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Civil Procedure tells us the procedure on the filing, processing, and adjudication of a civil
case.
JURISDICTION
Refers to the power and authority of the court to try and decide a case.
Latin words: Juris and Dico
When joined together, it means “I speak by the law.”
If a court has no jurisdiction, the only power that it has is to dismiss the case
SUPREME COURT
The SC is an appellate court.
COURT OF APPEALS
The CA is essentially an appellate court although it also has original jurisdiction over some cases.
ELEMENTS OF JURISDICTION
1. Jurisdiction over the PARTIES
2. Jurisdiction over the SUBJECT MATTER of the action
3. Jurisdiction over the RES
How may the court acquire jurisdiction over the person of the plaintiff?
When the plaintiff files his complaint in court, then he submits himself to the jurisdiction of the
court.
How will we know if we should file the complaint with the MTC or with the RTC?
By following the 2 tests in determining what court can try the case.
1. Nature of the Action Test – Determine if the civil action is a personal action or a real
action.
The assessed value must be indicated in the Tax Declaration. The assessed value
must be stated on the complaint. The Plaintiff must allege.
Failure: The court will dismiss the complaint because it fails to allege the
assessed value of the property involved.
What if there is a complaint involving so many parcels of land? How will you determine which
court has jurisdiction?
By combing the assessed value of all the parcels of land.
Where to File?
MTC – If the total amount of plaintiff’s claims exclusive of DIALC
does not exceed P300,000 or P400,000 in Metropolitan Manila.
RTC – If it exceeds that amount.
Scenario: X owes money, so he issued a promissory note, promising to pay his debt in the
amount of P250,000 to Y. When the due date came, X failed to pay, whereupon Y
now prepares a complaint, claiming for the payment of the following:
a. P250,000;
b. Interest in the amount of P1,000,000;
c. Attorney’s fees of P500,000; and
d. Litigation expenses of P250,000
Scenario: A filed an action for specific performance. Suppose in the same complaint of
specific performance, A also asked for the payment of money.
The claim for the payment of money is merely incidental to the claim of
specific performance.
Assuming that the assessed value of the land is only P19,000, where must the
complaint be filed?
At first glance, it would seem like the action should be filed with the RTC
because it is a case for annulment which is incapable of pecuniary estimation, but
if you look at the totality of the complaint, you will notice that the objective of
the plaintiff is to be able to recover the ownership of his land, and so the nature
of the action test should yield to another test which is primary objective test.
Even if the complaint is denominated as one for specific performance or one for
annulment of a document, if the primary or ultimate objective of the plaintiff is to
recover ownership or possession over a real property, then the action should be
classified as a real action, and therefore jurisdiction of the court will be
determined by the assessed value of the real property as alleged in the complaint.
If the assessed value, like in the example given, is below P20,000 then it must be
filed with the MTC.
NOTE: It is important to distinguish real actions from personal action to determine the venue of
the actions.
Mortgage
X (Mortgagor) Y (Mortgagee)
b) Extra-judicial Foreclosure – The mortgagor has 1 year from the date of sale to redeem
the property that was mortgaged.
If the purchaser refuses to annul, or does not allow redemption, then the
mortgagor can institute an action for redemption.
This action for redemption is also a real action.
If the mortgagor pays his debt, then the mortgagee must sign a deed of release of
mortgage or cancellation of mortgage. It is recorded in the Registry office. The
mortgage does no longer exist. The lot is no longer the subject of an existing
mortgage.
Note: (Test) if the action affects title to or possession of over the real property, then it is a real
action; otherwise it is a personal action.
If an action in rem or quasi in rem is brought before a defendant who is not a resident of
the Philippines and is not found in the Philippines then it is enough that the court has
jurisdiction over the res because the court cannot acquire really jurisdiction over the
person of the defendant.
May a defendant who is a non-resident and is not found in the Philippines be sued in the
Philippines?
Yes, but only if the action is quasi in rem.
i. The action affects the status of the Plaintiff who is in the Philippines. The status of the
Plaintiff is not res.
ii. If it affects the property of the defendant situated in the Philippines. The res will then be
the property of the defendant.
Suppose that you are in the same country, the Philippines, can you sue him in
the Philippines?
Yes. You can enforce the judgement and get a writ of execution. But if the
defendant is a non-resident defendant and he is not in the Philippines then you
cannot enforce the judgment against him.
Scenario: An old man came in the Philippines; he is a non-resident of the Philippines and
asks X to marry him. X married him. And he went back to the States leaving X
with nothing. X now sued him for annulment of marriage on the ground that he is
psychologically incapacitated.
Scenario: Plaintiff is filling a complaint against the defendant. In his complaint P says that
D owes him P1.8M based on a promissory note. But the defendant claims that he
has already paid P1.6M.
If the court finds that there is indeed an agricultural tenancy relationship between
the plaintiff and the defendant, then it must dismissed the case as it falls within
the exclusive jurisdiction of the DARAB.
EJECTMENT CASES
2 kinds of ejectment cases:
1. Forcible entry
2. Unlawful detainer
MTC always has exclusive and original jurisdiction regardless of the amount of the
plaintiff’s claim.
Scenario: Suppose a plaintiff files a complaint against the defendant A. And then it comes
to the attention of the court that an indispensable party, B, has not been
impleaded.
What will happen if the plaintiff failed to or does not comply with the order of the court to
implead an indispensable party?
If the court finds out that an indispensable party is not impleaded in the complaint, the court will
issue an order directing the plaintiff to implead such indispensable party as a defendant.
Suppose the plaintiff does not comply, or refuses to comply or he cannot comply, then the
court will dismiss the complaint on the ground of failure to obey an order of the court.
(Rule 17, Sec 3)
Suppose the court did not know that there was an indispensable party who was not
impleaded, and has already rendered a judgment. The effect of such judgment is void not
only to those absent but even to those who are present.
Note: An amended complaint that changes the plaintiff’s cause of action is technically a
new complaint.
Only one action may be instituted on the basis of a single cause of action.
Splitting a Single Cause of Action – Process of dividing a cause of action into many parts and
filing a complaint based on each part.
If two or more suits are instituted on the basis of the same cause of action, the filing of
one or a judgment upon the merits in any one is available as a ground for the dismissal of
the others.
1. Litis pendentia or lis pendens – There is another action pending between the same
parties and for the same cause of action.
Litis pendencia is obtained even if the positions of the parties in the second
case is reversed.
a) Priority Time Rule – Ordinarily the 2nd case should be dismissed. However, this test
yields to the More Appropriate Action Test.
b) More Appropriate Action Test – If the 2nd case is the more appropriate case, then it is
the 1st case that should be dismissed whenever applicable.
Joinder of Causes of Action – It is the process of uniting two or more demands or causes of
action in one complaint.
If there are several causes of action, they may be joined in one complaint.
Joinder of causes of action is merely permissive not compulsory – in that the plaintiff is
not compelled to join his causes of action.
The plaintiff or plaintiffs decide whether if they will join them or not.
This applies only in instances when there are multiple parties because if there is only 1
plaintiff against a solo defendant, there is no need to comply. The situation does not call
for the compliance of joinder of parties.
#2.
Examples:
Action for Partition (SCA) cannot be joined with an Action for rescission of a contract
(OCA – Rule 69).
Scenario: A land co-owned by A and B. Then there is a contract that should be rescinded.
Therefore, A files a complaint against B for a rescission of a contract and then
this calls also for an action for partition.
In partition (special civil action), you can appeal twice which is called multiple appeal.
The time to appeal is 30 days while in ordinary civil action, the filing for appeal is 15
days.
If a cause of action is misjoined to another cause of action, is it a ground for the dismissal of
the complaint?
No. Upon motion of any party or upon the court’s own initiative, the misjoined cause of action
may be severed from the case and proceeded with
separately.
Scenario: Suppose there was no motion to sever. The case went to trial and the plaintiff
presented evidence on the 2 causes of action. The defendant also presented
evidence on both causes of action.
May the court render judgment on the 2 causes of action although misjoined?
Yes. If notwithstanding the misjoinder, the parties presented evidence on the
misjoined causes of action, the court may render judgment on the 2 causes of
action, provided that the court has jurisdiction over the 2 causes of action.
#3.
Scenario: A land located in Agoo, La Union (assessed value: 60,000), and this land is
owned by X. One time, when X and Y were still best of friends, Y borrowed
150,000 from X so X lend money to Y. Then X left for Australia for some
months, when he came back he was surprised to know that the title to this land is
now in the name of Y. He found out that Y falsified a deed of sale, it contains a
signature above the name of X but that was not the signature of X and so when
he found out that the title of land is under the name of Y, he would like to file a
complaint. He went to a lawyer and he prepared for a complaint with 2 causes of
action:
150,000 from the borrowed money
60,000 for recovery of possession
Now, X resides in Baguio and Y also resides in Baguio. The lawyer does not
know with what court to file this complaint. Therefore, he comes to you, asking
where he will file his complaint.
While for the recovery of possession is in the RTC of Agoo. This is the venue of
action because the land is located in Agoo.
He may file with separate complaints and it will be filed in the MTC. However, if he will join
them in one complaint assuming that there are with different transactions, then the total amount
will now determine the jurisdiction of the court. In this case, the total amount is 450k, and it
should be filed with the RTC.
RULE 3 – PARTIES
Note: Dolphins cannot be a party but a natural person can brought the case.
PARTIES
(1) Plaintiff - One asserting a claim and one who has a right to the relief demanded. He may be
the claimant in the original complaint, the counter-claimant in a counterclaim, or the cross-
claimant in a cross-claim.
(2) Defendant - One who has an interest opposed to the interest of the plaintiff. He may be the
original defending party, the defendant in a counterclaim, or the cross defendant in a cross-claim.
Counterclaim
X v. Y – original case
If Y asserts a counterclaim against X, as to the counterclaim, Y is the plaintiff and X is
the defendant (Y v.X)
Suppose the plaintiff is not among those mentioned who can be a party, what would happen to
the complaint?
The complaint must be dismissed on the ground that he has no legal capacity to sue.
Suppose the defendant is not among those mentioned who can be a party, what would happen
to the complaint?
The complaint must be dismissed on the ground that the complaint failsd to state a cause of
action.
An action must be prosecuted or defended in the name of the real party in interest.
Persons not a party to the contract may not sue, except if the contract contains a
stipulation in his favor, as in the case of a stipulation pour autrui.
What happens if the plaintiff or the defendant is not a real party in interest?
Then the complaint may be dismissed on the ground that the complaint fails to state a cause of
action.
If the person has no personality to sue, or has no personality to be sued, the complaint may be
dismissed on the ground that the complaint fails to state a cause of action.
Scenario: If a complaint is filed in court by a wrong person, like it is the wife who filed the
complaint or the son who filed the complaint although the father is not doing
anything, so the son took it upon himself to file the complaint. So the wrong
person filed the complaint in court. The plaintiff is not the real party in interest
because he is the wrong person to sue. The complaint may be dismissed on the
ground that the complaint fails to state a cause of action.
In the same way, the defendant is the wrong party to sue, the complaint may be
dismissed on the same ground.
Indispensable Party – If the party who is not impleaded is an indispensable party, joinder is
compulsory. The Court has to order the plaintiff to implead the indispensable party. If not, the
judgment is void.
Scenario: A and B, joint debtors, owned C the sum of 1 Million. When this obligation
became due, C filed a complaint against A alone for collection. Assuming that
there is a valid judgment.
Scenario: Suppose that A and B are solidary debtors in the amount of 2M.
Where the obligation of the parties is solidary, either of the parties is
indispensable, and the other is not even necessary party because complete relief
is available from either.
The counsel must notify the court of death of the party and the names and addresses of
the legal representative for substitution; the court issues an order directing the legal
representatives to appear in court within 30 days from substitution.
When the court takes note of the death of the party, the court shall proceed with the trial
of the case without taking the substitution then all the proceedings including the
judgment shall be void. The heirs of the deceased party or the legal representatives shall
not be bound by the judgment. This is the effect if the court proceeds without
substitution.
2. Order – The court will issue an order directing the legal representatives to appear in
court within 30 days for substitution.
APPLICATION TO A CASE
A. Death of a Plaintiff
Scenario: X is the plaintiff. Y is the defendant. X dies. The counsel for the deceased party
files a notice for the death of a party with proof of the death of the party. In the
notice he also mentions the names and addresses of the legal representatives. The
defendant filed a motion for substitution, asking the court to issue an order
substituting the legal representative in place the deceased plaintiff. The issued an
order granting the motion and substituting the legal representatives in place of the
deceased plaintiff. Then, there was a judgment. The judgment is adverse to the
plaintiff.
The court should have issued an order directing the legal representatives to
appear in court within 30 days so that they may be substituted.
The mere filing of the defendant for the representative and its approval by the
court cannot be binding upon the legal representatives as there was no proper
substitution. Any judgment made by the court shall not bind such legal
representatives.
B. Death of a Defendant
It shall involves a civil case where the defendant dies.
a) The civil action should involve a money claim arising from a contract, express or
implied.
b) The defendant dies before entry of judgment.
c) Such case will not be dismissed instead the case shall proceed until entry of
judgment.
d) The judgment shall be presented as a money claim based on judgment in the
settlement of the estate of the deceased defendant.
In a typical case, there is a judgment rendered by the court. The judgment becomes final.
Then there is judgment obligee and a judgment obligor (in the past they are called
judgment creditor and judgment debtor). The judgment obligee is the prevailing party.
The judgment obligor is the one who has an obligation to perform under the judgment.
Instead of enforcing the judgment by means of execution, filing the judgment as a money
claim based on judgment in the settlement of the estate of the deceased defendant. In the
settlement of the estate of the deceased defendant the judgment shall be presented as a
claim based on the judgment.
Scenario: A and B. B is the debtor. B owes a certain amount of money to A. Before the
paying his debt, B dies. The debt became due but the debtor died.
In the situation but B does not die, so A sued B. While the case was undergoing
trial/pending in court. B died. If B dies before entry of judgment, then there will
be a substitution because the case shall continue until there is an entry of
judgment. Now, there is an entry of judgment but you cannot execute the
judgment like the one mention before but you set it as money claim for the
settlement of the estate of the decedent. It shall be presented as a claim based on
judgment.
1.) Judicial Settlement – It can only be done when you cannot be settled the estate
extrajudicially. If extrajudicial settlement is available then you cannot settle it judicially.
2.) Extrajudicial Settlement – For an estate to be settled extrajudicially, the requisites must
be present:
a) The decedent died without a will.
b) The decedent died without debts.
If he died with debts you can settle the estate extrajudicially even if he
died with a will.
c) All the heirs are of legal age or if they are minors or incapacitated, they are
legally represented.
d) The extrajudicial settlement must appear in a public instrument.
e) The extrajudicial settlement must be published once a week for three consecutive
weeks in a newspaper of general circulation.
The moment the court appoints an Administrator/ Executor, immediately the clerk of
court will publish a notice to the creditors to file their claims against the estate within the
certain time which is stated in the notice.
What are the claims that can be filed against the estate?
1.) Money claims arising from a contract, express or implied, whether they be due or not due
or contingent.
In such, this is before any action has been filed before the court. It is remedy if
the debtor dies before the case enters into any legal proceedings.
You have to prove your claim so that the court will set a date for the period of
your claim. You have to present evidence to prove your claim. Unless, your claim
is admitted but if your claim is disputed then you have to prove it.
What happens if you fail to file your claim within the period for filing it?
Then, your claim is barred.
In Special Proceedings, there is a definite period for filing a claim not less than 6 months but not
more than one year from the date of the publication of the first notice.
There is a definite period of filing it and it is the Statute of Non-Claims. The Statute of Non-
Claims is the time for the filing of claims and if you hold a claim to any one of the stated before
and you fail to file it within the time for filing it called Statute of Non-Claims. Then your claim is
barred.
In a MONEY CLAIM, it is important when the defendant dies. The following are the steps:
1.) If the defendant dies before entry of judgment, the proceeding shall continue until entry
of judgment.
2.) There is now an entry of judgment, the defendant did not die yet.
3.) Motion for Execution is filed. Defendant is still alive.
4.) Court issues a writ of execution.
5.) Sheriff will enforce the writ of execution. How? He will levy on the property of the
defendant. The levy will constitute as lien over the property of the defendant.
6.) Before levy, if the defendant dies, proceeding does not continue because the remedy is as
a money claim based on judgment in the settlement of the estate of the deceased
defendant.
7.) Sale of Execution. The property levied upon will be sold.
8.) Proceeds of the same, it will be applied as payment of the obligation.
9.) After levy, if the defendant dies, the property has been set aside. The proceedings will
continue to until the sale of the property levied upon to satisfy the judgment obligation.
(Proceed until Sale of Execution)
REAL PARTIES-IN-INTEREST
1) Indispensable Party – He must be joined because the non-joinder of the indispensable
party may render the proceedings void.
2) Necessary Party – He may be joined or he not joined and still there ca be a judgment
except the judgment shall not settle the entire controversy.
Note: A non-joinder of parties is not a ground for dismissal. Even if he is an indispensable party.
When it comes to the attention of the court that an indispensable party did not join or not
impleaded, the court will then issue an order requiring the plaintiff to implead him but if the
plaintiff refuses to comply or implead that omitted indispensable party, the case shall be
dismissed.
Exception is when the indispensable party need not to be impleaded, in a class suit or a
class action.
The interest of one shall not be separable to the interest of others because if it is
separable from the interest of the others involved, it is not considered as common
or general interest.
2) The persons are too numerous that is impracticable to join all as parties.
3) The parties before the court are found by the court as numerous and representing so as
to protect all interests concerned.
Scenario: In a big chunk of land, one day the land owner left and went to Melbourne. Upon
his return, he discovered his land has been subdivided into so many lots. Many
people are now occupying the lands. The owner decided to file a case against
some of them who are occupying his land because he cannot mention all of them.
As so he alleged in his complaint that this is a class suit. The parties are too
numerous that is impracticable to join all as parties.
The action against X will only apply to the lot he occupies, his interest is
separable from the others. X has no interest over the other properties, his interest
is limited only on the property he occupies. Therefore, his interest is identifiable
and separable from all the others. As such, there is no community of interest over
the subject matter.
All the people occupying the land must be included in the complaint as a joinder
of parties because the right to relief arose from the same transaction or event
which is common to all of them. He can file a separate complaint to every person
who is occupying the land. He cannot make it as a class action. As in a class
action, not everyone can be sued but everyone will be affected because they
belong to a class.
Scenario: P claims he has interest over the property. D claims he has interest over the
property. Now one of the parties transfers the property to another party, X.
Pendente Lite - means while the litigation is pending or during the pendency of the litigation.
Transferor Pendete Lite – the one making the transfer pendete lite.
Transferee Pendete Lite – the one receiving the property.
When a transfer pendete lite is made, it can continue or can be continued by and
between the original parties or the transferee may be substituted in place of the
transferor or included as an additional party.
Example:
Original Case: P v. D
X replaces P. Now, X v. D
X joins P. Now, X and P v. D
RULE 4: VENUE
Venue is the place of trial. It is not the same as jurisdiction.
In a criminal case, there is no distinction between venue and jurisdiction because
the place of the commission of the offense is also the jurisdiction.
2nd distinction: The court cannot dismiss the action motu proprio on ground of improper venue.
There must first be a motion to dismiss filed by the defendant on ground of improper venue.
Otherwise, the court cannot dismiss the complaint on that ground.
Summary Proceeding
If the action is governed by the rule on summary procedure, then upon the filing of the
complaint, the court should examine the complaint and it may dismiss the case on any ground
that is apparent therefrom (or on the face of the complaint).
If it is apparent on the face of the complaint that venue is improperly laid, then
the court can dismiss the complaint even if there is no motion to dismiss filed by
the defendant.
3rd distinction: Venue may be the subject of a written agreement between the parties.
4th distinction: The ground of improper venue may be waived.
Lack of jurisdiction over the subject matter of the action cannot be waived.
If venue is improperly laid, then that objection is waived if not set up by the
defendant in a motion to dismiss or in his answer.
The rule “or in the case of a nonresident defendant, where he may be found”
refers to a NRD who is in the Philippines.
In these two instances, the venue is where the plaintiff resides or where the property is
located.
Reside – actual residence; not legal residence or domicile
Ejectment Case: If it is an ejectment case, the complaint for ejectment must be filed with the
MTC of the municipality or city where the property is situated. Take note that the jurisdiction
is MTC.
Note: Venue may be waived. Jurisdiction over the subject matter cannot be waived.
May the defendant question, or is the defendant correct in arguing that the
judgment was not valid?
No. Take note that the MTC of Dagupan has jurisdiction. What is wrong in this
case is the venue, but venue can be waived in not raised by the defendant in a
motion to dismiss of in an answer.
By not questioning the venue of the action, the defendant is deemed to have waived it.
Two kinds of actions for ejectment:
1. Forcible Entry
2. Unlawful Detainer
Written Agreement
The plaintiff and the defendant may enter into an agreement regarding the venue of an action.
May the parties enter into an agreement regarding the venue of an action? Is that agreement
valid?
Yes. Provided that:
a. The agreement is in writing; and
b. It is made before the commencement of the action.
The written agreement may even provide for the exclusive venue of the action. If
an exclusive venue is specified in the agreement then the venue should only be in
that place and in that place alone.
Scenario: Here is a contract between X and Y. X resides in Baguio. Y resides in Dagupan. The
written agreement states the following: “in the event of litigation between the parties
involving this contact, the case should be filed ONLY with the appropriate court of
Agoo, La Union.”
Take note that the word ONLY is restrictive. It limits the venue to this place alone. So
even if X resides in Baguio and Y resides in Dagupan, the civil action should be filed
only with a court of competent jurisdiction in Agoo, La Union. If it is filed in Baguio,
then venue is improperly laid, because there is a written agreement on the excusive
venue of the action.
If you file the case in any other place, then the venue is improperly laid in that place.
But even if venue is improperly laid, and the defendant does not question it in a
motion to dismiss or in his answer then he is deemed to have waived the question of
improper venue.
Pleadings are written statements of the respective claims and defenses of the parties submitted to
court for appropriate judgment. A pleading may contain or state a claim or a defense.
Sometimes, a motion is filed in court but a motion is not a pleading. A pleading is
one than contains a cause of action, a claim or a defense.
Plaintiff Defendant
Complaint
* Amended Complaint – the first complaint
will be known as the original complaint
Answer
1. Negative Defense
a) Absolute Denial
b) Partial Denial
c) Denial by Disavowal
2. Affirmative Defense
Reply
1. Complaint
The plaintiff files a complaint. The plaintiff may amend his complaint. In which case,
what will be filed is the amended complaint.
A civil action is commenced by the filing of the original complaint in court. If the
complaint is amended, then this one (referring to the 1st complaint) will be
referred to as an original complaint.
The complaint states claim/s or cause/s of action.
The phrase “the complaint states no cause of action” is not the same as the phrase “the
plaintiff has no cause of action”. Even if one has a cause of action but because the
complaint is shabbily written, the complaint may fail to state the cause of action. Or even
if one has no cause of action but because the complaint is beautifully written, the
complaint may state a cause of action.
The complaint is the pleading of the plaintiff. And the defendant files an answer to the
complaint.
2. Answer
The answer contains defenses.
If the denial is not in any of these forms/ways, then the denial may be a general
denial, and a general denial is an admission.
Absolute Denial
Scenario: Here is a complaint. The 4th paragraph states: “that on July 16, 2016, defendant
borrowed 5 million from the plaintiff”.
In the answer, 4th paragraph states: “that the defendant specifically denies the
allegation in ar. 4 of the complaint. The truth being that the contract between the
plaintiff and defendant is not a loan but a deposit”
To be a specific denial (number 1: absolute denial), you deny it but you don’t
only deny it. You have to state the truth or the substance of the matter upon which
the defendant relies for his denial (the truth being that…).
Suppose you only say, “defendant specifically denies the allegation in par.4”—
this is a general denial and it amounts to an admission. The denial does not
become specific simply because you use the word “specific”.
Partial Denial
“defendant admits so much of the allegation in par. 4 as refers to the amount of
the loan, but denies the rest. The truth being that the amount that the defendant
borrowed from the plaintiff is only 1 million”.
You admit with qualification.
Denial by Disavowal
The defendant will say that he has no knowledge or I formation sufficient to form
a belief as to form a belief as to truth of the allegation in paragraph so and so in
the complaint. Hence, that allegation is also denied.
Plaintiff says: because of the incident subject of this complaint, plaintiff was
forced to hire a lawyer to whom he bound himself to pay attorney’s fees of 1
million pesos. You do not know that so you can deny by simply saying that you
have no knowledge sufficient to form a belief as to the truth of that allegation.
Scenario: Plaintiff is the wife of the defendant. There is an issue in par. 1. Plaintiff is the
lawfully wedded wife of the defendant. They were married in so and so. And then
defendant says: defendant has no knowledge sufficient to form a belief as to the
truth of the allegation.
This denial is done in bad faith because the defendant must know whether the
plaintiff is his wife or not.
If you do it in bad faith, then it will amount to an admission.
Like when you say that the cause of action is barred by prescription, or
barred by payment.
o Payment: When you say payment, you have to admit the
allegation in the complaint. If the defendant is able to prove
payment, that will prevent plaintiff from recovering.
o Prescription: If you are able to prove that the cause of action
has prescribed, that will prevent the plaintiff from recovering. He
cannot recover because the action has prescribed.
When you set up an affirmative defense, it is an allegation of a new
matter.
In what pleading?
In his answer.
Scenario: X files a complaint. Y files an answer. The answer contains only specific denials
and no affirmative defenses, only negative defenses.
Scenario: Suppose the defendant files his answer with affirmative defenses.
How may the plaintiff deny the new matters alleged in defendants answer?
(1) By filing a reply and denying these new maters; or (2) By not filing a reply
and all such new matters are deemed controverted or denied.
The filing of a reply is optional.
NEGATIVE DEFENSES
Are specific denials, so if the denial is not one of those mention it will lead to the
admission.
o A general denial is an admission.
o A literal denial is an admission, it is called a Negative Pregnant Denial.
EXAMPLE:
Let us say that this is an allegation in the complaint, found in the complaint is:
One of the allegation stated in the Negative Defense in the Answer:
complaint:
5.) It is not true that on July 16, 2016, defendant
5.) That on July 16, 2016, defendant borrowed 10 Million Pesos from the plaintiff.
borrowed 10 Million Pesos from the
plaintiff. So in the answer of the defendant, It is called a Negative Pregnant Denial
it will be stated that ………. because you do not know what is being
denied, if it is the date or the amount. You
simply do not know what is being denied.
This kind of denial is an admission.
2.) Defendant specifically denies the allegation in paragraph 2 of the complaint, the truth
being as follows … (State the substance of the matter upon which you rely for your
denial. It is a general denial.)
Note: In the example given, the counterclaim is part of the answer but it is not part of the
answer. That`s why we use the word incorporated. The counterclaim although a pleading
is incorporated in the answer.
You do not file a separate pleading for the counterclaim, it is incorporated in the answer.
1) COMPULSORY COUNTERCLAIM
2.) It does not require the presence of a third person of whom the court cannot
acquire jurisdiction.
Irrespective = Compulsory
REQUISITE #1
Scenario: You are allowed to occupy the land of X. He allows you. Then you put up
improvements on the land. After sometime, there was a disagreement between
you and X. X terminated your right to occupy and you did not want to leave so he
files a case against you to vacate the land and to surrender to you the possession
of the property. X files an action to recover the possession of the land. Now you
have to file a counterclaim for the improvements you made.
Suppose you have a counterclaim against the plaintiff that does not arise out or is
not connected with, then it will be a permissive counterclaim.
Scenario: Years and years ago, you lend money to X. Then, he allowed you to occupy his
land. Then, there was a disagreement between you two. X demanded you to leave
but you refused. As such, X filed a case against you for the recovery of the land.
And when you were looking for you files, you found the promissory note that X
signed years and years ago.
He owed you money, can you set that up as a counterclaim against him?
Yes, it will be a permissive counterclaim. If the counterclaim not arise out of or is
not connected with the claim of the plaintiff. It will still be counterclaim it will be
a permissive counterclaim.
Scenario: X versus Y at the MTC. Y setup a counterclaim in the amount of One Million Pesos.
DISTINCTIONS
COMPULSORY COUNTERCLAIM PERMISSIVE COUNTERCLAIM
It arises out of or is necessarily connected with It does not arise out of or is not connected with
subject matter of the plaintiff `s complaint. the subject matter of the plaintiff `s complaint.
It must be set up in the same action otherwise it It may or may not be set up in the same
is barred. action.
by incorporating it in the answer If not set up in the same action, it is not
be barred.
It cannot be subject of a separate complaint. It can be the subject of a separate complaint.
A discussion on DEFAULT…
Plaintiff versus the Defendant. The Plaintiff files a complaint. The Defendant is served
with summons, so the defendant has 15 days in order to file an answer to the complaint.
If the defendant does not file an answer within 15 days upon motion of the plaintiff. The
defendant may be declared in default. There can be a judgment by default against him.
What happens if the defendant does not file an answer notwithstanding service of summons?
If he fails to file his answer within 15 days upon motion of the plaintiff, the defendant may be
declared in default.
In the main case, X is the plaintiff and Y is the defendant but as to the
counterclaim, Y is the plaintiff and X is the defendant. But if the counterclaim is
compulsory, X did not file an answer to the compulsory counterclaim that is
SPECIFIC DENIAL
To have an effect of a Specific Denial, must the denial be under oath?
No. Except in the two instances:
a) The due execution and genuineness of an actionable document shall be deemed admitted
if not denied under oath.
b) Allegations of usury in a complaint to recover usurious interest is deemed admitted if not
denied under oath.
Like a payment for a sum of money based on a promissory note, then the
promissory note is an actionable document.
Or filing a complaint or ejectment on the ground of lack of payment of
rent based on a leased contract. It can be an actionable document.
Scenario: In a promissory note, the maker appeared to be X but the one who signed it is the
son of X, he signed it without the authority of X. When the amount was not paid,
the creditor filed against X using such promissory note as an actionable
document. As the signature of X is not genuine. Then if X were to deny the
genuineness and due execution of this document, he must deny it under oath.
Suppose he just deny it but not under oath. Then he would be deemed to have
admitted that the promissory note is genuine including his signature. Any defense
that is inconsistent with this admission is considered as off light. He cannot setup
his defense of forgery.
Scenario: Y paid him 2.5 Million. He mention it to you. Y lost his money. Y filed a case
against X. Now, it is an allegation of usury in a complaint to recover a usurious
interest. His denial must be under oath, if not under oath, he would be deemed to
have admitted it.
1.) CAPTION – includes the name of the court, title of the case, and the docket number of one
has already been assigned.
Procedure:
In the complaint that that is being filed, the Branch is blank as well as the docket
number is blank. Filing is different from docketing.
3) SIGNATURE
Who signs a pleading?
The party himself or his counsel.
When signed by the party himself, then he signs it pro se.
4) ADDRESS
It should not be a post office box, It cannot be used as an address.
In fact when it comes to pleadings, the counsel has the following duties and he can
be disciple administratively if he commits any of the following acts:
a. He deliberately files an unsigned pleading;
b. He sign a pleading contrary to the rules;
c. He alleges scandalous or indecent matters in his pleadings;
d. He fails to promptly inform the court a change of his address (Rule 7, Sec. 3)
Not all pleadings are required to be verified but there a pleadings that need to be
verified. A verification is required. (Page 86)
Forum Shopping – A party files more than one case in different courts hoping that one
court will be more lenient to the party and there is a possibility of collision of decisions.
If you engage in an act of forum shopping that is a disrespect to the court.
Exceptions:
1. Lack of jurisdiction over the subject matter of the action;
2. There is another action pending between the same parties and for the same cause
(litis pendentia);
3. The cause of action is barred by prior judgment (res judicata); and
4. The cause of action is barred by statute of limitations (prescription)
If any of these grounds appear from the pleadings or from the evidence on record, the
court must dismiss the claim or the complaint.
If it appears from the pleading or from the evidence on record that the cause of action is
barred by res judicata then the court can dismiss the complaint even without a motion.
The court can do it motu proprio.
Sec. 3. DEFAULT
Who may be declared in default?
A: The defendant
The plaintiff cannot be declared in default except as to the counterclaim against him if it is a
permissive counterclaim.
Note: What triggers the default is the failure of the defendant to file his answer within the
time for filing of responsive pleadings which is usually 15 days from the service of the
summons.
Scenario: X v. Y
Upon the filing of the complaint, summons will be issued and served on Y. From
the day that Y receives a copy of the summons, he will have 15 days to file his
answer to the complaint.
If the defendant fails to file an answer within 15 days then on motion of the
plaintiff, the defendant may be declared in default. The court will issue an order
declaring the defendant in default.
Without the plaintiff filing a motion to declare the defendant in default, the court
cannot declare him in default. It cannot be done by the court on its own
On what ground?
a. Fraud
The Fraud is EXTRINSIC FRAUD
Extrinsic Fraud – Fraud is committed outside the trial and it prevented the
defendant from having his day in court.
b. Accident
c. Mistake
d. Excusable Negligence
2. Appeal – Appeal should be from the judgment rendered by the court (Judgment by default)
Scenario: P v. D
The defendant does not file an answer, The plaintiff files a motion
- Order of Default – not appealable
- Judgment by Default - Appealable
The defendant cannot appeal from the order of default
Suppose the defendant did not file a motion to set aside the order of default, can we
appeal from the judgment by default?
Yes, it is not a requirement that he should have filed first a motion to set aside the order
of default. The judgment by default is appealable even if the defendant did not file a
motion to set aside the order of default.
The moment the defendant is declared in default, may the court already render
judgment?
Yes but the court also has the discretion to require the presentation of evidence ex parte.
Presentation of evidence must be before the Clerk of Court
When may the Clerk of Court be authorized to receive the evidence of the parties?
In the following:
1. In default hearings or ex parte hearings; and
2. When the parties agree in writing
May a court render a judgment more than the amount prayed for by the plaintiff in his
complaint?
Yes except in a judgment by default
Action for forcible entry or unlawful detainer, and other actions governed by the Rule on
Summary Procedure.
If the amendment affects or changes the cause of action, or it alters the theory of the case,
the amendment is SUBSTANTIAL; otherwise, the amendment is only FORMAL.
If the amendment is formal, it can be made at any time, it can be made summarily
by the court, with or without motion by any party.
Amendment may be with or without leave of court.
General Rule: A party may amend his pleading once as a matter of right before a responsive
pleading is served.
REPLY – it can be amended as a matter of right within 10 days after it is served.
If no pleading has been served by the plaintiff, then the plaintiff can amend his
complaint ONCE as a matter of right.
Suppose the defendant has already filed an answer to the complaint, may the plaintiff amend
his complaint at this point?
Yes, but the amendment should be with leave of court. The plaintiff will file a motion for leave to
amend the complaint.
When the plaintiff files this, he must already attach to the motion the proposed
pleading.
Then the judge will read the motion for leave and the proposed amended
complaint.
o If the judge finds the motion to be meritorious, the judge will issue an
order granting the motion for leave and admitting the proposed amended
complaint.
o The judge will say in the order “Wherefore…. finding the motion for
leave to be meritorious, the court hereby grants leave for the amendment
of the complaint and the proposed amended complaint attached to the
motion is hereby admitted”
Sec. 9 RULE 15
Motion for Leave – A motion for leave to file a pleading or motion shall be accompanied by the
pleading or motion sought to be admitted.
Filing a motion for leave to file an amended complaint requires that the motion is
attached to the proposed amended complaint.
If a responsive pleading has already been filed and you still would like to amend the complaint,
so you filed a motion for leave to amend the complaint, can you make substantial amendment
at this point?
Yes, provided leave is granted, the amendment can even be substantial
Distinctions
AMENDED PLEADING SUPPLEMENTAL PLEADING
Remedy: Amendment
If it was determined that by advertence
or negligence, forgot to include them
in the pleading, they were not
alleged, stated or included, the remedy
is AMENDMENT.
Example: Example:
1. X filed an answer, the next day, Y looked at 1. X file the pleading, then a transaction,
X’s answer, then X forgot to include a defense: occurrence or event transpires after the filing of
the remedy is to AMEND the answer to the pleading: Then, that can be taken care of
include it. by a SUPPLEMENTAL PLEADING.
2. X want to include a cause of action that he 2. Something X did not forget to include
forgot: then the remedy is AMENDMENT of because it has not happened yet, it happens
the complaint. after X filed the pleading: so the way to deal
with it is to file a supplemental pleading or
supplemental complaint.
Supersedes the pleading that it amends. Does not supersede the original pleading but
assumes the original pleading is to stand.
The issues are defined in the pleadings. How will you know the issues?
The issues are made out in the pleadings. The pleadings define the issues
BUT IF: Team A says “Yes, it should be legalized, Team B says “No, it
should not be legalized.
Then you have an issue
In the case above, the answer does not tender an issue. Don’t go to trial because there are no
issues to be tried
BUT IF:
COMPLAINT ANSWER
the defendant borrowed 1 million from the Yes, admitted
plaintiff
The debt became due Yes, it became due
The debt is unpaid NO, THE DEBT HAS ALREADY BEEN
PAID, PAID IN FULL
There is now an issue in the case above, and the issue is:
Whether the debt has already been paid
When going to trial, do not try those with “YES” anymore because those are
already admitted. Only try the issue.
When grading a case, then the case is summarized (Facts, Issue, Held).
o The held is the resolution on the issue.
When going to trial, try only the issues that are raised in the pleadings. But suppose, an
issue is that is not raised in the pleadings is tried (it can be with the express or implied
consent of the parties)
If the complaint is asking for the payment of a certain amount of money, may the court render
a judgment for an amount more than what is prayed for in the complaint?
Yes, except in a judgment by default, because amendment to conform to the evidence does not
apply to a defendant declared in default. That is why the judgment by default cannot exceed the
amount or be different in kind from that prayed for.
Suppose the defendant objects, how should the court rule on that objection?
The court must sustain the objection
If evidence is objected to at the trial on the ground that it is not within the issues made by
the pleading, the court may allow the pleadings to be amended, and shall do so with
liberality.
2. If the defendant is a foreign entity with legal personality and the summons is served on
the public officer designated by law to receive summons, then the defendant may file his
answer within 30 days from receipt of summons by its home office
Can you sue that foreign juridical entity here in the Philippines? – Yes
How may the summons be served upon this foreign juridical entity?
Upon its resident agent. When it will file an application to do business here in the
Philippines, it must indicate the name and the address of its resident agent upon whom
summons may be served. He has 15 days from service of summons upon his resident
agent.
Scenario: Plaintiff files a complaint, then, the defendant has not filed an answer yet, then,
the plaintiff amended his complaint. The amendment here is a matter of right
because there is no answer yet.
There will be summons to be served on the defendant and the summons should
be on the amended complaint
Scenario: What if X files a complaint, then Y files an answer to the complaint, then, X
amended his complaint. If the amended complaint is admitted, there will be an
If the complaint is admitted, how many days may the defendant file an answer
to the amended complaint?
If the amendment is as a matter of right, it is 15 days from service of summons,
but if the amendment is with leave of court, then it is 10 days from notice of the
admission of the amended complaint.
Suppose the defendant does not file an answer to the amended complaint, may
the defendant be declared in default?
No, because his answer to the complaint will stand as answer to the amended
complaint.
Suppose, defendant Y files an answer to the amended complaint, what will you call his answer?
Answer to the amended complaint- this will take the place of the answer to the complaint
Answer to the complaint 10 days after the service of summons, for cases
governed by Rules on Summary Procedure.
15th day
16th day
Deadline
You receive the summons July 1. 15 days would be up to July 16 and it falls on a
Sunday. Then your last day is really Monday which is July 17. It is because if the
last day falls on a Saturday, Sunday, or Legal Holiday, in the place where the
court seats, then you can file it on the next business day.
If you file a motion for extension asking for another 15 days, then the second 15
days should be reckoned from July 16, your original deadline.
July 1 July 16
Monday Friday
If for any reason, you failed to file your answer within the deadline, you cannot
file a motion for extension. In practice, the way lawyers do it is that they file their
answer with a motion to admit the answer that is being belatedly filed.
Scenario: X v. Y
Plaintiff X filed a complaint. It was shabbily crafted.
Defendant Y cannot understand what the complaint is saying for it is incomplete
and vague.
Y will ask for a bill of particulars by filing a motion to direct X to state the vague
statement with more definiteness.
In his motion, he will point out the defect and the matter being desired.
Suppose, in the example given, Y filed an answer to the complaint. The next
day, he could not understand it. Can he still file a motion for bill of
particulars?
No more. Because the time to do it is before responding to a pleading.
Scenario: X v. Y
X’s complaint is vague.
Y filed a motion asking that the vague statement be clarified or be stated with
more definiteness.
If Y’s motion is granted, the court will direct X to comply either by amending his
complaint, so that the allegation that is vague will now be clarified, or he will file
a separate bill of particulars. If he filed a separate bill of particulars, then it will
become part of the pleading.
Scenario: If motion is granted or denied, the party, like Y in the example, has the remaining
balance (the remaining number of days) to file his answer, but in no case shall it
be less than five days. He has the remainder of the original period that he has but
in no case shall it shall be less than five days.
6 Days Remainder
2 Days Remainder
Applies to (b)
1. Personal Service
2. Mail
3. Substitute Service
Personal Filing –
You do it yourself; you go to the clerk of court.
Can you say that the date of mailing shall be the date of filing if you send the
notice of appeal through a private courier?
No. that applies only if it is the post office. The rule to be applied is personal
filing because you are using the private courier as your agent, which is no
different from your secretary.
Even if the judgment is in writing, it was not served. For the service of judgment
to be valid, it must be done by means of any of the modes of service mentioned.
If the service is made through text message, can he appeal? When it will
become final?
The service is not valid and the judgment will never become final. It is because
the mode of service is not valid.
Completeness of Service:
You need to know when the service is complete because it is when it is complete you begin
counting the applicable reglementary period.
If you will serve or you will file other than by personal mode, you will have to explain
why you are filing or serving by other modes other than personal. It must be accompanied
by a written explanation.
If this is not complied with, the court will consider the pleading, motion or notice as not
filed.
Scenario: In his answer, the defendant is also demanding for an affirmative relief.
Not the same as the Lis Pendens/Litis Pendentia as a ground for dismissal. This one is a notice of
the pendency of a real action involving:
Possession of a real property
Notice of Lis Pendens may be recorded only in a real action like one of the above mentioned
instances.
The recording of a notice of lis pendens cannot be had as a principal action. You cannot file a
complaint only for the purpose of recording a notice of lis pendens (there’s no action like this).
Action to record a notice of lis pendens – WRONG The recording of a notice of lis
pendens is extrajudicial.
Because the notice of lis pendes is a notice to the whole world that there is a
pending litigation involving the property described in the notice.
If you buy a property, then you buy it subject to the outcome of the case. If the
one from whom you brought the property lose the case, you lose also the
property.
“Sir… please cause the following notice involving the property described below to be
recorded in your office. This property is the subject of a pending litigation in Civil Case
It is a letter asking the Register of Deeds (RD) to record a notice of lis pendens. You
attach a copy of the complaint. If the RD is satisfied that it is indeed a real action, the RD
will record the notice of lis pendens in the Certificate of Title involving the property.
In the Certificate of Title, in the 3 rd page, there will be an Entry Number so and so., notice
of lis pendens recorded on (date) and the time.
It is extrajudicial in the sense that you just write a letter. You do not need the approval of the court
but there must be a pending case. You do not need to file a complaint (no action like this). If you
have an action that involves a real property, then you can cause the recording of a notice of a lis
pendens by writing a letter to and presenting it to the Office of the RD, pay minimal fee, then it
will be recorded.
Extrajudicial, why?
You don’t need the assistance of the court, it’s intervention, or order issued by it.
However, once recorded, and the other party would like it to be cancelled, then the
cancellation must be done through the court. The cancellation is judicial, because you
need to file motion in court. Motion to cancel the notice of lis pendens.
Why judicial?
Because it cannot be cancelled except upon the order of the court, but there must be a
ground for cancellation.
Scenario: What is your remedy if you own a property and then somebody is claiming it
from you/trying to take it away from you? That somebody is laying a claim on
the property and you’d like to protect your interest and you cannot file the case
immediately. (You have a cause of action but it will take time before you can file
the case). What will you do?
Cause an adverse claim to be recorded.
An adverse claim has a lifetime of only 30 days, after 30 days the other party
can’t file a petition for its cancellation because the lifetime is 30 days. So what
you do is within 30 days, you file an action report and then you cause a notice of
lis pendens to be recorded. Then they cannot anymore sell the property.
A case is filed and a notice of lis pendens was recorded. The property was again
sold to another person from Pangasinan.
She won the case, the judgment became final and the title was reinstated in her
name. The Certificate of Title of the couple was declared void and even if the
person from Pangasinan was not made a party to the case, his title was nullified
because he bought it knowing the property was the subject of a litigation (he
derived his title from a title that was subsequently declared void). What did he
know? There was a notice of lis pendens. Hence, the girl was able to get back her
property.
However, IF there was no notice of lis pendens she may have lost the property, as the
purchaser is in good faith for he did not know what transpired and he may only rely on
the Certificate of Title. But if there was a notice of lis pendens, then it will also be a
notice to him as it is a notice of the whole even if the truth was he did not know, he is
deemed notified.
So if you want yourself to be protected while the action is pending, you should cause a
notice of lis pendens to be recorded.
A writ issued by the court but there will be summons only if a complaint is filed, and the court
will issue the summons. The summons is a writ directing the defendant to file his answer within
the time specified by the Rules with a warning that if he fails to do so, then the plaintiff will take
judgment by default against him and may be awarded the reliefs being prayed for.
Purpose of Summons
1. To notify the defendant of the pendency of a case against him.
2. To enable the court to acquire jurisdiction over the person of the defendant.
How may the court acquire jurisdiction over the person of the defendant?
i By valid service of summons upon him.
ii By his voluntary appearance in court.
Even if the service of summons is defective or one was not served, if the defendant makes an
appearance in court voluntarily, then he submits himself to the jurisdiction of the court.
They have to make a return (report) of summons indicating the proceedings undertaken
by them in serving the summons.
Scenario: The sheriff resorted to substituted service because when he went to the house of
the defendant he was told that the defendant is living in the US. The summons
now will indicate: Summons by substituted service because defendant is now in
the US.
However, the court said this is not valid when it was brought to it. You have to
indicate from whom he got the information that the defendant was in the US and
how long was the defendant in the US and when. He has to verify the report if it
is true or not. It has to be detailed, the sheriff has to specify the acts or
proceedings undertaken by him in serving the summons in person.
By tendering the summons together with a copy of the complaint to the defendant in
person and if he refuses to receive and sign for him, by tendering it to him.
The sheriff will make a return (this is the report) of the summons. Made together
with a copy of the complaint tendered to the defendant but he refused to receive and
sign for him. State the date and place, then the sheriff will sign. This is presumed to
be true and correct.
How?
i. By leaving the summons together with a copy of the complaint at
defendant’s residence with some person of sufficient age and discretion
then residing therein
Scenario: Asking a 5 yrs. old of his age and if he is of sufficient age and
discretion and if living therein is not valid.
ii. By leaving the summons together with a copy of the complaint at the
defendant’s regular place of business or office with some person in
charge thereof.
Assuming that substituted service is a valid option because you did
a lot of things to be informed of the whereabouts of the defendant
but you could not locate him anymore. Then you make a substituted
service.
Can be served only with leave of court and there should be an affidavit by
the plaintiff or any person who has knowledge of the facts in support of the
motion for leave to serve summons by publication.
Suppose the defendant is a non-resident defendant who is not in the Philippines. How may
summons be served on defendant?
1. Personal Service (Not outside the Philippines)
2. By publication (Not in the Philippines. In a newspaper of general circulation in the
Philippines)
3. Any other manner the court may deem sufficient
Scenario: Suppose the defendant is a non-resident defendant who is not in the Philippines. The
summons was sent to him by registered mail. Eventually there was an issue involving
the validity of the summons by registered mail.
Is the service of summons by registered mail valid? (Defendant says the sending
by registered mail is only a component of service by publication. Plaintiff says it
is a valid service of summons)
It was held that if the court will deem it sufficient, then it is a valid service of
summons. The defendant has forgotten that there are three modes of extraterritorial
service, the third one being “any other manner the court may deem sufficient”. So if
the court deems it sufficient, then it is a valid service of summons.
This cannot be applied if the defendant is a resident defendant because the modes of
service in this case does not have the “any other manner the court may deem
sufficient” requisite/3rd requisite in an extrajudicial service of summons.
But if although non-resident if he is temporarily outside the Philippines, then the summons may
be serve upon him by any of the following:
1. Personal Service
2. By publication
3. Any other manner the court may deem sufficient Plus/in addition,
4. Substituted Service
Scenario: Suppose the sheriff looked at the summons and noticed that the defendant is the
person he knows too well, hence he messaged and said that summons is being
served to him, that there was a complaint filed against him, that he has a debt of
1m, and for him to answer it. 5 days later, the defendant filed his answer to the
complaint.
But did the court acquire jurisdiction over the person of the defendant?
Yes, because he filed an answer.
Suppose the defendant foreign juridical entity has a resident agent, may the summons be
served at the government official?
No, if the defendant foreign juridical entity has a resident agent, then the summons shall be
served upon the resident agent and upon him alone. If you serve it on the government official
although it has a resident agent, the service of summons is not valid.
But suppose the foreign juridical entity has no license to do business in the Philippines, then the
summons may be served upon that defendant foreign juridical entity as follows:
1. By personal service coursed through the court in the foreign country with the assistance
of the Department of Foreign Affairs (DFA);
2. By publication in a newspaper of a general circulation in a country where the defendant
may be found and sending the summons together with a copy of the complaint to the
defendant at his last known address;
3. By facsimile or by any electronic means capable of generating a mode of service; or
4. By any other means the court may determine in its discretion.
Scenario: The trial is going on, you presented a witness, and after the witness has
testified the judge said next witness, you have no other witness so you
say “I respectfully move your honor that our next witness be allowed to
testify next meeting”. This is a motion. By moving, you are making a
motion.
Do you need to put this into writing, and make the judge wait?
No. There is an exception, which is if made in open court in the course of the
proceeding
2. It must state the relief sought to be obtained and the grounds relied upon and if required
by the Rules or necessary to prove the facts stated therein, must be
accompanied by supporting affidavits;
Scenario: You are seeking for postponement, and then say so. State the relief that
you want to obtain. You cannot file a motion without relief.
Exceptions
Rule 9, Section 1
Motion Day – It is the day when motion are to be called and are to be heard
Motion Day is Friday
If you file a motion
Motion Set for hearing by applicant, hearing should be in Friday
Rule 15, Section 7 - Motion day. — Except for motions requiring immediate action,
all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-
working day, in the afternoon of the next working day.
(In real life according to RUA it is not being followed)
In law practice it is advisable to ask court staff the motion day.
May Court dismiss on Lack of Jurisdiction Over the Subject Matter of the Action?
Yes, the court can do it on its own because the court must take notice of its limit of jurisdiction
- If Court has no jurisdiction over the subject matter of the action, the only power it has is
to dismiss the action.
- It cannot allow amendment because amendment is an exercise of jurisdiction.
He can file Motion to Dismiss based on the grounds mentioned in Rule 16, Section 1
Scenario: On July 10 Defendant filed an answer (July 10-16 “the Time for”)
Rule 16, Section 6. Pleading grounds as affirmative defense. – 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 a motion to dismiss had been filed. The dismissal of the complaint under this section
shall be without prejudice to the prosecution in the same or separate action of a counterclaim
pleaded in the answer.
The Complaint is dismissed on any of the grounds on Section 1, is the dismissal without
prejudice or with prejudice?
If Complaint is dismissed based on any of the following:
1. Res judicata or bar by prior judgment;
2. That the claim has prescribed or barred by Statute of Limitations;
3. That the Claim is unenforceable under the Statute of Frauds;
4. That Claim or demand has been paid, waived, abandoned or otherwise
extinguished.
- If the dismissal is based on these grounds, the dismissal is with prejudice, therefore the
complaint cannot be refiled, and therefore the remedy is appeal.
- If the complaint is dismissed on any other grounds, the dismissal is without prejudice and
complaint may be refiled
Scenario: In a Promissory Note, 7 Million (amount of Plaintiff Claim) is filed with the
MTC, the complaint is dismissed.
Scenario: You say you were authorized to file a complaint but has no authority.
You have no character or representation
There were 5 a number filed a complaint claiming it as a class suit, but then there
is no common interest in subject matter of the controversy.
Defendant can file a Motion to Dismiss
Subject batter is not of common interest or general interest file a motion to
dismiss on the ground plaintiff has no legal capacity to sue because they don’t
have character or representation that he claims.
That a condition precedent for filing the claim has not been complied with
In the following instances:
1. Lack of prior referral of the dispute to the lupon
The Case has not been referred for conciliation to the lupon;
Before going to court there must be prior referral of the prior dispute to
the lupon.
Then get a certification to file action and append that to your complaint.
If there is no allegation in your complaint that the dispute has been
referred to the lupon or mediation, then a condition precedent has not
been complied with and therefore your complaint can be dismissed.
2. Failure to exhaust administrative remedies or non-exhaustion of administrative
remedies;
First exhaust administrative remedies before going to court.
3. That the suit is between the members of the same family it must be alleged in a
verified petition there is earnest effort for amicable settlement or compromise
had made;
Who are members of the same family referred to?
Brother and Sister
Parents and Children
Ascendant and Descendant
Husband and Wife
If there is another person included as a party, it is not a suit between the
members of the same family.
Example: 2 Plaintiff Brothers v. 5 Defendant Brothers
Plaintiff and defendants are brothers, but there is another one a first
cousin that is not a suit between members of the family.
The moment a stranger comes like sister in law or brother in law,
it is not a suit between members of the family.
Res Judicata
But if the Motion to Dismiss is denied, what may the defendant do?
Defendant has to file an answer if motion to dismiss is denied.
If a Plaintiff files a complaint, may the plaintiff dismiss his own complaint? – Yes
Can He refund filing fee? – No
How may plaintiff dismiss his own complaint? – By notice of dismissal or by motion to dismiss.
Plaintiff included “with prejudice” in his Notice of Dismissal, can he use the remedy of
appeal?
No, he cannot appeal because he is the one dismissing it anyway
Suppose defendant has filed an answer to complaint, may the plaintiff dismiss
his complaint if the defendant filed an answer?
Yes, not by notice of dismissal but by motion to dismiss. The Court will issue
order granting the Motion to Dismiss
Complaint is dismissed upon issuance of an order
May a complaint be dismissed motu proprio by the court or on the motion of the defendant?
Court may also dismiss the complaint motu proprio or on motion of the defendant on any of the
following grounds:
1. Without any justifiable cause, the plaintiff fails to appear on the date of the presentation
of his evidence-in-chief of the complaint;
2. Without any justifiable cause, the plaintiff fails to prosecute his action for an
unreasonable length of time; or
3. Without any justifiable cause, the plaintiff fails to comply with the Rules of Court or Any
other court.
If complaint is dismissed with prejudice and order of dismissal of complaint becomes final can
you refile?
No, If you refile complaint can be dismissed on the ground of res judicata.
If an order issued dismissing complaint based on following grounds, the dismissal is an
adjudication of the case in its merits that has the effect of a judgment that is why if order lapses to
finality and is refilled, it is dismissed on the ground of res judicata.
Without any justifiable cause the plaintiff fails to appear in court on the date of the
presentation of his evidence-in-chief of the complaint;
First to present evidence is the plaintiff, so he will be assigned of trial dates, for
example the court asked the counsel how many trial dates and asked for five trial
dates. But the plaintiff failed to present evidence on the said trial dates and did
not even appear in court.
Suppose the Case was set on a particular date for presentation of rebuttal
evidence, the plaintiff failed to appear. May the court dismiss the complaint?
No, it is not evidence-in-chief but rebuttal evidence
Suppose the defendant is to present his evidence but the plaintiff failed to
appear, may the court dismiss the complaint?
No, because he has already presented his evidence, the only effect is that he
waive his right to cross-examine the witnesses and evidence of the defendant.
The plaintiff fails to prosecute his action for an unreasonable length of time
Case not moving, no activity
The plaintiff fails to comply with the Rules of Court or Any other court.
Court issues order to amend complaint and to implead an indispensable party.
- “Plaintiff is hereby directed within 10 days to implead omitted indispensable party so and
so..”
- The court may dismiss the complaint not because of non-joinder but failure to obey order
Pre-trial is mandatory
- you cannot dispense without pre-trial
- it is a device to clarify and simplify issues in complaint and answer
- Issues are contained in Pre-trial order
- When you go to trial, you are bound by Pre-trial order
In civil cases, before the court will conduct a pre-trial in a civil case, the case will be first refer to
the Philippine Mediation Centre for Court Annexed Mediation (CAM)
If the mediation fails because the parties do not arrive at a settlement, then the case goes by to the
court and then the court will also conduct another level of mediation known as Judicial Dispute
Resolution (JDR)
Judicial Dispute Resolution (JDR)
This is also a kind of mediation except that it is the judge conducting the
mediation. The proceedings are not recorded and whatever the parties will say is
also confidential.
If the JDR fails because it did not resolve in a settlement, then in a multi-sala
court the case will be re-raffled among the other branches of the court so that the
JDR Judge will not be the one to conduct the trial.
But in a single-sala court, there is a JDR Judge that will conduct the JDR. In case
it does not resolve in a settlement then the regular judge will be the one to
conduct the Trial.
Ex. MTC La Trinidad, so on a designated day every week, the judge of MTC Tuba will
go to MTC La Trinidad to conduct JDR, so he becomes the JDR Judge.
Arbitration
2. Simplification of Issues
- One purpose of pre-trial is to clarify and simplify the issues
- When you go to trial, you try all these issues except that when you go outside the issues
and you try another issue that is not among them, there will be an amendment to conform
the evidence.
- Amendment to conform the evidence does not apply to a defendant declared in default.
Scenario: The subject of litigation is a parcel of land, instead of proving the area/location of
the land, you can stipulate of the identity of the land. The plaintiff perhaps may
ask the defendants to admit the location and identity of the land, and if the
defendant will admit, that will be a judicial admission.
Judicial Admission – does not need evidence.
Stipulation of facts can also happen in criminal case
Ex. the age of the victim
- The court will not allow a person to testify unless he was mentioned as a witness at the
pre-trial.
- The court will issue the pre-trial order mentioning all witnesses to be presented by both
parties and then there is a statement that says that a person whose name does not appear
in the list of witnesses will not be allowed to testify unless for good cause shown.
Scenario: The problem is overlapping. A claims that his boundary is up to here. B claims
that his boundary is up to there, so there is an overlapping. Then the court will
simple designate a commissioner in a matter like overlapping of boundaries
which is a geodetic engineer. A geodetic engineer can be commissioned to
conduct a survey on the ground.
In most cases
The plaintiff will choose his own surveyor and the defendant will also choose his
own surveyor. The two surveyors will choose the third member of the panel. And
the report of the majority should bind all the parties.
Scenario: X files a complaint and if Y files his answer and it does not contain affirmative
defenses, and then the answer could be the last pleading. But if it contains
affirmative defenses, then the last pleading would be a reply.
So it does not follow that the answer would be the last pleading.
If the last pleading has been filed then it is the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial.
What does the word promptly mean? – In one circular, it was mentioned that the plaintiff has
5 days from the filing of last pleading to move ex parte that the case be set for pre-trial.
However if the plaintiff fails to move ex parte to have the case set for pre trial, then the Clerk
of Court must issue the notices of pre-trial.
But if the plaintiff does not move ex parte to have the case set for pre trial and the Clerk of
Court does not also issue the notices of pre-trial and so the case is now in the docket of the
court, not moving. The case can be dismissed for failure of the plaintiff to prosecute.
There must be a notice of pre-trial.
Notice of Pre-Trial
- Must state the date and time of the pre-trial and it must contain directive to the parties to
submit their pre-trial briefs at least 3 days before the pre-trial.
- They must ensure receipt by the other party of the pre-trial brief at least 3 days before the
pre-trial.
In one case it was held that it is the failure of the party to trigger of these effects of non-
appearance. It is no the failure of the counsel of the party.
Scenario: The plaintiff appears but his counsel fails to appear. The case may not be
dismissed because it is the failure of the plaintiff and not the failure of his
counsel that trigger the dismissal of the complaint.
Scenario: In a solidary obligation, these two individuals are liable solidarily in my favor in
the amount of 10 million. So I filed a case against one of them to recover the
entire amount of 10 million. The solo defendant can file a third-party complain
against the other debtor for contribution so that if he is made to pay the 10
million, he may now recover the 5 million from the third-party defendant.
Scenario: You are covered by an insurance policy. You hit a person while you’re driving the
cars and then they file a case against you. You can file a third-party complaint
against the insurance company for indemnity because you are covered by the
insurance policy.
Ex. X&Y Z
Z is not a party of this case but Z has a legal interest in the subject of the
litigation. Z will file a Motion for leave to intervene, so he will be called as an
intervenor.
In a third-party complaint, the initiative comes from the defending party to bring
him in the case. In an intervention the initiative to become part of the case comes
from the third party.
You cannot intervene if there is no pending action. You can only intervene if
there is a pending action in court.
The phrase “where the court sits” applies only to legal holiday
Ex. September 1 is a legal holiday in Baguio but not in Marawi City.
Scenario: Your law office is in Baguio but you have a case in Dagupan and you are suppose
to file a motion for reconsideration in that case in Dagupan, and the last day to
file is on September 1, you cannot file it on the next business day because the
legal holiday is not in Dagupan.
What is subpoena?
Is a process directed to a person requiring him to attend and testify at the hearing or the trial of an
action, or at any investigation conducted by competent authority, or the taking of his deposition.
Kinds of Subpoena
a) Subpoena ad testificandum – requires the person to attend and testify
b) Subpoena duces tecum – requires the person to produce books, documents and other
things.
If what you can see is only the word subpoena then that is understood to be subpoena ad
testificandum.
Suppose a subpoena was issued to a person and then the person has a ground to quash the
subpoena, then he files a motion to quash a subpoena.
What are the instances when a witness is not bound by the subpoena?
The following:
a) The witness resides more than 100 kilometres from his residence to the place
where he is to testify by the ordinary course of travel;
b) The witness is a detention prisoner- if no permission of the court in which his
case is pending was obtained; and
c) The witness is a prisoner sentenced to death, reclusion perpetua, or life
imprisonment is confined in a penal institution- if the authority of the Supreme
Court to bring out the prisoner has not been obtained.
Do you have any means to be able to know all these facts that are in the possession of the
adverse party?
Yes. You resort to what is known as modes of discovery to know the facts that are in the
possession of the adverse party.
Scenario: XvY
X may take the deposition of Y; or
Y May take the deposition of X
X v. Y W (non-party)
A party may take the deposition of another party or the deposition of a person
who is not a party to the action.
For a party to avail himself of the modes of discovery, does the party need leave of court?
1-4 Modes of Discovery:
1. If no answer has not yet filed, the court has acquired jurisdiction over the person of the
defendant by service of summons: Leave of Court is REQUIRED.
2. If an answer has already been filed: Leave of Court is NOT REQUIRED.
5 and 6 Modes of Discovery: Leave of Court is ALWAYS REQUIRED
2. If the deposition is that of a non-party to the action, the deposition can be used only for
the purpose of contradicting or impeaching the deponent as a witness.
Except:
a) That the witness is dead
b) That the witness is outside of the Philippines
c) That the witness lives more than 100 km from the place of trial
d) That the witness is too infirm as to be able to testify in court
On the basis of the notice, for the taking of the deposition, the court will issue a
subpoena to W.
Can W refuse?
No, he need to appear before the officer for the taking of his deposition.
The witness will be present to examine W the way that a witness is examined in
court.
If you are the one who will take the deposition of the witness, you arrange for the officer
to be present with a stenographer. During the examination, you may ask questions the
way you will examine him in court (Questions must be relevant to the issue). The witness
may also be cross-examined by the other party. Then the recorded examination will be
sealed and subjected to the court.
Except this time: Before the date mentioned in the notice, the written
interrogatories must be submitted to the officer, and a copy to the other party.
Scenario: X v. Y W (non-party)
RTC in Baguio, W reside in Baguio.
He gave his deposition, (Note that the deposition cannot be used as evidence)
Suppose X will use the deposition as evidence.
Scenario: X v. Y W (non-party)
What are the instances when to use Oral Examination and Written Interrogatories?
The Rules does not say. It will depend to the convenience of the person taking the deposition.
Note: If the defendant fails to answer, the motion of the plaintiff will be in default.
Is there an instance, although that the defendant filed an answer to the complaint, can he
still be declared in default?
Yes, if he refuses to comply with the modes of discovery.
If a defendant did not answer to the written interrogatories, that can be a sanction for the
defendant to be declared in default.
The first to present evidence is the plaintiff, after presenting the evidence the plaintiff RESTS.
Then the second to present evidence will be the defendant, then after, the defendant RESTS.
The court will receive the evidence of the parties
The reception of evidence may also be delegated to the Clerk of Court (who is a member of the
bar)
Instances where the court may delegate the reception of evidence to the Clerk of Court:
1. In Default hearings
If the defendant is declared in default, then the court can render judgment against him
based on the facts pleaded on the complaint; but in the discretion of the court, the court
may require the plaintiff to present evidence against the defendant ex parte.
Rule 30 Sec. 5 – The reception of evidence can be delegated to the Clerk of Court.
The plaintiff will present his evidence in chief. The plaintiff will call witnesses and then
present evidence (Testimonial, Documentary, etc.)
After presenting the evidence in chief, the plaintiff will rest his case.
Then the defendant will also present his evidence, but instead of filing his evidence, the
defendant may file a Demurrer to Evidence.
In a civil case, the defendant does not need leave of court to file a demurrer to evidence.
NOTE: Granted + Reverse = The Defendant will lose his right to present evidence.
Suppose the Appellate Court, reverses the dismissal, will it remand the case to the lower court?
No, in case of a reversal of the dismissal, the court will render judgment. The basis will be on the
evidence presented by the plaintiff in the case below.
Scenario: The trial court granted the Demurrer to evidence and dismissed the case, the
plaintiff appealed. On appeal, the court reversed the dismissal and remanded the
case to the lower court. Directing the lower court to receive the evidence of the
defendant.
In a summary judgment, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
If the court renders a summary judgment, then the remedy is appeal from the summary judgment.
The party adversely affected by the summary judgment may appeal from the summary
judgment. But there may also be partial summary judgment, like when there's so many
claims asserted in a complaint, and as to some of these claims, there's no genuine issue,
and so the court may render a summary judgment as to these claims. But the case will
remain as to the claims not disposed of. That will be partial summary judgment.
What are the distinctions between a Judgment on the pleadings and a Summary Judgment
If one or some of the requirements are wanting, then the judgment is void. Specially the third one,
because it is a constitutional requirement.
Scenario: The plaintiff will present evidence and the defendant presents evidence. So there
would be coalition, and it is up to the judge to determine what really are the facts.
Supposed the judge himself misunderstood the evidence and the law, he got the
facts all wrong and the law is wrong. The law that is cited is not also correct.
What if there are no facts and no laws cited, is the judgment valid?
No, it is not valid even if it might be correct. (Error of jurisdiction)
In civil case, the judgment is promulgated when the clerk of court officially release the judgment
to the parties. And so the judgment has different days of finality.
The judgment must be promulgated during the incumbency of the judge who signed the
judgment. If at the time of the promulgation of judgment, and the judge who signed it is not
anymore the incumbent judge, the judgment is void because the judgment must be promulgated
during the incumbency of the judge who signed it.
New Trial – The rule says that the time to move for New trial is within the time for taking an
appeal. If the judgment is served on the party adversely affected by the judgment, then he has 15
days to appeal from the day he receives the judgment.
Instead of appealing, he can move for new trial within the time for taking an appeal, that
is when the aggrieved party can move for new trial, asking the court to set aside the
judgment and to grant new trial on the following grounds;
1. FAME (Fraud, Accident, Mistake, Excusable Negligence) which ordinary
prudence could not have guarded against and by reason of which the aggrieved
party is probably injured in his rights.
2. Newly Discovered Evidence, which he could not have produce at the trial even
with reasonable diligence, and which if presented would probably alter the result.
3. To be considered as Newly Discovered Evidence;
a. The evidence could not have been discovered at the trial, even with the
use of ordinary diligence
b. And it was discovered only after the trial
c. And if presented or admitted, it would probably change or alter the result
d.
e.
Motion for Reconsideration – the time of filing is the same within the time for taking an appeal.
Grounds: AID
1. Award of excessive damages
2. Insufficiency of evidence to justify the judgment
3. Decision is contrary to law
If you file a motion for reconsideration, there's no need to present
additional evidence, the court will resolve the motion merely based on
the record of the case, but when it comes to motion for new Trial, it
might be denied or granted. If denied, there would be no new trial, so the
aggrieved party may appeal from the judgment itself. If granted, the
court will issue an order granting the motion.
What are the effects of the order granting the motion for new trial?
If I file a Motion for Reconsideration and is denied, I can no longer file another one. But a second
Motion for New trial is allowed provided it is on the ground not then existing at the time of the
filing of the first Motion.
A party may file for a petition for relief from judgment or final order only if the judgment or final
order has already become final. On the other hand, the grounds are FAME. On this point, there is
something in common between New Trial and Petition for Relief from judgment because they
have the same grounds. But in a petition for relief, you cannot use the ground of Newly
discovered evidence, that pertains only to New Trial.
In New trial, the judgment should not have become final yet, but in a Petition for relief, the
judgment should have become final. It must have attain finality.
Is a petition for relief from judgment available as a remedy against a judgment of the C.A or
S.C, after all the rule say, "any court"?
No. Although the rules say, “any court", a petition for relief from judgment applies only to a
judgment rendered by the MTC or RTC.
Suppose the court finds that the allegations are not true?
The court will issue an order denying the petition. This order is not appealable.
If appeal is dismissed for having filed out of time, but the appellant can show that he was
prevented from making his appeal by FAME, his remedy is to file for petition for relief
asking the court to give due course to his petition.
If the appeal was perfected in time but notwithstanding that, the appeal was denied the
remedy is petition for certiorari, because the appeal was filed in time and the dismissal is
with grave abuse of discretion.
But if it was filed beyond 15 days but the appellant was prevented from filing his appeal
by FAME and his appeal was dismissed the remedy is to file a petition for relief showing
that he was prevented from filing his appeal on time by FAME and so he will ask the
court to give due course to his appeal.
Distinctions between petition for relief from judgement and motion for new trial:
Petition for Relief from Judgment Motion for New Trial
Is filed after finality of judgment within 60 Is filed before the judgment becomes final
days from knowledge of judgment but within 6
months from entry of judgment.
EXECUTION
To execute means to enforce the judgment.
Only a judgment or a final order can be a subject of execution. An interlocutory order can not be
executed.
May a final order that is not yet final be the subject of Execution?
Yes, execution pending appeal/ discretionary execution/ exceptional execution.
If the judgement is final and your going to execute it, what is the kind of execution?
It is compulsory execution or execution as a matter of right.
Scenario: X files a complaint against the Y against support and the relationship is not
disputed, and the court issued an order for support pendente lite(support while
the case is pending).
Suppose Y did not comply with the order what are the remedies of X?
1. File a motion for execution
2. File a motion to sight Y in contempt
3. Or file both motions
The prevailing party asking for execution is called the judgment obligee, the one who has
an obligation to perform on the judgment is called the judgment obligor.
After 10 years (Stale Judgment) you cannot execute the judgment anymore, the
judgement obligor can file a motion to dismiss on the ground that the judgement has
prescribed.
Scenario: The judgment (dispositive portion, discreta, fallo) of the decision orders the
issuance of a writ of execution, when the clerk of court saw it he issued a writ of
execution under the seal of the court and the writ will be implemented by the
sheriff. Is the clerk wrong in issuing the writ?
Yes, there are two ways to enforce an execution, by means of a motion/ by means
of an action, the part of the judgment that let a writ of execution be issued is
When you file the motion for execution, it shall be accompanied by a certified copy of the
decision of the CA and certificate of finality (entry of judgment by the CA).
Scenario: Suppose the RTC refuses or does not like to issue the writ of execution, what is
your remedy?
The judgment obligee files a motion with the appellate court asking the appellate
court to issue an order directing the lower court to issue the writ of execution.
Scenario: Suppose the judgment obligee files a motion for execution with the trial court(the
decision is not appealed), but it refuses to issue the writ of execution, what is the
remedy?
File a petition with the higher court, a Petition for mandamus compelling the
lower court to issue the writ of execution.
The issuance of the writ of execution is compellable by mandamus, because it is a matter of right.
If the judgment obligee files a motion for execution,is the judgment obligor entitled to notice of
the motion?
No the judgment obligor is not entitled to the notice of motion, except:
1. If the judgment is appealed, and the appeal is finally resolved, and the motion for
execution is filed in the court of origin.
2. Motion for execution pending appeal.
EXECUTION OF JUDGMENT
Execution Pending Appeal –in execution pending appeal, there is a judgment but the judgment
is not yet final.
Compulsory execution - If the judgment final, then it is not anymore execution pending
appeal. It is.
The court must issue a special order for the execution pending appeal, and the court must
state in that special order the good reason for execution pending appeal.
If there is no good reason for execution pending appeal, then you cannot execute the
judgment because this is the exceptional execution. This is discretionary; it will depend
on the sound discretion of the court. That’s why there must be a good reason for
execution pending appeal.
If there is no good reason – the execution pending appeal can be set aside, by means of
a petition for certiorari.
What is the remedy if the execution pending appeal is not supported by a good reason for the
execution pending appeal?
To file a petition for certiorari to set aside or nullify the execution pending appeal.
In one case, it was held that the advancing age of the judgment obligee is a
good reason for execution pending appeal. (The judgment obligee is too old -the
judgment would just be an illusion because the judgment oblige was at that time
very old and if the appeal will be allowed to take its course, he would not be
likely to be able to live enough to enjoy the fruit of the judgment.)
In another case, the merchandise subject of the case has a likelihood that they
must just go out of fashion (clothing materials) which might cause it to
become useless and of no commercial value anymore, the court held this to be
a good reason for execution pending appeal.
But in many cases, the supreme court has held that the posting of a bond is not a
good reason for the execution pending appeal. Otherwise, if the posting of a
bond would be a good reason for execution pending appeal then the execution
pending appeal would not be anymore an exceptional. It would be a common
routine if execution pending appeal is allowed by mere posting of bond.
MOTION for execution Pending appeal – The judgment oblige must file the motion for
execution pending appeal, and there must be notice to the judgment obligor.
If you are the judgment obligee and you would like to file a motion for execution
pending appeal, with what court will you file the motion?
1. File it with the trial court.
2. If the trial court has already lost jurisdiction over the case, then file a motion with
the appellate court.
3. Although the trial court has already lost jurisdiction over the case, the motion for
execution pending appeal may still be filed with the trial court provided the
record of the case has not yet been transmitted to the appellate court. The trail
court can do this in the exercise of its residual jurisdiction. The trial court may
still issue the writ of execution pending appeal although it has already lost its
jurisdiction over the case in the exercise of its residual jurisdiction.
Scenario: A case in RTC, parties are X and Y, there’s a judgment rendered by the court. X
received his copy of the judgment on July 1; Y received his judgment on August
1.
As to X, the judgment will become final on July 16 and as to Y the judgment will
become final on August 16 if he does not appeal from the judgment.
Suppose x filed his notice of appeal by filing on July 10. When does the court
lose jurisdiction?
The court loses its jurisdiction over the case as to the appealing party upon the
filing of the notice of appeal in due time and the expiration of the time to appeal
of the other party.
If in the example the notice was filed august 5, then the court has not lose
jurisdiction.
If august 25 – the time to appeal has already expire. But if the record of the case
has not yet been transmitted to the appellate court, the trial court may still issue a
writ of execution pending appeal although it has already lost its jurisdiction over
the case in the exercise of its residual jurisdiction.
Judgment oblige would like to file a motion for execution pending appeal, with what court?
File it with the trial court, but if the trail court has already lost jurisdiction over the case, he
should file it with the appellate court. But even if the trial court has lost jurisdiction over the case,
the judgment oblige may still file the motion for execution pending appeal with the trail court
provided the record of the case has not yet been transmitted to the appellate court.
If it is a valid writ of execution, the sheriff will now enforce the writ by levying on the
property of the judgment obligor.
He will make a demand to the judgment obligor to comply with the judgment. If the
judgment is to pay a sum of money, he will ask him to pay the money judgment. If it is to
execute a deed of sale, the sheriff will ask him to execute the deed of sale.
If he refuses to execute the deed of sale, then the sheriff himself will make the deed of
conveyance and it will have the same effect as the deed of sale. If the judgment obligor
does not comply with the writ of execution, then the sheriff will levy on the property of
the judgment obligor. He will levy on the property of the judgment obligor. The levy will
create a lien on the property of the judgment obligor.
Scenario: The sheriff levied on the property believing it to be owned by the judgment
obligor.
X -plaintiff, Y –defendant, land owned by Z: The sheriff levies on the land
believing it to be the land of y.
Third party claimant – is one who claims title to or right of possession over the
property levied upon.
The affidavit served to the sheriff, who levies to the property.
Sale on execution. There has to be notices, (notice of sale and if it is a real property or an
immovable will have to be published in a newspaper of general circulation, once a week for three
consecutive weeks)
The moment the sheriff is served with a copy of a third party complaint, he must
stop the proceedings. He must not continue with the next step. If he will continue with
the proceedings, -sale on execution etc. and the third party complaint is valid then he and
he alone shall be liable to the third party claimant.
Scenario: If the value of the property is 10M, then he will be liable alone.
How can the judgment oblige will make the sheriff continue?
a) The judgment obligee must post a bond equivalent to the value of the
property.
What is the purpose of the bond? – to answer for any liability that the
sheriff might incur as a result of the execution proceedings. If the bond
will protect the sheriff for any liability.
SO the judgment oblige filed a bond, the sheriff proceeded with the
execution. Suppose the third party complaint turned out to be valid. Who
will be liable to the third party claimant? –the sheriff will be liable but he
is covered by the bond.
b) If the judgment oblige has filed a bond the third party claimant can also
file an action against the bond if one has been filed by the judgment
oblige within 120 days from the time the bond is posted.
c) An independent action to file an independent action to litigate his claim
of ownership or possession.
Properties exempt from execution: (these properties are also exempt from attachment)
1. Family home
2. Lettered gravestones
(properties exempt –found in rule 29 section 13)
Scenario: Suppose the property is a family home and the sheriff levied on the family home,
then it was sold on an execution sale. Five years later, the judgment obligor filed
a case to annul the case, alleging that the house that was sold was a family home.
It will be too late for the judgment obligor to claim exemption five years after the
sale. If that is what the judgment obligor would do, claiming exemption many
years later, that will now be too late for him. He cannot nullify the sale anymore;
he has slept on his right to long. So even if the property levied upon is exempt
from execution if no one claims the exemption, the levy becomes valid for lack
of objection.
Sale on execution:
Who will participate in the sale on execution?
Anyone, even the judgment obligor can participate in the sale. So it will be conducted by bidding.
The property will be sold to the highest bidder.
Suppose what was sold in the execution sale is a grand piano worth 15M pesos, is there a right
of redemption? –None
Suppose what was sold is a land worth 1million, is there a right of redemption? –yes
Execution sale:
a) Date when the sale was actually conducted was July 1.
b) The sheriff will execute a document known as sheriff certification sale. (If a sale is a
voluntary sale what is executed is a deed of sale)
c) Pay the fees to be paid
d) Go to the register of deeds, then you register the date (that might probably be already
August 1) –
The 1 year redemption period will be the date the sale is registered (In the example –
August 1)
There is a right of redemption to be exercised within 1 year from the date the sale is
registered. If no redemption is made within 1 year from august 1, then the right of the
purchaser of the execution sale will become absolute. His title will now be consolidated.
e) The purchaser will execute consolidation of ownership because there was no redemption.
f) The sheriff will execute a sheriff’s final certificate of sale, the certificate of title of the
judgment obligor will be cancelled and a new one will be issued in the name of the
purchaser.
The purchaser’s right from august 1 to 1 year is not absolute yet because it is subject to
the right of pre-emptioner to redeem the property. But if no redemption is made within 1
year, then his title will now become absolute. He will now execute an affidavit of
consolidation of ownership, and then on that basis, the sheriff will execute the sheriff’s
final certificate of sale.
Scenario: X v. Y
There is a judgment against Y. Y is the judgment-obligor. This is a land owned by
Y. Let us say that Y mortgaged this land to A in 2011. So A has a lien on this land
by virtue of a mortgage. And then there was a judgment against Y and the
judgment became final and there was a writ of execution issued by the court, and
his property was levied upon, levy was in 2012 – levy on execution. So there was
a case filed by B against Y, and the property was attached by B in 2014 – the
person who caused the attachment was B. In 2015 there was a sale on execution -
the sale on execution that was conducted was the one that was levied in 2012. Let
us say the property was sold to C.
C’s ownership over this land is subject to the right of redemption by the judgment
obligor and redemptioner. If no redemption is made within one year, then his title
will become absolute.
Assuming that there is another person, like C, who has also a lien (2013) by
virtue of judgment, attachment, or mortgage, he is also a redemptioner because
his lien is subsequent to the lien.
There is judgment, the judgment is not yet final. The party aggrieved by the judgment can
appeal. The appeal is to be brought to the higher court.
There are certain steps to follow in appealing from the judgment.
The time to appeal is 15 days from notice of the judgement (from the day the judgment is
served on the party aggrieved by the judgment).
Is the filing of a Motion for New Trial or a Motion for Reconsideration a precondition
to the perfection of an appeal?
No. He does not have to that. Therefore, the filing of a Motion for New Trial or a Motion
for Reconsideration is not a precondition to the perfection of an appeal. You can appeal
even without filing this motion first. But if you file this motion and it is denied, then you
will have another 15 days from notice of the order denying your motion. In short, the
aggrieved party does not have to file a Motion for New Trial or a Motion for
Reconsideration so that he can appeal. But if he files any of these motions and it is
denied, then he will have another 15 days from notice of the order denying his motion to
perfect his appeal.
Scenario: X v. Y
Y lost this case. He received a copy of the judgment on July 1, he can appeal the
judgment from the judgment within 15 days from July 1 or until July 16. But
suppose on July 14, he filed a Motion for Recon. Let us say that in Sept. the court
resolved the motion denying it. Y received the copy of the order denying his
motion on Sept. 2.
The filing of a Motion for New Trial or a Motion for Reconsideration is not a precondition to the
perfection of an appeal, except in four instances:
1. In an action for legal separation;
2. In an action for annulment of marriage;
3. In an action for declaration of nullity of marriage;
4. In habeas corpus involving custody of minors.
In these four cases you cannot appeal unless you first file a Motion for New Trial or a Motion
for Reconsideration.
Modes of Appeal
I. Ordinary Appeal ( Appeal by Writ of Error)
a. Notice of Appeal
b. Notice of Appeal and Record on Appeal
- Governed by Rule 40 and Rule 41
II. Petition for Review
- Should be a verified petition
- Governed by Rule 42 and Rule 43
III. Petition for Review on Certiorari
- Governed by Rule 45
If the appeal is by Notice of Appeal, the time to appeal is 15 days counted from notice of
the judgment.
If appeal is by Notice of Appeal and Record on Appeal, the time to appeal is 30 days
from notice of the judgment.
Petition for Review, 15 days but may be extended for another 15 days.
Petition for Review on Certiorari, 15 days may be extended for a maximum of 30 days.
If appeal is by Notice of Appeal, with what court should you file the notice of appeal?
With the court that rendered the judgment being appealed from.
ILLUSTRATION:
I. The case originates from the MTC
But let us say the CA renders a judgment and still you would like to appeal, then your appeal is to
the SC by filing a Petition for Review on Certiorari. But the only questions you can raise are pure
questions of law. If you raise a question of fact or a mixed question of fact and law before the SC,
then the SC will dismiss your appeal.
Number II: from RTC you go to the CA by means of notice of appeal, if you are raising
QF/MQFL.
But if from the judgment of the RTC you would like to appeal but you are only raising pure
question of law, you cannot go to the CA, you go directly to the SC.
Why is it that in number 1, from RTC to CA it is by Petition for Review, but here (number 2)
RTC to CA it is by N of A?
Because in number 1 the RTC is exercising appellate jurisdiction. The judgment by the RTC
rendered by it in the exercise of its appellate jurisdiction is appealable to the CA by means of a
Petition for Review. In number 2 the RTC is exercising original jurisdiction.
IV. PRC Rule 45 QL Rule 43CA QJB V. SC PRC Rule 45 QL CA CTC SB RTC
V. D
In an appeal to the SC, the only questions that can be raised are pure questions of law subject to
some exemptions (to be discussed in due time).
In appeal by Notice of Appeal, you file the N of A and then you pay the appellate court’s docket
fee and you have perfected your appeal.
1. And then you file this notice of appeal with the court that rendered the
judgment appealed from.
2. And then you pay the appellate court’s docket fee.
If you do these two things, then you perfected your appeal.
If the time to appeal of the other party has also expired, then the court loses jurisdiction over the
case. But it may happen that it still has the record of the case in its possession.
They will transmit the record of the case to the CA, and then the moment the CA receives the
record of the case it will give a notice to the appellant, informing him that the record of the case is
now with the record section of the CA and directing the appellant to file his appellant’s brief
within 45 days from notice, furnishing the appellee with a copy of his brief and the appellee will
have the same number of days to file his appellee’s brief.
If the appeal is by Notice of Appeal and Record on Appeal, then the time to appeal is 30 days. If
you file a Motion for Recon or a Motion for New Trial your motion is denied, then you will have
another 30 days from notice of the denial. Neypes is applicable, but instead of 15 days it is 30
days.
In these cases where you need a record on appeal, the clerk of court will not
transmit the record of the case to the CA. The record on appeal will take the place
of the record of the case
X v. Y (Expropriation)
X wants to expropriate this land to be used for public purposes. Take note that the
case will undergo two stages.
1st stage: concerns itself with the determination of the right and authority of the
plaintiff to expropriate.
If the court finds that the plaintiff does not have the right to expropriate, it will
dismiss the case.
But if the court finds that the plaintiff has the right to expropriate, then it will
issue an order known as Order of Expropriation (Appealable)
The defendant can appeal from the order of expropriation, not the end of the case.
Because the moment the court issues the order of expropriation, the case will go
to the 2nd stage.
2nd stage: determination of just compensation for the property. And if the court
issues an order fixing the just compensation for the property, this one is also
appealable.
When you appeal from the order of expropriation, the record of the case will not
be transmitted to the CA because the RTC will still need the record of the case
when it goes to the 2nd stage.
That is why a Record on Appeal must be approved because there might be some
misquotation or intentional omission. The other party should have the right to
object or to file his comment on the record on appeal.
If reversed by the RTC – it will be remanded to the MTC for further proceedings.
If affirmed by the RTC – it will try the case as if the case has been originally filed with it.
But if the RTC likewise has no jurisdiction, then it shall not try the case, and the case shall remain
dismissed (Rule 40, Section 8)
Scenario: X v Y and Z (In this case, the defendants is represented by different lawyers or
they have different defenses)
Y Files an answer
Z Files a MTD
Complaint is dismissed as to Z but the complaint is still pending in court
The plaintiff cannot resort to appeal while the main case is still pending. Take
note of Rule 41, Section 1 (f). Also, read what orders cannot be appealed under
Rule 41 Section 1 – Subject of Appeal.
The CA’s jurisdiction over action for annulment of judgment in the NLRC?
The CA has no jurisdiction, action for annulment of judgment does not apply to judgment of
quasi-judicial bodies. It only applies to judgment and final orders of the trial court under rule 47.
It is ancillary because there must be a main action so that you can ask for any of these remedies.
It is also called provisional to protect his interest while the main action is pending litigation.
If the defendant is a non-resident defendant and has a property in the Philippines same action
for attachment of property and the action becomes in rem because of the attachment.
Prior or Contemporaneous Rule – Is the rule that provides that no levy on attachment shall be
enforced unless it is preceded by or contemporaneously accompanied, by service of summons,
together with a copy of complaint, the application for attachment, the applicant’s affidavit and
bond, and the order and writ of attachment on the defendant.