Civil Procedure Tells Us The Procedure On The Filing, Processing, and Adjudication of A Civil Case. Jurisdiction

CIVIL PROCEDURE
(Summer Class 2019)
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.
REGIONAL TRIAL COURT

The RTC is also a trial court, but it has also appellate jurisdiction because judgments or decisions
of the MTC are appealable to the RTC.
FIRST LEVEL COURTS

The MTC is a Trial Court
Metropolitan Trial Court (MeTC),

Municipal Trial Court in Cities (MTCC),
Municipal Trial Court (MTC),
Municipal Circuit Trial Court (MCTC)
ELEMENTS OF JURISDICTION
1. Jurisdiction over the PARTIES
2. Jurisdiction over the SUBJECT MATTER of the action
3. Jurisdiction over the RES
CIVIL PROCEDURE | Notes (hugs

I. JURISDICTION OVER THE PARTIES
Parties of a civil case: The Plaintiff and the Defendant
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 may the court acquire jurisdiction over the defendant?

1. By a valid service of summons upon him
2. By his voluntary appearance
II. JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION
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.
a) Real Action – It is a real action if the action involves title to or right of

possession over the real property.
Where to File?
MTC – If the assessed value of real property does not exceed P20,000 or
P50,000 in Metropolitan Manila.
RTC – If it exceeds that amount.
Venue: Determined by the location of the real property involved.
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.
b) Personal Action – Any other action.

The jurisdiction of the court is determined by the total amount of plaintiff’s
claim, exclusive of damages of whatever kind, interest, attorney’s fees, litigation
expenses, and cost. (DIAL-C)
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.

Venue: Determined by the residence of the parties.
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
What court has jurisdiction?

The MTC, exclude DIAL-C (#2, 3, 4)
What is the instance when DIAL-C is not excluded?

When the main cause of action is really damages.
c) INCAPABLE OF PECUNIARY ESTIMATION

Where to File?
RTC – If the action is incapable of pecuniary estimation, regardless of
the money involved because the payment of a sum of money is merely
incidental to the main action.
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.
Actions Incapable of Pecuniary Estimation

a. Action for specific performance
b. Action for annulment of a document
c. Action for support
d. Action for expropriation
Specific Performance AND payment of P150,000.

RTC has jurisdiction
Specific Performance OR payment of P150,000.

The MTC has jurisdiction, because when the plaintiff says “or payment of P150,000”, then the
plaintiff himself has assigned a money equivalent to his claim of specific performance. His claim
of specific performance became capable of pecuniary estimation. Because it is now capable of
pecuniary estimation, it may proceed to the amount of plaintiff’s claim exclusive of DIAL-C
2. Primary Objective Test – If the primary or ultimate objective of the plaintiff is to

recover ownership or possession over a real property. The action shall be classified as a
Real Action.

Scenario: The plaintiff claims that his signature on a deed of sale involving his land was
falsified. The land is registered in his name. One day, he just learned that his
certificate of title was cancelled and it is now in the name of Y. When X made an
inquiry, he found out that there was a deed of sale purportedly signed by him,
selling the land to Y, but his claim is that he did not sell the land to Y, and so he
now says that the deed of sale was falsified. X files a complaint against Y for the
annulment of the deed of sale and of the certificate of title in the name of Y.
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.
TWO WAYS TO FORECLOSE A MORTGAGE
Mortgage
X (Mortgagor) Y (Mortgagee)
a) Judicial Foreclosure – The mortgagee goes to court.

 An action to foreclose a real estate mortgage is a real action.
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.

Scenario: Suppose X paid all of his debts to Y and asked Y to execute a deed of cancellation but
Y refuses. X filed a complaint to compel Y to execute a deed of cancellation.
Is this a real action or a personal action?

Personal action because there is no charge in ownership or possession.
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.
III. JURISDICTION OVER THE RES

Applies only if the defendant is a non-resident defendant who is not in the Philippines.
Ways to distinguish actions:

 As to basis
 Real
 Personal
 As to object (Against whom the action is directed)
 Actions in rem
 Actions quasi in rem
 Actions in personam
Action In Rem Action Quasi in Rem Action in Personam

It is an action against the It is an action against an It is an action to establish a
whole world who might be individual, There is a specific claim against a particular
minded to make an objection defendant, although the person on the basis of his
against the whole world purpose of the suit is to object personal liability.
against the right sought to be his interest in a particular
established. The judgment property to the obligation
rendered in an action in rem burdening the property.
binds the whole world.
An action in rem is not The judgment rendered in
necessarily a real action. action quasi in rem is
conclusive only between the
parties.
Examples: Examples:
Proceeding of a change of a Action to Quiet Title
name
Correction of birth certificate
 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.

Instances when a non-resident defendant who is not in the Philippines can be sued in the
Philippines
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.
Scenario: A an American, resident of California. He comes to the Philippines for a visit.

Then he runs out of money and befriended you and lends him 1M. He promised
that he will double the money when he got back home. But he never paid the
same. And so you sued him.
Can you sue him in the Philippines?

No, because it is an action in personam.
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.
Can you sue him in the Philippines?

Yes because it is an action that affects the status of the plaintiff who is in the
Philippines. In the same way if the action affects the property of the defendant
located in the Philippines, then you can enforce the judgment against the
property.
What determines the jurisdiction of the court?

The facts alleged in the complaint, irrespective of whether or not the plaintiff is entitled to
recover upon all or part of the claims asserted therein, and the law in force at the time of the filing
of the complaint determines the jurisdiction of the court. It cannot be made to depend upon the
defenses set up it the answer or in a motion to dismiss.
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.
In what court should the complaint be filed?

The complaint must be filed in the RTC. It cannot be made to depend upon the

Suppose eventually the court finds that the amount the plaintiff is entitled to is
P200,000, Does the RTC still has jurisdiction or is the RTC already ousted of
its jurisdiction?
The RTC has still jurisdiction because what determines the jurisdiction of the
court is the facts alleged in the complaint. It cannot be made to depend upon the
Exception: Agricultural Tenancy

In an ejectment case filed with the MTC where the defendant sets up the defense
of agricultural tenancy by claiming that he is the tenant. In such a situation, the
MTC must not dismiss the case outright but must conduct a preliminary hearing
on said defense.
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.
RULE 1- GENERAL PROVISIONS

The Rules shall apply in all courts, except as otherwise provided by the SC. (Rule 1, Sec 1)
When are the Rules not applicable?

In the following cases:
a) Election cases
b) Land registration
c) Cadastral cases
d) Naturalization proceedings
e) Insolvency cases
EXCEPT in analogy or in suppletory character and whenever practicable and convenient.
What is a civil action?

A civil action is one by which a [arty sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.
2 kinds of a Civil Action

1. Ordinary Civil Action – it is governed by the Rules of court
2. Special Civil Action – it is also governed by the Rules of Court and other rules only
applicable to them.
Special Proceedings – Remedies to establish a status, a right or a particular fact.

Distinctions between Civil Action and Special Proceedings
Civil Action Special Proceedings
Adversarial May or may not be adversarial.
Formal demand of a right by one against Merely a remedy to establish a status, a right or
another a particular fact.
COMMENCEMENT OF A CIVIL ACTION (Rule 1, Sec 5)

A civil action is commenced by the filing of the original complaint in court.
 If an additional defendant is impleaded in a later pleading (AMENDED COMPLAINT)

the action is commenced with regard to him on the date of the filing of such later
pleading, irrespective of whether the motion for its admission, if necessary, is denied by
the court.
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 is the remedy?

To implead the omitted indispensable party B, by amending the complaint and
including him as a defendant.
An additional defendant is impleaded in an amended complaint.
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.
Why should we know when a civil action is commenced?

Because it is the commencement of the civil action that will interrupt the running of the
applicable prescriptive period.
Note: An amended complaint that changes the plaintiff’s cause of action is technically a
new complaint.
How may the Rules of Court be construe?

The Rules of Court shall be construed liberally to promote their objective of securing a just,
speedy and inexpensive determination of the action.

RULE 2- CAUSE OF ACTION
A cause of action is the act or omission by which a party violates a right of another.
What are the requisites of a cause of action?

The following:
1. There must be an existence of a plaintiff’s right;
2. An obligation on the part of the defendant to respect and not to violate such right; and
3. An act or omission on the part of the defendant constituting a violation of plaintiff’s right,
resulting to damage or injury to the plaintiff.
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.
GROUNDS FOR DISMISSAL
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.
2. Res judicata – The action is barred by prior judgment.
2 Tests to Determine which case should be Dismissed
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.
Scenario: H and W are husband and wife.

1st case: W v H for support
2nd case: H v W for legal separation. In this case W files an answer and asserted a
counterclaim for support against H.
Which case should be dismissed?

The 1st case is dismissed. The 2nd case is more appropriate because we can litigate
legal separation and an action for support.
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.

If the plaintiff decides to join them in one complaint, he must comply with the following
requisites:
Requisites of Joinder of Causes:

1) The party joining the causes of action shall comply with the rules on joinder of
parties;
2) The joinder shall not include special civil actions or actions governed by special
rules;
3) Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the RTC provided one of the
causes of action falls within the jurisdiction of the RTC and the venue lies therein;
4) Where the claims in all the causes of action are principally for recovery of sum of
money, the total amount claimed shall determine the jurisdiction of the court.
(Totality Rule)
Explanation of the Requisites:

#1. Joinder of parties are also permissive.
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.
Combination of Parties in a Joinder

a) PP v. D – several plaintiffs against 1 defendant
b) P v. DD – 1 plaintiff against several defendants
c) PP v. DD – several plaintiffs against several defendants
- then the party joining must comply with the rule on joinder of parties.
Requisites so that the parties may be joined:

1) The right to relief arose out of the same transaction or event or series of
transactions or events;
2) There is a question of fact or a question of law common to all of them.
#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.
Can their be a joinder?

These causes of action are between the same parties but even if the causes of
action are between the same parties if one of them is a special civil action then it
cannot be joined. Because these special actions have special rules that apply to
them only.
 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.

 You do not need comply with the requisites. There is a misjoinder of cause of action
because of action has been misjoined.
Misjoinder of Causes of Action – If a special civil action or an action governed by special

rules is joined by an ordinary civil action, there is a misjoinder of causes of action.
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
This is a real action.
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.
What will you do?

Take note that X is not compelled to join these causes of action because it is
permissive. If X files 2 separate actions, the 150,000 should be filed in MTC of
Baguio for being a Personal Action.
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.
In addition, if X decided to join them, it should be filed in RTC of Agoo.

#4. Totality Rule
Example:
P has the following claims:
150k – Promissory Note
150k – PN
150k – Check
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
Who may be parties in a civil action?

Only the following may be parties:
1) Natural persons
2) Juridical persons – Can sue nut cannot be sued (State, Corporation)
3) Entities authorized by law - Where 2 or more individuals organize themselves under a
common name. They can be sued, but they cannot sue under that common name. (Labor
organizations, associations, estate of a deceased person)
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.

Scenario: (Sole proprietorship) Suppose D did not move to dismiss on the ground that the
plaintiff has no legal capacity to sue, and a judgment was given on the merits.
May D still move to dismiss?

No more. He has waived his objection. The defect, being merely a formal defect,
may be cured by amendment.
An action must be prosecuted or defended in the name of the real party in interest.
REAL PARTY-IN-INTEREST – Whether it be the plaintiff or the defendant, a real party in

interest is one who stands to be benefitted or injured by the judgment in the suit, or one who is
entitled to the avails of the suit.
 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.
A Real Party-in-Interest may either be:

1) Indispensable party
2) Necessary party.
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: Land co-owned by X,Y, and Z.

X wants partition but Z was nowhere to found. X filed a complaint against Y
alone and Z was not made as a party. Then the court rendered judgment, dividing
it into 2.
Is the judgment correct?

The judgment is VOID. Not just only to J who is absent but also with X and Y
who are present.

When an indispensable party is not included and that is brought in the attention of the court.
Is the omission a ground for dismissal?
No. The court must order the plaintiff to amend his complaint for the purpose of impleading the
indispensable party. If the plaintiff fails to refuses to include such indispensable party, then the
complaint may be dismissed on the ground that there is a failure of the plaintiff to obey the court
order.
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.
What is the effect?

The judgment is valid but complete relief cannot be had.
If the necessary party was not impleaded:

 The plaintiff must include his name in the complaint and the reason for his omission.
 If the court does not find the reason to be meritorious, it must order the plaintiff
to implead the necessary party.
 If the plaintiff refuses, then he is deemed to have waived his claim against the
necessary party and is deemed to have disobeyed the orders of the court.
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.
If the obligation is a solidary obligation involving X,and Z, and the liability is

solidary. Who among them is the indispensable party and who among them is
the necessary party?
The one who is sued is the only the Indispensable party and necessary party.
When a party DIES:

Look into whether the action survives or it does not survives or if the claim is extinguished or it is
not extinguished.
If the claim is extinguished, meaning the action does not survives.
If the claim is not extinguished, then the action survives.
 Like action for support, it does not survives.
What is the duty of the counsel if his client dies?

The counsel has two duties:
1) To notify the court of the death of the deceased party within 30 days of such death (Must
be counted from the date of the actual date of death, not the date of discovery);
2) To give the names and addresses of the legal representatives of the deceased party for
substitution.
Note: Substitution applies only if the case is not extinguished by the death of the party.
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.

The following are the steps in making a valid substitution for the death of a party:
1. Notice – The counsel for the deceased party should comply with his duty to notify the
courts (to give notice). The notice should include the following:
a) Proof of death of the deceased party.
b) The name(s) and the addressed of the legal representatives.
Suppose the counsel of the deceased party does not comply with his duty of notifying the court?
There can be an administrative sanction on the counsel.
 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.
3. Appointment of an Administrator or Executor – If the legal representative fails to

appear or they refuse to appear or no legal representative is mention in the notice filed by
the counsel of the deceased party. Then the court shall order the opposing party to appoint
an administrator or executor. So that the administrator or executor shall now be the one to
appear in behalf of the deceased party.
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.
Is the judgment binding upon the substituted plaintiff(s)?

No. The judgment is not binding upon the substituted parties because the steps or
requisites in making a substitution were not followed because the defendant
merely filed a motion and then it was approve.
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.

What happens if they appear but refuse to be substituted, can they be compelled?
The court cannot compel them to be substituted if they do not want to be substituted. The court
will order the opposing party to appoint an administrator or executor.
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.
If the judgment becomes final, how may be it enforced?

The judgment obligee files a motion for execution. Then the court will issue a writ of execution.
The writ will then be implemented so that so that the judgment may be satisfied by the judgment
obligor. So that the judgment be satisfied by means of execution.
The following are two ways in executing a judgment:

a) By means of a motion
b) By means of an action
When can there be an entry of judgment?

The moment the judgment becomes final. Then there will be an entry of judgment. The judgment
has attained finality.
In a situation where the defendant dies before entry of judgment, the case will continue until entry
of judgment.
Who will be the defendant now if the defendant is dead?

There will be a substitution so that the case will continue until entry of judgment. Until the
judgment becomes final.
 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.
Can A file a case against the B?

No, you cannot sue a deceased person. He has no civil personality anymore.

What is A`s remedy?
The remedy will be for A to present it as a money claim in the settlement of the
estate of the deceased person/deceased debtor/decedent.
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.
***ADVANCE LECTURE: Special Proceedings***

SETTLEMENT OF AN ESTATE OF A DECEASED PERSON
When you settle an estate of a deceased person is judicial settlement, it can also be through
extrajudicial settlement.
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.
It is the filing of a petition in court for the appointment of an Administrator/ Executor.

Executor, if he died with a will.
Administrator is when he died without a will.
 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.

2.) Funeral expenses or expenses during the last illness of the decedent.
3.) Judgment for money.
 No need to prove the claim, just present the judgment.
 Based on the judgment.
 If the civil action involves a money claim arises from a contract by presenting the
judgment as a money claim based on judgment in the settlement of the estate of
the deceased defendant.
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.

CLASS SUIT/ACTION
In a class action, all those who belong to a class, plaintiffs as a class or defendants as a class, are
indispensable parties but not all of them need to be impleaded or joined.
What are the requisites of a Class Suit/Action?

The action can be classified as a class action if the following are present:
1) The subject matter of the controversy must be of common or general interest to many
persons.
 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.
Is this a class action?

No. The mere mention in the complaint that it is class suit does not mean it is
automatically considered as a class suit. The plaintiff must first comply with all
the requisites for a class action.
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.
CASE: DONA PAZ v. CALTEX INTERNATIONAL

The families of the victims through filing an action for damages against the company who owns
the vessel. The families of those who did not survive the tragedy, filed a case for damages for lost
of earning capacity, mental anguish, etc., it was later held that it is not a proper class action. Even
if many are involved because it was separable for the other claims were pertaining to different
claims. There is no community of interest over the subject matter of the controversy. As such it
was not a proper class action.

TRANSFER OF INTEREST PENDENTE LITE
There is a pending case; the subject matter of the controversy can be a personal property, money
or anything,
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.
Is this a transfer of interest pendent lite?

Now you call this a transfer of property pendete lite.
Pendente Lite - means while the litigation is pending or during the pendency of the litigation.
How may a party transfer the property pendente lite?

He may transfer by any mode of transfer like donation, assignment, sale, etc., He sells, he
donates, he conveys his interests to another person.
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.
In a civil action, there are distinctions between venue and jurisdiction.

Venue Jurisdiction
It is the place of trial. It is the power of the court to try and decide a case
that is brought before it.
The court cannot dismiss a civil action motu A court can dismiss a civil action motu proprio on
proprio on ground of improper venue. ground of lack of jurisdiction over the subject
matter of the action.
It may be the subject of a written agreement It may not be the subject a written agreement
between the parties. between the parties.
It may be waived. Jurisdiction over the subject matter of the action
cannot be waived.

 The parties, especially the defendant, may waive the venue of an action but
jurisdiction over the subject matter of the action cannot be waived.
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.
 A court must take notice of the limit of its jurisdiction or authority.

 If the court becomes aware that it has no jurisdiction over the subject matter action, then
it can dismiss the case even without the defendant filing the motion to dismiss.
 BUT if the ground for the dismissal is improper venue, then the court cannot do it on its
own, EXCEPT if the civil action is governed by the rule on summary procedure.
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.
Who waives it? The defendant.
 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.
How may the defendant raise the question of improper venue?

The defendant may raise the question of improper venue either in a motion to dismiss or
in his answer. Otherwise, he may be deemed to have waived it.
VENUE OF A CIVIL ACTION

Civil actions may be classified into: (a) personal actions; and (b) real actions.
a) Venue of personal actions

Where the plaintiff or any of the plaintiffs resides or where the defendant or any of the
defendants resides, at the election of the plaintiff.
 The plaintiff has the choice of venue of the action. He chooses he venue of the
action. Although sometimes, he may have no choice as when both plaintiff and
defendant reside in the same city or municipality.
Scenario: We have a personal action.

Plaintiff resides in Baguio City.
Defendant resides in Dagupan.
Where will the action be instituted?

Then the action may be instituted either in Baguio or in Dagupan, at the election of the
plaintiff.
“…or in the case of a nonresident defendant (NRD), where he may be

found”
If the defendant is a nonresident defendant, then the venue is where the NRD may be found.
When you say nonresident defendant:
1. He may be a NRD who is found in the Philippines
2. He may be a NRD who is not found in the Philippines
 The rule “or in the case of a nonresident defendant, where he may be found”
refers to a NRD who is in the Philippines.
If a NRD is not in the Ph, he can be sued only in two instances.

Instances when a NRD who is not in the Ph may be sued:
1. If the civil action affects the personal status of the plaintiff; and
2. If the civil action affects a property of the defendant situated/located in the Ph.
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
B. Venue in real actions

The venue is where the property or any portion of the property is located.
Scenario: You have a real action.

You reside in Dagupan.
The defendant resides in Tabuk.
The property is located in Baguio.
Where will be the venue of the action?

Then the venue should be Baguio.
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.
Scenario: The property is located in Baguio. It is an apartment or a building located in

Baguio. The plaintiff resides in Dagupan and defendant resides in Alaminos.
Plaintiff filed a complaint for ejectment, unlawful detainer, against defendant in

the MTC of Dagupan. There was no question raised regarding venue of the action
Then MTC of Dagupan rendered judgment ordering defendant to vacate the
property located in Baguio.
Defendant is now questioning the validity of the judgment. According to him,
judgment is not valid because it was rendered by a court in Dagupan and not by a
court in Baguio.
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.

If the written agreement on the venue of an action does not contain any restrictive
words, then it is understood that the place indicated is merely an additional venue.
RULES 6, 7 and 8: PLEADINGS
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.
What happens if the complaint dos not state a cause of action?

Then it may be dismissed on the ground of failure to state a cause 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.

There are two kinds of defenses:
a) Negative defenses - are in the form of a specific denial.
Three ways of making a specific denial:
i. Absolute Denial: By specifically denying the material
allegations/averments in the complaint and stating the substance of
the matter upon which the defendant relies for his denial
ii. Partial Denial: By admitting so much of the allegations as true and
denying only the remainder
iii. Denial by disavowal: By pleading lack of information or knowledge
sufficient to form a belief as to the truth of the allegation
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.

It has been said that for this kind of denial to have the effect of a specific denial,
it must be done in good faith. If you will say lack of knowledge just so you can
make a denial but you are doing it in bad faith, that will amount to an
admission.
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.
b) Affirmative defenses – allegations of new maters which, although hypothetically

admitting the material allegations in the complaint, would nevertheless prevent or
bar recovery by the plaintiff.
 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.
3. Reply – is a pleading of the plaintiff.

Reply is a pleading the function or office of which is to deny or allege facts in denial of
the new matters alleged by way of defense in defendant’s answer, and thereby join or
make issue as to such new maters. If no reply is filed, all such new matters are deemed
controverted. (Section 10, Rule 6)
Who will set up the new matters?

The defendant.
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.
May the plaintiff file a reply?

No, because the plaintiff will file a reply only to deny new matters alleged by
way of defense in defendants answer. If the defenses that the defendant has put
up are negative defenses (specific denials) and there are no new matters, then
there will be no basis for a reply.
Scenario: Suppose the defendant files his answer with affirmative defenses.
May the plaintiff now file a reply?

Yes. He will file a reply to deny the new matters set up in defendant’s answer.
What about if the plaintiff does not file a reply?

Then all the new maters are deemed controverted or denied just the same.
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.
Additional Information for Negative Defense
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.
What can be an example of a Negative Pregnant Denial?

While it was said that in a negative pregnant denial, the defendant simply reproduces the
allegation in the complaint which he is denying and then he adds the phrase “It is not true
that…..” It is a literal 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.

4. Counterclaim – A counterclaim is a pleading. It is a claim which a defending party
(defendant) has against the opposing party (plaintiff).
Scenario: Defendant, D against Plaintiff, P.

Although a counterclaim is a pleading it must be incorporated in the answer.
An answer contains negative defenses and affirmative defenses. You will see
upon the document the designation that it is an answer because you will see the
word “ANSWER”, like in a complaint, it is indicated upon its designation that it
is a “COMPLAINT”. It tells you so.
Defendant by account in answer to the complaint respectfully states the following:

1.) Defendant admits to…. (The answer may contain admission, no need to prove it for it is a
judicial 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.)
3) And by way of affirmative defenses, defendant also alleges the following:

1.) That plaintiff `s cause of action has been abandoned or has been
waived or has prescribed. (It is an allegation of new matter, it is setup by
way of an affirmative defense.)
And by way of a Counterclaim (Compulsory / Permissive), defendant also alleges that…
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.
Two Kinds of Counterclaims

a) Compulsory Counterclaim
b) Permissive Counterclaim
1) COMPULSORY COUNTERCLAIM
What are the Requisites of a Compulsory Counterclaim?

1.) It arises out of or is necessarily connected with the transaction or
occurrence which is the subject matter of the plaintiff`s complaint.
 This is the most important requisite.
2.) It does not require the presence of a third person of whom the court cannot
acquire jurisdiction.
3.) It must be omissible by the regular court.

4.) It must be within the jurisdiction of the court both as to the amount and the
nature thereof except that in an original action before the RTC, the
counterclaim is compulsory regardless of the amount thereof.
5.) It must already be existing at time of the filing of the answer.

 If in the counterclaim, the requisites are not present, it may be a
permissive counterclaim.
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.
Is that connected to the complaint of X?

Yes, it is connected. It is a compulsory counterclaim because it arises out of or is
necessarily connected with the transaction or occurrence which is the subject
matter of the plaintiff`s complaint.
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.
Is that a compulsory counterclaim? May it be asserted as a counterclaim?

No because the amount is beyond the jurisdiction of the MTC. Application to
Requisite No. 4. 4.) It must be within the jurisdiction of the court both as to the
amount and the nature thereof except that in an original action before the RTC, the
counterclaim is still compulsory regardless of the amount thereof.

Scenario: A versus B at the RTC. B has a counterclaim against A in the amount of Php 175,
000.00.
Is that a compulsory counterclaim?

Yes because in the RTC the counterclaim is still compulsory regardless of the amount
thereof.
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.
What happens if you do not set it up with the

answer?
It will be dismissed on the grounds of either
litis pendentia or res judicata.
It need not be answered. It must be answered.
It does not require a certification of non-forum It is being an initiatory pleading requires a
shopping. certification of non-forum shopping.
It does not require the payment of filing fees. It requires the payment of filing fees.
A compulsory counterclaim need not be answered. A permissive counterclaim must

be answered.
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.
Scenario: X versus Y. Y files a complaint. Y files an answer. Then there is a compulsory

counterclaim. Now, as to the counterclaim, this can be compulsory or permissive
but as to the counterclaim, Y is the plaintiff, X is the defendant.
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

Distinction No. 4. (A compulsory counterclaim need not be answered. A
permissive counterclaim must be answered.)
If the plaintiff does not file an answer to the compulsory counterclaim, he cannot
be declared in default in respect to the compulsory counterclaim but if X does not
file an answer to the permissive counterclaim, he can be declared in default in
respect to the permissive counterclaim.
If a compulsory counterclaim is not answered, the plaintiff cannot be declared in

default in respect to the compulsory counterclaim but if the counterclaim is
permissive and no answer is filed, then the plaintiff can be declared in default in
respect to the permissive counterclaim.
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.
EXPLANATION OF THE TWO INSTANCES:

a) The due execution and genuineness of an actionable document shall be deemed
admitted if not denied under oath.
Actionable Document – It is said to be an actionable document, if the document

is the basis of a cause of action or the basis of a defense.
 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.
As long as it is the basis of a cause of action or the basis of a defense. Then it is

an actionable document.
How may an actionable document be pleaded?

There are two ways of pleading an actionable document, they are the following:
1.) While setting forth the substance of an actionable document in
the pleading and attaching a copy thereto as an annex.
How do you do it?

In a complaint, you state the substance of the actionable document and attach a
copy to your complaint as an annex.

Scenario: That on July 16, 2016, the defendant borrowed One Million Pesos from the
plaintiff which he bound to pay on July 16, 2018 as shown in the promissory note
a copy thereto attached to it as Annex A.
2.) By setting forth in the pleading, the actionable document

verbatim to copy the actionable document in your pleading.
 If it is very short, just copy it verbatim as no need to attach a copy.
 If the actionable document is properly pleaded, if you want to deny, the

genuineness and due execution of that actionable document, your denial must be
under oath otherwise you denied it specifically but he denial is not under oath
then there will be an implied admission against the opposing party, of the
genuineness and due execution of that actionable document.
What is deemed admitted?

The genuineness and due execution.
*All defenses inconsistent with the admission are cut-off.
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.
How did he say it was genuine? By not denying it under oath?

It shall be a judicial admission, as it shall not be contradicted by the admitter. If
you admit you cannot take up position contradictory to your admission. The
court will not allow you because it is a judicial admission.
No evidence is needed to be presented as a judicial admission, it was already

admitted. In evidence f something is judicially admitted, that is not considered as
evidence because a judicial admission does not require the presentation of
evidence.
All defenses inconsistent with the admission are cut-off.
b) Allegations of usury in a complaint to recover usurious interest shall be deemed

admitted if not denied under oath.
What is meant by Usury?

The interest is so high.

Scenario: X, lender, lend to Y, borrower, One Million Pesos payable in two months. The
interest in two months is 1.5 Million Pesos. Y was made to sign a promissory
note of 2.5 Million Pesos. It was made to appear that the principle is 2.5 Million
Pesos upon the signing of the promissory note. So after two months, Y was
supposed to pay X, 2.5 Million Pesos but Y did not pay. So X filed a complaint
against Y for the payment of 2.5 Million Pesos. He attached to the complaint the
promissory note. Y filed an answer alleging that the only amount Y borrowed to
Y is One Million Pesos. He also said that the 1.5 Million Pesos is represented by
the usurious interest. X did not file a reply to deny the allegation of usury.
May X to have admitted the allegation of usury?

No, because in allegations of usury in a complaint to recover usurious interest
shall be deemed admitted if not denied under oath. The allegations were stated in
an answer not in a complaint. If X not filing a reply, all such new matters are
deemed denied or controverted. It was pleaded as a defense.
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.
PARTS OF A PLEADING (CBSAVC)

a. Caption
b. Body of the Pleading
c. Signature
d. Address
e. Verification on Non-Forum Shopping
f. Certification on Non-Forum Shopping
1.) CAPTION – includes the name of the court, title of the case, and the docket number of one
has already been assigned.
Republic of the Philippines

Municipal Trial Court in Cities
First Judicial Region
Branch No. *****
Baguio City
P versus D Civil Case No. _____

For Damages
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.

 Then the clerk of court will docket the complaint. He will assign a case number.
The clerk of court will assign the docket fee. The plaintiff will pay the docket fee.
The Docket Number will now then be specified.
 The complaint along with other complaints will be raffled. Raffling cases.
Neither party will never know what branch it will go. Nor choose a judge.
 Identification of the Branch Number will then be specified after the raffle.
 A raffle only happens in a multi-sala court, if it is only a single sala or one court,
no raffle will be made as only one court is present.
 The title of the case, all names of the parties must be specified / stated.
 If you are the defendant when you file your answer, you must include all that
which is specified in the caption of the complaint including the docket number as
one is already assigned by that time.
 But in a pleading subsequent to the pleading or answer, it is enough to mention
the name of the first party with the appropriate indication that there are other
parties.
e.g., Rony Gan, et al. vs P
2) BODY OF THE PLEADING

a. It must contain the designation of the pleading. If it is complaint, then it must a
COMPLAINT, then if it is a third-party complaint it must indicate there,
THIRD-PARTY COMPLAINT / INTERPLEADER.
b. It must contain allegation of facts constituting the plaintiffs’ causes of action
or the defendant `s defense or defenses. You have the recital of facts in the body.
c. Relief demanded, although it may add a general prayer for such other reliefs as
may be found equitable.
d. Then the Date.
3) SIGNATURE
Who signs a pleading?
The party himself or his counsel.
When signed by the party himself, then he signs it pro se.
What is the effect of an unsigned pleading?

An unsigned pleading produces no legal effect.
If the pleading is not signed then it has no legal effect.
What does a counsel’s signature on a pleading constitute?

It constitutes a certificate by him that he has read the pleading; that to the best of his
knowledge, information and belief there is ground to support it; and that it is not
interposed for delay (Rule 7, Sec. 3)
 When a lawyer signs a pleading, he is making a certification.

 When a counsel signs a pleading, he must not only state his name but also his
PTR Number, MCLE Compliance Certificate, and Roll Number. If you do not
indicate them, it is like the pleading is not signed.
4) ADDRESS
 It should not be a post office box, It cannot be used as an address.

Rey Mendez
P.O. Box No. 681
Why should it not be a post office box?

Because you need to comply with the modes of service of pleadings.
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)
5) VERIFICATION – Only if the pleading is required to be verified.
 Not all pleadings are required to be verified but there a pleadings that need to be
verified. A verification is required. (Page 86)
How is a pleading verified?

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his own personal knowledge or based on
authentic records.
6) CERTIFICATION FOR NON-FORUM SHOPPING
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.
Who signs the certification?

The party himself must sign the certification
May the counsel sign the certification?

No, the counsel can sign the verification but he cannot sign the certification because the
certification must be signed by the party himself.
Exception: If there is a special power of attorney assigning a person or
delegating the authority of one person to sign the certification on non-forum
shopping.
What if there are many plaintiffs?

All of them must sign the certification
Exception:
a. The subject matter of the case is held in co-ownership or conjugal
partnership between husband and wife; or
b. One or some of them at the time of the filing of the complaint are outside
the country

RULE 9 – EFFECT OF FAILURE TO PLEAD
The rule is that all objections and defenses must be set up in a motion to dismiss or in an answer,
and those not set up or not pleaded are deemed waived
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.
May the court declare the defendant in default motu proprio?

No, it must be upon motion of the plaintiff
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
Requisites so that the defendant may be declared in default:

1. Plaintiff files a motion to declare the defendant in default (Motion)
2. Proof of the failure on the part of the defendant to file his answer (Proof)
3. The court will issue an order declaring the defendant in default (Order of Default)
What is the effect of an order declaring the defendant in default?

A defendant declared in default shall lose his standing in court. He is entitled to notices of the
proceedings but cannot take part in the trial.
What are the remedies of the defendant declared in default?

The following:
1. Motion to Set Aside the Order of Default
When may the defendant do that?

At any time after service of the order of default but before judgment.
 The defendant must be served with a copy of the Order of Default
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.
Scenario: X files a case against Y for a collection of sum of money. When

Y received the summons, he went to X. X told Y to go to
Hongkong. When Y came back, he was declared in default.
X told Y to go to Hongkong so that he can present his case and

that while Y is away he can file a motion to declare Y in default.
Intrinsic Fraud - Fraud that is committed at the trial
Suppose a witness falsely testifies, he fabricated the evidence.

Based on this fabricated evidence, a judgment was rendered in
his favor.
b. Accident
c. Mistake
d. Excusable Negligence
 The motion must be accompanied by an affidavit of merit. The affidavit will

show that he has good and meritorious defenses
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

Why does the defendant cannot appeal from the order of default?
It is not appealable. That does not finally put an end to the case. That is merely
interlocutory. It is interlocutory because the case is not ended
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.
3. Motion for New Trial

 May be filed on the ground of FAME
 It may be filed during the period for perfecting an appeal.
4. Petition for Relief from Judgment

 If the judgment becomes final
Ground: FAME
 Filed within 60 days from knowledge of judgment and six month from entry of such
judgment
5. Petition for Certiorari

 If the judgment is a complete nullity because the court acted with grave abuse of
discretion.
 The defendant is now declared in default. The court may render judgment as
may be warranted by the facts alleged in the complaint. But by way of an
exception, the court may require the presentation of evidence ex parte
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
What is the extent of the judgment by default?

A judgment by default shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages.
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
Cases where default is not allowed:

1. Action for annulment of marriage;
2. Action for declaration of nullity of marriage;
3. Action for legal separation;

4. Action for expropriation; and
Action for forcible entry or unlawful detainer, and other actions governed by the Rule on
Summary Procedure.
RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS

Amend – means to correct, to change, to add, to modify, to alter. That is what you do when you
amend
Amendment may be:
1. Substantial
2. Formal
 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.
Formal: The amendment to correct the name of a party.

To correct a misspelled word is only a formal amendment.
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.
Scenario: Plaintiff v Defendant

Plaintiff files a complaint
What is a responsive pleading to a complaint? – An answer.
 If an amendment is by addition or inclusion, such amendment shall be underlined, so

that the court can easily take note of the amendments.
 If the complaint is amended, the plaintiff will file an amended complaint.
 So, the amended complaint will take the place of the complaint that it
amends.
 The rule uses the word “supersede”
What is the effect of the amended complaint?

It has the effect of superseding the pleading that it amends. The complaint is now superseded by
the amended complaint. The amended complaint supersedes the complaint that it amends.

Suppose, still the defendant has not filed an answer to the amended complaint, may the
plaintiff again file another amended complaint?
No more, because the rule says that a party may amend his pleading once as a matter of right
before a responsive pleading is served.
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

The amendment should cover transactions, Covers transactions, occurrences or events that
events or occurrences that happened before the transpired after the filing of the pleadings ought
filing of the amended pleading. to be supplemented.
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.
3. X filed an action for damages against the

defendant for an injury that happened to
someone else, claiming that because of the
confinement in the hospital, he incurred injury
and he is already discharged. When X filed the
complaint, while at home, the person died: X
will file a supplemental pleading to recover
another item of damages on account of the
death of that person.
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

 When you go to trial, you try only the issues that are made out in the pleadings.
That’s why, if the answer does not tender an issue, then there will be no trial
anymore because on motion of the plaintiff, there can be a judgment on the
pleadings. When an answer fails to tender an issue or otherwise admits the
material allegation of the complaint, then, on motion of the plaintiff, there can be
a judgment on the pleadings, no trial anymore- no issues to be tried.
“Does not tender an issue”:
Scenario: There is a debate

Team A and Team B
Proposition: Resolve the divorce be legalized in the Philippines
Team A and B both says it should be legalized.
Then there is no debate, no issue
BUT IF: Team A says “Yes, it should be legalized, Team B says “No, it
should not be legalized.
Then you have an issue
What is the issue?

Whether or not divorce should be legalized in the Philippines
Scenario: This is a complaint, the complaint says:

COMPLAINT ANSWER
the defendant borrowed 1 million from the Yes, admitted
plaintiff
The debt became due Yes, it became due
The debt is unpaid Yes, it is unpaid
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.

o Outside of these issues, you do not try them because they are not brought
out by the pleading.
How will you know the issues to be tried?

You go to the pleading, so that you will know the issues to be tried. That’s why in the trial, you
will define the issues based in the pleadings, so that it will declare what issues you will be trying
If the answer admits, then it does not tender an issue
AMENDMENT TO CONFORM TO THE EVIDENCE

When issues not raised in the pleadings are tried with the express or implied consent of the
parties, then they shall be deemed to have been raised in the pleadings and there can be an
amendment to conform to the evidence. But, failure so to amend does not affect the result of the
trial of these issues.
 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)
How does it happen (implied consent of the other party)?

When he does not object.
Like, the only amount is 1 million, but when they went to trial, the plaintiff was presenting
evidence that the amount of the debt is 1.8 million. The defendant should have been objected on
the ground that: that is not the issue, the issue is the amount being 1 million. If the defendant does
not object, then the pleading is deemed amended to conform to the evidence.
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.
What should the defendant do in this case?

To object, If he does not object, then he is giving his consent that this issue will also be tried.
Then we follow the rule that when the issues not raised in the pleading are tried with the express
or implied consent of the parties, the they shall be deemed, in all respects to have been raised in
the pleadings, and there can be an amendment. The amendment is now to conform to the
evidence.
Suppose the defendant objects, how should the court rule on that objection?
The court must sustain the objection
What is the remedy of the plaintiff?

Ask the court to allow him to amend his complaint or pleading, so as to authorize the presentation
of the evidence. The court should do so with liberality
RULE 10, SEC 5: 2 THINGS

1. Amendment to conform to the evidence
2. Amendment to authorize the presentation of evidence
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.
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

1. When it is a complaint to be responded to, the responsive pleading should be filed within
15 days from service of summons. 15 days counted from the service of summons
In counting the number of days: exclude the first and include the last, and if the last
day falls on a Saturday, Sunday or legal holiday in the place where the court sits, then
it may be filed on the next business day.
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.
But, if it has no resident agent?

Then the summons may be served upon the government official designated by law to
receive summons, and it is usually the Security Exchange Commission. This government
official has the duty to transmit the summons along with the copy of the complaint to the
defendant at his home office (the foreign land). Then, the defendant foreign juridical
entity has 30 days to file its answer (from the date the home office receives the summons)
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.
If the defendant will file an answer, what is he answering, the original

complaint or the amended complaint?
The amended complaint. An answer to an amended complaint filed as a matter of
right should be filed within 15 days from service of the summons.
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

order admitting it, then, the defendant will have 10 days to answer the amended
complaint. The 10 days shall be counted from notice of the admission of the
amended complaint
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
Defendant files an answer to the complaint of X, but D forgot to include an important

defense (all defenses must be included in an answer, otherwise, deemed waived). How will he
include that defense?
By amending his answer. This is the AMENDED ANSWER
Answer to the complaint 10 days after the service of summons, for cases
governed by Rules on Summary Procedure.
15 days after service of summons.

Answer to a counterclaim Permissive counterclaim must be answered
within 10 days counted from the date the
pleading containing it is served on the plaintiff.
Compulsory counterclaim need not to be

answered. But if the plaintiff would like to file
an answer, it is also 10 days.
Answer to cross-claim Also 10 days.
Third party complaint 15 days from service of summons.
Supplemental complaint 10 days from notice of the order admitting the
supplemental complaint.
Reply 10 days from service of the pleading responded
to.
Summons served by publication Reasonable time would be 60 days.
Motion for extension to file a responsive pleading:

Scenario: Suppose you need to file an answer but you foresee that you cannot meet the
deadline. You file a motion for extension to file a responsive pleading. In most
instances the court allows an extension.

If you have 15 days, 15th day is the deadline or last day, if you want to file a
motion for extension, you file it within the 15 days. Do not file it after the period
has expired because if you file it after, then there is nothing else to extend.
15th day
16th day
Deadline
Filing for Motion for extension
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.
July 1 July 16 July 17

Monday Sunday Monday
Summons received Original deadline New deadline

Monday Monday Monday
Can you file your motion for extension on July 17?

Yes because that is really your deadline.
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.
The 2nd period of the motion will start

from the original deadline
Monday
Filing for Motion for extension

Monday Sunday Monday
Summons received Original deadline New deadline

Monday Monday Monday
(July 1)®------------------------------®(July 16, Friday)

July 16 is really your last day. If you cannot meet the deadline, you can file a
motion for extension on or before July 16. You cannot file in on the 19 th because
there is nothing to extend for the time has already expired.
July 1 July 16
Monday Friday
Summons received Deadline

Filing for
Monday Monday
Motion for extension
Monday
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.
Question from the class:

Can the plaintiff object to the motion for extension?
If there is a valid ground for objection, it may be done but in real life, objection is
not made to motions like those because it happens to anyone.

How many times can you file motion for extension?
Answer: The Rule does not put a limit but if it is abused, the court may deny the
motion.
RULE 12: BILL OF PARTICULARS
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.
Note: if the complaint is incomplete to a point that it does not state a

cause of action, then the motion that the defendant should file is a motion
to dismiss on the ground that it does not state a cause of action. But if it
states a cause of action and there are sentences that are vague, then the
remedy of the party, just like the case of the defendant in the example, is
to file a motion asking for a more definite statement of anything that is
not stated with sufficient particularity.
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.

Note: Motion for bill of particulars happens before responding to a
pleading. The purpose is to enable the party to prepare his responsive
pleading.
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.
Note: If a motion is litigable, it will be set for hearing.
Should a motion for bill of particulars be set for hearing?

Yes, because this is a litigable motion.
Note: This one motion which should be brought immediately to the attention of the court.
Upon the filing of this motion for bill of particulars, the clerk of court must bring it
immediately to the attention of the court, and the court may act on it immediately whether
to grant it or deny it outright.
Court may either grant or deny the motion.

 If motion is granted, the party to whom it is directed, like the plaintiff in the example,
has 10 days to comply.
How may he comply?

Either by:
a.) Amending his complaint; or
b.) Filing a bill of particulars.
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.
If motion is granted, X will serve on Y the amended complaint or the bill of

particulars.
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.
Motion for bill of particulars was denied.

Y will now have to answer.

The order denying his motion was served upon him on August 1.
Within how many days may he file his answer?

When he filed his motion, he has a balance of six days. Therefore, he has six
days from August 1 to file his answer. Then his last day to file is August 7.
6 Days Remainder
July 17 July 24 August 1 August 7
Last day of filing an

Complaint was
served. answer
Filed a motion
for bill of particulars
Monday
Motion for bill of particulars was denied.

The order denying his motion was served upon him on August 1.
Until when can he file his answer?

He has two days remaining but the minimum is five days. Therefore, he has five
days from August 1 to file his answer. Then his last day to file is August 6.
2 Days Remainder
July 17 July 28 August 1 August 6
Complaint was Last day of filing an

answer
served.
Filed a motion
for bill of particulars
Monday

If while waiting whether the motion for bill of particulars will be granted or
denied, he filed an answer. What will happen?
Then it means that he has abandoned his motion.

What is the remedy of the party who filed an answer to a complaint, in which
he realized was vague after he has filed the responsive pleading?
He has no remedy at that point because he already filed an answer. But at the pre-
trial, then the defendant can point out the vague statement and he has to explain.

What are the instances when motion for bill of particulars will be denied?
In the following instances
a.) Statement point out is not vague after all; and
b.) There is an answer already but you still filed a motion for bill of
particulars.
RULE 13: FILING AND SERVICE OF PLEADINGS, MOTION, JUDGMENTS, ETC.
Complaint – must be filed in court and then it will be docketed.

 The summons together with a copy of the complaint will be issued to the defendant
through the Clerk of Court.
 When the defendant will file his answer, he must first serve a copy of the answer on the
plaintiff and then file it.
Pleading subsequent to the complaint

 Before filing, a copy of the motion must be served first.
 Must be filed in court but will not be anymore because there is already a docket number
assigned to the complaint.
Filing – Act of presenting the pleading to be filed to the clerk of court

Service – Act of providing the other party with a copy of the pleading or motion concerned.
How do you file pleading? What should be file?

You file it with a clerk of court.
The following should be filed:
a) Judgments, Final Orders, Resolutions/ Other papers emanating from the court; and
b) Pleadings, Motions, Notices, etc.
Modes of FILING Modes of SERVICE

Applies to both (a) and (b) Applies to (a)
1. Personal Filing 1. Personal Service
2. Filing by Registered Mail 2. Service by Registered Mail
3. Service by Publication
Applies to (b)
1. Personal Service
2. Mail
3. Substitute Service
Personal Filing –
You do it yourself; you go to the clerk of court.
Filing by Registered Mail

In filing by registered mail, you mail it. And when you do it by registered mail, the date of
mailing shall be the date of filing.

Scenario: Your deadline to file is July 1.
You went to the post office that day and send your pleading, motion, or notice, by
registered mail.
The envelope containing the pleading or notice was received by the court a
month later.
When did you file your pleading?

On July 1. It is because the rule is that date of mailing shall be the date of filing.
Scenario: What you are filing is a notice of appeal.

You receive a copy of the judgment on July 1.
You have until July 16 to appeal or to file a motion for new trial, if you don’t,
judgment will become final after July 16.
But the court involved in your case is in Dagupan City.
You mail your notice of appeal on the last day, July 16.
The court in Dagupan City received it on August 1.
You have perfected your appeal on time because the date of mailing shall be the
date of filing.
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.
Modes of filing is also applicable to judgments.

Requisites of a valid judgment:
1. It must be in writing;
2. It must be personally and directly prepared by the judge;
3. It must state clearly and distinctly the facts and the law on which it is based;
4. It must be signed by the judge; and
5. It must be filed with the clerk of court. (Rule 36, Section 1)
Modes of Service there is a distinction between a and b.

A. Modes of Service (a)
1. Personal Service;
2. Service by Registered Mail; and
3. Service by Publication - only applicable if the defendant is summoned by publication
and he did not appear in the action.
 When summoned by publication and he filed an answer, it means he
appeared in the action. Therefore, you cannot serve the judgment by
publication.
Scenario: Modes of Service (a):

Court called the parties.

Both parties are present together with their respective counsel.
Judge dictated the judgment in an open court on July 1.
Until when can he appeal?

The judgment has not been served yet. It is because the judgment is not even
valid. Under Rule 36, Section 1 states that a judgment must be in writing. In the
example given, judgment was just dictated.
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.
B. Modes of Service (b)

1. Personal Service
 Give a copy of the pleading to the other party; or
 Leave it in his office or his residence;
2. Mail  Ordinary Mail (in places where the registered mail facilities are not present)
or Registered Mail
 Only in modes of service of pleadings, motions, etc, that service by
ordinary mail may be made, but only if there is no registered mail in the
post office of the place of the center or of the addressee.
3. Substituted Service
 Substituted service of pleading, motion, etc. is made by delivering to the
clerk of court a copy of the pleading or motion concerned, with proof of
failure of both personal service and service by mail.
You have 15 days to appeal from notice of the judgment.
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.
When is service deemed complete?

It is deemed complete:
a.) If by Personal Service – Upon actual receipt by the counsel/from actual delivery
b.) If by Ordinary Mail – After 10 from date of mailing.
c.) If by Registered Mail – From actual receipt by the addressee or after five days from
receipt of the first notice from the post office, whichever comes earlier. (Mailbox
Rule)

Scenario: You received the first notice on July 1 but you did not go to the post office.
You went only on July 10 (Actual Receipt).
You decided to appeal.
When will start counting 15 days? July 1 or July 10?

It is neither July 1 or July 10. Five days from receipt of first notice is July 6.
July 6 is earlier than July 10, the actual receipt. Therefore, you count 15 days
from July 6.
Scenario: You received the first notice on July 1.

You went on the post office July 4 (Actual Receipt).
When will start counting 15 days?

July 4, actual receipt is earlier than July 6, the date five days from the receipt of
first notice. Therefore, you count 15 days from July 4.
Priority in Modes of Service (In Personal Filing and Personal Service)

Except for papers emanating from the court, any mode of filing and mode of service other than
personal must be accompanied by a written explanation why other modes of filing and service are
being resorted to.
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.
Notice of Lis Pendens

Not the same as the Lis Pendens/Litis Pendentia dicussed before, this one is a notice.
Notice of the pendency of an action and this is available/resorted to only in real actions (actions
affecting title to or right of possession involving an immovable).
Who may record a Notice of Lis Pendens?

The plaintiff in a real action, or even the defendant if the defendant is asking for an
affirmative relief.
Scenario: In his answer, the defendant is also demanding for an affirmative relief.
May he file a notice of lis pendens?

Then he may also cause a notice of lis pendens to be recorded.
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

 Quieting of title
 Action to remove clouds therefrom
 Any other actions or proceedings affecting title to real property
 The use or development thereon on any building thereon
 Partition
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.
What is the purpose of a notice of a lis pendens?

Serves as a notice to the whole world that the property described in the notice is the subject of a
pending litigation. Therefore, that anyone dealing with a property will do so subject to the
outcome of the case.
Scenario: If a person would deal with a property by entering into any contract or
transaction involving such property then he does so subject to the facts of the
case. He cannot pretend that he does not know anything about the case involving
the property because he is deemed notified. Why?
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.
How do you record a notice of lis pendens?

It is simply extrajudicial; you do not go to court simply to record a notice of lis pendens but there
must be a pending litigation. You cannot also record a notice of lis pendens if there is no pending
litigation because the notice is a notice that there is a pending litigation, a pending case involving
the property.
Scenario: Land covered by a Certificate of Title. There is a case filed by X against Y

involving the land (real action – must be a real action otherwise you cannot cause
a notice of lis pendens to be recorded).
How may X cause the recording of a notice of lis pendens?

X will simply make a letter addressed to the Register of Deeds of the Province or
City where the property is located.
“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

No._____ entitled X v. Y, the property is covered by Certificate of Title No._____.
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.
There will be an entry in the Certificate of Title.
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.
The recording is extrajudicial but the cancellation is judicial.
Why judicial?
Because it cannot be cancelled except upon the order of the court, but there must be a
ground for cancellation.
Grounds for cancellation of a notice of lis pendens

1. The notice of lis pendens was intended to molest the adverse party, and
2. The recording of the notice of lis pendens is not necessary to protect the right of the party
who caused it to be recorded.
 You must have any of the grounds in order to have the notice of lis pendens be cancelled.
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.

Scenario: A girl went to Japan to work as a dancer. After saving enough money she came
back to the Philippines and bought a property at Camp 7, then she went back.
While she was in Japan, her mother gave the title of the property to a couple and
the couple falsified a deed of sale and they were able to transfer the title of the
property in their name and then later on mortgaged the property to someone else.
The mortgaged was foreclosed and was sold to the mortgagee. Upon coming
back, she learned that she no longer owned the land.
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.
RULE 14: SUMMONS
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.

Voluntary appearance means filing of anything like a motion for extension
(ex. if the service of summons was defective and you filed…),
Then you submitted yourself to the jurisdiction of the court. The moment you filed a motion and
you asked for an affirmative relief, you submitted yourself to the jurisdiction of the court.
Who will serve the summons?

The sheriff, or his deputy, or other court officers, or any suitable person appointed by the
court issuing the summons,
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.
How may summons be served? (Modes of Service)

I. Service in person upon the defendant (before: personal service)
How effected?
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.
There is a presumption of regularity in the performance of official duty.
II. Substituted Service When?

If service in person cannot be made within a reasonable time, then this mode of
service may be resorted to.
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

Not necessarily a minor or a person of legal age, as long as of
sufficient age and discretion residing in the same residence (if there
for a visit or as a visitor, the substituted service is not valid.
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.
iii. By Publication 2 Components:

1. Publication of the summons in a newspaper of general circulation
2. The sending of the summons together with a copy of the complaint
by registered mail to the defendant at his last known address
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.
The court cannot serve summons by publication or cannot publish the

summons without leave. Therefore, you first file a motion for leave to serve
summons by publication.
In what action may the summons be served by publication?

1. If the defendant is unknown, but you have to describe the defendant in your
complaint.
(A complaint against the owner of the vehicle so and so.)
2. If the whereabouts of the defendant are unknown.
3. If the defendant is a non-resident defendant who is not in the Philippines.
(But only in instances or only if the defendant can be sued in the Philippines.)
4. If the defendant is a non-resident defendant temporarily outside of the Philippines.
Extraterritorial Service of Summons

Called such because the summons is to be served outside the Philippines.
What are the modes of extraterritorial service of summons?

The following:
1. Personal Service
2. By publication 2 Components:

i Publication of the summons in a newspaper of general circulation
ii The sending of the summons together with a copy of the complaint by
registered mail to the defendant at his last known address
3. Any other manner the court may deem sufficient
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.
Is the service of summons valid?

No.
But did the court acquire jurisdiction over the person of the defendant?
Yes, because he filed an answer.

Foreign Private Juridical Entity
How may summons be served against a defendant who is a foreign private juridical entity?
If the defendant has a license to do business in the Philippines, then the summons shall be served
upon the resident agent. If not, then the summons should be served on the government official
designate by law to receive the summons.
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.
Who is a government official?

If the foreign juridical entity is a foreign insurance company, then it is upon the insurance
commissioner. However, if the defendant is a foreign bank or a banking institution, then it is upon
the superintendent of banks. In any other cases, it is upon the Securities and Exchange
Commission (SEC).
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.
Suppose the summons was sent to the defendant by email?

The Rule states “by any electronic means capable of generating a mode of service”. As long as
you can show proof of service then that is a valid service of summons, you can show that the
summons was received by the defendant electronically.
Even by fax, as long as you can show proof of service.
Domestic Juridical Entity

May be a corporation or a partnership.
Summons may be served to the defendant through the following:

1. President
2. Managing Partner
3. General Manager
4. Corporate Secretary
5. Treasurer
6. In House Counsel

If served to any other officer, the service is void.
RULE 15: MOTIONS

Any application for an order not included in the judgment.
Requisites of Motions in general:

1. It must be in writing, except those made in open court in the course of the proceeding;
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.
3. It must be set for hearing by the applicant (movant);

4. It must contain a notice of hearing addressed to all parties concerned stating the date and
time of the hearing of the motion which should not be later than 10 days from the filing
thereon;
5. It must be served on all the parties at least 3 days before the date of the hearing;
6. It must contain proof of service.
Motion is an application for a relief other than by a pleading

Old definition: it is an application for a an order not included in judgment
Omnibus Motion – It is a motion that attacks a pleading, a proceeding or a judgment
What is the Omnibus Motion Rule?

It is the rule requiring all objections and defenses to be pleaded in a motion to dismiss or answer
and those not pleaded are deemed waived.
Exceptions
Rule 9, Section 1

1. When it appears from the pleadings or the evidence on record that the court has
no jurisdiction over the subject matter,
2. That there is another action pending between the same parties for the same cause,
or
3. That the action is barred by a prior judgment or by statute of limitations, the court
shall dismiss the claim.
What is an example of a motion that attacks judgment?

Example is a Motion for Reconsideration
What is an example of a motion that attacks a pleading?

Example is a Motion to Dismiss on the ground of failure to state a Cause of Action
What is an example of a motion that attacks a proceeding?

Example is Motion for New Trial
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.
RULE 16: MOTION TO DISMISS

Motion to dismiss or any motion must comply with the requisites in Rule 15
Time when to file a Motion to Dismiss

Within the time for but before the filing of answer by the defendant or defending party may move
to dismissal of the action on the following grounds:
a) That the court has no jurisdiction over the person of the defending party;
b) That the court has no jurisdiction over the subject matter of the claim;
c) That venue is improperly laid;
d) That the plaintiff has no legal capacity to sue;
e) That there is another action pending between the same parties for the same cause;
f) That the cause of action is barred by a prior judgment or by the statute of limitations;
g) That the pleading asserting the claim states no cause of action;
h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
i) That the claim on which the action is founded is unenforceable under the provisions
of the statute of frauds;
j) That a condition precedent for filing the claim has not been complied with.

If the court does not acquire jurisdiction, defendant may file a motion
 Defendant waives it if he does not set it up in his motion to dismiss, Files an answer
Without claiming it or insisting it, that will constitute a waiver of his objection
Lack of Jurisdiction over the Subject matter cannot be waived

 Court can take notice even without Motion to Dismiss
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.
Scenario: July 1 was the date summons was served

Defendant has 15 days to file an answer
July 16 is the last day to file an answer
The rule says within the time for, but before filing the answer.
15 days to file an answer

July 1 July 16

Summons was
answer
served. Filing of motion
to dismiss
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”)
Can he file a Motion to Dismiss?

No, If Defendant has already filed his answer, He cannot file a Motion to Dismiss

Complaint was
answer
served.
Filed a an answer
May file a motion to Cannot file a motion

to dismiss
C I V I L P R O C E D U R E | Ndismiss
otes (hugs
Scenario: Suppose he did not file an answer and he filed a motion to dismiss alleging
those grounds on Section 1.
He can ask for preliminary hearing on the defenses or ground he has set-up
Any of those mentioned in Section 1 can be pleaded as an affirmative defense.
If No answer yet, the Defendant may ask for a preliminary hearing on those
affirmative defense as if a candid motion to dismiss has been filed.
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.
Scenario: Let us say complaint is dismissed on any of the ground of Section 1.

Is the dismissal without prejudice or with prejudice?
If the dismissal is without prejudice, remedy is you can refile the complaint, it is
not appealable.
If the dismissal is with prejudice, the remedy is appeal, you cannot refile
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.
Can you refile?

Yes, but when refile pay again the docket fees
Is there an instance when you are not required to pay?

Yes but you must apply of Litigate as an indigent litigant (pauper litigant in the
past)

Lack of Legal Capacity to Sue
1. If he is not in exercise of his civil rights (example: insane);
2. He does not have character or representation that he claims;
3. He does not have qualification to appear in the action;
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

What are the Requisites of Res Judicata?
The following:
1. The former judgment must be final;
2. It must have been rendered by a court having jurisdiction over the subject matter and the
parties;
3. It must be a judgment or order on the merits; and
4. There must be between the first and second actions identity of parties, identity of subject
matter, and identity of the causes of action.
If granted, complaint is dismissed
Can you re-file? It depends.
What is the remedy of the plaintiff if the compliant is dismissed?

The remedy is to appeal or refile the complaint.
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.
Within what time the defendant the defendant may file?

He has the remaining balance which but it shall not be less than 5-days in any event
(same thing as in the bill of particulars).
RULE 17: DISMISSAL OF ACTION

Dismissal on Motion of the Plaintiff (because of the act or fault of the plaintiff)
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.
When may Plaintiff Dismiss his Complaint by Notice of Dismissal?

At any time before the service upon him of the answer or of a motion for summary judgment.
What is the nature of the dismissal?

The Dismissal is without prejudice, the plaintiff can refile.
Exception:
1. Unless Notice of dismissal states otherwise;
2. Refiling of case is barred by the Two dismissal rule.
 If notice without prejudice, plaintiff says it in the notice of dismissal
How does notice of dismissal look like? – Must be very short

 You cannot confirm that did not happen yet.
Plaintiff files a Notice of Dismissal, can he refile complaint? – Yes
If in the Notice adds/says

 In addition
 “that such dismissal is with prejudice” or
 “Plaintiff gives notice by his counsel gives notice that he is dismissing his complaint with
prejudice.”
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
Two Dismissal Rule

Scenario: X files a complaint against Y, he had it dismissed by filing notice of dismissal.
Two weeks later he filed the same complaint, the next day filed a notice of
dismissal.
Can he refile the same complaint?

No, it is barred by the two dismissal rule. A plaintiff who caused his complaint
twice is barred by two dismissal rule
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
What is the nature of the dismissal?

Without prejudice unless otherwise stated by court.

Scenario: Suppose Defendant asserted Counterclaim in an answer, Plaintiff filed motion to
dismiss the complaint and the court granted it.
What is the effect?

1. Dismissal is limited only to the complaint. What is dismissed is not the
case but only to the complaint.
2. Dismissal is without prejudice to the right of the defendant to prosecute
his counterclaim in a separate or in the same action.
3. Counterclaim is not dismissed, the Rules says it would be prosecuted in a
separate action unless within 15 days from receipt he will manifest or file
a manifestation in court his that he would like to prosecute in the same
action.
May the defendant dismiss his counterclaim? – Yes
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.
What is the effect of dismissal?

With prejudice unless otherwise stated by the 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;
Scenario: The Plaintiff filed a compliant

The Defendant gave an answer
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.

Evidence-in-chief is the Evidence to support your complaint
Plaintiff rests his case.
Defendant to present his evidence in chief and also rest his case.
Suppose plaintiff will say we have rebuttal evidence to rebut evidence of
defendant, it is not anymore evidence in chief but rebuttal evidence.
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
RULE 18: PRE-TRIAL
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
What are the Matters to be taken up?

1. Amicable settlement – Possibility of amicable settlement or submission of issues to
Alternative Dispute Resolution
2. Simplification of the issues, stipulation of facts or documents – The necessity of
stipulation of facts
3. Amendment to pleadings – Desirability to amend pleadings
4. Simplification of issues –
5. Witnesses – Necessity of limiting number of witnesses
6. Commissioner – Desirability of preliminary reference to a commissioner
7. Judgment – Propriety of rendering judgment on the pleadings, summary judgment or
dismissal of the action if a ground therefore appears to exist
8. Suspension of the Action –
9. Other Matters –

The matters to be taken up at the pre-trial
1. The desirability of an amicable settlement or the submission of issues to alternative
modes of dispute resolution
What are the modes of dispute resolution?
(Alternative Modes of dispute resolution
You have the following:
a) Conciliation
b) Meditation
c) Arbitration
d) Mini-Trial
e) Early Neutral Evaluation
f) Any combination of the forgoing
Ex. Conciliation-Mediation
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)
Court Annexed Mediation (CAM)

 The one that will conduct the mediation is an officer of PMC so they will have 30
days to conduct mediation but can be extended for another 30 days.
 The purpose is for the parties to decide the matter between or among -------- and
to arrive in a settlement.
 Take note that this one is not recorded. And whatever said is strictly confidential
and cannot be used to or against anyone because the proceeding is confidential.
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

 The arbitrator or the panel of arbitrators will issue an arbitral award, and that will have
the effect of the judgment of the court.
 In arbitration proceedings, you also present evidence and the arbitrator will decide the
case. You get to select your judge.
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.
3. Desirability of amendments to the pleadings

- The court will allow the amendment to pleadings if it is necessary so that all the issues
can be brought before the court to avoid multiplicity of suits.
Why should all issues be brought before the court?

All issues concerning the subject of the litigation between the same parties
should be brought before the court to avoid multiplicity.
4. Stipulation of facts or documents

What is the purpose of this stipulation?
To avoid unnecessary proof.
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
5. Limitation of the number of witnesses

- Mention the names of your witnesses and the substances of their testimonies.
- At the trial, you present the most important witness first, you call that the Most Important
Witness Rule
- 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.

6. Preliminary reference of issues to a commissioner
Commissioner – it can be a technical person
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.
The matter involved is an accounting report then an accountant can be

commissioned.
7. Propriety of rendering judgment on the pleadings, or summary judgment, or of

dismissing the action should a valid ground therefor be found to exist
- The pre-trial, it becomes clear that the case can be submitted for judgment on the
pleadings then the court will render judgment on the pleadings upon motion of plaintiff.
There must be a motion because the court cannot on its own render a judgment on the
pleadings even if the ground on the judgment on the pleadings or dismissal of action
appears.
8. The necessity of suspending the action

Scenario: There is a written offer from one party to the other for discussion of amicable
settlement. Finally they realized that the settlement is the best option so they
decide to settle out their own. They can ask the court to suspend the proceeding.
But the matter about the amicable settlement should be a serious matter.
9. Other matters as may aid in the prompt disposition of the case.

When may the pre-trial be conducted?
After the last pleading has been served and filed.
What is the last pleading?

It depends on what pleading has been filed.
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.
There is a permissive counterclaim, then the last pleading would be an answer to

the permissive counterclaim.
So it does not follow that the answer would be the last pleading.

Scenario: Y files a third-party complaint against Z, then the third-party complaint is not the
last pleading.
It shows that the last pleading will depend on what pleading has been filed.
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.
What happens if despite notice the plaintiff fails to appear at pre-trial?

His complaint may be dismissed and the dismissal has the effect of the adjudication of the
case on his merits. The dismissal is a dismissal with prejudice unless the court states
otherwise in the order of dismissal.
What happens if despite notice the defendant fails to appear at pre-trial?

The failure of the defendant to appear despite due notice shall be a cause to allow the plaintiff
to present his evidence ex parte.
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.
What is the effect of failure to file pre-trial brief?

It shall have the same effect as failure to appear at the pre-trial.
As to contents of the pre-trial brief (#18 Rule 18, pg 175)

If party is represented by counsel, the notice of pre-trial will be served on his
counsel, and the counsel has the duty to notify his client.

After the pre-trial the court will issue a pre-trial order, reciting in detail the
matters taken up at the pre-trial, the action taken thereon and the issues to be
tried. Once issued the pre trial will governed the conduct of trial or will control
the cause of action.
RULE 19: INTERVENTION

Scenario: If Y would like to bring in a party to the case, he can do so by means of a third-
party complaint. So Y is the defendant, he will file a third-party complaint. Y is
also referred to as the third party plaintiff and Z is the third party defendant.
What is a third-party complaint?

One which a defending party called a third party plaintiff with leave of court file
against a person not yet a party to the action for contribution, indemnity,
subrogation, or any other relief in respect to his opponent’s claim.
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.
Who may intervene in an action?

A person who:
a) has a legal interest in the matter in litigation
b) has a legal interest in the success of either of the parties
c) has an interest against both; or
d) is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof, may, by leave of court,
intervene in an action.

What is the pleading in an intervention?
Complaint-in-intervention, except if the intervenor unites with the defending party in resisting the
claim of plaintiff in which case it called answer-in-intervention.
When may an intervenor intervene?

At any time before rendition of judgment by the trial court.
RULE 22: COMPUTATION OF TIME

When the last day falls on a Saturday, a Sunday, or a legal holiday in the place where the court
sits, then it shall be file on the next business day.
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.
RULE 21: SUBPOENA
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 grounds for quashing a subpoena?

If what is to be quashed is a subpoena duces tecum, the following are the grounds:
a) The subpoena is unreasonable and oppressive
Ex. If the subpoena requires the person to produce a truckload of documents
Ex. Employment records from 1959 to the present
b) The relevancy of the books, documents, or things does not appear

Ex. The subject of the controversy is about a land and you are being required to
produce the fees that you create ------
c) The person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof; and
If you are the party asking for production of an object, you have to advance the
reasonable cause for its production, if you failed to do so, that is a ground for
quashing a subpoena.
d) The witness fees and kilometrage allowed by the rules were not tendered when
the subpoena was served.
If what is to be quashed is a subpoena ad testificandum, the following are the grounds:

a) The witness is not bound by the subpoena; or
b) The witness fees and kilometrage allowed by the rules were not tendered when
the subpoena was served.
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.
What is the viatory right of a witness?

The viatory right is the right of a witness not to be compelled by subpoena to attend the court
hearing in a civil case if he resides more than 100 kilometers from his residence to the place
where he is to testify by the ordinary course of travel.
RULES 23-29: MODES OF DISCOVERY

When you go to trial, you must know all the facts, you gather or collect all the facts pertinent to
your case. You can gather the facts from your client and his witnesses but your opponent may
have some facts in his possession that are not known to you.
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.
Modes of discovery are known as fishing expedition.
What are the modes of discovery?

a) Deposition pending action (Deposition de bene esse)
b) Deposition before action or pending appeal (Deposition in perpetuam rei memoriam)

c) Interrogatories to parties
d) Request for admission by adverse party
e) Production or inspection of documents or things
f) Physical and mental examination.
Who may be deposed?

1. It may be the deposition of a party; or
2. The deposition of a person not a party to the action
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
For what purpose may a deposition be used?

1. If the deposition is that of a party, the deposition can be used for any purpose.
“any purpose” – any of the following:

a) As an evidence to prove a claim or defense
b) For the purpose of contradicting or impeaching the deponent as a witness
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
How to make the deposition? How does a deposition be taken?

Upon (1) Oral examination or (2) Written Interrogatories
(1) Oral Examination

Scenario: X v. Y W (non-party)
There is a pending action. X would like to take the deposition of W.
Then X will serve W with:
 A notice for the plaintiff of his deposition.

 The notice indicates the date, time and place for the plaintiff of the
deposition.
 A copy of the notice is filed in court.
 Then a copy will be served to the other party
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.
(2) Written Interrogatories

It is the same thing.
 There must be a notice for the plaintiff of the deposition
 Notice indicates the date, time and place for the plaintiff of the deposition.
 A copy of the notice is filed in court.
 Then a copy will be served to the other party
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.
The other party then will also submit a Cross-Interrogatories.

For the plaintiff of the deposition, the office will bring the questions to the
witness.
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.
What is the remedy of Y?

Y may opposed and exclude on the ground that it is hearsay.
Then what is the remedy of X?

To let W testify to see if there are inconsistencies in his answer and deposition. It
can be used as a ground to impeach W as a witness. (Prior inconsistency of
Statements)

RTC in Baguio. Suppose W resides in Marawi,
You need W to testify, but W does not want to go to Baguio.
What will be the remedy?

Take the deposition of W in Marawi, give a notice of deposition in the court in
the city of Marawi which will state the date, time and place for the taking of the
deposition. Not in the court of Baguio.
Then the court will issue a subpoena for the taking of the deposition of W.
With that, W cannot anymore invoke his viatory right.
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.
Modes of Discovery: #3 Interrogatories to Parties

Distinctions between Interrogatories to Parties and Deposition upon Written
Interrogatories
Interrogatories to Parties Deposition upon Written Interrogatories
It is one of the Modes of Discovery It is a mode of taking a deposition.
Only the adverse party may be required to Even a non-party may be asked to give his
answer the written interrogatories served by deposition upon written interrogatories
the other party
Without appearing before an officer. The The deponent have to appear before an officer
adverse party shall simply answer in writing to answer the written interrogatories
and under oath the written interrogatories
served by the other party.
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.
RULE 30: TRIAL
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

2. In Ex Parte hearings
3. In all cases in which the parties agree in writing.
 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.
RULE 33: DEMURRER TO EVIDENCE
Demurrer to Evidence – is a motion to dismiss on the ground of insufficiency of evidence and is

filed after the plaintiff has rested his case.
Insufficiency of Evidence – According to the rules, “on the ground that upon the facts
and the law, plaintiff shows no facts of relief”
 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.
Who files the Demurrer?

The defendant
In a civil case, the defendant does not need leave of court to file a demurrer to evidence.
EFFECTS of the Demurrer

GRANTED DENIED
The case is dismissed, upon the finding of the court that the The Defendant does not lose the
evidence is not sufficient. right to present evidence.
Remedy of the Plaintiff: To file an appeal to the higher

court.
ON APPEAL, the court may

1) Affirm; or
2) Reverse the dismissal
AFFIRMED: REVERSED:
The case remains The court will render
Dismissed. judgment.
The appellate court finds In the mind of the court, the

that the evidence is not evidence is sufficient;
sufficient. therefore, the appellate
court will render judgment
on the basis of evidence

presented by the plaintiff.
The Defendant will lose

his right to present
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.
Is the appellate court correct?

No, the appellate court should already render judgment and not remand the case
to the lower court.
Distinctions of Demurrer to evidence in a civil case and criminal case:

CIVIL CASE CRIMINAL CASE
In both, the ground is insufficiency of evidence
The court may dismiss the action for The court may dismiss the case for
insufficiency of evidence only upon motion of insufficiency of evidence on the court’s own
the defendant. initiative after giving the prosecution the
opportunity to be heard or upon motion filed
by the accused.
Leave of court is not required. Leave of court may or may not be required.
Defendant’s demurrer to evidence is granted If the court grants the demurrer to evidence
by the court, the case is dismissed but plaintiff filed by the accused, the case is dismissed, but
may appeal from the order of the dismissal. the persecution cannot appeal from the order
of dismissal because such appeal will place
the accused in double jeopardy.
RULE 34: JUDGMENT ON THE PLEADINGS

There will be no more trial because the case will be decided by the courts based on the pleadings.
No presentation of evidence anymore.
When can there be judgment on the pleadings?

When the answer of the defendant fails to tender an issue or admits the material allegations in the
complaint. Then, on motion of the plaintiff, the court may render a judgment of the pleadings.
When does an answer fails to tender an issue?

If the denial is not in the form of a specific denial.

When does an answer admits the material allegations in the complaint?
1) If the answer expressly confesses to the truth of the allegation; or
2) The defendant fails to deal with it at all.
Instances that Judgment on the Pleadings is not allowed

Legal Separation, Annulment of Marriage, Declaration of Nullity of Marriage
RULE 35: SUMMARY JUDGMENTS

Also known as Accelerated Judgment
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.
In a summary judgment, there is no pending issue.

In a judgment on the pleadings, the answer fails to tender an issue.
In a summary judgment, there is no genuine issue

No Genuine Issue – There is an apparent issue, but the issue turns out to be a sham or
false.
How will you show that the issue is not genuine?

By pleadings, admission, deposition or affidavit.
Scenario: X files against Y for collection of 5M

Y files an answer alleging that he already paid
It tenders an issue. The issue is whether the 5M has already been paid.
In the Pre-Trial, Y cannot provide a receipt. His reason is because he did not pay
yet. (The issue turns out to be false)
Then there will be a summary judgment.
Best Distinction: In Judgment on the Pleadings, there is no issue at all!
RULE 35: SUMMARY JUDGMENTS
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.

May a partial summary judgment be appealed?
No. Because a partial summary judgment is interlocutory.
What are the distinctions between a Judgment on the pleadings and a Summary Judgment
Judgment on the pleadings Summary Judgment

Only the plaintiff may move for judgment on The moving party may either be the plaintiff or
the pleadings the defendant.
The motion may be filed only if an answer to The motion may be filed before or after an
the complaint has already been filed. answer has been filed.
There is no issue because the answer fails to There is an apparent issue but it can be shown
tender an issue or it otherwise admits the by affidavit, deposition or by admission that
material allegations in the complaint. the issue is false.
Is based only on the pleadings. Is based on facts as pleaded in the pleadings
attached which are proven by affidavit,
admission and deposition.
Must be filed at least 3 days before the date of Should be filed at least 10 days before the date
the hearing. of the hearing.
RULE 36: JUDGMENTS
Requirements of a valid judgment

1. It must be in writing
 So a judgment that is not in writing is void
 It must be written in an official language ( English / Filipino)
2. It must be personally and directly prepared by the judge
3. It must state clearly and distinctly the facts and the law upon which it is based.
4. It must be signed by the judge.
5. It must be filed with the clerk of court ( the act of filing it with the clerk of court is what
constitutes rendition of 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.
How will you know the facts involved in a case?

Based on the evidence presented.
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.
Is the judgment valid ?

Yes, it is valid although it is wrong. And so if the judgment is valid but wrong according to the
plaintiff, the remedy is appeal to correct the judgment. (Error of judgment)
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)

- Remedy is a petition for certiorari to set aside / nullfiy the judgment.
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.
What happens if the judgment becomes final because there is no appeal?

The clerk of court will enter the judgment in the book of entries.
What is the date of entry?

The date of finality of the judgment shall be deemed to be the date of entry.
RULE 37: NEW TRIAL OR RECONSIDERATION
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?

1. It sets aside / vacates the judgment
2. The case will stand for Trial de Novo
 A trial de novo is the new trial, there would be presentation of evidence. The
evidence at the former trial shall be deemed reproduced without the need of
retaking them, except those affected by FAME.

How many times may a party file for a Motion for Reconsideration?
Only one time. A second motion is not allowed.
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.
RULE 38: RELIEF FROM JUDGMENTS
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.
When may a petition for relief be filed?

It may be filed within 60 days from knowledge of the judgment but within 6 months from entry
of judgment. 6 months should be reckoned from entry of judgment.
When can there be an entry of judgment?

Only when a judgment is final because the date of finality shall be deemed to be the date of entry.
Where should the petition for relief be filed?

It should be filed in the same court that rendered the judgment and in the same case.
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.
STEPS TO FOLLOW IN FILING A PETITION FOR RELIEF

1. Filing of a petition - this should be a verified petition
2. The court issues an order directing the respondent to file his answer within 15 days from
receipt of the order
3. The filing of an answer by the respondent
 whether the respondent files an answer or not, there is no default.
 with or without an answer being filed ,the case goes to the next step
4. Hearing on the petition
 to determine if the allegations in the petition are true or not
 What allegations should the court look into as true or not true?

 The allegations of Fraud, Accident Mistake or Excusable Negligence
Suppose the court finds that the allegations are not true?
The court will issue an order denying the petition. This order is not appealable.
Suppose the court finds that the allegations are true?

Then the court will issue an order granting the petition and so the case goes to the
next stage which is Hearing on the case itself.
5. Hearing the case again

6.
Why do you hear the case again?
If the petition for relief is granted, it is as if a new trial is granted.
What is the effect of an order granting the petition?

It is as if a new trial is granted.
RULE 39: EXECUTION, SATISFACTION, AND EFFECTS OF JUDGMENT
 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.
Grounds: FAME Grounds: FAME and Newly discovered

evidence
if denied, there is no remedy if denied, the remedy is appeal
Requires verification No need for verification
It is a remedy in equity It is a legal remedy
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.

Final order v. Interlocutory order
A final order puts an end to a case, it finally resolves a case, it disposes of the case.
An interlocutory order does not end a case.
 An order denying a motion to dismiss is interlocutory, because it does not end the case.
An order dismissing the case is a final order, because it ends the case.
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.
May an interlocutory order be the subject of execution?

No, except an order for support pendente lite.
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.
How to execute a Judgement

1. By means of a motion – the judgment obligee files a motion for execution in court, within
5 years from the entry of judgment.
2. By means of an action
The judgment obligee must file an action to revive the judgment, within 10 years but after
5 years from entry of judgement(Dormant Judgement) the enforcement may be enforce
by means of an action. Then the court will issue a judgment reviving the judgment and
when it becomes final it can be executed by means of motion or an action.
 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

more correct, because it will now dispense the requirement that the judgment
obligee needs to file a motion for the execution of the judgment. The issuance of
the writ cannot be incorporated in the judgment, otherwise that will violate the
rules.
In what court should the motion be filed?

In the court of origin (trial cout).
X - judgment obligee Y - Judgement obligor
RTC rendered judgment against Y. The motion should be filed in the RTC
Scenario: X - judgment obligee Y - Judgement obligor
RTC rendered judgment against Y, and Y appeals the judgment to CA. CA
rendered a judgment against Y and the judgment becomes final.
Where to file the motion?

The motion should be filed with the court of origin which is the RTC.
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.

What are the requisites?
1. There must be a motion for execution pending appeal and with notice to the
judgment obligor. (The judgment oblige files a motion for execution pending
appeal and there must be a notice to the judgment obligor.)
2. There must be a good reason for the execution pending appeal.
3. The good reason must be stated in a special order.
 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.
Not all reasons are good reasons.

Scenario: In one case the Supreme Court held that a mere bankruptcy of the judgment
obligee is not a good reason. Like the judgment obligee needed money to perk
up its business, he could not support his business anymore because it was at the
brink of bankruptcy and it needed money. So he filed a motion for execution
pending appeal alleging that it needed the money. It was held that the mere
bankruptcy of the judgment oblige is not a good reason for 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.
With what court should the motion be file?

In execution pending appeal you have trial court (court of origin –where the case came
from) and then you also have the appellate court.
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.
When does the trial court lose its jurisdiction?

A court loses its jurisdiction over the upon the filing of the appeal in due time and the expiration
of the right to appeal of the other party.
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.
Note: A judgment in a civil action has different days of finality.
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.
Who can appeal?

Anyone of the parties; both of them can appeal from a 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.

Record of the case – this is the record of the case filed in the court. When a party appeals then
the Clerk of court will assemble the record of the case and indicate the table of contents. Then at a
later time, he will send the entire record of the case to the appellate court.
THE SHERIFF WILL IMPLEMENT THE WRIT OF EXECUTION

What happens if the writ of execution varies the judgment? – Judgment says the amount of 1.2
M – Writ of execution says it is 1.8M. It is not consistent with the judgment.
Remedy of judgment obligor is to file a motion to quash the writ of execution on the ground that
it varies the judgment.
 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.
What is the remedy of Z (third party claimant)?

To file a third party claim (not same as third party complaint) in the form of
affidavit of a third party claim. The third party claimant will allege facts showing
his ownership or title to the property levied upon or his right of possession. Serve
a copy to the sheriff.
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.

Remedies if property was levied:
Suppose you are the plaintiff and you are the judgment oblige, you would want
the sheriff will continue.
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.
May the sale be nullified?

No more, because if the property is exempt from execution, the one who should
claim the exemption is the judgment obligor. The right to claim the exemption is
personal to him. The sheriff will not claim the exemption, he will levy on that
property and if that is exempt from execution the judgment obligor should claim
the exemption.
When should the judgment obligor claim the exemption?

At the time of the levy or at the very least, at the time of the sale, otherwise you
waive the exception.
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.

If the judgment obligor was not able to claim the exemption because of reason
beyond his control like, there was fraud. He was prevented from making the
exemption because of some circumstances, then that will not be counted against
him. It will be counted/ considered against the judgment obligor if he was able to
do it but he didn’t do it.
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.
If a property is sold in a sale of execution, is there a right of redemption?

If what was sold in the execution sale was a personal property, there is no grant of redemption.
But if what is sold in a sale of execution is a real property, there is a right of redemption to be
exercised within 1 year from the date of the sale.
“from the date of the sale” –from the day the sale is registered in the office of the register
of deeds.
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.

There is a right of redemption if the property that was sold is an immovable, otherwise there is no
right of redemption.
Who can redeem?

1. Judgment-obligor
2. Redemptioner
Redemptioner – A creditor who has a lien by virtue of a judgment, attachment, or mortgage on

the property sold, or any portion thereof, subsequent to the lien under which the property was
sold.
 If the only or last person to redeem is a judgment-obligor there can be no further
redemption from him.
 But if the one who redeems, if a redemptioner, then another redemptioner can redeem
from him.
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.
Who can redeem the property from C?

Y (judgment-obligor) can redeem.
A has a lien by virtue of a mortgage. B has also a lien by virtue of an attachment

on the property sold.
Can A redeem? What about B?

As to B, yes because he has a lien on the property sold subsequent to the lien
under which the property was sold.
But A cannot redeem, he is not a redemptioner, although A has a lien on the
property sold his lien is not subsequent to the lien under which the property was
sold.
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.

If B redeems redeems, then C can redeem it from him. If the first to redeem is C,
then B can redeem it from C. Let us say there are many redemptioners, like six of
them. One redeems, the other one can also redeem from him.
If the only or last person to redeem is the judgment-obligor there can be no

further redemption from him.
RULE 40-56: APPEAL
 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).
Who can appeal?

The plaintiff, the defendant or any of the defendants, or both plaintiff and defendant.
When counting the number of days, exclude the first include the last. If you receive the copy of
the judgment on July 1, your last day is July 16.
Neypes Ruling (Neypes v. CA)

Provides for a fresh 15-day period from notice of the order denying a Motion for New Trial or a
Motion for Reconsideration.
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.
Until when can Y appeal from the judgment?

He has another 15 days from Sept. 2. – Neypes Ruling

Neypes vs CA lays down the rule that came to be known as fresh 15-day period
to appeal.
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
Rule 40: Appeal from MTC to RTC

Rule 41: RTC to CA
Rule 42: Appeal from RTC to CA
Rule 43: Quasi- judicial bodies to the CA
Rule 45: Appeal from RTC, CA, CTA, SB to the SC
 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

From RTC to CA, the only questions to be raised
are questions of law, questions of fact, or mixed questions of fact and of law.
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.
II. The case originates from the RTC
III. Direct Appeal to the SC
Numbers I and II – the same if you look at them.

But take note that if from the judgment of the RTC you are appealing and you are raising only
pure questions of law, then there can be a direct appeal to the SC. From RTC it is a direct appeal
to the SC by Petition for Review on Certiorari under Rule 45.
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.

How does a Notice of Appeal look like?
A N of A should be very short.
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.
Appellant’s brief should state the following

1. Statement of the case
2. Statement of facts
3. Statement of issues
4. Assignment of errors
5. Arguments on the assigned errors
6. Conclusion
7. Relief demanded
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.
When do you need a Record on Appeal?

In the following:
a) In a special proceedings involving settlement of estate of a deceased person;
b) In cases involving multiple appeals;
c) In cases of separate appeals.

Does a N of A require the approval of the court? – No.
What about a record on appeal does it require the approval of the court?
Yes. In fact, in the record on appeal, all the names of the parties must be specified
in the title – you cannot say et al.
Scenario: Multiple appeals Cases:

a) Judicial foreclosure of a mortgage
b) Expropriation
c) Partition
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.
How many times can you appeal?

Twice. That’s why it’s called multiple appeals.
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.
The Record on Appeal simply reproduces the record of the case.
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.

Suppose the appellant fails to file the memo 15 days.
The appeal may be dismissed, should the appellant fail to file his memorandum beyond 15 days –
but in a criminal case, the failure of the appellant to file his memo is not a ground for the
dismissal of the appeal.
MTC dismisses the case without trial
X v Y – Judgment of the MTC

Ground: Dismissal is on the ground that MTC had no jurisdiction
Remedy: Appeal the order of dismissal to the RTC.
The RTC may affirm or reverse the dismissal.
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)
May the appellant dismiss his own appeal?

Yes, the appellant can dismiss his appeal as (a matter) of right before the filing the
appellee’s brief or appellees memorandum. After the filing of a motion, the withdrawal
would depend on the sound discretion of the court.
Scenario: X v Y – A judgment was rendered in favor of Defendant Y

Only a judgment or a final order may be appealed.
If it is with prejudice  Remedy of X is to appeal.
If it is without prejudice  Remedy of X is to refile his complaint.
Note: Previously Discussed
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
What is the remedy of X as to one of the defendants?

The remedy of the Plaintiff (X) is to file a petition for Certiorari under Rule 65.
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.

Annulment of a judgment / Action to annul judgment
 Annulment of judgment is a recourse equitable in character, allowed only in exceptional
cases as where there is no available or other adequate remedy
 Since a petition for annulment of judgment is an equitable and exceptional relief, the
Rules of Court under Rule 47 put in place stringent requirements that must be complied
with before this remedy may prosper.
o First, it is only available when the ordinary remedies of new trial, appeal,
petition for relief, or other appropriate remedies are no longer available through
no fault of the petitioner.
o Second, an annulment may only be based on the grounds of extrinsic fraud and
lack of jurisdiction. Moreover, extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for new trial or petition for
relief.
o Lastly, if grounded on extrinsic fraud, the petition must be filed within four years
from its discovery; and if based on lack of jurisdiction, before it is barred by
laches or estoppel.
Grounds for annulment of judgment

1. Extrinsic Fraud;
2. Lack of Jurisdiction; and
3. Lack of Due process (According to Dean)
What Judgment can be annulled?

Judgment or final orders and resolutions in civil actions of RTC.
Remedies against a final and executory judgment?

1. Petition for relief from judgment under Rule 38;
2. Action for Annulment of the judgment; and
3. Action for Certiorari under Rule 65 if there is patent nullity.
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.
Ancillary Remedies / Provisional Remedies
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.
RULE 57: PRELIMINARY ATTACHMENT

Kinds of Attachment
1. Preliminary Attachment (PA);
2. Garnishment;
3. Final Attachment (Levy on Execution)
Distinctions between preliminary attachment and garnishment

preliminary attachment garnishment
Preliminary attachment involves two parties Garnishment involves three parties (obligee or
(Pf or any proper party as obligee or creditor, creditor, obligor or debtor, and garnishee)
Df as obligor or debtor)
In PA, the property attached is seized and taken Garnishment no actual seizure because the
into custody by the officer implementing the garnishee will keep the property subject to
writ of PA disposition of the court
Garnishee – is a person or entity who has in custody of the properties belonging to the creditor or
debtor.
May writ of PA be issued ex parte?

Yes, so as to prevent the defendant from absconding or concealing his property before the writ is
issued.
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.
When Prior or Contemporaneous Rule cannot apply?

It shall not apply in the following instances:
a) Where the summons could not be delivered personally or by substituted service
despite diligent efforts;
b) The defendant is a resident of the Philippines temporarily absent;
c) The defendant is a non-resident of the Philippines; and
d) Action is one in rem or quasi in rem.
(Rule 57, Section 5)
Affidavit and bond required in PA

A Pf (or any proper party) must file a bond, attachment bond or plaintiffs bond and the amount is
fixed by the court. If the Pf is not entitled to the bond, then the bond will answer for the damages
or liabilities suffered by the defendant. If Pf is entitled, the bond will be cancelled.
(Read Rule 57, Section 4 )

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CIVIL PROCEDURE

(Summer Class 2019)

REGIONAL TRIAL COURT

FIRST LEVEL COURTS

Metropolitan Trial Court (MeTC),

CIVIL PROCEDURE | Notes (hugs

How may the court acquire jurisdiction over the defendant?

II. JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION

a) Real Action – It is a real action if the action involves title to or right of

Venue: Determined by the location of the real property involved.

b) Personal Action – Any other action.

CIVIL PROCEDURE | Notes (hugs

What court has jurisdiction?

What is the instance when DIAL-C is not excluded?

c) INCAPABLE OF PECUNIARY ESTIMATION

Actions Incapable of Pecuniary Estimation

Specific Performance AND payment of P150,000.

Specific Performance OR payment of P150,000.

2. Primary Objective Test – If the primary or ultimate objective of the plaintiff is to

CIVIL PROCEDURE | Notes (hugs

TWO WAYS TO FORECLOSE A MORTGAGE

a) Judicial Foreclosure – The mortgagee goes to court.

CIVIL PROCEDURE | Notes (hugs

Is this a real action or a personal action?

III. JURISDICTION OVER THE RES

Ways to distinguish actions:

Action In Rem Action Quasi in Rem Action in Personam

Correction of birth certificate

CIVIL PROCEDURE | Notes (hugs

Scenario: A an American, resident of California. He comes to the Philippines for a visit.

Can you sue him in the Philippines?

Can you sue him in the Philippines?

What determines the jurisdiction of the court?

In what court should the complaint be filed?

CIVIL PROCEDURE | Notes (hugs

Exception: Agricultural Tenancy

RULE 1- GENERAL PROVISIONS

When are the Rules not applicable?

EXCEPT in analogy or in suppletory character and whenever practicable and convenient.

What is a civil action?

2 kinds of a Civil Action

Special Proceedings – Remedies to establish a status, a right or a particular fact.

CIVIL PROCEDURE | Notes (hugs

COMMENCEMENT OF A CIVIL ACTION (Rule 1, Sec 5)

 If an additional defendant is impleaded in a later pleading (AMENDED COMPLAINT)

What is the remedy?

An additional defendant is impleaded in an amended complaint.

Why should we know when a civil action is commenced?

How may the Rules of Court be construe?

CIVIL PROCEDURE | Notes (hugs

What are the requisites of a cause of action?

GROUNDS FOR DISMISSAL

2. Res judicata – The action is barred by prior judgment.

2 Tests to Determine which case should be Dismissed

Scenario: H and W are husband and wife.

Which case should be dismissed?

CIVIL PROCEDURE | Notes (hugs

Requisites of Joinder of Causes:

Explanation of the Requisites:

Combination of Parties in a Joinder

Requisites so that the parties may be joined:

Can their be a joinder?

CIVIL PROCEDURE | Notes (hugs

ADVANCE LECTURE: Special Proceedings