philippines with intent to defraud his creditors; intent to defraud his creditors;
2. In an action for money or property embezzled or fraudulently
(b) In an action for money or property embezzled or misapplied or converted to his own use by a public officer, or an
fraudulently misapplied or converted to his own use by a officer of a corporation, or an attorney, factor, broker, agent, or
public officer, or an officer of a corporation, or an attorney, clerk, in the course of his employment as such, or by any other
factor, broker, agent, or clerk, in the course of his person in a fiduciary capacity, or for a willful violation of duty;
employment as such, or by any other person in a fiduciary 3. In an action to recover the possession of property unjustly or
capacity, or for a willful violation of duty; fraudulently taken, detained or converted, when the property, or
any part thereof, has been concealed, removed, or disposed of to
(c) In an action to recover the possession of property unjustly prevent its being found or taken by the applicant or an
or fraudulently taken, detained or converted, when the authorized person;
property, or any part thereof, has been concealed, removed, 4. In an action against a party who has been guilty of a fraud in
or disposed of to prevent its being found or taken by the contracting the debt or incurring the obligation upon which the
applicant or an authorized person; action is brought, or in the performance thereof;
5. In an action against a party who has removed or disposed of his
(d) In an action against a party who has been guilty of a property, or is about to do so, with intent to defraud his
fraud in contracting the debt or incurring the obligation upon creditors; or
which the action is brought, or in the performance thereof; 6. In an action against a party who does not reside and is not found
in the Philippines, or on whom summons may be served by
(e) In an action against a party who has removed or disposed publication.
of his property, or is about to do so, with intent to defraud
his creditors; or Section 2. Issuance and contents of order. An order of
attachment may be issued either ex parte or upon motion with
(f) In an action against a party who does not reside and is not notice and hearing by the court in which the action is pending,
found in the Philippines, or on whom summons may be served or by the Court of Appeals or the Supreme Court, and must
by publication. (1a) require the sheriff of the court to attach so much of the

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property in the Philippines of the party against whom it is Section 3. Affidavit and bond required. An order of
issued, not exempt from execution, as may be sufficient to attachment shall be granted only when it appears by the
satisfy the applicant's demand, unless such party makes affidavit of the applicant, or of some other person who
deposit or gives a bond as hereinafter provided in an amount personally knows the facts, that a sufficient cause of action
equal to that fixed in the order, which may be the amount exists, that the case is one of those mentioned in section 1
sufficient to satisfy the applicant's demand or the value of hereof, that there is no other sufficient security for the
the property to be attached as stated by the applicant, claim sought to be enforced by the action, and that the
exclusive of costs. Several writs may be issued at the same amount due to the applicant, or the value of the property the
time to the sheriffs of the courts of different judicial possession of which he is entitled to recover, is as much as
regions. (2a) the sum for which the order is granted above all legal
counterclaims. The affidavit, and the bond required by the
HOW MAY AN ORDER OF ATTACHMENT BE GIVEN? next succeeding section, must be duly filed with the court
1. Ex parte before the order issues. (3a)
2. Motion with notice and hearing
WHAT DOES THE ACCOMPANYING AFFIDAVIT NEED TO
DOESN'T A WRIT OF ATTACHMENT VIOLATE ANY PROPERTY INCLUDE?
RIGHT OF THE DEFENDANT? 1. He has personal knowledge of the facts
No since the natural tendency of defendant is to hide all his 2. There is sufficient cause of action
assets upon notice of the issuance of writ of attachment 3. It falls under those grounds mentioned in Section 1
4. There is no sufficient security for the claim sought to be
WHAT DOES THE ORDER OF ATTACHMENT REQUIRE? enforced by the action
It must require the sheriff of the court to attach so much of
the property in the Philippines of the party against whom it is ORDER OF ATTACHMENT V. WRIT OF ATTACHMENT
issued, not exempt from execution, as may be sufficient to Order approves your application but without the bond being
satisfy the applicant's demand posted, there will be no enforcement
Writ of attachmentproviding the execution or implementation
WHAT CAN THE DEFENDANT DO TO PREVENT THE ATTACHMENT of the attachment
OF HIS PROPERTIES?
The defendant makes a deposit or gives a bond as hereinafter in Section 4. Condition of applicant's bond. The party applying
an amount equal to that fixed in the order, which may be the for the order must thereafter give a bond executed to the
amount sufficient to satisfy the applicants demand or the value adverse party in the amount fixed by the court in its order
of the property to be attached as stated by the applicant, granting the issuance of the writ, conditioned that the latter
exclusive of costs will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of the
N.B: The writ of preliminary attachment may be enforced anywhere in attachment, if the court shall finally adjudge that the
the Philippines, where the property of the defendant may be found. applicant was not entitled thereto. (4a)

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WHAT IS THE CONDITION SET FOR THE APPLICANTS BOND IN by the party against whom attachment is issued, and serve
CASE OF NON-ISSUANCE OF WRIT? copies thereof on the applicant. (6a)
The bond shall cover all the costs which may be adjudged to the
adverse party and all damages which he may sustain by reason Section 7. Attachment of real and personal property;
of the attachment recording thereof. Real and personal property shall be
attached by the sheriff executing the writ in the following
Section 5. Manner of attaching property. The sheriff manner:
enforcing the writ shall without delay and with all reasonable
diligence attach, to await judgment and execution in the (a) Real property, or growing crops thereon, or any interest
action, only so much of the property in the Philippines of the therein, standing upon the record of the registry of deeds of
party against whom the writ is issued, not exempt from the province in the name of the party against whom
execution, as may be sufficient to satisfy the applicant's attachment is issued, or not appearing at all upon such
demand, unless the former makes a deposit with the court records, or belonging to the party against whom attachment is
from which the writ is issued, or gives a counter-bond issued and held by any other person, or standing on the
executed to the applicant, in an amount equal to the bond records of the registry of deeds in the name of any other
fixed by the court in the order of attachment or to the value person, by filing with the registry of deeds a copy of the
of the property to be attached, exclusive of costs. No levy on order, together with a description of the property attached,
attachment pursuant to the writ issued under section 2 hereof and a notice that it is attached, or that such real property
shall be enforced unless it is preceded, or contemporaneously and any interest therein held by or standing in the name of
accompanied, by service of summons, together with a copy of such other person are attached, and by leaving a copy of such
the complaint, the application for attachment the applicant's order, description, and notice with the occupant of the
affidavit and bond, and the order and writ of attachment, on property, if any, or with such other person or his agent if
the defendant within the Philippines. found within the province. Where the property has been
brought under the operation of either the Land Registration
The requirement of prior or contemporaneous service of Act or the Property Registration Decree, the notice shall
summons shall not apply where the summons could not be contain a reference to the number of the certificate of title,
served personally or by substituted service despite diligent the volume and page in the registration book where the
efforts, or the defendant is a resident of the Philippines certificate is registered, and the registered owner or owners
temporarily absent therefrom, or the defendant is a non- thereof.
resident of the Philippines, or the action is one in rem or
quasi in rem. (5a) The registrar of deeds must index attachments filed under
this section in the names of the applicant, the adverse party,
Section 6. Sheriff's return. After enforcing the writ, the or the person by whom the property is held or in whose name
sheriff must likewise without delay make a return thereon to it stands in the records. If the attachment is not claimed on
the court from which the writ issued, with a full statement of the entire area of the land covered by the certificate of
his proceedings under the writ and a complete inventory of title, a description sufficiently accurate for the identification
the property attached, together with any counter-bond given

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of the land or interest to be affected shall be included in the court or quasi-judicial agency, and notice of the attachment
registration of such attachment; served upon the custodian of such property. (7a)

(b) Personal property capable of manual delivery, by taking Section 8. Effect of attachment of debts, credits and all
and safely keeping it in his custody, after issuing the other similar personal property. All persons having in their
corresponding receipt therefor. possession or under their control any credits or other similar
personal property belonging to the party against whom
(c) Stocks or shares, or an interest in stocks or shares, of any attachment is issued, or owing any debts to him, at the time
corporation or company, by leaving with the president or of service upon them of the copy of the writ of attachment
managing agent thereof, a copy of the writ, and a notice and notice as provided in the last preceding section, shall be
stating that the stock or interest of the party against whom liable to the applicant for the amount of such credits, debts
the attachment is issued is attached in pursuance of such or other similar personal property, until the attachment is
writ; discharged, or any judgment recovered by him is satisfied,
unless such property is delivered or transferred, or such debts
(d) Debts and credits, including bank deposits, financial are paid, to the clerk, sheriff, or other proper officer of the
interest, royalties, commissions and other personal property court issuing the attachment. (8a)
not capable of manual delivery, by leaving with the person
owing such debts, or having in his possession or under his Section 9. Effect of attachment of interests in property
control, such credits or other personal property, or with his belonging to the estate of a decedent. The attachment of
agent, a copy of the writ, and notice that the debts owing by the interest of an heir, legatee, or devisee in the property
him to the party against whom attachment is issued, and the belonging to the estate of a decedent shall not impair the
credits and other personal property in his possession, or under powers of the executor, administrator, or other personal
his control, belonging to said party, are attached in pursuance representative of the decedent over such property for the
of such writ; purpose of administration. Such personal representative,
however, shall report the attachment to the court when any
(e) The interest of the party against whom attachment is petition for distribution is filed, and in the order made upon
issued in property belonging to the estate of the decedent, such petition, distribution may be awarded to such heir,
whether as heir, legatee, or devisee, by serving the executor legatee or devisee, but the property attached shall be
or administrator or other personal representative of the ordered delivered to the sheriff making the levy, subject to
decedent with a copy of the writ and notice that said interest the claim of such heir, legatee, or devisee, or any person
is attached. A copy of said writ of attachment and of said claiming under him. (9a)
notice shall also be filed in the office of the clerk of the
court in which said estate is being settled and served upon Section 10. Examination of party whose property is attached
the heir, legatee or devisee concerned. and persons indebted to him or controlling his property;
delivery of property to sheriff. Any person owing debts to
If the property sought to be attached is in custodia legis, a the party whose property is attached or having in his
copy of the writ of attachment shall be filed with the proper possession or under his control any credit or other personal

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property belonging to such party, may be required to attend court. In either case, the cash deposit or the counter-bond
before the court in which the action is pending, or before a shall secure the payment of any judgment that the attaching
commissioner appointed by the court, and be examined on oath party may recover in the action. A notice of the deposit shall
respecting the same. The party whose property is attached forthwith be served on the attaching party. Upon the
may also be required to attend for the purpose of giving discharge of an attachment in accordance with the provisions
information respecting his property, and may be examined on of this section, the property attached, or the proceeds of any
oath. The court may, after such examination, order personal sale thereof, shall be delivered to the party making the
property capable of manual delivery belonging to him, in the deposit or giving the counter-bond, or to the person appearing
possession of the person so required to attend before the on his behalf, the deposit or counter-bond aforesaid standing
court, to be delivered to the clerk of the court or sheriff on in place of the property so released. Should such counter-
such terms as may be just, having reference to any lien bond for any reason be found to be or become insufficient,
thereon or claim against the same, to await the judgment in and the party furnishing the same fail to file an additional
the action. (10a) counter-bond, the attaching party may apply for a new order
of attachment. (12a)
Section 11. When attached property may be sold after levy on
attachment and before entry of judgment. Whenever it shall Section 13. Discharge of attachment on other grounds. The
be made to appear to the court in which the action is pending, party whose property has been ordered attached may file a
upon hearing with notice to both parties, that the property motion with the court in which he action is pending, before or
attached is perishable, or that the interests of all the parties after levy or even after the release of the attached
to the action will be subserved by the sale thereof, the court property, for an order to set aside or discharge the
may order such property to be sold at public auction in such attachment on the ground that the same was improperly or
manner as it may direct, and the proceeds of such sale to be irregularly issued or enforced, or that the bond is insufficient.
deposited in court to abide the judgment in the action. (11a) If the attachment is excessive, the discharge shall be limited
to the excess. If the motion be made on affidavits on the part
Section 12. Discharge of attachment upon giving counter-bond. of the movant but not otherwise, the attaching party may
After a writ of attachment has been enforced, the party oppose the motion by counter-affidavits or other evidence in
whose property has been attached, or the person appearing on addition to that on which the attachment was made. After due
his behalf, may move for the discharge of the attachment notice and hearing, the court shall order the setting aside or
wholly or in part on the security given. The court shall, after the corresponding discharge of the attachment if it appears
due notice and hearing, order the discharge of the attachment that it was improperly or irregularly issued or enforced, or
if the movant makes a cash deposit, or files a counter-bond that the bond is insufficient, or that the attachment is
executed to the attaching party with the clerk of the court excessive, and the defect is not cured forthwith. (13a)
where the application is made, in an amount equal to that
fixed by the court in the order of attachment, exclusive of Section 14. Proceedings where property claimed by third
costs. But if the attachment is sought to be discharged with person. If the property attached is claimed by any person
respect to a particular property, the counter-bond shall be other than the party against whom attachment had been
equal to the value of that property as determined by the issued or his agent, and such person makes an affidavit of his

BY: MA. ANGELA LEONOR C. AGUINALDO


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title thereto, or right to the possession thereof, stating the The plaintiff shall be required to post a bond to indemnify third
grounds of such right or title, and serves such affidavit upon party in case it turns out she is the real owner of the property
the sheriff while the latter has possession of the attached and to protect the sheriff
property, and a copy thereof upon the attaching party, the
sheriff shall not be bound to keep the property under Section 15. Satisfaction of judgment out of property attached,
attachment, unless the attaching party or his agent, on return of sheriff. If judgment be recovered by the attaching
demand of the sheriff, shall file a bond approved by the court party and execution issue thereon, the sheriff may cause the
to indemnify the third-party claimant in a sum not less than judgment to be satisfied out of the property attached, if it
the value of the property levied upon. In case of disagreement be sufficient for that purpose in the following manner:
as to such value, the same shall be decided by the court
issuing the writ of attachment. No claim for damages for the (a) By paying to the judgment obligee the proceeds of all
taking or keeping of the property may be enforced against the sales of perishable or other property sold in pursuance of the
bond unless the action therefor is filed within one hundred order of the court, or so much as shall be necessary to
twenty (120) days from the date of the filing of the bond. satisfy the judgment;

The sheriff shall not be liable for damages for the taking or (b) If any balance remains due, by selling so much of the
keeping of such property to any such third-party claimant, if property, real or personal, as may be necessary to satisfy the
such bond shall be filed. Nothing herein contained shall balance, if enough for that purpose remain in the sheriff's
prevent such claimant or any third person from vindicating his hands, or in those the clerk of the court;
claim to the property, or prevent the attaching party from
claiming damages against a third-party claimant who filed a (c) By collecting from all persons having in their possession
frivolous or plainly spurious claim, in the same or a separate credits belonging to the judgment obligor, or owing debts to
action. the latter at the time of the attachment of such credits or
debts, the amount of such credits and debts as determined by
When the writ of attachment is issued in favor of the the court in the action, and stated in the judgment, and
Republic of the Philippines, or any officer duly representing paying the proceeds of such collection over to the judgment
it, the filing of such bond shall not be required, and in case obligee.
the sheriff is sued for damages as a result of the attachment,
he shall be represented by the Solicitor General, and if held The sheriff shall forthwith make a return in writing to the
liable therefor, the actual damages adjudged by the court court of his proceedings under this section and furnish the
shall be paid by the National Treasurer out of the funds to be parties with copies thereof. (15a)
appropriated for the purpose. (14a)
HOW SHOULD THE SHERIFF SATISFY THE JUDGMENT OUT OF
WHAT HAPPENS IF A THIRD PARTY CLAIMS OWNERSHIP OF THE ATTACHED PROPERTY?
THE PROPERTY ATTACHED? 1. By paying to the judgment obligee the proceeds of all sales of
Sheriff shall not be bound to keep the property subject of perishable or other property sold in pursuance of the order of
attachment

BY: MA. ANGELA LEONOR C. AGUINALDO


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the court, or so much as shall be necessary to satisfy the instead of giving counter-bond, it shall be applied under the
judgment (sale at public auction) direction of the court to the satisfaction of any judgment
2. If any balance remains due, by selling so much of the property, rendered in favor of the attaching party, and after satisfying
real or personal, as may be necessary to satisfy the balance, if the judgment the balance shall be refunded to the depositor
enough for that purpose remain in the sheriff's hands, or in or his assignee. If the judgment is in favor of the party
those the clerk of the court; against whom attachment was issued, the whole sum deposited
3. By collecting from all persons having in their possession credits must be refunded to him or his assignee. (18a)
belonging to the judgment obligor, or owing debts to the latter
at the time of the attachment of such credits or debts, the Section 19. Disposition of attached property where judgment
amount of such credits and debts as determined by the court in is for party against whom attachment was issued. If
the action, and stated in the judgment, and paying the proceeds judgment be rendered against the attaching party, all the
of such collection over to the judgment obligee. proceeds of sales and money collected or received by the
sheriff, under the order of attachment, and all property
Section 16. Balance due collected upon an execution; excess attached remaining in any such officer's hands, shall be
delivered to judgment obligor. If after realizing upon all the delivered to the party against whom attachment was issued,
property attached, including the proceeds of any debts or and the order of attachment discharged. (19a)
credits collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of proceedings Section 20. Claim for damages on account of improper,
upon the judgment any balance shall remain due, the sheriff irregular or excessive attachment. An application for
must proceed to collect such balance as upon ordinary damages on account of improper, irregular or excessive
execution. Whenever the judgment shall have been paid, the attachment must be filed before the trial or before appeal is
sheriff, upon reasonable demand, must return to the judgment perfected or before the judgment becomes executory, with
obligor the attached property remaining in his hands, and any due notice to the attaching party and his surety or sureties
proceeds of the sale of the property attached not applied to setting forth the facts showing his right to damages and the
the judgment. (16a) amount thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment on the
Section 17. Recovery upon the counter-bond. When the main case.
judgment has become executory, the surety or sureties on any
counter-bond given pursuant to the provisions of this Rule to If the judgment of the appellate court be favorable to the
secure the payment of the judgment shall become charged on party against whom the attachment was issued he must claim
such counter-bond and bound to pay the judgment obligee damages sustained during the pendency of the appeal by filing
upon demand the amount due under the judgment, which an application in the appellate court, with notice to the party
amount may be recovered from such surety or sureties after in whose favor the attachment was issued or his surety or
notice and summary hearing in the same action. (17a) sureties, before the judgment of the appellate court becomes
executory. The appellate court may allow the application to
Section 18. Disposition of money deposited. Where the party be heard and decided by the trial court.
against whom attachment had been issued has deposited money

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Nothing herein contained shall prevent the party against whom It doesn't follow automatically that if an action has been
the attachment was issued from recovering in the same action dismissed, there was irregular or improper attachment and
the damages awarded to him from any property of the automatic entitlement for damages
attaching party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to fully WHAT IF A COUNTERBOND IS POSTED AND THE PLAINTIFF
satisfy the award. (20a) WINS?
The plaintiff will go after the bondsman
WHAT SHALL DEFENDANT DO IN CASE THERE IS FINDING OF The bondsman is not given any opportunity to defend himself
IMPROPER ATTACHMENT? regarding the claim as the counterbond was the substitute for
File the claim with the same court the initially attached property
The bonding company shall be ordered to pay damages to the
defendant and it shall be allowed to be heard and raise defenses
regarding claim

PRELIMINARY ATTACHMENT
Concept Grounds Procedure Requirements Manner of How to Discharge
Attachment
Security 1. In an action for the recovery of a When? Affidavit and For real propertythe Post a counter-bond to
specified amount of money or damages, 1. Commencement of bond sheriff will go the RD automatically release the
other than moral and exemplary, on a action of the place where property but not release
cause of action arising from law, 2. During the property is located the attachment. When
contract, quasi-contract, delict or proceedings and will present the you are posting a
quasi-delict against a party who is before entry of writ and notice counter-bond, you are
about to depart from the Philippines judgment showing the property simply replacing the
with intent to defraud his creditors; is being levied for attached property with
2. In an action for money or property How? attachment. An the bond.
embezzled or fraudulently misapplied 1. Ex parte annotation shall be
or converted to his own use by a public 2. Motion placed on the To attack or challenge
officer, or an officer of a corporation, certificate of title. the very propriety of the
or an attorney, factor, broker, agent, Where? attachment itself. You
or clerk, in the course of his 1. The court where For personal property will allege that the
employment as such, or by any other the case is capable of manual attachment was
person in a fiduciary capacity, or for a pending deliverythe sheriff improperly issued or
willful violation of duty; 2. Court of Appeals takes custody of the enforced. If you file a
3. In an action to recover the possession 3. Supreme Court personal property. motion to discharge the
of property unjustly or fraudulently attachment on the ground

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taken, detained or converted, when the How long will the For personal property of improper issuance, you
property, or any part thereof, has attachment subsist? not capable of manual are attacking the
been concealed, removed, or disposed of As long as the case deliveryby delivering issuance.
to prevent its being found or taken by subsists and until the writ and notice of *Note there is nothing
the applicant or an authorized person; judgment is satisfied. attachment to proper inconsistent with filing a
4. In an action against a party who has official counterbond and motion to
been guilty of a fraud in contracting Where can the discharge the attachment.
the debt or incurring the obligation attachment be Interest in estate of
upon which the action is brought, or in enforced? deceased person When the plaintiff loses
the performance thereof; It can be enforced notice and writ served in the main action. The
5. In an action against a party who has anywhere in the on executor or dismissal of the main
removed or disposed of his property, or Philippines where the administrator action automatically
is about to do so, with intent to properties of the brings with it the
defraud his creditors; or defendant can be *Levythe sheriff sets dissolution of the
6. In an action against a party who does located. aside the property preliminary attachment.
not reside and is not found in the that may be used to
Philippines, or on whom summons may satisfy the judgment.
be served by publication. If what is garnished is
money, then this
money will be
delivered and used to
pay the obligation
itself. Usage to pay
the obligation itself
but this however is not
all the time.

Issuance and
enforcement
Issuance may be done
ex parte. This is to
avoid the defendant to
hide his property.
Enforcement however
needs preliminaries like
serving of summons,
etc., otherwise, there

BY: MA. ANGELA LEONOR C. AGUINALDO


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will be irregular
attachment and can be
discharged.

(b) That the commission, continuance or non-performance of


the act or acts complained of during the litigation would
RULE 58: PRELIMINARY INJUNCTION
probably work injustice to the applicant; or

Section 1. Preliminary injunction defined; classes. A (c) That a party, court, agency or a person is doing,
preliminary injunction is an order granted at any stage of an threatening, or is attempting to do, or is procuring or
action or proceeding prior to the judgment or final order, suffering to be done some act or acts probably in violation of
requiring a party or a court, agency or a person to refrain the rights of the applicant respecting the subject of the
from a particular act or acts. It may also require the action or proceeding, and tending to render the judgment
performance of a particular act or acts, in which case it shall ineffectual. (3a)
be known as a preliminary mandatory injunction. (1a)
WHAT ARE THE GROUNDS FOR THE ISSUANCE OF A
CLASSES OF PRELIMINARY INJUNCTION PRELIMINARY INJUNCTION?
1. Requiring a party or a court, agency or person to refrain from a 1. That the applicant is entitled to the relief demanded, and the
particular act or acts whole or part of such relief consists in restraining the
2. Requiring performance of a particular act or actspreliminary commission or continuance of the act or acts complained of, or in
mandatory injunction requiring the performance of an act or acts either for a limited
period or perpetually (Complaint needs to be verified if the
Section 2. Who may grant preliminary injunction. A application for preliminary injunction is already included therein)
preliminary injunction may be granted by the court where the 2. That the commission, continuance or non-performance of the act
action or proceeding is pending. If the action or proceeding is or acts complained of during the litigation would probably work
pending in the Court of Appeals or in the Supreme Court, it injustice to the applicant
may be issued by said court or any member thereof. (2a) 3. That a party, court, agency or a person is doing, threatening, or
is attempting to do, or is procuring or suffering to be done some
Section 3. Grounds for issuance of preliminary injunction. A act or acts probably in violation of the rights of the applicant
preliminary injunction may be granted when it is established: respecting the subject of the action or proceeding, and tending
to render the judgment ineffectual.
(a) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the HOW CAN A COURT BE RESPONDENT TO AN ACTION FOR
commission or continuance of the act or acts complained of, or PRELIMINARY INJUNCTION?
in requiring the performance of an act or acts either for a An example is when the court takes cognizance of a real action
limited period or perpetually; to which it is the improper venue (remember that if title or
ownership is not an issue in a case, it is not a real action)

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defendant moves for the dismissal of the case but it is denied. therefrom or is a nonresident thereof, the requirement of
The defendant can file petition for certiorari or mandamus case, prior or contemporaneous service of summons shall not apply.
which includes for an application for the issuance of temporary
restraining order or preliminary injunction (d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in a
Section 4. Verified application and bond for preliminary summary hearing which shall be conducted within twenty-four
injunction or temporary restraining order. A preliminary (24) hours after the sheriff's return of service and/or the
injunction or temporary restraining order may be granted only records are received by the branch selected by raffle and to
when: which the records shall be transmitted immediately.

(a) The application in the action or proceeding is verified, and VERIFIED APPLICATION AND BOND NEEDED.
shows facts entitling the applicant to the relief demanded; 1. The application in the action or proceeding is verified, and shows
and facts entitling the applicant to the relief demanded; and
2. Unless exempted by the court the applicant files with the court
(b) Unless exempted by the court the applicant files with the where the action or proceeding is pending, a bond executed to
court where the action or proceeding is pending, a bond the party or person enjoined, in an amount to be fixed by the
executed to the party or person enjoined, in an amount to be court, to the effect that the applicant will pay to such party or
fixed by the court, to the effect that the applicant will pay person all damages which he may sustain by reason of the
to such party or person all damages which he may sustain by injunction or temporary restraining order if the court should
reason of the injunction or temporary restraining order if the finally decide that the applicant was not entitled thereto. Upon
court should finally decide that the applicant was not entitled approval of the requisite bond, a writ of preliminary injunction
thereto. Upon approval of the requisite bond, a writ of shall be issued. (4a)
preliminary injunction shall be issued. (4a) 3. When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
(c) When an application for a writ of preliminary injunction or initiatory pleading, the case, if filed in a multiple-sala court,
a temporary restraining order is included in a complaint or any shall be raffled only after notice to and in the presence of the
initiatory pleading, the case, if filed in a multiple-sala court, adverse party or the person to be enjoined. In any event, such
shall be raffled only after notice to and in the presence of notice shall be preceded, or contemporaneously accompanied, by
the adverse party or the person to be enjoined. In any event, service of summons, together with a copy of the complaint or
such notice shall be preceded, or contemporaneously initiatory pleading and the applicant's affidavit and bond, upon
accompanied, by service of summons, together with a copy of the adverse party in the Philippines.
the complaint or initiatory pleading and the applicant's
affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or
by substituted service despite diligent efforts, or the adverse
However, where the summons could not be served personally or party is a resident of the Philippines temporarily absent
by substituted service despite diligent efforts, or the adverse therefrom or is a nonresident thereof, the requirement of prior
party is a resident of the Philippines temporarily absent or contemporaneous service of summons shall not apply.

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4. The application for a temporary restraining order shall restraining order shall be extended until the application for
thereafter be acted upon only after all parties are heard in a preliminary injunction can be heard. In no case shall the total
summary hearing which shall be conducted within twenty-four period of effectivity of the temporary restraining order
(24) hours after the sheriff's return of service and/or the exceed twenty (20) days, including the original seventy-two
records are received by the branch selected by raffle and to hours provided herein.
which the records shall be transmitted immediately.
In the event that the application for preliminary injunction is
Section 5. Preliminary injunction not granted without notice; denied or not resolved within the said period, the temporary
exception. No preliminary injunction shall be granted without restraining order is deemed, automatically vacated. The
hearing and prior notice to the party or person sought to be effectivity of a temporary restraining order is not extendible
enjoined. If it shall appear from facts shown by affidavits or without need of any judicial declaration to that effect and no
by the verified application that great or irreparable injury court shall have authority to extend or renew the same on
would result to the applicant before the matter can be heard the same ground for which it was issued.
on notice, the court to which the application for preliminary
injunction was made, may issue a temporary restraining order However, if issued by the Court of Appeals or a member
to be effective only for a period of twenty (20) days from thereof, the temporary restraining order shall be effective
service on the party or person sought to be enjoined, except for sixty (60) days from service on the party or person sought
as herein provided. Within the said twenty-day period, the to be enjoined. A restraining, order issued by the Supreme
court must order said party or person to show cause, at a Court or a member thereof shall be effective until further
specified time and place, why the injunction should not be orders. (5a)
granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue REMEMBER!!!
the corresponding order. (Bar Matter No. 803, 17 February 1. Temporary restraining order issued with hearing20 days validity
1998) and within this period, the adverse party must show cause why
the court shouldn't issue a writ of preliminary injunction
However, and subject to the provisions of the preceding 2. Ex parte issuance of preliminary injunction72 hours validity and
sections, if the matter is of extreme urgency and the within this period, the adverse party must show cause why the
applicant will suffer grave injustice and irreparable injury, court shouldn't issue a writ of preliminary injunction. Such writ
the executive judge of a multiple-sala court or the presiding if granted shall not exceed 20 day validity, which includes in
judge of a single sala court may issue ex parte a temporary counting the 72-hours
restraining order effective for only seventy-two (72) hours 3. Writ of preliminary injunction issued by the
from issuance but he shall immediately comply with the Court of Appeals60 days validity
provisions of the next preceding section as to service of
summons and the documents to be served therewith. Section 6. Grounds for objection to, or for motion of
Thereafter, within the aforesaid seventy-two (72) hours, the dissolution of, injunction or restraining order. The application
judge before whom the case is pending shall conduct a for injunction or restraining order may be denied, upon a
summary hearing to determine whether the temporary showing of its insufficiency. The injunction or restraining

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order may also be denied, or, if granted, may be dissolved, on sufficient in amount with sufficient sureties approved after
other grounds upon affidavits of the party or person enjoined, justification is not filed forthwith the injunction shall be
which may be opposed by the applicant also by affidavits. It dissolved. If the bond of the adverse party is found to be
may further be denied, or if granted, may be dissolved, if it insufficient in amount, or the surety or sureties thereon fail
appears after hearing that although the applicant is entitled to justify a bond sufficient in amount with sufficient sureties
to the injunction or restraining order, the issuance or approved after justification is not filed forthwith, the
continuance thereof, as the case may be, would cause injunction shall be granted or restored, as the case may be.
irreparable damage to the party or person enjoined while the (8a)
applicant can be fully compensated for such damages as he
may suffer, and the former files a bond in an amount fixed by Section 8. Judgment to include damages against party and
the court conditioned that he will pay all damages which the sureties. At the trial, the amount of damages to be awarded
applicant may suffer by the denial or the dissolution of the to either party, upon the bond of the adverse party, shall be
injunction or restraining order. If it appears that the extent claimed, ascertained, and awarded under the same procedure
of the preliminary injunction or restraining order granted is prescribed in section 20 of Rule 57. (9a)
too great, it may be modified. (6a)
Section 9. When final injunction granted. If after the trial
Section 7. Service of copies of bonds; effect of disapproval of of the action it appears that the applicant is entitled to have
same. The party filing a bond in accordance with the the act or acts complained of permanently enjoined the court
provisions of this Rule shall forthwith serve a copy of such shall grant a final injunction perpetually restraining the party
bond on the other party, who may except to the sufficiency of or person enjoined from the commission or continuance of the
the bond, or of the surety or sureties thereon. If the act or acts of confirming the preliminary mandatory
applicant's bond is found to be insufficient in amount, or if injunction. (10a)
the surety or sureties thereon fail to justify, and a bond

PRELIMINARY INJUNCTION
Concept Grounds Procedure Requirements How to dissolve
Prohibitory 1. That the applicant is entitled to the When? 1. Affidavit containing facts You may file a motion for
relief demanded, and the whole or Commencement of action or during which justify issuance of the dissolution of the
Mandatory part of such relief consists in pendency of case before entry of preliminary injunction preliminary injunction
restraining the commission or judgment 2. Bond 1. Application is
continuance of the act or acts (same concept as preliminary insufficient
complained of, or in requiring the Where? attachment) 2. Grounds cited fail to
performance of an act or acts either 1. Court where the case is support claim for
for a limited period or perpetually; pending *Note: Bond will come in preliminary injunction
2. That the commission, continuance or 2. Court of Appeals later. What is important is 3. Bond put up is
non-performance of the act or acts 3. Supreme Court to secure first the order insufficient

BY: MA. ANGELA LEONOR C. AGUINALDO


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complained of during the litigation approving application for


would probably work injustice to the Manner of procuring: issuance of preliminary Posting of a counterbond
applicant; or 1. General rule: no preliminary injunction. The amount of doesn't automatically result
3. That a party, court, agency or a injunction shall be granted the bond shall be stated in to the dissolution of
person is doing, threatening, or is unless there is notice and the order. preliminary injunction. For
attempting to do, or is procuring or hearing dissolution to happen, it
suffering to be done some act or 2. Before the raffling of the Upon securing of bond, the should be shown that there
acts probably in violation of the application for temporary writ of preliminary injunction will be greater irreparable
rights of the applicant respecting restraining order, notice shall shall be issued. damage to the defendant
the subject of the action or be served to the defendant even if applicant is entitled
proceeding, and tending to render the 3. Summary hearing shall be to the injunction (Doctrine
judgment ineffectual. (3a) conducted unless it can be of Relative Inconvenience)
shown that there will be
grave injustice or irreparable
damage

REMEMBER:
1. Temporary restraining order
issued with hearing20 days
validity and within this
period, the adverse party
must show cause why the
court shouldn't issue a writ of
preliminary injunction
2. Ex parte issuance of
preliminary injunction72
hours validity and within this
period, the adverse party
must show cause why the
court shouldn't issue a writ of
preliminary injunction. Such
writ if granted shall not
exceed 20 day validity, which
includes in counting the 72-
hours
3. Writ of preliminary injunction
issued by the

BY: MA. ANGELA LEONOR C. AGUINALDO


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Court of Appeals60 days


validity
4. Restraining order issued by
the SCunlimited lifetime

3. In practice, if the court cannot resolve the issuance of the


NOTES: preliminary injunction, the parties enter into a gentlemans
Temporary restraining order is a species of the preliminary agreement for status quo
prohibitory injunction. There is no counterpart with respect to
the preliminary mandatory injunction. This is cured in some BASIC PRINCIPLES WITH RESPECT TO INJUNCTION
instancesfor example, during ejectment cases wherein the (as enunciated in cases involving preliminary injunction)
plaintiff can fastly ask for a preliminary mandatory injunction to 1. The applicant must show that he has a legal right for the relief
have status quo ante especially in cases there is apparent no prayed for
color of title on the part of the defendant. a. An owner of a particular house seeks to enjoin the
closure of a particular gate owned by another. For the
RUNDOWN ON THE STEPS ON SECURING A PRELIMINARY court to grant the injunction, he must prove that he
INJUNCTION has a legal right for the non-closure of the particular
1. Verified complaint with application for the issuance of the gate. He may show that the closure of the gate will
temporary restraining order or preliminary injunction. inconvenience him in entering the subdivision. Whether
2. In case you need immediate relief (for example, you need to the court will find this as entitlement to the non-
immediately enjoin the foreclosure sale), in addition with the closure of the gate will depend on the evidence
aforementioned application, you need to convince the executive presented. The court may hold that the closure will
judge of the court to issue a 72-hour TRO (ex parte). He may benefit the community more.
be convinced due to extreme urgency and applicant may suffer 2. Injunction may not be used to take away property from another
grave injustice and irreparable injury. The executive judge must and deliver it another whose title is not so clear
comply with the requirements a. This happens only in ejectment cases wherein the
a. Notice of raffle to the defendant and together with person holding the party is evidently without title of
this are the summons, copy of the complaint, etc. property
b. The branch to which it is raffled must conduct a 3. Consummated acts can no longer be enjoined
summary hearing for the issuance of the TRO-proper 4. Injunctions cannot be used to restrain criminal prosecutions
applicant must convince the court for the issuance of a 5. There are certain laws which actually prohibit the issuance of
restraining order and if granted, will subsist for 20 preliminary injunctions and restraining orders
days. If the 72-hour TRO was issued, it shall be valid a. NIRC
for only 17 days. b. RA8975it provides that courts have no jurisdiction to
c. Hearing for issuance of a preliminary injunction issue injunctions and restraining orders in the
implementation of national government projects

BY: MA. ANGELA LEONOR C. AGUINALDO


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c. Implementation of the Comprehensive Agrarian Reform


Law (c) After judgment, to preserve the property during the
d. Foreclosure of real estate mortgages (March 10, 2007 pendency of an appeal, or to dispose of it according to the
AM 99-10-05-0)for issuance of injunction or judgment, or to aid execution when the execution has been
restraining order be warranted for reasons of payment returned unsatisfied or the judgment obligor refuses to apply
of loan, one must attach receipt or evidence of payment his property in satisfaction of the judgment, or otherwise to
carry the judgment into effect;
RULE 59: RECEIVERSHIP
(d) Whenever in other cases it appears that the appointment
of a receiver is the most convenient and feasible means of
RECEIVER preserving, administering, or disposing of the property in
He will receive the property or money subject of the litigation litigation.
He is a neutral party to the case and is an officer appointed by
the court During the pendency of an appeal, the appellate court may
Property is delivered to him to conserve, preserve or dispose the allow an application for the appointment of a receiver to be
property filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court. (1a)
Section 1. Appointment of receiver. Upon a verified
application, one or more receivers of the property subject of GROUNDS FOR APPOINTMENT OF A RECEIVER
the action or proceeding may be appointed by the court where 1. When it appears from the verified application, and such other
the action is pending or by the Court of Appeals or by the proof as the court may require, that the party applying for the
Supreme Court, or a member thereof, in the following cases: appointment of a receiver has an interest in the property or
fund which is the subject of the action or proceeding, and that
(a) When it appears from the verified application, and such such property or fund is in danger of being lost, removed, or
other proof as the court may require, that the party applying materially injured unless a receiver be appointed to administer
for the appointment of a receiver has an interest in the and preserve it;
property or fund which is the subject of the action or 2. When it appears in an action by the mortgagee for the
proceeding, and that such property or fund is in danger of foreclosure of a mortgage that the property is in danger of
being lost, removed, or materially injured unless a receiver be being wasted or dissipated or materially injured, and that its
appointed to administer and preserve it; value is probably insufficient to discharge the mortgage debt, or
that the parties have so stipulated in the contract of mortgage;
(b) When it appears in an action by the mortgagee for the 3. After judgment, to preserve the property during the pendency
foreclosure of a mortgage that the property is in danger of of an appeal, or to dispose of it according to the judgment, or to
being wasted or dissipated or materially injured, and that its aid execution when the execution has been returned unsatisfied
value is probably insufficient to discharge the mortgage debt, or the judgment obligor refuses to apply his property in
or that the parties have so stipulated in the contract of satisfaction of the judgment, or otherwise to carry the
mortgage; judgment into effect;

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4. Whenever in other cases it appears that the appointment of a the receiver's bond is found to be insufficient in amount, or if
receiver is the most convenient and feasible means of preserving, the surety or sureties thereon fail to justify, and a bond
administering, or disposing of the property in litigation. sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the application shall be
Section 2. Bond on appointment of receiver. Before issuing denied or the receiver discharged, as the case may be. If the
the order appointing a receiver the court shall require the bond of the adverse party is found to be insufficient in
applicant to file a bond executed to the party against whom amount or the surety or sureties thereon fail to justify, and a
the application is presented, in an amount to be fixed by the bond sufficient in amount with sufficient sureties approved
court, to the effect that the applicant will pay such party all after justification is not filed forthwith, the receiver shall be
damages he may sustain by reason of the appointment of such appointed or re-appointed, as the case may be. (6a)
receiver in case the applicant shall have procured such
appointment without sufficient cause; and the court may, in Section 6. General powers of receiver. Subject to the control
its discretion, at any time after the appointment, require an of the court in which the action or proceeding is pending a
additional bond as further security for such damages. (3a) receiver shall have the power to bring and defend, in such
capacity, actions in his own name; to take and keep possession
Section 3. Denial of application or discharge of receiver. The of the property in controversy; to receive rents; to collect
application may be denied, or the receiver discharged, when debts due to himself as receiver or to the fund, property,
the adverse party files a bond executed to the applicant, in estate, person, or corporation of which he is the receiver; to
an amount to be fixed by the court, to the effect that such compound for and compromise the same; to make transfers; to
party will pay the applicant all damages he may suffer by pay outstanding debts; to divide the money and other property
reason of the acts, omissions, or other matters specified in that shall remain among the persons legally entitled to
the application as ground for such appointment. The receiver receive the same; and generally to do such acts respecting
may also be discharged if it is shown that his appointment was the property as the court may authorize. However, funds in
obtained without sufficient cause. (4a) the hands of a receiver may be invested only by order of the
court upon the written consent of all the parties to the
Section 4. Oath and bond of receiver. Before entering upon action. (7a)
his duties, the receiver shall be sworn to perform them
faithfully, and shall file a bond, executed to such person and No action may be filed by or against a receiver without leave
in such sum as the court may direct, to the effect that he of the court which appointed him. (n)
will faithfully discharge his duties in the action or proceeding
and obey the orders of the court. (5a) Section 7. Liability for refusal or neglect to deliver property
to receiver. A person who refuses or neglects, upon
Section 5. Service of copies of bonds; effect of disapproval of reasonable demand, to deliver to the receiver all the
same. The person filing a bond in accordance with the property, money, books, deeds, notes, bills, documents and
provisions of this Rule shall forthwith serve a copy thereof on papers within his power or control, subject of or involved in
each interested party, who may except to its sufficiency or of the action or proceeding, or in case of disagreement, as
the surety or sureties thereon. If either the applicant's or determined and ordered by the court, may be punished for

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contempt and shall be liable to the receiver for the money or them and order the discharge of the receiver from further
the value of the property and other things so refused or duty as such. The court shall allow the receiver such
neglected to be surrendered, together with all damages that reasonable compensation as the circumstances of the case
may have been sustained by the party or parties entitled warrant, to be taxed as costs against the defeated party, or
thereto as a consequence of such refusal or neglect. (n) apportioned, as justice requires. (8a)

Section 8. Termination of receivership; compensation of Section 9. Judgment to include recovery against sureties. The
receiver. Whenever the court, motu proprio or on motion of amount, if any, to be awarded to any party upon any bond
either party, shall determine that the necessity for a receiver filed in accordance with the provisions of this Rule, shall be
no longer exists, it shall, after due notice to all interested claimed, ascertained, and granted under the same procedure
parties and hearing, settle the accounts of the receiver, prescribed in section 20 of Rule 57. (9a)
direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive

RECEIVERSHIP
Concept Grounds Procedure Requirements Termination
Conserve 1. When it appears from the *Note: This is the only 1. Verified application Whenever the court, motu
Preserve verified application, and provisional remedy which can be 2. Hearing proprio or on motion of either
Dispose such other proof as the availed of even if there has 3. Applicants bondsecure the party, shall determine that the
court may require, that the been finality of judgment payment for damages that necessity for a receiver no
party applying for the the adverse party may longer exists, it shall, after due
appointment of a receiver suffer if the receivership notice to all interested parties
has an interest in the was inappropriate and hearing, settle the accounts
property or fund which is of the receiver, direct the
the subject of the action or Counterbondit will answer for delivery of the funds and other
proceeding, and that such the damages that the applicant property in his possession to the
property or fund is in may suffer in case it is found person adjudged to be entitled
danger of being lost, out that receivership was to receive them and order the
removed, or materially actually needed discharge of the receiver from
injured unless a receiver be further duty as such. The court
appointed to administer and Receivers bondto ensure that shall allow the receiver such
preserve it; he will faithfully comply with reasonable compensation as the
2. When it appears in an the duties of a receiver circumstances of the case
action by the mortgagee for warrant, to be taxed as costs
the foreclosure of a against the defeated party, or
mortgage that the property apportioned, as justice requires.
is in danger of being wasted (8a)

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or dissipated or materially
injured, and that its value is
probably insufficient to
discharge the mortgage
debt, or that the parties
have so stipulated in the
contract of mortgage;
3. After judgment, to preserve
the property during the
pendency of an appeal, or
to dispose of it according to
the judgment, or to aid
execution when the
execution has been returned
unsatisfied or the judgment
obligor refuses to apply his
property in satisfaction of
the judgment, or otherwise
to carry the judgment into
effect;
4. Whenever in other cases it
appears that the
appointment of a receiver is
the most convenient and
feasible means of
preserving, administering, or
disposing of the property in
litigation.

General powers of a receiver:

1. To bring and defend, in such capacity, actions in his own name;


2. To take and keep possession of the property in controversy;
3. To receive rents;
4. To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver;
5. To compound for and compromise the same;
6. To make transfers;

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7. To pay outstanding debts;


8. To divide the money and other property that shall remain among the persons legally entitled to receive the same;
9. And generally to do such acts respecting the property as the court may authorize.

writ of execution or preliminary attachment, or otherwise


placed under custodia legis, or if so seized, that it is exempt
RULE 60: REPLEVIN
from such seizure or custody; and

REPLEVIN (d) The actual market value of the property.


Delivery of personal property
This is the provisional remedy while the main action is the The applicant must also give a bond, executed to the adverse
recovery of possession of personal property party in double the value of the property as stated in the
affidavit aforementioned, for the return of the property to
Section 1. Application. A party praying for the recovery of the adverse party if such return be adjudged, and for the
possession of personal property may, at the commencement of payment to the adverse party of such sum as he may recover
the action or at any time before answer, apply for an order from the applicant in the action. (2a)
for the delivery of such property to him, in the manner
hereinafter provided. (1a) Section 3. Order. Upon the filing of such affidavit and
approval of the bond, the court shall issue an order and the
*You need to ask for replevin before the defendant answers the corresponding writ of replevin, describing the personal
complaint. This is to prevent the concealment of the property or other property alleged to be wrongfully detained and requiring the
action that may prevent the return of the property. sheriff forthwith to take such property into his custody. (3a)

Section 2. Affidavit and bond. The applicant must show by his Section 4. Duty of the sheriff. Upon receiving such order, the
own affidavit or that of some other person who personally sheriff must serve a copy thereof on the adverse party,
knows the facts: together with a copy of the application, affidavit and bond,
and must forthwith take the property, if it be in the
(a) That the applicant is the owner of the property claimed, possession of the adverse party, or his agent, and retain it in
particularly describing it, or is entitled to the possession his custody. If the property or any part thereof be concealed
thereof; in a building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the building
(b) That the property is wrongfully detained by the adverse or enclosure to be broken open and take the property into his
party, alleging the cause of detention thereof according to possession. After the sheriff has take possession of the
the best of his knowledge, information, and belief ; property as herein provided, he must keep it in a secure place
and shall be responsible for its delivery to the party entitled
(c) That the property has not been distrained or taken for a thereto upon receiving his fees and necessary expenses for
tax assessment or a fine pursuant to law, or seized under a taking and keeping the same. (4a)

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the applicant, the sheriff must return it to the adverse party.


DUTY OF THE SHERIFF (6a)
The sheriff goes to where the property may be found
If the property or any part thereof be concealed in a building or Section 7. Proceedings where property claimed by third
enclosure, the sheriff must demand its delivery, and if it be not person. If the property taken is claimed by any person other
delivered, he must cause the building or enclosure to be broken than the party against whom the writ of replevin had been
open and take the property into his possession. issued or his agent, and such person makes an affidavit of his
After the sheriff has take possession of the property as herein title thereto, or right to the possession thereof, stating the
provided, he must keep it in a secure place and shall be grounds therefor, and serves such affidavit upon the sheriff
responsible for its delivery to the party entitled thereto upon while the latter has possession of the property and a copy
receiving his fees and necessary expenses for taking and keeping thereof upon the applicant, the sheriff shall not be bound to
the same keep the property under replevin or deliver it to the applicant
unless the applicant or his agent, on demand of said sheriff,
Section 5. Return of property. If the adverse party objects shall file a bond approved by the court to indemnify the
to the sufficiency of the applicant's bond, or of the surety or third-party claimant in a sum not less than the value of the
sureties thereon, he cannot immediately require the return of property under replevin as provided in section 2 hereof. In
the property, but if he does not so object, he may, at any case of disagreement as to such value, the court shall
time before the delivery of the property to the applicant, determine the same. No claim for damages for the taking or
require the return thereof, by filing with the court where the keeping, of the property may be enforced against the bond
action is pending a bond executed to the applicant, in double unless the action therefor is filed within one hundred twenty
the value of the property as stated in the applicant's (120) days from the date of the filing of the bond.
affidavit for the delivery thereof to the applicant, if such
delivery be adjudged, and for the payment of such sum, to him The sheriff shall not be liable for damages, for the taking or
as may be recovered against the adverse party, and by serving keeping of such property, to any such third-party claimant if
a copy of such bond on the applicant. (5a) such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating his
Section 6. Disposition of property by sheriff. If within five claim to the property, or prevent the applicant from claiming
(5) days after the taking of the property by the sheriff, the damages against a third-party claimant who filed a frivolous
adverse party does not object to the sufficiency of the bond, or plainly spurious claim, in the same or a separate action.
or of the surety or sureties thereon; or if the adverse party
so objects and the court affirms its approval of the When the writ of replevin is issued in favor of the Republic of
applicant's bond or approves a new bond, or if the adverse the Philippines, or any officer duly representing it, the filing
party requires the return of the property but his bond is of such bond shall not be required, and in case the sheriff is
objected to and found insufficient and he does not forthwith sued for damages as a result of the replevin, he shall be
file an approved bond, the property shall be delivered to the represented by the Solicitor General, and if held liable
applicant. If for any reason the property is not delivered to therefor, the actual damages adjudged by the court shall be

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paid by the National Treasurer out of the funds to be the delivery thereof to the party entitled to the same, or for
appropriated for the purpose. (7a) its value in case delivery cannot be made, and also for such
damages as either party may prove, with costs. (9a)
Section 8. Return of papers. The sheriff must file the order,
with his proceedings indorsed, thereon, with the court within Section 10. Judgment to include recovery against sureties.
ten (10) days after taking the property mentioned therein. The amount, if any, to be awarded to any party upon any bond
(8a) filed in accordance with the provisions of this Rule, shall be
claimed, ascertained, and granted under the same procedure as
Section 9. Judgment. After trial of the issues the court shall prescribed in section 20 of Rule 57. (10a)
determine who has the right of possession to and the value of
the property and shall render judgment in the alternative for

REPLEVIN
Purpose Procedure Requirements Discharge/termination
Delivery of the personal Within the 5-day period from when Affidavit After trial of the issues the court
property the sheriff gets possession of the 1. That the applicant is the owner shall determine who has the right of
property and the adverse party of the property claimed, possession to and the value of the
objects to the sufficiency of the particularly describing it, or is property and shall render judgment in
applicant's bond, or of the surety or entitled to the possession thereof; the alternative for the delivery
sureties thereon 2. That the property is wrongfully thereof to the party entitled to the
He cannot immediately detained by the adverse party, same, or for its value in case delivery
require the return of the alleging the cause of detention cannot be made, and also for such
property thereof according to the best of damages as either party may prove,
But if he does not so object, his knowledge, information, and with costs.
he may, at any time before belief ;
the delivery of the property 3. That the property has not been
to the applicant, require the distrained or taken for a tax
return thereof, by filing with assessment or a fine pursuant to
the court where the action is law, or seized under a writ of
pending a bond executed to execution or preliminary
the applicant, in double the attachment, or otherwise placed
value of the property as under custodia legis, or if so
stated in the applicant's seized, that it is exempt from
affidavit for the delivery such seizure or custody; and
thereof to the applicant, if 4. The actual market value of the
such delivery be adjudged, property.
and for the payment of such

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sum, to him as may be Bond


recovered against the adverse Twice the amount of the property
party, and by serving a copy It will answer for two things
of such bond on the o Secure the return of the
applicant. (REDELIVERY property
BONDdouble the amount of o Damages
the property)

Property is claimed by a third person


The sheriff shall not be
bound to keep the property in
replevin unless the applicant
posts a bond to secure
payment of damages to third-
party claimant in case it is
found out that he is entitled
to the property.

REQUIREMENTS
RULE 61: SUPPORT PENDENTE LITE
Verified application containing grounds for the claim and the
financial conditions of both parties
ACTIONS WHEREIN SUPPORT PENDENTE LITE CAN BE APPLIED
FOR *Once there is showing of prima facie entitlement to support pendent
1. Support elite, it shall be granted and it shall be outright executed (summary
2. Legal separationspousal support or child support procedure)
3. Annulment of marriage
4. Judicial declaration of nullity Section 2. Comment. A copy of the application and all
5. Settlement of estate supporting documents shall be served upon the adverse party,
who shall have five (5) days to comment thereon unless a
Section 1. Application. At the commencement of the proper different period is fixed by the court upon his motion. The
action or proceeding, or at any time prior to the judgment or comment shall be verified and shall be accompanied by
final order, a verified application for support pendente lite affidavits, depositions or other authentic documents in support
may be filed by any party stating the grounds for the claim thereof. (2a, 3a)
and the financial conditions of both parties, and accompanied
by affidavits, depositions or other authentic documents in Section 3. Hearing. After the comment is filed, or after the
support thereof. (1a) expiration of the period for its filing, the application shall be

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set for hearing not more than three (3) days thereafter. The WHEN THE PERSON ORDERED TO GIVE SUPPORT PENDENTE
facts in issue shall be proved in the same manner as is LITE FAILS TO DO SO AND A THIRD PERSON FURNISHED
provided for evidence on motions. (4a) SUPPORT
After due notice and hearing in the same case, obtain a writ of
Section 4. Order. The court shall determine provisionally the execution to enforce his right of reimbursement against the
pertinent facts, and shall render such orders as justice and person ordered to provide such support
equity may require, having the regard to the probable
outcome of the case and such other circumstances as may aid Section 6. Support in criminal cases. In criminal actions
in the proper resolution of the question involved. If the where the civil liability includes support for the offspring as
application is granted, the court shall fix the amount of a consequence of the crime and the civil aspect thereof has
money to be provisionally paid or such other forms of support not been waived, reserved and instituted prior to its filing,
as should be provided, taking into account the necessities of the accused may be ordered to provide support pendente lite
the applicant and the resources or means of the adverse to the child born to the offended party allegedly because of
party, and the terms of payment or mode for providing the the crime. The application therefor may be filed successively
support. If the application is denied, the principal case shall by the offended party, her parents, grandparents or guardian
be tried and decided as early as possible. (5a) and the State in the corresponding criminal case during its
pendency, in accordance with the procedure established under
Section 5. Enforcement of order. If the adverse party fails this Rule. (n)
to comply with an order granting support pendente lite, the
court shall, motu proprio or upon motion; issue an order of Section 7. Restitution. When the judgment or final order of
execution against him, without prejudice to his liability for the court finds that the person who has been providing
contempt. (6a) support pendente lite is not liable therefor, it shall order the
recipient thereof to return to the former the amounts already
When the person ordered to give support pendente lite paid with legal interest from the dates of actual payment,
refuses or fails to do so, any third person who furnished that without prejudice to the right of the recipient to obtain
support to the applicant may, after due notice and hearing in reimbursement in a separate action from the person legally
the same case obtain a writ of execution to enforce his right obliged to give the support. Should the recipient fail to
of reimbursement against the person ordered to provide such reimburse said amounts, the person who provided the same
support. (h) may likewise seek reimbursement thereof in a separate action
from the person legally obliged to give such support. (n)
IF THE ADVERSE PARTY FAILS TO COMPLY WITH AN ORDER
GRANTING SUPPORT PENDENTE LITE WHAT IF AFTER TRIAL, IT WAS ADJUDGED THAT THE PARTY
The court may issue writ of execution against the party WASN'T THE ONE WHO SHOULD PROVIDE SUPPORT PENDENTE
He may also be cited in contempt LITE?
Restitution
The court shall order the recipient thereof to return to the
former the amounts already paid with legal interest from the

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dates of actual payment, without prejudice to the right of the


recipient to obtain reimbursement in a separate action from the Section 4. Order to file an answer. If the petition is
person legally obliged to give the support sufficient in form and substance to justify relief, the court in
In case of failure to return or reimburse, the person who which it is filed, shall issue an order requiring the adverse
supported may seek reimbursement thereof in a separate action parties to answer the same within fifteen (15) days from the
against person legally obliged to give support receipt thereof. The order shall be served in such manner as
the court may direct, together with copies of the petition and
the accompanying affidavits. (4a)
RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS
Section 5. Preliminary injunction pending proceedings. The
court in which the petition is filed may grant such preliminary
Section 1. Petition for relief from judgment, order, or other injunction as may be necessary for the preservation of the
proceedings. When a judgment or final order is entered, or rights of the parties, upon the filing by the petitioner of a
any other proceeding is thereafter taken against a party in bond in favor of the adverse party, conditioned that if the
any court through fraud, accident, mistake, or excusable petition is dismissed or the petitioner fails on the trial of the
negligence, he may file a petition in such court and in the case upon its merits, he will pay the adverse party all
same case praying that the judgment, order or proceeding be damages and costs that may be awarded to him by reason of
set aside. (2a) the issuance of such injunction or the other proceedings
following the petition, but such injunction shall not operate to
Section 2. Petition for relief from denial of appeal. When a discharge or extinguish any lien which the adverse party may
judgment or final order is rendered by any court in a case, have acquired upon, the property, of the petitioner. (5a)
and a party thereto, by fraud, accident, mistake, or excusable
negligence, has been prevented from taking an appeal, he may Section 6. Proceedings after answer is filed. After the filing
file a petition in such court and in the same case praying that of the answer or the expiration of the period therefor, the
the appeal be given due course. (1a) court shall hear the petition and if after such hearing, it
finds that the allegations thereof are not true, the petition
Section 3. Time for filing petition; contents and verification. shall be dismissed; but if it finds said allegations to be true,
A petition provided for in either of the preceding sections of it shall set aside the judgment or final order or other
this Rule must be verified, filed within sixty (60) days after proceeding complained of upon such terms as may be just.
the petitioner learns of the judgment, final order, or other Thereafter the case shall stand as if such judgment, final
proceeding to be set aside, and not more than six (6) months order or other proceeding had never been rendered, issued or
after such judgment or final order was entered, or such taken. The court shall then proceed to hear and determine the
proceeding was taken, and must be accompanied with case as if a timely motion for a new trial or reconsideration
affidavits showing the fraud, accident, mistake, or excusable had been granted by it. (6a)
negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or defense, Section 7. Procedure where the denial of an appeal is set
as the case may be. (3) aside. Where the denial of an appeal is set aside, the lower

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court shall be required to give due course to the appeal and execution pending appeal may be filed in the appellate court.
to elevate the record of the appealed case as if a timely and
proper appeal had been made. (7a) Discretionary execution may only issue upon good reasons to
be stated in a special order after due hearing.
RULE 39: EXECUTION, SATISFACTION AND EFFECT OF
(b) Execution of several, separate or partial judgments. A
JUDGMENTS
several, separate or partial judgment may be executed under
the same terms and conditions as execution of a judgment or
Section 1. Execution upon judgments or final orders. final order pending appeal. (2a)
Execution shall issue as a matter of right, or motion, upon a
judgment or order that disposes of the action or proceeding Section 3. Stay of discretionary execution. Discretionary
upon the expiration of the period to appeal therefrom if no execution issued under the preceding section may be stayed
appeal has been duly perfected. (1a) upon approval by the proper court of a sufficient supersedeas
bond filed by the party against whom it is directed,
If the appeal has been duly perfected and finally resolved, conditioned upon the performance of the judgment or order
the execution may forthwith be applied for in the court of allowed to be executed in case it shall be finally sustained in
origin, on motion of the judgment obligee, submitting whole or in part. The bond thus given may be proceeded
therewith certified true copies of the judgment or judgments against on motion with notice to the surety. (3a )
or final order or orders sought to be enforced and of the
entry thereof, with notice to the adverse party. Section 4. Judgments not stayed by appeal. Judgments in
actions for injunction, receivership, accounting and support,
The appellate court may, on motion in the same case, when and such other judgments as are now or may hereafter be
the interest of justice so requires, direct the court of origin declared to be immediately executory, shall be enforceable
to issue the writ of execution. (n) after their rendition and shall not, be stayed by an appeal
taken therefrom, unless otherwise ordered by the trial court.
Section 2. Discretionary execution. On appeal therefrom, the appellate court in its discretion may
make an order suspending, modifying, restoring or granting the
(a) Execution of a judgment or final order pending appeal. On injunction, receivership, accounting, or award of support.
motion of the prevailing party with notice to the adverse
party filed in the trial court while it has jurisdiction over the The stay of execution shall be upon such terms as to bond or
case and is in possession of either the original record or the otherwise as may be considered proper for the security or
record on appeal, as the case may be, at the time of the protection of the rights of the adverse party. (4a)
filing of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the Section 5. Effect of reversal of executed judgment. Where
expiration of the period to appeal. the executed judgment is reversed totally or partially, or
annulled, on appeal or otherwise, the trial court may, on
After the trial court has lost jurisdiction the motion for motion, issue such orders of restitution or reparation of

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damages as equity and justice may warrant under the and (3) require the sheriff or other proper officer to whom it
circumstances. (5a) is directed to enforce the writ according to its terms, in the
manner hereinafter provided:
Section 6. Execution by motion or by independent action. A
final and executory judgment or order may be executed on (a) If the execution be against the property of the judgment
motion within five (5) years from the date of its entry. After obligor, to satisfy the judgment, with interest, out of the real
the lapse of such time, and before it is barred by the statute or personal property of such judgment obligor;
of limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion within five (b) If it be against real or personal property in the hands of
(5) years from the date of its entry and thereafter by action personal representatives, heirs, devisees, legatees, tenants, or
before it is barred by the statute of limitations. (6a) trustees of the judgment obligor, to satisfy the judgment,
with interest, out of such property;
Section 7. Execution in case of death of party. In case of
the death of a party, execution may issue or be enforced in (c) If it be for the sale of real or personal property to sell
the following manner: such property describing it, and apply the proceeds in
conformity with the judgment, the material parts of which
(a) In case of the death of the judgment obligee, upon the shall be recited in the writ of execution;
application of his executor or administrator, or successor in
interest; (d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the same,
(b) In case of the death of the judgment obligor, against his describing it, to the party entitled thereto, and to satisfy any
executor or administrator or successor in interest, if the costs, damages, rents, or profits covered by the judgment out
judgment be for the recovery of real or personal property, or of the personal property of the person against whom it was
the enforcement of a lien thereon; rendered, and if sufficient personal property cannot be found,
then out of the real property; and
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the (e) In all cases, the writ of execution shall specifically state
same may be sold for the satisfaction of the judgment the amount of the interest, costs, damages, rents, or profits
obligation, and the officer making the sale shall account to due as of the date of the issuance of the writ, aside from the
the corresponding executor or administrator for any surplus in principal obligation under the judgment. For this purpose, the
his hands. (7a) motion for execution shall specify the amounts of the
foregoing reliefs sought by the movant.(8a)
Section 8. Issuance, form and contents of a writ of execution.
The writ of execution shall: (1) issue in the name of the Section 9. Execution of judgments for money, how enforced.
Republic of the Philippines from the court which granted the
motion; (2) state the name of the court, the case number and (a) Immediate payment on demand. The officer shall enforce
title, the dispositive part of the subject judgment or order; an execution of a judgment for money by demanding from the

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judgment obligor the immediate payment of the full amount disposed, of for value and not otherwise exempt from
stated in the writ of execution and all lawful fees. The execution giving the latter the option to immediately choose
judgment obligor shall pay in cash, certified bank check which property or part thereof may be levied upon, sufficient
payable to the judgment obligee, or any other form of to satisfy the judgment. If the judgment obligor does not
payment acceptable to the latter, the amount of the exercise the option, the officer shall first levy on the
judgment debt under proper receipt directly to the judgment personal properties, if any, and then on the real properties if
obligee or his authorized representative if present at the the personal properties are insufficient to answer for the
time of payment. The lawful fees shall be handed under judgment.
proper receipt to the executing sheriff who shall turn over
the said amount within the same day to the clerk of court of The sheriff shall sell only a sufficient portion of the personal
the court that issued the writ. or real property of the judgment obligor which has been
levied upon.
If the judgment obligee or his authorized representative is
not present to receive payment, the judgment obligor shall When there is more property of the judgment obligor than is
deliver the aforesaid payment to the executing sheriff. The sufficient to satisfy the judgment and lawful fees, he must
latter shall turn over all the amounts coming into his sell only so much of the personal or real property as is
possession within the same day to the clerk of court of the sufficient to satisfy the judgment and lawful fees.
court that issued the writ, or if the same is not practicable,
deposit said amounts to a fiduciary account in the nearest Real property, stocks, shares, debts, credits, and other
government depository bank of the Regional Trial Court of the personal property, or any interest in either real or personal
locality. property, may be levied upon in like manner and with like
effect as under a writ of attachment.
The clerk of said court shall thereafter arrange for the
remittance of the deposit to the account of the court that (c) Garnishment of debts and credits. The officer may levy on
issued the writ whose clerk of court shall then deliver said debts due the judgment obligor and other credits, including
payment to the judgment obligee in satisfaction of the bank deposits, financial interests, royalties, commissions and
judgment. The excess, if any, shall be delivered to the other personal property not capable of manual delivery in the
judgment obligor while the lawful fees shall be retained by possession or control of third parties. Levy shall be made by
the clerk of court for disposition as provided by law. In no serving notice upon the person owing such debts or having in
case shall the executing sheriff demand that any payment by his possession or control such credits to which the judgment
check be made payable to him. obligor is entitled. The garnishment shall cover only such
amount as will satisfy the judgment and all lawful fees.
(b) Satisfaction by levy. If the judgment obligor cannot pay
all or part of the obligation in cash, certified bank check or The garnishee shall make a written report to the court within
other mode of payment acceptable to the judgment obligee, five (5) days from service of the notice of garnishment stating
the officer shall levy upon the properties of the judgment whether or not the judgment obligor has sufficient funds or
obligor of every kind and nature whatsoever which may be credits to satisfy the amount of the judgment. If not, the

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report shall state how much funds or credits the garnishee describing it, and apply the proceeds in conformity with the
holds for the judgment obligor. The garnished amount in cash, judgment. (8[c]a)
or certified bank check issued in the name of the judgment
obligee, shall be delivered directly to the judgment obligee (c) Delivery or restitution of real property. The officer shall
within ten (10) working days from service of notice on said demand of the person against whom the judgment for the
garnishee requiring such delivery, except the lawful fees delivery or restitution of real property is rendered and all
which shall be paid directly to the court. persons claiming rights under him to peaceably vacate the
property within three (3) working days, and restore possession
In the event there are two or more garnishees holding thereof to the judgment obligee, otherwise, the officer shall
deposits or credits sufficient to satisfy the judgment, the oust all such persons therefrom with the assistance, if
judgment obligor, if available, shall have the right to indicate necessary, of appropriate peace officers, and employing such
the garnishee or garnishees who shall be required to deliver means as may be reasonably necessary to retake possession,
the amount due, otherwise, the choice shall be made by the and place the judgment obligee in possession of such property.
judgment obligee. Any costs, damages, rents or profits awarded by the judgment
shall be satisfied in the same manner as a judgment for
The executing sheriff shall observe the same procedure under money. (13a)
paragraph (a) with respect to delivery of payment to the
judgment obligee. (8a, 15a) (d) Removal of improvements on property subject of execution.
When the property subject of the execution contains
Section 10. Execution of judgments for specific act. improvements constructed or planted by the judgment obligor
or his agent, the officer shall not destroy, demolish or remove
(a) Conveyance, delivery of deeds, or other specific acts; said improvements except upon special order of the court,
vesting title. If a judgment directs a party to execute a issued upon motion of the judgment obligee after the hearing
conveyance of land or personal property, or to deliver deeds and after the former has failed to remove the same within a
or other documents, or to perform, any other specific act in reasonable time fixed by the court. (14a)
connection therewith, and the party fails to comply within the
time specified, the court may direct the act to be done at the (e) Delivery of personal property. In judgment for the
cost of the disobedient party by some other person appointed delivery of personal property, the officer shall take
by the court and the act when so done shall have like effect possession of the same and forthwith deliver it to the party
as if done by the party. If real or personal property is entitled thereto and satisfy any judgment for money as
situated within the Philippines, the court in lieu of directing a therein provided. (8a)
conveyance thereof may by an order divest the title of any
party and vest it in others, which shall have the force and Section 11. Execution of special judgments. When a judgment
effect of a conveyance executed in due form of law. (10a) requires the performance of any act other than those
mentioned in the two preceding sections, a certified copy of
(b) Sale of real or personal property. If the judgment be for the judgment shall be attached to the writ of execution and
the sale of real or personal property, to sell such property, shall be served by the officer upon the party against whom

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the same is rendered, or upon any other person required (g) The professional libraries and equipment of judges,
thereby, or by law, to obey the same, and such party or lawyers, physicians, pharmacists, dentists, engineers,
person may be punished for contempt if he disobeys such surveyors, clergymen, teachers, and other professionals, not
judgment. (9a) exceeding three hundred thousand pesos in value;

Section 12. Effect of levy on execution as to third person. (h) One fishing boat and accessories not exceeding the total
The levy on execution shall create a lien in favor of the value of one hundred thousand pesos owned by a fisherman and
judgment obligee over the right, title and interest of the by the lawful use of which he earns his livelihood;
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing. (16a) (i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four
Section 13. Property exempt from execution. Except as months preceding the levy as are necessary for the support of
otherwise expressly provided by law, the following property, his family;
and no other, shall be exempt from execution:
(j) Lettered gravestones;
(a) The judgment obligor's family home as provided by law, or
the homestead in which he resides, and land necessarily used (k) Monies, benefits, privileges, or annuities accruing or in any
in connection therewith; manner growing out of any life insurance;

(b) Ordinary tools and implements personally used by him in (l) The right to receive legal support, or money or property
his trade, employment, or livelihood; obtained as such support, or any pension or gratuity from the
Government;
(c) Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgment obligor may select (m) Properties specially exempted by law.
necessarily used by him in his ordinary occupation;
But no article or species of property mentioned in this section
(d) His necessary clothing and articles for ordinary personal shall be exempt from execution issued upon a judgment
use, excluding jewelry; recovered for its price or upon a judgment of foreclosure of a
mortgage thereon. (12a)
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment Section 14. Return of writ of execution. The writ of
obligor and his family, such as the judgment obligor may execution shall be returnable to the court issuing it
select, of a value not exceeding one hundred thousand pesos; immediately after the judgment has been satisfied in part or
in full. If the judgment cannot be satisfied in full within
(f) Provisions for individual or family use sufficient for four thirty (30) days after his receipt of the writ, the officer
months; shall report to the court and state the reason therefor. Such
writ shall continue in effect during the period within which

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the judgment may be enforced by motion. The officer shall except as provided in paragraph (a) hereof where notice shall
make a report to the court every thirty (30) days on the be given the same manner as personal service of pleadings and
proceedings taken thereon until the judgment is satisfied in other papers as provided by section 6 of Rule 13.
full, or its effectivity expires. The returns or periodic reports
shall set forth the whole of the proceedings taken, and shall The notice shall specify the place, date and exact time of the
be filed with the court and copies thereof promptly furnished sale which should not be earlier than nine o'clock in the
the parties. (11a) morning and not later than two o'clock in the afternoon. The
place of the sale may be agreed upon by the parties. In the
Section 15. Notice of sale of property on execution. Before absence of such agreement, the sale of the property or
the sale of property on execution, notice thereof must be personal property not capable of manual delivery shall be held
given as follows: in the office of the clerk of court of the Regional Trial Court
or the Municipal Trial Court which issued the writ of or which
(a) In case of perishable property, by posting written notice was designated by the appellate court. In the case of
of the time and place of the sale in three (3) public places, personal property capable of manual delivery, the sale shall
preferably in conspicuous areas of the municipal or city hall, be held in the place where the property is located. (18a)
post office and public market in the municipality or city
where the sale is to take place, for such time as may be Section 16. Proceedings where property claimed by third
reasonable, considering the character and condition of the person. If the property levied on is claimed by any person
property; other than the judgment obligor or his agent, and such person
makes an affidavit of his title thereto or right to the
(b) In case of other personal property, by posting a similar possession thereof, stating the grounds of such right or title,
notice in the three (3) public places above-mentioned for not and serves the same upon the officer making the levy and
less than five (5) days; copy thereof, stating the grounds of such right or tittle, and
a serves the same upon the officer making the levy and a copy
(c) In case of real property, by posting for twenty (20) days thereof upon the judgment obligee, the officer shall not be
in the three (3) public places abovementioned a similar notice bound to keep the property, unless such judgment obligee, on
particularly describing the property and stating where the demand of the officer, files a bond approved by the court to
property is to be sold, and if the assessed value of the indemnity the third-party claimant in a sum not less than the
property exceeds fifty thousand (P50,000.00) pesos, by value of the property levied on. In case of disagreement as to
publishing a copy of the notice once a week for two (2) such value, the same shall be determined by the court issuing
consecutive weeks in one newspaper selected by raffle, the writ of execution. No claim for damages for the taking or
whether in English, Filipino, or any major regional language keeping of the property may be enforced against the bond
published, edited and circulated or, in the absence thereof, unless the action therefor is filed within one hundred twenty
having general circulation in the province or city; (120) days from the date of the filing of the bond.

(d) In all cases, written notice of the sale shall be given to The officer shall not be liable for damages for the taking or
the judgment obligor, at least three (3) days before the sale, keeping of the property, to any third-party claimant if such

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bond is filed. Nothing herein contained shall prevent such execution must be made at public auction, to the highest
claimant or any third person from vindicating his claim to the bidder, to start at the exact time fixed in the notice. After
property in a separate action, or prevent the judgment sufficient property has been sold to satisfy the execution, no
obligee from claiming damages in the same or a separate more shall be sold and any excess property or proceeds of the
action against a third-party claimant who filed a frivolous or sale shall be promptly delivered to the judgment obligor or his
plainly spurious claim. authorized representative, unless otherwise directed by the
judgment or order of the court. When the sale is of real
When the writ of execution is issued in favor of the Republic property, consisting of several known lots, they must be sold
of the Philippines, or any officer duly representing it, the separately; or, when a portion of such real property is
filing of such bond shall not be required, and in case the claimed by a third person, he may require it to be sold
sheriff or levying officer is sued for damages as a result of separately. When the sale is of personal property capable of
the levy, he shall be represented by the Solicitor General and manual delivery, it must be sold within view of those
if held liable therefor, the actual damages adjudged by the attending the same and in such parcels as are likely to bring
court shall be paid by the National Treasurer out of such the highest price. The judgment obligor, if present at the
funds as may be appropriated for the purpose. (17a) sale, may direct the order in which property, real or personal
shall be sold, when such property consists of several known
Section 17. Penalty for selling without notice, or removing or lots or parcels which can be sold to advantage separately.
defacing notice. An officer selling without the notice Neither the officer conducting the execution sale, nor his
prescribed by section 15 of this Rule shall be liable to pay deputies, can become a purchaser, nor be interested directly
punitive damages in the amount of five thousand (P5,000.00) or indirectly in any purchase at such sale. (21a)
pesos to any person injured thereby, in addition to his actual
damages, both to be recovered by motion in the same action; Section 20. Refusal of purchaser to pay. If a purchaser
and a person willfully removing or defacing the notice posted, refuses to pay the amount bid by him for property struck off
if done before the sale, or before the satisfaction of the to him at a sale under execution, the officer may again sell
judgment if it be satisfied before the sale, shall be liable to the property to the highest bidder and shall not be
pay five thousand (P5,000.00) pesos to any person injured by responsible for any loss occasioned thereby; but the court
reason thereof, in addition to his actual damages, to be may order the refusing purchaser to pay into the court the
recovered by motion in the same action. (19a) amount of such loss, with costs, and may punish him for
contempt if he disobeys the order. The amount of such
Section 18. No sale if judgment and costs paid. At any time payment shall be for the benefit of the person entitled to the
before the sale of property on execution, the judgment proceeds of the execution, unless the execution has been fully
obligor may prevent the sale by paying the amount required satisfied, in which event such proceeds shall be for the
by the execution and the costs that have been incurred benefit of the judgment obligor. The officer may thereafter
therein. (20a) reject any subsequent bid of such purchaser who refuses to
pay. (22a)
Section 19. How property sold on execution; who may direct
manner and order of sale. All sales of property under Section 21. Judgment obligee as purchaser. When the

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purchaser is the judgment obligee, and no third-party claim


has been filed, he need not pay the amount of the bid if it (a) A particular description of the real property sold;
does not exceed the amount of his judgment. If it does, he
shall pay only the excess. (23a) (b) The price paid for each distinct lot or parcel;

Section 22. Adjournment of sale. By written consent of the (c) The whole price paid by him;
judgment obligor and obligee, or their duly authorized
representatives, the officer may adjourn the sale to any date (d) A statement that the right of redemption expires one (1)
and time agreed upon by them. Without such agreement, he year from the date of the registration of the certificate of
may adjourn the sale from day to day if it becomes necessary sale.
to do so for lack of time to complete the sale on the day
fixed in the notice or the day to which it was adjourned. Such certificate must be registered in the registry of deeds
(24a) of the place where the property is situated. (27 a)

Section 23. Conveyance to purchaser of personal property Section 26. Certificate of sale where property claimed by
capable of manual delivery. When the purchaser of any third person. When a property sold by virtue of a writ of
personal property, capable of manual delivery, pays the execution has been claimed by a third person, the certificate
purchase price, the officer making the sale must deliver the of sale to be issued by the sheriff pursuant to sections 23, 24
property to the purchaser and, if desired, execute and deliver and 25 of this Rule shall make express mention of the
to him a certificate of sale. The sale conveys to the existence of such third-party claim. (28a)
purchaser all the rights which the judgment obligor had in
such property as of the date of the levy on execution or Section 27. Who may redeem real property so sold. Real
preliminary attachment. (25a) property sold as provided in the last preceding section, or any
part thereof sold separately, may be redeemed in the manner
Section 24. Conveyance to purchaser of personal property not hereinafter provided, by the following persons:
capable of manual delivery. When the purchaser of any
personal property, not capable of manual delivery, pays the (a) The judgment obligor; or his successor in interest in the
purchase price, the officer making the sale must execute and whole or any part of the property;
deliver to the purchaser a certificate of sale. Such
certificate conveys to the purchaser all the rights which the (b) A creditor having a lien by virtue of an attachment,
judgment obligor had in such property as of the date of the judgment or mortgage on the property sold, or on some part
levy on execution or preliminary attachment. (26a) thereof, subsequent to the lien under which the property was
sold. Such redeeming creditor is termed a redemptioner. (29a)
Section 25. Conveyance of real property; certificate thereof
given to purchaser and filed with registry of deeds. Upon a Section 28. Time and manner of, and amounts payable on,
sale of real property, the officer must give to the purchaser successive redemptions; notice to be given and filed. The
a certificate of sale containing: judgment obligor, or redemptioner, may redeem the property

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from the purchaser, at any time within one (1) year from the liens. (30a)
date of the registration of the certificate of sale, by paying
the purchaser the amount of his purchase, with the per Section 29. Effect of redemption by judgment obligor, and a
centum per month interest thereon in addition, up to the time certificate to be delivered and recorded thereupon; to whom
of redemption, together with the amount of any assessments payments on redemption made. If the judgment obligor
or taxes which the purchaser may have paid thereon after redeems he must make the same payments as are required to
purchase, and interest on such last named amount at the same effect a redemption by a redemptioner, whereupon, no further
rate; and if the purchaser be also a creditor having a prior redemption shall be allowed and he is restored to his estate.
lien to that of the redemptioner, other than the judgment The person to whom the redemption payment is made must
under which such purchase was made, the amount of such execute and deliver to him a certificate of redemption
other lien, with interest. acknowledged before a notary public or other officer
authorized to take acknowledgments of conveyances of real
Property so redeemed may again be redeemed within sixty (60) property. Such certificate must be filed and recorded in the
days after the last redemption upon payment of the sum paid registry of deeds of the place in which the property is
on the last redemption, with two per centum thereon in situated and the registrar of deeds must note the record
addition and the amount of any assessments or taxes which thereof on the margin of the record of the certificate of
the last redemptioner may have paid thereon after redemption sale. The payments mentioned in this and the last preceding
by him, with interest on such last named amount, and in sections may be made to the purchaser or redemptioner, or
addition, the amount of any liens held by said last for him to the officer who made the sale. (31a)
redemptioner prior to his own, with interest. The property
may be again, and as often as a redemptioner is so disposed, Section 30. Proof required of redemptioner. A redemptioner
redeemed from any previous redemptioner within sixty (60) must produce to the officer, or person from whom he seeks to
days after the last redemption, on paying the sum paid on the redeem, and serve with his notice to the officer a copy of the
last previous redemption, with two per centum thereon in judgment or final order under which he claims the right to
addition, and the amounts of any assessments or taxes which redeem, certified by the clerk of the court wherein the
the last previous redemptioner paid after the redemption judgment or final order is entered, or, if he redeems upon a
thereon, with interest thereon, and the amount of any liens mortgage or other lien, a memorandum of the record thereof,
held by the last redemptioner prior to his own, with interest. certified by the registrar of deeds, or an original or certified
copy of any assignment necessary to establish his claim; and
Written notice of any redemption must be given to the officer an affidavit executed by him or his agent, showing the amount
who made the sale and a duplicate filed with the registry of then actually due on the lien. (32a)
deeds of the place, and if any assessments or taxes are paid
by the redemptioner or if he has or acquires any lien other Section 31. Manner of using premises pending redemption;
than that upon which the redemption was made, notice thereof waste restrained. Until the expiration of the time allowed
must in like manner be given to the officer and filed with the for redemption, the court may, as in other proper cases,
registry of deeds; if such notice be not filed, the property restrain the commission of waste on the property by
may be redeemed without paying such assessments, taxes, or injunction, on the application of the purchaser or the

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judgment obligee, with or without notice; but it is not waste property as of the time of the levy. The possession of the
for a person in possession of the property at the time of the property shall be given to the purchaser or last redemptioner
sale, or entitled to possession afterwards, during the period by the same officer unless a third party adversely to the
allowed for redemption, to continue to use it in the same judgment obligor. (35a)
manner in which it was previously used, or to use it in the
ordinary course of husbandry; or to make the necessary Section 34. Recovery of price if sale not effective; revival of
repairs to buildings thereon while he occupies the property. judgment. If the purchaser of real property sold on
(33a) execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in consequence of
Section 32. Rents, earnings and income of property pending irregularities in the proceedings concerning the sale, or
redemption. The purchaser or a redemptioner shall not be because the judgment has been reversed or set aside, or
entitled to receive the rents, earnings and income of the because the property sold was exempt from execution, or
property sold on execution, or the value of the use and because a third person has vindicated his claim to the
occupation thereof when such property is in the possession of property, he may on motion in the same action or in a
a tenant. All rents, earnings and income derived from the separate action recover from the judgment obligee the price
property pending redemption shall belong to the judgment paid, with interest, or so much thereof as has not been
obligor until the expiration of his period of redemption. (34a) delivered to the judgment obligor, or he may, on motion, have
the original judgment revived in his name for the whole price
Section 33. Deed and possession to be given at expiration of with interest, or so much thereof as has been delivered to the
redemption period; by whom executed or given. If no judgment obligor. The judgment so revived shall have the same
redemption be made within one (1) year from the date of the force and effect as an original judgment would have as of the
registration of the certificate of sale, the purchaser is date of the revival and no more. (36a)
entitled to a conveyance and possession of the property; or, if
so redeemed whenever sixty (60) days have elapsed and no Section 35. Right to contribution or reimbursement. When
other redemption has been made, and notice thereof given, and property liable to an execution against several persons is sold
the time for redemption has expired, the last redemptioner is thereon, and more than a due proportion of the judgment is
entitled to the conveyance and possession; but in all cases the satisfied out of the proceeds of the sale of the property of
judgment obligor shall have the entire period of one (1) year one of them, or one of them pays, without a sale, more than
from the date of the registration of the sale to redeem the his proportion, he may compel a contribution from the others;
property. The deed shall be executed by the officer making and when a judgment is upon an obligation of one of them, as
the sale or by his successor in office, and in the latter case security for another, and the surety pays the amount, or any
shall have the same validity as though the officer making the part thereof, either by sale of his property or before sale, he
sale had continued in office and executed it. may compel repayment from the principal. (37a)

Upon the expiration of the right of redemption, the purchaser Section 36. Examination of judgment obligor when judgment
or redemptioner shall be substituted to and acquire all the unsatisfied. When the return of a writ of execution issued
rights, title, interest and claim of the judgment obligor to the against property of a judgment obligor, or any one of several

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obligors in the same judgment, shows that the judgment sections, and upon failure to obey such order or subpoena or
remains unsatisfied, in whole or in part, the judgment obligee, to be sworn, or to answer as a witness or to subscribe his
at any time after such return is made, shall be entitled to an deposition, may be punished for contempt as in other cases.
order from the court which rendered the said judgment, Examinations shall not be unduly prolonged, but the
requiring such judgment obligor to appear and be examined proceedings may be adjourned from time to time, until they
concerning his property and income before such court or are completed. If the examination is before a commissioner, he
before a commissioner appointed by it at a specified time and must take it in writing and certify it to the court. All
place; and proceedings may thereupon be had for the examinations and answers before a court commissioner must be
application of the property and income of the judgment under oath, and when a corporation or other juridical entity
obligor towards the satisfaction of the judgment. But no answers, it must be on the oath of an authorized officer or
judgment obligor shall be so required to appear before a court agent thereof. (40a)
or commissioner outside the province or city in which such
obligor resides or is found. (38a) Section 39. Obligor may pay execution against obligee. After
a writ of execution against property has been issued, a person
Section 37. Examination of obligor of judgment obligor. When indebted to the judgment obligor may pay to the sheriff
the return of a writ of execution against the property of a holding the writ of execution the amount of his debt or so
judgment obligor shows that the judgment remain unsatisfied, much thereof as may be necessary to satisfy the judgment, in
in whole or in part, and upon proof to the satisfaction of the the manner prescribed in section 9 of this Rule, and the
court which issued the writ, that a person, corporation, or sheriff's receipt shall be a sufficient discharge for the
other juridical entity has property of such judgment obligor amount so paid or directed to be credited by the judgment
or is indebted to him, the court may, by an order, require obligee on the execution. (41a)
such person, corporation, or other juridical entity, or any
officer, or member thereof, to appear before the court or a Section 40. Order for application of property and income to
commissioner appointed by it, at a time and place within the satisfaction of judgment. The court may order any property
province or city where such debtor resides or is found, and be of the judgment obligor, or money due him, not exempt from
examined concerning the same. The service of the order shall execution, in the hands of either himself or another person, or
bind all credits due the judgment obligor and all money and of a corporation or other juridical entity, to be applied to the
property of the judgment obligor in the possession or in the satisfaction of the judgment, subject to any prior rights over
control of such person corporation, or juridical entity from such property.
the time of service; and the court may also require notice of
such proceedings to be given to any party to the action in If, upon investigation of his current income and expenses, it
such manner as it may deem proper. (39a) appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of
Section 38. Enforcement of attendance and conduct of his family, the court may order that he pay the judgment in
examination. A party or other person may be compelled, by fixed monthly installments, and upon his failure to pay any
an order or subpoena, to attend before the court or such installment when due without good excuse, may punish
commissioner to testify as provided in the two preceding him for indirect contempt. (42a)

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upon the return of a writ of execution showing the full


Section 41. Appointment of receiver. The court may appoint a satisfaction of the judgment, or upon the filing of an
receiver of the property of the judgment obligor; and it may admission to the satisfaction of the judgment executed and
also forbid a transfer or other disposition of, or any acknowledged in the same manner as a conveyance of real
interference with, the property of the judgment obligor not property by the judgment obligee or by his counsel unless a
exempt from execution. (43a) revocation of his authority is filed, or upon the endorsement
of such admission by the judgment obligee or his counsel, on
Section 42. Sale of ascertainable interest of judgment obligor the face of the record of the judgment. (46a)
in real estate. If it appears that the judgment obligor has
an interest in real estate in the place in which proceedings Section 45. Entry of satisfaction with or without admission.
are had, as mortgagor or mortgagee or other- wise, and his Whenever a judgment is satisfied in fact, or otherwise than
interest therein can be ascertained without controversy the upon an execution on demand of the judgment obligor, the
receiver may be ordered to sell and convey such real estate judgment obligee or his counsel must execute and
or the interest of the obligor therein; and such sale shall be acknowledge, or indorse an admission of the satisfaction as
conducted in all respects in the same manner as is provided provided in the last preceding section, and after notice and
for the sale of real state upon execution, and the proceedings upon motion the court may order either the judgment obligee
thereon shall be approved by the court before the execution or his counsel to do so, or may order the entry of satisfaction
of the deed. (34a) to be made without such admission. (47a)

Section 43. Proceedings when indebtedness denied or another Section 46. When principal bound by judgment against surety.
person claims the property. If it appears that a person or When a judgment is rendered against a party who stands as
corporation, alleged to have property of the judgment obligor surety for another, the latter is also bound from the time
or to be indebted to him, claims an interest in the property that he has notice of the action or proceeding, and an
adverse to him or denied the debt, the court may authorize, opportunity at the surety's request to join in the defense.
by an order made to that effect, the judgment obligee to (48a)
institute an action against such person or corporation for the
recovery of such interest or debt, forbid a transfer or other Section 47. Effect of judgments or final orders. The effect
disposition of such interest or debt within one hundred twenty of a judgment or final order rendered by a court of the
(120) days from notice of the order, and may punish Philippines, having jurisdiction to pronounce the judgment or
disobedience of such order as for contempt. Such order may final order, may be as follows:
be modified or vacated at any time by the court which issued
it, or by the court in which the action is brought, upon such (a) In case of a judgment or final order against a specific
terms as may be just. (45a) thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
Section 44. Entry of satisfaction of judgment by clerk of respect to the personal, political, or legal condition or status
court. Satisfaction of a judgment shall be entered by the of a particular person or his relationship to another, the
clerk of court in the court docket, and in the execution book, judgment or final order is conclusive upon the title to the

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thing, the will or administration or the condition, status or judgment or final order is presumptive evidence of a right as
relationship of the person, however, the probate of a will or between the parties and their successors in interest by a
granting of letters of administration shall only be prima facie subsequent title.
evidence of the death of the testator or intestate;
In either case, the judgment or final order may be repelled by
(b) In other cases, the judgment or final order is, with evidence of a want of jurisdiction, want of notice to the
respect to the matter directly adjudged or as to any other party, collusion, fraud, or clear mistake of law or fact. (50a)
matter that could have been missed in relation thereto,
conclusive between the parties and their successors in EFFECTS OF FOREIGN JUDGMENT OR FINAL ORDERS
interest, by title subsequent to the commencement of the In actions in rem, it is conclusive
action or special proceeding, litigating for the same thing and If it is a personal action, the judgment or order is presumptive
under the same title and in the same capacity; and evidenceit may be repelled by raising the following
o Want of jurisdiction
(c) In any other litigation between the same parties or their o Want of notice
successors in interest, that only is deemed to have been o Collusion
adjudged in a former judgment or final order which appears o Fraud or clear mistake of fact or law
upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto. (49a)
APPEALS
RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
CONCLUSIVENESS OF JUDGMENT OR ESTOPPEL BY JUDGMENT
REGIONAL TRIAL COURTS
There is identity of parties and subject matter in both cases
There is difference in causes of action
An example is a previous case involves support. The child was Section 1. Where to appeal. An appeal from a judgment or
adjudged to be the child of defendant. The second case involved final order of a Municipal Trial Court may be taken to the
annulment of marriage. It is already conclusive upon the parties Regional Trial Court exercising jurisdiction over the area to
that the child is their child. which the former pertains. The title of the case shall remain
as it was in the court of origin, but the party appealing the
Section 48. Effect of foreign judgments or final orders. The case shall be further referred to as the appellant and the
effect of a judgment or final order of a tribunal of a foreign adverse party as the appellee. (a)
country, having jurisdiction to render the judgment or final
order is as follows: Section 2. When to appeal. An appeal may be taken within
fifteen (15) days after notice to the appellant of the
(a) In case of a judgment or final order upon a specific thing, judgment or final order appealed from. Where a record on
the judgment or final order, is conclusive upon the title to appeal is required, the appellant shall file a notice of appeal
the thing, and and a record on appeal within thirty (30) days after notice of
the judgment or final order.
(b) In case of a judgment or final order against a person, the

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The period of appeal shall be interrupted by a timely motion the branch clerk of court of the lower court shall transmit
for new trial or reconsideration. No motion for extension of the original record or the record on appeal, together with the
time to file a motion for new trial or reconsideration shall be transcripts and exhibits, which he shall certify as complete,
allowed. (n) to the proper Regional Trial Court. A copy of his letter of
transmittal of the records to the appellate court shall be
Section 3. How to appeal. The appeal is taken by filing a furnished the parties. (n)
notice of appeal with the court that rendered the judgment
or final order appealed from. The notice of appeal shall Section 7. Procedure in the Regional Trial Court.
indicate the parties to the appeal, the judgment or final
order or part thereof appealed from, and state the material (a) Upon receipt of the complete record or the record on
dates showing the timeliness of the appeal. appeal, the clerk of court of the Regional Trial Court shall
notify the parties of such fact.
A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate (b) Within fifteen (15) days from such notice, it shall be the
appeals. duty of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy
The form and contents of the record on appeal shall be as of which shall be furnished by him to the adverse party.
provided in section 6, Rule 41. Within fifteen (15) days from receipt of the appellant's
memorandum, the appellee may file his memorandum. Failure of
Copies of the notice of appeal, and the record on appeal the appellant to file a memorandum shall be a ground for
where required, shall be served on the adverse party. (n) dismissal of the appeal.

Section 4. Perfection of appeal; effect thereof. The (c) Upon the filing of the memorandum of the appellee, or the
perfection of the appeal and the effect thereof shall be expiration of the period to do so, the case shall be considered
governed by the provisions of section 9, Rule 41. (n) submitted for decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the proceedings
Section 5. Appellate court docket and other lawful fees. had in the court of original and such memoranda as are filed.
Within the period for taking an appeal, the appellant shall (n)
pay to the clerk of the court which rendered the judgment or
final order appealed from the full amount of the appellate Section 8. Appeal from orders dismissing case without trial;
court docket and other lawful fees. Proof of payment thereof lack of jurisdiction. If an appeal is taken from an order of
shall be transmitted to the appellate court together with the the lower court dismissing the case without a trial on the
original record or the record on appeal, as the case may be. merits, the Regional Trial Court may affirm or reverse it, as
(n) the case may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject matter, the
Section 6. Duty of the clerk of court. Within fifteen (15) Regional Trial Court, if it has jurisdiction thereover, shall try
days from the perfection of the appeal, the clerk of court or the case on the merits as if the case was originally filed with

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it. In case of reversal, the case shall be remanded for further


RULE 41: APPEAL FROM THE REGIONAL TRIAL COURTS
proceedings.

If the case was tried on the merits by the lower court Section 1. Subject of appeal. An appeal may be taken from a
without jurisdiction over the subject matter, the Regional judgment or final order that completely disposes of the case,
Trial Court on appeal shall not dismiss the case if it has or of a particular matter therein when declared by these
original jurisdiction thereof, but shall decide the case in Rules to be appealable.
accordance with the preceding section, without prejudice to
the admission of amended pleadings and additional evidence in No appeal may be taken from:
the interest of justice. (n)
(a) An order denying a motion for new trial or reconsideration;
Section 9. Applicability of Rule 41. The other provisions of
Rule 41 shall apply to appeals provided for herein insofar as (b) An order denying a petition for relief or any similar motion
they are not inconsistent with or may serve to supplement the seeking relief from judgment;
provisions of this Rule. (n)
(c) An interlocutory order;
MTCFile a notice of appeal first with the MTC to appealRTC
All records will be elevated to the RTC (d) An order disallowing or dismissing an appeal;
RTC judge will order parties to submit memoranda
No trial de novo in the RTC (e) An order denying a motion to set aside a judgment by
If RTC affirms the MTC decision, where will you go? consent, confession or compromise on the ground of fraud,
RTC exercises appellate jurisdiction, so go to the CA may it be mix of mistake or duress, or any other ground vitiating consent;
questions of fact and law by way of Petition of Review (2nd layer of
appeal) (f) An order of execution;
CA doesn't automatically entertain the Petition for Review. It may
determine at first instance the substance and merits of the petition. (g) A judgment or final order for or against one or more of
If the CA gives due course to the petition, parties may be allowed to several parties or in separate claims, counterclaims, cross-
submit oral arguments and/or written memorandum. claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and

PERFECTION OF APPEAL
(h) An order dismissing an action without prejudice.
If appellant, by filing of notice of appeal and payment of appeal
fees In all the above instances where the judgment or final order
If there are other defendants, and each separately filed appeals, is not appealable, the aggrieved party may file an appropriate
there is perfection when the last defendant has filed his notice of
special civil action under Rule 65. (n)
appeal and paid the appropriate appeal fees
NO APPEAL MAY BE TAKEN ON THE FOLLOWING

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1. An order denying a motion for new trial or reconsideration; the Rule 45. (n)
2. An order denying a petition for relief or any similar motion seeking
relief from judgment; Section 3. Period of ordinary appeal. The appeal shall be
3. An interlocutory order; taken within fifteen (15) days from notice of the judgment or
4. An order disallowing or dismissing an appeal; final order appealed from. Where a record on appeal is
5. An order denying a motion to set aside a judgment by consent, required, the appellant shall file a notice of appeal and a
confession or compromise on the ground of fraud, mistake or record on appeal within thirty (30) days from notice of the
duress, or any other ground vitiating consent; judgment or final order.
6. An order of execution;
7. A judgment or final order for or against one or more of several The period of appeal shall be interrupted by a timely motion
parties or in separate claims, counterclaims, cross-claims and for new trial or reconsideration. No motion for extension of
third-party complaints, while the main case is pending, unless time to file a motion for new trial or reconsideration shall be
the court allows an appeal therefrom; and allowed. (n)
8. An order dismissing an action without prejudice.
Section 4. Appellate court docket and other lawful fees.
Proper remedy is to file the appropriate action under Rule 65 Within the period for taking an appeal, the appellant shall
pay to the clerk of the court which rendered the judgment or
Section 2. Modes of appeal. final order appealed from, the full amount of the appellate
court docket and other lawful fees. Proof of payment of said
(a) Ordinary appeal. The appeal to the Court of Appeals in fees shall be transmitted to the appellate court together
cases decided by the Regional Trial Court in the exercise of with the original record or the record on appeal. (n)
its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final Section 5. Notice of appeal. The notice of appeal shall
order appealed from and serving a copy thereof upon the indicate the parties to the appeal, specify the judgment or
adverse party. No record on appeal shall be required except in final order or part thereof appealed from, specify the court
special proceedings and other cases of multiple or separate to which the appeal is being taken, and state the material
appeals where law on these Rules so require. In such cases, dates showing the timeliness of the appeal. (4a)
the record on appeal shall be filed and served in like manner.
Section 6. Record on appeal; form and contents thereof. The
(b) Petition for review. The appeal to the Court of Appeals in full names of all the parties to the proceedings shall be
cases decided by the Regional Trial Court in the exercise of stated in the caption of the record on appeal and it shall
its appellate jurisdiction shall be by petition for review in include the judgment or final order from which the appeal is
accordance with Rule 42. taken and, in chronological order, copies of only such
pleadings, petitions, motions and all interlocutory orders as
(c) Appeal by certiorari. In all cases where only questions of are related to the appealed judgment or final order for the
law are raised or involved, the appeal shall be to the Supreme proper understanding of the issue involved, together with such
Court by petition for review on certiorari in accordance with data as will show that the appeal was perfected on time. If

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an issue of fact is to be raised on appeal, the record on appeal by notice of appeal is deemed perfected as to him upon
appeal shall include by reference all the evidence, testimonial the filing of the notice of appeal in due time.
and documentary, taken upon the issue involved. The reference
shall specify the documentary evidence by the exhibit A party's appeal by record on appeal is deemed perfected as
numbers or letters by which it was identified when admitted to him with respect to the subject matter thereof upon the
or offered at the hearing, and the testimonial evidence by the approval of the record on appeal filed in due time.
names of the corresponding witnesses. If the whole
testimonial and documentary evidence in the case is to be In appeals by notice of appeal, the court loses jurisdiction
included, a statement to that effect will be sufficient without over the case upon the perfection of the appeals filed in due
mentioning the names of the witnesses or the numbers or time and the expiration of the time to appeal of the other
letters of exhibits. Every record on appeal exceeding twenty parties.
(20) pages must contain a subject index. (6a)
In appeals by record on appeal, the court loses jurisdiction
Section 7. Approval of record on appeal. Upon the filing of only over the subject matter thereof upon the approval of the
the record on appeal for approval and if no objection is filed records on appeal filed in due time and the expiration of the
by the appellee within five (5) days from receipt of a copy appeal of the other parties.
thereof, the trial court may approve it as presented or upon
its own motion or at the instance of the appellee, may direct In either case, prior to the transmittal of the original record
its amendment by the inclusion of any omitted matters which or the record on appeal, the court may issue orders for the
are deemed essential to the determination of the issue of law protection and preservation of the rights of the parties which
or fact involved in the appeal. If the trial court orders the do not involve any matter litigated by the appeal, approve
amendment of the record, the appellant, within the time compromises, permit appeals of indigent litigants, order
limited in the order, or such extension thereof as may be execution pending appeal in accordance with 2 of Rule 39, and
granted, or if no time is fixed by the order within ten (10) allow withdrawal of the appeal. (9a)
days from receipt thereof, shall redraft the record by
including therein, in their proper chronological sequence, such Section 10. Duty of clerk of court of the lower court upon
additional matters as the court may have directed him to perfection of appeal. Within thirty (30) days after perfection
incorporate, and shall thereupon submit the redrafted record of all the appeals in accordance with the preceding section, it
for approval, upon notice to the appellee, in like manner as shall be the duty of the clerk of court of the lower court:
the original draft. (7a)
(a) To verify the correctness of the original record or the
Section 8. Joint record on appeal. Where both parties are record on appeal, as the case may be aid to make certification
appellants, they may file a joint record on appeal within the of its correctness;
time fixed by section 3 of this Rule, or that fixed by the
court. (8a) (b) To verify the completeness of the records that will be,
transmitted to the appellate court;
Section 9. Perfection of appeal; effect thereof. A party's

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(c) If found to be incomplete, to take such measures as may certified true copy of the minutes of the proceedings, the
be required to complete the records, availing of the authority order of approval, the certificate of correctness, the original
that he or the court may exercise for this purpose; and documentary evidence referred to therein, and the original
and three (3) copies of the transcripts. Copies of the
(d) To transmit the records to the appellate court. transcripts and certified true copies of the documentary
evidence shall remain in the lower court for the examination
If the efforts to complete the records fail, he shall indicate of the parties. (11a)
in his letter of transmittal the exhibits or transcripts not
included in the records being transmitted to the appellate Section 13. Dismissal of appeal. Prior to the transmittal of
court, the reasons for their non-transmittal, and the steps the original record or the record on appeal to the appellate
taken or that could be taken to have them available. court, the trial court may motu propio or on motion dismiss
the appeal for having been taken out of time. (14a)
The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court. RTCfile a notice of appeal and record of appeal (if required;
(10a) compilation of copies of pertinent pleadings; 30 days if needed)
Where to go? It depends.
Section 11. Transcript. Upon the perfection of the appeal, the If there are factual issues, CA.
clerk shall immediately direct the stenographers concerned to If pure questions of law, go directly to the SC by Rule 45.
attach to the record of the case five (5) copies of the If you appeal to the CA from RTC in exercise of original jurisdiction, the
transcripts of the testimonial evidence referred to in the CA must process the appeal.
record on appeal. The stenographers concerned shall If you lose again in the CA, you can further appeal with the SC.
transcribe such testimonial evidence and shall prepare and
affix to their transcripts an index containing the names of
the witnesses and the pages wherein their testimonies are RULE 42: PETITION FOR REVIEW FROM THE REGIONAL TRIAL
found, and a list of the exhibits and the pages wherein each COURTS TO THE COURT OF APPEALS
of them appears to have been offered and admitted or
rejected by the trial court. The transcripts shall be
Section 1. How appeal taken; time for filing. A party desiring
transmitted to the clerk of the trial court who shall
to appeal from a decision of the Regional Trial Court rendered
thereupon arrange the same in the order in which the
in the exercise of its appellate jurisdiction may file a verified
witnesses testified at the trial, and shall cause the pages to
petition for review with the Court of Appeals, paying at the
be numbered consecutively. (12a)
same time to the clerk of said court the corresponding docket
and other lawful fees, depositing the amount of P500.00 for
Section 12. Transmittal. The clerk of the trial court shall
costs, and furnishing the Regional Trial Court and the adverse
transmit to the appellate court the original record or the
party with a copy of the petition. The petition shall be filed
approved record on appeal within thirty (30) days from the
and served within fifteen (15) days from notice of the decision
perfection of the appeal, together with the proof of payment
sought to be reviewed or of the denial of petitioner's motion
of the appellate court docket and other lawful fees, a
for new trial or reconsideration filed in due time after

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judgment. Upon proper motion and the payment of the full inform the aforesaid courts and other tribunal or agency
amount of the docket and other lawful fees and the deposit thereof within five (5) days therefrom. (n)
for costs before the expiration of the reglementary period,
the Court of Appeals may grant an additional period of fifteen Section 3. Effect of failure to comply with requirements. The
(15) days only within which to file the petition for review. No failure of the petitioner to comply with any of the foregoing
further extension shall be granted except for the most requirements regarding the payment of the docket and other
compelling reason and in no case to exceed fifteen (15) days. lawful fees, the deposit for costs, proof of service of the
(n) petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
Section 2. Form and contents. The petition shall be filed in dismissal thereof. (n)
seven (7) legible copies, with the original copy intended for
the court being indicated as such by the petitioner, and shall Section 4. Action on the petition. The Court of Appeals may
(a) state the full names of the parties to the case, without require the respondent to file a comment on the petition, not
impleading the lower courts or judges thereof either as a motion to dismiss, within ten (10) days from notice, or
petitioners or respondents; (b) indicate the specific material dismiss the petition if it finds the same to be patently
dates showing that it was filed on time; (c) set forth without merit, prosecuted manifestly for delay, or that the
concisely a statement of the matters involved, the issues questions raised therein are too insubstantial to require
raised, the specification of errors of fact or law, or both, consideration. (n)
allegedly committed by the Regional Trial Court, and the
reasons or arguments relied upon for the allowance of the Section 5. Contents of comment. The comment of the
appeal; (d) be accompanied by clearly legible duplicate respondent shall be filed in seven (7) legible copies,
originals or true copies of the judgments or final orders of accompanied by certified true copies of such material portions
both lower courts, certified correct by the clerk of court of of the record referred to therein together with other
the Regional Trial Court, the requisite number of plain copies supporting papers and shall (a) state whether or not he
thereof and of the pleadings and other material portions of accepts the statement of matters involved in the petition; (b)
the record as would support the allegations of the petition. point out such insufficiencies or inaccuracies as he believes
exist in petitioner's statement of matters involved but without
The petitioner shall also submit together with the petition a repetition; and (c) state the reasons why the petition should
certification under oath that he has not theretofore not be given due course. A copy thereof shall be served on
commenced any other action involving the same issues in the the petitioner. (a)
Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such Section 6. Due course. If upon the filing of the comment or
other action or proceeding, he must state the status of the such other pleadings as the court may allow or require, or
same; and if he should thereafter learn that a similar action after the expiration of the period for the filing thereof
or proceeding has been filed or is pending before the Supreme without such comment or pleading having been submitted, the
Court, the Court of Appeals, or different divisions thereof, or Court of Appeals finds prima facie that the lower court has
any other tribunal or agency, he undertakes to promptly committed an error of fact or law that will warrant a

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reversal or modification of the appealed decision, it may court itself. (n)


accordingly give due course to the petition. (n)
RULE 43: APPEALS FROM THE COURT OF TAX APPEALS AND
Section 7. Elevation of record. Whenever the Court of
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Appeals deems it necessary, it may order the clerk of court of
the Regional Trial Court to elevate the original record of the
case including the oral and documentary evidence within Section 1. Scope. This Rule shall apply to appeals from
fifteen (15) days from notice. (n) judgments or final orders of the Court of Tax Appeals and
from awards, judgments, final orders or resolutions of or
Section 8. Perfection of appeal; effect thereof. (a) Upon the authorized by any quasi-judicial agency in the exercise of its
timely filing of a petition for review and the payment of the quasi-judicial functions. Among these agencies are the Civil
corresponding docket and other lawful fees, the appeal is Service Commission, Central Board of Assessment Appeals,
deemed perfected as to the petitioner. Securities and Exchange Commission, Office of the President,
Land Registration Authority, Social Security Commission, Civil
The Regional Trial Court loses jurisdiction over the case upon Aeronautics Board, Bureau of Patents, Trademarks and
the perfection of the appeals filed in due time and the Technology Transfer, National Electrification Administration,
expiration of the time to appeal of the other parties. Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic
However, before the Court of Appeals gives due course to the Act No. 6657, Government Service Insurance System,
petition, the Regional Trial Court may issue orders for the Employees Compensation Commission, Agricultural Invention
protection and preservation of the rights of the parties which Board, Insurance Commission, Philippine Atomic Energy
do not involve any matter litigated by the appeal, approve Commission, Board of Investments, Construction Industry
compromises, permit appeals of indigent litigants, order Arbitration Commission, and voluntary arbitrators authorized
execution pending appeal in accordance with section 2 of Rule by law. (n)
39, and allow withdrawal of the appeal. (9a, R41)
Section 2. Cases not covered. This Rule shall not apply to
(b) Except in civil cases decided under the Rule on Summary judgments or final orders issued under the Labor Code of the
Procedure, the appeal shall stay the judgment or final order Philippines. (n)
unless the Court of Appeals, the law, or these Rules shall
provide otherwise. (a) Section 3. Where to appeal. An appeal under this Rule may
be taken to the Court of Appeals within the period and in the
Section 9. Submission for decision. If the petition is given manner herein provided, whether the appeal involves questions
due course, the Court of Appeals may set the case for oral of fact, of law, or mixed questions of fact and law. (n)
argument or require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall be Section 4. Period of appeal. The appeal shall be taken within
deemed submitted for decision upon the filing of the last fifteen (15) days from notice of the award, judgment, final
pleading or memorandum required by these Rules or by the order or resolution, or from the date of its last publication, if

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publication is required by law for its effectivity, or of the order or resolution appealed from, together with certified
denial of petitioner's motion for new trial or reconsideration true copies of such material portions of the record referred
duly filed in accordance with the governing law of the court to therein and other supporting papers; and (d) contain a
or agency a quo. Only one (1) motion for reconsideration shall sworn certification against forum shopping as provided in the
be allowed. Upon proper motion and the payment of the full last paragraph of section 2, Rule 42. The petition shall state
amount of the docket fee before the expiration of the the specific material dates showing that it was filed within
reglementary period, the Court of Appeals may grant an the period fixed herein. (2a)
additional period of fifteen (15) days only within which to file
the petition for review. No further extension shall be granted Section 7. Effect of failure to comply with requirements. The
except for the most compelling reason and in no case to failure of the petitioner to comply with any of the foregoing
exceed fifteen (15) days. (n) requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the
Section 5. How appeal taken. Appeal shall be taken by filing petition, and the contents of and the documents which should
a verified petition for review in seven (7) legible copies with accompany the petition shall be sufficient ground for the
the Court of Appeals, with proof of service of a copy thereof dismissal thereof. (n)
on the adverse party and on the court or agency a quo. The
original copy of the petition intended for the Court of Appeals Section 8. Action on the petition. The Court of Appeals may
shall be indicated as such by the petitioner. require the respondent to file a comment on the petition not a
motion to dismiss, within ten (10) days from notice, or dismiss
Upon the filing of the petition, the petitioner shall pay to the the petition if it finds the same to be patently without merit,
clerk of court of the Court of Appeals the docketing and prosecuted manifestly for delay, or that the questions raised
other lawful fees and deposit the sum of P500.00 for costs. therein are too unsubstantial to require consideration. (6a)
Exemption from payment of docketing and other lawful fees
and the deposit for costs may be granted by the Court of Section 9. Contents of comment. The comment shall be filed
Appeals upon a verified motion setting forth valid grounds within ten (10) days from notice in seven (7) legible copies and
therefor. If the Court of Appeals denies the motion, the accompanied by clearly legible certified true copies of such
petitioner shall pay the docketing and other lawful fees and material portions of the record referred to therein together
deposit for costs within fifteen (15) days from notice of the with other supporting papers. The comment shall (a) point out
denial. (n) insufficiencies or inaccuracies in petitioner's statement of
facts and issues; and (b) state the reasons why the petition
Section 6. Contents of the petition. The petition for review should be denied or dismissed. A copy thereof shall be served
shall (a) state the full names of the parties to the case, on the petitioner, and proof of such service shall be filed with
without impleading the court or agencies either as petitioners the Court of Appeals. (9a)
or respondents; (b) contain a concise statement of the facts
and issues involved and the grounds relied upon for the Section 10. Due course. If upon the filing of the comment or
review; (c) be accompanied by a clearly legible duplicate such other pleadings or documents as may be required or
original or a certified true copy of the award, judgment, final allowed by the Court of Appeals or upon the expiration of the

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period for the filing thereof, and on the records the Court of it was in the court of origin, but the party appealing the case
Appeals finds prima facie that the court or agency concerned shall be further referred to as the appellant and the adverse
has committed errors of fact or law that would warrant party as the appellee. (1a, R46)
reversal or modification of the award, judgment, final order or
resolution sought to be reviewed, it may give due course to Section 2. Counsel and guardians. The counsel and guardians
the petition; otherwise, it shall dismiss the same. The findings ad litem of the parties in the court of origin shall be
of fact of the court or agency concerned, when supported by respectively considered as their counsel and guardians ad
substantial evidence, shall be binding on the Court of Appeals. litem in the Court of Appeals. When others appear or are
(n) appointed, notice thereof shall be served immediately on the
adverse party and filed with the court. (2a, R46)
Section 11. Transmittal of record. Within fifteen (15) days
from notice that the petition has been given due course, the Section 3. Order of transmittal of record. If the original
Court of Appeals may require the court or agency concerned record or the record on appeal is not transmitted to the Court
to transmit the original or a legible certified true copy of the of Appeals within thirty (30) days after the perfection of the
entire record of the proceeding under review. The record to appeal, either party may file a motion with the trial court,
be transmitted may be abridged by agreement of all parties with notice to the other, for the transmittal of such record
to the proceeding. The Court of Appeals may require or permit or record on appeal. (3a, R46)
subsequent correction of or addition to the record. (8a)
Section 4. Docketing of case. Upon receiving the original
Section 12. Effect of appeal. The appeal shall not stay the record or the record on appeal and the accompanying
award, judgment, final order or resolution sought to be documents and exhibits transmitted by the lower court, as
reviewed unless the Court of Appeals shall direct otherwise well as the proof of payment of the docket and other lawful
upon such terms as it may deem just. (10a) fees, the clerk of court of the Court of Appeals shall docket
the case and notify the parties thereof. (4a, R46)
Section 13. Submission for decision. If the petition is given
due course, the Court of Appeals may set the case for oral Within ten (10) days from receipt of said notice, the
argument or require the parties to submit memoranda within a appellant, in appeals by record on appeal, shall file with the
period of fifteen (15) days from notice. The case shall be clerk of court seven (7) clearly legible copies of the approved
deemed submitted for decision upon the filing of the last record on appeal, together with the proof of service of two
pleading or memorandum required by these Rules or by the (2) copies thereof upon the appellee.
court of Appeals. (n)
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of
RULE 44: ORDINARY APPEALED CASES
the appeal. (n)

Section 1. Title of cases. In all cases appealed to the Court Section 5. Completion of record. Where the record of the
of Appeals under Rule 41, the title of the case shall remain as docketed case is incomplete, the clerk of court of the Court

BY: MA. ANGELA LEONOR C. AGUINALDO


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of Appeals shall so inform said court and recommend to it respective memoranda within a non-extendible period of thirty
measures necessary to complete the record. It shall be the (30) days from receipt of the notice issued by the clerk that
duty of said court to take appropriate action towards the all the evidence, oral and documentary, is already attached to
completion of the record within the shortest possible time. (n) the record. (13a, R46)

Section 6. Dispensing with complete record. Where the The failure of the appellant to file his memorandum within the
completion of the record could not be accomplished within a period therefor may be a ground for dismissal of the appeal.
sufficient period allotted for said purpose due to insuperable (n)
or extremely difficult causes, the court, on its own motion or
on motion of any of the parties, may declare that the record Section 11. Several appellants or appellees or several counsel
and its accompanying transcripts and exhibits so far available for each party. Where there are several appellants or
are sufficient to decide the issues raised in the appeal, and appellees, each counsel representing one or more but not all
shall issue an order explaining the reasons for such of them shall be served with only one copy of the briefs.
declaration. (n) When several counsel represent one appellant or appellee,
copies of the brief may be served upon any of them. (14a,
Section 7. Appellant's brief. It shall be the duty of the R46)
appellant to file with the court, within forty-five (45) days
from receipt of the notice of the clerk that all the evidence, Section 12. Extension of time for filing briefs. Extension of
oral and documentary, are attached to the record, seven (7) time for the filing of briefs will not be allowed, except for
copies of his legibly typewritten, mimeographed or printed good and sufficient cause, and only if the motion for extension
brief, with proof of service of two (2) copies thereof upon the is filed before the expiration of the time sought to be
appellee. (10a, R46) extended. (15, R46)

Section 8. Appellee's brief. Within forty-five (45) days from Section 13. Contents of appellant's brief. The appellant's
receipt of the appellant's brief, the appellee shall file with brief shall contain, in the order herein indicated, the
the court seven (7) copies of his legibly typewritten, following:
mimeographed or printed brief, with proof of service of two
(2) copies thereof upon the appellant. (11a, R46) (a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
Section 9. Appellant's reply brief. Within twenty (20) days alphabetically arranged, textbooks and statutes cited with
from receipt of the appellee's brief, the appellant may file a references to the pages where they are cited;
reply brief answering points in the appellee's brief not
covered in his main brief. (12a, R46) (b) An assignment of errors intended to be urged, which errors
shall be separately, distinctly and concisely stated without
Section 10. Time of filing memoranda in special cases. In repetition and numbered consecutively;
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file in lieu of briefs, their (c) Under the heading "Statement of the Case," a clear and

BY: MA. ANGELA LEONOR C. AGUINALDO


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concise statement of the nature of the action, a summary of (b) Under the heading "Statement of Facts," the appellee
the proceedings, the appealed rulings and orders of the court, shall state that he accepts the statement of facts in the
the nature of the judgment and any other matters necessary appellant's brief, or under the heading "Counter-Statement of
to an understanding of the nature of the controversy with Facts," he shall point out such insufficiencies or inaccuracies
page references to the record; as he believes exist in the appellant's statement of facts with
references to the pages of the record in support thereof, but
(d) Under the heading "Statement of Facts," a clear and without repetition of matters in the appellant's statement of
concise statement in a narrative form of the facts admitted facts; and
by both parties and of those in controversy, together with the
substance of the proof relating thereto in sufficient detail to (c) Under the heading "Argument," the appellee shall set forth
make it clearly intelligible, with page references to the his arguments in the case on each assignment of error with
record; page references to the record. The authorities relied on shall
be cited by the page of the report at which the case begins
(e) A clear and concise statement of the issues of fact or law and the page of the report on which the citation is found.
to be submitted, to the court for its judgment; (17a, R46)

(f) Under the heading "Argument," the appellant's arguments Section 15. Questions that may be raised on appeal. Whether
on each assignment of error with page references to the or not the appellant has filed a motion for new trial in the
record. The authorities relied upon shall be cited by the page court below he may include in his assignment of errors any
of the report at which the case begins and the page of the question of law or fact that has been raised in the court
report on which the citation is found; below and which is within the issues framed by the parties.
(18, R46)
(g) Under the heading "Relief," a specification of the order or
judgment which the appellant seeks; and
RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT
(h) In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a copy of the Section 1. Filing of petition with Supreme Court. A party
judgment or final order appealed from. (16a, R46) desiring to appeal by certiorari from a judgment or final order
or resolution of the Court of Appeals, the Sandiganbayan, the
Section 14. Contents of appellee's brief. The appellee's brief Regional Trial Court or other courts whenever authorized by
shall contain, in the order herein indicated the following: law, may file with the Supreme Court a verified petition for
review on certiorari. The petition shall raise only questions of
(a) A subject index of the matter in the brief with a digest of law which must be distinctly set forth. (1a, 2a)
the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with Section 2. Time for filing; extension. The petition shall be
references to the pages where they are cited; filed within fifteen (15) days from notice of the judgment or
final order or resolution appealed from, or of the denial of

BY: MA. ANGELA LEONOR C. AGUINALDO


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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)
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the petitioner's motion for new trial or reconsideration filed in


due time after notice of the judgment. On motion duly filed Section 5. Dismissal or denial of petition. The failure of the
and served, with full payment of the docket and other lawful petitioner to comply with any of the foregoing requirements
fees and the deposit for costs before the expiration of the regarding the payment of the docket and other lawful fees,
reglementary period, the Supreme Court may for justifiable deposit for costs, proof of service of the petition, and the
reasons grant an extension of thirty (30) days only within contents of and the documents which should accompany the
which to file