Civil Procedure | 1 of 48
Civil Procedure
Compilation of Past Exam
Questions
1 General Principles
2 Jurisdiction and Venue
B Objective/General
What is jurisdiction?
Jurisdiction is the power of the
court to hear, try and decide a case. In its
complete aspect, jurisdiction includes not
only the power to hear and decide a case,
but also the power to enforce judgment.
2012 Inigo (1) 9
Distinguish jurisdiction from exercise of
jurisdiction.
Jurisdiction is the power or
authority of the court to hear, try and
decide a case. Exercise of jurisdiction
involves the actions involved to arrive at a
decision.
2012 Inigo (1) 10
What is original, concurrent and exclusive
jurisdiction?
Original jurisdiction is the power of
the court to take cognizance of a case at
its inception or commencement.
Concurrent jurisdiction is that
possessed by the court together with
another court over the same subject matter,
the court obtaining jurisdiction first retains
it to the exclusion of the others. But the
choice of court is lodged in those persons
duly authorized to file the action.
Exclusive jurisdiction is the
authority possessed by a court to take
cognizance of a case to the exclusion of
other courts.
2012 Inigo (1) 13-14
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Jurisdiction
Distinguish between Question of Fact and
Question of Law. What is the jurisdiction
of the Supreme Court as to the findings of
fact of the CA?
There is a question of law when the
doubt or difference arises as to what the
law is on a certain set of facts. There is a
question of fact when the doubt or
difference arises as to the truth or
falsehood of the alleged facts.
Generally, the Supreme Court is not
a trier of facts and as such, only questions
of law may be entertained by the Court in
petitions for review under Rule 45. Under
this rule, questions of fact are not
reviewable.
However, factual issues may be
delved into and resolved where the findings
and conclusions of the trial court or the
quasi-judicial bodies are functionally
inconsistent with the findings of the CA.
2014 Riano (1) 101, 108
Up to what stage of a civil action may the
issue of jurisdiction be raised?
It depends.
If it involves an issue of jurisdiction
over the subject matter, it may be invoked
at any stage of the proceedings even for
the first time on appeal as provided in
Calimlim v. Ramirez. If it involves
jurisdiction over the person of the
defendant, the object must be raised
either in the motion to dismiss or by way of
affirmative defense in the answer. Failure
to do so at this stage of the action would
constitute a waiver of the same.
Rule 16, Sec. 16; 2014 Riano (1) 88, 97
What is the jurisdiction of the RTC and MTC
in civil cases?
Regional Trial Courts shall exercise
exclusive original jurisdiction:
(1) Actions where subject of
litigation is incapable of
pecuniary estimation;
(2) Actions involving title to, or
possession of, real property
where the assessed value of the
property exceeds 20k (outside
MM) or 50k (in MM), except
actions for FE and UD which
jurisdiction is with the MTC;
(3) Admiralty and maritime actions
where claim or demand
exceeds 300k (outside MM) or
400k (inside MM);
(4) Matters of probate, both
testate and intestate, where
gross value of estate exceeds
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300k (outside MM) or 400k (in
MM);
(5) In all cases not within the
exclusive jurisdiction of any
court, tribunal or person
exercising judicial or quasi-
judicial functions;
(6) All other cases in which
demand, exclusive of interests,
damages, fees, litigation
expenses and costs or value of
property exceeds 300k (outside
MM) or 400k (in MM).
The Municipal Trial Courts exercise
exclusive original jurisdiction:
(1) Civil actions and probate
proceedings, testate or
intestate where the value of
estate does not exceed 300k
(outside MM) or 400k (in MM),
exclusive of interest, damages
of whatever kind, attorneys
fees, litigation expenses, costs;
(2) Cases of FE and UD, with
authority to pass on issue of
ownership to determine the
issue of possession if possession
cannot be resolved without
deciding the issue of
ownership;
(3) Cases involving title to, or
possession of, real property or
any interest therein where the
assessed value of the property
does not exceed 20k (outside
MM) or 50k (in MM).
BP 129 Sec. 19
P filed an action in the CA for mandamus
against D and also prayed for moral and
exemplary damages. Does the CA have
jurisdiction over the action?
Yes.
The law confers upon the CA
original and concurrent jurisdiction to issue
writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and
auxiliary writs or processes, whether or not
in aid of its appellate jurisdiction.
Jurisdiction over
Subject matter
A, a Manila resident, bought a color TV set
at the price of 15k on 24 monthly
installments from B Co., a Manila-based
appliance company. The transaction was
covered by a conditional sale contract. A
defaulted in his monthly installment
payments after having paid 5 such
installments. In what court may B Co. bring
the action to recover the TV set?
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In the MTC.
The law provides that the MTC shall
have jurisdiction where the value of the
personal property in controversy does not
exceed 200k. Since the case at bar is for
the recovery of personal property, it is
within the jurisdiction of the MTC.
P corporation filed an action against D in
the RTC to collect certain amounts of
money amounting to P 2 million on its claim
that D, while president of P corporation
and by using his position as such president
and through fraud and misrepresentation,
misappropriated and diverted to his
personal use these corporate funds. D
moved to dismiss the complaint on the
ground that it falls within the jurisdiction
of the Securities and Exchange Commission
(SEC). Rule on the motion to dismiss.
Motion to dismiss denied.
In the Securities Regulation Code of
2000, cases enumerated in Sec. 5 of PD no.
902-A have been transferred to the Courts
of general jurisdiction or the RTC. RTC has
now the jurisdiction to try cases involving
boards of directors, business associates,
officers or partnership committing fraud
and misrepresentation.
Sec. 5.2, Securities Regulation Code of
2000.
Jurisdiction over
the person
A filed an action against B to recover real
property located in Cogon Market, CDOC.
When the Sheriff served the summons on B,
he discovered that the tenant of the house
which B rented from C was no longer B but
D who informed the Sheriff that B left the
premises eleven months before. The Sheriff
went to C, the owner of the apartment,
who gave the sheriff the same information.
After one month, on the basis of
these facts, A filed a motion to declare B in
default for failure to file his answer. The
court granted the motion and allowed A to
present his evidence ex parte. Afterwards,
the court rendered judgment in As favor.
Seven months after, B, who had
already resided in Batac, Ilocos Sur because
of his wife who was a native of said place,
spent his vacation in CDOC, and he learned
from his friends that a decision was
rendered against him in a case involving his
real property located in Cogon Market,
CDOC.
(a) Bs lawyer filed an action with the
RTC to annul the judgment on the
ground that the court did not
acquire jurisdiction over his
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person. Do you agree with Bs
lawyer? Explain.
(b) Could B still file a petition for
relief of judgments? Reasons.
(c) Was the order of the Court in
declaring B in default tenable?
Why?
(d) Assume that B spent his vacation
in CDO 20 days after A filed his
action. B immediately filed a
motion to dismiss on the ground
that the court did not acquire
jurisdiction over his person and on
the ground that A had no cause of
action because A had already sold
the land to B which sale was
evidenced by an absolute deed of
sale executed by A in favor of B
and a copy of the document was
attached to the motion. If you
were the judge, how would you
resolve the motion.
(a) Yes, I agree with Bs lawyer.
The law provides that whenever the
whereabouts of a defendant are unknown
and cannot be ascertained by diligent
inquiry, service may, by leave of court, be
effected upon him by publication in a
newspaper of general circulation and in
such places and in such time as the court
may order.
In the case at bar, the jurisdiction
over the person of B was not acquired
because of the improper service of
summons. Since the trial court did not
acquire jurisdiction over the defendant,
the action should be annulled.
(b) No, B may not file a petition for relief
from judgment.
The Rules provide that the remedy
of petition for relief of judgment is only
available where the judgment was entered
through fraud, accident, mistake or
excusable negligence and the same must be
filed within 60 days after petitioner learns
of the judgment but not more than 6
months after the judgment was entered.
The facts show that the grounds for
petition for relief are not available in the
instant case and that 7 months has already
elapsed since the judgment was rendered.
Hence, petition for relief is not a remedy
available to B.
(c) No, the order of default is not tenable.
Given that jurisdiction over the
person of the defendant, B, was not
acquired in the instant case, it is void.
(d) [Bance] I will grant the motions.
The facts show that jurisdiction
over the person of the defendant has not
been acquired. Hence, there is a valid
ground to grant the motion to dismiss.
It is immaterial that B raised
another ground to dismiss the action for
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the same does not constitute voluntary
appearance. In La Naval Drug Corp v. CA,
the Court ruled that a defendant may raise
as many defenses, alternatively or
hypothetically and that it should not be the
invocation of available additional defenses
that should be construed as a waiver of the
defense of lack of jurisdiction over the
person of the defendant, but the failure to
raise the defense.
docket fees
What is the legal effect of the non-payment
of the docket fees in full?
Generally, the court does not
acquire jurisdiction over the subject matter
of the case. Therefore, the entire
proceedings of the case are null and void.
This is because the payment of docket fees
vest a trial court with jurisdiction over the
subject matter.
There were however instances
when the court has relaxed the rule and
held that the non-payment of docket fees
does not automatically cause the dismissal
of the case as long as the fee is paid within
the applicable prescriptive or reglementary
period.
Also, if the amount of docket fees
is insufficient, the party filing the case will
be required to pay the deficiency, but
jurisdiction is not automatically lost.
Action by P against D in the RTC for a sum
of money was sought to be dismissed by D
on the ground of prescription. The motion
to dismiss was denied and D brought a
special civil action for certiorari in the CA
against the order of denial of his motion to
dismiss. The CA dismissed the
petition. Then, D filed his answer, after
which trial was held and judgment
rendered against D. On appeal from this
judgment to the CA, D filed a motion to
dismiss the complaint on the ground of lack
of jurisdiction, alleging htat P had not paid
the appropriate docketing fees in the trial
court. Rule on the motion to dismiss.
Motion to dismiss denied.
Although the payment of the proper
docket fees is a jurisdictional requirement,
the court may allow the plaintiff in an
action to pay these fees within a
reasonable time before the expiry of the
applicable prescriptive or reglementary
period. It is when the plaintiff fails to
comply with this requirement that the
defendant should timely raise the issue of
jurisdiction or he would be considered in
estoppel.
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Here, D filed an answer and
participated in the proceedings before the
TC. It was only after judgment was
rendered against him that he raised the
issue of jurisdiction. While the lack of
jurisdiction may be raised at any stage of
an action, the party raising such question
may be estopped if he has actively taken
part in the very proceedings which he
questions and he only objects to the court's
jurisdiction because the judgment or
decision subsequently rendered is adverse
to him.
National Steel Corp. v CA
P sued D to compel the latter to execute a
deed of sale to him over a parcel of land
the purchase price of which had allegedly
already been fully paid by P. After his
motion to dismiss on the ground of
prescription was denied, D filed his answer
in due course and thence trial was held.
After trial, judgment was rendered against
D who then filed a motion to dismiss for
lack of jurisdiction on the ground that P did
not pay the correct docket fees which
should have been assessed on the basis of
the value of the property and damages
sought and not on the basis of the action as
one for specific performance when it was
actually for recovery of property. Rule on
the motion to dismiss.
Motion to dismiss denied.
In the first place, the action is
really for recovery of real property and not
for specific performance since P's primary
objective is to regain the ownership and
possession of the parcel of land. In the
second place, it was held that while the
payment of the required docket fee is a
jurisdictional requirement, even the
nonpayment at the time of filing does not
automatically cause the dismissal of the
case, as long as the fee is paid within the
applicable prescriptive or reglementary
period.
If the amount of docket fees is
insufficient considering the amount of the
claim, the party filing the case will be
required to pay the deficiency, but
jurisdiction is not automatically lost.
Thirdly, the motion to dismiss came too
late. D is already estopped from raising the
issue of jurisdiction after he had actually
taken part in the very proceedings which he
questions and after the court had rendered
a judgment adverse to him.
Riano (1) 350; National Steel Corp. v. CA
In civil cases, where should the appellant
pay the appellate court docket fee and
what is the effect of non-payment of such
fee?
The appellant shall pay to the clerk
of the court which rendered the judgment
or final order appealed from the full
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amount of the appellate court docket and
other lawful fees. Proof of payment thereof
shall be transmitted to the appellate court
together with the original record or the
record on appeal, as the case may be.
Non-payment of such fee is a
ground for the dismissal of the appeal by
the trial court
Rule 40, Sec. 5 and Rule 41, Sec. 4,
Riano (1), 650-651
Venue
What is the venue of actions against non-
resident defendants?
If any of the defendants does not
reside and is not found in the Philippines,
and the action affects the personal status
of the plaintiff, or any property of said
defendant located in the Philippines, the
action may be commenced and tried in the
court of the place where the plaintiff
resides, or where the property or any
portion thereof is situated or found.
Rule 4, Sec. 3
A entered into a lease contract with B
whereby A leased his house in CDO to B. It
was stipulated in the lease contract that if
A should violate the contract, he should be
sued in Opol, Misamis Oriental, and if B
should violate the contract, he should be
sued in Tagoloan, Misamis Oriental.
One year after the contract of
lease was executed, B failed to pay the
rentals for 6 months, so A filed an action
for unlawful detainer in MTC of Tagoloan.
Bs lawyer believes that the MTC of
Tagoloan has no jurisdiction over the case
because the property is located in CDO,
and the stipulation is contrary to Section 1,
Rule 4 of the Rules of Court as amended,
therefore, it is void.
Is Bs lawyer correct? Explain.
No, Bs lawyer is not correct.
Jurisprudence provides that when
parties agree on the venue of actions other
than those found in the Rules, the
stipulated venue is considered merely an
additional to that already prescribed by law,
unless the stipulations contain restrictive
words which show the intention of the
parties to limit the place stipulated as the
exclusive venue.
In the case at bar, the parties did
not use restrictive words to signify their
intention to make the stipulated venues
exclusive. Therefore, the action may filed
in any of the three venues: Tagoloan or
Opol, as stipulated and CDO.
2012 Inigo (1) 132; Polytrade v. Blanco
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A and B, both residents of Batangas,
entered into a Contract of Lease over a
parcel of land belonging to B located in
Cebu City. A filed a complaint before the
RTC in Batangas for the rescission of the
lease. B filed a motion to dismiss on the
ground that the Batangas Court did not
have jurisdiction over the subject matter,
the land being located in Cebu City.
Resolve the motion.
The motion is tenable.
The Rules provide that actions
affecting title to or possession of real
property, or interest therein, shall be
commenced and tried in the proper court
which has jurisdiction over the area
wherein the real property or a portion
thereof is situated.
Although the action brought by A is
captioned as one for rescission, it is
fundamentally one that involves an interest
over a real property and hence, may only
be instituted in the place where the real
property or a portion thereof is located.
Rule 4, Sec. 1
A agreed to sell to B for 500k on
installment basis a parcel of land located in
Camiguin. A is a resident of Malaybalay and
B of CDOC. In the contract to sell executed
by A and B among the stipulations were
that title to the land should pass to B only
after the purchase was fully paid and that
after full payment, A would execute a deed
of absolute sale in Bs favor. After paying 2
installments but before full payment of the
purchase price, B requested that the land
be resurveyed to determine the actual area
of the land which was along the beach. A
agreed and after resurvey, it was found
that because of natural erosion caused by
the waves of the sea, the area of the land
described in the Certificate of Title was
reduced by 20%. B wanted that the
purchase price be reduced also by 20%. And
the trouble began.
(e) After paying 80% of the purchase
price, B demanded that A
execute a deed of absolute sale
as agreed upon in the contract to
sell. A refused saying that B
should pay first the balance of
20%. B filed in Camiguin an action
against A for the latter to
execute the absolute deed of sale.
A filed a motion to dismiss on the
ground of improper venue arguing
that the motion was in personam
therefore must be filed in
Bukidnon where he resided.
Supposing you were the Judge,
how would you rule on the
motion?
(f) Instead of filing a motion to
dismiss, A filed his answer and
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set up the counterclaim that his
contract with B be rescinded for
Bs failure to pay the entire
amount of the purchase price. Is
the counterclaim set up by A
permissive or compulsory? Explain.
(g) The action referred to above was
filed with the RTC, but at the
time it was filed the balance of
20% amounted to 100k. A filed a
motion to dismiss on the ground
that the court had no jurisdiction
since the balance of the purchase
price was only 100k. Is the
motion tenable? Why? Would your
answer be the same if at the time
the action was filed the balance
was 300k? Why?
(h) Suppose that after the execution
of the contract to sell, B
immediately occupied the land
and built a beach house. Suppose
also that after B demanded the
reduction of the purchase price
by 20%, A wanted to file an
action first to recover possession
of the land. Suppose also that the
20% balance amounted to 100k.
In what court should the action
be filed? Explain.
(i) Referring to question d, after A
filed an action to recover
possession of the land , B filed an
answer with counterclaim set up
prayed that A be ordered to
execute the deed of absolute sale
mentioned in the contract to sell.
Is the counterclaim permissive or
compulsory? Explain.
(j) Referring to question A above,
after B filed his complaint, the
sheriff served the summons on A
through As brother who lived in
Hubangon. As brother after
receiving the summons left for
Russia and stayed there for 6
months. Apparently, As brother
forgot about the summons
because one month after, B, with
notice to A, filed a motion to
declare A in default for failure to
file an answer and to render
judgment on the basis of the
complaint. The judge granted the
two motions, and in the judgment
of the judge ordered A to return
to B all the payments made by
him plus interest of 30% per
annum until the entire amount
shall have been fully paid.
1) Was the order of the
judge declaring A in
default valid? Explain.
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2) Assuming that the order
was valid, was the
judgment rendered by
the court valid? Explain.
(a) The motion to dismiss should be denied.
While the action may seem like an
action for specific performance to compel
A to execute a Deed of Sale, the facts show
that the ultimate purpose of the action is
title to the real property. Hence, this is a
real action for it affects title to or interest
in real property which under the Rules must
be commenced and tried in the place
where the real property or a portion
thereof is situated.
The property being located in
Camiguin, the RTC of Camiguin is thus the
proper venue for the action.
(b) It is a compulsory counterclaim.
A compulsory counterclaim is one
which arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing partys
claim and does not require for its
adjudication the presence of third parties.
Since As counterclaim arises out of
the same transaction the transaction
covered by the Contract to Sell and only
involves A and B, his counterclaim is
compulsory.
(c) No, the motion is not tenable.
In real actions, it is the assessed
value of the land which determines
jurisdiction. The action was not for the
recovery of the unpaid balance but for the
execution of the sale which would have the
effect of ownership of the property.
Therefore, the assessed value of the land
would determine which court has
jurisdiction and not the unpaid balance.
The value of the land being 500k, it is well
within the jurisdiction of the RTC and the
fact that the unpaid balance is only 100k is
immaterial.
Yes, my answer would be the same
even if the balance is 300k as it is the
assessed value of the land which is the
basis for determining jurisdiction in real
actions.
(d) The action should be filed in the RTC of
Camiguin.
The Rules provide that the RTC has
exclusive and original jurisdiction over
actions involving title to or possession of
real property where the assessed value
exceeds 20k.
(e) The counterclaim is compulsory for it
arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing partys
claim and does not require for its
adjudication the presence of third parties
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of whom the court cannot acquire
jurisdiction.
Since Bs claim arises out of the
same transaction and only involves A and B,
then the claim is compulsory.
(f)
(1) Yes, the order of the judge in
declaring A in default was valid.
The Rules provide that if
the defending party fails to answer
within the time allotted the court
shall, upon motion of the claiming
party, with notice to the defending
party, and proof of such failure,
declare the defending party in
default.
(2) No, the judgment rendered by
the court is not valid.
The Rules provide that a
judgment rendered against a party
in default shall not exceed the
amount or be different in kind from
that prayed for nor award
unliquidated damages.
There being no showing
that the 30% interest was prayed
for, the judgment should not have
included the same.
Comment [Bance]:
This question was probably asked
before the 1997 Rules, meaning, during
such time when actions involving title to
real property is within the exclusive
jurisdiction of the RTC. Hence, this
question would have been easily answered
by emphasizing that this is a real action,
not a personal action, and hence within the
jurisdiction of the RTC.
The problem with the question now
is that it only provides that the parties
agreed to pay P500k. Under the present
rules, the assessed value is needed to
determine jurisdiction. P500k is not the
assessed value, it is merely the fair market
value which cant be the basis for
determining jurisdiction.
Bottomline: the facts really do not
provide which court has jurisdiction.
Advice: Read with extra caution.
P sues D in RTC Manila to recover 100k and
a parcel of land located in Manila. P is a
resident of Manila while D is a resident of
Quezon City. D moves to dismiss on the
ground of lack of jurisdiction. Decide.
Motion should be denied.
The Rules provide that a party may
assert in one pleading as many causes of
action provided that, among others, where
the causes of action are between different
venues or jurisdictions, the joinder may be
allowed in the RTC provided one of the
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causes of action falls within its jurisdiction
and the venue lies therein.
Since the action involves the
recovery of a real property, this is a real
action which must be instituted in the
place where the property is found. The
claim for 100k may be properly joined with
the claim for recovery of real property.
Hence, the action is properly filed with the
RTC of Manila.
Comment [Bance]:
Caution. This problem does not
state the assessed value of the real
property. This was probably asked before
the 1997 Rules.
If the assessed value is given, it
should be within the jurisdictional amount
of the RTC or MTC to confer jurisdiction.
Last February 1990, T died in Quezon City,
his place of residence, leaving a will. May
the RTC of Bulacan take cognizance of the
petition for the probate of his will even if
he left no property in Bulacan?
No.
While the Rules allow for parties to
stipulate on venue, the Rules however
expressly provide that in the settlement of
the estate of the deceased, the same shall
be filed at the place where the deceased
was a resident at the time of his death, or
in the case of an inhabitant of a foreign
country, in the place where he has any
estate.
P, a resident of Manila, sued D, also a
resident of Manila, in the RTC-QC to collect
P500,000.00 based on a promissory note.
The RTC-QC dismissed the action motu
proprio on the ground that the parties,
being both residents of Manila, it has no
jurisdiction over the case. Is the dismissal
correct?
No, the matter of residence is one
of venue only and not of jurisdiction. A
court may not dismiss an action motu
proprio on the ground of improper venue as
it is not one of the grounds wherein the
court may dismiss an action motu proprio
on the basis of the pleadings.
Unless and until the defendant
objects to the venue in a motion to dismiss,
the venue cannot be truly said to be
improperly laid, because the venue,
although technically wrong, may be
acceptable to the parties for whose
convenience the rules on venue have been
devised.
Riano (1) 208-209;
Guzman v Batario
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Banta was an operator and owner of JB
Buslines. He resided in Iligan City but the
offie was in CDO. Dongo was a Filipino and
a resident of Butuan before he went to
America. In December 1996, Dongo went to
Butuan for a vacation. During the vacation,
he went to Iligan City driving his own car.
While he was in Marcos Bridge in CDO, a
bus of Banta bumped him causing damages
to the car and to him.
Dongo, represented by his attorney-
in-fact because he had already returned to
America, filed an action for damages
against Banta in the RTC of Butuan. Banta
filed a motion to dismiss on the ground of
improper venue contending that the action
should have been filed in Iligan City where
he resided. Rule on the motion.
The motion is tenable.
The Rules provide that all personal
actions may be commenced and tried in the
court where the plaintiff or any principal
plaintiff resides or where the defendant or
any of the principal defendant resides, at
the election of the plaintiff.
In the case at bar, the plaintiff is a
non-resident, having been in Butuan only
for a vacation. Since the plaintiff is a non-
resident, the proper venue for the action is
in Iligan City where the defendant resides.
Baritua v. CA
[Note] This was already asked in Midterm
Exam.
3 Actions, Causes of Action
and Parties
1 Objective/General
Define the following:
(a) Civil action
(b) Special proceeding
(c) Action in personam
(d) Action in rem
(e) Action quasi in rem
(f) Real action
(g) Personal action
(h) Mixed action
(i) Transitory action
(j) Local action
(k) Right of action
(l) Cause of Action
(m) Venue
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(a) A civil action is one by which a party
sues another for the enforcement of a right,
or the prevention or redress of a wrong.
(b) A special proceeding is a remedy by
which a party seeks to establish a status, a
right, or a particular fact.
(c) An action in personam is one which
seeks to enforce personal rights and
obligations brought against the person. In
an action in personam, no one, other than
the defendant, not the whole world, is
sought to be held liable.
(d) An action in rem is an action where the
object of the suit is to bar indifferently all
who might be minded to make an objection
of any sorts against the right sought to be
established. The judgment is binding
against the whole world.
(e) An action quasi in rem is one directed
against an individual named as defendant
and the purpose of which is to subject his
property to the obligation or lien burdening
it.
(f) A real action is one affecting title to, or
possession of, real property.
(g) A personal action is one which does not
involve title to, or possession of, real
property.
(h) A mixed action is one where there is a
mixture of real and personal action, but is
reducible to neither of them.
(i) A transitory action is one which
generally depends on the residences of the
parties, usually at the option of the
plaintiff.
(j) A local action is one which has to be
instituted in a particular place
independently of the residences of the
parties.
(k) A right of action is the right of the
plaintiff to bring an action and to prosecute
that action to final judgment.
(l) A cause of action is an act or omission
committed by which a party violates a right
of another.
(m) Venue is the place, or the geographical
area in which a court with jurisdiction may
hear and determine a case.
May a personal action be an action in rem?
May a real action be an action in personam?
Yes. A personal action is not
necessarily an action in personam. Nor is a
real action, necessarily an action in rem.
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An in personam or an in rem action
is a classification of actions according to
the object of the action. A personal and
real action is a classification according to
foundation.
Hence, an action to recover title to
or possession of real property is a real
action but it is an action in personam for it
is brought against the person upon whom
the claim is made and not the whole world.
While an action for the declaration of
nullity of marriage is a personal action
because it is not founded on real property
but it is an in rem action because the issue
of the status of a person is one directed
against the whole world.
Distinguish cause of action and right of
action.
(a) A cause of action refers to the act
or omission committed by the
defendants, while right of action
refers to the right of the plaintiff
to institute the action;
(b) A cause of action is determined by
the pleadings, whereas a right of
action is determined by the
substantive law;
(c) A right of action may be taken
away by running of the statute of
limitations, by estoppel or other
circumstances; which do not at all
affect the cause of action;
(d) There is no right of action where
there is no cause of action.
What are the elements of cause of action?
The elements are as follows:
(a) the legal right of the plaintiff;
(b) the correlative obligation of
the defendant to respect that
right;
(c) an act or omission on the part
of the defendant constituting a
violation of said legal right.
2012 Inigo (1) 82; 2014 Riano (1) 232
State the totality rule in determining the
jurisdiction of civil actions.
The totality rule states that where
claims in all the causes of action are
principally for the recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction.
Rule 2, Sec. 5(d)
Actions
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In rem v. In personam
X filed an action for reconveyance and
cancellation of Torrens Title against Y, who
had been living abroad for many years and
who was already six feet under the ground
when the suit was filed. Summons by
publication to Y or to his estate was
directed by the trial court. Despite the
publication, Y did not file his answer. A
decision was rendered in favor of X and it
was served by publication.
A son of Y learned of the case and
filed a petition to set aside as null and void
the decision for lack of jurisdiction. X
oppose the petition contending that an
action for cancellation of title was quasi in
rem and that service of summons by
publication could be allowed considering
that Y was a non-resident of the Philippines.
Is the contention tenable? Explain.
The contention is untenable.
An action to recover a parcel of
land is a real action since it involves title to
or possession of real property but it is also
an action in personam for it binds only a
particular individual. The action being in
personam, jurisdiction over the person of
the defendant is necessary for the court to
validly try and decide a case against him.
Summons by publication in actions in
personam will not enable the court to
acquire jurisdiction over the person of the
defendant, except when: (a) the identity
and/or whereabouts of the defendant are
unknown or (b) if he is a resident defendant
temporarily out of the country.
In the case at bar, Y does not fall in
any of the exceptions, as he is a non-
resident defendant. Hence, jurisdiction
over his person could not have been
acquired through summons by publication.
Furthermore, as enunciated in
Ching v. CA, a defendant who has already
died could not have been validly served
with summons as he has no more civil
personality. It was lost through his death.
2014 Riano (1) 229-231; Ching v. CA
Causes of Actions
Joinder of CoA
Suppose you are the counsel for D who is
sued in the MTC for unlawful detainer and
on a P50,000 PN, what would be your
proper and effective procedural recourse?
I will move for the severance of one
cause of action given that there is a
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misjoinder of causes of action. The Rules
provide that joinder of causes of action is
allowed provided that the joinder shall not
include special civil actions or actions
governed by special rules.
The action for UD being a special
civil action, it should not be joined with
the collection for sum of money.
May P properly and correctly file a
complaint in the RTC against D to recover
P1 Million based on a promissory note and
another P1 Million based on tortious
interference with contract, and for
foreclosure of a real estate mortgage to
secure a loan of P5 Million?
No, P may only join the actions
arising out of the PN and the contract, but
not the foreclosure of real estate mortgage.
The Rules provide that a party may
plead as many causes of action as he may
have against an opposing party but that the
joinder shall not include special civil
actions or actions governed by special rules.
In the case at bar, P may join the
complaint to recover 1M based on the
promissory note and the 1M based on the
tortious interference with a contract.
However, the foreclosure of a real estate
mortgage is misjoined, since foreclosure is
governed by special rules, and should be
severed and proceeded with separately.
Rule 2, Sec. 5-6
P, a resident of Manila, filed a complaint
against D, a resident of Iloilo, in the RTC-
Manila. This complaint contains 2 causes of
action, one for money, and the other for
title to real property in Baguio, both causes
of action arising out of the same
transaction between the parties. Is there
anything procedurally wrong with the
complaint?
Yes.
While the Rules allow for the
joinder of causes of action, the same
requires that where the causes of action
pertain to different venues or jurisdictions,
the joinder may be allowed in the RTC
provided that one of the causes of action
falls within the jurisdiction of said court
and the venue lies therein.
While joinder of causes of action is
allowed, it is however subject to the rules
on jurisdiction and venue. In the case at
bar, the action for money may be tried in
Manila or Iloilo, the residence of the
plaintiff or defendant at the plaintiffs
election; while the action for title to real
property may only be brought in Baguio
where the real property is located.
Hence, joining the causes of action
is procedurally infirm.
Mijares v. Piccio
In an action of recovery of sum of money
based on obligation, the prayer included
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payment of 2nd obligation which has not
yet expired. Proper?
No, it is not proper. If the
obligation has not yet expired, no cause of
action accrues. Praying to include payment
of the obligation which has not yet expire is
premature, which should be dismissed by
the court upon proper motion seasonably
filed by the defendant. However, if the 1st
obligation and the 2nd obligation arose
from a single contract with an acceleration
clause, then the prayer including the 2nd
obligation is proper.
Inigo(1) 84, 90
Splitting cause of
action
Hibok-Hibok Corporation had a contract
with Mantique Corporation under which
Hibok-Hibok would construct for Mantique a
hotel and restaurant in Mahinog. Mantigue
required Hibok-Hibok to put up a
performance bond with Catarman Insurance
as the surety.
Hibok-Hibok however, failed to
finish the hotel restaurant on time, and
besides Mantique discovered that materials
used were substandard. Mantique filed two
actions: one action was for breach of
contract and damages against Hibok-Hibok
and lodged with Branch 1 of RTC Camiguin.
The other was against Catarman Insurance
on its liability under the performance bond,
and lodged with Branch 2 of the same court.
If you were the lawyer of Catarman
Insurance, what would you do?
If I were the lawyer of Catarman
Insurance, I would move for the dismissal of
the case
Aga filed an action for forcible entry
against Nino. During the pendency of the
case, Nino filed an action against Aga to
quiet title on the property involved in the
forcible entry case. Nino then filed a
motion to dismiss the forcible entry case on
the ground of litis pendencia because of his
action to quiet title filed against Aga.
(a) Rule on the motion.
(b) Supposing it was Aga who filed the
motion to dismiss, will the same
prosper?
(c) Supposing the property involved in
these cases for forcible entry and
quieting of title was located in
Velez, CDO and its value was not
less than 16M. In what court should
the two cases be filed? Explain.
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(a) No, the motion will not prosper.
Litis pendencia, as a ground for
dismissal, exist where there is another
action pending between the same parties
for the same cause of action.
While indeed there is a pending
action between the same parties in the
instant case, this is not for the same cause
of action. Quieting of title is founded on
ownership, while forcible entry tackles with
possession.
Hence, there is no same cause of
action in the instant case to warrant
dismissal of the same.
(b) The motion will still be dismissed.
There is still no splitting of cause of
action as the causes of action of Aga and
Nino are different one is founded on
possession, and the other on ownership.
The two actions are distinct and
separate and thus, may continue
irregardless of the existence of the other
action.
(c) The action for forcible entry shall be
filed in the MTC of CDO since the law
provides that MTCs shall have exclusive and
original jurisdiction over actions involving
forcible entry and unlawful detainer. Given
that the subject matter falls within the
jurisdiction of the MTC, the case should be
filed therewith regardless of the amount of
the property.
The action for quieting of title
however, being in the nature of an action
involving title or possession of a real
property, requires perusal of the assessed
value to determine jurisdiction. Given that
the assessed value exceeds 20k, the same is
within the jurisdiction of the RTC of CDO.
[Note] This was already asked in Midterm
Exam.
Parties
Real Party in Interest
Juan Tiu imported a fertilizer from Taiwan.
The fertilizer was shipped on board and this
was insured by Luxury Insurance against all
risk at the port of departure under a
marine policy with a note at a lower left
side stamped the name of Bell Corp. as
claim agent. When the cargo arrived at
Manila, some portion was in bad condition.
Tiu then filed with Bell Corp. a formal
statement of claim with proof of loss and
demanded for settlement corresponding to
the value of the damage portion. After
conveying the claim to its principal who
refused to pay the claim, Bell Corp.
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informed Tiu could not be paid. Tiu filed an
action against Luxury and Bell. Bell filed a
motion to dismiss contending that it was
merely a claim agent of the insurance
company and therefore, was not a real
party in interest. Bell Corp also contended
that Tiu had no cause of action against it
because it did not take part in the marine
insurance. Are the two contentions
tenable?
Yes, the contentions of Bell Corp.
are tenable.
Under the Rules, every action must
be prosecuted or defended in the name of
the real party in interest. In the case of
Smith-Bell v. CA, the Court ruled that
Smith-Bell being a mere agent and
representative, it is not the real party in
interest.
As can be gleaned from the facts,
Bell Corp. was not even party to the
contract of insurance and was merely the
claim agent. Bell Co. is improperly
impleaded in the action and should be
dropped from the case.
A, owner of an improved city lot, leased
the same to B. While B is in possession, he
was dispossessed by C. B, therefore, filed
an action against C to recover
possession. C contested upon the ground
that B, not being the owner of the land, is
not the real party in interest. Is C's
contention correct?
If the action filed is for forcible
entry wherein the issue is only possession
de facto, B, as the lessee, has a right of
action against C to recover the same. B is
a party in interest in the sense that he has
a present substantial interest in the land,
the possession of which he had been
deprived.
A complaint entitled A as attorney-in-fact
for X, plaintiff, versus B, defendant was
filed to recover a car in Bs possession. As
power of attorney expressly authorized A to
sue for the recovery of the car. B files a
motion to dismiss the complaint for lack of
capacity to sue. Rule on the motion.
The motion to dismiss on the
ground of lack of capacity to sue is an
incorrect ground to invoke; hence it should
denied.
The correct ground would be is
that the claim states no cause of action.
The real party in interest is the principal,
the owner of the property. A is only an
attorney-in-fact. An attorney-in-fact cannot
use in his own name because he is not the
real party in interest. There is no cause of
action in favor of the agent as the cause of
action is with the principal.
2012 Inigo (1) 325
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Joinder of Parties
A brought an action against X and Y in one
complaint before the RTC of CDO. As his
first cause of action, A alleges that X
purchased from him on various occasions
premium rice worth 150k but refused to
pay the said amount despite several
demands. As his second cause of action, A
alleges that Y likewise purchased from him
on various occasions ordinary rice worth
180k but refused to pay the said amount
despite repeated demands. The total
amount of As demand against X and Y is
330k. Both X and Y now separately move to
dismiss the complaint on the ground that
the RTC has no jurisdiction over the case.
How would you resolve the two motions?
I will grant the motions to dismiss.
The Rules provide that a party
joining the causes of action must comply
with the rules on joinder of parties which
require for permissive joinder of parties,
the right to relief must arise out of the
same transaction or series of transactions
and there must be a question of law or fact
common to all such defendants.
In the case at bar, the joinder may
not be permitted because the cause of
action arose from two different transaction
and involves questions of facts that is not
common to X and Y. Since X and Y may not
be joined as parties, the case must proceed
separately and the totality rule may not be
applied.
Thus, the individual amount of
demand and not the aggregate amount
would determine jurisdiction. The claim
against X and Y both not exceeding 300k,
the case is not within the jurisdiction of the
RTC but the MTC.
Rule 3, Sec. 5
P, a Manila resident, filed a collection
action against C and D in RTC Manila,
alleging a total claim of P230,000
(P180.,000 for principal and P50,000 for
attorney's fees) against C based on a
promissory note and a claim of P100,000
against D based on the unpaid purchase
price of goods delivered. Both C and D
moved to dismiss for lack of jurisdiction.
Rule on both motions to dismiss.
The motions should be granted.
While the totality rule allows for
the aggregate amount claimed to be the
test of jurisdiction, the two causes of
action however cannot be joined. The Rules
state that the joinder of causes of action
must comply with the rules on joinder of
parties. For there to be a joinder of parties,
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the right to relief must arise out of the
same transaction or series of transaction
and there must be a question of law or fact
common the persons being joined.
Given that both requisites are
absent, the actions cannot be joined and
must be proceeded with separately. The
actions must be instituted in the MTC, not
the RTC, which has jurisdiction over actions
or claims not exceeding 300k.
D purchased a car from P, a car dealer, on
installments and secured the purchase
price balance (covered by a promissory
note) with a chattel mortgage on the
car. While the purchase price was not yet
fully paid and the mortgage on the car still
existing, D sold the car to E. With D having
defaulted on the payments, P, seeking to
foreclose the chattel mortgage, sued out a
writ of replevin against D and E, but since D
could no longer be served with summons, P
moved to drop D as defendant. Rule on P's
motion to drop D.
The motion to drop D as defendant
cannot be granted without dismissing the
complaint because D is an indispensable
party. The replevin suit is anchored on Ps
alleged right to possess the car and which
right in turn is founded on the alleged
default of D.
If the case against D is dismissed,
there would be no remaining cause of
action against E. Ps right to possess the car
is conditioned on Ds actual default and
this default cannot be established in Ds
absence.
Servicewide Specialists v. CA
P sued A, B, C and D to recover from each
of them different pieces of jewelry which
were allegedly delivered to each of them as
a commission agent of the plaintiff. The
jewelries were delivered on different
dates. If you were counsel for all the
defendants, what would be your proper
recourse?
I would ask that all but one
defendant be dropped from the complaint
because the defendants are mis-
joined. The plaintiff's claim against each of
the defendants did not arise from the same
transaction or series of transactions and
there is no question of fact or law common
to each of them. Each claim therefore is a
separate cause of action.
Gacula v Martinez, 88 Phil 142
Indispensable/Necessary
Parties
Spouses Lucy and Richard filed a petition
for the adoption of Ara, the minor child of
Spouses Morato and Armina. After the filing
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of the petition, Ara killed her playmate,
Alma. Almas parents sued Spouses Lucy
and Richard and Spouses Morato and Armina
for damages.
(a) Are Lucy and Richard
indispensable parties?
(b) Are Morato and Armina
indispensable parties?
(a) No, Lucy and Richard are not
indispensable parties.
The law provides that a minor may
sue or be sued only with the assistance of
his father, mother or guardian, or if he has
none, a guardian ad litem. In the case at
bar, the spouses have not yet been
judicially declared the parents or guardians
of Ara. Hence, they are not indispensable
parties.
(b) Yes, Morato and Armina are
indispensable parties.
As the Rules require that a minor
may only be sued with the assistance of his
father, mother, guardian, or if he has none,
guardian ad litem, the parents of the minor
are then indispensable parties to the action.
Given that there was no judicial
approval of the petition for adoption yet,
Ara remains under the care and custody of
her parents, who are, in contemplation of
law, indispensable parties which must be
included in the case.
What is the effective recourse of the
defendant where the plaintiff did not
implead an indispensable party?
Defendant should move for an order
directing the plaintiff to amend its
complaint by impleading the indispensable
party. Upon plaintiffs failure or refusal to
obey this order, the action should be
dismissed.
Rule 17, Sec. 3; National Dev. Corp v. CA
Substitution of parties
Plaintiff filed a petition for mandamus to
compel the then municipal mayor to issue
to him the municipal license and permit to
resume operations of his cockpit. Pending
the action, the mayor was dismissed from
office. After trial, the court issued the writ
of mandamus and adjudged defendant
mayor liable for damages. In due course,
the sheriff levied execution of the
judgment for damages on defendant
mayor's properties. Is the levy valid?
The levy is void because the
judgment is void and without any legal
effect.
The judgment is void because there
was no substitution, pursuant to the Rules
of the defendant mayor and the filing of a
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supplemental pleading showing that the

defendant mayors successor had adopted A pleading is verified by an
or continued the defendant mayors policy affidavit that the affiant has:
to deny the cockpit license. (a) read the pleading; and
Galvez v. CA (b) that the allegations therein are
true and correct
P filed an action against D for unlawful a. of his personal
detainer with the MTC on the ground of knowledge or
non-payment of rent. After D filed his b. based on authentic
answer, and while the case was still records.
pending, D died. Thereafter, Ds heirs
continued, without any formal substitution, A pleading required to be verified
with the case and presented their position which contains:
paper for the defendant. (a) a verification based on
After due hearing, the MTC information and belief or
rendered judgment, ordering Ds heirs to upon knowledge, information
vacate the premises. After this judgment and belief; or
became final and executory, Ds heirs filed (b) lacks a proper verification
an action in the RTC to annul the judgment
on the ground that it was rendered without shall be treated as an unsigned
jurisdiction over Ds heirs, there having pleading.
been no formal substitution of parties. Is Rule 7, Sec. 4
the petition to annul the MTC decision
tenable? State the rule on forum shopping.
The certification against forum
No. shopping is a sworn statement certifying to
Jurisdiction over the person was the following:
acquired by the voluntary appearance of 1) That the party has not
Ds heirs in the action. commenced or filed any claim
The lack of a formal substitution involving the same issues in any
does not invalidate the judgment where the court, tribunal or quasi-judicial
heirs themselves appeared before the trial agency and, to the best of his
court, participated in the proceedings knowledge, no such other
therein, and presented evidence in defense action or claim is pending;
of the deceased defendant. 2) That if there is such other
Vda de Salazar v. CA pending action or claim, a
complete statement of the
present status thereof; and

4 Pleadings and Motions

3) That if he should thereafter
learn that the same or similar
action or claim has been filed
or is pending, he shall report

3 Objective/General
that fact within 5 days to the
court where his complaint or
initiatory pleading has been
filed.

1
What does the signature of counsel in a
pleading constitute?
Failure to comply with
requirements shall not be curable by mere
amendment of the complaint or other
the

initiatory pleading but shall be cause for

The signature of counsel
constitutes a certificate by him:
(a) That he has read the pleading;
(b) That to the best of his
knowledge, information and
belief, there is good ground to
support it; and
(c) That it is not interposed for
delay.
Rule 7, Sec. 3
State the rule on verification of a pleading.
Except when otherwise specifically
required by law or rule, pleadings need not
be under oath, verified or accompanied by
an affidavit.
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the dismissal of the case without prejudice,
unless otherwise provided, upon motion
and after hearing.
The submission of a false
certification or non-compliance with any of
the undertakings shall constitute indirect
contempt of court, without prejudice to
the corresponding administrative and
criminal actions. If the acts of the party or
his counsel clearly constitute willful and
deliberate forum shopping, the same shall
be ground for summary dismissal with
prejudice and shall constitute direct
contempt, as well as cause for
administrative sanctions.
Rule 7, Sec. 5
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PleadIngs
Sufficiency of complaint
The complaint simply alleges that D is
legally liable to P for damages in a named
amount. D moves to dismiss this complaint
for failure to state a cause of action.
Resolve the motion to dismiss.
The motion to dismiss is tenable.
The Rules provide that a complaint
or pleading asserting a claim may be
dismissed on the ground that it states no
cause of action.
The mere existence of a cause of
action is not sufficient for a complaint to
prosper. Even if the plaintiff has a cause of
action against the defendant, the
complaint may be dismissed if the
complaint of pleading asserting the claim
states no cause of action. This means
that the cause of action must be
unmistakably be stated or alleged in the
complaint or that all the elements of the
cause of action required by substantive law
must clearly appear from the mere reading
of the complaint.
Riano (1) 240.
Complaints
'In May 1996 P sued D for mandamus
alleging that he was the lowest or best
bidder forI janitorial services for 1996 but
that D unjustifiably refused to award the
contract to him and prayed that the
judgment be rendered compelling D to
award him the contract. The year 1996
lapsed, P moving for the admission of a
supplemental complaint alleging that he
should instead be awarded damages for
unrealized profits. Should Ps motion to
admit supplemental complaint be
admitted?
No. The petitioners remedy was
not to supplement, but rather to amend its
complaint.
The transaction, occurrence or
event happening since the filing of the
pleading, which is sought to be
supplemented, must be pleaded in aid of a
party's right of defense as the case maybe.
In the case at bar, the supervening event is
not invoked for that purpose but to justify
the new relief sought. What was alleged as
a supervening event causing damage to
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petitioner was the fact that the year for
which the contract should have been made
had passed without the resolution of the
case.
The supervening event was cited
not to reinforce or aid the original demand,
which was for the execution of the contract,
but because of that his demand could no
longer be enforced, thus justifying
petitioner in changing the relief sought to
one for recovery of damages. The
supplemental complaint filed by petitioner
should simply be treated as embodying
amendments to the original complaint or
petitioner may be required to file an
amended complaint.
Superclean Services Inc. v. CA; 2012 Iigo (1) 241
P sues D for P300,000.00 in RTC-Manila.
Before D could answer, P amends his
complaint to allege an alternative cause of
action for specific performance. D moves
to dismiss the complaint. Rule.
P can amend the complaint once as
a matter of right at any time before answer.
The fact that the original complaint did not
plead a cause of action within the RTC's
jurisdiction is of no moment. While the
amendment has the effect of curing this
defect, this is okay because no leave of
court is sought so that there is no
conceptual contradiction as no affirmative
action is sought from the court.
But while an action for specific
performance is within the RTC's jurisdiction
since it is not capable of pecuniary
estimation, the alternative cause of action
for P300,000.00 puts such an estimate and
brings the case within the MTC's jurisdiction
because of the amount involved.
Cruz v. Tan, 87 Phil. 627
Action by P against D in the RTC for a sum
of money wherein D impleaded X as a third-
party defendant on the claim that X is
liable to plaintiff by way of subrogation to
D's liability. Judgment was rendered
ordering D to pay P and X to indemnify D
for this payment. X timely appealed the
judgment to the CA, but D did not appeal
and so P sued out a writ of execution
against him after the lapse of the 15-day
period for D to appeal. Is the writ of
execution valid?
Yes.
The third-party complaint is
independent of and distinct from the
complaint, but is allowed in the original
and principal case to avoid multiplicity of
suits.
An appeal by any party from such
judgment does not inure to the benefit of
the other party who has not appealed nor
can it be deemed to be an appeal of such
other party from the judgment against him.
Firestone v. Tempongko
Pacamalan|Piquero| Ratilla,

Counterclaim, cross-claim,
complaint-intervention, etc.
In an action concerning the fire policy
against an insurance company which
insured it, the defendant insurer filed a
third party complaint against a re-insurer
which set up in his answer the defense
alleged by the defendant insurer that the
loss was caused by the willful act of
connivance of the plaintiff insured. May the
third-party defendant re-insurer
counterclaim against the plaintiff?
Yes, provided that the
counterclaim be in respect to the plaintiffs
claim against the third-party plaintiff.
Rule 6, Sec. 13
L sued C to annul a deed of sale of a lot
and for L to be declared the owner thereof.
Judgment went to C, and this judgment
became final. Thereafter, C filed an action
against L, A and B for damages for the use
and occupancy of the same lot, A and B
being L's transferees of the house built on
the lot, this house having been transferred
by L to A and B even before the filing of the
annulment action. L, A and B moved to
dismiss C's complaint on the ground that it
is barred by the judgment in the first
action. Resolve the motion to dismiss.
Motion to dismiss granted.
The second motion is barred by the
"compulsory counterclaim rule" because the
complaint for damages is necessarily
connected with the transaction subject
matter of the first action. Had the same
been annulled in the first action then C
would have no right to collect rents from
the occupants of the lot and house, while if
the court sustained the validity of the same
(as it did) then C would have had such right.
The addition of A and B as
additional defendants does not detract
from the res judicata effect of the
judgment in the first case because these
parties should have been impleaded by C on
his compulsory counterclaim in the first
auction.
Rule 6, Section 7; 2014 Riano (1) 380
Carpena v. Manalo
In an action in the RTC by the lessee
against the lessor to fix a period for his
lease, may the RTC entertain the
defendant lessor's counterclaim for the
ejectment of plaintiff lessee on the ground
of the expiry of the stipulated term in the
lease contract?
No.
This is not a compulsory
counterclaim because it is not within the
jurisdiction of the RTC as to its nature.
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The Rules provide that a
compulsory counterclaim is one which is
cognizable by the regular courts of justice
and that the counterclaim must be within
the counterclaim must be within the
jurisdiction of the court as to the amount
and the nature thereof.
In ejectment cases, like forcible
entry and unlawful detainer, MTC has the
exclusive original jurisdiction as provided in
the Rules of Court. Thus, RTC cannot
entertain the defendant lessor's
counterclaim for the ejectment of plaintiff
lessee on the ground of the expiry of the
stipulated term in the lease contract for it
has no jurisdiction over the said issue.
Rule 6, Sec.7
In an unlawful detainer suit by P against D,
the MTC Malolos rendered judgment
ordering D to vacate the premises and to
surrender their possession to P. Thereafter,
a writ of execution of the judgment and a
writ of demolition , were issued. During
the grace period allowed D under the writ
of demolition, D filed a separate action in
RTC-Bulacan against P and the provincial
sheriff for specific performance on the
ground that D is entitled to receive the
value of the improvements on the lot
subject of the ejectment case because he
was a builder in good faith. The RTC
Bulacan issued a TRO and then later a
preliminary injunction, enjoining the
enforcement of MTC Malolos' writ of
execution and order of demolition. Did the
RTC Malolos act correctly?
No.
Ds claim is in the nature of a
compulsory counterclaim which he should
have raised in the ejectment case. The
main action having already been resolved,
D cannot bring up the issue in another
action. The adjudication of the issued
joined by the parties in the earlier case
constitutes res judicata, the theory being
that what is barred by prior judgment are
not only the matters actually raised and
litigated upon, but also such other matters
as could have been raised but were not.
Furthermore, the Rules emphasize
that the judgment in an ejectment case is
immediately executory unless the
defendant appeals. The TRO and the PI
were improper.
Cojuangco v. Villegas
P sues your client D, to recover possession
of a parcel of land. D tells you that his
wife acquired this parcel of land from its
former owner, X. Is there a way by which D
may cause X to be impleaded?
Yes. D should have his wife
intervene in the case and once admitted as
Pacamalan|Piquero| Ratilla,

intervenor, the wife should move to be
allowed to a file a third-party complaint
against X. D himself cannot file this third-
party complaint against X because he has
no privity with X.
Morada v. Caluag
When is a cross-claim permissive?
Never.
A claim is permissive when it may
be raised in the same or a separate action.
A cross-claim however depends on the life
of the main action. If the main action is
dismissed, the cross-claim will have to be
dismissed.
A cross-claim could not be the
subject of an independent adjudication
once it lost the nexus upon which its life is
depended. A cross-claimant cannot claim
more rights than the plaintiffs themselves,
on whose cause of action the cross-claim
depended. The dismissal of the complaint
divested the cross-claimant of whatever
appealable interest they might have had
before and also made the cross-claim itself
no longer viable.
Rule 6, Sec. 8; 2012 Inigo (1) 162, 171
Does dismissal of a complaint on plaintiff's
motion carry with it the dismissal of
defendant's compulsory counterclaim?
No.
The Rules provide that dismissal
upon motion of plaintiff shall be limited to
the complaint. The dismissal shall be
without prejudice to the right of the
defendant to prosecute his counterclaim in
a separate action unless within 15 days
from notice of the motion he manifests his
preference to have his counterclaim
resolved in the same action.
Rule 17, Sec. 2
In an action by P against D for prohibition,
P obtained a writ of preliminary injunction
against D. On certiorari to the SC, the writ
of preliminary injunction was nullified on
the ground that the petition was premature
because P had not exhausted his
administrative remedies. Taking his cue
from the SC decision, D filed a motion to
dismiss the complaint for failure to state a
cause of action and the motion was granted.
After this dismissal order became final, D
filed an action against P to recover
damages resulting from the issuance of the
preliminary injunction in the first case. P
now moves to dismiss the damage action on
the ground that it is barred for not having
been set up as a compulsory counterclaim
in the prohibition case. Rule on P's motion
to dismiss.
Motion must be denied. (?)
A counterclaim is compulsory
where: (1) it arises out of, or is necessarily
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connected with, the transaction or
occurrence that is the subject matter of
the opposing partys claim; (2) it does not
require for its adjudication the presence of
third parties of whom the court cannot
acquire jurisdiction; and (3) the court has
jurisdiction to entertain the claim. Tested
by these requirements, the petitioners
counterclaim was clearly compulsory. The
petitioner itself so denominated it. There is
no doubt that the same evidence needed to
sustain it would also refute the cause of
action alleged in the private respondents
complaint; in other words, the
counterclaim would succeed only if the
complaint did not.
It is obvious from the very nature of
the counterclaim that it could not remain
pending for independent adjudication, that
is, without adjudication by the court of the
complaint itself on which the counterclaim
was based.
Int'l Container Services, Inc. v. CA
Alternative answer:
Motion must be granted.
It is also arguable that the case is
similar to one where the principal case was
dismissed for lack of jurisdiction in which
no claim for damages could have been
presented in that case so that this
independent action for damages for the
illegal injunction is not abated
Santos v. CA, 95 Phil. 360 [1954]
Answer
May the trial court extend the period for
filing an answer after this period had
already expired?
Yes.
Section 11 of Rule 11 of the Rules
of Court provides that Upon motion and on
such terms as may be just, the court may
extend the time to plead provided in the
Rules. The Court may also, upon like terms,
allow an answer or other pleading to be
filed after the time fixed by these rules.
The Trial Court has the discretion
not only to extend the time for filing an
answer to be filed after the reglementary
period.
Rule 11, Section 11; 2014 Riano (1) 366,
2012 Inigo (1) 249; Sablas v. Sablas
May lack of jurisdiction over the person be
pleaded as an affirmative defense and a
preliminary hearing had thereon?
Yes.
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Rule 16, Sec. 6, provides that if
no motion to dismiss has been filed, any of
the grounds for dismissal provided for in
this rule may be pleaded as an affirmative
defense in the answer and, in the
discretion of the court, a preliminary
hearing may be had thereon as if motion to
dismiss had been filed.
In the case at bar, the lack of
jurisdiction over the person is one of the
grounds for a motion to dismiss in Rule 16,
Rule 1 of the ROC.
Rule 16, Sec. 6; 2014 Riano (1) 361
Is a motion to dismiss with counterclaim
sanctioned by the rules?
a. If yes, state your reasons.
b. If no, give your reason and state
what should instead file in the
court to preserve his counterclaim
while maintaining the ground
asserted in his motion to dismiss as
an issue that should be subject of a
preliminary hearing?
No, a motion to dismiss with
counterclaim is not sanctioned by the Rules
of Court. The counterclaim is included in
the answer although it is not intrinsically a
part of the answer but is never contained in
a motion to dismiss. A counterclaim is a
pleading while a motion is not. The
defendant should instead file an answer
with counterclaim and plead his
affirmative defenses in the answer.
Even if no motion to dismiss is filed,
any of the grounds for dismissal provided
under the Rules may be pleaded in the
answer and, the defendant may ask for a
preliminary hearing on said defenses as if a
motion to dismiss has been filed.
2005 Riano 563
Specific Denials
X Corporation filed an action for collection
against Y Corp. and a promissory note was
attached to the complaint. In its answer, Y
Corp. specifically denied the allegations of
the complaint and alleged that the person
who contracted and obtained the loan from
X Corp was not authorized by Y Corp. Y
Corps answer, however, was not verified.
The RTC, upon motion, rendered summary
judgment in favor of X Corp. On appeal,
the CA affirmed the decision. The case is
now with the SC. Decide.
The summary judgment must be
annulled.
The Rules provide that where an
action or defense founded upon a written
instrument is not specifically denied under
oath, the genuineness and due execution of
such document shall be deemed admitted.
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By admitting the same, the party is
precluded from raising the defense which is
inconsistent with his admission. The denial
not being verified, Y Corp is deemed to
have admitted that the document was
signed for him and with his authority.
However, this does not mean that
the case should be automatically subjected
to a summary judgment because the
defendant can still put up other defenses as
long as they are not inconsistent with his
admission of the Promissory Note, such as
payment, illegality of consideration, fraud,
mistake, compromise, etc.
Hibberd v. Rhode
[Bance] Even granting arguendo that
judgment may be rendered due to the
implied admission of Y Corp, the same
should be a judgment on the pleadings and
not summary judgment.
The Rules provide that if the
allegations are deemed admitted, there is
no more triable issue between the parties
and if the admissions appear in the answer
of the defendant, the court may, upon
motion, render a judgment on the
pleadings.
2014 Riano (1) 354
A filed a suit against B and C for the
recovery of personal property which,
according to the complaint had been sold
to him by the defendants father during the
latters lifetime under a Deed of Sale. The
substance of the document was pleaded in
the complaint and a copy was attached to
the complaint.
B and C filed an answer which
disclaimed the nature thereon and claiming
that the signature of their father appeared
to be a forgery. At the trial of the case, B
and C by means of expert witness adduced
evidence to prove that the sellers
signature in the Deed of Sale was a forgery.
A objected saying that the
genuineness and due execution of the Deed
of Sale was deemed admitted because the
answer was unverified inasmuch as the
verification was made only on the express
basis of best information and belief.
Resolve the objection with reasons.
The objection of A is untenable.
The Rules provide that the
requirement of an oath does not apply
when the adverse party does not appear to
be a party to the instrument or when
compliance with an order for inspection of
the original instrument is refused.
Thus, B and C having been sued as
a substitute party under a document signed
by their deceased father may make a
specific denial without the same being
verified for they were not a party to the
document.
2014 Riano (1) 339
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In his answer to the complaint, X alleged
that he does not owe Y any sum of money,
that he executed the PN attached to the
complaint to enable Y to show to her
husband and explain about the
disappearance of the amount from the
conjugal funds as Y lost the same in the
casino. The answer was not verified.
At the trial, the lawyer of Y
objected to the testimony of X as to his
accommodation story because, as the
answer was not verified, he was deemed to
have admitted the genuineness and due
execution of the PN.
Rule on the objections.
Suggested Answer:
The objection of Ys lawyer is
correct.
The Rules provide that defenses on
an actionable document must specifically
deny under oath the genuineness and due
execution of the instrument, failure of
which would be tantamount to the implied
admission of the genuineness of such
document.
Since the specific denial of X was
not verified, then he is precluded from
denying the genuineness and due execution
of the PN.
Rule 8, Sec. 8
Alternative Answer [Bance]:
The lawyer of Y is incorrect.
Indeed, the Rules provide that
failure to make a specific denial under oath
in contesting actionable documents is
tantamount to an implied admission of the
genuineness and due execution of the
instrument. However, there are certain
defenses which may still be interposed
because they are not inconsistent with the
admission of genuineness and due
execution of the instrument and are
therefore, not barred. These defenses, to
name a few, are: payment or non-payment,
want of consideration, illegality of
consideration, etc.
X alleges being an accommodation
party, or one who has issued an instrument
without receiving value therefrom for the
purpose of lending his name to Y. There is,
between X and Y want of consideration and
thus, X is not precluded from raising this
defense.
2014 Riano (1) 340-341
An action on a promissory note by P against
D Company, copy of the note being
attached to the complaint as an annex. D
Company answered by denying liability and
alleging that the person who signed the
note had no authority to do so, but this
answer was not verified. May D Company
prove its defense?
No.
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The Rules provide that when an
action or defense is founded upon an
actionable document, the genuineness and
due execution shall be deemed admitted
unless there is a specific denial oath.
By failing to make a specific denial
under oath, D Company has admitted the
genuineness and due execution of the
document such that it is precluded from
asserting that the person who signed the
note had no authority to do so.
2014 Riano (1) 338-339
P company , a foreign insurance company,
sued in the RTC-Manila and alleged that it
is duly authorized to do business in the
Philippines, but defendant in his answer
denied this allegation as to P's capacity to
sue for lack of knowledge or information.
What is the effect of defendant's denial?
It is deemed an admission.
The denial is ineffective for being a
general denial and therefore is inadequate
to attack p's capacity to sue.
The Rules provide that a party
desiring to raise an issue as to the legal
existence of any party or the capacity of
any party to sue or be sued in a
representative capacity, shall do so by
specific denial, which shall include such
supporting particulars as are peculiarly
within the pleaders knowledge.
Rule 8, Sec. 4
Certificate of
Non-Forum Shopping
Suppose that a complaint is dismissed for
failure to attach thereto a sworn
certification against forum-shopping, can
the omission be cured by an amendment of
the complaint?
No.
The Rules provide that, failure to
comply with the requirement of
Certification against non-forum shopping
shall not be curable by mere amendment of
the complaint or other initiatory pleading
but shall cause for the dismissal of the case
without prejudice, unless otherwise
provided, upon motion and after hearing.
Rule 7, section 5 (2), Inigo (1) 192
May a complaint which had been dismissed
for failure to attach a certification against
forum shopping be re-filed?
Yes, unless the dismissal order
states that it is with prejudice.
The Rules provide that, Failure to
comply with the foregoing requirements
shall not be curable by mere amendment of
the complaint or other initiatory pleading
but shall be cause for the dismissal of the
Pacamalan|Piquero| Ratilla,

case without prejudice, unless otherwise
provided.
Rule 7, Sec 5, (2nd par)
What is plaintiff's best procedural recourse
against an answer which pleads no more
than negative pregnants?
Move for judgment on the pleadings.
A denial in the form of a negative
pregnant is an ambiguous pleading, since it
cannot be ascertained whether it is the
fact or only the qualification that is
intended to be denied. A negative pregnant
does not qualify as a specific denial. It is
conceded to be actually an admission. It
refers to a denial which implies its
affirmative opposite by seeming to deny
only a qualification or an incidental aspect
of the allegation but not the main
allegation itself.
Riano (1) 358-359.
Amendments
Husband filed a complaint in the RTC
against his wife praying for custody of their
children and that their support be
determined, the complaint alleging that
defendant-wife attempted to kill plaintiff-
husband by kicking him twice on his genital.
After answer, plaintiff was allowed by the
trial court to amend his complaint by
alleging that defendant attempted to kill
him by placing poison on his food and
praying for legal separation. Was the
amendment properly allowed?
Yes.
There was no evidence that the
amendment was made with intent to delay
the action or that the cause of action was
substantially altered. While the reliefs
sought are different, as the original
complaint prays for custody and support
while the amended complaint prays for
legal separation, what determines the
nature and character of an action is not the
prayer but the essential basic allegations of
fact as set forth in the complaint. There is
no substantial alteration of the cause of
action because defendant is not required to
answer for a liability or legal obligation
wholly different from that which was stated
in the original complaint.
Even granting that the causes of
action under the original and amended
complains are different, still the amended
complaint should be admitted because such
causes of action, as legal separation,
custody and support arose from the marital
relationship between the parties, and a
party is allowed to state in one pleading as
many causes of action as may arise out of
the same relation between the parties.
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Rule 10, Sec 3; Anastacio v Anastacio
P sued D in the RTC to recover the sum of
P20,000.00 plus interest. D answered
alleging payment by set-off. After pre-trial
but before the case could actually be tried,
D filed a motion to dismiss on the ground
that the RTC has no jurisdiction over the
case. Instead of filing an opposition to D's
motion to dismiss, P filed a motion for
leave to amend his complaint by including
an allegation of a cause of action for
P5,000.00 attorney's fees. If you were the
judge, how would you resolve D's motion to
dismiss and P's motion for admission of his
amended complaint?
Grant D's motion to dismiss.
A motion to dismiss on the ground
of lack of jurisdiction over the subject
matter may be filed at any stage of the
action. Rule 9, Sec. 2 of the Rules of Court
provides that A compulsory counterclaim,
or a cross-claim not set up shall be barred.
Deny P's motion to admit amended
complaint.
D already having answered, P must
have to ask for leave of court to amend his
complaint as provided in the Rules of Court,
Rule 10, Sec. 2 , provides that A party
may amend his pleading once as a matter
of right at any time before a responsive
pleading is served or, in the case of a reply,
at any time written 10 days after it is
served, and Section 3 provides that,
except as providedsubstantial
amendments may be made only by a leave
of court
While P's proposed amendment may
not alter his cause of action, still the
amendment is not allowable because it
would have the effect of conferring
jurisdiction upon the court. Since the
amount alleged in the original complaint
does not exceed P20,000.00 excluding
interest, the RTC did not acquire
jurisdiction over the case, and so the RTC
has neither the power nor the jurisdiction
to act on the motion for the admission of
the amended complaint, much less to allow
such amendment, since the court must first
acquire jurisdiction over the case in order
to act thereon.
Rule 9, Sec. 2; Rule10, Sections 2 and 3
Rosario v. Carangdang
Comment [Bance]:
Caution. This question was probably
asked when the jurisdictional amount of
the RTC was still at more than 200k. I think
there was just a typo error and that should
have originally been 200k plus interest. J
Make sure to understand the
concept and the reason, dont rely on the
amounts for these have already changed.
Pacamalan|Piquero| Ratilla,

Prayer
May the trial court grant a party relief in
excess of or different in kind from that
prayed for in his pleading?
Yes. The Rules provide that a
pleading shall specify the relief sought, but
it may add a general prayer for such further
or other relief as may be deemed just or
equitable.
Hence, the court can grant the
relief warranted by allegations and the
proof even if it is not specifically sought by
the injured party for the inclusion of a
general prayer may justify the grant of the
same, if the facts alleged in the complaint
and the evidence introduced so warrant.
2014 Riano (1) 307; Lorbes v. CA
Can the court award the plaintiff damages
prayed for in his complaint to be in an
"amount as will be proved at the trial"?
No.
It is required for purposes of
computation of the docketing fees payable,
that the complaint specifies the amount of
damages being prayed for not only in its
body but also in its prayer. The court does
not acquire jurisdiction over an unspecified
claim for damages, except in respect to
damages arising after the filing of the
complaint or similar pleading the amount of
which damages need not be specified but
to which the additional filing fee shall be a
lien on the judgment.
Original Dev't. & Const. Corp. v CA
2014 Riano (1) 349
Explanation as to
mode of service
In an action by P against D in the RTC for
recovery of possession and damages, D filed
an answer with counterclaims but furnished
counsel for P a copy of this answer by
registered mail and his answer did not
contain any written explanation as to why
service was not made personally upon P.
So, P filed a motion to expunge the answer
and to declare D in default on the ground
that D did not observe the mandate
requiring personal service or an explanation
of its absence. Rule on D's motion.
Motion granted.
Under Sec. 11, Rule 13 of the 1997
Rules of Civil Procedure, personal service
and filing is the general rule, and resort to
other modes of service and filing, the
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exception. Therefore, whenever personal
service or filing is practicable, in light of
the circumstances of time, place and
person, personal service or filing is
mandatory. Only when personal service or
filing is not practicable may resort to other
modes be had, which must then be
accompanied by a written explanation as to
why personal service was not practicable.
The absence of such explanation is a
violation of the rule and may be cause to
consider the paper as not filed.
Solar Team Entertainment, Inc. vs. Ricafort,
Rule 13, Section 11
Omnibus Motion
A filed an action for collection against B.
Upon receipt of the summons, B filed a
motion to dismiss on the ground of lack of
jurisdiction over the person because
summon was served on his former wife and
on the ground that he had already paid the
debt to A. A filed an opposition saying that
B could not anymore invoke the first ground
since he had raised the issue of payment in
the second ground. Rule on the opposition
of A.
(a) Rule on the motion of A.
(b) Suppose in the question above, the
court, after hearing, dismissed the
action on the ground that the debt
had already been paid. Two years
after, A found that in various
accounts B was still indebted to A.
Can the latter file an action on the
basis of the claim. Explain.
(a) The opposition of A is not tenable.
Under the Omnibus Motion Rule, when you
file a motion to dismiss, you have to invoke
all the grounds then available and all not so
included shall be deemed waived. When
you file a motion to dismiss citing lack of
jurisdiction over your person together with
other grounds, there is no waiver on the
defect of lack of jurisdiction. The inclusion
in a motion to dismiss of other grounds
aside from lack of jurisdiction over the
person of the defendant shall not be
deemed as voluntary appearance.
La Naval Drug Corp vs CA 236 SCRA 78,
Inigo(1)p320
(b) Yes, the latter can still file the action.
Debts from different obligations gives rise
to a different cause of action. The cause of
action in this case is different from the
cause of the previous case. Since they are
two different causes of actions the
principle of res judicata will not apply.
Hence the action can still be filed.
Inigo(1) p82
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Default
Where the defendant has been declared in
default, does the plaintiff still have to
present evidence to support his complaint
in order for him to obtain judgment
thereon?
Generally no, unless the court in its
discretion requires claimant to submit
evidence.
The Rules provide that when the
defending party is declared in default, the
court shall proceed to render judgment
granting the claimant such relief as his
pleading may warrant, unless the court in
its discretion requires the claimant to
submit evidence. Such reception of
evidence may be delegated to the clerk of
court.
Rule 9, Sec. 3
Due to personal injuries suffered in a
vehicular collision, P sued D for
P300,000.00 in actual damages, P1 Million
in moral damages, P1 Million in exemplary
damages and P500,000.00 for attorney's
fees. Assuming that D is declared in
default, how much can the court properly
award P?
The Rules provide that a judgment
rendered in default shall not exceed the
amount or be different in kind from that
prayed for nor award unliquidated damages.
Given that the defending party was
declared in default, then the court, in its
discretion may award all the reliefs prayed
for by the plaintiff provided that the same
is properly supported by evidence. The
award however may not exceed the amount
prayed for by plaintiff even if the same is
supported by evidence, as the Rules
expressly provide this to be so.
Rule 9, Sec. 3; 2014 Riano (1) 378
5 Summons
No juridical personality
Association of Future Saints (AFS), a group
of elderly and impotent men in CDO, is
active promoting sexual morality among
men whose sexual prowess has totally
disappeared. It is a very well-known
association and young men look forward to
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becoming members of it when they cannot
also do it anymore.
The association acquired real
property in CDO. It conditionally sold the
land to a pretty lass. Upon the happening
of the condition, the lady demanded
delivery of the possession of the land. The
association refused. So the lady filed an
action to recover possession of the land
against AFS.
Summon was served on General
Mando (ret), a member of AFS, and a next
door neighbor of the lady. No answer was
filed. So the court upon motion declared
AFS in default. Subsequently the President
of AFS, Mr. Ugod-Ugod Na, filed a motion to
lift the order of default on the ground that
there was improper service of summons
because as President of AFS the summons
should be served on him and not on Gen.
Mando.
Resolve the Motion.
The motion is untenable.
The Rules provide that that an
association or entity without juridical
personality may be served with summons
and sued in the name by which they are
generally or commonly known and service
may be effected upon all the defendants by
serving upon any one of them or the person
in charge of the office or place of business
maintained in such name.
In the case at bar, AFS is an
association without juridical personality
and hence, service to any of its members,
i.e. Gen. Mando, is valid service.
Rule 14, Sec. 8
Foreign Entity
X company, an American firm, engaged in
the manufacture of athletic uniforms,
imported soccer jerseys from P company, a
Philippine textile mill, but refused to pay
for them. Hence, P company filed in the
RTC an action against X company for the
collection of the price of the soccer jerseys,
the complaint alleging that X company was
doing business in the Philippines and that
summons be served upon its agent in the
Philippines. X company entered its special
appearance and challenged the validity of
the service of summons on the ground that
it was not doing business in the Philippines
and that the transaction sued upon was an
isolated transaction. Was the summons
validly served?
Yes, the summons was validly
served.
The Rules provide that that when
the defendant is a foreign private juridical
entity which has transacted business in the
Philippines, service may be made on its
Pacamalan|Piquero| Ratilla,

resident agent designated in accordance
with law for that purpose, or if there be no
such agent, on the government official
designated by law to that effect, or on any
of its members or agents within the
Philippines.
In the case at bar, X Company is a
foreign private juridical entity which has
transacted business as evidenced by the
purchase of the soccer jerseys. Neither can
X Company argue that it was merely a
single or isolated transaction as the court
provides that the foreign company must
have transacted in the Philippines which
allows for even a single transaction to be a
ground. Furthermore, it is clear that the
purchase of the soccer jersey was in the
ordinary course of its business considering
that it was engaged in the manufacture of
athletic uniforms.
Litton Mills v. CA, 2012 Inigo (1) 304-305
X Company, a corporation incorporated
under the laws of Michigan, USA, entered
into a "representative agreement" with Y
Company, a domestic corporation, for the
sale in the Philippines of X Company's
electronics products in consideration for a
stipulated commission. After the
agreement was in force for a year, X
Company terminated it and then brought an
action in the RTC-Makati to enjoin Y
Company from dealing in similar products
as those of X's. Y Company moved to
dismiss the action on the ground that X
Company, being a foreign corporation not
licensed to do business in the Philippines,
has no capacity to sue. Rule on the motion
to dismiss.
X Company may well be said to be
doing business in the PH because of the
extensiveness and regularitiy of the sale of
its products in this country where it made Y
Company its mere agent in pursuit of its
business.
However, Y Company is estopped to
challenge the personality of X after it has
acknowledged the same by entering into a
contract with it. This result is dictated by
fair play. A person contracting with a
foreign corporation cannot take advantage
of the latters non compliance with the
licensing requirement where such person
has received the benefits of the contract.
Communication Materials and Design v. CA
Non-resident defendant/
Extraterritorial service
In an action for partition of real properties
against a non-resident defendant who is not
found in the Philippines, how may this
defendant be served summons?
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Service to a non-resident defendant
who is not found in the Philippines may be,
by leave of court, effected by:
(1) by personal service;
(2) by publication in a newspaper of
general circulation in such places
and for such time as the court may
order, in which case a copy of the
summons and order of the court
shall be sent by registered mail to
the last known address of the
defendant; or
(3) In any other manner the court may
deem sufficient.
Action in RTC-Manila against D to
collect a sum of money. D is a Filipino now
permanently residing in the United States
but comes to the Philippines during the
Christmas holidays. How may the summons
in this action be served on him?
Only personally, when he is in the
Philippines, even temporarily only.
Extraterritorial service is not permissible
since the action is in personam and D is not
a Philippine Resident
Rule 14, Sec. 15, 16;
Riano (1) 450, 454-455,459-460
D borrowed US $10,000 from the Guam
Branch of a Philippine bank and executed
therefore in Agana, Guam a promissory
note. Upon D's default on the note, may
the Philippine bank sue him in the
Philippines to collect on this note?
Yes.
In the case of Philippine
Commercial Bank, the Supreme Court held
that in case the defendant does not reside
in the Philippines, the remedy of the
plaintiff in order to acquire jurisdiction is
to try and convert the case into an action
in rem or quasi in rem by attaching the
property of the defendant. The service of
summons in this case is no longer for the
purpose of acquiring jurisdiction but for
compliance with the requirements of due
process.
Plaintiff should file a suit with the
provisional remedy of attachment since the
party does not reside and is not found in
the Philippines. After availing of the extra
territorial service of summons, the property
of the defendant would now be the object
of judicial power.
2014 Riano (1) 464-465
6 Proceedings after service of summons
and Dismissal of Actions
7
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Objective/General
Distinguish "law of the case" from res
judicata
The law of the case does not
have the finality of res judicata, Law of the
case applies only to the same case,
whereas res judicata forecloses parties or
privies in one case by what has been done
in another case.
In law of the case, the rule made
by an appellate court cannot be departed
from in subsequent proceedings in the same
case. Furthermore, law of the case relates
entirely to questions of law, while res
judicata is applicable to the conclusive
determination of issues of fact.
Although res judicata may include
questions of law, it is generally concerned
with the effect of adjudication in a wholly
independent proceeding.
Riano, (1) 603.
Enumerate all the ways by which a civil
case in our courts may be terminated, with
binding and res judicata effect, without a
full-dress evidentiary trial where the
parties are enabled to present their
respective testimonial and other evidence.
These are:
1. judgment on the pleadings
2. summary judgment
3. dismissal on motion of the
defendant
4. voluntary dismissal by the plaintiff
5. dismissal for plaintiff's failure to
prosecute
6. judgment by default
7. judgment on confession or on
compromise
8. judgment on a complete stipulation
of facts
9. 2-dismissal rule
May a court dismiss an action for failure of
plaintiffs lawyer to appear at the trial
despite due notice?
No.
The Rules do not authorize a
dismissal on the ground of absence of
counsel. What the court should do is to
grant the plaintiff and hour or two to
engage the services of a new lawyer.
Dayo v. Dayo; Rule 17, Sec. 3
Distinguish between failure of the
complainant to state cause of action from
lack of cause of action
The lack of cause of action is not a
ground for the dismissal of an action under
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Rule 16. The ground is the failure of the
complaint to state a cause of action which
is obviously not the same as the plaintiff
not having a cause of action. The lack of
cause of action becomes evident during the
course of the trial but whether the
complaint states a cause of action is only
limited to what the complaints says.
Municipality of Binan vs Garcia
2012 Inigo(1) p338
Litis Pendentia/
Res Judicata
A lessee filed an action in the RTC against
his lessor praying for a decree fixing the
period of his lease. Before pleading to the
complaint, the lessor filed his own
complaint for unlawful detainer in the MTC
seeking the lessee's ejectment from the
premises on the ground of expiry of the
term of the lease contract. The lessee
moved to dismiss the unlawful detainer
complaint on the ground of litis pendentia.
Rule on the motion.
Motion to dismiss denied.
Both cases involve the common
issue of the lessee's right to possession of
the premises, and this issue is better
resolved in an unlawful detainer action.
What, then, ought to be dismissed is the
RTC action and not the unlawful detainer
case. The fact that the unlawful detainer
action was filed later that the RTC action is
of no moment, because section 1(e) of Rule
16 requires only another pending action -
not a prior pending action. (Teodoro vs.
Mirasol, 99 Phil. 150 [1956]).
A is the owner of a parcel of land pending
registration in the RTC of Rizal. He
permitted B, a family friend, to construct a
small house on the land and to live therein
for a period of two years only. The two-
year period expired on 1 may 1994, but B
failed and refused to vacate the land.
Hence, on 15 June 1994, A filed an action
against in the RTC of Rizal for the recovery
of possession of the land. B filed a motion
to dismiss the case on the ground that
there is a pending land registration case
involving the said property. Is the motion
well founded?
No.
Litis pendentia does not exist for
there is no identity of causes of action or
rights asserted and reliefs prayed for so
that the judgment which may be rendered
Pacamalan|Piquero| Ratilla,

in one case, would not necessarily result in
res judicata in the other.
An action for recovery of possession
is distinct and different from an action for
recovery of title or ownership. Moreover,
an RTC, acting as a land registration court,
has a limited and special jurisdiction
confined to the determination of the
legality and propriety of the issue of title.
It has no power to entertain issues of
rightful possession and claims for damages
emanating from ownership.
Medina and Bernal v. Valdellon
P filed a complaint in the RTC-Isabela
against D for the recovery of an alleged
overpayment for a rice thresher. Later,
but before the summons in the Isabela case
could be served on D, D filed in RTC-Manila
an action against P for collection of the
alleged balance on the purchase price of
the same rice thresher. P moved to dismiss
the Manila case on the ground of litis
pendentia. Rule on the motion.
Motion to dismiss granted.
All the requisites for litis pendentia
are present. The Isabela action was
already a pending action at the time of the
filing of the Manila action even though the
summons had not yet been served. A civil
action is commenced by the mere filing of
the complaint in court.
Rule 16,Section 1; (e );RIano (1) 482
Salacup vs. Maddela, Jr.
Levy of execution of money judgment in
Civil Case No. 12345 was made on property
of D , this property was sold to plaintiff P.
Title was consolidated in P after the lapse
of the redemption period. Citing what is
alleged to be equitable grounds, however,
D filed a motion in the said Civil Case No.
12345 that he be allowed to redeem the
property or his mother to purchase it; this
motion was denied. D then filed another
action in the RTC, Civil Case No. 67890, to
recover the same property on the ground of
promissory estoppel. If you were the
counsel of P, what step would you take in
Civil Case No. 67890?
Move to dismiss Civil Case No.
67890 on the ground of res judicata.
Both cases involve the same cause
of action, the parties are the same, and the
addition of D's mother in Civil Case No.
12345 does not militate against the identity
of parties between the two cases because
the mother represents the same interest as
D.
Santos v. CA; Rule 16, Section 1(f)
P sued D in the MTC for ejectment on the
ground of non-payment of rentals. After
trial on the merits, judgment was rendered
dismissing the complaint upon the finding
that D has been paying his rentals on time.
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Thereafter, P demanded an increase in D's
rentals, and upon D's failure to pay the
increased rentals, P promptly filed a
complaint against D in the RTC praying for
his eviction and for damages; the RTC
dismissed this complaint for lack of
jurisdiction. With the RTC dismissal, P
filed an action for unlawful detainer
against D in the MTYC based on the same
allegations as his complaint in the RTC. D
now moves to dismiss this second unlawful
detainer complaint on the ground that it is
barred by prior judgment. Rule on the
motion to dismiss.
Motion to dismiss should be denied.
The second ejectment action is not
barred by the decision in the first
ejectment case; no identity of causes of
action because the ground for ejectment in
the second action is for non-payment of
different rentals. Nor is the RTC judgment
a bar because it is not on the merits.
Rule 16,Section 1
H, husband, filed an action against his wife,
W, to have their marriage declared void
due to the latter's alleged psychological
incapacity to contract marriage. After trial,
the action was dismissed. Then, H filed
another action against W to have the same
marriage declared void for alleged absence
of a marriage license. Can the second
action prosper over timely opposition?
No.
H was barred by prior judgment in
raising the alleged absence of a marriage
license he could have risen in filing the first
action. Rule 39, Sec. 47 (b) of the Rules of
Court provides that, In other cases, the
judgment or final order is, with respect to
the mater directly adjudged or as to any
other matter that could have been raised in
relation thereto ,conclusive between the
parties and their successor in interest by
tittle subsequent to the commencement of
the action or special proceeding, litigating
for the same thing under the same title and
in the same capacity
Rule 39,Sec 47 (b)
Relying on a document of sale, P sued D in
the RTC to recover ownership of a parcel of
land. For failure of P to amend his
complaint conformably to an order of the
court, the complaint was dismissed. A
month thereafter, P re-filed the same
complaint in the RTC, and this complaint is
now met with a motion to dismiss by D on
the ground of res judicata. Resolve the
motion to dismiss.
Motion to dismiss granted.
The dismissal of the first case was
with prejudice pursuant to Section 3, Rule
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17. Sec 3 Rule 17 provides that If for no
justifiable cause, the plaintiff fails to
appear on the date of the presentation of
his evidence in chief on the complaint, or
to prosecute his action for an unreasonable
length of time, or to comply with these
Rules or any order of the court, the
complaint may be dismissed upon motion of
the defendant or upon the courts own
motion, without prejudice to the right of
the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect
of an adjudication upon the merits, unless
otherwise declared by the court.
Therefore, all requisites for res judicata
are present.
2014 Riano (1) 492;
Enriquez v. Boyles
P sued D to recover possession and
ownership of a parcel of land, but this
action was dismissed (after the case was
scheduled several times for trial) for P's
failure to prosecute. After the dismissal
order had become final, P brought another
action against D for quieting of title over
the same parcel of land. D moved to
dismiss this 2nd action on the ground of res
judicata. Rule on the motion.
Motion to dismiss granted.
Sec 3 Rule 17 provides that If for
no justifiable cause, the plaintiff fails to
appear on the date of the presentation of
his evidence in chief on the complaint, or
to prosecute his action for an unreasonable
length of time, or to comply with these
Rules or any order of the court, the
complaint may be dismissed upon motion of
the defendant or upon the courts own
motion, without prejudice to the right of
the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect
of an adjudication upon the merits, unless
otherwise declared by the court. The
judgment in the first case having become
final and there being the requisite identity
of parties, subject matter and causes of
action, res judicata bars second action.
Panado v Cortez, 94; Riano (1) 492.
A, the surviving husband of B, executed in
favor of C a Deed entitled the Contract of
Sale a Retro over a certain parcel of land
registered under the Torrens System in
which the owner is described as A,
married to B. Subsequently, A sued C for
the reformation of the contract, alleging
that what was agreed upon was a really
mortgage and not a sale a retro. As
complaint was however dismissed for
failure to prosecute, and the dismissal
became final. A year later, the children of
A and B sued C for the annulment of the
sale a retro, alleging that the subject piece
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of land was acquired by their parents
during the marriage, hence their father had
no right to include in the sale the childrens
interest in the property as heirs of their
deceased mother, such children not having
consented to the sale. C moved to dismiss
the childrens complaint on the ground of
bar by prior judgment. Resolve on the
Motion. Explain.
The motion to dismiss must be
denied as the elements of res judicata are
not present. In the case of Topacio v. Banco
Filipino Savings and Mortgage Bank, res
judicata applies in the concept of bar by
prior judgment if the following requisites
concur: that the former judgment or order
must be final; that the judgment or order
must be on the merits; the decision must
have been rendered by a court having
jurisdiction over the subject matter and
the parties; and that there be, between the
first and second action, identity of parties,
subject matter and causes of action.
In the situation, the subject matter
of the 2 cases were not identical. The first
case was based on a right a party can
invoke so that the real intent of the parties
may be embodied in the instrument. The
second case however was based on the
right of the heirs to question the validity of
the sale of the property involved in the
first case.
Topacio v. Banco Filipino Savings and
Mortgage Bank 635 SCRA 50
Capacity
How does the defendant raise the issue as
to his legal capacity to be sued?
By moving to dismiss on the ground
that the court has no jurisdiction over his
person as provided in Rule 16. If the motion
is denied, he may raise it as an affirmative
defense in the answer.
The Rules provide that a party
desiring to raise an issue as to the legal
existence of any party or the capacity of
any party to sue or be sued in a
representative capacity, shall do so by
specific denial, which shall include such
supporting particulars as are peculiarly
within the pleaders knowledge.
Rule 16, Sec. 1; Rule 8, Sec. 4
Natasha filed a case with the RTC for a sum
of money against Pierre whose charms are
irresistible. At the time of trial of the case,
both Natasha and Pierre did not appear, so
the court dismissed the case. After 6
months, Natasha refilled the case against
Pierre and after the raffle of the case was
assigned to another branch of the same
Pacamalan|Piquero| Ratilla,

court. Pierre filed a motion to dismiss on
the ground of res judicata.
(a) Could the judge in the first case
dismiss the case for failure of the
parties to appear on the day of the
trial even without a motion from
either party. Explain.
(b) In the second case is the ground of
res judicata tenable?
a) Yes, the judge in the first case can
dismiss the case for failure of the parties to
appear on the day of the trial even without
a motion from either part. The Rules
provide that if, for no justifiable cause, the
plaintiff fails to appear on the date of the
presentation ov his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply
with these Rules or any order of the court,
the complaint may be dismissed upon
motion of the defendant or upon the
courts own motion.
b) Yes. The ground of res judicata is
tenable provided that the previous court
acquired jurisdiction over the subject
matter of the case and the parties.
Dismissal under this case shall have the
effect of an adjudication upon the merits,
unless otherwise declared by the court.
Rule 17, Sec 3 Inigo(1) p353-354
Action by P against D in the RTC for
recovery of a parcel of land. After joinder
of the issues but before actual trial, P filed
a manifestation that he is no longer
interested in prosecuting his complaint
provided, however, the defendant foregoes
with his counterclaim. D filed a counter-
manifestation agreeing to the dismissal of
the complaint and his counter claim.
Whereupon, the RTC issued an order
dismissing plaintiffs complaint and
defendants counterclaim without costs.
Ps successor-in-interest now sues to
recover the same parcel, and Ds successor-
in-interest moves to dismiss this new
complaint on the ground of res judicata. If
you were the judge, would you grant the
motion to dismiss?
No.
Dismissal of the first case was
without prejudice. A dismissal made by the
filing of a notice of dismissal is a dismissal
without prejudice, i.e., the complaint can
be refilled. The dismissal having been at
plaintiff's instance and not having specified
that it was with prejudice, it is one
"without prejudice" within the meaning of
Sec. 2, Rule 17.
Riano (1) 489; Vergara v. Ocumen
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Effect of Dismissal
Defendant Y filed a motion to dismiss
plaintiffs complaint before the RTC.
(a) The court grants the motion to
dismiss. Explain the remedies or
procedure to be resorted to or be
pursued by plaintiff to have the
order of dismissal reversed and
corrected finally.
(b) The court denies the motion to
dismiss.
a. May Y appeal the denial?
b. How and on what grounds
may defendant Y bring the
denial of his motion to
dismiss to the appellate
courts? Explain.
(a) The plaintiff has several options:
1. Depending upon the ground for the
dismissal of the action, the plaintiff
may simply refile the complaint.
2. He may appeal from the order of
dismissal where the ground relied
upon is one which bars the refiling
of the complaint, provided for in
Sec 5 Rule 16.
3. Plaintiff may also avail of a petition
for certiorari.
Riano, (1) 484-486
(b) If the motion is denied:
1. No. The filing of an appeal from an
order denying a motion to dismiss is
not the remedy prescribed by
existing rules. The order of denial,
being interlocutory, is not
appealable by express provision of
Sec. 1 (b), Rule 41.
Rule 41, Sec. 1(b) ;Riano, (1) 483
2. The only way to bring the denial of
the defendants motion to dismiss to
the appellate court is by certiorari.
However, for the remedy to be
available, it must be shown that the
denial of the motion to dismiss must
have been tainted with grave abuse
of discretion amounting to lack or
excess of jurisdiction.
Riano, (1) 484
Jose filed a complaint against Maria to
collect a loan of P50,000. Later, because of
their intimate relationship in the past, Jose
filed a notice of dismissal of his complaint.
Subsequently, the two had a serious
misunderstanding so that Jose again filed a
complaint against Maria to collect another
loan of P100,000. Jose and Maria reconciled,
after which the former withdrew his
complaint before the latter could file her
answer or a motion for summary judgment.
Pacamalan|Piquero| Ratilla,

Was the dismissal of the complaint with or
without prejudice? Explain.
It was with prejudice.
The dismissal of the first case was
without prejudice, but the dismissal of the
second case is with prejudice.
Under the Rules the dismissal upon
notice of the plaintiff before service of the
answer or a motion for summary judgment
is without prejudice. The exception is when
a notice of dismissal is filed by plaintiff
who has once dismissed in a competent
court an action based on or including the
same claim. The later complaint includes
the previous complaint making the
exception applicable. Hence, the dismissal
of the 100,000 complaint is with prejudice.
Inigo(1) p 347
7 Pre-Trial and
Modes of Discovery
8 Objective/General
7
What is the effect of failure to serve
written interrogatories under Rule 25?
3 Unless thereafter allowed by the
court for good cause and to prevent a
failure of justice, a party not served with
1
written interrogatories:
(a) may not be compelled by the
adverse party to give testimony
in open court; OR
(b) to give a deposition pending
appeal.
Rule 25, Sec. 6
What is the effect of failure to file and
serve request for admission under Rule 26?
Unless otherwise allowed by the
court for good cause shown and to prevent
a failure of justice, a party who fails to file
and serve a request for admission on the
adverse party of material and relevant
facts at issue which are, or ought to be,
within the personal knowledge of the latter,
shall not be permitted to present evidence
on such facts.
Rule 26, Sec. 5
What is the work product rule?
Work product is defined as
documents and other tangible things
prepared in anticipation of litigation or for
trial. The work-product privilege or
doctrine originated in the seminal case of
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Hickman v. Taylor, 329 U.S. 495, 67 S.Ct.
385 (1947, in which the U.S. Supreme Court
held that statements of witnesses obtained
by an attorney prior to trial were privileged
and thus protected from discovery. The
Court reasoned that to allow otherwise
would be contrary to the public policy
underlying the orderly and just prosecution
and defense of claims.
Hickman v. Taylor
PreTrial
Upon plaintiffs failure to appear at the
pre-trial despite notice, what is the proper
recourse for the defendant who would like
to pursue his compulsory counterclaim in
the same proceeding?
The Rules provide that the
dismissal of the complaint due ot the fault
of the plaintiff shall not prejudice the right
of the defendant to prosecute his
counterclaim in the same or separate
action.
The defendant should manifest his
preference to have his counterclaim
resolved in the same action within 15 days.
Rule 17, Sec. 3; 2012 Inigo (1) 349-350
The complaint was dismissed for failure of
the plaintiff to appear at the pre-trial
despite due notice. May he re-file the
complaint?
Generally, no.
The failure of the plaintiff to
appear shall be cause for the dismissal of
the action. The dismissal shall be with
prejudice except when the court orders
otherwise.
Rule 18, Sec. 5; Riano (1) 500-501
Modes of Discovery
P sued D and E for reconveyance, with
damages, of a parcel of land. After filing
his answer, E served on P written
interrogatories. Despite the lapse of 1/2
years, the written interrogatories remained
unanswered. So on Es Motion To Dismiss,
the court issued an order directing P to
answer the written interrogatories within
10 days from receipt of the order. This
order having gone unheeded, the court
issued another order dismissing the
complaint against E. After the order of
dismissal had become final, P filed a
motion for admission of amended complaint
in which E is again impleaded as a
defendant on the same cause of action
alleged in the original complaint, plus and
additional cause of action impugning the
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order of dismissal as being null and void for
allegedly having been obtained through
fraud. E moves to dismiss amended
complaint on the ground of res judicata.
Rule on Es Motion To Dismiss.
Motion to dismiss should be granted.
Under the Rules, if for no
justifiable cause, the plaintiff fails to
comply with the Rules or any order of the
court, the complainant may be dismissed
upon motion of the defendant or moto
proprio.
In the case at bar, dismissal was in
effect due to failure to prosecute and/or
comply with the orders of the Court and
has the effect of being an adjudication on
the merits. The dismissal of the first case
being final, a new action based on the
same cause of action would amount to res
judicata.
Furthermore, the added cause of
action in the amended complaint is
improper because such an alleged cause of
action can be raised only in a motion for
new trial or in a petition for relief.
Rule 17, Sec. 3; Rule 29, Sec. 5;
Arellano v. CFI of Sorsogon
Depositions
(a) Can a party take the deposition of a
person without any showing that the
deponent will be unavailable as a witness
at the trial? (b) If so, can such deposition
be used in evidence?
(a) Yes. Availability of the
deponent as a witness at the trial will
affect the party's right to use the
deposition - not his right to take it.
Dasmarinas Garments, Inc. v. Reyes
(b) Yes, under the conditions and
for the limited purposes stated in the Rules
which essentially provide that if a
deposition is to perpetuate testimony taken
under the Rules or if, although not so taken,
it would be admissible in evidence, it may
be used in any action involving the same
subject matter consequently brought in
accordance with the Rules.
Rule 24, Sec. 6; Riano (1), 514-515
Suppose P had introduced in evidence a
pre-trial deposition of D's general manager
which contained a statement that the
company had no budget for the current
year for repair of their vehicles, may P
thereafter (i.e., after the general manager
had testified for D) introduce evidence that
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the general manager's reputation for truth
and veracity is bad?
Yes.
When a party introduces a
deposition or, any part thereof, the
deponent is deemed a witness of the party
introducing the deposition if used for the
purpose other than that of contradicting or
impeaching the deponent.
However, this rule does not apply
when the adverse party uses the deposition
of the officer, director, managing agent of
a public or private corporation, partnership,
or association, at the time of the taking, of
the other party. The witness in this case is
Ds general manager, hence the
impeachment of Ds witness by reputation
is still open to P.
Rule 23, Sec. 4 & 8; Riano (1) 516
Since a deposition officer cannot rule on
objections to evidence, what would be the
point of raising any objection to evidence
at the deposition-taking?
Errors and irregularities in the
manner which the testimony is transcribed
or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted,
filed, or otherwise dealt with by the officer
under Sections 17, 19, 20 and 26 of this
Rule are waived unless a motion to suppress
the deposition or some part thereof is
made with reasonable promptness after
such defect is, or with due diligence might
have been, ascertained.
Rule 23, Sec. 29 [f]
Admission
Where the defendant fails to answer a
request for admission served on him by
plaintiff asking for admission of all the
material allegations of the complaint, what
is the plaintiff's best procedural recourse?
He should file a motion for
summary judgment.
It is a settled rule that summary
judgment may be granted if the facts which
stand admitted by reason of a partys
failure to deny statements contained in a
request for admission show that no
material issue of fact exists. By its failure
to answer the other partys request for
admission, the other party has admitted all
the material facts necessary for judgment
against itself.
Allied Agri-business Devt Co vs. CA
Discovery
Pacamalan|Piquero| Ratilla,

May discovery still be resorted to by a party
litigant even after the promulgation of final
and executory judgment?
Yes.
The Rules provide that when a writ
of execution issued against the property of
a judgment obligor remains unsatisfied in
whole or in part, the judgment obligee is
entitled to an order from the court
requiring the judgment obligor to appear
and be examined. The court may also
compel a party or any other person to
attend and be examined. Failure to obey
may be punished for contempt.
Rule 39, Sec. 36-38
Subpoena
The court issued a subpoena duces tecum
ordering the defendant "to bring with her
whatever document is in her possession
relative to this case." Is it possible to
quash this subpoena duces tecum and, If so,
on what grounds?
Yes.
On two grounds, to wit: 1) it is
unreasonable and oppressive as it requires
the production of numerous books,
documents or things that are not properly
described or identified; or, 2) if the person
in whose behalf the subpoena is issued fails
to advance the reasonable cost of the
production thereof.
Rule 21, Sec 4; Uy v Aleonar
May a court order the immediate arrest of a
witness who has failed to obey a subpoena
in a case pending with it?
No.
Failure to obey subpoena
constitutes indirect not direct contempt for
which the alleged contemnor could not be
adjudged guilty without hearing. Properly,
the court should first issue an order
requiring the alleged contemnor to show
cause why he should not be punished for
disobedience to its process in order to give
him a chance to explain his failure to
appear as witness.
Gardones v. Delgado; Rule 21, Sec. 9
How can you, as a party to a civil action,
access a document under the control of a
non-party?
Through a subpoena duces tecum as
provided in Rule 21, Sec. 1
Who may issue subpoena? What shall the
judge do when the application for a
subpoena to a prisoner is made?
The subpoena may be issued by-
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a) the court before whom the witness
is required to attend;
b) the court of the place where the
deposition is to be taken;
c) the officer or body authorized by
law to do so in connection with
investigations conducted by said
officer or body; or
d) any Justice of the Supreme Court or
of the Court of Appeals in any case
or investigation pending within the
Philippines.
When application for a subpoena to
a prisoner is made, the judge or officer
shall examine and study carefully such
application to determine whether the same
is made for a valid purpose.
No prisoner sentenced to death,
reclusion perpetua or life imprisonment and
who is confined in any penal institution
shall be brought outside the said penal
institution for appearance or attendance in
any court unless authorized by the Supreme
Court.
Rule 23, Sec 2
8 Trial, Demurrer
and Judgment
9 Objective/General
7
Distinguish Judgment on the Pleadings and
Summary Judgment.
3
follows:
These may be distinguished as
(a) In judgment on the pleadings,
the answer does not tender an
1 issue; in summary judgment,
there is an issue but it is not
genuine or a real issue;
(b) A motion for judgment on the
pleadings is filed by a claiming
party like a plaintiff or
counterclaimant; while a
motion for summary judgment
may be filed by either the
claiming or defending party;
(c) A judgment on the pleadings is
based on the pleadings alone; a
summary judgment is based on
the pleadings, affidavits,
depositions and admission; and
(d) In judgment on the pleadings,
the movants must give a 3-day
notice to the adverse party
prior to the date of hearing the
motion; while in summary
judgment, the adverse party is
given 10 days notice.
2014 Riano (1) 614; Rule 35, Sec. 1-3
Pacamalan|Piquero| Ratilla,

TrIal
Demurrer
Action to collect on a promissory note. At
the trial, plaintiff presented the note
through its records custodian who had no
personal knowledge of the transaction.
After plaintiff rested, the defendant filed a
demurrer to evidence on the ground that
plaintiff's evidence was merely hearsay.
The trial court granted the demurrer. On
appeal, however, the CA reversed and
remanded the case to the trial court for
further proceedings. Did the CA act
correctly?
No.
CA should have rendered judgment
on the basis of the evidence submitted by
petitioner. The evidence was sufficient to
support plaintiff's claim. Even if plaintiff's
witness had no personal knowledge of the
promissory note, this note is still admissible
to prove its existence and its tenor as these
facts are of independent relevance.
Under section 1, Rule 33,
defendant is deemed to have already
waived his right to present evidence as, by
filing a demurrer, he is deemed to have
elected to stand on the insufficiency of
plaintiff's evidence.
Radiowealth Finance co. v. Del Rosario;
Rule 33, Sec. 1
Enumerate the final order which are not
subject to appeal.
No appeal may be taken from:
(a) An order denying a motion for new
trial or reconsideration;
(b) An order denying a petition for
relief or any similar motion seeking
relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing
an appeal;
(e) An order denying a motion to set
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress,
or any other ground vitiating
consent;
(f) An order of execution;
(g) A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third-party complaints, while the
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main case is pending, unless the
court allows an appeal therefrom;
and
(h) An order dismissing an action
without prejudice
Judgment
When is a judgment of a trial court
considered to have been promulgated?
In civil cases, a judgment is
deemed promulgated when the signed
decision is filed with the clerk of court.
In criminal cases, judgment is
promulgated by reading it in the presence
of the accused and any judge of the court
in which it was rendered.
Rule 120, Sec. 6
An ejectment complaint was dismissed by
the MTC for plaintiff's alleged failure to
establish his pleaded cause of action. On
appeal, the RTC affirmed in a decision
which reasoned that defendant-tenant had
not defaulted in the payment of rentals and
that the lease had a fixed term. On
reconsideration, the RTC reversed in a
decision as follows: "Considering the
grounds for plaintiff-appellant's motion for
reconsideration, the defendant-appellee's
opposition and reply to opposition, the
decision of this court is hereby
reconsidered, thereby reversing the
decision of the court a quo and instead a
decision is now rendered in favor of
plaintiff-appellant and against the
defendant-appellee as pryaed for in
plaintiff-appellant's complaint." Is the
decision valid?
No.
It does not, contrary to Section 1 of
Rule 36 and Section 14 of Article VIII of the
Constitution, state the law and facts on
which it is based.
Based on Anasco v. Judge of RTC-Pasig
Rule 36, Sec. 1; Riano (1) 576 -578
In a suit on promissory notes which
stipulated that the interest due shall be
compounded quarterly, the RTC rendered
judgment ordering D to pay P the notes
with 18% interest per annum. After the
judgment became final and executory, D
tendered to P an amount in full payment of
the judgment debt but P rejected this
tender on the ground that per Ps
computation the judgment debt was much
more. The difference between the two
amounts arises from the disagreement as to
whether the judgment allowed quarterly
compounding of interest; P said that it did,
but D claimed it did not.
Pacamalan|Piquero| Ratilla,

D then consigned the amount with
the trial court under a motion praying for a
ruling that the judgment did not allow
quarterly compounding of interest, but P
opposed the motion on the ground that the
interest due must be compounded on a
quarterly basis since such is the intention
of the court and is necessarily implied from
the findings of fact in the body of the
decision.
The trial court issued an order
denying the Consignation and Motion
filed by D and holding that P was entitled
to compound interest quarterly even if the
judgment did not provide for such
compounding in its dispositive portion, the
reason being that such ambiguity is
clarified in the body of the decision. Is this
order valid?
No.
The settled doctrine is that if there
is a conflict between the body of the
decision and the dispositive part, the latter
should prevail. It is only when there is an
ambiguity in the dispositive part that the
court may resort to the body of the
decision to clarify the ambiguity. But this
doctrine applies only when there is a
conflict between the body and the
dispositive portion.
Here, however, the dispositive part
is of the judgment is clear and
unambiguous, so that there is nothing to
interpret or clarify even if it is in conflict
with the statements in the body. In such a
case the rule is clear, it is the dispositive
part that should prevail. The judgment
here is clear for the payment of interest at
18% per annum; it cannot be taken to be an
interest to be compounded quarterly.
What actually happened may be an
oversight on the part of the trial judge in
not including in the judgment a provision
for the payment of compound interest on a
quarterly basis. There is a parallel neglect
on the part of counsel for P in not seeking a
modification of the judgment before it
became final and executory. The error
cannot be cured by amendment; it is not a
mere clerical error but a judicial error.
Garcia v. Amin 90 O.G. 2095 (CA, 1990)
Riano (1) 578 - 579
Service of summons was made by a PNP
policeman in the municipality where the
defendant resides. At plaintiff's behest, an
affidavit was executed by the former
presiding judge of the issuing court that he
had issued an order authorizing service of
summons by the policeman but the court
record showed no such approval. So,
plaintiff, submitting this affidavit to the
court, moves for the issuance of an order
nunc pro tunc stating the requisite
authority for service of summons by this
policeman. Should this motion be granted?
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No.
A judgment nunc pro tunc is one
intended to enter into the record acts
which had already been done, but which do
not yet appear in the record. Without some
visible data in the record of the issuance of
such an order, a nunc pro tunc entry is not
justified.
Lichauco v. Tan Pho, 51 Phil. 662 [1923]
On 01 July 1985, the RTC issued judgment,
which was duly served on the parties one
week later, based on compromise between
P and D Corporation under which D was
supposed to make payments to P. On 14
February 1992, due to D's alleged failure to
make some of the payment required under
the compromise judgment, P filed an
action in the same RTC to compel D to
make these payments. In answering the
complaint, D admitted the promulgation of
the compromise judgment but alleged that
it was entered into by its then President
without the requisite authority of the
stockholders and that it was therefore ultra
vires. Can this defense still be
entertained?
No.
The compromise judgment was
immediately final and executory and its
validity cannot be assailed collaterally
unless the ground of attack is lack of
jurisdiction or an irregularity apparent on
the face of the record or because it is
vitiated by fraud.
Cadano v. Cadano, 49 SCRA 33 [1973]
Can a party move to set aside a
compromise judgment? If so, how and on
what grounds?
Yes.
A compromise agreement is a
judgment rendered by the court on the
basis of an agreement entered by the
parties to the action. When a compromise
agreement was taken against a party
through fraud, accident, mistake or
excusable negligence, the same may be set
aside by Rule 38. A Rule 37 motion, which
presupposes a non-final judgment, is not
available because a compromise judgment
is immediately final and executory.
Riano (1) 606-608; Samonte v. Samonte
Both plaintiff and defendant were duly
served copies of the decision on July 1.
Neither party appeals or files a motion for
new trial or reconsideration. When does
this decision become final?
If no appeal or motion for new trial
or reconsideration is filed within the time
provided under the Rules, the judgment or
final resolution shall forthwith be entered
by the clerk in the book of entries of
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judgments. The date when the judgment or

final resolution becomes executory shall be
deemed as the date of its entry.
Rule 51, Sec. 10

May judgment
alternative?
be rendered in

Yes such as that in a replevin case,

the

after trial of the issues, the court shall
determine who has the right of possession
to and the value of the property and shall
render judgment in the alternative for the
delivery thereof to the party entitled to the
same, or for its value in case delivery
cannot be made, and also for such damages
as either party may prove, with costs.
Rule 60, Sec. 9
9 Post-Judgment Remedies
Is there any decision of the MTC in civil
cases which is directly reviewable by the
CA?
None.
An appeal from a judgment or final
order of a Municipal Trial Court may be
taken to the Regional Trial Court exercising
jurisdiction over the area to which the
former pertains.

Summary Judgment Rule 40, Sec. 1; Riano (1) 657

Action by P against D in the RTC for

damages allegedly suffered by P while a
paying passenger in a vehicle owned and New Trial/ MR
driven by D. During the pre-trial, the
parties entered into such a comprehensive
stipulation of facts that the judge was
moved to decide the case on summary
When is a Motion for Reconsideration of an
judgment. Proper?
RTC judgment considered pro forma, and
what is the risk to the movant in filing such
No.
a motion?
The Rules require that for summary
judgment to issue, it must be on motion of
Under the Rules, a motion for
a party and after due hearing.
reconsideration is pro-forma if it does not
Rule 35, Sec. 1,3
point out specifically the findings of
conclusions in the judgment which are not
Where there is an issue as to defendant's
supported by evidence or which are
liability for exemplary damages, may the
contrary to law, making express reference
court render summary judgment in the
to the pertinent evidence or legal
case?
provisions.
No. Summary judgment is proper
In the cases where motion for
only when there is no triable issue of
reconsideration was held to be pro forma,
material fact except as to the amount of
the same was so held because:
damages, not as to the liability for damages.
1. it was a second motion for
Rule 35, sec 3
reconsideration
2. it did not comply with the rule
An appellant in a civil case pending in the
that the motion must specify the
CA filed a motion for the reception of
findings and conclusions alleged to
specified evidence for the purpose of
be contrary to law or not
clarifying facts already in the record in
supported by the evidence
order that the CA would be better able to
3. it failed to substantiate the
resolve relevant factual issues raised in the
alleged errors
appeal. Will the motion prosper? Why?
4. it merely alleged that the decision
in question was contrary to law
Yes. Under Section 15, Rule 44 of
5. the adverse party was not given
the Rules of Court, whether or not the
notice thereof.
appellant has filed a motion for new trial,
he may include in his assignment of errors
A pro forma motion for
any question of law or fact that has been
reconsideration shall not toll the
raised in the court below and which is
reglementary period of appeal.
within the issues framed by the parties.
Alvero v. Dela Rosa; Riano (1) 621
Rule 44, Section 15
Rule 37, Sec. 2

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Is an order denying a motion for
reconsideration of a final and appealable
judgment itself appealable?
No. Under Sec. 9 of Rule 37, an
order denying a motion for new trial or
reconsideration is not appealable. What a
party must do is to appeal the judgment or
final order.
Rule 37, Sec. 9; Riano (1) 630
In an action by P against D, the RTC
rendered judgment which was served on P
on 01 July 1995 and on D on 05 July 1995.
On 20 July 1995, D filed his notice of
appeal from this judgment to the CA, and
on the same date P filed a motion for
reconsideration of the same judgment. Is
P's motion for reconsideration timely?
No.
The decision had become final in
respect to P. The clause "upon the
expiration of the last day to appeal by any
party" in Sec. 23 of the Interim Rules refers
to D whose period to appeal has not yet
expired, P's period to appeal having expired
on 16 July 1995.
Abe Industries, Inc. v. CA
Is there any case where an appeal may be
made to the SC by notice of appeal?
None.
No appeal may be taken to the
Supreme Court from a judgment of a
Regional Trial Court by notice of appeal
under Rule 41 of the Rules of Court,
regardless of any statement in the notice
that the Supreme Court is the court of
choice; and no judge or clerk of a Regional
Trial Court, shall elevate, or cause to be
elevated, to the Supreme Court the records
of a case thus erroneously appealed under
pain of disciplinary action, said officials, no
less than the attorney taking the appeal,
being chargeable with knowledge that the
appellate jurisdiction of the Supreme Court
may properly be invoked only through
petitions for review on certiorari.
(No.4 [a], Circular No. 2-90)
Ordinary appeal
The appellant was delayed for one month in
paying to the Court of Appeals his docket
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fee. Appelle therefore moved to dismiss his
appeal but appellant countered by saying
that he neglected to pay the docket fee on
time because he was too busy. Rule on the
motion.
Motion should be granted.
The Rules provide that within the
period for taking an appeal, the appellant
shall pay to the clerk of court which
rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful
fees.
Hence, the Rules require the
payment of the docket fee within the
reglementary period to perfect an appeal.
Without such payment, the appellate court
does not acquire jurisdiction over the
subject matter of the action and the
decision sought to be appealed from
becomes final and executory.
By sheer coincidence, Atty. Lopez was on
the same day, 30 June 1991, served with
adverse decisions of the Court of Appeals
and the Regional Trial Court. In each case,
he filed a motion for reconsideration
simultaneously on 10 July 1991. He
received notices of the denial of his two
motions for reconsideration on 15 August
1991.
If Atty. Lopez decides to appeal in each of
the two cases -
(a) What mode of appeal should he
pursue in each case?
(b) How would he perfect each appeal?
(c) Within what time should each
appeal be perfected?
A.
(a) RTC to CA
a. by ordinary appeal or appeal by
writ of error where judgment was
rendered by the court in the
exercise of its original jurisdiction
raising questions of fact or mixed
questions of fact and law
b. petition for review where judgment
was rendered by the court in its
appellate jurisdiction on questions
of fact, questions of law or mixed
questions of fact and law
RTC to SC
Petition for review on certiorari or appeal
by certiorari to the SC where judgment was
rendered by the court in the exercise of its
original jurisdiction raising only questions
of law.
CA to SC
Petition for review on certiorari or appeal
by certiorari raising questions of law.
Pacamalan|Piquero| Ratilla,

(b) RTC to CA - in the exercise of its
original jurisdiction shall be taken by filing
a notice of appeal with the court which
rendered the judgment or final order
appealed from, and serving a copy thereof
upon the adverse party.
RTC to CA in the exercise of its
appellate jurisdiction shall be made by
filing a verified petition for review with the
CA, paying at the same time to the clerk of
said court the corresponding docket and
other lawful fees, depositing P500.00 for
costs, and furnishing the RTC and the
adverse party with a copy of the petition.
RTC to SC/CA to SC shall be made by
filing a verified petition with the SC within
the reglementary period
( c ) On or before 30 August 1991, or fifteen
days from notice of the denial of the
motion for reconsideration but where a
record on appeal is required, the appellant
shall file a notice of appeal and a record on
appeal within 30 days from notice of
judgment or final order.
Sec.3, Rule 41; Sec. 1, Rule 42; Sec. 2 Rule
45, ROC; Riano (1) 664, 667, 685
Rule 41, Sec. 2; Riano (1) 661
Rule 41, Sec. 2[a]; Riano (1) 664
Rule 42, Sec. 1; Riano (1) 668
Rule 41, Sec. 3; Rule 42, Sec. 1; Rule 45,
Sec. 2; Riano (1) 664, 667, 685
Alternative answer:
a) The mode of appeal of the case decided
by the CA is an appeal by certiorari to the
Supreme Court under rule 45. If the
decision of the RTC is from the exercise of
its original jurisdiction, the mode is a
notice of review under Rule 41.
If the decision of the RTC is in the
exercise of their appellate jurisdiction, the
mode is petition for review in accordance
with Rule 42. In all case where only
questions of law are raised or involved, the
appeal shall be to the Supreme Court by
petition for review on certiorari in
accordance with Rule 45.
b) Appeal by certiorari under Rule 45 is
perfected by filing verified a petition for
review on certiorari and by paying the
corresponding docket and other lawful fees
to the clerk of court of the Supreme Court
and deposit the amount of P500.00 for cost.
Proof of service of a copy thereof on the
lower court concerned and on the adverse
party shall be submitted together with the
petition.
An ordinary appeal is perfected by
filing a notice of appeal and by paying to
the clerk of court which rendered the
decision of final order appealed from, the
full amount of the appellate court docket
and other lawful fees. A record of appeal
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should also be filed together with a notice
of appeal when required by the Rules of
Court. A petition for review under Rule 42
is perfected by filing a verified petition for
review with the Court of Appeals, paying at
the same time to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs,
and furnishing the Regional Trial Court and
the adverse party with a copy of the
petition.
c) The period for appeal by certiorari under
Rule 45 is within 15 days from notice of
the judgment, final order or resolution
appealed from, or within 15 days from
notice of the denial of the petitioners
motion for new trail or motion for
reconsideration filed in due time.
The ordinary appeal under Rule 41
shall be taken within 15 days from
notice of the judgment or final order
appealed from. Where a record on appeal is
required, the appellants shall file a
notice of appeal and a record on appeal
Within 30 days from notice of the
judgment or final order. " However, on
appeal in habeas corpus cases shall be
taken within 48 hours from notice of
the judgment or final order appealed
from. The petition for review under Rule
42 shall be filed and served within 15
days from notice of the decision sought
to be reviewed or of the denial of
petitioners motion for new trial or
reconsideration filed in due time after
judgment.
Rule 41 Sec 2, Sec 3, Sec 4. Rule 42 Sec 1,
Rule 45 Sec 1, Sec 2, Sec 3, Sec 5
On what grounds may the trial court dismiss
an appeal taken from its decision?
Prior to the transmittal of the
original record or the record on appeal to
the appellate court, the trial court may,
muto proprio or on motion, dismiss the
appeal for having been taken out of time or
for non-payment of the docket and other
lawful fees within the reglementary period.
Rule 41, sec. 13 as amended A.M. No. 00-2-
10-SC, effective 01 May 2000)
An appellant in a civil case pending in the
CA filed a motion for the reception of
specified evidence for the purpose of
clarifying facts already in the record in
order that the CA would be better able to
resolve relevant factual issues raised in the
appeal. Will the motion prosper? Why?
Yes. Under Section 15, Rule 44 of
the Rules of Court, whether or not the
appellant has filed a motion for new trial,
he may include in his assignment of errors
any question of law or fact that has been
raised in the court below and which is
within the issues framed by the parties.
Pacamalan|Piquero| Ratilla,

Rule 44, Section 15
In an action for unlawful detainer by P
against D in the MTC, judgment was
rendered against D ordering him to yield
the premises to P. On Ds timely appeal to
the RTC, the latter found that he had been
unlawfully withholding possession of the
premises for more than one year prior to
the filing of the complaint and that
therefore the proper action was accion
publiciana and not unlawful detainer, and
the RTC thereby declared the MTC without
jurisdiction over the case and nullified the
proceedings therein. Now, P filed a Rule 65
petition for certiorari with the CA against
this RTC decision. How should the CA
resolve the certiorari petition?
The CA should dismiss the certiorari
petition.
The RTC made an error of judgment
not an error in jurisdiction to warrant a
petition for certiorari under Rule 65.
A distinction must be made
between errors of judgment and errors of
jurisdiction. An error of judgment is one
which the court may commit in the
exercise of its jurisdiction. An error in
jurisdiction renders an order or judgment
void or voidable. Errors of jurisdiction are
reviewable on certiorari, errors of
judgment, only by appeal.
Rule on Summary
Procedure
Defendant, who was served the MTC's
adverse judgment in an ejectment case on
01 June 2000 moved on 03 June 2000 for
reconsideration of this adverse decision.
The MTC's order denying the motion for
reconsideration was served on defendant
on 20 June 2000. Then, on 27 June 2000,
defendant filed a notice of appeal from the
ejectment decision to the RTC. Is the
appeal timely filed?
No.
The ejectment decision having
presumably been rendered by the MTC
under the Revised Rule on Summary
Procedure, a motion for reconsideration is
a prohibited pleading. So, the filing of this
motion did not suspend or toll the running
of the period for finality of the ejectment
decision which thus became final on 16
June 2000.
1991 revised Rule on Summary Procedure,
Sec. 19 [c]
Does an appeal from a final judgment of
the RTC stay the enforcement of this
judgment?
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Yes.
Except in civil cases decided under
the Rule on Summary Procedure, the
appeal as a rule, shall stay the judgment or
final order, unless the CA, the law or the
rules shall provide otherwise.
Rule 42, Sec. 8[b]; Riano (1) 670
Rule 45
A sued B in RTC-Manila for breach of
contract. B filed a motion to dismiss on the
ground that the complaint fails to state a
cause of action. Before the motion to
dismiss was resolved, A filed an amended
complaint. The RTC did not admit
amended complaint, ruling that A failed to
obtain leave of court. A's motion for
reconsideration was denied; so, he filed a
petition for certiorari in the Court of
Appeals. B moves to dismiss the petition
contending that the CA has no jurisdiction
to issue certiorari, since only a question of
law is involved. Is the RTC judge correct?
Does the CA have jurisdiction to issue
certiorari? Decide.
Is the review by the SC of the decision of
the CA a matter of right? Under what
circumstances will the SC review the said
decision.
No, review by the SC is not a
matter of right but of sound judicial
discretion.
The Rules provide that it will be
granted only when there are special and
important reasons therefor. The following,
while neither controlling nor fully
measuring the courts discretion, indicate
the character of the reasons which will be
considered:
(a) When the court a quo has decided a
question of substance, not
theretofore determined by the
Supreme Court, or has decided it in
a way probably not in accord with
law or with the applicable decisions
of the Supreme Court; or
(b) When the court a quo has so far
departed from the accepted and
usual course of judicial proceedings,
or so far sanctioned such departure
by a lower court, as to call for an
exercise of the power of
supervision.
Petition for Certiorari
Rule 65
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By what mode can a party seek the review
of an order denying his petition for relief
from judgment?
Only by an appropriate special civil
action for certiorari under Rule 65, and not
by an appeal.
Dismissal of Appeals
What should the CA do to an appeal by
notice of appeal from the RTC to it when
the appellant raises issues of law only, or
to an appeal by notice of appeal from a
judgment of the RTC in the exercise of its
appellate jurisdiction?
An appeal under Rule 41 taken from
the RTC to the CA raising only questions of
law shall be dismissed, issues purely of law
not being reviewable by said court.
Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a RTC shall be
dismissed. An appeal erroneously taken to
the CA shall not be transferred to the
appropriate court but shall be dismissed
outright.
Rule 50, Sec. 2; Riano (1) 665-666
When can you file petition for relief?
It can be filed when a judgment or
final order is entered, or any other
proceeding is thereafter taken against a
party in any court through fraud, accident,
mistake, or excusable negligence or when a
judgment or final order is rendered by any
court in a case, and a party thereto, by
fraud, accident, mistake, or excusable
negligence, has been prevented from taking
an appeal.
Rule 38, Sec 1, Sec 2 Rules of Court
10 Execution and Satisfaction
Who may file a terceria, with whom is it
filed and what is the effect of its filing?
A terceria is a third-party claim
filed by a third-party claimant or a stranger
to the action with the officer making the
levy. The third-party makes an affidavit of
his title to the property or right to
possession thereof, stating the grounds of
such title, and serves the same upon the
officer making the levy and a copy to the
judgment oblige.
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Its effect is that the officer shall
not be bound to keep the property, unless
the judgment obligee, on demand by the
officer, files a bond approved by the court
to indemnity the third-party claimant in a
sum not less than the value of the property
levied on.
A obtained a judgment against X for the
payment of money. For failure to appeal
the judgment became final on July 5, 1975.
Writs of Execution were returned
unsatisfied for the sheriff was unable to
find property of X subject to execution. On
June 30, 1984, A located some property of
X. Whereupon A immediately filed in July
1984 a motion for issuance of an alias writ
of execution. If you were the judge, will
you grant the writ?
The writ must not be granted.
Under the Rules, a final and
executory judgment or order may be
executed on motion within five (5) years
from the date of its entry. After the lapse
of such time, and before it is barred by the
statute of limitations, a judgment may be
enforced by action.
In the given case, the judgment
had been final and executory for more than
five years. Therefore, following the Rules
of court, the motion must not be granted,
the proper course of action being to
enforce the judgment by independent
action and not by a mere motion.
Section 6, Rule 39
Distinguish Final judgment or order and
final and executory judgment
A final judgment or order is one
that finally disposes of a case, leaving
nothing more to be done by the court in
respect thereto. Nothing more remains
except to await the parties next move and
ultimately of course to cause the execution
of the judgment once it becomes final and
executory. A final and executory judgment
is a final judgment or order which has been
rendered and no appeal has been taken at
the time prescribed
Phil Business Bank vs Chua
Riano(1) 592
A filed an action to recover possession of a
parcel of land which had a building on it
constructed by the possessor. The Court
rendered a judgment in favor of A ordering
the possessor to vacate the premises and
deliver the possession of the property to A.
After the judgment became final and
executory, the possessor did not leave the
premises. Upon motion, the Court issued a
writ of execution to execute or enforce the
judgment. In the process of implementing
the writ, the Sheriff demolished the
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building constructed by the possessor on
the land. Was the demolition valid? Why?
No, the demolition is not valid.
The Rules provide that when the
property subject of the execution contains
improvements constructed or planted by
the judgment obligor or his agent, the
officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon
motion of the judgment oblige after due
hearing and after the former has failed to
remove the same within a reasonable time
fixed by the court.
In order to demolish the building a
special court order is needed. In this case,
no such special order was acquired thus
making the demolition not valid.
Rule 39, Sec. 14
I Provisional Remedies
Preliminary Attachment
Ping and Fred were friends. The former
lived in Iligan City and the latter in CDO.
On March 15, 2000, Ping borrowed 100k
from Fred and the loan was payable within
6 months. 4 months after, or On July 15,
2000, Ping borrowed another 150k from
Fred, who willingly gave the loan because
of their friendship. The second loan was
also payable within 6 months. Because of
their friendship Fred only charged an
interests of 5% per month on both loans.
The two loans were evidenced by a PN.
Six months after the first loan was
contracted, Ping was unable to pay it. Fred
immediately demanded payment. Ping
could not pay because after their puppies
died, his wife left him and withdrew all
their funds from the bank and went to
South Africa for good. On October 15, 2000,
Fred filed an action with the RTC for
collection with PA against Ping praying that
Ping be ordered to pay his total principal
obligation of 250k, accumulated interest
and attorneys fees of 20k.
(a) If you were the judge, and
assuming that the bond was
filed, would you grant the
application for PA?
(b) If you were Pings lawyer,
would you file a motion to
dismiss? Explain.
(c) Assume that Pings lawyer
filed a motion to dismiss and
assume further that the judge
was convinced with the
lawyers argument, and
accordingly dismissed the case.
Immediately upon receipt of
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the order dismissing the case,
Freds lawyer filed with the
CA a petition for Certiorari
under Rule 65. Do you agree
with Freds lawyer? Why?
(d) Was the order of the court
dismissing the case final and
executory?
(e) Assume that the CA granted
Freds petition for certiorari.
Ping wanted to appeal the
decision of the CA to SC. State
the procedure of appeal from
the CA to the SC, and state
the reasons for which the SC
may review the decision of the
CA.
(a) No, I will not grant the application for
preliminary attachment since the instant
case does not fall within any of the grounds
wherein preliminary attachment may issue.
Preliminary attachment is not
available merely because the debtor is
insolvent or unable to fulfill his obligation.
PA is only available when: (a) there is
intent to depart from the country with
intent to defraud, (b) when it involves
money or property embezzled or
fraudulently misapplied; (c) when it is to
recover possession of property unjustly or
fraudulently taken; (d) when the party is
guilty of fraud in contracting the debt or in
the performance thereof; (e) when the
debtor has removed or disposed of his
property with intent to defraud and (f)
when the debtor does not reside and is not
found in the Philippines.
All these grounds are not available
in the instant case. Jurisprudence provides
that a man may be unable to pay his debts
in full, and still be doing all in his power to
pay them, and, so long as he furnishes no
statutory cause of attachment against him,
no attachment will be made against his
property.
2014 Riano (2) 23; Federal Farm v. Mulder
(b) Yes, I will file a motion to dismiss on
the ground of lack of jurisdiction over the
subject matter.
At the time the case was filed, the
second loan has not yet matured. It was to
become due and demandable after six
months or on January 15, 2001. The second
loan not being due and demandable at that
time, the totality rule cannot apply. Hence,
the amount that should be the basis for
determining the jurisdiction of the action is
100k the amount of the first loan that has
become due and demandable. This amount
falls under the jurisdiction of the MTC.
Hence, motion to dismiss is proper.
Comment [Bance]
This question was probably asked
during the time when the jurisdictional
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amount of the RTC is for claims exceeding

200k. What is important to remember is The grant of the remedy is a matter
that the totality rule cannot apply given of judicial discretion. It is not a matter of
that the second loan has not yet matured. right. Attachment however may issue
As to the second loan, there is no cause of when:
action yet. (a) in an action for recovery of a
specified amount of money or
damages, other than moral and
(c) No. A special civil action for certiorari
exemplary, on a cause of action
under Rule 65 lies only when there is no
arising from law, contract, quasi-
appeal nor any plain, speedy and adequate
contract, delict or quasi-delict
remedy in the ordinary course of law.
against a party who is about to
Certiorari cannot be allowed when a party
depart from the Philippines with
fails to appeal a judgment despite the
intent to defraud his creditors;
availability of that remedy.
(b) in an action for money or property
What the counsel of Fred should
embezzled or fraudulently
have done is to elevate the matter by filing
misapplied or converted to his own
a notice of appeal under Rule 41.
use by a public officer, or an officer
or a corporation, or an attorney,
(d) No, the order was not yet final and
factor, broker, agent or clerk, in the
executory.
course of his employment as such, or
The Rules provide only when no
by any other person in a fiduciary
appeal or motion for new trial or
capacity, or for a willful violation of
reconsideration is filed within the period to
duty;
do so shall a judgment or final order
(c) in an action to recover the
become final and executory.
possession of property unjustly or
Hence, Fred may still file an appeal
fraudulently taken, detained or
during the reglementary period for
converted, when the property, or
perfecting an appeal and prevent the
any part thereof, has been
judgment from becoming final and
concealed, removed, or disposed of
executory.
to prevent its being found or taken
by the applicant or an authorized
(e) A party desiring to appeal a final order
person;
or resolution of the CA to the Supreme
(d) in an action against a party who has
Court may do so by filing a verified petition
been guilty of a fraud in contracting
for review on certiorari under Rule 45. He
the debt or incurring the obligation
must comply with the following:
upon which the action is brought, or
v The petition must be filed within 15
in the performance thereof;
days from notice of judgment.
(e) in an action against a party who has
v He must pay the corresponding
removed or disposed of his property,
docket and other lawful fees.
or is about to do so, with intent to
defraud his creditors; or
A review is not a matter of right but of
(f) in an action against a party who
sound judicial discretion and will be
does not reside and is not found in
granted only when there are special and
the Philippines, or on whom
important reason. The following, though
summons may be served by
not controlling, indicate the character of
publication.
the reasons which will be considered:
(1) the CA has decided a
question of substance which
the SC has not yet
Preliminary Injunction
determined or the CA
B brought his wife to Russia for medical
decided in a case not in
treatment. While B was abroad, A filed an
accord with law or with the
action against B with application for TRO
applicable decisions of the
and PI. The notice could not be effected
SC; or
because the sheriff discovered after
(2) when the CA has so far
diligent efforts that there was nobody in
departed from the accepted
the house of B. Upon filing of the complaint
and usual corse of judicial
and receiving the report of the sheriff, the
proceedings or so far
Executive Judge raffled the case and issued
sanctioned such departure
a TRO without requiring A to put up a bond.
by a lower court, as to call
B was not notified of the raffling. After the
for an exercise of the
case was raffled to a branch, the latter
power of supervision.
without holding a summary hearing
Rule 45, Sec. 1-3, 6
extended the TRO issued by the Executive
Judge.
When is it proper to grant a writ of
preliminary attachment?

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(a) Was the raffling of the case
valid?
(b) Was the issuance of the TRO
without requiring applicant to
put up a bond valid?
(c) Was the extension of the
validity of the TRO valid? Why?
(a) No, the raffling of the case is not valid.
The Rules provide that when an
application for a writ of preliminary
injunction or TRO is included in complaint
or any initiatory pleading, the case, if filed
in a multi-sala court, shall be raffled only
after notice to and in the presence of the
adverse party or the person to be enjoined.
The facts show that the adverse
party was not notified. Hence, the raffle
was not valid.
(b) No, although the bond requirement is
upon the courts discretion the issuance of
the TRO is invalid because there is no
showing that the matter is of extreme
urgency and that the applicant would suffer
from grave or irreparable injury if the
desired TRO would not be issued.
Alternative Answer [Bance]
Generally, the applicant shall filed
a bond but the Rules grant the court the
discretion on the matter of posting a bond
before granting a temporary restraining
order or not.
Given that the court did not require
a bond to be posted, it may be reasonably
presumed that, in its discretion, no damage
will be suffered by the enjoined party.
(c) No, the extension is not valid. The Rules
require the judge before whom the case is
pending to conduct a summary hearing to
determine whether or not the TRO can be
extended.
Since no summary hearing was held,
the extension is invalid.
Can a temporary restraining order be issued
ex-parte?
Yes.
The Rules provide that if the
matter is of extreme urgency, and the
applicant will suffer grave injustice and
irreparable injury, the executive judge of a
multi-sala court or the presiding judge of a
single-sala court may issue ex parte a TRO
effective for only 73 hours from issuance,
not service. There is also a need to
immediately comply with the requirement
on service ov summons and other
documents as provided for in the preceding
section.
Riano (2) 101.
Suppose the main case is dismissed by
judgment after trial and this judgment is
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appealed, what happens pending appeal to
a writ of preliminary injunction issued by
the trial court while the case was pending
with it?
The preliminary injunction is not
ipso facto dissolved if the judgment of
dismissal is silent on the matter as,
otherwise, the case will become moot
despite the appeal. So, the preliminary
injunction is dissolved only if the court
expressly says so.
The rule is different in case of a
permanent injunction, in which case Sec.4,
Rule 39 expressly provides that the
judgment granting, dissolving, or denying
the injunction is immediately operative.
Rule 39, Sec. 4; Dimaunahan v. Aranas
P, a resident of San Juan, Metro Manila,
entered into an agreement with D, a
resident of Quezon City, respecting a
piggery business in Marilao, Bulacan. They
quarreled over the management and
control of the business, and so P sued D in
RTC-QC which issued a preliminary
injunction restraining D, his nominees, and
all persons claiming under him from
entering the piggery compound in Marilao,
Bulacan. D moved to lift the preliminary
injunction on the ground that it is sought to
be enforced beyond the territorial
jurisdiction of the RTC-QC. Resolve the
motion.
Motion must be denied.
Generally, an injunction under
Section 21 of Batas Pambansa Bilang 129 is
enforceable within the region. The reason
is that the trial court has no jurisdiction to
issue a writ of preliminary injunction to
enjoin acts being performed or about to be
performed outside its territorial boundaries.
However, to avoid an irreparable prejudice
the Supreme Court allowed in Dagupan
Electric Corporation et al. v. Pano (95 SCRA
693) the enforcement of an injunction to
restrain acts committed outside the
territorial jurisdiction of the issuing court.
In the said case the Court ruled that a
Court of First Instance has jurisdiction to
try a case although the acts sought be
restrained are committed outside its
territorial jurisdiction where the principal
business addresses of the parties and the
decisions on the acts to be restrained are
located and originated within the court's
jurisdiction. Embassy Farms, Inc. vs. CA
ReplevIn
X obtained a loan to buy machineries for his
garment business. He executed a chattel
Pacamalan|Piquero| Ratilla,

mortgage over said machineries. Because of
business reverses, he defaulted in the
payment of his obligation. A, the
mortgagee, sought the delivery of the
machinery so that they can be sold at
foreclosure sale but X refused contending
that it would result to stoppage of his
business. A seeks your advice regarding his
problem. What is your legal opinion on the
matter?
A can seek an action for foreclosure of the
chattel mortgage and avail of the
provisional remedy of replevin. There can
be no question that persons having a
special right of property in the goods the
recovery of which is sought, such as a
chattel mortgagee, may maintain an action
for replevin therefor. When the creditor
desires to foreclose mortgage upon default
of debtor, he must necessarily take the
mortgaged property in his hands, but when
the debtor refuses to yield the possession
of the property, the creditor must institute
an action, either to effect a judicial
foreclosure directly, or to secure possession
as a preliminary to sale contemplated
under Section 14, Act 1508.
Northern Motors Inc. v Herrera
II Special Civil Actions
Interpleader
When is an action for interpleader proper?
Whenever conflicting claims upon
the same subject matter are or may be
made against a person who claims no
interest whatever in the subject matter, or
an interest which in whole or in part is not
disputed by the claimants, he may bring an
action against the conflicting claimants to
compel them to interplead and litigate
their several claims among themselves.
Rule 63, Sec. 1(a)
X Bus Company purchased 10 buses from Y
Motor Co. covered with promissory notes
and deeds of chattel mortgage. Then, Y
assigned these notes and deeds of chattel
mortgage to A Bank and then subsequently
assigned the same notes and chattel
mortgages to B Finance Co. Then, when X
defaulted on the notes, Y, A and B
demanded payment. In view of their
conflicting claims against it, X filed in the
RTC an interpleader action against Y, A and
B praying that the court determine which
among them is entitled to payment on the
notes. Three days later, B filed an action
for replevin with damages against X and Y
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praying that Y be declared liable to pay B's
claim against X in the event that B is not
able to recover thereon against X.
Defendants moved to dismiss the replevin
complaint on the ground of the pendency of
the interpleader action. Rule on the
motion to dismiss.
Motion to dismiss granted.
There is identity of parties between
the interpleader case and replevin case. In
the interpleader case, the plaintiff is X and
the defendants are Y, A and B, whereas in
the replevin case, the plaintiff is B and the
defendants are X and Y. In both cases
therefore, B, X and Y are parties with the
addition of A, but this addition does not
retract from the requisite identity. In both
cases, the rights spring from the deeds of
assignment executed by Y in favor of A and
B, covering the same debts of X owing to Y.
The identity in both cases is such
that any judgment that may be rendered in
the interpleader case would amount to res
judicata in the replevin case; if judgment
in the interpleader case is that the
assignment to A would prevail over the
assignment to B, such judgment would be
binding on the replevin case and undercut
B's cause of action in the replevin case.
Sanpiro Finance Corp. vs. IAC
Hibok2 Corp is the lessee of a building
owned by Mr. Andrade paying rental 30k a
month. The owner died on 11/10/1999, and
since then the Corp has not paid the rentals
now amounting to 150k because 3 women
are both claiming to be widows of Andrade
and are demanding the rental payments.
What legal action may the corp.
take, before what court, and against whom
to protect the Corps interests?
Hibok2xs counsel should file an
action for interpleader before the
Municipal Trial Court against the 3 women,
who claim to be widows of Mr. Andrade,
and pray that the court resolve their
conflicting claims.
2014 Riano (2), 197
Declaratory Relief
May a third-party complaint be filed in an
action for declaratory relief?
No.
A petition for declaratory relief
seeks no positive or affirmative, much less
any material, relief beyond the
adjudication of the legal rights which are
subject of the controversy between the
parties. But in a third-party complaint, the
defendant or third-party plaintiff is
supposed to seek contribution, indemnity,
subrogation or any other relief from the
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third-party defendant in respect to the
claim of the plaintiff against him.
Commissioner of Customs vs. Cloribel, 77
SCRA 459 [1977]
Petition for Certiorari, Prohibition
and Mandamus
What is the material date rule?
Material date rule or material data
rule provides that there are three material
dates that must be stated in a petition for
certiorari brought under Rule 65:
(1) the date when the notice of the
judgment or final order or
resolution was received;
(2) the date when motion for new
trial or for reconsideration was
filed;
(3) the date when notice of the
denial thereof was received.
This requirement is for the purpose
of determining the timeliness of the
petition.
Rule 46, Sec. 3; Riano (1) 718
Congress passed a law requiring convicted
persons and those under prosecution for
criminal offenses to blood sample to the
jail authorities for DNA test and
examination. A, a lawyer, was convicted
for violation of anti-fencing law. In addition,
A had a pending administrative case before
the SC for disbarment for his refusal to
support a child born out of wedlock. A filed
before the RTC a special civil action for
certiorari with application for PI against the
Bureau of Jail Mgt and the DILG for
requiring him to submit blood sample in
compliance. As grounds were that the law
violated his right to substantive due process
and his right to equal protection of the law.
The RTC decided against A, who appealed
the the decision of the court to the CA by
means of a petition for review. The CA
affirmed in toto the decision of the RTC. A
filed a special civil action for certiorari
with the SC assailing the CA decision.
(a) Do you agree with A when he chose
the remedy of prohibition in
assailing the action of the BJMP and
DILG? Explain.
(b) Was A correct in appealing the
decision of the RTC to the CA by
petition for review?
(c) Was A in error when he resorted to
an original action before the SC in
assailing the decision of the CA?
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(a) Yes, the special civil action for
prohibition under Rule 65 is proper.
The special civil action of
prohibition will lie if the impugned act is
that of a tribunal, corporation, board,
officer or person whether exercising
judicial, quasi-judicial or ministerial
functions and that there is no plain,
speedy and adequate remedy in the
ordinary course of law.
As As primary intention is to
prevent the BJMP and the DILG from
enforcing the law, a ministerial action on
the part of the departments, the relief
sought for by A is clearly to command the
desistance of these departments from
committing the acts.
(b) No, A was not correct in appealing the
decision of the RTC to the CA by petition
for review.
The decision of the RTC in a
petition for prohibition under Rule 65 is
appealable to the CA by way of notice of
appeal via Rule 41, not a petition for
review. This is because the decision of the
RTC is one made in the exercise of its
original jurisdiction.
(c) Yes, A committed an error.
An appeal from the judgment, final
order or resolutions of the CA where the
petition raises only a question of law should
be brought to the Supreme Court via
Appeal by Certiorari under Rule 45.
The filing of a petition for
certiorari under Rule 65 is an improper
remedy which warrants outright dismissal.
P filed a complaint for the recovery of two
barges from the possession of the Philippine
Coast Guard seeking the issuance of a writ
of replevin for the purpose. The trial court,
after the filing by P of the requisite bond,
issued a writ of replevin for the seizure of
the two barges which in the meanwhile
were sold to a third party. Meanwhile, X
filed a motion for intervention, claiming
ownership over the two barges which it
allegedly acquired form P in a public
auction sale. The trial court denied X's
motion for leave to intervene and ordered
the release of the barges to P.
Dissatisfied with this order, X filed
a petition for certiorari in the Court of
Appeals contending that the trial court
gravely abused its discretion in denying X's
motion for leave to intervene. How should
the Court of Appeals resolve the certiorari
petition?
The Court of Appeals should deny
the certiorari petition because other
adequate remedies were available to
petitioner; for instance, a motion for
reconsideration of the order for the
issuance of writ of replevin, or X could have
filed a third-party claim over the barges
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under Section 7, Rule 60, or, of course, X RTC, CA or SC

could have instituted the proper action to
vindicate its claim to these barges. The RTC rendered a decision on January 15,
But back to the merits of the 2002 against the defendant in an action for
motion for intervention, the Rules allow injunction. The defendant filed a motion
such intervention only where it will not for reconsideration of the decision on
unduly delay or prejudice the adjudication January 30, 2002. The court denied the
of the rights of the original parties and motion. On February 16, 2002, the
where the intervenor's rights may not be defendant filed a special civil action for
fully protected in a separate proceeding. certiorari alleging that the court in
Here, the barges had already been rendering the decision and in denying the
sold to a third party and to allow X to motion for reconsideration committed
intervene in the replevin suit would merely grave abuse of discretion amounting to lack
make the proceedings unnecessarily or excess of jurisdiction.
complicated and new and unrelated issues The CA without giving due course to
on conflicting claims of ownership, the petition required the respondents to
authenticity of documents of title and file their answer. Only the private
regularity in the mode of acquisition respondent, the plaintiff filed his answer
thereof may be expected to be raised. praying that the petition be dismissed
Big Country Ranch Corp. v. CA because it was filed out of time.
(a) Is the prayer tenable?
(b) The petitioner filed his reply to
Distinguish between a petition for certiorari private respondents answer
as a special civil action and a petition for praying that since the public
certiorari as a mode of appeal. respondent, the judge, did not file
his answer to the petition, the said
answer was a mere scrap of paper.
Certiorari as a Certiorari as a mode Do you agree?
special civil action of appeal (Rule 45)
(Rule 65) (a) The petition was not filed out of time.
Not part of the A continuation of the The petitioner has 60 days within which to
appellate process but appellate process over file his petition for certiorari.
an independent the original case.
action.
(b) The judge is not required as public
May be directed Seeks to review final
respondent to appear or file an answer or
against interlocutory judgments or final
order or matters orders comment to the pleading or petition
where no appeal may therein, therefore, the judge is not
be taken from impleaded as defendant.
Raises questions of Raises questions of law The law stresses that in an action
jurisdiction elevated to a higher court, the public
Shall be filed not later Shall be filed within respondent is included therein only as
than (60) days from (15) days from notice nominal parties. The judge will only appear
notice of judgment, of judgment, final if specifically directed by the court.
order or resolution order or resolution
sought to be assailed. appealed from
In case a motion for
reconsideration or new Ejectment
trial is timely filed,
whether such motion P filed an action against D for UD in the
is required or not, the MTC for failure to vacate premises being
(60)-day period shall leased on a month-to-month basis after
be counted from notice of termination. D answered, alleging
notice of denial of said as affirmative defense lack of jurisdiction
motion.
of the MTC for failure of P to make on him
Requires , as a general Does not require a
rule, a prior motion prior motion for a prior demand to vacate and
for reconsideration reconsideration counterclaiming for 10k as attorneys fees.
Does not stay Stays the judgment During the pre-trial ,it turned out that P
judgment or order appealed from sent his notice to vacate by registered mail
subject of the but this was not effectively delivered to D,
petition, unless and so the MTC dismissed the case for lack
enjoined or restrained of jurisdiction but awarded D attorneys
The tribunal, board, The parties are the fees of P5k. Did the MTC act correctly?
officer, exercising original parties with
judicial or quasi- the appealing party as
Yes, for demand to vacate is
judicial functions is the petitioner and the
impleaded as adverse party as required when the lease is on a month-to-
respondent respondent without month basis to terminate the lease upon
impleading the lower the expiration of the month. In the absence
court or its judge of such notice, the lease of the private
May be filed with the Filed only with the SC respondent continues to be in force and
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cannot be deemed to have expired as of
the end of the month automatically.
The court correctly ruled that there
was no valid notice to vacate since the mail
was not effectively delivered to D.
Although the rules provide that service may
be done by registered mail, the same is
only completed upon actual receipt of the
addressee or 5 days after receipt of the
postmaster, whichever is earlier.
Hence, the possession of D has not
yet become unlawful to give rise to a cause
of action.
Rule 70, Sec. 2; 2014 Riano (2) 452-454
Alternative answer [Castaares]
No.
Since the MTC had no jurisdiction
over the principal action for unlawful
detainer, then it had no jurisdiction over
the compulsory counterclaim for attorney's
fees either. Defendant's claim for
attorney's fees is in the nature of a
compulsory counterclaim, and a compulsory
counterclaim cannot remain pending for
independent adjudication by the court. A
compulsory counterclaim is merely auxiliary
to the proceeding in the original suit and
derives its jurisdictional support from this
original suit. Besides, it was defendant
himself who caused the dismissal of his
counterclaim by moving for the dismissal of
the complaint.
Dalisay v Marasigan
An ejectment action for non-payment of
rentals was compromised by the
parties. Their compromise agreement,
which the MTC approved, provided for
payment to the plaintiff by defendant of
specified amounts every month for 14
consecutive months, and that the failure of
defendant to pay 3 consecutive
installments shall entitle the plaintiff to a
writ of execution. Defendant having failed
to pay the first 3 stipulated installments,
the MTC, on plaintiffs motion issued a writ
of execution. Acting on this writ, the
sheriff served on defendant a notice to
vacate the premises. Is there any way for
defendant to resist the implementation of
the execution writ?
There is.
The Rules provide that if judgment
is rendered against the defendant,
execution shall issue immediately upon
motion, unless an appeal has been
perfected and the defendant to stay
execution files a sufficient supersedeas
bond, approved by the MTC and executed
by the plaintiff to pay rents, damages, and
costs.
The defendant must take the
following steps to stay the execution of the
judgment:
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(a) perfect an appeal;
(b) file a supersedeas bond to pay
for the rents, damages and
costs
(c) deposit periodically with the
RTC, during the pendency of
the appeal, the adjudged
amount of rend due under the
contract of if there be no
contract, the reasonable value
of the use and occupation of
the premises.
Can the MTC issue a writ of preliminary
mandatory injunction in an action of
unlawful detainer?
Yes.
A possessor deprived of his
possession through forcible from the filing
of the complaint, may present a motion in
the action for forcible entry or unlawful
detainer for the issuance of a writ of
preliminary mandatory injunction to
restore him in his possession. The court
shall decide the motion within thirty (30)
days from the filing thereof.
Rule 70, Sec. 15; Riano (2) 465
In an ejectment case, the MTC ordered the
defendant to vacate the leased premises
and to pay a monthly rental plus atty's fees.
On appeal, defendant deposited the
current rentals with the RTC. But the RTC
granted plaintiff's motion for execution on
the ground of defendant's failure to file a
supersedeas bond. Is the order of
execution correct?
Yes.
Part of Rule 70, Section 19 of the
Rules of Court reads If judgment is
rendered against the defendant, execution
shall issue immediately upon motion, unless
an appeal has been perfected and the
defendant to stay execution files a
sufficient supersedeas bond, approved by
the MTC and executed in favor of the
plaintiff xxx
And, according to the court, In a
case where the defendant did not file any
supersedeas bond or did not make any
monthly deposit, then the plaintiff would
be entitled as a matter of right to the
immediate execution of the city courts
judgment both as to the restoration of
possession and the payment of the accrued
rentals or compensation for the use and
occupation of the premises. In such a case
the execution is mandatory xxx
Rule 70, Sec. 19; Riano, (2) 467,
De Laureano v. Adil
A and B inherited from their father, C, a
parcel of land in 1985. In 1992, D forcibly
entered into and took possession of the
property. May A by himself and without
Pacamalan|Piquero| Ratilla,

including B as his co-plaintiff bring an
action for ejectment against D?
Yes.
According to Article 487 of the Civil
Code, any of the co-owners may bring an
action in ejectment.
Hence, Article 487 of the Civil Code
authorizes any co-owner to bring, in behalf
of himself, and the other co-owners, an
action in ejectment affecting the co-
ownership, and the suit may proceed
without impleading the other co-owners.
Article 487 Civil Code,
De Leon: Property 239
May a person not in possession of the
premises bring an action for unlawful
detainer of these premises?
Yes.
In the case of Pangilinan vs Aguilar,
the court said that prior physical possession
in the plaintiff is not an indispensable
requirement in an unlawful detainer case
brought, by a vendee or other person
against whom the possession of any land is
unlawfully withheld after the expiration or
termination of a right to hold possession
and therefore the allegation of the same in
the complaint is not necessary.
Pangilinan v Aguilar, Jr.
A is the owner of a parcel of land pending
registration in the RTC of Rizal. He
permitted B, a family friend, to construct a
small house on the land and to live therein
for a period of two years only. The two-
year period expired on 1 may 1994, but B
failed and refused to vacate the land.
Hence, on 15 June 1994, A filed an action
against in the RTC of Rizal for the recovery
of possession of the land. B filed a motion
to dismiss the case on the ground that the
proper action was for unlawful detainer and
not for recovery of possession inasmuch as
the alleged detainer of the property was
for a period of less than one year at the
time the action was commenced. Is the
motion well founded?
No.
The court in Gumiran v Gumiran
held that the plaintiff need not wait until
the expiration of the one year period
before commencing an action to be
repossessed to the land and be declared
the owner thereof.
Gumiran v Gumiran, Jr. 21 Phil 174
In an action for ejectment by P against D in
the MTC, judgment ordering D to vacate
the premises and to pay all accrued and
accruing rentals was served on both parties
on 01 July 1995. On 10 July 1995, D filed a
motion for reconsideration of the judgment
on the ground that the MTC had no
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jurisdiction over the case since the issue of
ownership was inextricably involved in the
case and the issue of possession could not
be resolved without resolving this issue of
ownership. The MTC denied D's motion for
reconsideration and the denial order was
served on D on 01 September 1995. The
next day, 02 September 1995, D filed his
notice of appeal to the RTC from the MTC
ejectment decision.
(a) How should the RTC resolve the
appeal?
(b) Suppose the MTC had motu
proprio and without any
hearing, dismissed Ps
ejectment complaint for lack of
jurisdiction, and that it was P
instead who timely appealed
this dismissal order to the RTC,
how should the RTC resolve the
appeal?
(a) The RTC must dismiss the appeal for
being without merit. The assertion of
ownership [by the defendant] over the
disputed property does not serve to divest
the inferior court of its jurisdiction
In providing for the jurisdiction of
first level courts, Section 33 of BP 129 as
amended by RA 7691 in part says that when
the defendant raises the question of
ownership in his pleading and the question
of possession cannot be resolved without
deciding the issue of ownership, the issue
of ownership shall be resolved only to
determine the issue of possession. This is
incorporated in Section 16, Rule 70 of the
Rules of Court.
Riano, (2) 459; Rule 70 Sec 16
Rural Bank of Sta. Ignacia, Inc. v
Dimatulac)
Action in the MTC for unlawful detainer.
Plaintiff rests his right to possession of the
property in dispute upon his claim of
ownership, which claim in turn is based on
a purported contract of sale with right to
repurchase admittedly executed by
defendant but claimed by him to be a mere
simulation to cloak a mortgage obligation
tainted with usury.
If this contract was really a sale
subject to repurchase and the repurchase
as, as alleged by plaintiff, not been made
within the time stipulated, plaintiff would
already be the owner of the property sold
and, as such, entitled to its possession. On
the other hand, if the contract was, as
defendants claim, in reality a mere
mortgage, then the defendants would still
be a the owner of the property and could
not, therefore, be regarded as mere lessees.
After trial, the MTC dismissed the
case for lack of jurisdiction on the ground
that the case involves a question of
ownership. Is the dismissal correct?
Pacamalan|Piquero| Ratilla,

Yes. In the case of Lindayag vs.
Dana, the court held the action (just like
the one instituted above) to be clearly
and action involving ownership over which
the Justice of the Peace (now MTC) had no
jurisdiction.
Lindayag v Dana
On 01 April 1999, P filed in the MTC an
action for forcible entry against D alleging
that on 15 March 1999, he purchased this
parcel but that on 20 March 1999 he found
out that D took possession of this parcel
under the pretext that he is the owner
thereof and that D refused to surrender
possession of the land despite demands. D
filed his answer denying the material
allegations of the complaint and, by way of
special and affirmative defenses, averred
that the MTC has no jurisdiction over the
subject matter of the action because it is
not for forcible entry but an accion
publiciana and that the deed of sale under
which P claims ownership is a forgery.
Does MTC have jurisdiction over the case?
No. For a complaint for forcible
entry to fall within the jurisdiction of the
MTC, it must allege plaintiff's prior physical
possession of the property as well as that
he was deprived of such possession. In the
situation, P merely alleged that on 20
March 1999, he found out that D took
possession of the parcel of land and refused
to surrender its possession to him; P did not
allege that he was in prior physical
possession.
Moreover, P's pretended right to
the possession of the disputed property
ultimately rests upon his claim of
ownership, a claim based upon a purported
contract of sale the genuineness of which is
disputed by D, so that the case, in the final
analysis, hinges on a question of ownership
and is therefore not cognizable by the MTC.
Rimando vs. Borebor
P filed a complaint for unlawful detainer
against D in the MTC. In his complaint, P
prayed for judgment ordering D to vacate
the leased premises and to surrender them
to P, declaring the residential building
constructed on the lot by D as forfeited in
favor of P and adjudging D liable to pay
accrued rentals and P5,000 atty's fees to P.
After D filed his answer, the MTC rendered
a judgment on the pleadings granting all
the reliefs prayed for in P's complaint. Is
this judgment assailable on any
jurisdictional ground?
Yes, the court has no jurisdiction
over the issue of ownership of the building.
While the action for unlawful
detainer is well-within the jurisdiction of
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the MTC, it however has no jurisdiction to
determine the issue of ownership of the
residential building constructed by D which
it did by granting the forfeiture in favor of
P.
In an action for unlawful detainer,
only the issue of possession is resolved and
the court should not decide the issue of
ownership except when the question of
possession cannot be resolved without
deciding the issue of ownership. Even then,
the adjudication on the issue of ownership
is only provisional.
Hence, it was not within the
authority of the MTC to award ownership of
the building constructed by D.
Rosalinda, who is leasing an apartment in
RER Subd., CDO from Fernando Jose, a
resident in Iligan City, under a 5 - Year
Contract expiring on June 30, 2002, is in
arrears in her rent for 5 months as of March
15, 2000. Fernandos lawyer sends a
demand letter to Rosalinda to pay and
vacate the apartment within 30 days.
(a) Suppose that Rosalinda upon
receipt of the letter immediately
pays the back rentals claiming
that she was so busy with her
boyfriends that she neglected to
pay her rent. May Fernando still
file an unlawful detainer case
against Rosalinda?
(b) After the demand letter was sent
to Rosalinda, she failed to comply
with it, and consequently
Fernando filed an ejectment case
with the MTCC in CDO without
going through the conciliation
process at the barangay level. The
amount due was P9,800, hence,
summary procedure was followed.
May Rosalinda file a motion to
dismiss for non-compliance with
the requirements of the barangay
conciliation process?
(a) Yes, Fernando may still file an unlawful
detainer case. The failure to vacate after a
demand to pay and vacate gave rise to a
cause of action in favor of the lessor. The
subsequent payment did not cure the
unlawful withholding of possession of the
premises. The essence of unlawful detainer
involved in the case is the failure of the
defendant to heed the demand to vacate,
and not failure to pay the rentals in arrears.
Riano(2) pp453-454
(b) No, Rosalinda cannot file a motion to
dismiss for non-compliance with the
requirements of the Brgy Conciliation. Brgy
conciliation under the Local Government
Code applies only when a party is suing
somebody who resides in the same city or
municipality where he reside or in the
event of different municipalities, they are
adjacent. In the case at bar Fernando
Pacamalan|Piquero| Ratilla,

resides in CDO and Iligan and CDO are not
adjacent. Hence, brgy conciliation is not a
condition precedent to the present case.
Inigo(1) p369
While the ejectment case filed by A against
B is pending the latter religiously deposits
all current rentals. In due time, the judge
ordered A to pay all the rents until he
vacated the promises as well as Attys fees
in the amount of P10,000. A moves for
immediate execution on the ground that B
did not deposit the Attys fees of P10,000
and that he did not put a supersedes bond
for the award.
(a) Should the court grant immediate
execution? Decide with reasons.
(b) Suppose B appeals the decision
against him to the RTC which
affirmed in toto the lower courts
decision. B then filed a motion for
reconsideration. A moves to strike
out the MR as it is a prohibited
pleading under the Rules on
Summary Procedure. Is this
tenable? Decide with reasons.
(c) Suppose that instead of filing a
motion for reconsideration with
the RTC, B filed a notice of appeal
with the RTC stating that he is
appealing to the CA on the ground
that the judgment is contrary to
the law and the facts of the case.
As lawyer for A, on what
procedural ground will you oppose
the appeal? Explain your answer.
(a) No, the court should not grant
immediate execution. A supersedeas bond
covers rentals in arrears up to the time of
the judgment. Since there are no unpaid
rentals, there is no reason for the bond.
Also, the rule does not require a deposit for
attorneys fees for execution to be stayed.
Riano(2) p471
(b) No, the contention is not tenable. The
Revised Rules on Summary Procedure does
not apply in the RTC. When Y appealed the
decision to the RTC the proceeding is not
anymore summary in nature. The Rules on
Summary Procedure finds no applicability in
the present case hence the motion for
reconsideration is not prohibited.
Inigo(1) p143-144
(c) I would oppose the appeal on the
ground that the procedure is improper. The
correct procedure is to file of a petition for
review with the CA. The filing of a notice of
appeal is proper if the case was decided
pursuant to its original jurisdiction. The
case at bar was actually decided by the
RTC in its appellate jurisdiction. Hence, a
petition for review should be filed and not
a notice of appeal.
Inigo Rule 41 p21
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Is barangay conciliation process as
prerequisite to filing the action applicable
in ejectment cases?
Yes .
The law requiring barangay
conciliation as a prerequisite to any action
as written, makes no distinction
whatsoever with respect to the classes of
civil disputes that should be compromised
at the barangay level.
Damages
Can a MTC award moral and exemplary
damages in an unlawful detainer case?
No.
According to the Court in Felisilda v
Villanueva, an award of moral and
exemplary damages in an ejectment suit is
manifestly erroneous. The only damages
that can be recovered in an ejectment suit
are the fair rental value or the reasonable
compensation for the use and occupation of
the real property. Other damages must be
claimed in an ordinary action.
Felisilda v Villanueva
T was leasing his apartment from L at
P5,000/month under a written contract for
1 year. One month before the expiration of
the lease, L served a demand upon T to
vacate the premises upon its expiry
because he was going to demolish the
building and erect in its place a new
building. T refused to vacate. In
consequence, L's building plans were
delayed. So, L brought an action for
unlawful detainer against T and obtained
judgment therein directing T to pay him
the P5,000 stipulated rental and P500 a day
for every day of delay as damages until he
finally vacates the premises plus P10,000
atty's fees. Is the decision objectionable in
any way?
Yes.
It has been held that while
damages may be adjudged in forcible entry
and detainer cases, these damages mean
rents or the reasonable compensation
for the use and occupation of the premises,
or fair rental value of the property. The
award therefore of P500 for every day of
delay as (temperate) damages, being
neither rent nor reasonable compensation
for the use and occupation of the premises,
nor fair rental value, is improper as it is
without basis in law.
Reyes v CA G.R. L-28466 March 27, 1971
In an ejectment suit filed with MTCC, CDO
the judge rendered a decision ordering the
defendant to vacate the property of the
Pacamalan|Piquero| Ratilla,

plaintiff, and to pay the plaintiff the
amount of 10k a month as reasonable
compensation for the use of the land
starting from the time he occupied the
same and until it is vacated by him; 100k as
unrealized earnings; 50k as moral damages;
30k as exemplary damages and 20k as
attorneys fees. The defendant contends
that the decision is improper. Decide.
Yes. The decision is improper. The
concept of damages in an action for
forcible entry and detainer cases is well
defined in several cases. These damages
mean rents or the reasonable
compensation for the use and occupation of
the premises, or fair rental value of the
property. Temperate, actual, moral and
exemplary are neither rents nor reasonable
compensation for the use and occupation of
the premises, nor fair rental value, and are
not recoverable in such case.
Herrera vs Bollos
Execution
Unlawful detainer action by P against D was
decided in favor of P by the MTC. On P's
motion, MTC granted execution pending
appeal for D's failure to post a supersedeas
bond. D challenged the validity of the
immediate execution for having been
issued without any previous notice to him.
Rule on the validity of the order of
execution.
The order of execution was correct.
The court in Delos Santos v Montesa, Jr.
said that the court (referring to the MTC),
is not duty-bound to notify petitioners of
the immediate enforcement of the
appealed decision xxx.
Delos Santos v Montesa, Jr.
When and under what conditions may a
court issue a demolition order?
Section 10(d) of Rule 39 however
provides that when the property subject of
the execution contains improvements
constructed or planted by the judgment
obligor or his agent, the officer shall not
destroy, demolish or remove said
improvements except upon special order of
the court, issued upon motion of the
judgment oblige after due hearing and
after the former has failed to remove the
same within a reasonable time fixed by the
court.
Stated otherwise, for a demolition
order to issue: there must be a writ of
possession issued in favor of the successful
litigant.
Rule 39 Section 10(d)
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In an ejectment case, the MTCC ordered A
to vacate the nipa house standing on a
residential lot, restore possession thereof
to B and pay the sum of 5k as back rentals
at the rate of 500 per month. A appealed to
the RTC and posted a supersedeas bond of
10k. Subsequently, B filed a motion in the
RTC for the execution of the judgment on
the ground that A had not deposited the
current rental of 500 a month. A opposed
the motion alleging that the MTC did not fix
in its judgment the monthly rental to be
paid during his continued stay in the
premises so that he is not duty bound to
pay the same. Decide the motion for
execution of judgment filed by B.
Yes, Bs motion for execution should be
granted. Under sec 19 of Rule 70 in order to
stop execution the defendant has to do
three things - appeal, to file supersedeas
bond approved by the MTC and to deposit
periodically with the RTC, during the
pendency of the appeal, the adjudged
amount of rent due under the contract or if
there be no contract, the reasonable value
of the use and occupation of the contract.
The adjudged amount in this case is 500 a
month. B then is obligated to deposit with
the RTC the amount of 500 a month. Such
deposit, like the supersedeas bond is a
mandatory requirement; hence if not
complied with, execution shall issue as a
matter of right.
Bugarin vs Palisoc, Antonio vs Geronimo
2014 Riano(2) p469
Contempt
Distinguish indirect from direct contempt.
Generally, direct contempt is
committed in the presence or so near the
court judge as to obstruct or interrupt the
proceedings before the same. Indirect
Contempt is one not committed in the
presence of the court. It is an act done at a
distance which tends to belittle, degrade,
obstruct or embarrass the court and justice.
Siy vs NLRC 468 SCRA 154, Riano (2) 480
By virtue of an execution of the judgment
in an ejectment case, defendant was
successfully ousted from the property in
litigation and plaintiff was lawfully placed
in possession thereof. But 7 years later,
defendant re-entered the property and
forcibly took over possession. Plaintiff now
moves that defendant be declared in
indirect contempt. Rule on the motion.
The motion should be granted.
Pacamalan|Piquero| Ratilla,
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The court said in Benedicto v
Canada that under Rule 71, Sec 3b, the act
of re-entry by a party into the land from
which he was ordered by the court to
vacate may be punished for contempt of
court even after the lapse of five years
from the date of the execution of judgment.
The re-entry is clearly a defiance of
the authority of the court. As it is, the
decision sought to be enforced had long
become final and executory. And unless
and until the said decision is annulled or
set aside in a proper proceeding, the same
must be given effect. (Patagan v. Panis 159
SCRA 507)
Benedicto v Canada Rule 71, Section 3
Patagan v. Panis 159 SCRA 507
interrupt the proceedings before the same
time.
The court, however, in that case
removed the imprisonment applying the
doctrine that the power to punish for
contempt is to be exercised on the
preservative and not on the vindictive
principle it ought not to be utilized for
the purpose of merely satisfying an
inclination to strike back at a party for
showing less than full respect for the
dignity of the court.
Wicker v Arcangel 252 SCRA 444

Atty. Lancelot, on behalf of his client, Lady

Geneveve, filed a motion to inhibit Judge
Merlyn from hearing the action filed by the
lady to recover the key of her chastity belt,
which was made of platinum from King
Arthur.
The motion alleged that Judge
Gloucester had full grasped of the case but
he was eased out of his station and was
mysteriously replaced by Judge Merlyn. The
motion stated that in one hearing Judge
Merlyn had not yet reported to his station
and in that hearing, counsel for King Arthur,
who must have known that his honor was
not reporting did not likewise appear while
other counsels were present. Moreover, the
motion alleged that Judge Merlyn was
personally recruited by Atty. Braveheart
who was at the time a member of the
Judicial and Bar Council, against whom the
lady filed an administrative case which
resulted in Atty. Bravehearts dismissal
from the counsel.
Judge Merlyn issued an order
requiring Atty. Lancelot and the lady to
appear before him to show cause why they
should not be cited for contempt of court
for their allegations in their motion which
allegations were, to the mind of the judge,
malicious, derogatory, and contemptuous.
Atty. Lancelot and the lady appears and
explained but judge Merlyn found their
explanation unsatisfactory, and accordingly,
hold them guilty of direct contempt and
sentenced each to suffer imprisonment for
5 days in separate prison cells and to pay a
fine of P100. Do you agree with the judge.
Reasons.

Yes, in the case of Wicker vs

Arcangel, the court held that a case is one
for direct contempt where it involves a
pleading allegedly containing derogatory,
offensive or malicious statements
submitted to the court or judge in which
the proceeding are pending. It is equivalent
to misbehavior committed in the presence
of or so near a court or judge as to
Bance|Benitez|Castaares|Flor Pacamalan|Piquero| Ratilla,

Villones, A| Villones, H.
2nd Semester, 2014-2015