Table 1 (CLASSIFICATION ACCORDING TO THE OBJECT OF THE ACTION)

ACTION IN PERSONAM ACTION IN REM ACTION QUASI IN REM

- Judgement is for or against a
person directly
- action against the thing itself
- One where an individual is named
as a defendant and the purpose of
the proceeding is to subject his
interest therein to the obligation or
lien burdening the property. (
subjects a person’s interest in a
property to a burden)

Directed against a particular person
 Judgement in in persom
actions is BINDING against
a specified person, and
successor in interest
Directed against the whole world
 Judgement in in rem actions
is binding upon the whole
world.
The object of an action quasi in rem
is the sale or disposition of the
property whether by attachment,
foreclosure or any other form of
remedy

Directed against a thing or property

which concerns the status of a
person (like a petition for adoption,
annulment of marriage or
correction of entries in the birth
certificate) and seeks a judgement
with respect thereto as against the
whole world.

Jurisdiction over the person of the
defendant is required because it
seeks to impose personal liability or
responsibility upon a person
Jurisdiction over the person of the defendant is NOT required to confer
jurisdiction on the court provided that the court acquire jurisdiction over
the RES either
 By the seizure of the property under legal process whereby it is
brought to the custody of the court (include constructive seizure-
by publication and notice) ex. attachment; or
 As a result of the institution of legal proceeding where the court is
given the power to deal with the property or thing

As to SUMMONS, Must be serve to the defendant, not for the purpose of

vesting jurisdiction but to satisfy the requirement of due process. (Thus,
Jurisdiction over the res is not sufficient for a valid judgement. Such
judgement also requires notice or service of summons to all interested
parties to satisfy the requirement of due process.)

 In case of a nonresident defendant ( and is not found in the

Philippines) summon may be by personal service or by publication
 Copy of the summon (published) be sent to the last known address
of the defendant or in any manner the court deemed sufficient
(rule 14 sec 15)

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 Notice must be given personally Proceeding is validated by publication of the proceeding to give notice to
the whole world and to those who might be minded to make objections of
any sort to the right to be established.

It is this publication that brings the whole world as a party

1. action for sum of money
2. action for specific performance
3. action involving sale of property
for the collection of delinquency tax
4. action for conveyance
5. action for injunction
Examples:
1. petitions directed against the
thing itself concerning the status of certificate of title
a person (petition for adoption,
annulment of marriage, correction
of entries)
2. foreclosure proceeding
3. Allowance or probate of a will.
4. land registration
(actions affecting the interest of the
defendant in the property)
1. action for annulment of
2. attachment
3. foreclosure of mortgage
4. action for partition
5. action for accounting

Table 2 (CLASSIFICATION ACCORDING FOUNDATION)

REAL ACTIONS PERSONAL ACTIONS

Actions affecting title to, or possession of, real

properties or interest therein
 Real property or interest therein is the subject
matter of the action

To be a real action, it is not enough that the action deal

with real property. It is important that the matter in
litigation must involve or affect title to or possession of
real property or interest therein.

1. Unlawful detainer 1. Action for specific performance with damages (

2. Forcible entry as long as it does not include a claim of
3. Accion publiciana recovery of ownership of or title to real
4. Accion reivindicatoria property
5. Reconveyance of real property Ex. Action for specific performance for the
6. Partition of real property execution of deed of sale by the defendant
7. Judicial foreclosure of real estate mortgage (personal action)
8. Quieting of title or removal of a cloud Action for specific performance to rescind the
9. Action to annul the deed of REM after the contract on the ground of breach of contract
property is sold ( there is already change of and prayed for the return of possession of land
ownership) to the plaintiff (real action)
Action to foreclose REM ( real action) but an
Prevalent doctrine: action to compel the mortgagee to accept
Action to annul or rescind sale of real property is a real payment of mortgage debt and release the
action because it operates under a theory that mortgage is a personal action
ownership has already been transferred. But an action 2. Action to recover deficiency after the
to annul a deed of real estate mortgage is a personal foreclosure of mortgage
action because ownership has not yet passed to 3. Action to recover possession of personal
another. property

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 4. Action for the declaration of nullity of marriage
5. Action to annul the deed of REM filed by the
mortgagor

As to object (directed to whom. as to foundation

TO WHOM IT IS BINDING)
IN PERSONAM IN REM PERSONAL ACTION REAL
ACTION
LAND REGISTRATION X X
PROBATE OF A WILL X X
RECOVER POSSESSION OF PROPERTY X X
DECLARATION OF NULLITY OF TITLE AND X X
RECOVERY OF OWNERSHIP
ACTION FOR CLARATION OF NULLITY OF X X
MARRIAGE
ACTION FOR DAMAGES X X
ACTION FOR INJUNCTION X X
ACTION FOR RECONVEYANCE (Where the X X
land is wrongfully registered in the name
of another)

DISTINCTION IS NECESSARY TO
DETERMINE
PERSONAL ACTION AND REAL
ACTION the VENUE
IN PERSONAM Whether or not JURISDICTION over IN PERSONAM (resident defendant):
IN REM the person of the defendant is - Service in the person of the
QUASI IN REM required to confer jurisdiction to defendant (sec 6 rule 14); or
the court.; and - Substituted service of
The type of SUMMON to be summon (sec. 7)
employed (Without valid service of summon,
the court cannot acquire jurisdiction
over the person of the defendant.
Except when he personally appear)

( non-resident who does not

voluntarily submit himself)
- Personal service within the
state (possible if he is
physically present in the
country). If not, court
cannot validly acquire
jurisdiction therefore,
cannot validly try a case
against him.

Exception (rule 14 sec 14 and

sec16): summon by publication is
allowed in action in personam (in
any actions) if:
 Identity of defendant is
unknown or whose
whereabouts is unknown

3
  In case of a resident
defendant temporarily
outside of the country

IN REM OR QUASI IN REM ( non-

resident and is not found in the
Philippines)
- Extraterritorial service(sec,
15)
(if found in the Philippines)
- Service in the person of the
defendant; or
- Substituted service

Table 3

QUESTION OF LAW QUESTION OF FACT

when there is doubt or difference arises as to what the When the doubt or difference arises as to the truth or
law is on a certain set of facts falsehood of the alleged facts

Exist when the doubt or controversy concerns the

correct application of law or jurisprudence to a certain
set of facts
Must not involve an examination of the probative value
of the evidence presented by the litigants or any of
them.
The test is whether the court can determine the issue without reviewing or evaluating the evidence. If so, it is a
question of fact; otherwise, it is a question of law.

Table 4

ACCION PUBLICIANA ACCION REIVINDICATORIA

Action for recovery of possession in an ordinary civil Recovery of possession of real property as OWNER.
proceeding, in order to determine the better and legal
right to possess, independent of title.

Main objective is to recover possession only, not Jurisdiction is determine by the assessed value (MV x
ownership assessment value. Synonymous to taxable value) of the
property.

Also used to refer to ejectment suit where the cause of

dispossession is not among the grounds for forcible
entry or unlawful detainer, or when the possession has
been lost for more than one year and can no longer be
maintained under Rule 70.

If the parties raised the issue of ownership, the court

may pass upon the issue to determine who between
the parties has the right to possess. It is not however, a
final and binding determination (only provisional) of

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 the issue of ownership. It is only for the purpose of
resolving the issue of possession.

Table 6
REAL ACTIONS PERSONAL ACTIONS
VENUE place where the property is located/ situated (rule Where the plaintiff or any of the
4) principal plaintiff resides or
Except when the law where the defendant or any of
provides for a venue or the principal defendant resides,
a stipulation in writing at the option of the plaintiff. Or
restricting the venue in case of a non-resident
defendant, where he may be
found at the option of the
plaintiff.
JURISDICTION Jurisdiction of the court in Actions affecting title to,
or possession of, real property, or interest therein
is determined by the assessed value of the
property.

MTC: 20,000 and below

50,000 and below
RTC: above 20,000
Above 50,000

Table 7

Pleading asserting a claim FAILS TO STATE A CAUSE OF LACK OR ABSENCE OF CAUSE OF ACTION
ACTION
Insufficiency of allegation in the pleading (of the Evidence is insufficient to prove the cause of action
elements of one’s cause of action)

There is failure to state cause of action if the allegations

in the complaint do not completely spell out the
elements of a particular cause of action
May be raised in a motion to dismiss under rule 16 Ground for dismissal under rule 33 using a DEMURRER
TO EVIDENCE
Invoked before a defendant filed a responsive pleading Demurrer to evidence is filed After the plaintiff
completed presenting his evidence.
Dismissal of the motion is without prejudice to the Dismissal of the action constitutes RES JUDICATA on the
refiling of an amended complaint. issue and will bar future suits based on the same cause
of action
Examples:
1. action for a sum of money arising from a loan
Elements of COA
 Due and demandable debt
 Demand to pay and the demand went
unheeded
2. actions for forcible entry
 Plaintiff must have a prior physical possession
of the property
 Deprived of the possession of the property
either by force, intimidation, threat, strategy, or
stealth

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  File an action within 1 year from the time he
learned of his deprivation
3. unlawful detainer
 Defendant’s initial possession of property was
lawful, either by contract or by tolerance
 Notice by the plaintiff of the termination of the
defendants right of possession
 Defendant remained in possession and
deprived the plaintiff of his right of possession
 Action is filed within 1 year from the time of
last demand to vacate the property
4. violation of contract
 Existence of a contract
 Breach of the contract

Table 8

REAL PARTY IN INTEREST INDISPENSABLE PARTIES NECESSARY PARTIES

One who stands to be benefited or
injured by the judgement in the suit,
or party entitled to the avails of the
suit.
Interest is REAL ( a present substantial
interest as distinguish from a mere
expectancy or a future, contingent
subordinate )
Is a real party in interest without
whom, NO FINAL DETERMINATION
can be had of an action.
His interest is so intertwined with
the other parties that his legal
presence as a party is an absolute
necessity
Who is not an indispensable party
but ought to be joined as a party
to the case IF COMPLETE RELIEF is
to be accorded as to those already
parties

Unless otherwise authorized by law or 1. suit for breach of contract: the

this rules, every action must be
prosecuted or defended in the name
of the REAL party in interest.
Otherwise, a motion to dismiss may be
filed on the ground that the complaint
states no cause of action. ( if either
party is not a RPII, that party has no
legal right or duty with respect to the
other)
contracting parties
2. nullity of deed of sale: registered
owner
3. action for correction of entries in
civil registry: civil registrar and all
other persons who claims interest
4. action for partition: all the co-
heirs or co owners

Generally, joinder of parties is Presence of necessary is not

merely permissive but it becomes
compulsory if the party is an
indispensable party.
mandatory because his interest is
separable from that of IP. He is
joined whenever possible so that
complete relief can be had to
those who are already parties.

Judgement by the court rendered

without first obtaining jurisdiction
over an indispensable party:
judgment is null and void
 If found on appeal,
decision of the lower court
will be declared void and

6
 the case will be remanded
to the lower court for the
inclusion of indispensable
party

FAILURE TO IMPLEAD: misjoinder

or non-joinder of parties

Not a ground for dismissal. Instead
parties may be dropped or added
by the court on MOTION or MOTU
PROPRIO (order to implead the I.P)
(sec. 11 RULE3)
It when the ORDER to the court
remain unheeded by the action be
dismiss ( failure to comply with the
order of the court- RULE 17)
The pleader must state the name
of the necessary party, if known,
and state why his name is omitted.
If the court found the reason
unmeritorious, it may order the
pleader to join the omitted party if
jurisdiction over the same may be
obtained.
Failure to comply with the ORDER
of the court shall be deemed a
WAIVER of the claim against such
party.

DEFAULT Failure to file answer within the reglementary period

ALLOW THE PLAINTIFF TO PRESENT EVIDENCE EXPARTE Failure of the defendant to appear during the pre-trial
AND RENDER DECISION ON THE BASIS THEREOF
WAIVER OF THE DEFENDANT TO OBJECT TO THE Failure of the defendant to appear in the hearing.
EVIDENCE PRESENTED DURING THE HEARING

Table 10

RULE 9 ORDINARY CIVIL ENVIRONMENTAL SMALL CLAIMS WRIT OF WRIT OF

ACTION CASES CASE AMPARO HABEAS
DATA
DEFAULT Require a motion to The court shall motion to declare motion to declare motion to
declare the declare the defendant in defendant in declare
defendant in default, defendant in default default is a default is a defendant
a notice of the and upon motion of prohibited prohibited in default is
motion to the the plaintiff, receive pleading pleading a prohibited
defendant and evidence exparte pleading
hearing and render Failure to file a Failure of the
judgement based response and to respondent to file Failure of
No motu propio thereon appear during the his verified the
declaration of hearing will allow written return respondent
default Court may, upon its the court to upon service of to file his
own motion, render judgment the writ, the return, the
declare the on the same day. judge shall court of
defendant in (sec. 14) continue to hear justice shall
default. No need the petition ex continue to
for a motion by the parte. (sec.12) hear the
defendant. Motion, petition ex
however, is parte,
required for the granting
such relief

7
 reception of as the
evidence ex parte. petition
may
warrant.
(sec. 14)

Where the answer is

filed beyond the
reglementary period,
the court may still
accept the same
where it is filed
before the
declaration of
default and no
prejudice is caused
to the plaintiff and
there is no intention
to delay the case

REMEDIES:
1. after notice of
order and before
judgement:
a) file a motion
under oath
to set aside
the order of
default and
b) show that
the failure
was due to
FAMEN and
he has
meritorious
defense in
an affidavit
of merit

2. after judgement
and before
judgement becomes
final and executory:
a) File a motion
for new trial
under rule
37; or
b) Appeal from
judgement
as contrary
to evidence
or law
3. after judgement
becomes final and
executory

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 a) File a
petition for
relief on
judgement
under rule
38

The remedies
presupposes that the
defendant was
properly declared
default. If not, the
remedy is petition for
certiorari

A person may be
declared in default
although it
submitted his
answer when:
 Party refuses
to comply
with the
various
modes of
discovery
(sec. 3c rule
29)
 Failure to
appear
before the
officer who
is to take his
deposition.

Table 11

COMPULSORY COUNTER CLAIM PERMISSIVE COUNTERCLAIM

Arises out of or is necessarily connected with, the
transaction or occurrence that is the subject matter of
the opposing party’s claim
Falls within the jurisdiction of the court
Does not require for its adjudication, the presence of
third parties over whom the court cannot acquire
jurisdiction
Such counterclaim must be within the jurisdiction of the
court both as to the amount and nature (except that in
an original action before the RTC, counterclaim may be
considered as compulsory regardless of the amount)
Does not arise out of or is not necessarily connected
with the subject matter of the opposing party’s claim.
No logical connection between the CC and the subject
matter of the complaint.
It is essentially an independent claim that May be filed
separately in another case
Ex. A CC of damages for culpa aquiliana has nothing t
do with the action for collection of loan.

Ex. A CC of 500,000 before the MTC is not a compulsory

CC although it is ultimately related to the subject
matter of the action.

9
  The court will not grant the relief on the ground
that he has a bigger credit. If the defendant
desires to have an affirmative relief, he may
waive the amount in excess of the jurisdiction
of the court.
TEST: Permissive CC must be accompanied by a certification
a. similarity in fact and law raised against forum shopping and, whenever required, also a
b. res judicata would bar a subsequent suit on certificate to file action issued by the lupong
defendant’s claim, absent the compulsory CC tagapamayapa
c. substantially the same evidence will support or refute
the claims PCC must be answered by the plaintiff otherwise, he
d. there is logical relation between the claim and the may declared in default as to the CC (any pleading
counterclaim. asserting a claim must be answered. Otherwise he may
be declared in default)

Example:
Claim: recovery of tract of land; CC: reimbursement of
the value of the improvements introduced in the same
land.
CC: expenses for being forced to litigate in the face of
an allegedly baseless claim.
Counter claim not set up on the ground of oversight, inadvertence, excusable neglect, or when justice so require,
may by leave of court , amend the pleading before judgement. (rule 11 sec. 10)
Compulsory CC not set up is barred. Permissive not set up is not barred

GR: RULE 9 SEC. 2

EXC: RULE 11 SEC. 10
RULE 16 SEC. 6 AND RULE 17 SEC. 2 & 3

Table 12 (rule 10)

AMENDMENT AS A MATTER OF AMENDMENT BY LEAVE OF COURT AMENDMENT TO CONFORM TO ,

RIGHT
Before responsive pleading is
served.
((Thus, before an answer is served,
the plaintiff may amend his
complaint as a matter of right. The
defendant may also amend his
answer before a reply is served
upon him.)
Amendment of a pleading May be
made only once and can be done
without leave of court.
Amendment after responsive
pleading is served.
Substantial amendment may be
made with leave of court and the
amendment is not intended to delay action, such insufficiently may be
the proceeding.
OR AUTHORIZE THE PRESENTATION
OF EVIDENCE
AS A RULE, the court can only deal
with matters raised in the pleadings
of the parties. Neither can the court
render judgement on matters not in
issue. But When issues not raised
in the pleading are tried with the
express or implied consent of the
parties, they shall be treated in all
respects as if they had been raised
in the pleadings
Also, where the complaint
insufficiently states the cause of
cured by evidence presented during
the trial without objection.
( it presupposes that COA exists at
the time of the filing of the action. If

10

In case of a reply to which there is
no responsive pleading, it may be
amended as a matter of right at any
time within 10 days after it is
served.
Amendment requires a MOTION
(Motion for leave of court to amend
the pleading ), notice to adverse
party and hearing.
there is none and it only accrued
during the pendency of the action,
the curing effect of sec. 5 rule 10
does not apply)
Motion to conform to evidence may
be made at any time even after
judgement.

It refers to an amendment made Formal amendments such as defect

before the trial court, not to an in the designation of the parties,
amendment before the court of clearly clerical or typo errors, may
appeals. be summarily corrected by the court
at any stage, at its initiative or
motion.
The court’s duty to admit an
amended complaint made as a
matter of right is purely ministerial.
The plaintiff may still file an
amended complaint even after the
original action is dismissed,
provided that the order of dismissal
is not yet final.

The right of the pleader to amend An amendment of the complaint to

his pleading as a matter of right correct a jurisdictional error cannot
recognizes his right even if its effect be validly done after a responsive
is to correct a jurisdictional defect. pleading is served.

The amendment now will require a

leave of court, a matter which
requires the exercise of sound
judicial discretion. Judicial
discretion which requires the
performance of a positive act. If it
grants the motion, it would be
acting on a complaint over which it
has no jurisdiction.

Table 13

Table 14 (rule 14)

PLEADINGS, JUDGEMENT
AND OTHER PAPERS
(RULE 13)
SUMMONS (RULE 14)
Personal services
Service in the person of
the defendant:
Handing a copy or if
refuses, may tendering
( preferred mode)
MODES OF SERVICE
Registered mail Substituted service
Substituted service of Summons by publication:
summons: Available only in action in
1. By leaving a copy of the rem and quasi in rem.
summons to the
defendant’s residence( to

11
a person of suitable age If the defendant in an
and discretion residing action in personam, is a
therein- one who has resident of PH: mode of
enough discernment to service is service in the
know the importance of person of the defendant
the summons; RELATION (sec.4). In case he cannot
OF CONFIDENCE); or he served, substituted
service will apply (sec.7)
2. At the defendant’s - Summons by
office or regular place of publication
business (to some however, will
competent person in apply to a resident
charge therein). of PH in an action
in personam if:
When for justifiable
causes, summons cannot  the identity or
be served personally whereabouts is
within a reasonable period unknown- sec.14;
of time - available in any
- The impossibility actions
of prompt,
personal service OR
should be shown
by stating in the  Resident
proof of service defendant is
(the sheriff’s temporarily
return must show outside of the
details of the country. – sec. 16
efforts exerted) - Section 16 refers
that efforts were to sec 15
made to find the “extraterritorial
defendant service” and one of
personally and the modes of
that efforts failed. service is by
- There must be publication. Thus
several attempts other modes under
by the sheriff to sec. 15 may also
personally serve apply.
the summons - A person
within a temporarily
reasonable period. outside of the PH,
(several attempts may also be served
means at least 3 by substituted
tries preferably on service of summon
at least 2 different because obviously,
dates) he has a residence
or place of
business in the PH

If the defendant cannot be

served with summons in an
action in personam, the
remedy is not to dismiss
but to hold the case in the
archives.

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 Extraterritorial service of
summons applies when the
defendant does not reside
or is not found in the
Philippines. In an action in
rem or quasi in rem.
(sec.15)
 If the action
against a non-
resident defendant
is an action in
personam,
personal service of
summons within
the state is
important for the
acquisition of
jurisdiction over
his person. If he is
not physically
present in the
Philippines, court
cannot acquire
jurisdiction and
therefore cannot
validly try and
decide the case
against him unless
he voluntarily
appear before the
court.

 Actions involved in extraterritorial service of summons

a. Actions affecting personal status of the plaintiff

b. Actions which relate to, or the subject matter of which is a property within the Philippines, in
which the defendant claims a lien or interest, actual or contingent.

c. Actions in which the relief demanded is exclude the defendant from an interest in the property
located in the Philippines; and

d. When the property of the defendant has been attached in the Philippines.

 Modes of extraterritorial service of summons

a. Personal service as provided for in section 6
b. By publication in a NP of general circulation in such places and in such time, and a copy of the
summons shall be sent by registered mail in the last known address
c. In any manner as the court deemed proper.

In an action in rem or quasi in rem, jurisdiction over the person is not required as long as jurisdiction over the res (
RES CAN EITHER BE the thing, subject matter or the status) is acquired. Modes of extraterritorial service is enough to
acquire jurisdiction over the RES.

If the suit is in personam, and the defendant has properties in the philippines (as when he was a former Filipino
citizen) and the non-resident defendant is no longer found in the PH, summon by publication and other modes of

13
extraterritorial service would be ineffective to acquire jurisdiction over his person. Being an action in personam, the
remedy is to file a suit and avail the provisional remedy of attachment. Jurisdiction over the person of the defendant
would no longer be required because the suit assumed the character of an action quasi in rem, which merely require
jurisdiction over the res. the service of summons (which may be by publication or other modes of EXT.service of
summon) is no longer for the purpose of acquiring jurisdiction but for the compliance of due process.

Table 15

PROCEEDINGS AFTER SERVICE OF SUMMONS

(where defendant need not file an answer within the period of 15 days)
MOTION FOR BILL OF
PARTICULARS (RULE 12)
If there are matters in the
complaint which are ambiguous
or not averred with sufficient
definiteness
It is a motion that applies to any
kind of pleading
MOTION TO DISMISS (RULE 16)
Assuming that all the allegations in
the complaint are clear, defendant
may explore the possibility of filing a
motion to dismiss if there are
grounds to support it.
Current policy of the SC: to issue a
summon reminding the defendant to
observe restraint in filing a motion to
dismiss and instead file an answer
and allege therein the grounds
thereon as an affirmative defense.
Before service of answer or motion
for summary judgment
DISMISSAL BY THE PLAINTIFF
(RULE17)
Dismissal as a matter of right.
By Notice of dismissal
The court upon receipt of the notice,
SHALL issue an order confirming the
dismissal ( the order merely confirms
the dismissal already effected by the
filing of the notice of dismissal)
GR: dismissal is without prejudice to
the refiling
XPN:
a. Notice of dismissal by the
plaintiff provide that the
dismissal is with prejudice. (
or when the notice provides
for a reason that prevents
the refiling even if the notice
does not state that it is with
prejudice. Ex: plaintiff admits
that the action already
prescribed)
b. The plaintiff has previously
dismissed the same case in
court of competent
jurisdiction based on or
including the same claim.

Filed within 15 days from the
service of summons (if directed
to a complaint)
Filed within 10 days from service
of counterclaim or cross claim (if
directed to a counterclaim or
cross claim)
MTD hypothetically admits the
allegations in the complaint ( not
judicial admission)
TWO DISMISSAL RULE:
 When the plaintiff has
twice dismissed the action
based on the or including
the same claim, in the
court of competent
jurisdiction, the second
notice of dismissal will bar
the refiling of the action
because it will operate as

14

PURPOSE: to seek an order from
the court directing the pleader to
submit a bill of particular which
avers matters with sufficient
particularity to enable the
defendant to properly prepare
his responsive pleading.
When filed, period to file an
answer is STAYED.
If the motion is denied,
defendant can file an answer
within the period in which he is
entitled at the time the motion is
filed but not less than 5 days.
Thus, from the notice of denial,
he has to serve his answer for a
period not less than 5 days.
an adjudication upon the
merits of the claim.
Subject to the omnibus motion rule
if MTD is filed. If no MTD is filed, any
of the grounds may be allege in the
answer as an affirmative defense and
in the discretion of the court, a
preliminary hearing may be
conducted on the grounds thereof as
if a MTD had been filed.
MTD must be set for hearing by the
applicant. Notice of hearing must be
serve to the plaintiff.
GR: MTD must be filed within the
time for the filing of an answer
EXC: MTD filed after the filing of an
answer is allowed if the following
grounds appear in the pleading or
evidence in record.
a. Lack of jurisdiction over the
subject matter
b. There is another action
pending between the same
parties for the same cause
c. Action is barred by a prior
judgement
d. Action is barred by the
statute of limitation
The above grounds are also the
exceptions of the omnibus motion
rule and when the court can dismiss
the complaint motu propio (provided
they are apparent in the pleading)
IF NO MTD FILED: Grounds under
rule 14 are not waived if no MTD is
filed. Grounds may be alleged in the
answer as an affirmative defense.
Preliminary hearing will be
conducted.
IF THERE IS MTD FILED: the grounds
relied upon may still be invoked in
the answer if the MTD is denied
IF MTD IS DENIED: the defendant
must file an ANSWER within the
balance of the period prescribed by
rule 11, but not less than 5 days.
Reckoned from the notce of the
order denying the motion
IF MTS IS GRANTED: the complaint is
dismissed.
a. Plaintiff may REFILE the
complaint
b. If the dismissal is with
prejudice, he may APPEAL
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 from the order of dismissal (
RES JUDICATA,
PRESCRIPTION,
EXTINGUISHMENT OF
OBLIGATION AND STATUTE
OF FRAUDS)
 Dismissal on the ground
of lack of jurisdiction
over the subject matter
is without prejudice to
the refiling of the
complaint. Not subject
to appeal. EXCEPT:
dismissal of an action
before the MTC under
rule 40 sec. 8

DISMISSAL BY FILING A MOTION TO DISMISS
Once either an answer or motion for summary
judgement has been served on the plaintiff.
It is a dismissal which is no longer a matter of right but
a matter of judicial discretion. It will require a motion
and approval by the court
GR: dismissal is without prejudice
XPN: if the order of dismissal specifies otherwise.
DISMISSAL DUE TO THE FAULT OF THE PLAINTIFF
a. Failure of the plaintiff, without justifiable cause,
to appear on the date of the presentation of his
evidence in chief
b. Failure of the plaintiff to prosecute his action
for an unreasonable length of time (Non
prosequitur)
c. Failure to comply with the rules of court
d. Failure to comply with any order of the court
Dismissal may be done motu propio or upon motion
filed by the defendant.
GR: dismissal is with prejudice
 Dismissal shall hve the effect of an
adjudication upon the merits
XPN: unless otherwise declared by the court.

Remedy is to file an appeal from the order of dismissal

Table 16 (rule 18)

PRETRIAL PLAINTIFF DEFENDANT

Failure to appear during pretrial
Failure to appear will cause for the Failure to appear shall cause to allow
dismissal of the action the defendant to present evidence
 GR: dismissal with ex parte and for the court to render
prejudice judgement on the basis of the
XPN: unless otherwise evidence presented by the plaintiff
provided for by the  The order of the court
court allowing the
presentation of evidence
ex parte is an
interlocutory order.
Hence, not appealable.
 Remedy is to file a
motion for
reconsideration of the
order, and if denial is
tainted with abuse of

16
 discretion, he may file a
petition for certiorari
Appearance of counsel and plaintiff
during pre-trial is mandatory.
Except, for valid cause and
appearance of a representative,
fully authorized in writing to enter
to any of the following: amicable
settlement, alternative modes of
dispute resolution, and stipulation
or admissions of facts.
Failure to file Pre-trial briefs shall have the same effects as failure to appear
during the pre-trial.

The dismissal of a complaint for failure to file a pre-trial brief is

discretionary upon the court.

PRETRIAL IN CIVIL CASES PRETRIAL IN CRIMINAL CASES

Pretrial in civil case is set when the plaintiff move ex
parte to set the case for pre trial
Set after a last responsive pleading is filed and served
Considers the possibility of amicable settlement
Proceedings during the preliminary conference are now
required to be recorded in the minutes of the
preliminary conference and signed by both parties
Pre-trial brief is required to be submitted
Pretrial is ordered by the court. No need for motion.
Set after arraignment and within 30 days after the court
acquires jurisdiction over the person of the accused
No settlement is considered,
All agreements and admissions must be reduced into
writing and signed by both the accused and the
defendant
Pre-trial brief is not required to be submitted

Table 17

DEMURRER TO EVIDENCE JUDGEMENT ON THE PLEADINGS SUMMARY JUDGEMENTS

In the regular course of trial, the
plaintiff adduce evidence in support
of his complaint. The defendant
however, may feel that the plaintiff
has not lived up to his burden of
proving the material allegations of
his claim and is, therefore not
entitled to the relief sought for his
in his complaint.
Thus, the defendant may honestly
believe that the plaintiff failed to
prove the elements of his cause of
action, hence, the absence or lack of
cause of action.
It is proper when an answer to a
claim FAILS TO TENDER AN ISSUE, or
otherwise ADMITS the material
allegations of the adverse party’s
pleading.
An answer fails to tender an issue if:
1. The answer fails to comply with
the requirements of a specific denial
as set out in sec. 8 and 10 of rule 8
resulting in the admission of the
material allegations in the
complaint.
2. expressly admitting the truth of
such allegations; or
3. Omitting to deal with them at all.
(accelerated judgment)
It is proper where, upon motion
filed after the issues had been
joined and on the basis of the
pleadings and papers filed, the court
finds that there is NO GENUINE
ISSUES as to any material facts
except as to the amount of
damages. ( while the pleadings
appears to have issues, the
affidavits, depositions and
admissions presented by the
moving party are not genuine issue
GENUINE ISSUES: an issue of facts
which requires the presentation of
evidence as distinguished from a
sham, fictitious, contrived or false
claim.

Answer filed tenders issues as

specific denials and affirmative
defenses are pleaded, but the issues

17

Defendant may move for the
dismissal of the complaint on the
ground that based on fact and the
law, the plaintiff has shown no
right to relief (INSUFFICIENCY OF
EVIDENCE)
“evidence is insufficient to sustain
the issue or make out a case”
It is in effect a motion to dismiss but
not the motion under rule 16.
Demurrer to evidence is filed after
the plaintiff rest his case i.e., after
the complete presentation of his
evidence.
MOTION is required. Motu propio
judgement on the pleading is not
allowed
Judgement on the pleadings will not
apply in:
- Actions for declaration of
nullity of a marriage
- Action for annulment of
marriage
- Legal separation.
Motion for judgement on the
pleadings is filed after the
defendant filed his answer
raised are sham, fictitious, or
otherwise not genuine.
MOTION is required. The adverse
party must be notified of the
motion for summary judgement.
If the facts, as disputed, appear
uncontested or undisputed, then
there is no real or genuine issues as
to the facts

EFFECTS OF DENIAL
 Will not deprive the
defendant of his right to
adduced evidence in his
behalf. Upon denial,
the court will set the
date for the
presentation of the
defendant’s evidence in
chief.
 Order of denial is an
interlocutory order.
Not appealable.
(exception: denial of the motion in
an cadastral, land registration,
insolvency, naturalization and
election cases, will not allow the
presentation of evidence )

EFFECT OF GRANTING:
 Case shall be dismissed.
 If on appeal, the
decision is reversed, the
defendant losses his
right to present
evidence.

DEMURRER IN CIVIL CASES DEMURRER IN CRIMINAL CASES

Leave of court not required Leave of court required
Grant of demurrer is appealable Not appealable based on the constitutional policy
against double jeopardy. Dismissal is an adjudication
upon the merits.

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 Denial of the demurrer allows the defendant to present
his evidence
Table 18
POST JUDGEMENT REMEDIES
A. REMEDIES BEFORE A JUDGEMENT BECOMES FINAL AND EXECUTORY
MOTION FOR RECONSIDERATION
(RULE 37)
One directed against a judgement
or final order. Filed within the
period to file an appeal (period
depends on whether the appeal is
by mere notice of appeal or by
record of appeal).
No motion for extension of time
to file a MR
Timely MR interrupts the period of
appeal.
GROUNDS:
1. Damages awarded are
excessive
2. Evidence is
insufficient to justify
the decision or final
order
3. That the decision or
final order is contrary
to law.
In case MR is denied, the movant
is given a fresh period of 15 days
from receipt of the notice of the
order denying the motion within
which to file a notice of appeal.
( the appeal here is the appeal
from the judgement itself not the
order denying the MR)
No party shall be allowed a second
MR of a judgement or final order.
(allowed only in extraordinarily
persuasive reasons and with leave
of court)
Presentation of evidence is allowed only if the filing of
demurrer is with leave of court.
MOTION FOR NEW TRIAL APPEAL
(RULE 37)
The party may move the trial court
to set aside the judgement or final
order and grant a new trial
GROUNDS:
1. FAMEN and by reason of
which, such aggrieved
party has probably been
impaired in his rights.
(Must be supported by
affidavits of witnesses by
whom the evidence is
expected to be given or by
authentic documents
which are proposed to be
introduced in evidence.
“AFFIDAVIT OF MERIT”
2. Newly discovered
evidence which he could
not, with reasonable
diligence, have discovered
and produced in the trial,
and which if presented,
would probably alter the
results.
If the MNT is granted, the original
judgment is vacated and the trial
stands de novo. The recorded
evidence taken upon the former
trial shall be used at the new trial
without retaking the same.
A second MNT is allowed by the
rules. MNT mush include all
grounds available when the first
motion was made. Those not so
included ae deemed waived.
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 - The prohibition However, when a ground for NT
contemplates a situation was not existing or available when
where the 2nd MR is filed the first motion was made, a
by the same party second MNT may be filed.
assailing the same
judgement or final
resolution.
An order denying MR or MNT is no longer assailable by certiorari under
rule 65.

B. REMEDIES AFTER A JUDGEMENT HAS BECOME FINAL AND EXECUTORY

PETITION FOR RELIEF FROM JUDGEMENTS(RULE 38) PETITION FOR ANNULMENT OF A JUDGEMENT(RULE
47)

A remedy provided for by law to any person against
whom a decision or order is entered through fraud,
accident, mistake or excusable negligence.
A remedy where there is no adequate or plain remedy
provided for by law or by the rules. It is an exceptional
remedy available only when there is no other available
or adequate remedy.
Availed of by the petitioner if has failed to avail himself
of the ordinary or appropriate remedies without fault
on his part.
It presupposes the filing of a separate and independent
action for the purpose of annulling a decision in
another action.
If the petition for annulment is filed, it is an exercise of
an original jurisdiction of the court in which it is filed.
(either the RTC or the CA)

This petition is also an exception to “final judgement

rule” or to the “ doctrine of immutability of judgement”

GROUNDS: GROUNDS:
 When a judgement or final order is  Extrinsic fraud
entered, or any other proceeding is  Lack of jurisdiction ( either over the subject
thereafter taken against the petitioner in matter of or over the person of the
any court through fraud, accident, mistake defendant)
or excusable negligence (filed in the same  Denial of due process
court and in the same case. And shall pray
that the judgement be set aside); or
 When the petitioner is prevented from
taking an appeal by FAMEN (filed in the
same court and in the same case. And shall
pray that the appeal be given due course)

Extrinsic fraud- that fraud which a prevailing party
cause to prevent the losing party from being heard on
his action or defense.
Petition for relief is filed within 60 days after the
petitioner learns of the judgement, final order or
proceeding and not more than 6 months after such
judgment was entered or such proceeding was taken.
a. Either by keeping him away from the court
b. By giving him false promises of a compromise
c. Where his attorney connives with the adverse
party
If based on extrinsic fraud: within 4 years from its
discovery
Lack of jurisdiction: before the action is barred by
laches or estoppel.

Petition is accompanied by an affidavit showing FAMEN

and the facts constituting the petitioner’s good defense
or cause of action.

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Timely filing of the petition for relief from judgement
does not preclude the execution of the judgement
which is final and executory. The petitioner may avail
the rights provided for in sec. 50 ( the court may grant a
preliminary injunction to preserve the rights of the
parties, upon payment of a BOND in favor of the
adverse party)
Petition for relief is not available before the supreme
court and court of appeals.
Not allowed in in summary procedure and in small
claims cases but allowed in environmental law.
If annulled on the basis of lack of jurisdiction, it has the
effect of setting aside the judgment and rendering it
null and void. But the dismissal is without prejudice to
the refiling of the action in the proper court.
If extrinsic fraud, the court will order the trial court to
try the case.
Filed either with the CA of the judgement or orders of
RTC or with the RTC in case of judgment of MTC
BP 129 is silent as to the annulment of judgment of
quasi judicial agencies . the remedy rather is petition
for review under rule 43 rather than petition for
annulment of judgment.
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