CIVIL PROCEDURE

RULE 18: PRE-TRIAL 18.1

Plaintiff has the duty to promptly move ex parte that the case be set for pre-trial, and this he must do upon service and filing of the last pleading required in the case by the rules or in appropriate circumstances, by the court itself. o Whosoever is the proponent of the particular stage of the proceeding should himself initiate the corresponding steps to have judicial action taken thereon since he is presumed to be the one interested in the speedy disposition thereof. The pre-trial and trial on the merits of the case must be held on separate dates. A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiffs reply except where the period to file the last pleading has lapsed. The pre-trial may be properly scheduled even if the plaintiff had not yet filed his answer to the defendants compulsory counterclaim since no answer is required to be filed thereto.

18.2 The findings of fact of a trial court consequent to a pre-trial conference are findings which are based on evidence and can accordingly support a decision or an order.

18.3 The notice of pre-trial shall be served on counsel, and service shall be made on the party only if he has no counsel. However, the duty of the counsel served with such notice to duly notify his client thereof remains substantially the same.

18.4 The special authority should confer on the partys representative not only the power to enter into compromise, but also to submit to alternative modes of dispute settlement, and to enter into stipulations or admissions of facts and documents. o Mere presentation of such written authority is not sufficient, must be complemented by a showing of valid cause for the non-appearance of the party himself.

18.5 The trial court has discretion to declare a party non-suited and unless otherwise provided such dismissal has the effect of an adjudication on the merits. Such exercise of discretion will not be interfered with by the appellate courts, absent a showing of grave abuse thereof. The remedy of the plaintiff who is nonsuited on the other hand is to appeal form the order of dismissal, the same being a final order.

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Where the defendant was present at the pre-trial, the court has no authority to thereafter call a second pre-trial and declare defendant in default for his absence therein. Where a pre-trial has already been held, the fact that an amended complaint was later filed, with leave of court, does not necessitate another pre-trial The dismissal of the case by the court due to non-appearance of the plaintiff and his counsel at the pre-trial but without proper notice of said pre-trial served on them is violative of due process and dismissal should be set aside.

18.6 It is the mandatory duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein.

18.7 The amendment of a pre-trial order is addressed to the sound discretion of the court. Where the amount of back rentals to be paid by the defendant is stated in the pre-trial order in that sense has the force of res judicata on that issue. A pre-trial order is not meant to be a detailed catalogue of each and every issue that is to be or may be taken up during the trial. Issues that are impliedly included therein by necessary implication are as much integral parts of the pre-trial order as those that re expressly stipulated.

RULE 19: INTERVENTION 19.1 The right to intervene is not an absolute right. The allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court. Intervention is not included to change the nature and character of the action itself. o In general, an independent controversy cannot be injected into a suit by intervention hence such intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. Intervention is distinguished from interpleader intervention ancillary action interpleader original action

proper in any of the four situations presupposes that the plaintiff has no mentioned in this rule interest in the subject-matter of the action or has an interest therein

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which, in whole or in part, is not disputed by the other parties to the action the defendants are already original defendants are being sued precisely parties to the pending suit to implead them

While as a rule, intervention is optional and whether the failure to intervene may be deemed as waiver or estoppel depends on each case, it is believed that where the intervenors rights are interwoven in the pending case and he had due notice of the proceedings, he will thereafter be estopped from questioning the decision rendered therein through another action. An improper denial of a motion for intervention is correctible by appeal, but if there is grave abuse of discretion, mandamus will lie, where there is no other plain, speedy and adequate remedy. An improper granting of motion for intervention may be controlled by certiorari and prohibition. When the rights of the party seeking to intervene will not be prejudiced by the judgment in the main case and can be fully protected in a separate proceeding, the court may deny the intervention sought. To warrant intervention, it must be shown that the movant has legal interest in the matter in litigation and consideration must be given as to whether or not the adjudication of the rights of the original parties may be delayed or prejudiced, while those of the intervenor may be protected in a separate proceeding. o Both requirements must concur. The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. o The words an interest in the subject mean a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the complaint, without the establishment of which plaintiff could not recover.

19.2 Before judgment is rendered the court for good cause shown, may still allow the introduction of additional evidence and that is still within a liberal interpretation of the period for trial. o Also since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case, and would not require an overall reassessment of said claims as would be the case if the judgment had already been rendered.

19.3, 19.4

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Where the intervenor unites with the defendant, he intervenes by filing an answer-inintervention. If he unites with the plaintiff, he may file a complaint-in-intervention against the defendant. If he does not ally himself with either party he may file a complaint-in-intervention against both. If an answer is validly filed to the complaint-in-intervention, the answering party may assert a counterclaim therein against the intervenor.

RULE 20: CALENDAR OF CASES 20.1 To ensure a more efficient monitoring of cases for both supervision and reportorial purposes, the clerk is now required to keep at least 4 separate calendars reflecting the cases for pre-trial, for trial, those whose trials were adjourned and postponed, and those requested to be set for hearing. o The so called preferential cases must also be taken into account.

20.2 The assignment of cases is required to be done exclusively by raffle. o The raffle of cases shall be done in open session with prior adequate notice to the interested parties.

RULE 21: SUBPOENA 21.1 21.2 MTC may now issue a subpoena for the attendance before it of a prisoner even if he is not confined in a municipal jail o Unless such prisoer has been sentenced to death, reclusion perpetua or life imprisonment and his appearance has not been authorized by SC. Subpoena ad testificandum the technical and descriptive term for ordinary subpoena.

21.3, 21.4 A subpoena duces tecum may be quashed upon proof that o It is unreasonable and oppressive o The articles sought to be produced do not appear prima facie to be relevant to the issues o The person asking for the subpoena does not advance the cost for the production of the articles desired.

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A subpoena ad testificandum may also be quashed in the witness is not bound thereby. Non-compliance is a ground for quashal o Witness fees and kilometrage should be tendered upon service of the subpoena

21.5, 21.6, 21.7, 21.8, 21.9, 21.10 Viatory right of a witness The right not to be compelled to attend upon a subpoena by reason of distance from residence of the witness to the place where he is to testify People v. Montejo viatory right available only in civil cases.

RULE 22: COMPUTATION OF TIME 22.1 Applies only when the period of time is prescribed by these rules, by order of the court or by any applicable statute. o It adopts the rule on pretermission of holidays the exclusion of such holidays in the computation of the period, whenever the first two conditions stated in this section are present. Method of computation under this rule does not generally apply to those provided in a contract. Art 13, NCC, meaning of terms therein are also applicable. o A pleading filed on the last day of the reglementary period but after office hours is still considered seasonably filed if duly mailed or is received by a person authorized to do so, since a day consists of 24 hours. Application of the rule on pretermission of holidays refers to the place where the court sits. o Certain non-working holidays, or special days as they were sometimes termed, are applicable to and observed only in some particular places or regions in the country. The extension should be tacked to the original period and commence immediately after the expiration of such period. EO 292 adopts concept of a calendar month.

21.2

The interruption of the reglementary period as understood in this section does not have the same concept as interruption for purposes of the statute of limitations or prescriptive periods in the NCC.

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RULE 23: DEPOSITIONS PENDING ACTION 23.1 Different modes of discover that may be resorted to by a party to an action: a. Depositions pending action b. Depositions before action or pending appeal c. Interrogatories to parties d. Admission by adverse party e. Production or inspection of documents or things f. Physical and mental examination of persons

Depositions are classified into o Depositions on oral examination and deposition upon written interrogatories o Depositions de bene esse and depositions in perpetuam rei memoriam Depositins de bene esse taken for the purposes of a pending action and are regulated, 23 Depositions in perpetuam rei memoriam to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal, 24 Trial judges should encourage the use of the different modes of discovery since a knowledge of the evidence of the adverse party may facilitate an amicable settlement or expedite the trial of a case. o However, since resort thereto is not mandatory, if the parties choose not to avail of discovery procedures, the pre-trial should be set accordingly. Intelligent and adequate use of the deposition-discovery mechanism, coupled with pre-trial procedure, could effectively shorten the period of litigation and speed up adjudication. Other principal benefits from the availability and operation of a liberal discovery procedure are 1. It is of great assistance in ascertaining the truth and preventing perjury because the witness is examined while his memory is still fresh, he is generally not coached, he cannot at a later date contradict his deposition, and his deposition is preserved in case he becomes unavailable 2. It is an effective means of detecting and exposing fake, fraudulent and sham claims and defences 3. It makes available in a simple, convenient and often inexpensive way facts which otherwise could not have been proved later 4. It educates the parties in advance of trial on the real values of their claims and defences, thereby encouraging settlements out of court 5. It expedites the disposal of litigations, saves the time of the court and helps clear the dockets 6. It safeguards against surprise at the trial, prevents delays, simplifies the issues and thereby expedites the trial 7. It facilitates both the preparation and trial of cases

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A deposition may be resorted to after jurisdiction has been obtained over any defendant, not all defendants.

23.2, 23.3 The officer before whom the deposition is taken does not have the power to rule upon objections to the questions. He should merely have such objections noted in the deposition.

23.4 Where the witness is available to testify and the situation is not one of those excepted his deposition theretofore taken is inadmissible in evidence and he should in lieu thereof bemade to testify. A deposition may be used for impeaching or contradicting nay witness but it can be used as evidence by a party for any purpose under specific conditions set out. o If the deposition is that of a party or of an employee of a corporation which is a party, it can be used by the adverse party for impeachment of the deponent or as direct evidence of his case, whether the deponent is available or not; but said deposition cannot be used by the deponent-party as evidence of his case, unless he or the corporate employee cannot testify for any reason stated in 23.4c. o If the deponent is only a witness and is available at the trial his deposition cannot be used as evidence but may be used only to impeach him. o If the deponent-witness is not available under any of the circumstances in 23.4c then his deposition can be used as direct evidence. Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other persons which are relevant in a suit or proceeding in court. o Depositions and the other modes of discovery are meant to enable a party to learn all the material and relevant facts, not only known to him and his witnesses but also those known to the adverse party and the latters own witnesses. Any deposition offered to prove the facts therein at the trial of the case, in lieu of the actual testimony of the deponent in court, may be opposed and excluded for being hearsay, except in those specific instances authorized by the rules.

23.5, 23.6, 23.7, 23.8, 23.9 The introduction of the deposition binds the party who introduces it, since he thereby makes the deponent his witness, except a. If it is introduced to impeach or contradict the witness or b. If it is the deposition of an opposing party.

23.10, 23.11

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Among persons before whom deposition may be taken is any person authorized to administer oaths and chosen or stipulated upon in writing by the parties.

23.12 Commission addressed to any authority in a foreign country authorized therein to take down depositions and the taking of such deposition is subject to rules laid down by the court issuing the commission. Letters rogatory are addressed to a judicial authority in the foreign country and the taking of such deposition is subject to the rules laid down by such foreign judicial authority. o Generally resorted to when there is difficulty or impossibility of obtaining deposition by commission. commission instrument issued by a court of justice or other competent tribunal to authorize a person to take depositions or do any other act by authority of such court or tribunal letters rogatory instruments sent in the name and by authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed

addressed to officers designated may be applied for and issued only either by name or descriptive title after a commission has been returned unexecuted

23.13, 23.14, 23.15, 23.16, 23.17, 23.18, 23.19, 23.20, 23.21, 23.22, 23.23, 23.24, 23.25, 23.26, 23.27, 23.28, 23.29

RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL 24.1, 24.2, 24.3, 24.4, 24.5, 24.5, 24.6, 24.7 Depositions in perpetuam rei memoramiam the purpose of which is to perpetuate the testimony of witnesses for probable use in a future case or in the event of further proceedings in the same case. Sec 1 is the procedure for perpetuating testimony of witnesses prior to the filing of the case and in anticipation thereof. Sec 7 is the procedure in perpetuating testimony after judgment in the RTC and before it has become executory or during the pendency of an appeal therefrom.

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Sec 1 may not be availed of in criminal cases, but procedure in sec 7 is available in all actions including criminal cases. They are taken conditionally and to be used at the trial or proceeding only in case the deponent is not available. Do not prove the existence of any right and the testimony therein perpetuated is not in itself conclusive proof, either of the existence of any right not even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. o However, in the absence of any objection to the taking thereof and even if the deponent did not testify at the hearing of the case, the perpetuated testimony constitutes prima facie proof of facts referred to in his deposition.

RULE 25: INTERROGATORIES TO PARTIES 25.1, 25.2, 25.3, 25.4, 25.5 Just like depositions, a party may serve written interrogatories to the other party without leave of court only after answer has been served. Before that leave of court must be obtained. o Under the same considerations, interrogatories may embrace any relevant matter unless the same is privileged or prohibited by court order. A judgment by default may be rendered against a party who fails to serve his answer to written interrogatories. After service of his answer, leave of court is not required for the service of written interrogatories upon a party. The liberty of a party to make discovery is well-nigh unrestricted and not privileged, and the inquiry is made in good faith and within the bounds of law. o It is only upon notice and good cause shown that the court may order that a deposition shall not be taken. Good cause means a substantial reason one that affords a legal excuse. The matter of good cause is to be determined by the court. The various modes of discovery under the rules are clearly intended to be cumulative, and not alternative or mutually exclusive.

25.6 Where a party unjustifiedly refuses to elicit facts material and relevant to his case by addressing written interrogatories to the adverse party to elicit those facts, the latter may not thereafter be compelled to testify thereon in court or give a deposition pending appeal.

RULE 26: ADMISSION BY ADVERSE PARTY

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26.1, 26.2, 26.3

10

Rule 26 contemplates interrogatories seeking clarification in order to determine the truth of the allegations in a pleading. A request for admission should not merely reproduce or reiterate the allegations of the requesting partys pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, for the purpose of establishing the partys cause of action or defense. o Adverse party should not be compelled to admit matters of fact already admitted in his pleading and concerning which there is no issue, nor should he be required to make a second denial of those matters already denied in his answer to the complaint. Facts sought to be admitted by the adverse party must be both material and relevant to the issues in the case. Same requirements have been specified in rule 25. Where the plaintiff failed to answer a request for admission filed under this rule, based on its allegations in its original complaint, the legal effects of its implied admission of the facts stated in the request cannot be set aside by its subsequent filing of an amended complaint. It should have filed a motion to be relieved of the consequences of said implied admission. Where a copy of the request for admission was served only upon the counsel of the party so requested, it was held that there was insufficient compliance with rule 26. o The general rule that notices shall be served on the counsel of a party cannot apply where the rules expressly provide that it should be served upon a definite person. o Sec 1 of this rule provides that the request for admission should be served on the party to whom the request is directed. o Hence, the request for admission was not validly served and that party cannot be deemed to have admitted the truth of the matters of which admissions were requested. However, an answer to a request for admission properly served, which was signed and sworn to by the counsel of the party so requested, is sufficient compliance with this rule, especially in light of counsels authority.

26.4, 26.5 The party who fails or refuses to request the admission of the facts in question is himself prevented from thereafter presenting evidence thereon. o The court shall determine on a case to case basis whether or not the non-availment of the two modes of discovery was justified or the negative sanctions will unjustly prejudice the erring party.

RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS 27.1

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11

The production of documents affords more opportunity for discovery than a subpoena duces tecum as, in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced. The inspection of land and other real property also avoids the need for ocular inspection thereof by the court. In criminal cases, motions for production or inspection of documents are governed by 116.10, and may be availed of only by the accused generally during the pendency of the case for trial. This mode of discovery does not authorize the opposing party or the clerk or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily. A party is ordinarily entitled to the production of books, documents and papers which are material and relevant to the establishment of his cause of action or defense. The test to be applied by the trial judge in determining the relevancy of documents and the sufficiency of their description is one of reasonableness and practicability The rules do not authorize production and inspection of privileged matter, those which because of their confidential and privileged character could not be received in evidence. Any statute declaring in general terms that official records are confidential should be liberally construed, to have an implied exception for disclosure when needed in court of justice. In an American case, it was held that the court can compel plaintiff to consent to the exhumation of the body of the deceased in a case involving the accidental death clause of an insurance policy.

RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS 28.1 The mental condition of a party is in controversy in proceedings for guardianship over an imbecile or insane person, while the physical condition of a party is generally involved in physical injuries cases. A blood grouping test may be ordered and conducted under this rule on a child subject of a paternity suit. While the rule speaks of an examination of a party, such child is considered a party for purposes thereof as the action is brought for its benefit. Since the result of the examination are intended to be made public, the same are not covered by the physician-patient privilege. Furthermore, such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physical or mental condition.

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28.2, 28.3, 28.4

12

Where the party examined requests and obtains a report on the results of the examination, the consequences are that a. He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition, and b. He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him

RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY 29.1, 29.2, 29.3, 29.4, 29.5, 29.6 Where the plaintiff failed to answer the written interrogatories for unexplained reasons, dismissal of the complaint is warranted under 29.5, and such omission may also be considered as failure to prosecute the action.

RULE 30: TRIAL 30.1 Trial reception of evidence and other processes. o Embraces period for the introduction of evidence by both parties. Hearing not confined to trial but embraces the several stages of litigation, including the pretrial stage. o Does not necessarily mean presentation of evidence, parties are afforded the opportunity to be heard It is now required that parties receive notice of the trial at least 5 days before the scheduled date.

30.2, 30.3, 30.4 Postponements are addressed to the sound discretion of the court, and in absence of grave abuse of discretion, cannot be controlled by mandamus. A mere medical certificate is generally insufficient. It must be under oath or in form of an affidavit. o Since not every ailment is attended to by a physician and the required medical certificate under oath could not be obtained within a limited time, such requirement may be dispensed with in the interest of justice.

30.5

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13

Unless the court specifically directs, the trial shall be limited to the issues stated in the pre-trial order. The order of trial provided herein applies to a regularly controverted claim. Additional evidence may be offered at the rebuttal stage if it was newly discovered, or omitted through mistake or inadvertence or where the purpose is to correct evidence previously offered, subject to the discretion of the court. Evidence offered in rebuttal is not automatically excluded just because it would have been more properly admitted in the case in chief. o Whether evidence could have been more properly admitted in the case in chief is not a test of admissibility of evidence in rebuttal.

30.6 Stipulation of facts is among the purposes of a pre-trial in civil cases. o Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown, such as error or fraud. o But counsel cannot stipulate on what their respective evidence consists of and ask that judgment be rendered on the basis of such stipulation. Stipulations of facts are not permitted in actions for annulment of marriage and for legal separation.

30.7, 30.8 Art 2030, NCC Every civil action or proceeding shall be suspended: 1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer. The duration and terms of the suspension of the civil action or proceeding and similar matters shall be governed by such provisions of the rules of court as SC shall promulgate. Said rules of court shall likewise provide for the appointment and duties of amicable compounders. 30.9 Rule addresses the need to relieve the judge of some of his judicial functions whenever the same can be safely entrusted to a responsible officer with the necessary safeguards for the interests of the parties. o The basic rule, of course remains that the judge must himself personally receive and resolve the evidence of the parties. Reception of evidence may be delegated under the following conditions

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o o o o

14

Only in default or ex parte hearings, or on agreement in writing by the parties Reception shall be made only by the clerk of court who is a member of the bar Clerk shall have no power to rule on objections to any question or to the admission of evidence or exhibits He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from termination of the hearing.

RULE 31: CONSOLIDATION OR SEVERANCE 31.1 The objects of consolidation, or the rationale of a joint hearing are o To avoid multiplicity of suits o Guard against oppression or abuse o Prevent delay o Clear congested dockets o Simplify work of trial court o And save unnecessary costs and expenses The present tendency is to permit consolidation whenever possible irrespective of the diversity of the issues involved. The rule on consolidation of cases generally applies only to cases pending before the same judge, not to cases pending in different branches of the same court or in different courts, and also applies to special proceedings. o But whenever appropriate and in interest of justice, consolidation of cases in different branches of the same court or in different courts can be effected. o Consolidation of cases on appeal and assigned to different divisions of SC or CA is also authorized. o Generally the case which was appealed later and bearing the higher number is consolidated with the case having the lower docket number. Consolidation of several cases involving the same parties and subject-matter is discretionary with trial court. o However, it becomes a matter of duty if two or more cases are tried before the same judge, or if filed with different branches of the same RTC, one of such cases has not been partially tried. o Except for there is no time beyond which no consolidation of cases can be effected. Three ways of consolidating cases: o Recasting the cases already instituted, conducting only one hearing and rendering only one decision. o Consolidating the existing cases and holding only one hearing and rendering only one decision. o By hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case.

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Cases can be consolidated for purposes of a single appeal therefrom and a single decision can be rendered thereon. SC can also order consolidation of cases involving substantially the same parties and issues but which have been filed in different courts of equal jurisdiction.

31.2 When separate trial of claims is conducted by the court under this section, it may render separate judgments on each claim. This presupposes that the claims involved are within the jurisdiction of the court. o When one of the claims is not within its jurisdiction, the same should be dismissed, so that it may be filed in the SC.

RULE 32: TRIAL BY COMMISSIONER 32.1, 32.2, 32.3 The commissioner may rule upon the admissibility of evidence, unless otherwise provided in the order of reference. What 32.3 authorizes to be limited is the scope of the proceedings before the commissioner, not the modality thereof. o The order of reference may direct the commissioner to perform different acts in and for purposes of the proceedings but, whatever may be the case, the requirement for him to hold a hearing cannot be dispensed with as this is the essence of due process.

32.4, 32.5, 32.6, 32.7, 32.8, 32.9, 32.10, 32.11, 32.12, 32.13 When the commissioner did not hold a hearing in violation of 32.3 it is error for the trial court to issue an order approving said commissioners report over the objection of the aggrieved party.

RULE 33: DEMURRER TO EVIDENCE 33.1 A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. o Differs from motion to dismiss under rule 16 which is grounded on preliminary objections and is presented at the outset of the case, generally before a responsive pleading is filed by the movant and within the period for the filing thereof. Demurrer to evidence may be issued

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o

16

o o

Where the plaintiffs evidence together with such inferences and conclusions as may reasonably be drawn therefrom does not warrant recovery against the defendant, a demurrer to evidence should be sustained. A demurrer to evidence is likewise sustainable when, admitting every proven fact favourable to the plaintiff and indulging in his favour all conclusions fairly and reasonably inferable therefrom, the plaintiff has failed to make out one or more of the material elements of his case Where there is no evidence to support an allegation necessary to his claim Plaintiffs evidence is prima facie insufficient for recovery

Defendants who present a demurrer to plaintiffs evidence retain the right to present their own evidence, if the trial court disagrees with them o If the trial court agrees with them, but on appeal, the appellate disagrees with both of them and reverses the dismissal order, the defendants lose the right to present their own evidence. o The appellate court shall in addition resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations. It cannot remand the case for further proceedings. If an order of dismissal is reversed on appeal, the decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his rig to have the case remanded for reception of his evidence. Where the defendants motion is sustained and the case is dismissed, such order would be an adjudication on the merits, hence requirement in 36.1, should state clearly and distinctly the facts and the law on which it is based, should be complied with. Where the demurrer is denied, denial order is interlocutory in nature, hence 36.1 does not apply. Such denial is not controllable by certiorari absent an oppressive exercise of judicial authority.

RULE 34: JUDGMENT ON THE PLEADINGS 34.1 Presupposes that there is no controverted issue whatsoever between the parties, hence the plaintiff is also assumed to have admitted all the relevant allegations of fact of the defendant in his answer. o The judgment is based exclusively upon the allegations appearing in the pleadings of the parties and annexes thereto, if any, without consideration of any evidence aliunde. Plaintiff moving for judgment on the pleadings is not deemed to have admitted irrelevant allegations in the defendants answer; neither is the defendant deemed to have admitted allegations of damages in the complaint. o Hence there can be no award of damages in said judgment in the absence of proof.

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17

Judgment on the pleadings must be on motion of the claimant. However, if at the pre-trial the court finds that a judgment on the pleadings is proper it may render such judgment motu proprio Distinctions between judgment on the pleadings and summary judgment summary judgment proper even if there is an issue as to damages recoverable based not only on the pleadings but also upon the affidavits, depositions and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue judgments by default genuine issues of fact and/or law are normally involved evidence must be introduced on the material allegations, albeit ex parte, except in cases covered by the rule on summary procedure

judgment on the pleadings when it appears that there is no genuine between the parties based exclusively upon the pleadings without introduction of evidence

available in any action except for proper only in actions to recover all cases may be subject to declaration of nullity or annulment debt, or for a liquidated sum of judgments by default except of marriage and legal separation money, or for declaratory relief those for annulment or legal separation subject only to 3-day notice rule, requires prior 10-day notice and where all the material averments of the complaint are admitted may be filed ex parte, except under rule on summary procedure wherein upon failure of defendant to answer, court motu proprio or on plaintiffs motion shall render the corresponding judgment

Order of default and a judgment by default are proscribed in actions for declaration of nullity of marriage or for legal separation. o Based on and expressive of the concern and protection extended by the state to the social institution of marriage.

RULE 35: SUMMARY JUDGMENTS 35.1, 35.2 Rule refers to an action to recover upon a claim, that is, to recover a debt or a liquidated demand for money. Summary judgments are made specifically applicable to special civil action for declaratory relief. Parties allowed to submit not only affidavits but also depositions or admissions in support of their respective contentions.

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35.3

18

Summary judgment is proper only when there is no clearly genuine issue as to any material fact in the action, and if there is any question or controversy upon question of fact, there should be a trial on the merits. The crucial question is whether the issues raised in the pleadings are either genuine, sham or fictitious, as shown by affidavits, depositions, or admissions accompanying the motion. o A genuine issue means an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is fictitious or contrived so as not to constitute a genuine issue for trial. Not proper where the defendant presented defences tendering factual issues which call for the presentation of evidence, as where the defendant specifically denied the material allegations in the complaint. There must be a motion for summary judgment and a hearing of said motion, the nonobservance of which procedural requirements warrants the setting aside of the summary judgment. Test: whether the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or the claim is clearly meritorious. Where the motion is duly verified and is based on facts admitted by the adverse party, either expressly or impliedly, affidavits on such matters need not be submitted. An accounting order in a summary judgment is of an interlocutory nature and is not appealable. May not be rendered on the amount of damages, although such judgment may be entered on the issue of the right to damages. Thereafter the court may proceed to assess the amount recoverable. In case of doubt as to the propriety of a summary judgment, the doubt shall be resolved against the moving party. The court should take that view of evidence most favourable to the party against whom it is directed and give that party the benefit of all favourable inferences. Mere denials, unaccompanied by any fact which would be admissible in evidence at a hearing, are not sufficient to raise a genuine issue of fact sufficient to defeat a motion for summary judgment even though such issue was formally raised by the pleadings. o Where all the facts are within the judicial knowledge of the court, summary judgment may be granted as a matter of right.

35.4 Rendition of partial summary judgment is authorized.

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o Such judgment is interlocutory in nature and is not a final and appealable judgment.

19

The appeal from the partial judgment should be taken together with the judgment in the entire case after the trial shall have been conducted on the material facts on which a substantial controversy exists.

35.5, 35.6 Sanctions for violations of the provisions of these sections shall be imposed not only the offending party but also upon his counsel. The contumacious conduct contemplated herein are in the nature of indirect of constructive contempt, hence punished only after hearing (71.3).

RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF 36.1 The decision of the court is the entire document prepared and promulgated by it, adjudicating and determining the rights of the parties to the case. It contains the findings of fact and law, the reasons and evidence to support such findings, as well as the discussion of issues leading up to its determination. o The dispositive or decretal portion or the fallo is what actually constitutes the judgment or resolution of the court and which can be subject of execution, although the other parts of the decision may be resorted to in order to determine the ratio decidendi for such judgment or resolution. Where there is a conflict between the dispositive portion of the decision and the body thereof, the dispositive portion controls irrespective of what appears in the body of the decision. The special forms of judgments under the rules and jurisprudence o Judgment by default o Judgment on the pleadings o Summary judgment o Several judgment o Separate judgment o Judgment for specific acts o Special judgment o Judgment upon confession o Judgment upon compromise, or on consent or agreement o clarificatory judgment o Judgment nunc pro tunc Judgments upon confession or upon compromise stand on the same footing in the sense that they cannot be entered into by counsel without knowledge and special authority of the client.

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o o o

20

Both are immediately executory unless otherwise provided in the judgment, as may be prayed for or agreed upon by the parties. Art 2032, NCC requiring court approval for compromises entered by parents, guardians, representatives, administrators and executors Art 1878 (3), NCC provides a third person cannot bind another to a compromise agreement unless such third person has obtained a special power of attorney for that purpose from the party to be bound

However, judgment on consent is not to be fully equated with a judgment by confession. judgment on consent provisions and terms of which are settled and agreed upon by the parties which is entered in the record by the consent of the court judgment by confession not a plea but an affirmative and voluntary act of the defendant himself and the court exercises a certain amount of supervision over the entry of judgment, as well as there must be unqualified equitable jurisdiction over their agreement among the parties to be subsequent status bound by the judgment court does not have the power to supply terms, provisions or essential details not previously agreed to by the parties

As a rule, judgment upon compromise is immediately executory, absent a motion to set aside the same on FAME. o If such motion is made and denied, appeal may be taken from that order of denial. SC held that to be entitled to appeal from judgment on compromise, a party must not only move to set aside judgment but must also move to set aside or annul the compromise agreement itself. A judgment rendered pursuant to a compromise agreement is not appealable and has the effect of res judicata from the moment it is rendered. Where a compromise agreement of litigants is not contrary to law, judicial decisions, morals, good customs or public policy, the court cannot impose a judgment different from the terms of said agreement. Where judgment based on compromise is sought to be enforced against a person who was not a party thereto, he may file an original petition for certiorari to quash the writ of execution. o He could not move to have compromise set aside and appeal from order of denial since he is not a party to the compromise or judgment. o A petition for relief would be inadequate as the execution was already being carried out.

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21

Compromise agreement once approved by the court, has the force of res judicata between the parties and should not be disturbed except for vices of consent or forgery. No decree of legal separation, annulment of marriage, can be granted if based exclusively on a confession of judgment. While a judgment upon confession may be rendered when the defendant appears in court or files a pleading expressly agreeing to the plaintiffs demand, there is no law in this jurisdiction which recognizes a judgment note. o Judgment note a promissory note wherein maker authorizes in advance, on warrant of attorney, a confession of judgment against him in the event of non-payment of the note on its maturity. This is void, being contrary to public policy, because the promissor bargains away his day in court and might be source of abuse and oppression. A judgment nunc pro tunc (literally now for then) is rendered to enter or record such judgment as had been formerly rendered but has not been entered as thus rendered. o Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or in any material respect. The object of a judgment nunc pro tunc is not the rendition of a new judgment and ascertainment and determination of new rights, but is one placing in proper form on the record the judgment that has been previously rendered, to make it speak the truth and thereby show what the judicial action really was. o It may not be availed of to correct judicial errors, such as to render a judgment which the court ought to have rendered in place of the one it did erroneously rendered or to supply non-action by the court however erroneous the judgment may have been. It is the filing of the signed decision with the clerk of court, not its pronouncement in open court, that constitutes rendition of judgment. o If the decision is sent by the judge by registered mail, it is considered filed in court as of the date of receipt by the clerk, and not the date of its posting or mailing. A judgment must conform to the pleadings and the theory of the action under which the case was tried. A judgment outside the issues and purporting to adjudicate something on which parties were not heard is invalid. A judgment contrary to the express provisions of law is erroneous but it is not void. Once it becomes final and executory, it is as binding and effective as any judgment, and though erroneous, will be enforced as a valid judgment in accordance with its dispositions. The validity of a judgment or order of a court cannot be collaterally attacked except on the ground of o Lack of jurisdiction o Or irregularity of its entry apparent from the face of the record.

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22

If supposed nullity is based on partys alleged lack of consent to the compromise agreement, the remedy is to move for its reconsideration and to appeal from the judgment if the motion is denied; or if the judgment is already final and executory, to file a petition for relief under rule 38. Where the judgment is ambiguous and difficult to comply with the remedy is to file a motion for a so-called clarificatory judgment. The court may correct a clerical error or clarify an ambiguity in the judgment even after its finality. o The court may resort to the pleadings filed by the parties, the findings of fact and the conclusions of law expressed in the text or body of the decision. There is a difference between an amended judgment and a supplemental judgment. amended and clarified judgment supplemental judgment court makes a thorough study of serves only to bolster or add the original judgment and renders something to the primary decision the amended and clarified judgment only after considering all the factual and legal issues entirely a new decision which does not take place or extinguish superseded the original decision the original decision

Final orders should state the facts on which they are based. While rules do not specifically require findings of fact and the law on which an order of dismissal is based, for the satisfaction of the losing party and to assist the appellate court in the resolution of an appeal therefrom, a trail court should reason out its order instead of merely incorporating, by reference, the contents of the motion to dismiss. o Minute orders, or those stating that the trial court had resolved to grant the motion to dismiss, should be avoided. Instead, the court should specify reasons for the dismissal so that the appellate court can readily determine whether there is prima facie justification for the order of dismissal. Every court having jurisdiction to render a particular judgment has inherent power and authority to enforce it and to exercise equitable control over such enforcement. The court has authority to inquire whether its judgment has been executed, and will remove obstructions thereof. o Such authority also extends to such orders or writs as may be necessary to carry out the judgment into effect and render is binding and operative, and also to such orders as may be necessary to prevent an improper enforcement of the judgment. Sec. 40 of BP 129 authorized memorandum decision, a species of succinctly written decisions by appellate courts for expediency, practicality and convenience in consideration of the docket status of our courts. It has been held that such decisions comply with the constitutional mandate

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o

23

However, to be valid, such memorandum decision should actually embody the factual findings and legal conclusions in an annex attached to and made integral part of the decision. Such decisions should be sparingly used and may be resorted to only in cases where the facts are accepted by main by the parties, are easily determinable by the judge and do not involve doctrinal complication requiring extended discussion. It may be employed in simple cases where the appeal is obviously groundless and deserves no more than the time to dismiss it.

A judgment for support does not become final because the allowance for the right of support is essentially provisional. A judgment in a naturalization case becomes final only after the issuance of the naturalization certificate and compliance by the applicant with RA 530, but unlike other decisions, it does not really become executory and a certificate of naturalization may be cancelled on grounds subsequent to the granting thereof. A judge permanently transferred to another court of equal jurisdiction can render a decision on a case in his former court which was totally heard by him and submitted for decision, with the parties having argued the case.

36.2 Finality and entry simultaneous by operation of law, eliminates the confusion and guesswork whenever the parties could not have access, for one reason or another, to the book of entries of judgments. It also avoids the usual problem where the physical act of writing out the entry is delayed by neglect or sloth. Entry of judgment or final orders assumes importance in reckoning some reglementary periods. o 5-year period for execution by motion o 6-month period for petition for relief Rule 136 requires clerk of court shall keep a judgment book containing a copy of each judgment rendered by the court in the order of its date, and a book of entries of judgments containing at length in chronological order entries of all final judgments or orders of the court.

36.3, 36.4, 36.5, 36.6 Several judgment proper where the liability of each party is clearly separable and distinct from that of his co-parties such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the others. o In actions against solidary debtors, several judgment is not proper. A decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be made by the court that render it or by the highest court of the land.

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The only exceptions to the rule that final judgments may no longer be modified in any respect o Correction of clerical errors o So called nunc pro tunc entries which cause no prejudice to any party o Void judgments o Whenever circumstances transpire after the finality of the decision making its execution unjust and inequitable

RULE 37: NEW TRIAL OR RECONSIDERATION 37.1 Under present procedure, an appeal is taken by filing a notice of appeal, and the appeal is perfected upon the expiration of the last day to appeal by any party. In cases where a record on appeal is perfected upon the expiration of the last day to appeal by any party. If a motion for new trial does not satisfy the requirement of this rule, it is pro forma and does not suspend the period to appeal. A motion for new trial is considered pro forma o Based on the same ground as that raised in a preceding MNT or MR which has already been denied o Contains the same arguments and manner of discussion appearing in the prior opposition to the motion to dismiss and which motion was granted o New ground alleged in the second MNT already existed, was available and could have been alleged in the first motion for new trial which was denied. o Based on ground of insufficiency of evidence or that the judgment is contrary to law but does not specify the supposed defects in the judgment o Based on the ground of FAME but does not specify the facts constituting these grounds and/or is not accompanied by an affidavit of merits. Fraud and mistake must be alleged with particularity. Further, motion must comply with provisions of rule 15, otherwise it will not be accepted for filing and/or will not suspend the running of the reglementary period. No party shall be allowed to file a second MR of final order of judgment of trial courts. But it is available for MNT under circumstances set out in 37.5. Even if the MR is based on substantially the same grounds as movants memorandum, it is not pro forma if it specifically points out conclusions allegedly not supported by evidence, aside from stating additional specific reasons for said grounds. Concept of pro forma MRs is properly directed against a final judgment or order, not those against an interlocutory order.

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25

The mere fact that a motion for reconsideration deals with the same issues and arguments already posed to and resolved by the trial court in its decision does not necessarily mean that the same is pro forma. o Where the circumstances of a case do not show an intent on part of the pleader to merely delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. MR, if based on the same grounds as that for new trial, is considered MNT and has the same effect. o Where MNT is based on last paragraph of sec 1, it is properly an MR as the movant merely asks the court to re-evaluate its decision without a trial being conducted again on the issues involved. Fraud as ground for MNT must be extrinsic or collateral, that is fraud which prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy. Mistake generally refers to mistakes of fact but may also include mistakes of law where in good faith the defendant was misled in the case. o Mistake as to scope and extent of coverage of an ordinance, or as to effect of compromise agreement upon the need for answering a complaint, although generally mistakes of law, have been considered sufficient to warrant new trial. o As general rule, client is bound by mistakes of his counsel. Only when the application of this general rule would result in serious injustice should an exception thereto be applied. Negligence must be excusable and generally imputable to the party but the negligence of counsel is binding on the client just as the latter is bound by the mistakes of his lawyer. o However negligence of counsel may be a ground for new trial if it was so great such that the party was prejudiced and prevented from fairly presenting his case. Newly discovered evidence, to warrant new trial o Must have been discovered after trial o Could not have been discovered and produced at the trial despite reasonable diligence o If presented would probably alter the result of the action Mere initial hostility of a witness at the trial does not constitute his testimony into newly discovered evidence. A motion for reopening the trial, unlike a motion for new trial, is not specifically mentioned in the rules but is nevertheless a recognized procedural recourse or devise deriving validity and acceptance from long established usage. motion for new trial motion to reopen

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proper only after promulgation of judgment may properly be presented only after either or both parties have formally offered and closed their evidence before judgment

26

based on specific grounds in controlled by no other rule than 37.1 and 121.2 in criminal cases the paramount interest of justice, resting entirely on the sound discretion of a trial court, the exercise of which discretion will not be reviewed on appeal unless a clear abuse thereof is shown

37.2 An affidavit of merits is one which states o The nature or character of the fraud, accident, mistake or excusable negligence on which the motion for new trial is based o The facts constituting the movants good and substantial defences or valid causes of action, and o The evidence which he intends to present if his motion is granted An affidavit of merits should state facts and not mere opinions or conclusions of law. The evidence must be such as to warrant a reasonable belief that if presented the result of the case would probably be altered. Hence, collateral, corroborative, cumulative or impeaching evidence are generally not sufficient. Affidavits of merits may be dispensed with when the judgment is null and void as where the court has no jurisdiction over the subject-matter or is procedurally defective as where judgment by default was rendered before the reglementary period to answer had expired, or where defendant was unreasonably deprived of his day in court as when no notice of hearing was furnished him in advance. Affidavits of merits are not required in MRs. Proof of motions, 133.7, motions may be proved by the record, affidavits, depositions or testimonial evidence.

37.3, 37.4, 37.5 First sentence of sec 5 implements the omnibus motion rule. Second MNT may be entertained where the ground therefor was not available or existing at the time when the first motion was filed.

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37.6

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Although recorded evidence at the former trial need not be taken anew, the court, in the interest of justice, may recall the witnesses who testified therein for further examination or cross-examination, unless they are no longer available. An order denying MNT or MR is not appealable, the remedy being an appeal from the judgment or final order in due time.

37.7, 37.8 This procedure is permissible where either a several or separate judgment is proper. Where one party files a motion for new trial or reconsideration and the other party seeks to perfect an appeal from said decision, the court should withhold action on the appeal until after the motion for new trial or reconsideration shall have been resolved. Where defendants motion for new trial was denied by the trial court, it has been held that he can perfect an appeal from the judgment and also proceed on certiorari to set aside the order denying his motion for new trial. o There is no incompatibility between the two remedies as one is directed against the judgment and the other, against the order denying the new trial. A motion to extend the reglementary period for filing a motion for reconsideration is not authorized. The reglementary period for filing of the record on appeal when required may be extended, but the period for perfecting an appeal may not be extended for the purpose of filing a motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration may be filed with lower courts. Such a motion may be filed only in cases pending with the SC as the court of last resort, which may in its sound discretion either grant or deny the extension requested.

37.9

RULE 38: RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS 38.1, 38.2 The petition for relief from a judgment, final order or proceeding involved in a case tried by MTC shall be filed in and decided by the same court in the same case. A petition for relief is an equitable remedy and is allowed only in exceptional cases from final judgments or orders where no other remedy is available. It will not be entertained when the proper remedy is appeal or certiorari.

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The phrase other proceeding includes an order or writ of execution, or an order dismissing an appeal. Since they are not required to be entered, the period starts from rendition of the order or taking of the proceeding or from the date of occurrence since entry is either unnecessary or inconsequential and the court will merely set aside the proceeding and allow the party to act as if the proceeding never took place. A petition for relief is in effect a second opportunity for an aggrieved party to ask for a new trial. o Hence fraud, accident, mistake or excusable negligence as grounds for petition for relief have the same concepts that they have in motions for new trial. o Also in a motion for new trial, mistake of law was considered sufficient to justify a petition for relief. Petition for relief under sec. 1 has been held to be applicable to all kinds of special proceedings such as land registration, intestate settlement, and guardianship proceedings.

38.3 The 2 periods for filing a petition for relief are not extendible and never interrupted. o A petition for certiorari does not suspend the periods prescribed by this section o Neither does MR of the subject of the petition for relief. o These periods cannot be subject to a condition or contingency as they are devised to meet a condition or contingency. o Both periods must be complied with A petition for relief filed on the 65th day from notice of order, but within 6 months from such proceeding was given due course. o But this was a proceeding in the court of agrarian relations not bound by technical rules of procedure. Petition for relief was filed beyond the 60 day reglementary period, SC ordered trial court to give it due course since original counsel of defendants deprived them of their day in court by fishy and suspicious actualtions Petition for relief was filed on 61st day and therefore correctly denied. Special circumstances obtaining in Balite and PHHC which warranted relaxation of the rule did not obtain in this case. The 60 day period is reckoned from the time the party acquired knowledge of the order, judgment or proceedings and not from the date he actually read the same. The 6 month period is computed from the date of entry of the final order or judgment. With respect of proceedings, the date when the proceedings were taken controls. In judgments upon compromise, being immediately executor, prescription runs from the date of its rendition, hence the 6 month period also runs therefrom.

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An affidavit of merits must accompany the petition, and the petition itself must be verified. o As in MNT the absence of an affidavit of merits is a fatal defect and warrants denial of the petition o Unless the facts required to be set out in the affidavit of merits also appear in the verified petition. o Also, like motions for new trial, such affidavits are not required when the judgment or order is void for want of jurisdiction, or was obtained by mistake of fraud or with denial of due process.

38.4, 38.5 Where a writ of execution was already issued and levy was made before the petition for relief was filed, the lien that may have been acquired over the property is not discharged by the subsequent issuance of a writ of preliminary injunction. Thereafter, if the petition is denied, the court has the power to reinstate the writ of execution. Unless a writ of preliminary injunction has been issued, execution of the judgment shall proceed even if the order denying the petition for relief is pending on appeal. Said writ may be sought either in the trial or appellate courts.

38.6 There are two steps or hearings in a petition for relief o A hearing to determine whether the judgment order or proceeding should be set aside o In the affirmative, a hearing on the merits of the case. Failure to file an answer to the petition for relief does not constitute default as even without such answer, the court will still have to hear the petition and determine its merits. An order granting a petition for relief is interlocutory and non-appealable.

38.7

RULE 39: EXECUTION, SATISFACTION AND EFFECTS OF JUDGMENTS 39.1 Final order disposes of the action, after the lapse of the reglementary period to appeal and no appeal has been perfected Trial courts issue orders, while appellate courts and most of the quasi-judicial agencies issue resolutions. The prevailing party can secure certified true copies of the judgment or final order of the appellate court and entry thereof, and submit the same to the court of origin with and to justify

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his motion for a writ of execution, without waiting for its receipt of the records from the appellate court. When judgments or orders may be executed as a matter of right, it becomes the mandatory or ministerial duty of the court to issue a writ of execution to enforce the judgment, the judgment becomes executory. In 39.2, execution may issue in the discretion of the court even before the lapse of the period to appeal, that is, even before the judgment or order has become executory. Where judgment or order has become executory, the court cannot refuse to issue a writ of execution, except: a. When subsequent facts and circumstances transpire which render such execution unjust or impossible such as a supervening cause b. On equitable grounds as when there has been a change in the situation of the parties which makes execution inequitable. c. Where judgment has been novated by the parties d. When petition for relief or an action to enjoin the judgment is filed and a preliminary injunction prayed for and granted e. When judgment has become dormant, 5-year period under sec.6 of this rule having expired f. Where the judgment turns out to be incomplete or is conditional since as a matter of law, such judgment cannot become final Quashal of a writ of execution is proper when a. Improvidently issued b. It was defective in substance c. It is issued against the wrong party d. The judgment was already satisfied e. It was issued without authority f. A change in the situation of the parties renders execution inequitable g. The controversy was never validly submitted to the court h. The writ varies the terms of the judgment i. Writ is sought to be enforced against a property exempt from execution j. There is ambiguity in the terms of the judgment The defect may also be challenged on appeal or in certiorari, prohibition or mandamus actions Where there is substantial variance between the judgment and the writ issued to enforce it, said writ is a nullity. After judgment has become executory, the court cannot amend, except a. To make corrections of clerical errors, as by an amendment nunc pro tunc b. To clarify an ambiguity which is borne out by and justifiable in the context of the decision c. In judgments for support, which can always be amended from time to time.

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Remedies against a judgment or order which has become executory a. Petition for relief, rule 38 b. Direct attack on the judgment c. Collateral attack on the judgment

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Direct attack action or proceeding the main object of which is to annul, set aside, or enjoin the enforcement of such judgment, if not yet carried into effect. o Grounds Lack of jurisdiction, contrary to law o Where judgment does not on its face reveal the nullity or the fact that it is vitiated by fraud Collateral or incidental attack another action to obtain a different relied, an attack on the judgment is made as an incident in said action o Only proper when it is patent that the court which rendered said judgment has no jurisdiction CA has exclusive original jurisdiction in actions to annul the judgment of RTCs (BP 129, 9.2) RTC retain jurisdiction to annul judgments of inferior courts in the region (BP 129, 19.6) Action for annulment could not be filed with SC since factual issues of alleged extrinsic fraud, relied on for annulment sought are not within its jurisdiction to resolve. An action to annul a judgment is not necessarily limited to those principally or secondarily bound thereunder. o Any person adversely affected thereby can enjoin its enforcement and have it declared a nullity on the ground of extrinsic fraud and collusion used in obtaining such judgment

39.2 Discretionary execution may be granted by the trial court while it has jurisdiction over the case and is still in possession of the original record thereof or the record on appeal in those instances where the latter is required. CA has no authority to issue immediate execution pending appeal of its own decisions therein. A judgment of the CA cannot be executed pending appeal. Second paragraph governs discretionary execution of the decision of RTC which is on appeal to CA and the trial court has already lost jurisdiction over the case.

39.3 A supersedeas is an auxiliary process designed to supersede enforcement of a trial courts judgment brought up for review, and its application is limited to the judgment from which an appeal is taken.

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Supersedeas stay of proceedings designates the effect of an act or proceedings which in itself suspended the enforcement of a judgment

39.4 Generally, only judgments and final orders or resolutions may be executed. The exceptions are o Orders granting support pendent lite o Orders in injunction o Receivership o Accounting cases They shall be enforceable upon rendition and shall not be stayed by an appeal taken therefrom unless otherwise ordered by the court. The same is true in the case of judgments of inferior courts for ejectment of the defendant Even before the judgment has become executory and before appeal was perfected, the court in its discretion, may order execution upon good reasons to be stated in a special order a. Where the lapse of time would make the ultimate judgment ineffective, as where the debtors were withdrawing their business and assets from the country b. Where appeal is dilatory c. Where judgment is for support and beneficiary is in need thereof d. Where articles subject of the case would deteriorate e. Where defendants are exhausting their income and have no other property aside from proceeds of property subject of action f. Where judgment debtor is in imminent danger of insolvency g. Where prevailing party is of advanced age and in a precarious state of health, and the obligation in the judgment is non-transmissible, being for support h. Movants were in extreme need of the premises subject of the suit and possession whereof was adjudged to them in the trial courts decision, corresponding bond has been posted by them i. Case involved escrow deposits and the prevailing party posts sufficient bond to answer for damages in case of reversal of the judgment Mere filing of a bond is not a good reason for the execution of a money judgment pending appeal. Certiorari lies against an order granting execution pending appeal where the same is not founded upon good reasons. The motion for immediate execution must be filed before the court approves the record on appeal because upon such approval, the appeal is deemed perfected and the trial court loses jurisdiction over the subject matter, except to issue orders for the protection and preservation of the rights of the parties. o Since appeal is now generally taken by merely filing a notice of appeal, it was then held that the motion for immediate execution should be filed before notice is filed and the

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appeal given due course by the trial court, the perfection of appeal in such case being the lapse of the last day for all parties to appeal. Surety is charged under the supersedeas bond upon the termination of the case on appeal and the bond may be executed on motion, unlike the procedure for recovery of damages from bonds on attachment/injunction. An order for execution of a judgment pending appeal can be enforced on a counter-bond which was posted to lift the writ of preliminary attachment issued by the trial court.

39.5 Include with within its purview a situation wherein the judgment was not only reversed but actually annulled, and to provide by way of relief, for either restitution or reparation. On reversal property itself must be returned to the judgment debtor, plus compensation to the former for the deprivation and use of the property. If restitution is not possible, the compensation should be made as follows a. If purchaser at public auction was judgment creditor, he must pay the full value of the property at the time of its seizure, plus interest thereon b. If purchaser was a third party, judgment creditor must pay the judgment debtor the amount realized from the sheriffs sale, with interest thereon c. If judgment award was reduced on appeal, the judgment creditor must return to the judgment debtor only the excess which he received over and above that to which he is entitled under the final judgment, with interest on such excess

39.6 5 year period is to be counted not from the date the judgment became final in the sense that no appeal could be taken therefrom but when it became executory, in the sense that it could already be enforced, from date of its entry. Within 5years from entry of the judgment, the prevailing party can secure its execution by merely filing motions for such writs of execution as may be necessary to enforce the judgment. If a writ of execution was issued and levy made on the property with 5-year period, the sale of the property thereafter will be valid provided it is made within the 10-year period. If no levy was made within the 5-yr period, the writ of execution may no longer be enforced even if it was issued within the 5-yr period. Failure to object to writ of execution issued after 5-years from judgment does not validate the writ, jurisdiction of court involved; it cannot be conferred by the will of the parties. There should not be included the time when execution is stayed, either by agreement of the parties for a definite time, by injunction, by the taking of an appeal or writ of error so as to operate as a supersedeas, by the death of the party or otherwise. Any interruption or delay

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occasioned by the debtor will extend the time within which the writ may be issued without scire facias. An action to revive a judgment is a personal one and not quasi in rem. This section does not apply to judgments for support which do not become dormant and which can always be executed by motion, except those for support in arrears beyond ten years from the date they become due.

39.7 B applies where judgment obligor dies after entry of judgment or order. If he dies before such entry in the court wherein the action is pending, and the action is for a contractual money claim, the amended rule is that it will not be dismissed but shall continue until entry of final judgment. If it is a favourable judgment, it may be enforced as a claim against the debtors estate. If the judgment obligor dies after the entry of judgment but before levy on his personal property, execution will issue if it be for the recovery of real or personal property. o If judgment is for sum of money, and obligor dies before levy has been made on his property, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate. If he dies after levy has been made, the execution sale may proceed. It is the actual date of levy on execution which is the cut-off date.

39.8 To avoid erroneous implementation, the writ should state the dispositive part of the judgment or order, instead of just the material parts thereof. While the sheriff may levy upon the properties of the judgment obligor of any kind and nature not exempt from execution, he must first give the latter the option to choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. In execution as a matter of right, the writ must be of necessity be issued by the court where the judgment or order was entered, the court of origin. A writ of execution must conform with the judgment and if it is different from or exceeds the terms of the judgment it is a nullity and may be quashed on motion, and appeal may be taken from denial of such motion. A writ of possession may be issued only in the following cases a. Land registration proceedings, which are in rem b. Extrajudicial foreclosure of a real estate mortgage c. Judicial foreclosure of a real estate mortgage, which is quasi in rem, provided the mortgagor is in possession of the mortgaged property and no third person had intervened

FPL

CIVIL PROCEDURE
d. In execution sales

35

Appeal is the remedy from an order denying the issuance of a writ of execution. o An order granting the issuance of writ of execution is not appealable, except where order varies terms of judgment or where being vague court renders what is believed to be a wrong interpretation of the judgment. A party who has voluntarily executed a judgment, or who voluntarily acquiesces in or ratifies the execution of such judgment is not permitted to appeal from it. Injunction will lie to stop the auction sale of mortgaged property of a stranger to the case and it is not an interference with the writ of execution issued by another court since the writ of execution is being illegally implemented by the sheriff. When the judgment debtor has simulated a transfer of his property to evade execution said property may be levied upon for the satisfaction of the judgment without need of an independent action to rescind or annul the transfer since an absolutely simulated or fictitious contract is void and non-existent.

39.9, 39.10 When a party refuses to yield possession of a property as ordered by a writ of execution, contempt is not the remedy. The sheriff must oust said party from the property but if demolition is involved, there must be a hearing on motion and due notice for the issuance of a special order under sec 10. A writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a habere facias possessionem and authorizes the sheriff, without need of securing a break open order, to break open the premises where there is no occupant therein.

39.11 The special judgment in this section is one which requires the performance of any act, other than the payment of money or the sale or delivery of real or personal property, which a party must personally do because his personal qualifications and circumstances have been taken into consideration. o Refusal to comply is punishable by contempt.

39.12 Levy act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale. If susceptible of appropriation, the officer removes and takes the property for safekeeping; otherwise, the same is placed under sheriffs guards. Without a valid levy having been made, any sale of the property thereafter is void.

FPL

CIVIL PROCEDURE

36

The judgment debtor must be served with notice of the levy, but even if not served therewith, this defect is cured by service on him of the notice of sale prior to the sale. If property involved is money, stocks or other incorporeal property in the hands of third persons, the act of appropriation by the sheriff is known as garnishment. o Garnishee will not be directed by the court to deliver the funds or property to the judgment creditor as the garnishment merely sets apart such funds but does not constitute the creditor as the owner of the garnished property. The preference given to a duly registered levy on attachment or execution over a prior unregistered sale is well-settled.

39.13 Family home is deemed constituted on a house and lot from the time it is occupied as a family residence and so long as any of its beneficiaries actually resides therein. Sophisticated tools of advanced technological designs with considerable value, such as power tools used in industrial or commercial concerns are not exempt. In addition to judgment creditors ordinary clothing, all other articles for his ordinary personal use, but excluding unessential or expensive items such as jewellery or sable and mink coats are exempted. Exemptions herein cannot be claimed if the judgment is for the recovery of the unpaid price of the article involved or for the foreclosure of a mortgage thereon. These exemptions must be claimed otherwise they are waived. It is not the duty of the sheriff to set off the exemptions on his own initiative. Other properties specially exempted from execution a. Property mortgaged to DBP b. Property taken over by the alien property administration c. Savings of national prisoners deposited with the postal savings bank d. Backpay of pre-war civilian employees e. Philippine government backpay to guerrillas f. Produce, work animals and farm implements of agricultural lessees, subject to limitation g. Benefits from private retirement systems of companies and establishments with limitations h. Laborers wages, except for debts incurred for food, shelter, clothing and medical attendance i. Benefit payments from SSS j. Copyrihts and other rights in intellectual property under PD 49 k. Bonds issued under RA 1000. 57.7 and 57.8 regarding other properties exempt from attachment, hence likewise exempt from execution.

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CIVIL PROCEDURE
39.14

37

The lifetime of the writ of execution corresponds to the period within which the judgment may be enforced by motion, that is, within 5 years from entry thereof since thereafter such judgment becomes dormant and subject to a revival action. o Within the period for its enforceability and from its receipt by the officer tasked with its enforcement, the officer shall make the periodic reports to the court as required by this section until the judgment is fully satisfied or becomes ineffective.

39.15, 39.16 The officer making the levy shall not be liable for damages to any third-party claimant if a bond to indemnify the latter has been filed. o The officers immunity from liability is only with respect to damages arising from his taking and keeping of the property claimed by the third party (official duty). Judgment oblige can also claim damages against a third-party claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the same or a separate action. Where a third-party claim has been filed in due for, the prevailing party can compel the sheriff to proceed by the filing of a bond to answer for damages that may be incurred as consequence of the execution. o On the other hand, if the sheriff proceeds with the sale without such bond, he will personally be liable for such damages as may be sustained by and awarded to the thirdparty claimant. When a third-party claim is contested, the court has the power to o fix the value of the property claimed by the third person so that a bond equal to such value may be posted by the judgment creditor to indemnify the sheriff against liability for damages o or examine the judgment debtor and otherwise perform such other acts necessary or incidental to carrying out its judgment. Where third-party claim has been disregarded by sheriff because of the bond filed by prevailing party, or if the court proceedings on said third party claim result in denial, the remedy of the third party is to file an independent reinvindicatory action against judgment creditor or purchaser at public auction. o He cannot appeal nor avail of certiorari as remedy since he is not a party. In action for damages upon the bond filed by the judgment creditor, the surety must be impleaded, otherwise the judgment therein cannot be enforced against the bond. o But an action against the surety is binding upon the principal if the latter had knowledge thereof and an opportunity to participate in the defense.

FPL

CIVIL PROCEDURE

38

The remedies of a third-party claimant, a summary hearing before the court which authorized the execution, or a terceria or third-party claim filed with the sheriff, or an action for damages on the bond posted by the judgment creditor or an independent reinvidicatory action are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of others. A separate case distinct form that in which the execution was issued is only proper if instituted by a stranger to the latter suit. o If the claim of impropriety is made by a party to the action, any relief therefrom may only be applied for and obtained from the executing court. Aggrieved spouse who is a pro forma party, is deemed to be a stranger to the main action.

39.17 A sale without the required notice is null and void and subjects the officer to liability for damages. The creditor who induced the sheriff to sell without notice will be solidarily liable as a tortfeasor. An execution sale made on the date after that fixed in the notice of sale is null and void. The said sale is also a nullity where requirement for posting of notices (39.15) is not complied with.

39.18, 39.19 The judgment creditor can bid and purchase at the public auction, but the officer conducting the execution sale or his deputy are disqualified. Other persons disqualified from participating in said public sale are enumerated in Art.1491 1. Guardian as to property of ward 2. Agents as to property administered or sale intrusted to them, except when principal consents 3. Executors and administrators as to property of estate 4. Public officers and employees as to property of state, subdivision, GOCCs, entrusted to them, shall apply to judges and govt experts who take part in the sale 5. Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, as to property in litigation or levied upon execution, applies to lawyers 6. Others specially disqualified by law It is provided that a seller of goods who exercises the right of resale is also disqualified from participating in a public sale of said goods The remedy against an irregular sale is a motion to vacate or set aside the sale to be filed in the court which issued the writ of execution.

39.20

FPL

CIVIL PROCEDURE

39

The measure of damages to which the judgment creditor is entitled against the lawful intervenor is the difference between the amount which would have been realized were it not for the illegal intervention and the total amount which he actually recovered on the judgment from all sources, including the amount actually realized at the auction sale, plus the expenses incurred as a consequence of illegal intervention.

39.21, 39.22 The officer may adjourn the sale from day to day if it is necessary to do so for lack of time to complete the sale on the date fixed in the notice. He may not adjourn the sale to another date unless with the written consent of the parties, otherwise the sale thus conducted will be null and void. When there is a third-party claim, the judgment creditor must pay his winning bid in cash. A writ of execution is an ejectment case may be enforced in the afternoon of a Saturday or after office hours.

39.23, 39.24, 39.25, 39.26 There is no right of redemption where the property sold at judicial sale is personal property. Where the property sold is real property the period of redemption is one year from and after the registration of the certificate of sale. o If said certificate of sale is not registered the period for redemption does not run. o Where parties agreed on the date of redemption, the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon. The certificate of sale of real property is merely a memorial of the fact of sale and does not confer any right to the possession, much less ownership of the real property purchased. o It is the deed of sale executed by the sheriff at the expiration of the period of redemption which constitutes effective conveyance of the property sold and entitles the purchaser to possession of the property sold. The clerk shall keep an execution book in which he or his deputy shall record at length in chronological order each execution, and the officers return thereon by virtue of which real property has been sold.

39.27, 39.28, 39.29, 39.30 Successor in interest includes a person to whom he has transferred his right of redemption or one to whom he has conveyed his interests in the property for purposes of redemption or one who succeeds to his interest by operation of law, or a person with a joint interest in the property, or his spouse or heirs. Redemptioner a creditor with a lien subsequent to the judgment which was the basis of the execution sale.

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CIVIL PROCEDURE
o

40

If the lien of the creditor is prior to the judgment under which the property is prior to the judgment under which the property was sold, he is not a redemptioner and therefore cannot redeem because his interests are fully protected, since any purchaser at public auction takes the property subject to such prior lien.

The right of redemption is transferable and may be voluntarily sold, but the said right cannot be levied upon by the judgment creditor so as to deprive the judgment debtor of any further righst to the property. Piecemeal redemption is allowed since in the redemption of properties sold at the execution sale, the amount payable is no longer the judgment debt but the purchase price. The judgment debtor has always one year from the registration of the certificate of sale within which to redeem, regardless of whether there have been any prior redemptions and the date of and the moment the judgment debtor redeems, there shall be no further redemption. The redemptioner on the other hand must redeem within the one year period if he is the first redemtioner, provided that the judgment debtor has not exercised his right of redemption. Where the properties of the defendant were duly attached and such preliminary attachment registered and annotated on the certificates of title thereto, said properties are in custodia legis. The periods for redemption in sec 28 are not extendible or interrupted. The parties however may agree on a longer period of redemption but in such case it would be a matter of conventional redemption and not the legal redemption. It has moreover been ruled that under a statute limiting the right of redemption, the pendency of an action brought in good faith and relating to the validity of the sale of the property involved, tolls the term of the right of redemption.

39.31, 39.32 During the period of redemption, the judgment debtor is entitled to the possession and to receive the fruits of the premises and is not required to pay rent to the creditor or purchaser. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption, and not to the purchaser or redemptioner.

39.33 The purchaser or redemptioner shall now be substituted for the judgment obligor upon the expiration of the right to redemption. o Consequently, he shall acquire all the rights, title, interests and claims of the judgment obligor to the property as of the time of the levy.

FPL

CIVIL PROCEDURE

41

The rule of caveat emptor applies to judicial sales of both real and personal property and the sheriff does not warrant the title of the property thus sold. o Nevertheless, a person dealing with registered land is charged with notice only of liens and encumbrances noted on the certificate of title. The right of the purchaser to the property retroact to the date of the levy. o Since the sale retroacts to the date of the levy, any disposition or lien in favour of third persons created by acts of the debtor after the levy on real property shall not be binding against the purchaser to whom a final deed of sale was subsequently issued. After the deed of sale has been executed, the vendee therein is entitled to a writ of possession but the same shall issue only where it is the judgment debtor or his successors in interest who are in possession of the premises. The writ shall issue where the period of redemption has expired. A writ of possession may be issued only in a 1. Land registration proceeding 2. In extrajudicial foreclosure proceeding 3. In judicial foreclosure if the debtor is in possession and no third person had intervened 4. [execution sales]

39.34 When the sale was not effective under the circumstances in this section, it was held that the purchaser ma a. Bring an file a motion in the same action/file a separate action against the judgment creditor for the amount paid by him at the judicial sale b. File a motion in the same action where execution was issued for the revival of the judgment in his name against the judgment debtor c. Bring an action to recover possession of the property sold to him at public auction

39.35, 39.36 The order for examination of the judgment obligor shall be issued only by the court which rendered the judgment.

39.37 As a matter of consideration to the obligor of a judgment obligor who is sought to be examined such examination is now required to be conducted by the court which issued the writ of execution, or by a commissioner appointed by it, within the province or city where such debtor resided or is found.

39.38, 39.39, 39.40, 39.41, 39.42, 39.43

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CIVIL PROCEDURE

42

Under sec 43, court may authorize the judgment oblige to bring an action against the person or corporation alleged to have property of the judgment debtor. This is an example of party authorized by statute to sue even if he is not the real party in interest (3.3) Although there may be instances wherein some of the foregoing proceedings supplementary to execution may not be conducted by the court which rendered the judgment (39.36, 39.37), it is still the court which rendered said judgment which should take the necessary measures to reach the properties of the judgment obligor by the issuance of an alias writ of execution. A case in which execution has been issued is regarded as still pending and the court which rendered the judgment has a general supervisory control over the execution proceedings with the right to determine every question of law or fact involved therein. o Only when the judgment has been fully satisfied does the same pass beyond review by said court. With regard to receivership as an aid to execution under sec 41 it has been held that provisions of rule 59 are applicable.

39.44, 39.45 Entry of satisfaction of the judgment shall be made in the court docket and in the execution book on the bases of a. Return of an execution satisfied by action of the sheriff in accordance with this rule b. An admission of the satisfaction of judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment oblige or his counsel c. The indorsement of such admission by the judgment creditor or his attorney on the face of the record of the judgment d. By order of the court, upon satisfactory proof of such satisfaction of judgment

39.46 The converse of this rule is not true because in order that the surety may be bound by the judgment against his principal, such surety must be impleaded in the action or given an opportunity to be hear, otherwise the writ of execution issued against the surety is void.

39.47 Res judicata is further referred to as the doctrine on preclusion of claims. Conclusiveness of judgment has the effect of preclusion only of issues, and is also referred to as the rule of auter action pendant. o Par a is the rule on res judicata in judgments in rem o Par b is the rule on res judicata in judgments in personam o Par c is the rule on conclusiveness of judgment

res judicata conclusiveness of judgment the parties and causes of action in both actions are the parties are the same but the causes of action identical or substantially the same are different

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CIVIL PROCEDURE

43

judgment in the first action is conclusive as to judgment in the first is binding only with respect to every matter offered and received therein and as the matters actually raised and adjudged therein to any other matter admissible therein and which might have been offered for that purpose absolute bar to a subsequent action for the same not a bar to another action between the same cause parties but on a different cause of action

Requisites for res judicata a. Former judgment or order must be final (and executory) b. Judgment or order on the merits, rendered after consideration of the evidence or stipulations submitted by the parties at the trial of the case (17.3, 16.5 = adjudication on the merits; SC dismissal of petition for review on certiorari through minute resolution) c. Rendered by a court having jurisdiction over the subject matter and the parties d. Between the first and second actions, identity of parties, of subject matter and of causes of action (substantially the same parties) There is identity of parties not only where the parties in both actions are the same, but also where the actions are between those in privity with them Res judicata does not apply where the second action is precisely to annul the judgment in the first action. The rule of res judicata applies to final decisions of quasi-judicial agencies. It also applies to judgments rendered in probate proceedings.

39.48 Par a is rule on foreign judgments in actions in rem Par b in actions in personam The judgment of a foreign tribunal cannot be enforced by execution in the Philippines o Such judgment only creates a right of action and its non-satisfaction, a cause of action and it is necessary that a suit be brought upon said foreign judgment in our local courts. In a suit upon foreign judgment against a person in our local courts, the defendant may interpose the defences in paragraph b. o If the defendant had also been a party to and actually participated in the proceedings in the foreign court, he is bound by the judgment therein and the doctrine of res judicata will apply to such foreign jdugment. Generally, the judgment of a foreign court is only presumptive evidence of a right on the party of the prevailing party and if suit thereon is brought in the Philippines, the same may be repelled by evidence of clear mistake of law.

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CIVIL PROCEDURE

44

While foreign judgments may be conclusive if in rem or presumptive if in personam, it is necessary that in either case a civil action should be filed in our courts, primarily to allow the losing party an opportunity to challenge the judgment on the grounds provided in said section and defend itself against the enforcement of that decision in the local forum. o That civil action is considered as one incapable of pecuniary estaimation.

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