Civil Procedure

ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER
3. Special Proceedings – remedy by which a party seeks to establish a status, a ri

ght, or a particular fact.
CIVIL PROCEDURE
CLASSIFICATION OF ACTIONS (A) As to nature
ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also gove
rned by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71)
. Special features not found in ordinary civil actions.
RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are n
ot penal statutes. They cannot be given retroactive effect. They can, however, b
e made applicable to cases pending at the time of their passage and therefore ar
e retroactive in that sense. Under the 1987 Constitution, the rule-making power
of the Supreme Court has the following limitations: 1. It must provide a simplif
ied and inexpensive procedure for the speedy disposition of cases; 2. Uniform fo
r all courts of the same grade; and 3. Shall not diminish, increase or modify su
bstantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable
Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed b
y one court of justice. against another. One party prosecutes The moment said cl
aim is another for the filed before a court, the enforcement or claim is convert
ed into an protection of a right or action or suit. QuickT the prevention or red
ress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. o
f a wrong. APPLICABILITY: 1. Civil Action – one by which a party sues another for
the enforcement or protection of a right or the prevention or redress of a wrong
. 2. Criminal Action – one by which the Stake prosecutes a person for an act or om
ission punishable by law.
Formal demand of one’s legal rights in a court of justice in the manner prescribed
by the court for by the law.
(B) As to object
ACTION IN REM Direct against the thing itself. Jurisdiction over the person of t
he defendant is NOT required. ACTION IN PERSONAM Directed against particular per
sona Jurisdiction over the person of the defendant IS required. ACTION QUASI IN
REM Directed against particular persons. Jurisdiction over the person of the def
endant is NOT required as long as jurisdiction over the res is acquired. A proce
eding to subject the interest of a named defendant over a particular property to
an obligation or lien burdening it.
A proceeding to determine the state or condition of a thing.
An action to impose a responsibility or liability upon a person directly.
Judgment is binding on the whole world.
Ex. Probate proceeding; cadastral proceeding.
Judgment is binding only upon parties impleaded or their successors in interest.
Ex. Action for specific performance; action for breach of contract.
Judgment binding upon particular persons.
Ex. An action for partition; action to foreclose real estate mortgage.
—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Ly
nn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjam
in C. Yan—
Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The distinction is important in determining whether or not jurisdiction over the
persons of the defendant is required. (C) As to cause REAL ACTION PERSONAL ACTI
ON Ownership or Personal possession of property is real property is sought to be
involved. recovered or where damages for breach of contract are sought. Founded
on Founded on privity of real privity of estate. contract. Filed in the Filed i
n the court where the court where the property or any plaintiff or any part ther
eof is of the situated defendants resides, at the option of the plaintiff Ex. Ac
cion Ex. Action for a reinvidicatoria sum of money. MIXED ACTION Both real and p
ersonal properties are involved. The Rules of Court are applicable by analogy or
in a suppletory character and whenever practicable and convenient. Section 5. C
ommencement of action A civil action is commencement by: 1. The FILING OF THE CO
MPLAINT (when an additional defendant is impleaded in a later pleading, the acti
on is commenced with regard to him on the date of the filing of such LATER PLEAD
ING); and Cabrera v. Tiano 8 SCRA 54 (1963) Civil actions are deemed commenced f
rom the date of the filing and docketing of the complaint, without taking into a
ccount the issuance and service of summons 2. The PAYMENT OF DOCKET FEES (determ
ined not only in the amount of the claim but also by the amount of damages). NOT
E: The amount of damages should be specified not only in the body of pleading bu
t also in the prayer. Ex. Accion publicana with a claim for damages The court ma
y allow the payment of the deficient docket fee within a reasonable period but n
ot beyond the applicable prescriptive or reglementary period. An action can be c
ommenced by filing the complaint by registered mail. In which case, it is the da
te of mailing that is considered as the date of filing and not the date of the r
eceipt thereof by the clerk of court. Section 6. Construction GENERAL RULE: Libe
ral construction EXCEPTIONS: 1. reglementary periods; 2. rule on forum shopping.
Founded both.
on
The rules on venue of real actions shall govern.
The distinction is significant in determining the venue of an action. (D)As to p
lace of filing LOCAL ACTION TRANSITORY ACTION Must be brought in a Dependent on
the place particular place where the party resides where the subject regardless
of where the property is located, cause of action arose subjec unless there is a
n to Section 4, Rule 4. agreement to the contrary (Section 4, Rule 4). Ex. Actio
n to recover QuickTime™ and a to recover sum Ex. Action decompressor real property
. TIFF (Uncompressed) this picture. of money are needed to see Section 4. In wha
t cases not applicable
RULE 2 CAUSE OF ACTION Section 1. Ordinary Civil Actions, basis of
NOT APPLICABLE TO: 1. Election Cases; 2. Land registration/cadastral cases; 3. N
aturalization; 4. Insolvency proceedings; 5. Other cases not provided in the Rul
es of Court.
Section 2. Cause of action defined CAUSE OF ACTION – is the act or omission by whi
ch a party violates the right of another.
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The essential requisite of a cause of action 1. LEGAL RIGHT of the plaintiff. 2.
CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right; and 3. Act
or omission of the defendant in VIOLATION of the plaintiff’s legal right. RIGHT OF
ACTION – right of a person to bring and prosecute action to obtain judgment. The
essential requisites of a right of action: 1. There must be a GOOD CAUSE; 2. Com
pliance with all the CONDITONS PRECEDENT; and 3. Action, must be instituted by t
he PROPER PARTY. CAUSE OF ACTION Delict or wrongful act or omission committed by
the defendant in violation of the primary rights of the plaintiff. The reason a
ction. for the RIGHT OF ACTION Remedial right or right to relief granted by law
to a party to institute an action against a person who has committed a delict or
wrong against him. The remedy or means afforded or the consequent relief. The r
emedial right given to a person because of the occurrence of the alleged facts.
A matter of right and depends on substantive law. Affected by defenses. affirmat
ive Section 3. One suit for a single cause of action Section 4. Splitting a caus
e of action, effect of SPLITTING OF CAUSE OF ACTION – is the act of dividing a sin
gle or indivisible cause of action into several parts or claims and bringing sev
eral actions thereon. It is NOT ALLOWED. PURPOSE: To avoid multiplicity of suits
and unnecessary vexation and harassment of defendants. Applies NOT only to comp
laints counterclaims and cross-claims. but also to
Remedies against splitting a single cause of action: A. Motion to dismiss on the
ground of: 1. Litis pendentia (Rule 16, Section 1 [e]); or 2. Res judicata (Rul
e 16, Section 1 [f]). B. An answer alleging either as affirmative defense. (Rule
16, Section 6) GENERAL RULE: A contract embraces only one cause of action even
if it contains several stipulations. EXCEPTION: A contract to do several things
at several times is divisible, and judgment for a single breach of a continuing
contract is not a bar to a suit for a subsequent breach. (e.g., promissory not p
ayable in several installments so long as there is no acceleration clause) Bloss
om & Co. v. Manila Gas Corp., 55 Phil.226 (1930) DOCTRINE OF ANTICIPATORY BREACH
An UNQUALIFIED and POSITIVE REFUSAL to perform a contract, though the performan
ce thereof is not yet due, may, if the renunciation goes into the whole contract
, be treated as a complete breach which will entitle the injured party to bring
his action at once. Section 5. Joinder of causes of action Joinder of causes of
action is purely permissive. The plaintiff can always file separate actions for
each cause of action.
The formal statement of the operative facts that gives rise to remedial right. A
matter of procedure and depends on the pleadings filed by the parties. Not affe
cted by affirmative defenses (fraud, prescription, estoppel, etc.). RELIEF REMED
Y
SUBJECT MATTER The procedure The thing The redress, or appropriate wrongful act,
protection, legal form of contractor award or relief QuickTime™ and a property wh
ich is of action coercive TIFF (Uncompressed) decompressor which maythis picture
. directly involved measure are needed to see be availed of by in the action, wh
ich the the plaintiff as concerning which plaintiff prays the means to the wrong
has the court to obtain the been done and render in his desired relief. with re
spect to favor as which the consequence controversy has of the delict arisen. co
mmitted by the defendant.
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REQUISITES FOR JOINDER OF CAUSES OF ACTION: 1. The party joining the causes of a
ction must comply with the rules on joinder of parties. 2. The joinder shall not
include special and actions or actions governed by special rules. 3. Where the
causes of action are between the same parties but pertain to different venues or
jurisdiction is with the Regional Trial Court, provided that: a. One of the cau
ses of action falls within the jurisdiction of the RTC; and b. venue lies thereo
n. 4. Where the claims in the causes of action are principally for recovery of m
oney, the aggregate amount claimed shall be the test of jurisdiction. (Totality
Rule) NOTE: The following are the elements for a joinder of parties (Section 5,
Rule 3); - A right to relief in respect to or arising out of the same transactio
n or series of transaction and - A common question of law TOTALITY RULE UNDER BP
129 [Section 33(1)] Where there are several claims or causes of actions between
the same or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all causes of action, irrespectiv
e of whether the causes of action arose out of the same or different transaction
. NOTE: We will follow the totality rule in BP 129 because it is elementary in s
tatutory construction that in case of conflict, substantive law prevails over pr
ocedural laws. SPLITTING OF A JOINDER OF CAUSES CAUSE OF ACTION OF ACTION There
is a single cause Contemplate several of action. causes of action. PROHIBITED. I
t causes ENCOURAGED. It multiplicity of suits and minimizes multiplicity of doub
le vexation on the suits and inconvenience QuickTime™ and a TIFF (Uncompressed) de
compressor part of the defendant ed to seeonpicture. parties. the are need this
Section 6. Misjoinder of causes of action Not a ground for dismissal of an actio
n. A misjoined case of action may be severed and proceeded with separately. They
are those with such an interest in the There is no sanction against non-joinder
of separate causes of action since a plaintiff needs only a single cause of act
ion to maintain an action.
RULE 3 PARTIES TO CIVIL ACTIONS Section 1. Who may be parties; plaintiff and def
endant PARTIES TO A CIVIL ACTION 1. A natural person 2. A juridical person; or 3
. An entity authorized by law. PLAINTIFF – one having an interest in the matter of
the action or in obtaining the relief demanded. DEFENDANT - one claiming an int
erest in the controversy or the subject thereof adverse to the plaintiff. The te
rm defendant may include: 1. An unwilling plaintiff or one who should be joined
as plaintiff but refuses to give his consent thereto (Section 10, Rule 3); 2. Th
e original plaintiff becoming a defendant to original defendant’s counterclaim; an
d 3. One necessary to a complete determination or settlement of the questions in
volved therein: Section 2. Parties in interest REAL PARTY IN INTEREST – the party
who stands to be benefited or injured by the judgment in the suit or the party e
ntitled to the avails of the suit. INDISPENSABLE PARTIES Must be joined under an
y and all conditions, their presence being a sine qua non for the exercise of ju
dicial power. No valid judgment if indispensable party is not joined. NECESSARY
PARTIES Should be joined whenever possible, the action can proceed even in their
absence. The case may be determined in court but the judgment therein will not
resolve the entire controversy if a necessary party is not joined. They are thos
e whose presence is necessary to
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controversy that a final would necessarily affect their rights so that the court
cannot proceed without their presence. adjudicate the whole controversy but who
se interests are so far separable that a final decree can be made in their absen
ce without affecting them. being sufficient that his incompetency be alleged in
the corresponding pleadings. Section 6. Permissive joinder of parties PERMISSIVE
JOINDER - the rule on permissive joinder of parties is that they can be joined
in one single complaint or may themselves maintain or be sued in separate suits.
Requisites of permissive joinder of parties: 1. Right to relief arises out of t
he same transaction or series of transactions; 2. There is a question of law or
fact common to all the plaintiffs or defendants; and 3. Such joinder is not othe
rwise prescribed by the provisions of the rules on jurisdiction and venue. SERIE
S OF TRANSACTIONS – transactions connected with the same subject matter of the sui
t. Section 7. Compulsory joinder of Indispensable parties Section 8. Necessary p
arty JOINT DEBTORS – indispensable party in a suit against him but necessary party
in a suit against his co-debtor. Section 9. Non-joinder of necessary parties to
be pleaded Duty of a pleader whenever a necessary party is not joined or implea
ded: 1. State the name of the necessary party, if known; and 2. State why said n
ecessary arty is omitted in the pleading Should the court find the reason for th
e omission unmeritorious, it may order the inclusion of the omitted necessary pa
rty if jurisdiction over his person may be obtained by ordering plaintiff to fil
e an amended complaint impleading the necessary party therein as co-defendant. N
OTE: The failure to comply with the court’s order to include or join a necessary p
arty without justifiable cause shall be deemed a waiver of the claim against suc
h party. Section 10. Unwilling co-plaintiff
Tuason v. Bolanos 95 Phil 06 (1954) Section 2, Rule 3 of the Rules of Court requ
ires that an action must be brought in the name but not necessarily by the real
party in interest. In fact, the practice is for an attorney in fact to bring the
action, i.e., to file the complaint in the name of the plaintiff. CLASSIFICATIO
N OF PARTIES IN INTEREST: 1. Indispensable parties-those without whom and final
determination can be had of an action (must be joined under all conditions). 2.
Necessary (or proper) parties – those who are not indispensable but ought to be jo
ined as parties if complete relief is to be accorded as to those already parties
, of for a complete determination or settlement of the claim subject of the acti
on (may or may not be joined) 3. Representative parties – those acting in fiduciar
y capacity such as trustees, guardians, executors, or administrators. The benefi
ciary shall be included in the title of the case and shall be deemed to be real
part in interest. 4. Pro forma parties- those who are required to be joined as c
o-parties in suits by or against another party as may be provided by the applica
ble substantive law or procedural rule such as in the case of spouses under Sect
ion 4. 5. Quasi parties – those in whose behalf a class or representative suit is
brought.
TIFF (Uncompressed) decompressor Section 3. Representative this picture. are nee
ded to see as parties QuickTime™ and a
Section 4. Spouses as parties Section 5. Minor or incompetent Under the present
rules, a suit may be brought by or against a minor or incompetent but with the a
ssistance of his parents or his guardian. A person NEED NOT be judicially declar
ed incompetent, it
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If the consent of any party who should be joined as plaintiff can not be obtaine
d, he may be made a defendant and the reason therefore shall be stated in the co
mplaint. Section 11. Misjoinder and non-joinder of parties Neither misjoinder no
r non-joinder of parties is a ground for dismissal of the action NOTE: Objection
s to defects in parties should be made at the earliest opportunity, i.e., the mo
ment such defect becomes apparent, by a MOTION TO STRIKE THE NAMES OF THE PARTIE
S impleaded. Objections to misjoinder cannot be raised for the first time on app
eal. The non joinder of an indispensable or a necessary party is not by itself i
pso facto a ground for the dismissal of the action. The court should order the j
oinder of such party and non compliance with the said order would be a ground to
the dismissal of the action (Feria, 2001). Section 12. Class suit CLASS SUIT An
action where one or more may sue for the benefit of all, implying that if the p
arties are numerous and it is impracticable to bring them to court, one or more
may sue for their benefit. NOTE: An action does not become a class suit merely b
ecause it is designated as such in the pleadings. Whether the suit is or is not
a class suit depends upon the attending facts. REQUISITES OF A CLASS SUIT: 1. Su
bject matter of the controversy is one of common or GENERAL INTEREST to many per
sons; 2. The persons are so NUMEROUS that it is impracticable to join them all a
s parties; and 3. Parties bringing the class suit are SUFFICIENTLY NUMEROUS AND
REPRESENTATIVE of the class and can fully QuickTime™ protect the TIFF (Uncompresse
d)alland a interests of decompressor concerned; are needed to see this picture.
4. The representative sues or defends for the benefit of all. NOTE: Any party in
interest shall have the right to intervene to protect his individual interest.
(This is an instance when a person may intervene as a matter of right.) CLASS SU
IT There is one single action pertaining to numerous persons. Community of inter
ests. PERMISSIVE JOINDER OF PARTIES There are multiple causes of action separate
ly belonging to several perons.
Section 13. Alternative Defendants Where the plaintiff is uncertain against who
of several persons he is entitled to relief, he may join any OR all of them in t
he alternative, although a right to relief against one may be inconsistent with
a right to relief against the other. Section 14. defendant Unknown identity or n
ame of
REQUISITES: 1. There is a defendant 2. His identity or name is unknown; 3. Ficti
tious name may be used because of ignorance of defendant’s true name an said ignor
ance is alleged in the complaint; 4. Identifying description may be used; sued a
s unknown owner, heir, devisee, or other designation; 5. Amendment to the pleadi
ng when identify of true name is discovered; and 6. Defendant is the defendant b
eing sued, not a mere additional defendant. NOTE: Service of summons upon a defe
ndant whose identify is unknown may be made by publication in a newspaper of gen
eral circulation in accordance with Section 14of Rule 14. The action must howeve
r be converted into an action in rem or quasi by attaching the defendant’s propert
y in the Philippines. Section 15. Entity without juridical personality as defend
ant REQUISITES: 1. There are two or more persons not organized as a juridical en
tity; 2. They enter into a transaction; and 3. A wrong or delict is committed ag
ainst a third person in the course of such transaction. NOTE: Persons associated
in an entity without juridical personality may be sued under the name by which
they are generally or commonly known, but they cannot sue under such name. The s
ervice of summons may be effected upon all the defendants by serving upon any of
them, or upon the
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person in charge of the office or place of business maintained under such name (
Sec. 8, Rule 14). INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. Section
16. Death of party; duty of counsel This provision applies where the claim is NO
T thereby extinguished as in cases involving property and property rights such a
s: 1. Recovery of real and personal property against the estate; 2. Enforcement
of client on such properties and; 3. Recover for an injury to person or property
by reason of tort or delict committed by the deceased. In this case, the heirs
will be substituted for the deceased OR if no legal representative is named then
the court will order the opposing party to procure the appointment of an execut
or or administrator for the estate of the deceased.
In case of minor heirs, the court may appoint a guardian ad litem for them. The
substitute defendant need not be summoned. The ORDER OF SUBSTITUTION shall be se
rved upon the parties substituted for the court to acquire jurisdiction over the
substitute party.
C. Section 18. Incompetency or Incapacity In case a party becomes incompetent or
incapacitated, the action survives and may be continued by against the incompet
ent incapacitated assisted by his legal guardian or guardian ad litem who is his
legal representative. D. Section 19. Transfer of Interest NOTE: The transfer of
interest that is obviously referred to in this section is a transfer that occur
s during the pendency of the action. The transferor would no longer be the real
party in interest if the transfer is made before the commencement of the suit. G
ENERAL RULE: The rule does not consider the transferee an indispensable party. H
ence, the action may proceed without the need to implead him. EXCEPTION: When th
e substitution by or joinder of the transferee is ordered by court. The case wil
l be dismissed if the interest of plaintiff is transferred to defendant UNLESS t
here are several plaintiffs, in which case, the remaining plaintiffs can process
ed with their own cause of action. Section 20. Action on contractual money claim
s REQUISITES 1. The action must primarily be for RECOVERY OF MONEY, DEBT, OR INT
EREST thereon; 2. The claim, subject of the action, AROSE FROM CONTRACT, express
or implied; and 3. Defendant dies BEFORE THE ENTRY OF FINAL JUDGMENT in the cou
rt in which the action was pending NOTE: Under this section, the death of the de
fendant will not result in the dismissal of the action. The deceased shall be su
bstituted by his legal representatives in the manner provided for in Section 16
of Rule 3 and the action continues until the entry of final judgment. However, e
xecution shall not issue in favor of the winning party. It should be filed as a
claim against the estate of the decedent without need of proving the claim. Sect
ion 21. Indigent party
B. Section 17. Death or separation of a party who is a public officer REQUISITES
: 1. Public officer is a PARTY TO AN ACTION in his official capacity; 2. During
the pendency of the action, he either DIES, RESIGNS, OR OTHERWISE CEASES to hold
office; 3. It is satisfactorily shown to the court by any party, within 30 days
after the successor takes office, the there is a SUBSTANTIAL NEED for continuin
g or maintaining the action; 4. That the successor ADOPTS ORCONTINUES OR THREATE
NS TO ADOPT OR CONTINUE QuickTime™ and a TIFF (Uncompressed) decompressor the acti
on of are needed to see this picture. and his predecessor; 5. The party or offic
er affected has been given REASONABLE NOTICE of the application therefore and ac
corded an opportunity to be heard.
Page 9 of 289
Indigent – one who has no money or property sufficient and available for food, she
lter, and basic necessities. He need not be a pauper to entitle him to litigate
in forma pauperis While the authority to litigate as an indigent party may be gr
anted upon an ex parte application and hearing, it may be contested by the adver
se party at any time before judgment is rendered. If one is authorized to litiga
te as an indigent, such authority shall include: 1. An exemption from the paymen
t of docket fees; 2. An exemption from the payment of transcript of stenographic
notes. Section 22. Notice to the Solicitor General In the absence of qualifying
or restrictive words, venue stipulation is merely permissive meaning that the s
tipulated venue is in addition to the venue provided for in the rules. Examples
of qualifying or restrictive words: ‘’Only’’ ‘’Solely’’ ‘’Exclusively in this court’’ Secti
f real actions The venue is the place where the real property or any portion the
reof is located. If property is located at the boundaries of two places: File ca
se in either place at the option of the plaintiff. If case involves two properti
es located in two different places: 1. if the properties are the object of the s
ame transaction, file it in any of the two places; 2. If they are the subjects o
f two distinct transactions, separate actions should be filed in each place unle
ss property joined. Section 2. Venue of personal actions Raymond v. Court of App
eals 166 SCRA 50 (1988) RESIDENCE –should be viewed or understood in its popular s
ense, meaning the personal, actual, or physical habitation of a person, actual r
esidence or place of abode. VENUE OF PERSONAL ACTIONS: 1. Where the plaintiff or
any of the principal plaintiffs resides; 2. Were the defendant or any of the pr
incipal defendants resides; or 3. In the case of a non-resident defendant, the a
ction may be brought in the place where he may be found. NOTE: ALL AT THE ELECTI
ON OF THE PLAINTIFF. Means of waiving venue: 1. Failure to object via motion to
dismiss; 2. Affirmative relief sought in the court where the case is filed; 3. V
oluntary submission to the court where the case is filed; or 4. Laches. Section
3. Venue of actions against non-residents
RULE 4 VENUE OF ACTIONS VENUE – the place trial or geographical location in which
an action or proceeding should be brought. VENUE Place where the action is insti
tuted. Maybe waived JURISDICTION Power of the court to hear and decide a case. J
urisdiction over the subject matter over the nature of the action is conferred b
y law and cannot be waived. Substantive. Cannot be the subject of the agreement
of the parties.
Procedural. May be changed by the written agreement of the parties.
The rule on VENUE IS NOT APPLICABLE in cases: 1. Where a specific rule or law pr
ovides otherwise (i.e. an action for damages arising from libel); or 2. The part
ies have validly agreed in writing before the filing of the action in the exclus
ive venue thereof (Section 4). QuickTime™ and a REQUISITES FOR VENUE TO BE EXCLUSI
VE: 1. A valid written agreement; 2. Executed by the parties before the filing o
f the action; and 3. Exclusive nature of the venue. Polytrade Corp. v. Banco 30
SCRA 187 (1969)
TIFF (Uncompressed) decompressor are needed to see this picture.
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1. NON-RESIDENT FOUND IN THE PHILIPPINESa. for personal actions – where the plaint
iff resides; and b. for real actions – where the property is located. 2. NON-RESID
ENT NOT FOUND IN THE PHILIPPINES – An action may be filed only when the case invol
ves: a. Personal status of plaintiff – venue: where plaintiff resides; b. Any prop
erty of said defendant located in the Philippines – venue: where the property or a
ny portion thereof is situated or found. The Supreme Court has the power to orde
r a change of venue to prevent miscarriage of justice. Dacoycoy v. IAC 195 SCRA
641 (1991) The Court may not motu proprio dismiss a complaint on the ground of i
mproper venue. (). An exception is provided in Section 4 of the Rule on summary
Procedure. Section 4. When Rule not applicable
Preliminary conference within 30 days after last answer is filed
RULES ON SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES
Filing of verified complaint with the MTC
Court may summon the defendant
Court may dismiss the case outright
Within 10 days from receipt of summons defendant answers incorporating compulsor
y counterclaims or crossclaim & serves a copy on plaintiff
If Defendant fails to answer in 10 days—the court motu propio or on plaintiffs own
motion, may render judgment based on facts alleged in the complaint without pre
judice to RULE 9 Sec 3 (c)
Answer to counterclaim and crossclaim within 10 days
If plaintiff fails to appear n preliminary conference, complaint may be dismisse
d. Defendant entitle to decision based on his counterclaim. All crossclaim dismi
ssed
RULE 5 UNIFORM PROCEDURE IN TRIAL COURT Section 1. Uniform Procedure The procedu
re in the MTC shall be the dame as in the RTC, except: 1. where a particular pro
vision expressly or impliedly applies only to either of said courts or; 2. in ci
vil cases governed by the Rule on Summary Procedure Section 2. Meaning of terms
QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.
If sole defendant fails to appear, plaintiff entitled to judgment based on compl
aint and what is proved therein Within 5 days after conference, court issues rec
ord of preliminary conference
Within 10 days from receipt of order submission by the parties of affidavits and
position papers
Rendition of judgment within 30 days from receipt of last affidavit or within 15
days after last clarificatory paper
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their position papers setting forth the law and the facts relied upon by them. P
ROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE 1. Motion to d
ismiss the complaint or to quash the complaint or information except on the grou
nd of lack of jurisdiction over the subject matter or failure to comply with pri
or barangay conciliation (referral to the Lupon); 2. Motion for a bill of partic
ulars; 3. Motion for a new trial or for reconsideration of a judgment or for reo
pening of trial; 4. Petition for relief from judgment; 5. Motion for extension o
f time to file pleadings, affidavits, or any other paper; 6. Memorandum; 7. Peti
tion for certiorari, mandamus, or prohibition against any interlocutory order is
sued by the court; 8. Motion to declare defendant in default; 9. Dilatory motion
s for postponement; 10. Reply; 11. Third party complaints; 12. Interventions. Th
e filing of a prohibited pleading will not suspend the period to file an answer
or to appeal Heirs of Olivas v. Flor 161 SCRA 393 (1988) Although a motion to di
smiss is a prohibited pleading, its filing after the answer had already been sub
mitted does not constitute a pleading prohibited by the summary rules. What the
rules proscribe is a motion to dismiss that would stop the running of the period
to file an answer and cause undue delay. NOTE: While a motion to declare the de
fendant in default is prohibited by the rules on summary procedure, the plaintif
f may nevertheless file a motion to render judgment as may be warranted when the
defendant fails to file an answer. The issuance of the pre-trial order is an im
portant part of the summary procedure because it is its receipt by the parties t
hat begins the ten0day period to submit the affidavitsQuickTime™ and a evidence. a
nd other TRIAL PROCEDURE IN CIVIL CASES No testimonial evidence is required nor
cross examination of witnesses allowed. All that is required is that within (10)
days from receipt by the parties of the court’s pre-trial order, they shall submi
t: 1. The affidavits of their witnesses; and 2. Other evidence on the factual is
sues set forth in the pre-trial order, together with
TIFF (Uncompressed) decompressor are needed to see this picture.
Judgments of inferior courts in cases governed by summary procedure are applicab
le to the RTC. The decision of the RTC (on appeal) in civil cases under this rul
e, including ejectment cases, are IMMEDIATELY EXECUTORY. KATARUNGANG PAMBARANGAY
LAW (Title One, Book III, RA 7160) No complaint petition, action, or proceeding
involving any matter within the authority of the lupon shall be fired or instit
uted directly in court or any other government office for adjudication UNLESS 1.
There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or p
angkat; and 2. That no conciliation or settlement has been reached OR unless the
settlement has been repudiated by the parties thereto. CASES NOT COVERED BY THE
KATARUNGANG PAMBARANGAY LAW (SUBSTANTIVE EXCEPTIONS): 1. Where one party is the
government or any subdivision or instrumentality thereof; 2. Where one party is
a public officer or employee, and the disputer relates to the performance of hi
s official functions; 3. Offenses punishable by imprisonment exceeding 1 year or
a fine exceeding P5,000.00; 4. Offenses where there is no private offended part
y (i.e. genocide); 5. Where the dispute involves real properties located indiffe
rent cities or municipalities UNLESS the parties thereto agree to submit their d
ifferences to amicable settlement by an appropriate lupon; 6. Disputes involving
parties who actually reside in barangays of different cities or municipalities,
EXCEPT: a. where such barangay units adjoin each other; and b. the parties ther
eto agree to submit their differences to amicable settlement by an appropriate l
upon; 7. Such other classes of disputes which the President may determine in the
interest of justice; 8. The court may, at any time before trial, motu proprio r
efer the case concerned to the lupon for amicable settlement, non criminal cases
Page 12 of 289
not falling within the authority of the latter; and 9. Where one of the parties
is a juridical entity. While the dispute is under mediation, conciliation, or ar
bitration, the prescriptive periods for offenses and cause of action under exist
ing laws shall be interrupted upon filing or the complaint with the punong baran
gay. Such interruption shall not exceed 60 days from the time of the filing of t
he complaint with the punong barangay. THE PARTIES MAY GO DIRECTLY TO COURT IN T
HE FOLLOWING INSTANCES (PROCEDURAL EXCEPTIONS): 1. Where the accused is under po
lice CUSTODY or detention; 2. Where the person has otherwise been deprived of pe
rsonal liberty calling for HABEAS CORPUS proceeding; 3. Where the ACTIONS are co
upled with provisional remedies such as preliminary injunction, attachment, deli
very of personal property, and support pendente lite; 4. Where the action may ot
herwise be barred by the STATUTE OF LIMITATIONS; 5. LABOR Disputes (Montaya v. E
scayo 171 SCRA 442)); 6. Any CLASS OF DISPUTE which the President may determine
in the interest of justice or upon recommendation of the secretary of Justice; 7
. CARL disputes; and 8. Disputes involving the TRADITIONS of indigenous cultural
community; 9. Actions to ANNUL JUDGMENT upon a compromise (Sanchez v. Tupac, 15
8 SCRA 459) The parties may at any stage of the proceeding AGREE IN WRITING to h
ave the matter in dispute DECIDED by ARBITRATION either the LUPONG BARANGAT or P
ANGKAT. In such case arbitrational hearings shall follow order of adjudicative t
rials. The settlement and arbitration agreement may be repudiated on the ground
that consent is vitiated by fraud, violence, or intimidation. Such repudiation s
hall be sufficient basis for the issuance of the certification for filing a comp
laint in court or any government office for adjudication. RULES ON VENUE UNDER T
HE KATARUNGAN PAMBARANAGAY LAW
1. Disputes between residents of the same barangay shall be brought for settleme
nt before lupon of said barangay; 2. Residents of different barangays within the
same city or municipality – in the barangay where the respondent or any of the re
spondents reside at the election of the complainant; 3. Disputes involving real
property or any interest therein – where real property or larger portion thereof i
s situated; 4. Disputes arising at the WORKPLACE where the contending parties ar
e employed or at the INSTITUTION where such parties are enrolled for study – in th
e barangay where such workplace or institution located.
PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. Pleading
s defined PLEADINGS – the written statements of the respective claims and defenses
of the parties submitted to the court for appropriated judgment. NOTE: A motion
to dismiss is not pleading. PLEADING The purpose is to submit a claim or defens
e for appropriate judgment. May be initiatory Always filed before judgment Only
9 kinds of pleading are allowed by the rules MOTION The purpose is to apply for
an order not included in the judgment. Cannot be initiatory as they are always m
ade in a case already filed in court. May be filed even after judgment. Many kin
ds of motion are allowed.
NOTE: HOWEVER, there are motions that actually seek judgment like a motion for j
udgment on pleadings (Rule34) and motion for summary judgment (Rule 35). Section
2. Pleadings allowed 1. Complaint; 2. Counterclaim;
Page 13 of 289
3. 4. 5. 6. 7. 8. 9. Cross-claim; Third-party Complaint; Complaint-in-interventi
on; Answer; Reply; Counter-counterclaim; Counter-Cross claim. release payment, a
nd any other matter by way of confession and avoidance. 2. NEGATIVE DEFENSES - s
pecific denial of the material facts or facts alleged in the pleading of the cla
imant essential to his cause of action. Insufficient denial or denial amounting
to admissions: 1. General denial; 2. Denial in the form of a negative pregnant.
Section 6. Counterclaim COUNTERCLAIM – any claim which a defending party may have
against an opposing party. Nature of counterclaim: A counterclaim is in the natu
re of a cross-complaint. Although it may be alleged in the answer, it is not par
t of the answer. Upon its filing, the same proceedings are had as in the origina
l complaint. For this reason, it must be answered within ten (10) days from serv
ice. Section7. Compulsory Counterclaim A counterclaim before the MTC must be wit
hin the jurisdiction of said court, both as to the amount and nature thereof. Co
unterclaims may either be: 1. Compulsory; or 2. Permissive NOTE: In an original
action before the RTC, the counterclaim may be considered compulsory regardless
of the amount (Section 7, Rule 6). Agustin v. Bacalan 135 SCRA 340 (1985) If a c
ounterclaim is filed in the MTC in excess of its jurisdictional amount, the exce
ss is considered waived Calo v. Ajax International 22 SCRA 996 (1968) The remedy
where a counterclaim is beyond the jurisdiction of the MTC is to set off the cl
aims and file a separate action to collect the balance. COMPULSORY COUNTERCLAIM
One which arises out of or is necessarily connected with the transaction or occu
rrence that is the subject matter of PERMISSIVE COUNTERCLAIM It does not arise o
ut of nor is it necessarily connected with the subject matter of the opposing pa
rty’s claim.
Enumeration is not exclusive Section 3. Complaint COMPLAINT – is the pleading alle
ging the plaintiff’s cause or causes of action. It should contain a concise statem
ent of the ultimate facts constituting the plaintiff’s cause of action, not eviden
tly facts or legal conclusions. ULTIMATE FACTS – essential facts constituting the
plaintiff’s cause of action. A fact is essential if it cannot be stricken out with
out leaving the statement of the cause of action insufficient. TEST OF SUFFICIEN
CY OF THE FACTS ALLEGED IN THE COMPLAINT: Determine whether upon the averment of
facts, a valid judgment may be properly rendered. What are NOT ultimate facts:
1. Evidentiary or immaterial facts; 2. Legal conclusions, conclusions or inferen
ces of facts not stated, or incorrect inferences or conclusions from facts state
d; 3. The details of probative matter or particulars of evidence, statements of
law, inferences and arguments; 4. An allegation that a contract is valid or void
is a mere conclusion of law. Section 4. Answer ANSWER – the pleading where the de
fendant sets forth his affirmative or negative defenses. It may likewise be the
response to a counterclaim on a cross claim. Section 5. Defenses QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.
2 kinds of defenses that may be set forth in the answer: 1. AFFIRMATIVE DEFENSES
- allegation of anew matter which, while hypothetically admitting the material a
llegations in the pleading of the claimant, would nevertheless prevent or bar re
covery by him. Affirmative defenses include fraud, prescription,
Page 14 of 289
the opposing party’s claim. It does not require for its adjudication the presence
of third parties of whom the court cannot acquire jurisdiction. It is barred it
not set up in the action. Need not answered; default. to be no 1. A claim by one
party against a co-party; 2. It must arise out of the subject matter of the com
plaint or of the counterclaim; and 3. The cross-claimant is prejudiced by the cl
aim against him by the opposing party. If it is not set up in the action, it is
barred except: 1. When, it is outside the jurisdiction of the court; or 2. If th
e court cannot acquire jurisdiction over third parties whose presence is necessa
ry for the adjudication of said cross-claim. In which case, the cross-claim is c
onsidered permissive. The dismissal f the complaint carries with it the dismissa
l of a cross-claim which is purely defensive, but not a cross-claim seeking an a
ffirmative relief. Cross Claim Against a coparty Must arise out of the transacti
on that is the subject matter of the original action or of a counterclaim therei
n Counterclaim Against an opposing party. May arise out of or be necessarily con
nected with the transaction or that is the subject matter of the opposing party’s
claim in which case, it is called a compulsory counterclaim, or it may not, in w
hich case it is called a permissive counterclaim. 3rd party Complaint Against a
person not a party to the action. Must be in respect of the opponent’s claim (Plai
ntiff).
It may require for its adjudication the presence of third parties over whom the
court cannot acquire jurisdiction. It is NOT barred even if not set up in the ac
tion. Must be answered, otherwise, the defendant can be declared in default.
Gojo v. Goyola 35 SCRA 557 (1970) A plaintiff who fails or chooses not to answer
a compulsory counterclaim may not be declared in default , principally because
the issued raised in the counterclaim are deemed automatically joined by the all
egations of the complaint. REQUISITES OF A COMPULSORY COUNTER CLAIM: 1. It must
arise out of, or be necessarily connected with, the transaction or occurrence th
at is the subject matter of the opposing party’s claim; 2. It does not require for
its adjudication the presence of third parties of whom the court cannot acquire
jurisdiction; 3. It must be within the jurisdiction of the court. GENERAL RULE:
A compulsory counterclaim not set up in the answer is deemed barred. EXCEPTION:
If it is a counterclaim which either matured or was acquired by party after ser
ving his answer. In this case, it may be pleaded by filing a supplemental answer
or pleading before judgment. (Section 9, Rule 11) NOTE: the filing of a motion
to dismiss and the setting up of a compulsory counterclaim are incompatible reme
dies. In the event that a defending party has around forQuickTime™ and a and a com
pulsory dismissal counterclaim at TIFF (Uncompressed) this picture. must choose
only the needed to see decompressor are same time, he on remedy. If he decide to
file must a motion dismiss , he will lose his counterclaim, but if he opts to s
et up his counterclaim, he may so plead his ground for dismissal as an affirmati
ve defense in his answer. Section 8. Cross-claim REQUIREMENTS FOR A CROSS-CLAIM:
Section 9. Counter-counterclaims and counter cross-claims Counter-Counterclaims –
is a claim asserted against an original counterclaimant Counter-Crossclaims – is a
claim filed against an original cross-claimant. Section 10. Reply
Page 15 of 289
REPLY – the response of the plaintiff to the defendant’s answer the function of whic
h is to deny or allege facts in denial or in avoidance of new matters alleged by
way of defense in the answer and thereby join or make issue as to such new matt
ers. EFFECT OF FAILURE TO REPLY GENERAL RULE: Filing a reply is merely optional.
New facts that were alleged in the answer are deemed controverted should a part
y fail o reply thereto. EXCEPTION: Reply is required Where the answer is based o
n an ACTIONABLE DOCUMENT (Sec. 8, Rule 8.) Section 11. Third (fourth, etc.)- par
ty complaint THIRD – PARTY COMPLAINT – a claim that a defending party may, with leav
e of court, file against a person not a party to the action for contribution, in
demnity, subrogation or any other relief, in respect of his opponent’s claim. Ther
e could also be a fourth, etc, - party complaint with the same purpose and funct
ion. THIRD-PARTY COMPLAINT Brings into the action a third person who was not ori
ginally a party. Initiative is with the person already a party to the action. CO
MPLAINT IN INTERVENTION Same. Initiative is with a nonparty who seeks to join th
e action. Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third party complaint, regardless of the amount involved
as a third party complaint is merely auxiliary to and is a continuation of the m
an action. NOTE: A third party complaint is no proper in an action for declarato
ry relief. Section 12. Bringing New Parties Distinguish from a 3rd party complai
nt: A 3rd party complaint is proper when not one of the third party defendants t
herein is a party to the main action. If one or more of the defendants in a coun
terclaim or cross-claim is already a party to the action, then the other necessa
ry parties may be brought in under this section.
RULE 7 PARTS OF A PLEADING Section 1. Caption Section 2. The Body PARTS OF A PLE
ADING The Caption contains the following: 1. The name of the court; 2. The title
of the action; and 3. The docket number if assigned. The Body sets forth: 1. It
s designation; 2. The allegation of the party’s claims and defenses; 3. The relief
prayed for: and 4. The date of the pleading Section 3. Signature and address Th
e signature of the counsel is a certification: 1. That he has read the pleading;
2. That to the best of his knowledge, information or belief, there is good grou
nd to support it; and 3. It is not interposed for delay. NOTE: An UNSIGNED PLEAD
ING produces no legal effect. However, the court may, in its discretion, allow s
uch deficiency to be remedied if it shall appear that the same was due to inadve
rtence and not intended for delay.
Page 16 of 289
TESTS to determine whether the third-party complaint is in respect of plaintiff’s
claim: 1. Whether it arises out of the same transaction on which the plaintiff’s c
laim is based, or although arising out of another or different transaction, is c
onnected with the plaintiff’s claim. 2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all or part of the plaintiff’s cl
aim against the original defendant; and QuickTime™ and a TIFF (Uncompressed) decom
pressor 3. Whether theare needed to see this picture. third party defendant may
assert any defenses which the third-party plaintiff has or may have to plaintiff’s
claim Summons on third, fourth etc-party defendant must be served for the court
to obtain jurisdiction over his person, since he is not an original party. Repu
blic v. Central Surety & Insurance 25 SCRA 641 (1968)
DISCIPLINARY ACTION ON COUNSEL IN THE FOLLOWING CASES: 1. Deliberately filing an
unsigned pleading; 2. Deliberately signing a pleading in violation of the Rules
; 3. Alleging scandalous or indecent matter in the pleading; or 4. Failing to pr
omptly report a change of his address. Section 4. Verification Pleadings need NO
T be verified EXCEPT when otherwise provided by the law or rules. HOW A PLEADING
IS VERIFIED By an affidavit that the affiant: 1. Has read the pleading; and 2.
That the allegations therein are true and correct of his personal knowledge or b
ased on authentic documents. Section 5. Certification against forum-shopping FOR
UM SHOPPING – consists of filing multiple suits in different courts, either simult
aneously or successively, involving the same parties, to ask the courts to rule
on the same or related causes and/or to grant the same or substantially the same
relief. Test to determine the presence of forumshopping: Whether in the two (or
more) cases pending, there is identity of (a) parties, (b) rights or causes of
action, and (c) relief sought. The certificate is to be executed by petitioner,
and not by counsel. Required ONLY for complaints or initiatory pleadings such as
permissive counterclaim, cross-claim, etc. UST Hospital v. Surla 294 SCRA 382 (
1998) Certificate of non-forum shopping is not required in a compulsory counterc
laim. A counterclaim is not an initiatory pleading EFFECT OF FAILURE TO COMPLY:
Not curable by mere amendment of the pleading but shall be cause for dismissal o
f the case, without prejudice, unless otherwise provided upon motion and after h
earing EFFECT OF SUMBISSION FO FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UN
DERTAKINGS THEREIN:
1. Indirect Contempt 2. Without prejudice to the filing administrative and crimi
nal actions
of
EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING: 1. Shall be ground for summary
dismissal of the case with prejudice; 2. Direct contempt, as well as a cause for
administrative sanctions.
RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING Section 1. In general Every pl
eading shall contain in a methodical and logical form a plain, concise and direc
t statement of the ultimate facts, omitting the statement of mere evidentiary fa
cts. ULTIMATE FACTS – those which directly form the bases of the right sought to b
e enforced or the defense relied upon. If the ultimate facts are NOT alleged, th
e cause of action would be insufficient. EVIDENTIARY FACTS – those which are neces
sary to prove the ultimate fact or which furnish evidence of the existence of so
me other facts. COMPLAINT
Filed by plaintiff
ANSWER
Filed by defendant
Must contain a direct statement of the ultimate facts, omitting statement of mer
e evidentiary facts
If defense relied is based on law, cite the pertinent legal provisions thereof,
as well as its applicability to him
Section 2. Alternative causes of action or defense PLAINTIFFS Alternative allega
tions – cases where the facts essential to the plaintiff’s cause are within the know
ledge of the defendant, yet the plaintiff is so imperfectly informed that he can’t
state them with certainty Plaintiff should state the DEFENDANT Defendant may st
ate hypothetical allegations (affirmative defense)
Defendant
may
also
Page 17 of 289
facts within his knowledge with certainty, but to plead in alternative the doubt
ful facts which are wholly within the defendant’s knowledge and call upon the defe
ndant to make full disclosure of these facts Plaintiff may state alternative cau
ses of action, be they compatible with each other or not plead as many defenses
and counterclaims he may have -on the other hand, if the defendant wants to rais
e an issue of his legal capacity to be sued, he should question the jurisdiction
of the court over his person Section 5. Fraud, mistake, condition of the mind F
raud or mistake must be stated with particularity while malice or intent must be
averred generally. Inconsistency does not operate as waiver or withdraw of defe
nse in another portion of his answer It is sufficient that each is consistent wi
th itself The defendant may move for a bill of particulars when the allegations
of fraud, etc. are merely conclusions of law, and are without statement of the f
acts to which such terms have reference. If after the granting the motion for bi
ll of particulars, the plaintiff still refuses to do so, the court may simply di
smiss the complaint. Section 6. Judgment The jurisdiction of the court a quo is
presumed, it is sufficient to aver the decision or judgment without setting fort
h matter showing jurisdiction to render it. IN SUMMARY: FACTS THAT MAY BE AVERRE
D GENERALLY: 1. Conditions precedent; (BUT there must still be an allegation tha
t the specific condition precedent has been complied with, otherwise, it will be
dismissed for lack of cause of action) 2. Capacity to sue or be sued; 3. Capaci
ty to sue or be sued in a representative capacity; 4. Legal existence of an orga
nization; NOTE: a party desiring to raise an issue as to the legal existence or
capacity of any party to sue or be sued in a representative capacity shall do so
by SPECIFIC DENIAL which shall include supporting particulars within the pleade
r’s knowledge; 5. Malice, intent, knowledge, or other condition of the mind; 6. Ju
dgments of domestic or foreign courts, tribunals, boards, or officers; (no need
to show jurisdiction) 7. Official document or act. FACTS THAT MUST BE AVERRED PA
RTICULARLY: Circumstances showing fraud or mistake in all averments of fraud or
mistake. Section 7. Action or defense based on document
Section 3. Conditions Precedent Pleading must state conditions precedent to the
cause of action, i.e. failure to compromise, compliance with conciliation proces
s at the barangay level. Failure to state the conditions precedent will make the
complaint defective and vulnerable to dismissal, even on appeal, on ground of l
ack of cause of action. NOTE: Compliance with conciliation process is a conditio
n precedent but not a jurisdictional requirement; however, it may still be a gro
und for dismissal on reason of non-compliance with condition precedent. Section
4. Capacity Facts showing the capacity to sue and be sued must be averred. A par
ty desiring to raise the issue of lack of capacity to sue must do so by specific
denial. -Example of what must be pleaded: -that a foreign corporation (generall
y not allowed to sue, but can be sued) has license to do business in the and a c
ountry or is not doing QuickTime™ TIFF (Uncompressed) decompressor business are ne
ededcountry in the to see this picture. -foreign corporation must also aver its
capacity to sue or be sued -Example of what the defendant must plead: -if the de
fendant wants to raise an issue as to the plaintiff’s legal capacity to sue, he sh
ould file a motion to dismiss on that ground or set it up as affirmative defense
in the answer
Page 18 of 289
Applies to a cause of action or defense that relies on written document. What to
do? 1. present the substance of the document in the pleading 2. attach an origi
nal or copy of the document as an exhibit 3. but, do not put evidence yet, even
if in writing (ex letters, mail) they have no place in a pleading A non-actionab
le document is some other extraneous document which is not the main object of th
e action. ex. Demand letter An actionable document is the main object of the act
ion. ex. Promissory note, deed of mortgage, written contract ACTIONABLE DOCUMENT
– written instrument upon which the action or defense is based. Two permissible w
ays of pleading an actionable document: 1. By setting forth the substance of suc
h document in the pleading and attaching said document thereto as an exhibit (co
ntents of the document annexed are controlling, in case of variance in the subst
ance of the document set forth in the pleading and in the document attached); or
2. By setting forth said document verbatim in the pleading. Section 8. How to c
ontest such document HOW TO CONTEST AN ACTIONABLE DOCUMENT: 1. By specific denia
l under oath; and 2. By setting forth what is claimed to be the facts. Where the
actionable document is properly alleged, the failure to specifically deny under
oath the same results in;
QuickTime™ and a 1. The admission of thedecompressor genuineness and due TIFF (Unc
ompressed) are needed to see this picture. execution of said document, EXCEPT th
an an oath is not required: a. When the adverse party was not a party to the ins
trument; OR b. When compliance with an order for an inspection was refused. 2. T
he document need not be formally offered in evidence.
GENUINENESS means nothing more than that the instrument is not spurious, counter
feit, or of different import on its face from the one executed by the party or t
hat the party whose signature it hears has signed it and that at the time it was
signed, it was in words and figures exactly as set out in the pleadings. DUE EX
ECUTION mean that the document was signed voluntarily and knowingly by the party
whose signature appears thereon, that if signed by somebody else such represent
ative had the authority to do so, that it was duly delivered, and that the forma
lities were complied. Defenses not waived despite specifically deny under oath:
1. Payment; 2. Want or illegality of consideration; 3. Fraud; 4. Mistake; 5. Com
promise; 6. Statute of Limitations; 7. Estopped; 8. Duress; 9. Minority or imbec
ility failure to
The aforementioned defenses are not inconsistent with the genuineness and due ex
ecution of the document. BUT the following defenses are waived: 1. Forgery in th
e signature; 2. Unauthorized signature, as in the case of an agent signing for h
is principal; 3. The corporation was not authorized under its charter to sign th
e instrument; 4. Want of delivery; or 5. At the time the document was signed, it
was not in words and figures exactly as set out in the pleading. Central Surety
v. Hodges 38 SCRA 159 (1971) Failure to specifically deny under oath the genuin
eness and due execution of an actionable document generally implies an admission
of the same by the other party. However, such IMPLIED ADMISSION IS DEEMED WAIVE
D if the party asserting the same has allowed the adverse party to present evide
nce contrary to the contents of such document without objection Section 9 Offici
al document or act Section 10 Specific Denial
Page 19 of 289
THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. By specifically denying the averment
and, whenever practicable, setting forth the substance of the matters relied upo
n for such denial; 2. Part admission and part denial; and 3. By an allegation of
lack of knowledge or information sufficient to form a belief as to the truth of
the averment in the opposing party’s pleading. NOTE: this does not apply where th
e fact as to which want of knowledge is asserted is, to the knowledge of the cou
rt, so plain and necessarily within the defendant’s knowledge that his averment of
ignorance must be palpable untrue. NEGATIVE PREGNANT – a form of denial which at
the same time involves an affirmative implication favorable to the opposing part
y; it is in effect, an admission of the averment to pregnant with an admission o
f the substantial facts in the pleading responded to. Section 11. Allegation not
specifically denied deemed admitted GENERAL RULE: allegations denied are deemed
admitted. NOT specifically EXCEPTIONS: 1. 2. 3. 4. Lack of jurisdiction over th
e subject matter Litis pendentia; Res Judicata Prescription of the action.
Tijam v. Sibonghanoy 23 SCRA 29 (1968) The court shall dismiss the claim if any
of these grounds appears from the pleadings or the evidence on record. These def
enses may be raised at any stage of the proceedings even for the first time on a
ppeal EXCEPT that lack of jurisdiction over the subject matter may be barred by
laches. Section 2. Compulsory Counterclaim, or Crossclaim not set-up barred An A
MENDED ANSWER is proper if the counterclaim or cross claim already existed at th
e time the original answer was filed, but due to oversight, inadvertence, or exc
usable neglect, it was not set up. A SUPPLEMENTAL ANSWER is proper if the counte
rclaim or cross-clam matures or is acquired after the answer is filed. Section 3
. Default, declaration of DEFAULT – the failure of the defendant to answer within
the proper period. It is not his failure to appear nor failure to present eviden
ce. ORDER OF DEFAULT Issued by the court, on plaintiff’s motion for failure of the
defendant to failure his responsive pleading seasonably. Interlocutorynot appea
lable JUDGMENT BY DEFAULT Rendered by the court following a default order or aft
er it received, ex parte, plaintiff’s evidence. Final - appealable
EXCEPTIONS: 1. Allegations as to he amount of unliquidated damages; 2. Allegatio
ns immaterial as to the cause of action; and 3. Conclusion of law. Section12. St
riking out of pleading or matter contained therein Allegations of merely evident
iary or immaterial facts may be expunged from the pleading or may be stricken ou
t on motion.
RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. Defenses and objections not pleaded
GENERAL RULE: Defenses and objections not raised in MOTION TODISMISS or in the
ANSWER are deemed waived.
REQUISITES FOR A DECLARATION OF DEFAULT: 1. Defendant FAILS TO ANSWER within the
time allowed therefore; 2. There must be a MOTION to declare the defendant in d
efault; 3. There must be NOTICE to the defendant by serving upon him a copy of s
uch motion; and 4. There must be PROOF of such failure to answer. WHERE NO DEFAU
LTS ARE ALLOWED:
Page 20 of 289
1. 2. 3. 4. Annulment of marriage; Declaration of nullity of marriage; Legal Sep
aration; Special civil actions of certiorari, prohibition and mandamus where com
ment instead of an answer is required to be filed 5. Summary procedure EFFECT OF
AN ORDER OF DEFAULT: entitled to notice of 1. Motion to declare him in default;
2. Order declaring him in default; 3. Subsequent proceedings; and 4. Service of
final orders and judgments Cavili v. Florendo 154 SCRA 610 (1987) A defendant d
eclared in default cannot take part in the trial, but he cannot be disqualified
from testifying as a witness in favor of non-defaulting defendants. If the defen
dant was declared in default upon an original complaint, the filing of the amend
ed complaint resulted in the withdrawal of the original complaint, hence the def
endant was entitled to file the answer to the amended complaint as to which he w
as not in default. PARTIAL DEFAULT: 1. The default asserting a claim states a co
mmon cause of action against several defending parties; 2. Some of the defending
parties answer and the others fall to do so; and 3. The answer interposes a com
mon defense. EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL
defendants upon the answer of some EXCEPT where the defense is personal to the o
ne who answered, in which case, it will not benefit those who did not answer. RE
MEDIES FROM JUDGMENT BY DEFAULT Judgment by default
TIFF (Uncompressed) decompressor Motion for new trial or to see this picture. re
consideration at any time are needed after service of judgment by default and wi
thin 15/30 days therefrom QuickTime™ and a
Failure to appeal without defendants fault Petition for relief from judgment wit
hin 60 days from notice of the judgment but within 6 months from entry thereof A
nnulment of Judgment under RULE 47
EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT B DEFAULT: Shall not exceed the amo
unt OR be different in kind from that prayed for NOR award unliquidated damages.
RULE 10 AMENDED AND SUPPLEMENTAL Section 1. Amendments in general Pleadings may
be amended: 1. Adding an allegation of a party; 2. Adding the name of a party; 3
. Striking out the name of a party; 4. Correcting a mistake in the name of a par
ty; and 5. Correcting a mistake in the name of a party; and 6. Correcting a mist
ake or inadequate allegation or description in any other respect. Section 2. Ame
ndments as a matter of right Amendment is a matter of right before a responsive
pleading is SERVED, or in case of a REPLY, within 10 days after it was SERVED. S
uch rights can only be exercised ONCE. Subsequent amendments should be made only
by leave of court even if the other party has not yet served a responsive plead
ing. NOTE: a motion to dismiss is not a responsive pleading. As such, an amendme
nt AFTER the denial of a motion to dismiss is still considered as a matter of ri
ght. Hence, it may be done without leave of court. Section 3. Amendments by leav
e of court Leave of court is required: 1. If the amendment is substantial; AND 2
. A responsive pleading had already been served. Requisites: 1. There must be a
motion filed in court; 2. Notice to the adverse party; and
Failure to file a motion for new trial/ denial of said motion Perfect appeal fro
m said judgment by default within the balance of said 15/30 day period
Page 21 of 289
3. Opportunity to be heard afforded to the adverse party. Instances when amendme
nt by leave of court may not be allowed: 1. When cause of action, defense or the
ory of the case is changed; 2. Amendment is intended to confer jurisdiction to t
he court; 3. Amendment to cure a premature or non-existing cause of action; and
4. Amendment for purposes of delay. Section 4. Formal Amendments Section 5. Amen
dment to conform to or authorize presentation of evidence When issues NOT RAISED
in the pleadings are tried with the express implied consent of parties 1. They
shall be treated as if raised in the pleading; 2. Pleadings may be amended to co
nform to the evidence; and 3. Failure to amend does not affect the result of the
trial of these issues. Section 6. Supplemental pleadings SUPPLEMENTAL PLEADINGS
– is one which sets forth transactions, occurrences, or events which have happene
d since the date of the filing of the complaint. NOTE: The cause of action state
d in the supplemental complaint must be the same as that stated in the court sho
uld not admit the supplemental complaint (Asset Privatization Trust v. CA 229 SC
RA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the
filing of the original pleading. NOTE: Some authors are of the opinion that adm
issions in superseded pleadings need not be offered in evidence pursuant to Sect
ion 4 of Rule 129. EFFECT OF AMENDED PLEADING 1. An amended pleadings supersedes
the pleading that it amends; 2. Admissions in the superseded pleading can still
be received in evidence against the pleader; 3. Claims or defenses alleged ther
ein but not incorporated or reiterated in the amended pleading are deemed waived
. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may
be proved by the party relying thereon by formal offer in evidence. (Regalado, 2
002, p.193)
RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. Answer to the complaint Sec
tion 2. Answer of a defendant foreign private juridical entity Answer to a compl
aint 1. Within 15 days after service of summons, UNLESS a different period is fi
xed by the court; 2. In case the defendant is a foreign private juridical entity
; a. if it has a resident agent- within 15 days after service of summons to him;
b. if it has no resident agent, but it has an agent or officer in the Philippin
es – within 15 days after service of summons to said agent or officer; c. it has n
o resident agent nor agent nor officer – in which case service of summons is to be
made on the proper government office which will then send a copy by registered
mail to the home office of the foreign private corporation – within 30 days after
receipt of summons by the home office of the foreign private entity. 3. In case
of service of summons by publication – within the time specified in the order gran
ting leave to serve summons by
Refers to facts existing at the time of the commencement of the action. Take the
place of the Taken together with the original pleading. original pleading. Can
be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) cour
t decompres of right as when nosee this picture.sor are needed to responsive ple
ading has yet been filed. When an amended A supplemental pleading pleading is fi
led, anew does not require the filing copy of the entire of a new copy of the pl
eading must be filed. entire pleading. Section 7. Filing of amended pleadings
Page 22 of 289
publication, which shall NOT be less than 60 days after notice (rule 14, Section
15) 4. in case of a non-resident defendant on whom extraterritorial service of
summons is made, the period to answer should be at least 60 days. The court may
extend the time to file the pleadings but may not shorten them. Section 3. Answe
r to amended pleadings 1. In the filing of an amended complaint is a matter of r
ight—within 15 days from service of amended complaint 2. If the filing of an amend
ed complain is NOT a matter of right—within 10 days counted from notice of the cou
rt order admitting the same. NOTE: The rule shall apply to the answer to an amen
ded counterclaim, amended cross-claim, amended third (fourth, etc.- party compla
int, and amended complaint-in-intervention) If no new answer is filed, answer to
original pleading shall be deemed as answer to the amended pleading. Section 4.
Answer to counterclaim or cross-claim Section 1. When applied for; purpose A co
unterclaim or cross-claim must be answered within 10 days from service. Section
5. Answer to third (fourth, etc.)-party complaint The third party defendant is s
erved with summons just like the original defendant, hence, he also has 15, 30,
60 days from service of summons, as the case may be, to file his answer. Section
6. Reply A reply may be filed within 10 days from service of the pleading respo
nded to. Section 7. Answer to supplemental complaint Answer to a supplemental co
mplaint must be filed within 10 days from notice of the order admitting the same
. As in the case of the filing of an amended pleading with leave of court, the f
iling of supplemental complaint requires leave of court. However, unlike the for
mer, the court may fix a different period for
answering the supplemental complaint in lieu of the10-day reglementary period. S
ection 8. Existing counterclaim or cross-claim Section 9. Counterclaim or cross-
claim arising after answer Section 10. Omitted counterclaim or cross-claim Count
erclaims or cross-claims omitted through oversight, inadvertence, or excusable n
eglect or when justice requires may be set up by the pleader BEFORE JUDGMENT. Le
ave of court is necessary. Section 11. Extension of time to plead REQUISITES: 1.
There must be a motion; 2. With service of such motion to other party; and 3. O
n such terms as may be just.
RULE 12 BILL OF PARTICULARS
BILL OF PARTICULARS – a more definite statement of any matter which is not averred
with sufficient definiteness or particularity. PURPOSE: to aid in the preparati
on of a responsive pleading. Galeon v. Galeon 60 SCRA 234 (1976) An action canno
t be dismissed on the ground that the complaint is vague or indefinite. The reme
dy of the defendant is to move for a bill of particulars or avail of the proper
mode of discovery. The motion for bill of particulars shall be filed before resp
onding to a pleading. Hence, it must be filed within the period granted by the R
ules (Rule 11) for the filing of a responsive pleading. The motion shall point o
ut: 1. The defects complained of: 2. The paragraphs wherein contained; and 3. Th
e details desired.
they
are
Page 23 of 289
Section 2. Action by court The court may either: 1. Deny: or 2. Grant it outrigh
t: or 3. Allow the parties the opportunity to be heard. Section3. Compliance wit
h order EFFECTS OF MOTION 1. If the motion is granted, in whole or in part, the
movant can wait until the bill of particulars is served on him by the opposing p
arty and then he will have the balance of the reglementary period within which t
o file his responsive pleading; 2. If his motion is denied, he will still have s
uch balance of the reglementary period to file his responsive pleading; counted
from service of the order denying his motion. NOTE: If ether case, he shall have
not less than 5 days to file his responsive pleading. The bill of particulars m
ay be filed either in a separate or in an amended pleading, serving a copy there
of on the adverse party. It becomes part of the pleading sought to be clarified.
Section 4. Effect of non-compliance Effect of non-compliance: 1. If the order i
s not obeyed or in case of insufficient compliance therewith, the court: a. may
order the striking out of the pleading or the portion thereof to which the order
is directed; or b. make such order as it may deem just. 2. if the plaintiff fai
ls to obey, his complaint may be dismissed with prejudice UNLESS otherwise order
ed by the court; (Rule 12, Sec. 4; Rule 17, Section 3) 3. If defendant fails to
obey, hi answer will be stricken off and his counterclaim dismissed, and he will
be declared in default upon motion of the plaintiff. (Rule 12, Section 4; Rule
17, Section4; Rule 9, Section 3) Section 5. Stay of period to file responsive pl
eading
Section 6. Bill a part of pleading
RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Note: This r
ule is not arranged per section but per topic. Section 1. Coverage Notice given
to a party who is represented by counsel is a nullity, unless service thereof on
the party himself was ordered by the court or the technical defect was waived.
Where party is represented by more than one counsel of record, service of notice
on any of the latter is sufficient. Section 2. Filing and service, defined FILI
NG OF PLEADINGS -Act of presenting the pleading or other paper to the clerk of c
ourt a) personally to the clerk of court b) sending them by registered mail SERV
ICE OF PLEADINGS Act providing a party with a copy of the pleading or paper conc
erned -judgment, pleadings and orders are served to counsel, except: 1) when he
has no counsel 2) when counsel of record can’t be located 3) when party himself is
directed by court to show cause (ex. Contempt) -if represented by 2 counsels, n
otice may be made either upon both or either of them MODES OF SERVICE a) persona
lly b) mail c) substituted service
Section 3. Manner of Filing FILING – act of presenting the pleasing or other paper
to the clerk of court Manner of filing 1. Personal Service; or
Page 24 of 289
2. Registered mail Filing by mail should be through the registry service which i
s made by deposit of the pleading in the post office, and not through other mean
s of transmission. If registry service is not available in the locality of eithe
r sender or addressee, service may be done by ordinary mail. Benguet Electric Co
operative, Inc. v. NLRC 209 SCRA 55 (1992) If a private carrier is availed of by
the party, the date of actual receipt by the court of such pleading and not the
date of delivery to the private carrier, is deemed to be the date of the filing
of that pleading. PERSONALLY TO THE CLERK OF COURT Clerk of court endorse the d
ate and hour of the filing SENDING THEM BY REGISTERED MAIL Date of mailing shall
be considered as the date of filing Registered mail only -reason: government po
stal service enjoys the presumption of regularity -date of mailing = date of fil
ing Private letter couriers -not recognized because you can’t apply the presumptio
n of regularity to private entity -nevertheless, the date of actual receipt is t
he one counted clerk of court, because you must first serve a copy thereof to th
e plaintiff, signed by him –only then can you file an answer with proof of service
. Section 5. Modes of Service SERVICE OF PAPERS SERVICE OF JUDGMENTS, FINAL ORDE
RS, RESOLUTIONS a) personal service b) registered mail c) publication
a) personal service b) registered mail c) ordinary mail
Promulgation of decision in criminal cases = reading of judgment Promulgation of
decision in civil cases = date when the copy was served on the counsel by regis
tered mail 3 KINDS OF SERVICE: PERSONAL SERVICE BY SERVICE MAIL Depositing Deliv
er copy in the personally: 1) party or post office, or counsel residence, with 2
) by leaving it instructions of in his office return to with clerk or sender if
person undelivered having within 10 days charged thereof 3) leaving it at the re
sidence of either, with a person of sufficient age and discretion residing there
in Section 6. Personal Service PERSONAL SERVICE- Actual delivery of the processe
s to him (includes service at the residence or his attorney) Section 7. Service
by mail Section 8. Substituted Service SUBSTITUTED SERVICE Delivering copy to th
e clerk of court with proof of failure of both personal and service by mail (dif
ferent from substituted service under Sec. 7, Rule 14)
Section 4. Papers required to be filed and served 1. Pleading subsequent to the
complaint; 2. Appearance; 3. Written Motion; 4. Notice; 5. Order; 6. Judgment; 7
. Demand; 8. Offer of judgment; a QuickTime™ and TIFF (Uncompressed) d 9. Resoluti
on; to see thiecompressor are needed or s picture. 10. Similar papers Papers sub
sequent to complaint must be filed with court and served upon parties. Pleadings
subsequent to original complaint and written motions should first be served on
the parties before they are filed with court. This simply means that defendant’s a
nswer can’t be filed at once to the
Page 25 of 289
Section 9 Service of Judgments, Final Orders or Resolutions Service by publicati
on = only when he absconds and defendant’s address is unknown Section 10. Complete
ness of Service Service is completed when: Personal Registered service mail Upon
actual Upon actual delivery receipt by the addressee or 5 days from the date he
received 1st notice from postmaster -1st notice from postmaster needs conclusiv
e proof Ordinary mail Upon expiration of 10 days after mailing SERVICE- Act of p
roviding a party with a copy of the pleading of paper concerned SUMMARY OF MODES
OF SERVICE 1. PERSONAL SERVICE (SECTION 6) a. Delivering personally a copy to t
he party or his counsel; or b. Leaving a copy in counsel’s office with his clerk o
r with a person having charge thereof; or c. Leaving the copy between 8 a.m. and
6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient
age and discretion then residing therein—if no is person found in his office, or
if his office is unknown, or if he has no office. 2. SERVICE BY MAIL (SECTION 7)
If no registry service is available in the locality, of either sender or addres
see, service may be done by ordinary mail. 3. SUBSTITUTED SERVICE (SECTION 8) De
livering the copy to the clerk of court with proof of failure of both personal a
nd service by mail. Section 13 Proof of Service Proof of personal service: 1. Wr
itten admission of the party served; or 2. Official return of the server; or 3.
Affidavit of the party serving, containing the date, place and manner of service
. Proof of service by ordinary mail: Affidavit of the person mailing showing com
pliance of Section 7 Rule 13; Proof of service by registered mail: 1. Affidavit
of maller showing compliance of Section 7 Rule 13; and 2. Registry receipt issue
d by the mailing office Section 14. Notice of lis pendens LIS PENDENS – a notice o
f a pendency of the action between the parties involving title to or right of po
ssession over real property. REQUISITES: 1. Action affects the title or the righ
t of possession of the real property; 2. Affirmative relief is claimed; and
Completeness begins the running of the period for filing of the responsive plead
ings Section 11. Priorities in modes of service and filing Personal service is p
referred and written explanation is needed why such was not taken Service by reg
istered mail may be done if the distance from the court to the adverse party is
considered Section 12. Proof of filing Filing is proved by its existence in the
record of the case. If it is not in the record, and; 1. If filed personally: pro
ved by the written or stamped acknowledgement of its filing by the clerk of cour
t on a copy of the same: or QuickTime™ and a 2. If filed TIFF (Uncompressed) decom
pressor proved by the by registered mall: are needed to see this picture. regist
ry receipt and the affidavit of the person who did the mailing with a full state
ment of: a. The date and place of depositing the mail in the post office in a se
aled envelope addressed to the court; b. With postage fully paid; and c. With in
structions to the postmaster to return the mail to the sender after 10 days if u
ndelivered.
Page 26 of 289
3. Notice shall contain the name of the parties and the object of the action or
defense an a description of the property affected thereby; 4. Action in rem (AFP
Mutual Benefit Association , Inc. v. CA, 327 SCRA 203) NOTE: This serves as a w
arning to all persons, prospective purchasers or encumbrancers of the property i
n litigation to keep their hands off the property in litigation unless they are
prepared to gamble on the result of the proceedings. The defendant may also reco
rd a notice of lis pendens when he claims an affirmative relief in his answer. N
otice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere
filing of a bond by the party on whose title the notice is annotated, as section
14 provides that such cancellation may be authorized ONLY upon order of court a
fter proper showing that: 1. The notice is for the purpose of molesting the adve
rse party; or 2. It s not necessary to protect the rights of the party who cause
d it to be recorded. including the judgment by default and the order of executio
n. One Peng v. Custodio 1 SCRA 780 (1961) Where the defendant has already been s
erved with summons on the original complaint, no further summons is required on
the amended complaint if it does not introduce new cause of action Atkins v. Dom
ingo 44 Phil 680 (1923) But where the defendant was declared in default on the o
riginal complaint and the plaintiff subsequently filed an amended complaint, new
summons must served on the defendant on the amended complaint, as the original
complaint was deemed withdrawn upon such amendment. GENERAL RULE: When an additi
onal defendant is joined, summons must be served upon him. EXCEPTION: 1. When th
e administrator of a deceased party defendant substitutes the deceased; 2. Where
upon the death of the original defendant his infant heirs are made parties; and
3. In cases of substitution of the deceased under Section16 of Rule 3. NOTE: In
these instances, the service of the deceased under Section 16 of Rule 3. Sectio
n 1. Clerk to issue summons Summons to be issued: 1. Upon the filing of the comp
laint; AND 2. Payment of the requisite legal fees. Section 2. Contents Section 3
. By whom served Summons may be served by: 1. Sheriff; 2. Sheriff’s deputy; or 3.
Other proper court officers; or 4. For justifiable reasons, by any suitable pers
on authorized by the court issuing the summons. Enumeration is EXCLUSIVE Section
4. Return EFFECT OF NON-SERVICE: Unless the defendant voluntary submits to the
jurisdiction of the court, nonservice or irregular service of summons renders nu
ll and void all subsequent proceedings and issuances in the action from the orde
r of default up to and Section 5. Issuance of Alias Summons ALIAS SUMMONS – is one
issued when the original has not produced its effect because of a defect in
Page 27 of 289
RULE 14 SUMMONS Minucher v. CA 214 SCRA 242 (1992) Jurisdiction over the person
of the defendant in a civil case is acquired either by his VOLUNTARY APPEARANCE
or SERVICE OF SUMMONS upon him. SUMMONS – is the writ by which he defendant is not
ified of the action brought against him. PURPOSE OF SUMMONS: 1. To acquire juris
diction over the person of QuickTime™ and a the TIFF (Uncompressed) this picture.
case; and defendantsee decompressor in a civil are needed to 2. To give notice t
o the defendant than an action has been commenced against him (right to due proc
ess).
form or in the manner of service, and when issued, superseded the first writ. Se
ction 6. Service in person on defendant Section 7. Substituted Service Section 8
. Service upon entity without juridical personality Section 9. Service upon pris
oner Section 10. incompetents Service upon minors and Citizen Surety v. Melencio
-Herrera 38 SCRA 369 (1971) In action in personam where the defendant cannot be
served with summons personal or by substituted service, the case must first be c
onverted into an in rem or quasi in rem action by attaching the property of the
defendant found in the Philippines before summons can be served by publication.
If no property can be found, the action shall be archived but shall not be dismi
ssed, SERVICE ENTITIES OF SUMMONS ON DIFFERENT C. Publication (Section 14) Requi
sites: 1. The action is in rem or quasi in rem; 2. Defendant’s identity and wherea
bouts are unknown and cannot be ascertained or diligent inquiry and 3. there mus
t be leave of court
Section 11. Service juridical entity
upon
domestic
private
Section 12. Service upon foreign private juridical entity Section 13. Service up
on public corporations Section 14. Service upon defendant whose identity or wher
eabouts are unknown Section 15. Extraterritorial Service Section 16. Residents t
emporarily outside the Philippines MODES OF SERVICE OF SUMMONS: A. Service in pe
rson on defendant (Section 6) 1. By handling a copy of summons to him, OR of he
refuses to receive it; 2. By tendering it to him. B. Substituted Service (Sectio
n 7) For substituted service of summons to be valid, it is necessary to establis
h the following: 1. The impossibility of the personal service of summons within
a person reasonable time; 2. The efforts exerted to locate the person to be serv
ed; and 3. Service upon a person of sufficient QuickTime™ and a Tage and discretio
n residing in the IFF (Uncompressed) decompressor are needed to see this picture
. same place as defendant OR some competent person in charge of his office or re
gular place of business. Spouses Venturanza v. CA 156 SCRA 305 (1987) In substit
uted service, the sheriff’s return must show that an effort or attempt was exerted
to personally serve the summons on the defendant and that the same had failed.
Service on entity without juridical personality (Section 8) Upon any or all the
defendants being sued under common name; or person in charge of the office Servi
ce upon minors and incompetents (Section 10) In case of minors: by serving upon
the minor regardless of age, AND upon his legal guardian, or also upon either of
his parents In case of incompetents: by serving on him personally AND upon his
legal guardian, but not upon his parents, unless they are his legal guardians In
any event, if the minor or incompetent has no legal guardian the plaintiff must
obtain the appointment of a guardian ad litem for him. Service upon prisoner (S
ection 9) Serve on officer having management of the jail or prisoner (warden) Se
rvice upon domestic private juridical entity (Section 11) To the president, mana
ging partner, general manager, corporate secretary, treasurer, or in-house couns
el.
Page 28 of 289
NOTE: Service upon a person other than those mentioned is invalid and does not b
ind the corporation. The enumeration is EXCLUSIVE. c) any other manner the court
may deem sufficient Service upon a resident temporarily outside the Philippines
(Section 16) Substituted service or with leave of court, personal service out o
f the Philippines as under extraterritorial service. Service upon an unknown def
endant or whose whereabouts are unknown (Section 14) with leave of court, by pub
lication in a newspaper of general circulation Montalban v. Maximo 22 SCRA 1070
(1968) Summons is validly served if it is left with some person of suitable age
and discretion then residing in the defendant’s residence, even if defendant was a
broad at that time. The fact that defendant did not actually receive the summons
did not invalidated the service of such summons. Section 17. Leave of Court Sec
tion 18. Proof of Service Section 19. Proof of Service by Publication Section 20
. Voluntary Appearance Any form of appearance in court, by the defendant, by his
agent authorized to do so, or by attorney, is equivalent to service of summons
EXCEPT where such appearance is precisely to object to the jurisdiction of the c
ourt over the person of the defendant. NOTE: Inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the defendant
shall NOT be deemed a voluntary appearance.
Service upon foreign private juridical entity (Section 12) Serve on resident age
nt; or if none; on government official designated by law; or any officer or agen
t of the corporation within the Philippines Service upon public corporations (Se
ction 13) In case defendant is the Republic of the Philippines: by serving upon
the Solicitor General In case of province , city or municipality, or like public
corporations: by serving on its executive head or on such other officer or offi
cers as the law or the court may direct Extraterritorial Service (Section 15) Re
quisites 1. defendant does not reside or is not found the Philippines; 2. The ac
tion must be an action in rem or quasi in rem. It either: a) affects the persona
l status of plaintiff; b) relates to the subject which is property within the Ph
ilippines in which defendant has a lien or interest; c) demands a relief which c
onsists wholly or in part in excluding the defendant from any interest in any pr
operty within the Philippines; or d) property of defendant has been attached in
the Philippines 3. Mode of Service a) with leave of court, serve outside QuickTi
me™ and a the Philippine by personal TIFF (Uncompressed) decompressor are needed t
o see this picture. service; or b) with leave of court, serve by publication in
a newspaper of general circulation, in which case copy of the summons and order
of court must also be sent by registered mail to the last known address of defen
dant; or
RULE 15 MOTIONS Section 1. Motion, defined Motion - is an application for relief
other then by a pleading KINDS OF MOTIONS
Page 29 of 289
a. motion EX PARTE – made without the presence or a notification to the other part
y because the question generally presented is not debatable. (i.e. motion for ex
tension of time to file pleadings) b. motion OF COURSE – where the movant is entit
led to the relief or remedy sought as a matter of discretion on the part of the
court. c. LITIGATED motion – one made with notice to the adverse party to give an
opportunity to oppose. (i.e. motion to dismiss) d. SPECIAL motion – motion address
ed to the discretion of the court. GENERAL judgment. RULE: A motion cannot pray
for 4. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DA
TE OF HEARING; (Section 4) and 5. PROOF OF SERVICE.(Section 6) EXCEPTIONS TO THE
3 DAYNOTICE RULE: 1. Ex parte motions; 2. Urgent motions; 3. Motions agreed upo
n by the parties to be heard on shorter notice or jointly submitted by the parti
es; and 4. Motions for summary judgment which must be served at least 10 days be
fore its hearing. NOTE: Any motion that does not comply with Sections 4,5 and 6
of this Rule (requirements 4-5) is a mere scrap of paper. It does not interrupt
the reglementary period for the filing of the requisite pleading. Section 7. Mot
ion Day Friday afternoon Section 8. Omnibus Motion Omnibus Motion Rule – A motion
attacking a pleading, order judgment or proceeding shall include all objections
then available. Objections not included shall be deemed waived except the defens
e referred in Section 1 Section9. Motion for leave Contents: 1. The relief sough
t to be obtained; 2. The ground upon which it is based; and 3. If required by th
e Rules or necessary to prove facts alleged therein, shall be accompanied by sup
porting affidavits and other papers. Section 4. Hearing of Motion Section 5. Not
ice of Hearing Section 6. Proof of Service Necessary
QuickTime™ REQUISITES OF A MOTIONand a NOT TIFF (Uncompressed) decompressor MADE I
N OPEN are needed to see this picture. COURT OR IN THE COURSE OF HEARING OR TRIA
L: 1. it must be in WRITING; 2. HEARING OF MOTION set by the applicant; 3. NOTIC
E OF HEARING shall be addressed to all parties concerned not later than 10 days
from the filing of the motion; (Section 5)
EXCEPTIONS: 1. Motion for judgment on the pleadings; 2. Motion for summary judgm
ent; 3. Motion for judgment on demurrer to evidence. Section 2. Motion must be i
n writing GENERAL RULE: Motions must be in writing. EXCEPTIONS: Those made in OP
EN COURT or in the COURSE OF HEARING or TRIAL. Section 3. Contents
Section 10. Form
RULE 16 MOTION TO DISMISS A MOTION TO DISMISS is NOT a responsive pleading. It i
s not a pleading at all. It is subject to the omnibus motion rule since it is a
motion that attacks a pleading. Hence, it must raise all objections available at
the time of the filing thereof. GENERAL RULE: A court may not motu propio dismi
ss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS
: 1. Those cases where the court may dismiss a case motu proprio (Section 1, Rul
e 9); 2. Section2 Rule 17; (Upon the plaintiff’s own motion)
Page 30 of 289
3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on Summary Procedure)
TYPES OF DISMISSAL OF ACTION: 1. Motion to dismiss before answer under Rule 16;
2. Motion to dismiss under Rule 17; Upon notice by plaintiff; Upon motion by pl
aintiff; Due to fault of plaintiff. 3. Motion to dismiss called a demurer to evi
dence after plaintiff has completed the presentation of his evidence under Rule
33; 4. Dismissal of an appeal Section 1. Grounds 1. No jurisdiction over the per
son of the defending party; 2. No jurisdiction over the subject matter of the ca
lm; 3. Improper venue; 4. no legal capacity to sue; 5. Litis pendentia; 6. Res j
udicata; 7. Prescription; 8. Failure to state a cause of action; 9. Claim or dem
and has been paid, waived, abandoned, or otherwise extinguished; 10. Claim is un
enforceable under the Statute of Frauds; 11. Non-compliance with a condition pre
cedent for filing claim. MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER
RULE 33 (demurrer to evidence) Based on insufficiency of evidence. May be filed
only by the defendant against the complaint of the plaintiff. plaintiff may app
eal or if subsequent case is not barred, he may refile the case. of the dismissa
l is reversed, the defendant loses his right to present evidence.
NOTE: a motion to dismiss generally partakes the nature of a demurrer. It hypoth
etically admits the allegations stated in the complaint. However, the admission
extends ONLY to material and relevant allegations. REQUISITES OF LITIS PENDENTIA
1. Identify of parties or at least such parties representing the same interests
in both actions; 2. There is substantial identity in the cause of action and re
lief sought, the relief being founded on the same facts; and 3. The identity in
the two cases should be such that any judgment that may be rendered in one, rega
rdless of which party is successful, would amount to res judicata in the other c
ase. Motion to dismiss may be filed in either suit, not necessarily in the one i
nstituted first. REQUISITES OF RES JUDICATA 1. Previous final judgment; 2. Juris
diction over the subject matter and the parties by the court rendering it; 3. Ju
dgment upon the merits; 4. There must be identity of parties, of subject matter
and of cause of action between the first and second actions. NOTE: There could b
e res judicata without a trial, such as in a judgment on the pleadings (Rule 34)
; a summary judgment (Rule 35); or an order of dismissal under Section 3 of Rule
17. PRESCRIPTION A motion to dismiss on the ground of prescription will be give
n due course only if the complaint shows on its face that the action has already
prescribed. PRESCRIPTION Concerned with the fact of delay. A matter of time. St
atutory. Applies at law. Based on fixed time. LACHES Concerned with the effect o
f delay. A matter of equity. Non-statutory Applies in equity. Not based on fixed
time
Page 31 of 289
Grounded on preliminary objections. May be filed by any defending party against
whom a claim is asserted in the action. Should be filed within kTime™ and a filed
only after May be Quic the time for but TIFF (Uncompressed) this picture. prior
to to see decompressor the plaintiff has are needed the filing of the answer com
pleted the of the defending party presentation of his to the pleading evidence.
asserting the claim against him. If denied, defendant If denied, defendant answe
rs, or else he may present evidence may be declared in if granted, plaintiff def
ault. If granted appeals and the order
COMPLAINT STATES NO CAUSE OF ACTION When the ground for dismissal is that the co
mplaint states no cause of action, such fact can be determined only from the fac
ts alleged in the complaint. FAILURE TO STATE A CAUSE OFACTION and NOT LACK ORAB
SENCE OFCAUSE OF ACTION is the ground for a motion to dismiss. The former means
there is insufficiency in the allegations in the pleading. The latter means that
there is insufficiency in the factual basis of the action. NON-COMPLIANCE WITH
A CONDITION PRECEDENT Non-compliance with P.D 1508 (Katarungang Pambarangay Law)
may result to dismissal of the case on the ground on non-compliance with a cond
ition precedent. EFFECTS OF ACTION ON MTD Order granting motion to dismiss is fi
nal order (without prejudice) Order granting motion to dismiss (with prejudice)
Order denying the motion to dismiss is interlocutory REMEDY Refile the complaint
. Appeal Certiorari and prohibition if there is grave abuse of discretion amount
ing to lack or excess of jurisdiction under rule 65 Section 4. Time to plead Def
endant is granted only the balance of the reglementary period to which he was en
titled at the time he filed his motion to dismiss, counted from his receipt o th
e denial order, but not less than 5 days in any event. Section 5. Effect of dism
issal GENERAL RULE: the action or claim may be re-filed EXCEPTION: the action ca
nnot be re-filed if it was dismissed on any of these grounds: 1. Res judicata; 2
. Prescription; 3. Extinguishment of the claim or demand; and 4. Unenforceabilit
y under the Statue of Frauds. In these instances, the remedy of the plaintiff is
APPEAL. Section 6. Pleading grounds as affirmative defenses If no motion to dis
miss had been filed, any of the grounds for dismissal provided for in rule 16, I
NCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and a preliminar
y hearing may be had thereon in the discretion of the court. NOTE: if the defend
ant would want to file a counterclaim, he should NOT file a motion to dismiss. I
nstead, he should allege the grounds of a motion to dismiss as affirmative defen
ses in his answer with a counterclaim. A preliminary hearing mat be had thereon,
and in the event the complaint too dismissed, the defendant can PROSECUTE his c
ounterclaim. The 2nd par. of Sec. 6 clearly provides that the dismissal of the c
omplaint without prejudice to the prosecution of the counterclaim.
GENERAL RULE: an order denying a motion to dismiss is interlocutory. The ordinar
y procedure is for the defendant to file hi answer and go to trial and if the de
cision is adverse, he can appeal from the judgment and assign as error the denia
l of the motion to dismiss. EXCEPTION: if the court acts without or in excess of
jurisdiction or with grave abuse of discretion in denying the motion, CERTIORAR
I or PROHIBITON QuickTime™ and a TIFF (Uncompressed) decompressor lies. are needed
to see this picture. Section 2. Hearing of Motion Section 3. Resolution of Moti
on The court may order: a. The dismissal of the action; b. Deny the motion; or c
. Amend the pleading.
RULE 17 DIMISSAL OF ACTIONS Section 1. Dismissal upon notice by plaintiff
Page 32 of 289
Dismissal is effected not by motion but by mere NOTICE of dismissal which is a m
atter of right BEFORE the SERVICE of: 1. The answer; or 2. A motion for summary
judgment. The rule requires a COURT ORDER confirming the dismissal. GENERAL RULE
: Such dismissal is WITHOUT PREJUDICE, EXCEPTION: 1. Where the notice of dismiss
al so provides; 2. Where the plaintiff has previously dismissed the same case in
a court of competent jurisdiction (TWO-DISMISSAL RULE) Serrano v. Cabrera 93 Ph
il. 774 (1953) The dismissal is still with prejudice even if the notice of dismi
ssal does not so provide, where such notice is premised on the fact of payment b
y the defendant of the claim involved Section 2. Dismissal upon motion of plaint
iff Under this section, the dismissal of the complaint is subject to the DISCRET
ION of the court and upon such terms and conditions as may be just. If a counter
claim has been pleaded by the defendant PRIOR TO THE SERVICE upon hum of the pla
intiff’s motion for dismissal, the dismissal shall be limited to the complaint. Su
ch dismissal shall be without prejudice to the right of the defendant to either:
1. Prosecute his counterclaim in a separate action; OR 2. To have the same reso
lved in the same action. In this case, defendant must manifest such preference t
o the trial court within 15 days from notice to him of plaintiff’s motion to dismi
ss.
TIFF remedies of decompressor These alternative (Uncompressed) this picture.the
defendant are are needed to see available to him REGARDLESS OFWHETHER HIS COUNTE
RCLAIM IS COMPULSORY OR PERMISSIVE. QuickTime™ and a
2. When stated to be with prejudice in the order of the court. The approval of t
he court is necessary in the dismissal or compromise of a class suit. Section 3.
Dismissal due to fault of plaintiff CAUSES FOR DISMISSAL 1. Plaintiff fails to
appear for no justifiable cause on the date of the presentation of his evidence
in chief on the complaint; 2. Plaintiff fails to prosecute his action for an unr
easonable length of time; (NOLLEPRODEQU!) 3. Plaintiff fails to comply with thes
e Rules or any order of the court.
Jalover v. Ytoriaga 80 SCRA 100 (1977) The plaintiff’s failure to appear at the tr
ial after he has presented his evidence and rested his case DOES NOT WARRANT the
dismissal of the case on the ground of failure to prosecute. It is merely a wai
ver of his right to cross-examine and to object to the admissibility of evidence
Complaint may be dismissed 1. Upon motion of the defendant; or 2. Upon the cour
t’s own motion. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS
(RES JUDICATA), unless otherwise declared by the court. SECTION 2 Dismissal is
at the instance of the plaintiff. Dismissal is a matter of procedure, without pr
ejudice unless otherwise stated in the order of the court or on plaintiff’s motion
to dismiss his own complaint. Dismissal is without prejudice to the right of th
e defendant to prosecute his counterclaim in a separate action unless w/in 15 da
ys from notice SECTION 3 Dismissal is not procured by plaintiff though justified
by causes imputable to him. Dismissal is a matter of evidence, an adjudication
on the merits.
Dismissal under this rule is WITHOUT PREJUDICE, EXCEPT: 1. When otherwise stated
in the motion to dismiss;
Dismissal is without prejudice to the right of the defendant to prosecute his co
unterclaim on the same separate action.
Page 33 of 289
of the motion he manifests his intention to have his counterclaim resolved in th
e same action. Section 4. Dismissal of counterclaim, cross-claim or third party
complaint 6. The advisability of a PRELIMINARY REFERENCE of issues to a commissi
oner; 7. The property of RENDERING JUDGMENT on the pleadings, or summary judgmen
t, or of dismissing the action should a valid ground therefore be found to exist
; 8. The advisability or necessity of SUSPENDING THE PROCEEDINGS; and 9. Such OT
HER MATTERS as may aid in the prompt disposition of the case. Section 3. Notice
of Pre-trial Section 4. Appearance of parties When non-appearance of a party may
be excused: 1. If a valid cause is shown therefore; 2. If a representative shal
l appear in his behalf fully authorized in writing to: a. Enter into an amicable
settlement; b. Submit alternative modes of dispute resolution; c. Enter into st
ipulations or admissions of facts and of documents. NOTE: the mere presentation
of such written authority is not sufficient, but must be complemented by a showi
ng of valid cause for the non-appearance of the party himself. Section 5. Effect
of failure to appear EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal
of the action, with prejudice, unless otherwise ordered by the court. EFFECT OF
NON-APPEARANCE OF DEFENDANT: Cause the plaintiff to present evidence ex parte a
nd for the court to render judgment on the basis thereof. Section 6. Pre-trial b
rief Failure to file pre-trial brief has the same effect as failure to appear at
the pre-trial. Section 7. Record of pre-trial The contents of the PRE-TRIAL ord
er shall control the subsequent course of the action, UNLESS modified before tri
al to prevent manifest injustice.
RULE 18 PRE-TRIAL PRE-TRIAL – a mandatory conference and personal confrontation be
fore the judge between he parties and their respective counsel. Section 1. When
conducted The plaintiff should promptly file a motion ex parte that the case be
set for pre-trial, and this he must do upon the service and filing of the last p
leading. Sarmiento v. Juan 120 SCRA 403 (1983) The “last pleading” need not be liter
ally construed as the actual filing of the last pleading. For purposes of the pr
e-trial, the expiration of the period for filing the last pleading is sufficient
. Section 2. Nature and purpose The court shall consider: 1. The possibility of
an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resol
ution; 2. The SIMPLICATION OF ISSUES; 3. The necessity or desirability of AMENDM
ENTS TO THE PLEADINGS; 4. The possibility of obtaining STIPULATIONS or ADMISSION
S of facts and documents to avoid unnecessary proof; Filoil Marketing Corp. v. D
y Pac & Co. 160 SCRA 133 (1988) QuickTime™ and a TIFF (Uncompressed) decompressor
The process are needed to see this admissions, whether of of securing picture. f
acts or evidence, is essentially voluntary. Whether of facts or evidence, is ess
entially voluntary. When the parties are unable to arrive at a stipulation of ag
reed facts, the court must close the pre-trial and proceed with the trial of the
case. 5. The limitation WITNESSES; of the number of
Page 34 of 289
A party is deemed to have waived the delimitations in a pre-trial order if he fa
iled to object to the introduction of evidence on an issue outside of the pre-tr
ial order, as well as in cross-examining the witness in regard to said evidence.
2. One who has a legal interest in the success of either of the parties 3. One
who has an interest against both parties or 4. One who is so situated as to be a
dversely affected by distribution of other disposition of property in the custod
y of the court or of an officer thereof. FACTORS TO BE CONSIDERED BY THE COURT 1
. Whether the intervention will unduly delay or prejudice the adjudication of th
e rights of the original parties; and 2. Whether the in intervenor’s rights may be
fully protected in a separate proceeding.
If defendant is absent, court may hear evidence of plaintiff ex parte
PRE-TRIAL
No settlement Amicable Settlement Failure to appear
Agreements made by parties; Amendments to pleading; Schedule of trial
If plaintiff is absent, when so required to attend, the court may dismiss the ca
se
The interest which entitles a person to intervene in a suit must be on the matte
r in litigation and of such direct and immediate character that the intervenor w
ill either gain or lose by the direct legal operation and effect of the judgment
. INTERVENTION An ancillary action Proper in any of the four situations mentione
d in this Rule. INTERPLEADER An original action Presupposes that the plaintiff h
as no interest in the subject matter of the action or has an interest therein wh
ich in whole or in part is not disputed by the other parties to the action. Defe
ndants are being sued precisely to implead them.
TRIAL
Court renders
If evidence is sufficient to prove plaintiff’s cause of action or defendant’s counte
rclaim, court rules in favor of either one or dismisses the case
Defendants are already original parties to the pending suit RULE 19 INTERVENTION
Intervention - is a legal proceeding by which a third person is permitted by th
e court to become a party by intervening in a pending action after meeting the c
onditions and requirement set by the Rules of Court
TIFF (Uncompressed) decompressor NOTE: Intervention is see this picture. an inde
pendent never are needed to proceeding but is ancillary and supplemental to an e
xisting litigation. Hence the final dismissal of the principal action results in
to dismissal of said ancillary action. QuickTime™ and a
Section 2. Time to intervene The motion to intervene must be filed at any time b
efore the rendition of judgment by the trial court. NOTE: After rendition of jud
gment, a motion to intervene is barred, even if the judgment itself recognizes t
he right of the movant. The remedy of the movant is to file a separate action. S
ection 3. Pleadings-in-intervention 1. Complaint-in-intervention if intervenor a
sserts a claim against either or all of the original parties. 2. Answer-in-inter
vention
Section 1. Who may intervene 1. One who has legal interest in the matter in liti
gation
Page 35 of 289
if intervenor unites with the defendant in resisting a claim against the latter
1. The court before whom witness is required to attend; 2. The court of the plac
e where the deposition is to be taken; 3. The officer or body authorized by law
to do so in connection with its investigations conducted by said officer or body
; or 4. Any Justice of the Supreme Court or of the Court of Appeals in any case
or investigation pending within the Philippines. (Section 2) A subpoena is signe
d by the Clerk of Court. (Rule 136, Section 4) Liebnow v. Philippine Vegetable O
il 39 Phil 60 (1918) If a subpoena duces tecum is improperly issued, a proper re
medy is motion to vacate or set aside the subpoena. IF SUBPOENA IS ISSUED TO A P
RISONER When application for a subpoena to a prisoner is made, the judge or offi
cer shall examine and study carefully such application to determine whether the
same is made for a valid purpose. (Section 2) No prisoner (1) sentenced to death
, reclusion perpetua or life imprisonment and (2) who is confined in any penal i
nstitution shall be brought outside the penal institution for appearance or atte
ndance in any court unless authorized by the Supreme Court. (Section 2) The depo
sition of a prisoner confined in prison may be taken only by leave of court on s
uch terms as the court prescribes. (Rule 23, Section1) FORM AND CONTENTS OF A SU
BPOENA AD TESTIFICANDUM A subpoena shall state: 1. the name of the court and 2.
the title of the action or investigation 3. (and) shall be directed to the perso
n required to attend. (Section 3) FORM AND CONTENTS OF A SUBPOENA DUCES TECUM 1.
the name of the court and 2. the title of the action or investigation 3. (and)
shall be directed to the person required to attend. 4. It must contain a reasona
ble description of the books, documents or things demanded which must appear to
the court prima facie relevant. (Section 3)
Page 36 of 289
Section 4. Answer to a complaint-in-intervention Within 15 days from notice of t
he order admitting the same REMEDIES FOR THE DENIAL OF INTERVENTION 1. Appeal 2.
Mandamus, if there is grave abuse of discretion If there is improper granting o
f intervention, the remedy of the party is Certiorari.
RULE 20 CALENDAR OF CASES Section 1. Calendar of cases Section 2. Assignment of
cases.
RULE 21 SUBPOENA Section 1. Subpoena and subpoena duces tecum TWO KINDS OF SUBPO
ENA 1. Subpoena duces tecum – process directed to a person which requires him to b
ring with him a. any books, b. documents, or c. other things under his control.
(Section 1) 2. Subpoena ad testificandum – process directed to a person requiring
him to attend and to testify a. at the hearing or the trial of an action, or Qui
ckTime™ and a b. TIFF (Uncompressed) decompressor conducted by at any investigatio
n are needed to see this picture. competent authority, or c. for the taking of h
is deposition. (Section1) Section 2. By who issued Section 3. Form and Contents
WHO ISSUES A SUBPOENA
Section 4. Quashing a Subpoena GROUNDS FOR QUASHING A SUBPOENA 1. Subpoena duces
tecum The court may a. upon motion promptly made and, b. in any event, at or be
fore the time specified therein c. if (grounds) It is unreasonable and oppressiv
e, The relevancy of the books, documents or things does not appear, or The perso
n in whose behalf the subpoena is issued fails to advance the reasonable cost of
the production thereof. The witness fees and kilometrage allowed by the Rules w
ere not tendered when the subpoena was served. (Section 4) 2. Subpoena ad testif
icandum a. The witness is not bound thereby When is witness not bound? if witnes
s resides more than 100 km from the place where he is to travel by the ordinary
course of travel, if he is a detention prisoner and no permission is obtained fr
om the court in which his case is pending. b. Witness fees and kilometrage allow
ed by the Rules were not tendered when the subpoena was served. (Section 4) Sect
ion 2 of RA 1405 provides in summary that bank deposits can only be examined whe
n there is: 1. a written permission of the depositor, or 2. in cases of impeachm
ent, or 3. upon order of a competent court in cases of bribery or dereliction of
duty of public officials, or 4. in cases where the money deposited or invested
is the subject matter of the litigation. However, this is subject to the provisi
ons of Section11 of the Anti-Money Laundering Act which gives the Anti-Money Lau
ndering Council the right to examine any particular deposit or investment upon o
rder of any competent court in cases of violation of the AMLA but there is no ne
ed for court order if such violation of the AMLA is related to kidnapping for ra
nsom, violations of
the Comprehensive Dangerous Drugs Act of 2002 and hijacking. Section 5. Subpoena
for deposition Section 6. Service HOW IS SERVICE OF A SUBPOENA MADE? Service of
a subpoena shall be made in the same manner as personal or substituted service
of summons. 1. the original shall be exhibited and a copy thereof delivered to t
he person on whom it is served, 2. tendering to him a. if subpoena ad testifican
dum, the fees for one day’s attendance and the kilometrage allowed by these rules
EXCEPT THAT, when a subpoena is issued by or on behalf of the Republic of the Ph
ilippines or an officer or agency thereof, the tender need not be made. b. if su
bpoena duces tecum, fees for one’s days attendance subject to the same exception a
s a subpoena ad testificandum the reasonable cost of producing the books, docume
nts or things demanded if subpoena duces tecum 3. The service must be made so as
to allow the witness a reasonable time for preparation and travel to the place
of attendance. (Section 6 SUBPOENA An order to appear and testify or to produce
books and documents May be served to a nonparty Needs tender of kilometrage, cos
t of production fees and attendance Notifies party that a complaint against him
has been filed and that he should file an answer within a given period Issued on
ly once at the start, for the court to acquire jurisdiction and for the issues t
o be joined SUMMONS Order to answer complaint a
Served on the defendant Does not need tender of kilometrage and other fees Notic
e of the date of the hearing of which he is required to attend May be issued mor
e than once at anytime
Page 37 of 289
Violation: default Violation: contempt indirect 2. to a detention prisoner if no
permission of the court in which his case is pending is obtained. (Section 10)
Section 7. Personal Appearance in court CAN A PERSON PRESENT IN COURT BE REQUIRE
D TO TESTIFY? YES. A person present in court before a judicial officer may be re
quired to testify as if he were in attendance upon a subpoena issued by such cou
rt or officer. (Section 7) Section8. Compelling Attendance Section 9. Contempt C
AN THE COURT COMPEL THE ATTENDANCE OF A PERSON TO WHOM A SUBPOENA HAS BEEN ISSUE
D? YES. In case of a failure of a witness to attend, the court or judge issuing
the subpoena, upon: 1. proof of the service thereof and 2. proof of the failure
of the witness, may issue a warrant to the sheriff of the province, or his deput
y, to arrest the witness and bring him before the court or officer where his att
endance is required. (Section 8) If the failure to attend was willful and withou
t just cause, 1. the cost of the warrant and seizure of such witness shall be pa
id by the witness (Section 8) 2. it shall be deemed as contempt of the court fro
m which the subpoena is issued (Section 9) What if the subpoena was not issued b
y the court? The disobedience to the subpoena shall be punished in accordance wi
th the applicable law or Rule. (Section 9) ARE THERE ANY EXCEPTIONS TO COMPELLIN
G ATTENDANCE OF WITNESSES ISSUED A QuickTime™ and a TIFF (Uncompressed) decompress
or SUBPOENA AND FROM BEING HELD IN are needed to see this picture. CONTEMPT OR P
UNISHED FOR DISOBEDIENCE? YES. There are two instances: 1. if the witness reside
s more than 100 kilometers from his residence to the place where he is to testif
y by the ordinary course of travel (known as viatory right, applicable only in c
ivil cases), or RULE 22 COMPUTATION OF TIME Section 1. How to compute time HOW I
S TIME COMPUTED? In computing any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable statute, the first day (or
the day of the act or event from which the designated period is to run) shall b
e excluded while the last day (the date of performance) shall be included. If th
e last day falls on a Saturday, Sunday or a nonworking legal holiday in the plac
e where the court sits, time shall not run until the next working day. (Section
1) Section 2. Effect of Interruption WHAT IS THE EFFECT OF INTERRUPTION? If peri
od is interrupted, the allowable period after such interruption shall start to r
un after notice of the cessation of the cause of such interruption. The day of t
he act that caused the interruption shall be excluded in the computation of the
period. QUESTION: If the defendant files a motion to dismiss on the fifth day, w
hat is the balance of his allowable period? ANSWER: 11 days. Since the motion to
dismiss filed interrupts the period to file the answer, you exclude that day in
the computation of the period and so the allowable period would be 11 days. Whe
n the last day of the period falls on a Saturday, a Sunday, or a legal holiday,
and a party is granted an extension of time, the extension should be counted fro
m the last day which is a Saturday, Sunday, or legal holiday. (Re: Computation o
f Time when the Last Day Falls on a Saturday, Sunday, or Legal Holiday and a Mot
ion for Extension Filed on Next Working Day is Granted, A.M. No. 00-2-14-SC, 200
0)
Page 38 of 289
MODES OF DISCOVERY (RULES 23-29) DISCOVERY – disclosure of facts resting in the kn
owledge of the defendant, or as production of deeds, writings, or things in his
possession or power, in order to maintain the right or title of the party asking
it, in a suit or proceeding. [Insular Life Assurance Co., Ltd. v. CA, 238 SCRA
88, 92 (1994)] PURPOSE OF THE MODES OF DISCOVERY 1. to narrow and clarify basic
issues between the parties, 2. as a device for ascertaining the facts relative t
o those issues 3. to support a motion for summary judgment. (Rule 35) BILL OF PA
RTICULARS To make ultimate facts more definite, not to supply evidentiary matter
s To prepare for responsive pleading MODES OF DISCOVERY To discover evidentiary
facts To prepare for (abbreviates trial) trial and request for admission by adve
rse party under Rule 26 or at their discretion make use of depositions under Rul
e 23 or other measures under Rule 27 and 28 within 5 days from the filing of the
answer shall be served upon the defendant together with the summons and upon th
e plaintiff.” (Rule on Guidelines to be Observed by Trial Court Judges and Clerks
of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures, A
.M. No. 03-1-09-SC, Aug. 16, 2004)
RULE 23 DEPOSITIONS PENDING ACTIONS DEPOSITION – is the testimony of a witness tak
en upon oral examination or written interrogatories, not in open court, but in p
ursuance of a commission to take testimony issued by a court, or under a general
law or court rule on the subject, and reduced to writing and duly authenticated
, and intended to be used in preparation and upon the trial of a civil or crimin
al prosecution. It is a pre-trial discovery device by which one party (through h
is or her attorney) asks oral questions of the other party or of a witness for t
he other party. (People v. Webb, 312 SCRA 573, 1999) PURPOSES OF TAKING DEPOSITI
ONS 1. It is of great assistance in ascertaining the truth and in checking and p
reventing perjury. The reasons for this are: a. The witness (including a party)
is examined while his memory is fresh: b. The witness (including a party) is gen
erally not coached in preparation for a pre-trial oral examination with the resu
lt that his testimony is likely to be more spontaneous. Where the examination is
upon written interrogatories, however, it appears that some lawyers furnish the
witness with copies of the interrogatories and thereby enable him to prepare hi
s answers in advance. c. A party or witness whose deposition has been taken at a
n early stage in the litigation cannot, at a later date, readily manufacture tes
timony in contradiction to his deposition;
Denial of Bills of Particulars does not bar the use of the Modes of Discovery. I
t is cumulative. MODES OF DISCOVERY UNDER THE RULES OF COURT 1. Depositions pend
ing action (Rule 23) 2. Depositions before action or pending appeal (Rule 24) 3.
Interrogatories to parties (Rule 25) 4. Admission by adverse party (Rule 26) 5.
Production or inspection of documents, or things (Rule 27) 6. Physical and ment
al examination of persons (Rule 28) LIMITATIONS TO MODES OF DISCOVERY 1. When it
can be shown that the examination is being conducted in bad faith 2. When it ca
n be shown that the examination is being conducted in such a manner as to QuickT
ime™ and annoy, TIFF (Uncompressed) decompressor embarrass, or aoppress the person
are needed to see this picture. subject to the inquiry. 3. Irrelevant 4. Privil
eged matters Using of the modes of discovery is highly encouraged by the court. “A
copy of the order of the court requiring the parties to avail of interrogatorie
s to parties under Rule 25
Page 39 of 289
d. Testimony is preserved, so that if a witness unexpectedly dies or becomes una
vailable at the trial, his deposition is available. It is an effective means of
detecting and exposing false, fraudulent, and sham claims and defenses. It makes
available in a simple, convenient, and often inexpensive way facts which otherw
ise could not have been proved, except with great difficulty and sometimes not a
t all. It educates the parties in advance of trial as to the real value of their
claims and defenses, thereby encouraging settlements out of court. It expedites
the disposal of litigation, saves the time of the courts, and clears the docket
of many cases by settlements and dismissals which otherwise would have to be tr
ied. It safeguards against surprise at the trial, prevents delays, and narrows a
nd simplifies the issues to be tried, thereby expediting the trial. It facilitat
es both the preparation and trial of the cases. (Fortune v. IAC, G.R. No. 108119
, 1994) NOTICE AND SERVICE Deposition a party desiring to take a deposition pend
ing shall give reasonable notice in writing action to every other party to the a
ction (Rule 23, Section 15) Deposition the petitioner shall serve a notice befor
e upon each person named in the action petition as an expected adverse party, (R
ule 24, together with a copy of the petition stating the time and place. Section
3) At least 20 days before the date of the hearing, the court shall cause notic
e thereof to be served on the parties and prospective deponents in the manner pr
ovided for service of summons. Deposition pending appeal (Rule 24, Section 7) Th
e party must make a motion for leave to take deposition in the court which rende
red judgment and give notice in writing to every other party to the action
2. 3.
4. 5.
6.
7.
WHEN MAY DEPOSITIONS BE TAKEN? 1. Deposition De Bene Esse – taken for purposes of
pending action 2. Depositions in Perpetuam Rei Memoriam – those taken to perpetuat
e evidence for purposes of an anticipated action or further proceedings in a cas
e on appeal KINDS OF DEPOSITIONS 1. Depositions on Oral Examinations (Secs. 15-2
4) 2. Depositions upon Written Interrogatories (Secs. 25-28) GENERAL PROVISIONS
ON DEPOSITIONS (Secs. 1-14) Section 1. Depositions pending action, when may be t
aken
QuickTime™ and WHAT TO FILETIFF(SECTION 1) aressor (Uncompressed) decomp are neede
d to see this picture. 1. After jurisdiction has been obtained over any defendan
t or over property which is the subject of the action but before answer, Motion
to Take Oral Deposition or Written Interrogatories (By Leave of Court) 2. After
an answer has been served, Notice to take Oral Deposition or Written Interrogato
ries (Without Leave of Court)
CONTENTS OF THE NOTICE 1. For a deposition upon oral examination (Section 15) a.
the time and place for the taking of the deposition (upon motion of any party u
pon whom the notice is served, the court may for cause shown enlarge or shorten
the time) and b. the name and address of each person to be examined, if known. I
f unknown, a general description sufficient to identify him or the particular cl
ass or group to which he belongs. 2. For deposition upon written interrogatories
a. The names and address of the person who is to answer and b. The name or desc
riptive title and address of the officer before whom the deposition is to be tak
en Proof of service of a notice to take a deposition as provided in Sections 15
and 25 of Rule 23 shall constitute sufficient authorization for the issuance of
subpoenas for the persons named in
Page 40 of 289
said notice by the clerk of court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena duces tecum to any such pe
rson without an order of the court. (Rule 21, Section 5) Section 2. Scope of Exa
mination WHAT IS THE SCOPE OF EXAMINATION? Unless otherwise ordered by the court
as provided by Section 16 or 18 of this Rule, the deponent may be examined rega
rding ANY MATTER (should concur) 1. not privileged a. privileged communication (
Rule 130, Section 24) husband and wife attorney and client doctor and patient pu
blic officer priest and confessant b. the list of privileged communication is no
t exclusive. Ex : secrecy of bank deposits, non-disclosure of trade secrets, res
ult of census, candidate voted for except in an election case 2. relevant to the
subject of the pending action, whether relating to the claim or defense of any
other party, including the existence, description, nature, custody, condition, a
nd location of any books, documents, or tangible things and the identity and loc
ation of persons having knowledge of relevant facts (Section 2) 3. not restricte
d by protective order or motion to limit examination (Secs. 16 and 18) Section 3
. Examination and cross-examination may proceed as permitted at the trial under
Sections 3 to 18 of Rule 132. DEPOSITION AFFIDAVIT Written testimony of witness
Mere sworn written in course of judicial statements proceedings, in advance of t
rial and hearing QuickTime™ and a TIFF (Uncompressed) decompressor parte Opportuni
ty for neededcross- pictEx statements are to see this ure. examination without f
ormal interrogation and cross-examination Can be competent Not admissible in tes
timonial evidence evidence except in cases governed by the Rule on Summary Proce
dure Section 4. Use of depositions WHAT ARE THE USES OF DEPOSITIONS? Rule 23 Sec
tion 4 is applicable in depositions pending action, before action and pending ap
peal. (Cross reference to Rule 24 Section 6 and 7) For depositions before action
, it may be used in an action involving the same subject matter. (Rule 24, Secti
on 6) For depositions pending action or pending appeal, depositions may be used
at the trial, upon hearing of a motion, or an interlocutory proceeding. (Rule 23
, Section 1) Any part or all of a deposition, which is admissible in evidence, m
ay be used against any party who was present or represented during the taking of
the deposition or who had notice thereof in accordance with any one of the foll
owing provisions: 1. deposition of a witness – may be used by any party a. to cont
radict or impeach the deponent’s testimony as a witness b. for any purpose if the
court finds that: Witness is dead; Witness resides at a distance more than 100 k
m from place of trial or hearing, or is out of the Philippines, UNLESS it appear
s that absence of witness is procured by party offering the deposition; Witness
is unable to testify because of age, sickness, infirmity, or imprisonment; Party
offering the deposition has been unable to procure the attendance of the witnes
s by subpoena; or upon application and notice, that such exceptional circumstanc
es exist as to make it desirable, in the interest of justice, and with due regar
d to the importance of presenting the testimony of witnesses orally in open cour
t, to allow the deposition to be used.
Page 41 of 289
2. deposition of any party, or anyone who at the time of taking the deposition w
as an officer, director, or managing agent of a public or private corporation – ma
y be used by an adverse party for any purpose 3. If only part of the deposition
is introduced, adverse party may require that all of it which is relevant to the
part introduced be introduced, and any party may introduce any other parts. (Se
ction 4) Where the witness is available to testify and the situation is not one
of those excepted under Section 4, his deposition is inadmissible in evidence an
d he should be made to testify. Section5. Effect of Substitution of Parties WHAT
IS THE EFFECT OF SUBSTITUTION OF PARTIES TO DEPOSITIONS PREVIOUSLY TAKEN? Rule
23 Section 5 is applicable in depositions pending action, before action and pend
ing appeal. (Cross reference to Rule 24 Section 6 and 7) Substitution of parties
does not affect the right to use depositions previously taken; and, when an act
ion has been dismissed and another action involving the same subject is afterwar
d brought between the same parties or their representatives or successors in int
erest, all depositions lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefore. (Section 5) Section 6. Obj
ections to admissibility WHEN ARE OBJECTIONS TO ADMISSIBILITY OF DEPOSITION MADE
? Objection may be made at the trial or hearing to receive in evidence any depos
ition or part thereof for any reason which would require the exclusion of the ev
idence if the witness were then present and testifying. (Section 6) And it is al
so at trial or hearing when any party mayQuickTime™ and a relevant evidence rebut
any TIFF (Uncompressed) decompressor are needed to see this picture. contained i
n a deposition whether introduced by him or by any other party. (Section 9) Sect
ion 7. Effect of taking depositions ] Section 8. Effect of using depositions Sec
tion 9. Rebutting depositions WHAT IS THE EFFECT OF TAKING DEPOSITIONS? A party
shall not be deemed to make a person his own witness for any purpose by taking h
is deposition. (Section 7) Deposition is a mode of discovery and so it is possib
le that you will not use the deposition as part of your evidence and so by takin
g depositions, you do not make the deponent automatically your witness. A party
may refuse to present witness even if his deposition was taken. BUT: the introdu
ction in evidence of the deposition or any part thereof makes the deponent the w
itness of the party introducing the deposition (Section 8) EXCEPTIONS to Section
8: 1. Deposition is used to impeach or contradict 2. Deposition of your opponen
t does not make him your witness 3. Deposition of an officer of a corporation (p
ar.(b) Section4) Defendant may present witness even if it was the plaintiff who
took the witness’s deposition. Section 10. Persons before who depositions may be t
aken within the Philippines Section 11. Persons before who depositions may be ta
ken in foreign countries BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. Within the Phil
ippines a. Any Judge b. Notary public c. Any person authorized to administer oat
hs if the parties so stipulate in writing (Section 10) 2. In foreign countries a
. On notice, before a secretary of any embassy or legation, consul-general, cons
ul, vice-consul, consular agent of the Philippines; Why is an ambassador not inc
luded? Because an ambassador is only concerned with political matters. b. Before
such person or officer as may be appointed by commission or under letters rogat
ory
Page 42 of 289
c. Any person authorized to administer oaths if the parties so stipulate. (Secti
on 11) Autographics, Inc. v. CA, GR No.95863, 1 July 1993 The right of a party t
o take depositions as means of discovery is not exactly absolute. This is implic
it in the provisions of the Rules of Court cited by appellants themselves, secti
ons 16 and 18 of Rule 24. In such instances, these provisions expressly authoriz
e the court to either prevent the taking of a deposition or stop one that is alr
eady being taken. Section 15. Depositions upon oral examination; notice; time an
d place Section 16. Orders for the protection of parties and deponents PROTECTIO
N ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is se
rved for taking a deposition upon motion seasonably made by any party or by the
person to be examined and for good cause shown (which means it will be done befo
re the taking of the deposition) MOTION TO TERMINATE OR LIMIT EXAMINATION (Secti
on 18) At any time during the taking of the deposition, on motion or petition of
any party or of the deponent and upon a showing that the examination is being c
onducted in bad faith or in such manner as unreasonably to annoy, embarrass, or
oppress the deponent or party The court in which the action is pending or the RT
C of the place where the deposition is being taken Orders the officer conducting
the examination to
Section 12. Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued on
ly when necessary or convenient, on application and notice, and on such terms an
d with such direction as are just and appropriate An instrument issued by Instru
ment sent in the the court of justice or name and by authority of tribunal to au
thorize a a judge or court to person to take another judge or court depositions
or to do any requesting the latter to other act by authority of custody examine
upon such court or tribunal interrogatories filed in a case pending in the forme
r, a witness who is within the jurisdiction of the judge or court to whom such l
etter is addressed Applicable rules of procedure are those of the requesting cou
rt Resorted to if permission of the foreign country is given Leave of court is n
ot necessary. Applicable rules of procedure are those of the foreign court reque
sted to act Resorted to if the execution of the commission is refused in the for
eign country Leave of court is necessary.
Section 13. Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITION
S? 1. Relative within 6th degree of consanguinity or affinity of any party 2. Em
ployee of any party 3. Counsel of any party 4. Relative within the same degree o
f any party’s counsel 5. Employee ofQuickTime™ and a party’s counsel TIFF financiallyd
ecompressor (Uncompressed) interested in the action 6. Anyoneare needed to see t
his picture. GROUNDS FOR NOT TAKING A DEPOSITION 1. not relevant (Section 1) 2.
to protect a party or witness from annoyance, embarrassment or opposition (Secti
on 16 and 18)
The court in which the action is pending
Makes an order that: 1. deposition shall not be taken 2. it may be taken only at
Page 43 of 289
some designated place other than that stated in the notice it may be taken only
on written interrogatories or only upon oral examination certain matters shall n
ot be inquired into the scope of the examination shall be held with no one prese
nt except the parties to the action and their officers or counsel that after bei
ng sealed, the deposition shall be opened only by order of the court that secret
processes, developments, or research need not be disclosed, or that the parties
shall simultaneously file specified documents or information enclosed in a seal
ed envelope to be opened as directed by the court; or that it shall not be taken
before the officer designated in the notice (Section 28) any other order which
justice requires to protect the party or witness from annoyance, embarrassment,
or oppression cease forthwith from taking the deposition, or may limit the scope
and manner of the taking of the deposition. Section 19. Submission to witness;
changes; signing Section 20. Certification and filing by officer Section 21. Not
ice of Filing Section 22. Furnishing Copies PROCEDURE FOR TAKING ORAL DEPOSITION
S 1. Record of examination; oath; objections (Section 17) The officer before who
m the deposition is to be taken shall put the witness on oath and shall personal
ly, or by some one acting under his direction and in his presence, record the te
stimony of the witness. The testimony shall be taken stenographically unless the
parties agree otherwise. All objections made at the time of the examination to
the qualifications of the officer taking the deposition, or to the manner of tak
ing it, or to the evidence presented, or to the conduct of any party, and any ot
her objection to the proceedings, shall be noted by the officer upon the deposit
ion. Evidence objected to shall be taken subject to the objections. In lieu of p
articipating in the oral examination, parties served with notice of taking a dep
osition may transmit written interrogatories to the officers, who shall propound
them to the witness and record the answers verbatim. 2. Submission to witness;
changes; signing (Section 19) When the testimony is fully transcribed, the depos
ition shall be submitted to the witness for examination and shall be read to or
by him unless such examination and reading are waived by the witness and by the
parties. Any changes in form or substance which the witness desires to make shal
l be entered upon the deposition by the officer with a statement of the reasons
given by the witness for making them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive the signing or the witness is
ill or cannot be found or refuses to sign. If the deposition is not signed by th
e witness, the officer shall sign it and state on the record the facts of the wa
iver or of the illness or absence of the witness or the fact
Page 44 of 289
3. 4. 5.
6. 7. 8.
9.
10.
If the order made under Section 18 terminates the examination, it shall be resum
ed only upon order of the court in which the action is pending. Upon demand of t
he objecting party or deponent, the taking of the deposition shall be suspended
for the time necessary to make a notice for an order. In granting or refusing su
ch order, the court may QuickTime™ and a TIFF (Uncompressed) decompressor impose u
pon either party or upon the witness the are needed to see this picture. require
ment to pay such costs or expenses as the court may deem reasonable Section 17.
objections Section 18. examination Record of Examination; oath;
Motion
to
terminate
or
limit
of the refusal to sign together with the reason given therefore, if any, and the
deposition may be used fully as though signed, unless a motion to suppress is f
iled, the court holds that the reasons given for the refusal to sign require rej
ection of the deposition in whole or in part. 3. Certification and filing by off
icer (Section 20) The officer shall certify on the deposition that the witness w
as duly sworn to by him and that the deposition is a true record of the testimon
y given by the witness. He shall then securely seal the deposition in an envelop
e endorsed with the title of the action and marked “Deposition of (here insert the
name of witness)” and shall promptly file it with the court in which the action i
s pending or send it by registered mail to the clerk thereof for filing. 4. Noti
ce of filing (Section 21) The officer taking the deposition shall give prompt no
tice of its filing to all the parties. 5. Furnishing copies (Section 22) Upon pa
yment of reasonable charges therefor, the officer shall furnish a copy of the de
position to any party or to the deponent. Section 23. Failure to attend of party
giving notice WHAT HAPPENS IF A PARTY GIVING THE NOTICE OF THE TAKING OF THE DE
POSITION FAILS TO ATTEND AND PROCEED WITH THE TAKING OF DEPOSITION? If the party
giving the notice fails to attend and proceed therewith and another attends in
person or by counsel pursuant to the notice, the court may order the party givin
g the notice to pay such other party the amount of the reasonable expenses incur
red by him and his counsel in so attend, including reasonable attorney’s fees. (Se
ction 23) Section 24. Failure of party giving notice to serve subpoena HOW ABOUT
IF THEQuickTime™ and FAILS TO SERVE A PARTY a TIFF (Uncompressed) decompressor ar
e needed to see this picture. SUBPOENA UPON THE WITNESS? If another party attend
s in person or by counsel because he expects the deposition of that witness to b
e taken and the witness fails to attend because of the failure of the party givi
ng notice to serve a subpoena upon the witness, then the same consequence as abo
ve. (Section 24) Section 25 interrogatories; interrogatories Deposition upon wri
tten service of notice and
Section 26. Officers to take responses and prepare record Section 27. Notice of
filing and furnishing copies Section 28. Orders for the protection of parties an
deponents PROCEDURE FOR DEPOSITION UPON WRITTEN INTERROGATORIES 1. After servic
e of notice, within 10 days thereafter, the party so served with the notice may
serve cross-interrogatories upon the party proposing to take the deposition. (Se
ction 24) 2. Within 5 days thereafter, the party proposing to take the depositio
n may serve re-direct interrogatories upon a party who has served cross-interrog
atories. (Section 24) 3. Within 3 days after being served with redirect interrog
atories, a party may serve recross-interrogatories upon the party proposing to t
ake the deposition. (Section 24) 4. A copy of the notice and copies of all inter
rogatories served shall be delivered to the officer designated in the notice who
shall proceed promptly, in the manner provided by sections 17, 19, and 20 of th
is Rule, to take the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching thereto the
copy of the said notice and the interrogatories received by him. (Section 26) 5
. When a deposition upon interrogatories is filed, the officer taking it shall p
romptly give notice thereof to all the parties, and may furnish copies to them o
r to the deponent upon payment of reasonable charges therefore. (Section 27) Sec
tion 29. Effect of errors and irregularities in depositions WHAT ARE THE EFFECTS
OF ERRORS AND IRREGULARITIES IN THE DEPOSITIONS? 1. As to notice – waived unless
written objection is promptly served upon the party giving the notice 2. As to d
isqualification of officer – waived unless made before the taking of the depositio
n begins or as soon thereafter as
Page 45 of 289
the disqualification becomes known or could be discovered with reasonable dilige
nce As to competency or relevancy of evidence - NOT waived by failure to make th
em before or during the taking of the deposition, unless ground is one which mig
ht have been obviated or removed if presented at that time As to oral examinatio
n and other particulars - Errors occurring at the oral examination in the manner
of taking the deposition, in the form of questions and answers, in oath or affi
rmation, or in conduct of parties, and errors of any kind which might be obviate
d, removed, cured if promptly prosecuted are waived unless reasonable objection
is made at the taking of the deposition. As to form of written interrogatories w
aived unless served in writing upon the party propounding them within the time a
llowed for serving succeeding cross or other interrogatories and within 3 days a
fter the service of the last interrogatories authorized. As to manner of prepara
tion - errors as to manner in which the testimony is transcribed or the depositi
on is prepared, signed, certified, sealed, indorsed, transmitted, filed or other
wise dealt with by the officer are waived unless a motion to suppress the deposi
tion or some part of it is made with reasonable promptness after such defect is,
or with due diligence might have been, ascertained. (Section 29) RULES ON OBJEC
TIONS 1. Objections to direct interrogatories can made within 10 days. 2. Object
ions to cross interrogatories can made within 5 days. 3. Objections to re-direct
interrogatories can made within 3 days. 4. Objections to re-cross interrogatori
es can made within 3 days. be be be be
3.
4.
5.
6.
Diman v. Hon. Alumbres, G.R. No. 131466, 27 Nov 1998 A trial court has no discre
tion to determine what the consequences of a party s refusal to allow or make di
scovery should be; it is the law which makes that determination; and it is grave
abuse of discretion for the Court to refuse to recognize and observe the effect
s of that refusal as mandated by law.
RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Who apply? can DEPOSITIONS B
EFORE ACTION A person who desires to perpetuate his own testimony or that of ano
ther person regarding any matter that may be cognizable in any court of the Phil
ippines (Section 1) DEPOSITIONS PENDING APPEAL Any person can perpetuate their t
estimony for use in the event of further proceedings in the said court (Section
7) motion upon notice and service, contents of which are: 1. the names and addre
sses of the persons to be examined and 2. the substance of the testimony which h
e expects to elicit from each; and 3. the reason for perpetuating their testimon
y (Section 7)
What to file?
a verified petition, contents of which are: The petition shall be entitled in th
e name of the petitioner and shall show: 1. that the petitioner expects to be a
party to an action in a court of the Philippines but is presently unable to brin
g it or cause it to be brought; QuickTime™ and a TIFF (Uncompressed) decompressor
matter of the expected action and 2. d tthe this picture. subject are neede o se
e his interest therein; 3. the facts which he desires to establish by the propos
ed testimony and his reasons for desiring to perpetuate it; 4. the names or a de
scription of the persons he expects will be adverse parties and their addresses
so far as known; and 5. the names and addresses of the persons to be examined an
d the substance of the
Page 46 of 289
testimony which he expects to elicit from each, and 6. shall ask for an order au
thorizing the petitioner to take the depositions of the persons to be examined n
amed in the petition for the purpose of perpetuating their testimony. (Section 1
& 2) in the court of the place of the residence of any expected adverse party (
Section 1) Before the action. Depositions before action is only applicable in ci
vil cases.
Where to apply? When to file?
Court order and examination
the court in which the judgment was rendered (Section 7) At any time before judg
ment becomes final: 1. If an appeal has been taken from a judgment of a court, i
ncluding the Court of Appeals in proper cases, or 2. before the taking of an app
eal if the time therefore has not expired (Section 7) If the court finds that th
e perpetuation of the testimony is proper to avoid a failure or delay of justice
, it may make an order allowing the depositions to be taken, which shall: 1. des
ignate or describe the persons whose deposition may be taken and 2. specify the
subject matter of the examination and 3. specify whether the depositions shall b
e taken upon oral examination or written interrogatories. (Section 4 & 7) INTERR
OGATORIES Disclosure of matters of proof May be made part of the records as evid
ence BILL OF PARTICULARS Disclosure only of matters which define the issues Beco
me a part of the pleadings
RULE 25 NTERROGATORIES TO PARTIES Section 1 Interrogatories to parties; service
thereof WHO CAN APPLY? ANY PARTY desiring to elicit material and relevant facts
FROM ANY ADVERSE PARTY shall file and serve upon the latter written interrogator
ies to be answered by the party served. If the person served is a private or pub
lic corporation, partnership or association, then it will be answered by any off
icer competent to testify in its behalf. (Section 1) DO YOU NEED LEAVE OF COURT
FOR WRITTEN INTERROGATORIES? DEPENDS. If an answer has NOT YET BEEN served, Quic
kTime™ and a you need leave TIFF (Uncompressed) this picture. answer HAS BEEN of c
ourt,tobutdecompressor if the are needed see served, then you do not need leave
of court. (Section 1, cross refer to Rule 23 Section 1) Interrogatories and the
answers thereto should be filed in court and served on adverse parties, so that
the answers may constitute judicial admissions. (Rule 129, Section 4)
Section 2. Answer to interrogatories WHAT IS THE FORM OF AN ANSWER TO INTERROGAT
ORIES? 1. answered fully in writing and 2. signed and sworn to by the person mak
ing them. (Section 2) Section 3. Objections to interrogatories WHEN DO YOU MAKE
OBJECTIONS TO INTERROGATORIES? Objections to any interrogatories may be presente
d to the court within ten (10) days after service thereof, with notice as in cas
e of a motion; and answers shall be deferred until the objections are resolved,
which shall be set at an early time, as practicable. (Section 3) 15 days to answ
er. 10 days to object. In case objection is denied, you still have 5 days to fil
e an answer.
Page 47 of 289
Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
Section 4. Number of interrogatories HOW MANY INTERROGATORIES CAN YOU FILE? No p
arty may, without leave of court, serve more than one set of interrogatories to
be answered by the SAME party. (Section 4) Section 5. Scope and use of interroga
tories Section 6. Effect of failure to serve written interrogatories WHAT IS THE
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES? A party not served with wri
tten interrogatories may not be 1. compelled by the adverse party to give testim
ony in open court, or 2. to give a deposition pending appeal. UNLESS thereafter
allowed by the court 1. for good cause shown and 2. to prevent a failure of just
ice (Section 6) WHAT IS THE EFFECT TO FAILURE TO ANSWER INTERROGATORIES? Case ma
y be dismissed or a judgment by default may be given Depositions under Written u
pon Written Interrogatories (Rule 23) Direct, cross, redirect, recross. You just
serve QUESTIONS Any person, either party or witness Any matter as long as relev
ant and not privileged Rule 23, Section 4 No fixed time Interrogatories to Parti
es (Rule 25) File and serve questions and the party has to answer them Only a pa
rty to the case, particularly the adverse party Same (Rule 25, Section 5) Same (
Rule 25, Section 5) 15 days to answer unless extended or reduced by the RULE 26
ADMISSION BY ADVERSE PARTY Intervention by the Court With intervention of the of
fice who is authorized to take the deposition court No intervention since interr
ogatories are directed to the party himself
Section 1. Request for admission Purpose of written request for admission To exp
edite trial and relieve the parties of the costs of proving facts which will not
be disputed on trial and the truth of which can be ascertained by reasonable in
quiry What request may include: 1. Admission of the genuineness of any material
and relevant document described in and exhibited with the request 2. Admission o
f the truth of any material and relevant matter of fact set forth in the request
3. Under this rule, a matter of fact not related to any documents may be presen
ted to the other party for admission or denial Distinguished from Rule on Action
able Documents A request for admission is proper when the genuineness of an evid
entiary document is sought to be admitted. If not denied under oath in accordanc
e with Section 2, its genuineness it deemed admitted. If the document is actiona
ble, the original or a copy should be attached to the complaint, or copied there
in, and its genuineness and due execution is deemed impliedly admitted unless sp
ecifically denied under oath by the adverse party. Po v. Court of Appeals 164 SC
RA 668 (1998) A request for admission is not intended to merely reproduce or rei
terate the allegations of the requesting party’s pleading but should set forth rel
evant evidentiary matters of fact, or documents described in and exhibited with
the request, whose purpose is to establish said party’s cause of action or defense
. Distinguished from Written Interrogatories
Page 48 of
Procedure
Deponents
Coverage
Uses Interrogatories
WRITTEN INTERROGATORIES Adverse party or witness NOT required to deny or admit a
nything Written request must be filed in court and served on the adverse party M
ust be objected within 10 days (Rule 25) REQUEST FOR ADMISSSION Adverse party on
ly Required to admit or deny something Written request must be filed in court an
d served on the adverse party Must be objected within 15 days RULE 27 PRODUCTION
OR INSPECTION OF DOCUMENTS OR THINGS Section 1. Motion for production or inspec
tion; order Purpose of the rule This rule is not intended for use as a dragnet o
r any fishing expedition. This rule is also not intended to open all of a party’s
records to other party on vague chance than they might contain some material rel
evant to some theory advanced by the other party. Rule only applicable to: a pen
ding action and the documents or things subject of the motion must be only those
within the possession, control, or custody of a party Limitations of the Order
1. Documents should not be privileged 2. Documents constitute or contain evidenc
e material to any matter involved in the action, and which are in his (the party
ordered) possession, custody, or control Contents of the Order a. Shall specify
the time, place and manner of making the inspection and taking copies AND b. Ma
y prescribe such terms and conditions which are just. Paragraph (b) applies to R
eal/Personal property Distinguished from Subpoena Duces Tecum PRODUCTION OR SUBP
OENA DUCES INSPECTION OF TECUM DOCUMENTS OR THINGS Essentially a mode of Means o
f compelling discovery production of evidence The Rules is limited to the May be
directed to a parties to the action person whether a party or not The order und
er this Rule May be issued upon an is issued only upon motion ex parte applicati
on with notice to the adverse party
Section 2. Implied admission The motion for extension of time to answer the requ
est for admission should be served on the adverse party but need not be set for
hearing. Objections on the ground of irrelevancy or impropriety of the matter re
quested shall be promptly submitted to the court for resolution. Effect of failu
re to make a reply to a request for admission Each of the matters of which an ad
mission is requested is deemed admitted. If facts are admitted or deemed admitte
d, party may move for summary judgment. Remedy of the party File a motion to be
relieved of the consequences of the implied admission. The amendment of the comp
laint per se cannot set aside the legal affects of the request for admission sin
ce its materiality has not been affected by the amendment. Section 3. Effect of
admission Use of the admission An admission under this section is for the purpos
e of the pending action only and cannot be used in other proceedings. Section 4.
Withdrawal. Section 5. Effect of failure to file and serve request for admissio
n. If an adverse party denies a fact within his personal knowledge, a party may
present evidence regarding said fact even if he failed to file a request for adm
ission.
Page 49 of
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. When examination m
ay be ordered This applies only to parties, NOT witnesses. Examples of Mental or
Physical Condition of a party in controversy: 1. In an action to recover damage
s for personal injury, the physical condition of the plaintiff in controversy 2.
In a petition for guardianship on the ground of insanity, the mental condition
of the ward is in controversy Section 24(b), Rule 130 – Since the results of the e
xamination are intended to be made public, the same are not covered by the physi
cian-patient privilege. Section 2. Order for examination The order for examinati
on may be made only: on motion for good cause shown, and upon notice to the part
y to be examined and to all other parties, and shall specify the time, place, ma
nner, conditions and scope of the examination and the person or persons by whom
it is to be made. What is good cause When the ends of justice so require and the
examination may be made without danger to the party’s life or health or the infli
ction upon him of serious pain. Section 3. Report of findings Discretion of Cour
t The Court exercises full discretion in regulating physical and mental examinat
ions of a party to a controversy. The defendant seeking physical examination of
a plaintiff has no absolute right to choose his own physician. The Court must fi
rst determine whether a physical examination is necessary, then determine the ph
ysician who shall conduct the examination. Section 4. Waiver of privilege. RULE
29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 1. Refusal to answer. . Ref
usal to answer If a party or other deponent refuses to answer any question upon
oral examination, the examination may be completed on other matters or adjourned
as the proponent of the question may prefer. The proponent may apply to the cou
rt for an order to compel an answer. The court may then order: i. The refusing p
arty or his counsel to pay the expenses incurred in obtaining the order, includi
ng the attorney’s fees (if it finds the refusal to answer without substantial just
ification) ii. The proponent or his counsel to pay the expenses incurred in oppo
sing the application, including attorney’s fees (if it finds the application to be
without substantial justification) Where to file for the order to compel RULE 2
3 Depositions pending actions – application for an order must be filed with the co
urt of the place where the deposition is being taken RULE 25 Interrogatories to
parties – application for an order must be filed with the court where the action i
s pending Remedies 1. Complete other matters 2. Adjourn 3. Apply to court for or
der Section 2. Contempt of court Contempt of court: If a party or other witness:
refuses to be sworn or refuses to answer any question after being directed to d
o so by the court of the place in which the deposition is being taken Section 3.
Other consequences Other consequences If a party/officer or managing agent of a
party refuses to obey an order requiring him:
Page 50 of
a. To answer designated questions b. To produce a thing for inspection or to per
mit entry upon property c. To submit to a physical or mental examination The cou
rt may order: a. That the matters regarding which the questions were asked, or t
he character of the land or the thing, or the physical and mental condition of t
he party be taken to be established. b. The disallowance of the disobedient part
y’s claims c. The prohibition of the disobedient party to present evidence. The st
riking out of the pleadings or parts thereof d. The dismissal of the action or p
arts thereof d. Rendering judgment by default against the disobedient party OR e
. The arrest of any party or agent EXCEPT in disobeying an order to submit to a
physical or mental examination If a party refuses to attend or serve answers, th
e court may: a. Strike out all or any part of any pleading of that party. b. Dis
miss the action or any part thereof. c. Enter a judgment by default against that
party, OR/AND d. Order that party to pay reasonable expenses incurred, includin
g attorney’s fees. In lieu of any of the foregoing orders or in addition thereto,
an order directing the arrest of any party or agent of a party for disobeying an
y of such orders, EXCEPT an order to submit to a physical or mental examination.
NOTE: Orders enumerated above are NOT exclusive. SANCTIONS: 1. Pay expenses Arr
est (Section3 par.(d)) 2. (Section1) 3. Contempt (Section2) 4. Facts will be dee
med established (Section3 par.(a)) 5. Prohibiting from introducing evidence (Sec
tion3 par.(b)) 6. Affect disposition of the case (Section3 par.(c)) Section 4. E
xpenses on refusal to admit Failure of party to attend or serve answer If a part
y or an officer or managing agent of a party willfully: fails to appear before t
he officer who is to take his deposition, after being served with a proper notic
e, or fails to serve answers to interrogatories submitted under Rule 25 after pr
oper service of such interrogatories, The court on motion and notice, may: strik
e out all or any part of any pleading of that party, or dismiss the action or pr
oceeding or any part thereof, or enter a judgment by default against that party,
and in its discretion, order him to pay reasonable expenses incurred by the oth
er, including attorney’s fees. Insular Life Assuarance Co., Ltd. v. CA 238 SCRA 88
(1994) The matter of how, and when, the above sanctions should be applied is on
e that primarily rests on the sound discretion of the court where the case pends
, having always in mind the paramount and overriding interest of justice. For wh
ile the modes of discovery are intended to attain the resolution of litigations
with great expediency, they are not contemplated, however, ultimately to be of i
njustice. Section 6. Expenses against the Republic of the Philippines
RULE 30 TRIAL TRIAL It is the judicial process of investigating and determining
the legal controversies, starting with the production of evidence by the plainti
ff and ending with his closing arguments GENERAL RULE: There should be a trial w
hen an issue exists. A decision should not be made without trial EXCEPTIONS: 1.
Judgment on the Pleading (Rule 34) 2. Summary Judgment (Rule 35) 3. Judgment on
Compromise 4. Judgment by Confession 5. Judgment with Prejudice (Rule 17)
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Section 1. Notice of trial Notice at least 5 days before the trial date is a par
t of procedural due process. Section 2. Adjournments and postponements Section 3
. Requisites of motion to postpone trial for absence of evidence There must be a
n affidavit showing: (1) materiality or relevance of evidence; and (2) due dilig
ence in procuring it. such
Defendant presents evidence to support his defense/counterclaim/c ross-claim/thi
rd party complaint Defendant files: demurrer to evidence
Section 5. Order of trial
Plaintiff presents evidence in support of his complaint
If the adverse party admits the facts for which evidence is to be presented, the
trial will not be postponed. Section 4. Requisites of motion to postpone trial
for illness of party or counsel REQUISITES An affidavit showing that: 1. That th
e presence of the party or counsel at the trial is indispensable; and 2. That th
e character of his illness is such as to render non-attendance excusable.
Rebuttal evidence by parties Third party defendant presents evidence, if any Cou
rt grants motion: renders dismissal Court denies motion, continues with hearing
After presentation of evidence; 1.oral arguments; 2.submission of memoranda
DECISION
Reverse Order of Trial In this situation, the defendant presents evidence ahead
of the plaintiff When Reverse Order of Trial Proper If the defendant in his/her
answer relies upon an affirmative defense, a reverse order of trial is proper Se
ction 6. Agreed statement of facts This is known as STIPULATION OF FACTS and is
among the purposes of a pre-trial. The parties may also stipulate verbally in op
en court. Such stipulations are binding unless relief therefrom is permitted by
the court on good cause shown, such as
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error or fraud. But counsel cannot stipulate on what their respective EVIDENCE c
onsists of and ask that judgment be rendered on the basis of such stipulation. N
OTE: Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAG
E and for LEGAL SEPARATION. Section 7. Statement of judge Section 8. Suspension
of actions ART. 2030 OF THE CIVIL CODE. EVERY CIVIL ACTION OR PROCEEDING SHALL B
E SUSPENDED 1. If willingness to discuss a possible compromise is expressed by o
ne or both parties; or 2. If it appears that one of the parties, before the comm
encement of the action or proceeding, offered to discuss a possible compromise b
ut the other party refused the offer. Section 9. Judge to receive evidence; dele
gation to clerk of court GENERAL RULE: The judge must himself personally receive
and resolve the evidence of the parties. REQUSITES ON VALID DELEGATION OF POWER
TO RECEIVE (a) The delegation may be made only in defaults or ex parte hearings
, or an agreement in writing by the parties. (b) The reception of evidence shall
be made only by the clerk of that court who is a member of the bar. (c) Said cl
erk shall have no power to rule on objections to any question or to admission of
evidence or exhibits; and (d) He shall submit his report and transcripts of the
proceedings, together with the objections to be resolved by the court, within 1
0 days from the termination of the hearing. Contemplates a single action having
a number of claims, counterclaims, cross-claims, third-party complaints, or issu
es which may be separately tried. PURPOSE To avoid multiplicity of suits, guard
against oppression or abuse, prevent delay, clear congested dockets, simplify th
e work of the Trial Court and save unnecessary costs and expenses. Section 1. Co
nsolidation GENERAL RULE: Consolidation is discretionary upon the court. EXCEPTI
ONS: Consolidation becomes a matter of duty when: 1. If the cases are pending be
fore the same judge; OR 2. If filed with different branches of the same RTC and
one of such cases has not been partially tried. Consolidation of cases on appeal
and assigned to different divisions of the SC and the CA is also authorized. Ge
nerally, the case which was appealed later and bearing the higher docket number
is consolidated with the case having the lower docket number. REQUISITES FOR CON
SOLIDATION: 1. Actions which involves a common question of law or fact; and 2. T
he actions are pending before the same court. • If filed with different courts, au
thorization from the SC is necessary. 3 WAYS OF CONSOLIDATING CASES: 1. By recas
ting the cases already instituted, conducting only one hearing and rendering onl
y one decision; 2. By consolidating the existing cases and holding only one hear
ing and rendering only one decision; and 3. By hearing only the principal case a
nd suspending the hearing on the others until judgment has been rendered in the
principal case. (TEST-CASE METHOD) Section 2. Separate trials on any claim, cros
sclaim, etc.
RULE 31 CONSOLIDATION OR SEVERANCE CONSOLIDATION Involves several actions having
a common question of law or fact which may be jointly tried. SEVERANCE
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When the separate trial of claims is conducted by the court under this section,
it may render separate judgments on each claim. 3. Issue subpoenas and subpoenas
duces tecum 4. Swear witnesses 5. Unless otherwise provided in the order of ref
erence, he may rule upon the admissibility of evidence Section 4. Oath of Commis
sioner before he enters into his duties Section 5. Proceedings before Commission
er Section 6. Failure of parties to appear before Commissioner If a party fails
to appear at the time and place appointed, the commissioner may proceed ex parte
or, in his discretion, adjourn the proceedings to a future day, giving notice t
o the absent party or his counsel of the adjournment. Section 7. Refusal of witn
ess to obey subpoena issued by Commissioner Disobedience to a subpoena issued by
the commissioner is deemed contempt of the court which appointed the latter. Se
ction 8. Commissioner shall avoid delays Section 9. Report of Commissioner Secti
on 10. Notice to parties of the filing of report UPON FILING OF THE REPORT OF TH
E COMMISSIONER: 1. The parties shall be notified by the clerk; AND 2. The partie
s shall be allowed 10 days within which to object to the findings of the report.
Objections to the report based upon grounds which were available to the parties
during the proceedings before the Commissioner shall not be considered by the c
ourt, UNLESS they were made before the Commissioner. Section 11. Hearing upon re
port Section 12. Stipulations as to findings When the parties stipulate that a c
ommissioner’s findings of fact shall be final, only questions of law shall thereaf
ter be considered. Section 13. Compensation of Commissioner
RULE 32 TRIAL BY COMMISSIONER COMMISSIONER A person to whom a case pending in co
urt is referred, for him to take testimony, hear the parties and report thereon
to the court, and upon whose report, if confirmed, judgment is rendered; include
s a referee, an auditor and an examiner. Section 1. Reference to Commissioner by
consent of both parties Reference to a commissioner may be had by the written c
onsent of both parties. An irregularity in the appointment of a commissioner mus
t be seasonably raised in the trial court where the defect could still be remedi
ed. It can be waived by consent of the parties expressly or impliedly. Section 2
. Cases when reference by motion of one of the parties or motu proprio SITUATION
S WHEN REFERENCE TO A COMMISSIONER MAY BE MADE ON MOTION 1. Trial requires exami
nation of a long account of either side 2. Taking of an account is necessary for
the information of the court before judgment or for carrying a judgment order i
nto effect 3. Question of fact, other than upon the pleadings, arises upon motio
n or otherwise, in any stage of the case Section 3. Order of reference; powers o
f the Commissioner Order may specify or limit the powers of the Commissioner. PO
WERS OF THE COMMISSIONER 1. Report only upon particular issues, or to do or perf
orm particular acts, or to receive and report evidence only 2. Exercise the powe
r to regulate the proceedings in every hearing before him and to do all acts and
take all measures necessary or proper for the efficient performance of his duti
es
Page 54 of
accused could present his evidence if the demurrer is denied. If the court finds
the prosecution’s evidence insufficient, it will grant the demurrer by rendering
judgment acquitting accused. Judgment of acquittal is not appealable; double jeo
pardy sets in.
RULE 33 DEMURRER TO EVIDENCE Section 1. Demurrer to evidence DEMURRER TO EVIDENC
E It is presented after the plaintiff has rested its case. The ground is based o
n insufficiency of evidence. If the motion is denied, the defendant may present
his evidence. If the motion is granted, the complaint is dismissed. The remedy o
f the plaintiff is to APPEAL. 2 SCENARIOS:
MOTION DENIED MOTION GRANTED BUT REVERSED ON APPEAL
MOTION TO DISMISS Presented before a responsive pleading (answer) is made by the
defendant. It may be used on any of those enumerated in Rule 16. If the motion
is denied, defendant may file his responsive pleading. If the motion is granted,
the complaint is dismissed and depending on the ground, the complaint may be re
-filed.
If the court finds plaintiff’s evidence insufficient, it will grant the demurrer b
y dismissing the complaint. The judgment of dismissal is appealable by the plain
tiff. If plaintiff appeals and judgment is reversed by the appellate court, it w
ill decide the case on the basis of the plaintiff’s evidence with the consequence
that the defendant already loses his right to present evidence; no res judicata
in dismissal due to demurrer. If court denies demurrer, defendant will present h
is evidence.
Movant shall have the right to present his evidence.
Denial is interlocutory. Sec. 1, Rule 36 (that judgment should state clearly and
distinctly the facts and the law on which it is based), will not apply. The den
ial is NOT appealable. CIVIL CASES Defendant need not ask for leave of court.
Movant is deemed to have waived his right to present evidence. The decision of t
he appellate court will be based only on the evidence of the plaintiff, as the d
efendant loses his right to have the case remanded for reception of his evidence
. Order of the court is an ADJUDICATION ON THE MERITS, hence, the requirement in
Section 1, Rule 36 should be complied with.
If court denies demurrer, defendant will present his evidence.
If court denies the demurrer: a. if demurrer was with leave, accused may present
evidence b. if the demurrer was without leave, accused can no longer present hi
s evidence and submits the case for decision based on the prosecution’s evidence.
If court denies the demurrer: a. if demurrer was with leave, accused may present
evidence b. if the demurrer was without leave, accused can no longer present hi
s evidence and submits the case for decision based on the prosecution’s evidence.
CRIMINAL CASES May be filed with or without leave of court. Leave of court is ne
cessary so that the
DEMURRER TO EVIDENCE It is made by the defendant after the plaintiff has complet
ed the presentation of his evidence where the defendant moves for dismissal on t
he ground that upon the facts and the law, the plaintiff has shown no right to r
elief. JUDGMENT ON DEMURRER TO EVIDENCE It is a judgment rendered by the court d
ismissing a case upon motion of the defendant, made after
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plaintiff has rested his case, on the ground that upon the facts presented by th
e plaintiff and the law on the matter, plaintiff has not shown any right to reli
ef. the pleadings alone. Decision is based on the allegations in the pleadings.
MOTION TO DISMISS Decision is based on the evidence presented.
RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment ren
dered by the court dismissing a case upon motion of the defendant, made after pl
aintiff has rested his case, on the ground that upon the facts presented by the
plaintiff and the law on the matter, plaintiff has not shown any right to relief
. Section 1. When judgment on the pleadings is proper A judgment on the pleading
s must be on motion of the claimant. However, if at pre-trial, the court finds t
hat a judgment on the pleadings is proper, it may render such judgment motu prop
rio. By moving for judgment on the pleading, plaintiff waives his claim for unli
quidated damages. Claim for such damages must be alleged and proved. GROUNDS: 1.
Answer fails to tender an issue because of: a. general denial of the material a
llegations of the complaint; b. insufficient denial of the material allegations
of the complaint or 2. Answer admits material allegations of the adverse party’s p
leading. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS B
E PROVED 1. Declaration of nullity of marriage 2. Annulment of marriage 3. Legal
separation JUDGMENT ON THE PLEADINGS The defendant answered, but did not tender
an issue or admitted the material allegations in the complaint. Evidence is not
received as the same is based on JUDGMENT BY DEFAULT The defendant did not file
an answer.
Filed by defendant to a complaint, counterclaim, cross-claim or third-party comp
laint. If the complaint states no cause of action, a motion to dismiss should be
filed and no a motion for judgment on the pleading. Falcasantos v. How Suy Chin
g 91 Phil 456 (1952) One who prays for judgment on the pleadings without offerin
g proof as to the truth of his own allegations and without giving the opposing p
arty an opportunity to introduce evidence, must be understood to ADMIT all MATER
IAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for ju
dgment on those allegations taken together with such of his own as are admitted
in the pleadings.
MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises
no issue.
RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prom
pt disposition of civil actions wherein it clearly appears that there exists no
genuine issue or controversy as to any material fact. GENUINE ISSUE It is an iss
ue of fact which calls for the presentation of evidence as distinguished from an
issue which is sham, fictitious, contrived, and patently unsubstantial so as no
t to constitute a genuine issue for trial. May be asked for by a party seeking t
o recover upon a claim, counterclaim, crossclaim, or to obtain a declaratory rel
ief. Although Rule does not specifically provide, also unavailable in actions fo
r annulment of a and declaration of nullity of marriage, and for legal separatio
n since Section 1 refers to actions “to recover upon a claim,” or to recover a debt
or a liquidated demand for money, or “to obtain declaratory relief”.
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Evidence is received.
Section 1. Summary judgment for claimant May be filed at any time after the plea
ding in answer thereto has been served. Section 2. Summary judgment for defendin
g party May be file at any time. Section 3. Motion and proceedings thereon. The
motion shall be served at least 10 days before the time specified for the hearin
g. The adverse party may serve opposing affidavits, depositions, or admissions a
t least 3 days before the hearing. After the hearing, the judgment sought shall
be rendered forthwith if the pleadings, supporting affidavits, depositions, and
admissions on file, show that, except as to the amount of damages, there is no g
enuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Section 4. Case not fully adjudicated on motion. Th
e trial shall be conducted on the controverted facts only. Section 5. Form of af
fidavits and supporting papers Section 6. Affidavits in bad faith Should it appe
ar to its satisfaction at any time that any of the affidavits presented pursuant
to this Rule are presented in bad faith, or solely for the purpose of delay, th
e court shall forthwith order the offending party or counsel to pay to the other
party the amount of reasonable expenses which the filing of the affidavits caus
ed him to incur, including attorney’s fees. It may, after hearing, further adjudge
the offending party or counsel guilty of contempt. BASES OF SUMMARY JUDGMENT 1.
Affidavits made on personal knowledge. 2. Depositions of the adverse party or a
third party under Rule 23 3. Admissions of the adverse party under Rule 26. 4.
Answers to interrogatories under Rule 25; all intended to show that: a. there is
no genuine issue as to any material fact, except damages which must always be p
roved; and b. the movant is entitled to a judgment as a matter of law. c. Vergar
a v. Suelto 156 SCRA 753 (1987) Even if the answer does tender an issue, and the
refore a judgment on the pleadings is NOT proper, a summary judgment may still b
e rendered if the issues tendered are NOT genuine, are sham, fictitious, contriv
ed, set-up in bad faith, and patently unsubstantial. Mallilin v. Castillo 156 SC
RA 753 (2000) Where the pleadings under a genuine issue i.e. an issue of fact th
e resolution of which calls for the presentation of evidence, as distinguished f
rom an issue which is sham, contrived, set-up in bad faith, or patently unsubsta
ntial, summary judgment is not proper. Velasco v. CA 156 SCRA 753 (2005) Trial c
ourts are authorized to grant relief by summary judgment. This is intended to ex
pedite or promptly dispose of cases where the facts appear undisputed and certai
n from the pleading’ admissions and affidavits. This rule does not vest in the cou
rt summary jurisdiction to try the issue on pleadings and affidavits but gives t
he court limited authority to enter summary judgment only if it clearly appears
that there is no genuine issue of material fact. SUMMARY JUDGMENT Based on the p
leadings, depositions, admissions, and affidavits. Available to both plaintiff a
nd defendant. JUDGMENT ON THE PLEADINGS Based solely on the pleadings Generally
available only to the plaintiff, unless the defendant presents a counterclaim. T
he answer fails to tender an issue or there is an admission of material allegati
ons. 3-day notice required. On the merits. JUDGMENT BY DEFAULT (Rule 9) Based on
the complaint and evidence, if presentation is required. Available to plaintiff
.
There is no genuine issue between the parties, i.e. there may be issues but thes
e are irrelevant. 10-day notice required. May be interlocutory or
No issues as no answer is filed by the defending party. 3-day notice rule applie
s. On the merits.
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on the merits. Available only in actions to recover a debt, or for a liquidated
sum of money or for declaratory relief. Available in any action except annulment
of marriage or legal separation cases. Available in any action except annulment
of marriage or legal separation cases. The process by which a decision is publi
shed, officially announced, made known to the public or delivered to the clerk o
f court for filing, coupled with notice to the parties or their counsel. MEMORAN
DUM DECISION The judgment or final resolution of the appellate court may adopt b
y reference the findings of facts and conclusions of law contained in the decisi
on of the trial court. A judgment based on a compromise otherwise known as JUDIC
IAL COMPROMISE has the force of law and is conclusive between parties. It is NOT
appealable. The power to amend a judgment is inherent to the court before judgm
ent becomes final and executory. RULE OF IMMUTABILITY OF JUDGMENT A final judgme
nt cannot be modified, even if the purpose is to correct perceived erroneous con
clusions of the facts or law. EXCEPTIONS: 1. To make corrections of clerical err
ors, not substantial amendments, as by an amendment nunc pro tunc; 2. To clarify
an ambiguity which is borne out by and justifiable in the context of the decisi
on; 3. Where the judgment is void; or 4. In judgments for support, it can always
be amended from time to time. JUDGMENT NON PRO TUNC A judgment intended to ente
r into the records acts which had already been done, but which do not appear in
the records. NOTE: A JUDGMENT is considered RENDERED: the filing of the signed d
ecision constitutes the rendition of a judgment. This includes an amended decisi
on because an amended decision is a distinct and separate judgment and must foll
ow the established procedural rule. NOTE: Attack of judgment maybe direct or col
lateral Direct attack a. before finality 1.motion for new trial or reconsiderati
on 2.appeal b. after finality 1. relief from judgment, Rule 38 2. annulment of j
udgment, Rule 47
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF JUDGMENT Final consideration a
nd determination by a court of the rights of the parties, upon matters submitted
to it in an action or proceeding. Judgment is the result, or the dispositive pa
rt of the decision while the opinion gives the grounds for the decision. DATE OF
FINALITY OF JUDGMENT/ORDER Date of the finality of the judgment or final order
shall be deemed to be the date of its entry. The judgment or final order shall b
e entered by the clerk in the book of entries of judgments if no appeal or motio
n for new trial or reconsideration is filed within 15 days. Section 1. Rendition
of judgments and final orders REQUISITES OF A JUDGMENT 1. It should be in writi
ng, personally and directly prepared by the judge; 2. Must state clearly and dis
tinctly the facts and the law on which it I based; and 3. It should contain a di
spositive and should be signed by the judge and filed with the clerk of court PA
RTS OF A JUDGMENT 1. Opinion of the court (findings of fact and conclusions of l
aw) 2. Disposition of the case (dispositive portion) 3. Signature of the judge J
UDGMENT UPON THE MERITS Judgment rendered after consideration of the evidence su
bmitted by the parties during the trial of the case. PROMULGATION
Page 58 of
judgment for or against one of them will not necessarily affect the other. It is
not proper in actions against solidary debtors. Section 5. Separate judgments P
ROMULGATION OF JUDGMENT
Court Renders Decision
Losing Party
Filing appeal within 15 days from notice of judgment
SEPARATE JUDGMENT Judgment rendered to dispose of one of the several claims for
relief presented in an action, made at any stage, upon a determination of the is
sues material to a particular claim and all counterclaims arising out of the tra
nsaction or occurrence which is the subject matter of the claim, which terminate
s such claim. Action shall proceed as to other claims.
Accepts decision without further contest
Within 15 days from notice of judgment: Motion for reconsideration; or motion fo
r new trial
It is proper when more than one claim for relief is presented in an action and a
determination as to the issues material to the claim has been made. The action
shall proceed as to the remaining claims. Section 6. Judgment against entity wit
hout juridical personality The judgment shall set out their individual or proper
names, if known.
If no appeal is taken or did not avail of remedies, judgment becomes final and e
xecutory
Court maintains decision
Court grants motion: 1.modifies decision; or 2.grants new trial
REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS Before finality of judgment or final
order: 1. Motion for New Trial; 2. Motion for Reconsideration; and 3. Appeal Aft
er Finality of the judgment or final order: 1. Relief from Judgment or Final Ord
er; 2. Annulment of Judgment; and 3. Petition for Certiorari
Losing party may appeal within the remaining period
Section 2. The date of finality of the judgment or final order shall be deemed t
o be the date of its entry if no appeal or MNT or MR The date of finality of the
judgment or final order shall be the date of its entry. Section 3. Judgment for
or against one or more of several parties Section 4. Several judgments SEVERAL
JUDGMENT Judgment rendered by a court against one or more several defendants and
not against all of them leaving the action to proceed against the others. Sever
al judgments is proper where the liability of each party is clearly separable an
d distinct from his coparties such that the claims against each of them could ha
ve been the subject of separate suits, and the
Page 59 of
reasonable diligence, have discovered and produced at the trial, and which if pr
esented would probably alter the result Required: 1. must be in writing 2. affid
avit of the existence of FAME and newly discovered evidence; 3. affidavit of mer
it setting forth the particular facts claimed to constitute a meritorious cause
of action; 4. in case of newly discovered evidence, (a.) affidavit of new witnes
ses; (b.) duly authenticated documents to be introduced Required: 1. Must point
out specifically the conclusion of judgment; 2. express reference to testimonial
or documentary evidence or to provisions of law
RULE 37 NEW TRIAL OR RECONSIDERATION Filed within 15 days from notice of judgmen
t and resolved by the court within 30 days from submission for resolution.
Order denying motion for new trial
Second motion for new trial based on grounds not existing or available when 1st
motion was filed
Appeal from the judgment or final order and assign as one of the errors the deni
al of the motion for new trial
Order denying a motion for new trial is not appealable
Section 1. Grounds of and period for filing motion for new trial or reconsiderat
ion NEW TRIAL It is the rehearing of a case already decided by the court but bef
ore the judgment rendered thereon becomes final and executory, whereby errors of
law or irregularities are expunged from the record, or new evidence is introduc
ed, or both steps are taken. MOTION FOR A NEW TRIAL The grounds are: 1. Fraud (E
xtrinsic), Accident, Mistake or Excusable Negligence (FAME); or 2. Newly discove
red evidence which could not, with MOTION FOR RECONSIDERATION The grounds are: 1
. The damages awarded are excessive, 2. The evidence is insufficient to justify
the decision or final order; or 3. The decision or final order is contrary to la
w.
Absent the requirements above, the motion for new trial or reconsideration is co
nsidered PRO-FORMA or merely a scrap of scratch paper and will not toll the regl
ementary period for appeal Second motion may be allowed If a new trial is grante
d the trial court will set aside the judgment or final order Second motion from
same party is prohibited If the court finds that excessive damages have been awa
rded or that the judgment or final order is contrary to the evidence or law, it
may amend such judgment or final order accordingly If denied, not appealable; wi
ll have to wait for the judgment and appeal therefrom
If denied, not appealable; will have to wait for the judgment and appeal therefr
om
GROUNDS: MOTION FOR NEW TRIAL
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1. Fraud, accident, mistake, or excusable negligence (FAME); 2. Newly discovered
evidence FRAUD – Must be extrinsic fraud. Extrinsic fraud connotes any fraudulent
scheme executed by the prevailing party outside the trial against the missing p
arty who because of such fraud is prevented from presenting his side of the case
. ACCIDENT – an event that takes place without one’s foresight or expectation. MISTA
KE – generally refers to mistakes of fact or law where, in good faith, the defenda
nt was mislead in the case. EXCUSABLE NEGLIGENCE – depends upon the circumstances
of the case. REQUSITES TO BE CONSIDERED AS NEWLY DISCOVERED EVIDENCE 1. Discover
ed after trial 2. Could not have been discovered and produced at trial despite t
he exercise of reasonable diligence 3. If presented, could probably alter the re
sult of the action Otherwise it is called forgotten evidence. GROUNDS FOR MOTION
FOR RECONSIDERATION 1. Damages awarded are excessive 2. Evidence is insufficien
t to justify the decision or final order 3. Decision is contrary to law Section
2. Contents of motion for new trial or reconsideration and notice thereof A moti
on suspends or tolls the running of the reglementary period except when it is pr
o-forma. PRO-FORMA MOTION It is that which does not comply with Rule 15 and Rule
37, e.g. it does not point out specifically the findings or conclusions of the
judgment as are contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary to such
findings or conclusions, and is merely intended to delay the proceedings or if t
here is no affidavit of merit. NOTE: Motion for reconsideration, no second motio
n is allowed. NOTE: New trial, however, a second motion is allowed but must be b
ased on a ground not existing or available when the first motion was made, which
may be filed during the remainder of the 15-day period. Section 3. Action upon
motion for new trial or reconsideration The Court may either:: 1. set aside judg
ment or final order and grant new trial 2. deny the motion for new trial or moti
on for reconsideration 3. amend such judgment or final order accordingly Section
4. Resolution of motion Section 5. Second motion for new trial Section 6. Effec
t of granting of motion for new trial When motion is granted, the original judgm
ent is thereby vacated and the action stands for trial de novo, but the recorded
evidence taken upon the former trial so far as the same is material and compete
nt to establish the issues, shall be used at the new trial taking the same. Luca
s v. Fabros 324 SCRA 1 (2000) A Motion for new trial, or for reconsideration of
a judgment, or for reopening of trial, is a prohibited pleading under Section 19
of the Revised Rule on Summary Procedure. This rule, however, applies only wher
e the judgment sought to be reconsidered is one rendered on the merits. "The mot
ion prohibited by this Section is that which seeks reconsideration of the judgme
nt rendered by the court after trial on the merits of the case." Section7. Parti
al new trial or reconsideration when issues severable Section 8. Effect of order
for partial new trial EFFECTS OF AN ORDER FOR PARTIAL NEW TRIAL 1. enter a judg
ment or final order as to the rest of the issues, or 2. stay the enforcement of
such judgment Section 9. Remedy against order denying a motion for new trial or
reconsideration is appeal from the judgment
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Not more than 6 months after such judgment FORM AND CONTENTS OF THE PETITION 1.
The petition for relief must be verified; 2. It must be supported by affidavit s
howing the FAME relied upon; and 3. The affidavit of merit accompanying the peti
tion must also show facts constituting the petitioner’s good or substantial cause
of action or defense. An affidavit of merit serves as the jurisdictional basis f
or the court to entertain a petition for relief. However, it is not a fatal defe
ct to warrant denial of the petition so long as the facts required to be set out
also appear in the verified petition. Party who has filed a timely motion for n
ew trial cannot file a petition for relief after the former is denied. The two r
emedies are exclusive of one another. Section 4. Order to file an answer If peti
tion is sufficient in form and substance to justify relief, court shall issue an
order requiring adverse parties to file answer within 15 days from receipt of t
he notice. Basco v. CA 326 SCRA 768 (2000) In view of the peculiar circumstance
of this case, such that the defective notice of hearing on petitioner’s motion for
reconsideration was due to the day-long brownouts that plagued the metropolis,
counsel’s failure to specify the date and time for hearing of petitioner’s motion fo
r reconsideration should rightly be deemed excusable negligence. Section 5. Prel
iminary injunction pending proceedings PURPOSE This is to preserve the rights of
the parties. Preliminary Injunction is granted upon filing of the petitioner of
the BOND in favor of adverse party. Such injunction shall not operate to discha
rge or extinguish any lien which the adverse party may have acquired upon the pr
operty of the petitioner. Section 6. Proceedings after answer is filed TWO HEARI
NGS:
RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS Section 1. Petition
for relief from judgment, order, or other proceedings Section 2. Petition for re
lief from denial of appeal GROUNDS FOR PETITION FOR RELIEF 1. Judgment or final
order entered against a party by FAME; or 2. Judgment or final order is rendered
and party has been prevented by FAME from taking an appeal For fraud to be extr
insic, the losing party must never have had a chance to controvert the adverse p
arty’s evidence. Uniform procedure for relief from judgments of MTC and RTC After
petition is filed, court shall order adverse parties to answer within 15 days fr
om receipt. After answer is filed or expiration of period therefore, court shall
hear the petition. If granted, judgment set aside and court shall proceed as if
timely motion for new trial has been granted; if granted against denial of appe
al, court shall give due course to appeal. NEW TRIAL/ RECONSIDERATION Must be fi
led within the appeal period. Judgment not yet final. RELIEF FROM JUDGMENT Judgm
ent is final within 60 days after petitioner learns of the judgment to be set as
ide and within 6 months after such judgment is entered. More on equity FAME only
Relief from judgment/order on other proceeding
A legal right FAME + Newly Discovered Evidence Judgment on final order
Section 3. Time for filing petition; contents and verification Filed within 60 d
ays after learning of judgment
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(a) Hearing to determine whether the judgment be set aside (b) If in the affirma
tive, a hearing on the merits of the case WHEN TRIAL ON THE MERITS NOT NECESSARY
1. When relief sought may be the allowance of an appeal after the expiration of
the period to appeal. 2. When relief sought may be the staying of immediate exe
cution due to FAME. Section 7. Procedure where the denial of an appeal is set as
ide The lower court shall be required to give due course to the appeal and to el
evate the record of the appealed cases as if a timely and proper appeal had been
made. Execution of judgment not a matter of right Execution of judgment a matte
r of right
JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPI
RATION OF TIME TO APPEAL 1. Forcible entry and detainer 2. Injunction, receivers
hip, accounting and support 3. Award, judgment, final order, or resolution of qu
asi-judicial agencies appealable to CA INTERLOCUTORY ORDER EXECUTED Support pend
ente lite THAT MAY BE
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
JUDGMENTS THAT ARE NOT APPEALABLE: 1. Sin perjuico judgments (judgment, w/o any
stated facts in support of the conclusion) 2. Conditional judgments 3. Incomplet
e judgments GENERAL RULE: Trial Court has a ministerial duty to order execution
of final and executory judgments. It cannot refuse execution and is compellable
by Mandamus. EXCEPTIONS: 1. Change in the situation of the parties which makes t
he execution inequitable or unjust; 2. Writ of execution varies judgment; 3. Con
troversy has never been submitted to the judgment of the court; 4. Execution is
sought against property exempt from execution 5. Terms of the judgment not clear
; leaves room for interpretation; 6. Writ of execution improvidently issued, def
ective in substance, issued against the wrong party, judgment debtor has been pa
id or otherwise satisfied, writ has been issued w/o authority. In the above exce
ptions, remedy is certiorari under Rule 65. WHEN EXECUTION OF FINAL AND EXECUTOR
Y JUDGMENT MAY BE ENJOINED 1. Upon filing of a petition for relief from judgment
2. Attack against a judgment which is void for lack of jurisdiction, or obtaine
d through fraud 3. On equitable grounds
Section 1. Execution upon judgments or final orders WHEN EXECUTION IS A MATTER O
F RIGHT 1. On motion; 2. Upon judgment or order that disposes of the action or p
roceeding; 3. Upon expiration of the period to appeal therefrom and no appeal ha
s been duly perfected; 4. When appeal has been duly perfected and resolved, by f
iling a motion with the court of origin submitting true copies of the final judg
ment or final order sought to be enforced. If the court of origin refuses to iss
ue a writ of execution, the appellate court may, on motion, direct the court of
origin to issue the writ. FINAL JUDGMENTS Dispose of, adjudicate, or determine t
he rights of parties Still subject to appeal FINAL AND EXECUTORY JUDGMENTS Becom
es final & excecutory by operation of law After lapse of period to appeal and no
appeal was perfected, no further action can be had
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4. In cases falling under the (6) exceptions above Judgment novated by a subsequ
ent agreement cannot be executed. • e.g. agreement entered into by the parties oth
er than terms of payment Judgment for support is not final in a sense that it ca
nnot be modified. • Support depends not only on the varying conditions affecting t
he ability of the obligor to pay, but also upon the ever-changing needs of the b
eneficiary himself. GENERAL RULE: Final and executory judgment cannot be amended
or modified • Any amendment w/c substantially affects a final and executory judgm
ent is null and void for lack of jurisdiction EXCEPTION: JUDGMENT MAY BE MODIFIE
D AS TO: 1. clerical errors or mistakes; CLERICAL ERROR Errors not the result of
exercise of judicial functions May be modified, corrected even after judgment h
as become final and executory JUDICIAL ERROR Mistake relates to something the co
urt did not consider or pass on, or considered and erroneously decided Cannot be
modified must be done in another case/suit (b) When trial court has lost jurisd
iction but has not transmitted records of the case to the appellate court; (c) W
hen trial court has lost jurisdiction and has transmitted records motion for exe
cution pending appeal with appellate court 2. Execution of several, separate or
partial judgments SEVERAL JUDGMENTS Rendered against one or more of several defe
ndants, leading the action to proceed against others DISCRETIONARY EXECUTION May
issue before the lapse of period to appeal Discretionary upon the court; there
is inquiry on whether there is good reason for execution SEPARATE/PARTIAL JUDGME
NTS Rendered at any stage of the action regarding a particular claim, leaving th
e action to proceed as to the remaining claims EXECUTION AS A MATTER OF RIGHT Is
sued when period to appeal has already lapsed and no appeal has been perfected M
inisterial duty of the provided there are no supervening events
REQUISITES FOR EXECUTION PENDING APPEAL 1) On motion by the prevailing party, wi
th notice to the adverse party; 2) Good reasons for issuing execution; and 3) Th
e good reasons must be stated in a special order. Examples of good reasons 1) Wh
ere education of a person to be supported would unduly be delayed 2) The immedia
te execution of an order to support is valid 3) The judgment debtor is insolvent
, except when a co-defendant is solvent and his liability is subsidiary What are
not good reasons: 1) the mere fact that a claim is not secured, w/o any allegat
ion that the defendant is insolvent or is about to dispose of his properties 2)
Where the reason given is that an appeal is frivolous or dilatory, the trial jud
ge may not rightfully determine the same 3) Mere posting of a bond Award for act
ual and compensatory damages may be ordered executed pending appeal, but not mor
al and exemplary damages.
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2. to clarify ambiguity; or 3. to enter nunc pro tunc orders - to make a present
record of an order w/c the court rendered at a previous term but, by inadverten
ce has not been entered. A final and executory judgment can no longer be amended
by adding thereto relief not originally included e.g. award of ownership does n
ot necessarily include possession Section 2. Discretionary execution WHEN ISSUAN
CE OF WRIT OF EXECUTION IS DISCRETIONARY 1. Execution pending appeal (a) While t
rial court has jurisdiction over the case and is in possession of either the ori
ginal record or record on appeal;
Moral and exemplary damages depends on actual result of the appeal Execution pen
ding appeal is not applicable in land registration proceedings Section 3. Stay o
f discretionary judgment Stay of execution may be allowed at the discretion of t
he court by filing a supersedeas bond SUPERSEDEAS BOND It is one filed by a peti
tioner and approved by the court before judgment becomes final and executory and
conditioned upon the performance of the judgment appealed from in case it be af
firmed wholly or in part. The supersedeas bond guarantees satisfaction of the ju
dgment in case of affirmance on appeal, not other things like damage to property
pending the appeal. Aside from the supersedeas bond, an aggrieved party may fil
e a special civil action of certiorari under Rule 65 against the order granting
execution pending appeal where the same is not founded upon good reasons. This r
emedy may be availed of notwithstanding the fact that 1) he has appealed from th
e judgment, or 2) has filed a supersedeas bond. Section 4. Judgments not stayed
by an appeal The following judgments are immediately executory, enforceable afte
r their rendition and shall not be stayed by an appeal, unless otherwise ordered
by the trial court: 1. Injunction; 2. Receivership; 3. Accounting; 4. Support;
and 5. Such other judgments declared to be immediately executory unless otherwis
e ordered by the trial court. Section 5. Effect of reversal of executed judgment
The trial court may, on motion, issue restitution or reparation in an event of
a reversal after a petition for relief under Rule 38, or annulment of judgment u
nder Rule 47 is granted How restitution is made. Effects of reversal, modificati
on. COMPLETE SPECIFIC RESTITUTION Sale by sheriff to a 3rd person REVERSAL Modif
ied judgment Creditor may not be compelled to make specific restitution; He can
be required to restore the excess realized upon the execution over and above the
amount finally awarded Sale is not affected by reversal; title of 3rd person is
protected, except when there is want of jurisdiction over the subject matter He
may be required to surrender the property Creditor may be required to account f
or the value received by virtue of the sale to the 3rd party; title of 3rd party
is protected, unless writ of execution is absolutely void, where: - execution u
pon a void judgment - judgment has been paid - execution levied on wrong party
Sale of a creditor to himself in a public sale Sale to a creditor, but subsequen
tly sold to a 3rd party
Section 6. Execution by motion or by independent action. A final and executory j
udgment or order may be executed: 1) On motion, w/in 5 years from entry; or 2) B
y filing another action w/in 10 years from entry Lifespan of writ of execution=
5 years A revived judgment is again enforceable by motion w/in 5 years and there
after, by another action w/in 10 years from finality of the revived judgment, no
t the original judgment EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERM If a c
ompromise agreement w/ a term suspends the enforceability of a final judgment, t
he 5 year/10 year period must be counted from the end of such term, not from the
date of entry REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered again
st several defendants, jointly and severally, can be revived against one of them
only.
Page 65 of
WHEN 5/10 YEAR PERIOD SUSPENDED 1) When the enforceability of a final decision i
s suspended by the court; 2) When the 5 year period is interrupted or suspended
by agreement of the parties 3) When the judgment creditor institutes supplementa
ry proceedings to the execution 4) When delays are caused by judgment obligor’s ow
n initiatives and for her advantage A valid execution issued and levied w/in the
5 year period may be enforced by sale even after the lapse of the said period T
he levy is the essential act by which the property is set apart for satisfaction
of judgment However, the execution sale must take place w/in the 10 year period
WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE 1) Judgment for support - does not pr
escribe - may still be enforced by motion even after the 5 year period 2) Specia
l proceedings - e.g. land registration proceedings NOTE: An action for support d
oes not prescribe and may still be enforced by motion even after the lapse of 5
year period since the obligation is a continuing one. The court never loses juri
sdiction to enforce such. VENUE OF ACTION FOR ENFORCEMENT OF JUDGMENT personal a
ction where plaintiff resides or defendant resides, at the election of the plain
tiff; real action where the property is located DEFENSES AVAILABLE IN AN ACTION
FOR ENFORCEMENT OF JUDGMENT prescription satisfaction of claim counterclaims JUR
ISDICTION TO CHANGE, ALTER, MODIFY JUDGMENT Terminates when the judgment becomes
final Governed by Rule 39, Section 1 JURISDICTION TO ENFORCE JUDGMENT Continues
even after judgment has become final, for purposes of execution and enforcement
Governed by Rule 39, Section 6 This section applies when a party dies after ren
dition of judgment, before or after entry. A judgment of foreclosure of mortgage
is enforceable by execution against the executor or administrator whether the j
udgment obligor died before or after entry of judgment. Section 8. Issuance, for
m, and contents of a writ of execution. The motion for execution and the writ of
execution must state specifically the amount of interest, costs, damages, rents
, or profits due as of the date of issuance of the writ, aside from the principa
l obligation Special sheriffs for the service of writ of execution are not autho
rized by law. The writ of execution must conform to the judgment to be executed,
otherwise it is null and void. DEATH OF A OBLIGEE Execution will issue in any c
ase Upon application of his executor, administrator, or successorin-interest Dea
th Before Levy: 1. Action for recovery of real or personal property or any lien
- execution will issue 2. Action for a sum of money – execution will NOT issue. In
this case, the judgment obligee should file claim against the estate of the jud
gment obligor under Rule 86. Death After Levy: execution will issue since the pr
operty is already separated from the estate of the deceased and is deemed in cus
todia legis. Against his executor, administrator, or successorin-interest An app
eal is the remedy for an order denying the issuance of a writ of execution.
DEATH OF A OBLIGOR
Section 7. Execution in case of death of party.
Page 66 of
GROUNDS FOR QUASHING A WRIT OF EXECUTION: 1) writ of execution varies judgment;
2) change in the situation of the parties making execution inequitable and unjus
t; 3) execution sought to be enforced against property exempt from execution; 4)
controversy has never been submitted to the judgment of the court; 5) terms of
judgment are not clear and there remains room for interpretation; 6) writ of exe
cution is improvidently issued, defective in substance, issued against the wrong
party, judgment debt has been paid, or writ issued without authority Section 9.
Execution of judgments for money, how enforced 3 WAYS TO ENFORCE A JUDGMENT FOR
MONEY 1. Immediate payment on demand ‐ judgment obligor shall pay in cash, certif
ied bank check payable to the judgment obligee, or any other form of payment acc
eptable to the latter ‐ payment made to the judgment obligee or his representative
, or if not present, to the sheriff, or if ‐ not practicable, to a fiduciary accou
nt 2. satisfaction by levy LEVY An act by which an officer sets apart or appropr
iates a part or whole of the property of the judgment debtor for purposes of the
execution sale. The officer shall levy upon properties of the judgment obligor
not otherwise exempt from execution Judgment obligor exercises option to chose w
/c property levied upon; if not exercised, officer shall levy 1st on personal pr
operty, then on real property The sheriff shall sell only property sufficient to
satisfy the judgment and other lawful fees. The on execution creates a lien in
favor of the judgment obligee over the right, title, and interest of the judgmen
t obligor in such property at the time of the levy, subject to liens and encumbr
ances then existing. 3. garnishment of debts and credits
Page 67 of
GARNISHMENT An act of appropriation by the court when property of debtor is in t
he hands of third persons. ‐ The sheriff may levy on debts due to debtor, or other
credits, including bank deposits, financial interests, royalties, commissions a
nd other personal property, not capable of manual delivery in the possession or
control of 3rd parties Notice served on 3rd party (garnishee)
‐
GENERAL RULE: All property belonging to judgment obligor not exempt from executi
on may be attached. EXCEPTIONS: 1) Usufruct 2) Ascertainable interest in real es
tate as mortgagor, mortgagee, or otherwise 3) Unused balance of an overdraft acc
ount (credit not subject to garnishment) Levy on personal property may be actual
or constructive e.g. levy on a barge by registration w/ Philippine Coast Guard
(constructive) Section 10. Execution of judgments for specific act SPECIFIC ACTS
1) Conveyance, delivery of deeds, or other specific acts; vesting title - if pa
rty fails to comply within the time specified, the court may direct the act to b
e done at the cost of the disobedient party - Real or personal property situated
w/in the Philippines: court in lieu of conveyance may give order divesting titl
e and may vest it in others 2) Sale of real or personal property 3) Delivery or
restitution of real property - officer shall demand person to peaceably vacate p
roperty w/in 3 working days, and restore possession to judgment obligee, otherwi
se officer shall oust such persons 4) Removal of improvements on property subjec
t of execution - officer shall not destroy, demolish, or remove improvements exc
ept upon special order of the court
special order issued upon motion, after judgment obligor failed to remove the sa
me 5) Delivery of personal property officer shall take possession of the same an
d deliver it to the judgment oblige • Failure to comply with specific acts under R
ule 39 Sec. 10 is not necessarily punishable by contempt. However, if a party re
fuses to: 1. vacate the property – the sheriff must oust the party. A demolition o
rder from the court is required to effect removal of an improvement constructed
by the defeated party. 2. deliver – the sheriff will take possession and deliver i
t to the winning party. 3. comply – the court can appoint some other person at the
expense of the disobedient party and the act shall have the same effect as if t
he required party performed it • No time limit w/in which an order of demolition s
hould be carried out; defeated party is given reasonable period to look for anot
her place. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ
of execution must be served w/in 5 years order of demolition ancillary to writ C
ertiorari is available if requirements for issuance of order of demolition are n
ot followed Section 11. Execution of special judgment SPECIAL JUDGMENT A special
judgment is one that can be complied with only by the judgment obligor himself.
It requires the performance of any other act than payment of money, or the sale
or delivery of real or personal property Failure to comply with special judgmen
t under Section 11 is punishable as contempt by imprisonment Section 12. Effect
of Levy on execution as to third persons Section 13. Property exempt from execut
ion PROPERTIES EXEMPT FROM EXECUTION 1) family home, or homestead, land necessar
ily used in connection therewith 2) ordinary tools and implements used in trade,
employment, or livelihood 3) 3 horses, cows, carabaos, or other beast of burden
necessarily used in his ordinary occupation 4) necessary clothing and articles
for ordinary personal use, except jewelry 5) household furniture and utensils ne
cessary for housekeeping ≤ P100K 6) Provisions for individual or family use suffic
ient for 4 months 7) Professional libraries and equipment 8) One fishing boat an
d accessories ≤ P100K used in livelihood 9) Salaries, wages, or earnings as are ne
cessary for support of family w/in 4 months preceding levy 10) Lettered gravesto
nes 11) Monies, benefits, privileges, or annuities accruing out of any life insu
rance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY
EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26, CA 458) 2) Prope
rty taken over by Alien Property Administration (Section 9[f], US Trading With T
he Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings
Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine
Government backpay to guerillas (RA 897) 6) Produce, work animals, and farm imp
lements of agricultural lessees, subject to limitations (Section21, RA 6389) 7)
Benefits from private retirement systems of companies and establishments, with l
imitations (RA 4917) 8) Labor wages, except for debts incurred for food, shelter
, clothing, and medical attendance (Art. 1708, NCC) 9) Benefit payments from the
SSS (Section 16 RA 1161 as amended by PDs 24, 65, and 177) 10) Copyrights and o
ther rights in intellectual property under the former copright law (PD 49 cf. Se
ction 239.3, RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. CIR L-17874 31 A
ugust 1963) (Regalado, F. Remedial Law Compendium Vol. 1, 8th ed., pp. 447-448).
Page 68 of
Section 14. Return of writ of execution Writ of execution is returnable to the c
ourt after judgment it satisfied Sheriff shall report to the court w/in 30 days
after receipt and every 30 days until the judgment is satisfied in full Lifetime
of writ of execution – 5 years from entry of judgment The rules do not provide an
y lifetime for a writ of attachment unlike writ of execution Section 15. Notice
of sale of property on execution REQUISITES FOR REQUISITES FOR NOTICE OF SALE OF
NOTICE OF SALE OF PERSONAL REAL PROPERTY PROPERTY - perishable property: - If ≤ 5
0,000: notice posted in 3 public notice posted in 3 places for 20 days public pl
aces for such time as may be reasonable considering the - If > 50,000: Publicati
on once a week for 2 character & condition consecutive weeks and of the property
- other personal notice posted in 3 public property: notice places for 20 days
posted in 3 public places for not less than 5 days - In all cases, written notic
e of the sale shall be given to the judgment obligor, at least 3 days before the
sale, except as provided in paragraph (a) hereof where notice shall be given at
any time. EFFECTS OF AN EXECUTION SALE WITHOUT THE REQUIRED NOTICE 1. Sheriff a
nd creditor are joint tortfeasors 2. Liable in solidum because liability is join
t and solidary Want of notice does not invalidate the execution sale where purch
aser is innocent and no collusion appears (buyer in good faith) Section 16. Proc
eedings where property claimed by third persons 3RD PARTY CLAIM A claim by any p
erson other than the judgment debtor or his agent on property levied on executio
n PURPOSE OF 3RD PARTY CLAIM 1) To recover property levied on by sheriff (althou
gh 3rd party can vindicate claim in a separate action) 2) To hold sheriff liable
for damages for the taking or keeping of such property WHEN TO FILE A 3RD PARTY
CLAIM At any time, so as long as the sheriff has the possession of the property
levied upon, or before the property is sold under execution WHAT IS THE PROCEDU
RE FOR A 3RD PARTY CLAIM 3rd party should make an affidavit of his title thereto
, or right of possession thereof, and should serve such affidavit upon the sheri
ff and a copy thereof to the judgment obligee. The sheriff may or may not requir
e the judgment obligee to file a bond. INDEMNITY BOND FILED Action for damages b
rought against the principal and sureties on the bond Sheriff not liable for dam
ages Sheriff bound to keep property on behalf of judgment obligee NO INDEMNITY B
OND FILED Action for damages may be brought against sheriff himself Sheriff liab
le for damages Sheriff not bound to keep property under levy
REMEDY OF THE CREDITOR 1. File a bond to indemnify 3rd party complainant - amoun
t of bond not less than value of property - sheriff not liable for damages if bo
nd is filed 2. File a claim for damages against 3rd party in the same or separat
e action - based on the ground that 3rd party claim is frivolous or plainly spur
ious REMEDY OF THE 3RD PARTY 1. Vindicate his claim in a separate action - no in
tervention allowed since judgment final & executory 2. File a separate action fo
r damages against the sheriff (if no bond filed) 3. File a claim for damages aga
inst the bond - claim must be w/in 120 days from filing of bond
Page 69 of
The sheriff is at complete liberty to suspend or not to suspend execution if the
judgment creditor does not file a bond. The judgment creditor cannot be compell
ed to file a bond because he is at complete liberty to do so. Without an indemni
ty bond, the sheriff acts at his own risk if he keeps the property (can be liabl
e for damages). Section 17. Penalty for selling without notice, or removing or d
efacing notice PERSONS LIABLE UNDER SECTION 17 1) Officer selling without notice
2) Any person willfully removing or defacing notice posted (e.g. notice posted
in 3 public places) What is the liability? 1. punitive damages to any person inj
ured thereby = P5000, 2. actual damages Section 18. No sale if judgment and cost
s paid If judgment obligor paid the amount of judgment NO writ of execution may
be issued or implemented. Section 19. How property sold on execution; who may di
rect manner and order of sale All sales of property under execution must be made
: 1. at a public auction 2. to the highest bidder 3. to start at the exact time
fixed in the notice Sale of real properties must be made in the province where t
he same are situated Purpose is to obtain the best price PERSONS PROHIBITED FROM
BUYING Judge, who issued the writ of execution Officer conducting sale, or his
deputy EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE: Valid EXCEPTION: 1.
when it appears that a larger sum would have been realized from a sale in parce
ls, or 2. a sale of less than whole would be sufficient to satisfy debt Mere ina
dequacy of price is not material if there is a right of redemption. Shocking ina
dequacy of price may be ground for setting aside sale Who has jurisdiction to se
t aside execution sale? Court w/c rendered judgment that became final and execut
ory has exclusive jurisdiction After sufficient property has been sold to satisf
y the execution, no more sale shall be made and any excess shall be promptly del
ivered to the judgment obligor or his authorized representative, unless otherwis
e directed by the judgment or order of the court. Section 20. Refusal of purchas
er to pay Section 21. Judgment obligee as purchaser Officer may sell again the p
roperty to the highest bidder refusing purchaser may be liable for amount of los
s occasioned by such refusal Refusing purchaser may be punished for contempt Off
icer may reject subsequent bid of refusing purchaser If judgment obligee is the
successful bidder BID ≤ JUDGMENT IF BID > JUDGMENT Judgment obligee not required t
o pay bid Judgment obligee required to pay excess
Section 22. Adjournment of Sale If both obligee and obligor agree in writing, sa
le may be adjourned to any date and time agreed upon Without such agreement, sal
e may be adjourned from day to day if it becomes necessary to o so for lack of t
ime. Adjournment = waiver of publication of another notice requirement Section 2
3. Conveyance to purchaser of personal property capable of manual delivery After
purchaser pays the purchase price, the sheriff must deliver the property capabl
e of manual delivery to the purchaser If desired the sheriff shall execute and d
eliver a certificate of sale No right of redemption in sales of personal propert
y on execution
Page 70 of
Section 24. Conveyance to purchaser of personal property not capable of manual d
elivery For personal property not capable of manual delivery, the officer must e
xecute and deliver to purchaser certificate of sale (symbolic delivery) Section
25. Conveyance of real property; certificate thereof given to purchaser and file
d with registry of deeds CERTIFICATE OF SALE MUST CONTAIN 1) Description of real
property sold; 2) Price paid (per lot) 3) Whole price paid 4) Statement of righ
t of redemption 1 year from date of registration of certificate of sale
ORDINARY SALE ON EXECUTION Need not be confirmed Right of redemption Purchaser a
cquires upon expiration redemption period title of EXECUTION IN JUDICIAL FORECLO
SURE OF MORTGAGE Needs judicial confirmation No right of redemption (except wher
e mortgagee is a bank) Purchaser acquires title after judicial confirmation of s
ale
2. Real Property – there is a right of redemption WHO MAY REDEEM?
JUDGMENT DEBTOR Judgment obligor, or his successor in interest (e.g. transferee,
assignee, heirs, joint debtors) When? Within 1 year from the date of registrati
on of the certificate of sale REDEMPTIONER One who has a lien by virtue of anoth
er attachment, judgment, or mortgage on property SUBSEQUENT to the lien under wh
ich the property was sold When? 1. Within 1 year from the date of registration o
f the certificate of sale; or 2. Within 60 days from the last redemption by anot
her redemptioner.
A surety is NOT a successor in interest By paying the debt, he stands in the pla
ce of the creditor, not obligor Right of redemption cannot be levied on by judgm
ent creditor The judgment debtor may, of course, legally sell his right of redem
ption Section 28. Time and manner of, and amounts payable on, successive redempt
ions; notice to be given and filed PERIOD OF REDEMPTION JUDGMENT REDEMPTIONER OB
LIGOR Judgment Obligor 1st redemptioner has 1 year to has 1 year from redeem reg
istration of 2nd redemptioner has 60 to redeem after 1st redemption certificate
of sale 3rd redemptioner has 60 days after 2nd, etc. Once he redeems, Further re
demption allowed, no further even after lapse of 1 year, as redemption is long a
s each redemption is allowed made w/in 60 days after the last Payment – how and to
whom made Tender of redemption money may be made to purchaser or sheriff If ten
der to sheriff – duty to accept Medium of payment Cash, although Sec. 9, Rule 39 a
llows certified bank check If check is dishonored, redemption invalid If check b
ecame stale for not being presented, through no fault of redemptioner, redemptio
n valid
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Purchaser acquires only right, title, interest and claim of judgment obligor. Pu
rchaser of property registered under Torrens system acquires the same free from
liens or encumbrances not noted thereon. Auction sale retroacts to date of levy
E.g. a 3rd party claim was filed after the levy. The fact that the 3rd party cla
im was presented 1 day before the execution sale is immaterial. If the levy is v
alid, the sale is also valid. The auction sale retroacts to the date of the levy
. The purchaser is not entitled to possession during the period of redemption. S
ection 26. Certificate of sale where property claimed by 3rd person The certific
ate of sale to be issued shall make express mention of the existence of such thi
rd-party claim. Section 27. Who may redeem real property so sold RIGHT OF REDEMP
TION: 1. Personal Property – None; sale is absolute
Amounts Payable On Redemption JUDGMENT REDEMPTIONER OBLIGOR If he redeems from t
he If he redeems from the purchaser: purchaser: - Same as - Purchase judgment ob
ligor price + 1% - Amount of lien, If interest + purchaser also assessment credi
tor w/ prior or taxes lien If he redeems from If he redeems from redemptioner -
Same as judgment obligor redemptioner - Redemption - Amount of liens held by las
t redemptioner prior to price + 2% his own, w/ interest interest + assessment or
taxes If based on Mortgage or other lien, must serve: - memorandum of record, o
r any assignment, AND - affidavit, showing amount due on lien Failure to produce
proof by redemptioner is waived by refusal on other grounds. Validity of redemp
tion not affected by failure to present proof If person to whom redemption was o
ffered accepts without requiring proof – redemption valid Section 31. Manner of us
ing premises pending redemption; waste restrained During the period pending the
redemption, the court issues an order to restrain the commission of waste on the
property by injunction. WHAT IS NOT COMMISSION OF WASTE 1) Use in the same a ma
nner previously used; 2) Use in the ordinary course of husbandry; 3) Make necess
ary repairs to buildings thereon Section 32. Rents, earnings and income of prope
rty pending redemption During the period of redemption, all rents, expenses, inc
ome and fruits derived still belong to the debtor. During the period of redempti
on, the purchaser or redemptioner is not entitled to: 1. possession 2. receive t
he rents, earnings, and income of property sold on execution; 3. reimbursement f
or improvements Section 33. Deed and possession to be given at expiration of red
emption period; by whom executed or given Upon expiration when no redemption has
been made within 1 year, purchaser is entitled to conveyance and possession of
property. Upon expiration when no redemption has been made within 6 months, last
redemptioner is entitled to conveyance and possession of property. Within 1 yea
r purchaser acquires only the rights, title, interest and claim of judgment obli
gor to property. After 1 year, the purchaser now has his own right and
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Section 29. Effect of redemption by judgment obligor, and a certificate to be de
livered and recorded thereupon; to whom payments on redemption made If judgment
obligor redeems, no further redemption is allowed. The Person to whom redemption
was made must execute and deliver to the judgment obligor a certificate of rede
mption. Payments may be made redemptioner, or sheriff. to the purchaser,
Redemption can be paid in other forms than cash. The rule is construed liberally
in allowing redemption (aid rather than to defeat the right) and it has been al
lowed to in the case of a cashier’s check, certified bank checks, and even checks.
A formal offer to redeem is not necessary where the right to redeem is exercise
d through the filing of a complaint to redeem in the courts, within the period t
o redeem. Section 30. Proof required of redemptioner PROOF REQUIRED JUDGMENT OR
FINAL ORDER No proof required Right of redemption appears on record REDEMPTIONER
If based on judgment or final order: - must serve copy of judgment or final ord
er, certified by clerk of court
acquires right to the property. It is at this time that the writ of possession i
s issued. Writ of possession may be enforced against judgment obligor, successor
s-in-interest - but NOT against persons whose right possession is adverse to the
latter 5) Sec. 40 – order to apply to obligor’s property in the hands of another, i
nvestigate income, expenses, earnings order fix monthly payments 6) Sec. 41 – appo
int receiver 7) Sec. 42 – sale of debtor’s interest in real estate 8) Sec. 43 – if gar
nishee denies debt, court may order creditor to institute action against such pe
rson to pay debt Section 37. Examination of obligor of judgment obligor Any pers
on or corporation who has property of the debtor, or is indebted to the debtor c
ourt may order such person to be examined to bind the credits due to debtor CITA
TION The garnishee becomes a forced intervenor, requiring him to pay his debt no
t to the judgment debtor but to the creditor (a form of involuntary novation). S
ection 38. Enforcement of attendance and conduct of examination A party or other
person may be compelled by an order of subpoena, to attend before the court or
commissioner to testify as provided in Sections 36 & 37. Failure to obey such or
der or subpoena may be punished for contempt. Section 39. Obligor may pay execut
ion against obligee Persons indebted to the debtor may pay sheriff. PROCEEDINGS
SUPPLEMENTARY TO EXECUTION The proceedings are to aid judgment creditors in disc
overy of debtor’s property and its application to the satisfaction of judgment. It
is to compel the disclosure of any property that is not exempt from execution 1
) Sec. 36 – examination of judgment obligor’s property 2) Sec. 37 – examination of jud
gment obligor’s debtor (garnishee) 3) Sec. 38 – enforcement of attendance and conduc
t of examination (punishable by contempt) 4) Sec. 39 – judgment obligor’s debtor may
pay sheriff Sheriff’s receipt shall mean a discharge for the amount paid and shal
l be credited by the obligee on execution Section 40. Order for application of p
roperty and income to satisfaction of judgment. Court may order property of judg
ment obligor, or money due him, in the hands of either himself or another, to be
applied to the satisfaction of the judgment Investigation of income and expense
s if it appears earnings more than necessary for support of family court may ord
er that he pay judgment in fixed monthly installments otherwise contempt
Page 73 of
of
Section 34. Recovery of price if sale not effective; revival of judgment If purc
haser fails to recover possession, evicted, judgment reversed, property exempt f
rom execution, or 3rd party vindicated claim, purchaser may, on motion or in a s
eparate action: 1) recover from creditor price paid w/ interest, or so much w/c
is not returned to judgment obligor; or 2) have original judgment revived for wh
ole price w/ interest Section 35. Right to contribution or reimbursement If prop
erty is executed against several persons, and more than due proportion has been
satisfied one who pays may compel contribution from the others If surety pays pr
incipal he may compel repayment from the
Section 36. Examination of judgment obligor when judgment unsatisfied Upon retur
n of writ of execution, and judgment is still unsatisfied, the creditor may ask
the court to require the debtor to appear and his property or income be examined
Section 41. Appointment of receiver The sheriff is not a proper person to be app
ointed as receiver. Section 42. Sale of ascertainable interest of judgment oblig
or in real estate. If Judgment obligor has interest in real estate (as mortgagor
or mortgagee, or otherwise) Receiver may be ordered to sell and convey real est
ate or interest therein Section 43. Proceedings when indebtedness denied or anot
her person claims property. Person or corporation having property of obligor or
indebted to him, claims an interest in property adverse to him or denies debt Co
urt may: 1. authorize judgment obligee to institute action against person or cor
poration for recovery of such interest or debt; 2. forbid transfer or other disp
osition of such interest or debt w/in 120 days from notice of order; or 3. may p
unish disobedience of such order as for contempt. Court cannot make a finding th
at 3rd person has in his possession property belonging to judgment debtor or is
indebted to him and to order said person to pay amount to judgment creditor Exec
ution may issue only upon an incontrovertible showing that 3rd party holds prope
rty of judgment obligor or is indebted to him Section 44. Entry of satisfaction
of judgment by clerk of court Section 45. Entry of satisfaction with or without
admission Judgment obligee is obliged to execute and acknowledge admission of sa
tisfaction of judgment only if judgment obligor demands ENTRY OF SATISFACTION OF
JUDGMENT-WHEN MADE 1) upon return of execution satisfied 2) upon filing of admi
ssion of satisfaction by creditor 3) upon indorsement of such admission 4) upon
order of the court Creditor who compels satisfaction of judgment loses right of
appeal. Debtor who voluntary satisfies judgment loses right to appeal. But, the
debtor who is compelled to pay does NOT lose right to appeal.
TENDER OF PAYMENT OF JUDGMENT TENDER OF PAYMENT OF CONTRACTUAL DEBT
- If tender refused, not necessary to make consignation - Court may direct money
to be paid to the court, and order entry of satisfaction of judgment
- If tender refused, must consign payment w/ court
Section 46. When principal bound by judgment against surety SURETY SUED ALONE -
principal also bound by judgment - surety should notify principal and request hi
m to join in defense; surety must still file separate action for reimbursement b
ut principal can no longer set up defenses w/c he could have set up in the origi
nal action - if principal not notified, he may set up defenses in a subsequent a
ction PRINCIPAL AND SURETY JOINTLY SUED - judgment may be rendered against them
jointly & severally - surety should file cross-claim for reimbursem ent PRINCIPA
L SUED ALONE - principal has no cause of action against surety
The principal is bound by the same judgment from the time he has notice of the a
ction or proceeding and
Page 74 of
has been given an opportunity at the surety’s request, to join the defense. Sectio
n 47. Effect of judgment or final orders. Paragraph (a) refers to rule on Res Ju
dicata in judgments IN REM. JUDGMENT OR FINAL ORDER Against A specific thing Pro
bate of a will or administration of the estate of a deceased person In respect t
o the personal, political, or legal condition or status of a particular person E
FFECT: CONCLUSIVE AS TO the title of the thing Will or administration. However,
only prima facie evidence of the death of the testator or intestate Condition, s
tatus, or relationship of the person CONCLUSIVENESS OF JUDGMENT Issues are actua
lly and directly resolved in a former suit cannot again be raised in any future
case between the same parties involving a different cause of action. RES JUDICAT
A OR BAR BY FORMER JUDGMENT - Refers to same action, claim or demand - Absolute
bar to subsequent action - there is finality as to the claim or demand in contro
versy, not only to matters presented, but as to any other admissible matter w/c
might have been presented - identity of parties, SM, cause of action ESTOPPEL BY
JUDGMENT OR CONCLUSIVENESS BY JUDGMENT - Refers to another action between same
parties but involves different claim - judgment merely an estoppel only as to th
ose matters in issue or controverted
Paragraph (b) refers to as “bar by former judgment or Res Judicata in judgments IN
PERSONAM RES JUDICATA It is a matter adjudged; an existing final judgment or de
cree rendered on the merits is conclusive upon the rights of the parties or thei
r privies, in all other actions or suits in the same or any other judicial tribu
nal, on the points and matters in issue in the first suit. It is based on the pr
inciple that parties should not litigate the same matter more than once. REQUISI
TES OF RES JUDICATA 1) Former judgment or order must be final and executory; 2)
Court has jurisdiction over subject matter and parties; 3) Former judgment or or
der was on merits; 4) Identity of parties, subject matter, and cause of action b
etween first and second action. Test to determine IDENTITY OF CAUSE OF ACTION Wh
ether the same evidence would sustain both causes of action NOTE: Res Judicata a
pplies only between adverse parties in a former suit, NOT between co-parties Par
agraph (c) is known as “conclusiveness of judgment” or preclusion of issues or rule
of AUTER ACTION PENDANT
- identity of parties, SM only
Section 48. Effect of foreign judgments or final orders. EFFECT OF A FOREIGN ORD
ER OR TRIBUNAL: 1) Against a specific thing – conclusive upon title to the thing.
2) Against a person – presumptive evidence of a right as between the parties and t
heir successors in interest by a subsequent title. In both instances, the judgme
nt may be repelled by evidence of want of jurisdiction, notice, collusion, fraud
, or clear mistake of law or fact. ENFORCEMENT OF FOREIGN JUDGMENTS By filing an
action based on said judgment; foreign judgment is presumed to be valid and bin
ding. RECOGNITION OF A FOREIGN JUDGMENT Raise the foreign judgment as res judica
ta in the defense (not in a separate action).
Page 75 of

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ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

3. Special Proceedings – remedy by which a party seeks to establish a status, a ri

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