CIVIL PROCEDURE
CIVIL PROCEDURE the California statute's effect of equalizing male
GILLIAN, IN A DIFFERENT VOICE.
Jake: Rule Based on Principle Based
Resolution. Apply the law, and make
allowances for mistakes in the law. Situation
does not create the rule.
Amy: Relational / Consensual /
Processional Based Resolution
CALIFORNIA FEDERAL SAVINGS AND
LOAN V. GUERRA. Issue: Re: 1978
California legislation re: State mandated
employee benefits but not for other temporary
disabilities. Single mother lost her job as a
receptionist after her maternity leave, and as a
result of her unemployment, lost custody of her
daughter. Mother filed case to enforce
maternity benefits: employer challenged statute
as inconsistent with Federal Pregnancy
Discrimination Act (PDA) which treats
pregnancy as similar with other temporary
disabilities for employment purposes.
ACLU BRIEF.
Elimination of pregnancy-based
distinctions valid re: employment purposes
since protectionist laws tend to promote
stereotype of female childbearers and caregivers,
and deter employers from hiring them or putting
them in more responsible positions; they make
women appear as more expensive, less reliable
employees.
By making pregnancy comparable to
other temporary physical conditions, Congress
directs attention away from debilitating
stereotypes and focus attention on workers' need
for disability leave itself. Benefits should be
provided on a gender-neutral basis.
COALITION FOR REPRODUCTIVE
EQUALITY BRIEF.
Though leave policies that are gender-neutral
may affect the employment interests of both
sexes, such policies place an additional burden
on females with the fundamental non-
employment right of procreative choice.
The law in question reduces the discriminatory
impact of inadequate leave policies on women's
procreative rights, while conferring no special
benefit on any group of employees, and
imposing no special burden on others.
There is no inconsistency between the federal
law's goal of removing artificial barriers to equal
employment opportunity between the sexes, and
Prepared by:
AKSYON PARTY
and female employees' ability to exercise
procreative choice w/o jeopardizing their jobs.
MENKEL. PORTIA IN A DIFFERENT VOICE.
Re: Gillian's observations about M/F
differences in moral reasoning re: structure of
legal system, practice of law, creation of laws,
legal reasoning and law as part of the decision-
making process; 2 questions:
1. How has the exclusion, or at least the
devaluation of women's voices affected the
choices made in the values underlying our
current legal structures? (Value system)
2. Is there another set of values within
existing legal structures?
Usually, tendency for one set of characteristics to
mitigate the excesses of the other, therefore the
harshness of law produced the flexibility of
equity, and the abuse of flexibility gave rise to
rules of law to limit discretion. Still, the
tendency for male-dominated or male-created
forms and values to control.
RULE 1
Purpose of Rules
Alonzo v. Villamor, 16 Phil 315, 321-322
Facts: Defendant members of the
Municipal Board took over certain
church & personal properties on the
ground that the buildings were erected
on the land owned by the municipality
& therefore the municipality can
administer & collect the revenues. The
CFI granted recovery of the properties.
One of the arguments posed by the
defendants was that Fr. Alonso, the
parish priest, was not the real party-in-
interest but rather the Bishop of the
diocese.
Held: The property in question at the
time it was taken was Church property.
It is undoubted that the Bishop is the
real party. But by Code of Civil
Procedure §10, cts. are authorized &
directed to allow a party to amend any
pleading or proceeding at any stage of
the action, in furtherance of justice. §
503 prohibits the reversal of any
judgment on merely formal or
technical grounds or for such error as
has not prejudiced the rights of the
excepting party, The error in CAB is
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 CIVIL PROCEDURE
purely technical. The plaintiff has
asserted all throughout that he is
prosecuting the case not for himself
but for the Bishop. Substantially, no
one is deceived. Substitution is not
substantial but formal & mere defect
in form cannot possibly prejudice so
long as the substantial is clearly
evident.
ALONZO V VILLAMOR. misjoinder/non-
joinder of parties not ground for dismissal.
Must allege lack of cause of action
Amendment allowed for matters of
form; therefore, if parties acquiesce during trial,
there may be no need for formal lesson.
Lesson in ALONZO: If rules are clear, apply; if
there is ambiguity, constr5uct so that there is
justice for all
Jurisdiction
BP Blg. 128
RA No. 7691
RA No. 8369
Javier v. CA, 214 SCRA 572 (1992)
Facts: Javier filed a case vs. Jebsens
Maritime, Inc. in RTC Makati to avail of
death benefits when her husband
drowned off the coast of Spain. JMI’s
new counsel instead of continuing the
trial filed a Motion to Dismiss (MTD) on
the ground that it is the POEA that has
jurisdiction. RTC denied. JMI failed to
appear at the hearing & RTC declared
them as having waived right to cross-
examine. Motion for Reconsideration
was denied. JMI successfully appealed
to CA. Javier’s MFR was denied.
Held: EO 247 §3 (d) provides that the
POEA shall have exclusive & original
jurisdiction to hear & decide all claims
arising out of an EE-ER relation or by
virtue of any law or contract involving
Filipino workers for overseas
employment. Javier’s’ contention that
JMI is estopped fr. assailing the
jurisdiction of the RTC considering that
the latter had actively participated in
the proceedings before said ct. is
unavailing since JMI had raised the
question of jurisdiction in the RTC. The
doctrine of estoppel cannot be
properly invoked by Javier despite the
participation of JMI at the initial stages
of the trial proceedings as the issue of
Prepared by:
AKSYON PARTY
jurisdiction may be raised at any time
& at any stage of the action.
JAVIER V CA. Doctrine of Primary
Administrative Jurisdiction: file original and
exclusive jurisdiction of administrative tribunal,
even if possible to lead jurisdiction in both.
Exhaustion of administrative remedies is to give
a chance for administrative functions to work.
Santos v. NW, 210 SCRA 256 (1992)
Facts: Santos was bumped off his
flight back to the USA despite
confirmation. He sued in the Makati
RTC for damages. NWOA filed a MTD
for on the ground of lack of jurisdiction
citing the Warsaw Convention Art.
28(1) w/c states that the complaint
could be instituted only in the territory
of one of the High Contracting Parties,
before: (1) the ct. of the domicile of
the carrier; (2) the ct. of the principal
place of business; (3) the ct. where it
has a place of business thru w/c the
contract had been made; & (4) the ct.
of the place of destination. The suit
was not filed in any of these places.
Held: The Warsaw Convention applies
to all international transportation
cases. A number of reasons tends to
support the characterization of Art. 28
(1) as a jurisdiction & not a venue
provision. First, the wording of Art. 32,
w/c indicate the places where the actin
for damages must be brought
underscores the mandatory nature of
Art. 28 (1). Second, this
characterization is consistent wit one
of the objectives of the Convention w/c
is to regulate in a uniform manner the
condition of international
transportation by air. Third, the
Convention does not contain any
provision prescribing rules on
jurisdiction other than Art. 28 (1) w/c
means that the phrase “rules of
jurisdiction” used in Art. 32 must refer
only to Art. 28 (1). In fact, the last
sentence of Art. 32 specifically deals
w/ the exclusive enumeration in Art.
28 (1) as jurisdictions w/c as such
cannot be left to the will of the parties
regardless of the time when the
damage occurred. The Constitutional
right on free access to cts. refers to
cts. w/ jurisdiction over the suit. The
place of destination as determined by
the contract is the ultimate destination
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 CIVIL PROCEDURE
w/c is San Francisco, not Manila.
Domicile is where NWOA is
incorporated. Important is the
distinction between the country where
the principal place of business is
located & the country in w/c it has a
place of business thru w/c the
particular contract in question was
made.
SANTOS V NORTHWEST.
Jurisdiction. 2 meanings: a) place of filing and
b) level of court. Can't be changed, set by law.
Venue. Place of filing. Can be changed by
consent of parties subject to pertinent rules.
In the case at bar, the source of law is treaty, not
contract. Therefore, jurisdiction set by law.
Venue prescribed by process or Rules of Court
(what does this mean?)
The difference between jurisdiction and venue.
Look at a) consequence and b) source of law
Lopez v. NW, 223 SCRA 469
Facts: Lopez was bumped off her
flight to New York by Northwest. She
filed a complaint for breach of contract
of carriage w/ damages, alleging bad
faith on the part of the airline. NW
filed MTD on the ground that the RTC
had no jurisdiction under the Warsaw
Convention. RTC & CA denied: Art. 28
(1) prescribes venue for actions under
Arts. 17-19 & does not cover carrier’s
bad faith in absolutely refusing to
comply w/ contract of carriage; off-
loading, & bumping off is not covered
under the Warsaw Convention. Appeal
in the SC failed. After trial on the
merits, RTC directed parties to submit
their respective memoranda for
decision 30 days & it expired Feb. 14,
1992. On July, NW filed MTD after SC
ruling on Santos vs. NW. RTC granted.
Held: RTC had jurisdiction. It is not
clear whether the complaint contains
the allegation w/c may fall w/in Art. 28
(1). What is clear is that NW did not
object to RTC’s order to submit
evidence & declare case submitted for
decision pursuant to 1987 Consti, Art.
8, Sec. 15, Nos. 1 & 2. TC had 90 days
fr. Feb. 15 to decide w/c was the only
thing left for it to do. BY virtue of the
SC’s resolution, RTC had prima facie
jurisdiction. It was also not established
that the facts in Santos were
Prepared by:
AKSYON PARTY
substantially the same. Besides,
posterior changes in SC doctrines
cannot be retroactively applied to
nullify a prior SC ruling. Jurisdiction
continues until termination. While
jurisdiction over subject matter may
be raised at any time, party may be
barred on ground of laches/estoppel.
Bulao v. CA, 218 SCRA 321 (1992)
Facts: Santiago Belleza sued Honorio
Bulao for damages in MuTC for having
built a dam on an irrigation canal,
causing the waterflow to divert to
Belleza’s land, resulting into crop
damage. Bulao filed a MTD on the
ground that RTC had jurisdiction -
denied. He then argued that it was the
National Water Resources Council that
had jurisdiction - denied. MuTC
declared Bulao in default & ruled for
Belleza. Bulao appealed to the RTC
-denied.
Held: MuTC had jurisdiction. But to
resolve this, determine first the nature
of the action. This can be ascertained
fr. the ultimate facts averred in the
complaint constituting the COA.
Allegations in the complaint determine
the nature of the action &
consequently the jurisdiction of the
cts.. It is clear fr. a reading of the
complaint that it is an action for
damages predicated on quasi-delict
Although the title of the complaint
(“Damages”) is not necessarily
determinative of the nature of the
action, it would nevertheless indicate
that what was contemplated was an
action for damages. Allegations of the
facts set forth in the complaint & not
the prayer for relief determine the
nature of the action.
BULAO V CA. The wonderful thing about the
servient's estate's complaint was the allegation
that the dominant estate "maliciously put a dam"
and this phrase placed it within the court's
jurisdiction. To place the case within the
National Water Resources Council (NWRC)'s
jurisdiction, allege that dominant estate set up
dam without a permit in violation of PD 1067
and took control of the water, in effect
appropriated water illegally.
Name game: Jurisdiction is prescribed by law
and acquired by court.
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Tijam v. Sibonghanoy, 23 SCRA
Facts: The Tijams filed a civil case
against the Sibonghanoys for
recovery of P1,900 + interest. The
Sibonghanoys filed an answer w/
counterclaim, to w/c the Tijams filed a
reply. The CFI Cebu ruled in the
Tijam’s favor. A writ of execution was
returned unsatisfied so the Tijams filed
a motion for execution against the
Manila Surety & Fidelity Co., w/c was
denied due to lack of demand. A
demand later made was unsatisfied,
so the ct., upon motion, issued a writ
of execution. Appeal w/ the CA failed.
MFR filed, alleging that the CFI had no
jurisdiction bec. 1 month before the
case was filed, RA 926, or the Judicial
Reorganization Act of 1948, took
effect, Sec. 88 of w/c places original &
exclusive jurisdiction in inferior cts.
over all civil actions where the value
of the subject matter is P2T. CA set
aside decision by certifying the case to
the SC, w/c has exclusive appellate
jurisdiction over all cases in w/c the
jurisdiction of inferior cts. is at issue.
Held: Although objections to
jurisdiction may be raised at any stage
of the proceedings, in the CAB, it took
almost 15 years before the Surety filed
its MTD (1963), raising lack of
jurisdiction for the first time. It is now
barred by laches. From the time it
became a quasi-party upon filing of a
counter bond in 1948, it could have
raised the objection. Instead, at
several stages of the action, it invoked
the jurisdiction of said cts. to obtain an
affirmative relief. It was only when the
CA ruled adversely that it finally raised
the question of jurisdiction. SC frowns
upon the undesirable practice of a
party submitting his case for decision
& then accepting the judgment only if
it is favorable & attacking it for lack of
jurisdiction when adverse.
TIJAM V SIBONGHANOY. The trial court,
after 15 years, can act motu proprio and dismiss
the case for lack of jurisdiction. Estoppel by
laches does not apply to judge.
Abalos v. CA, 30 April 1991
Prepared by:
AKSYON PARTY
Facts: Abalos spouses sued to recover
possession of a lot in Quezon City
registered in their name. The
squatters, against whom the action
was filed, lost the case in the QC RTC
so they appealed to the CA on the
ground that the RTC erred in not
dismissing the case for failure to
comply w/ the Katarungang Barangay
conciliation procedure. CA granted.
Held: RTC had jurisdiction. When the
Abalos spouses filed their complaint,
they placed QC as their address. But
they were able to change it to
Caloocan upon leave of ct. w/o the
respondents objecting. The
requirement of conciliation cannot be
enforced since the property is in QC,
where the respondents reside, while
the Abalos spouses live in Caloocan
(PD 1508 Sec. 20). Respondents
effectively waived their right when
they failed to object to the correction
of the Abalos’ residence fr. QC to
Caloocan participated in the trial on
the merits. The fact that they argued
their case & adduced their evidence
amounts to a waiver of this defense.
Once a party submits to the
jurisdiction of the ct. & participates in
the trial on the merits, he cannot
thereafter, after an unfavorable
judgment, take a total turnabout & say
that compliance w/ PD 1508 was not
made.
ABALOS V CA. Ruling (acc. to L):
Amendment already happens implicitly when
parties acquiesce
Q: Is failure to undergo Katarunggang
Pambaranggay a ground for dismissal for failure
to comply with condition precedent?
L: Abalos fails to clarify this. Formerly,
grounds for MTD in ROC Rule 16 provided
"failure to state a cause of action". Now
clarified by Revised ROC Rule 16 (j) which now
states "failure to comply with condition
precedent"
NOTE: In this class, L is synonymous with A
in Q & A; but more often, he prefers to be Q.
All Qs are Ls unless otherwise indicated
Galuba v. Laureta, 157 SCRA 627
LECTURE ON JURISDICTION
RA 8369: Changes jurisdiction for cases
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Jurisdiction, remedy, relief, cause of action,
subject matter (what is this?)
Place: Rules prescribing place to file may not
necessarily refer to venue but to jurisdiction as
well
P20T/P50T -- subject matter
P100T/P200T -- relief
If allegations not coMplete, vulnerable to MTD
Judicial power: sum total of all courts
comprising the judiciary power of judicary of
make decisions on actual controversies.
Jurisdiction: a particular court exercising power
over a specific controversy
Flores v. Mallare Philipps, 144 SCRA
Facts: Abalos spouses sued to recover
possession of a lot in Quezon City
registered in their name. The
squatters, against whom the action
was filed, lost the case in the QC RTC
so they appealed to the CA on the
ground that the RTC erred in not
dismissing the case for failure to
comply w/ the Katarungang Barangay
conciliation procedure. CA granted.
Held: RTC had jurisdiction. When the
Abalos spouses filed their complaint,
they placed QC as their address. But
they were able to change it to
Caloocan upon leave of ct. w/o the
respondents objecting. The
requirement of conciliation cannot be
enforced since the property is in QC,
where the respondents reside, while
the Abalos spouses live in Caloocan
(PD 1508 Sec. 20). Respondents
effectively waived their right when
they failed to object to the correction
of the Abalos’ residence fr. QC to
Caloocan participated in the trial on
the merits. The fact that they argued
their case & adduced their evidence
amounts to a waiver of this defense.
Once a party submits to the
jurisdiction of the ct. & participates in
the trial on the merits, he cannot
thereafter, after an unfavorable
judgment, take a total turnabout & say
that compliance w/ PD 1508 was not
made.
FLORES V MALLARE-PHILIPPS: Example
where it is possible to allege facts in pleading
Prepared by:
AKSYON PARTY
that gives rise to 2 causes of action: misjoinder
of parties
L: lack cause of action a separate case (WIT?)
Strategy: file answer for 1st cause of action;
file MTD for 2nd cause of action
CALIMLIM V RAMIREZ. Res judicata: bar by
prior judgment (diff. From estoppel)
L: General Rule: Jurisdiction is conferred by
law and thus it can be raised at any point in the
proceedings even on appeal
TIJAM rule: Estoppel by laches occurs when 2
requisites concur
a. passage of an unreasonable length of time
a. party sleep on its rights to make other party
believe that the former has abandoned his rights
Therefore, party can't raise question of
jurisdiction if he is guilty of estoppel by laches
CALIMLIM rule: W/N party asked for
affirmative relief irrelevant; what matters is
whether party was led to believe that the other
party slept on his rights. A rule on equity.
General Rule: Court can dismiss case for lack
of jurisdiction motu proprio
Ortigas & Co. v. CA 106 SCRA
Facts: Ortigas & Co. sold to Maximo
Belmonte a piece of land. Terms:
Belmonte would be considered a
lessee until full payment & in case of
default he would be ejected as
trespasser or unlawful detainer.
Belmonte failed to pay so an action for
unlawful detainer was field in the San
Juan MuTC, where Ortigas prayed that
the residential building constructed by
Belmonte be forfeited in its favor.
Belmonte lost so he appealed to the
CFI Rizal by filing an MTD under ROC
40 Sec. 11 w/c, if granted, would in
effect dismiss the case & render
judgment by MuTC invalid for lack of
jurisdiction. It was denied but an
appeal to the CA set aside the MuTC &
CFI rulings. On appeal, the SC ruled
that the issues were purely legal &
should have been brought directly to
the SC, but it proceeded to adjudicate
the case anyway as if brought for the
first time.
Held: MuTC had jurisdiction according
to the ruling in Fuentes & Goter vs.
Muñoz-Palma. An action for unlawful
detainer, w/c is a summary
proceeding to wrest possession fr. one
who has no right thereto, is applicable
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only when the issue is that of
possession. According to the Judiciary
Act Sec. 44 (b), the CFI has original
jurisdiction in all civil actions w/c
involve title to or possession of real
property, except actions of forcible
entry & detainer over lands or
buildings where original jurisdiction is
conferred upon city or municipal cts..
This case involves not merely right of
possession but also rights of
ownership over the improvements as
indicated in the prayer. CFI should
have dismissed the case when its was
brought on appeal bec. it could only
have entertained the same if the
parties did not object to nor raised the
question of jurisdiction.
Dy v. CA, 195 SCRA
Facts: Ramon Roxas filed an
ejectment suit in the MeTC Makati vs.
Andres & Gloria Dy where he won. Dys
appealed to the RTC, but failed. MeTC
granted immediate execution, so the
next day, the Sheriff & some
policemen ejected the Dys by
throwing their belongings to the
street. They filed a motion to
quash/recall of the writ of execution on
the ground that they had not received
a copy of the RTC decision. MeTC
denied. CA appeal failed.
Held: There must first be copy of the RTC
decision served on the losing party before
judgment is executed. Refer to ROC 39 Sec. 1,
Rules on Summary Procedure Sec. 12 & BP 129
Sec. 22. Proof of service of copy of judgment
determines whether or not the appeal period has
lapsed. If no appeal was filed after the copy is
served, then the decision is immediately
executory as a matter of right. A petition for
review by CA of RTC judgment may be filed
only after notice of RTC judgment has been
served on the losing party. If no notice was
served, the losing party has no legal remedy
against an illegal judgment nor does the CA
have the power to prevent the execution of an
illegal order. However, the Dys cannot have the
relief prayed for since they failed to appeal after
they were served notice. Nothing is more settled
than the rule that in every litigation, the parties
thereto are entitled to due process, & if there is
a denial thereof, then the validity of the
proceedings is open to question.
Manchester Dev. Co. v. CA, 149 SCRA
Prepared by:
AKSYON PARTY
Facts: MDC filed a complaint for
damages & specific performance
against City Land to compel the latter
to push through w/ the sale of the
land. The amount of damages was not
specified in the prayer but was alleged
in the body of the complaint. Thus, a
docket fee of only P410 was paid on
the presumption that the amount
involved was not capable of pecuniary
estimation, when in fact it was. MDC’s
second counsel deleted all mention of
damages. SC ordered the
reassessment of docket fees. Reduced
damages were still not specified in the
prayer. CA ruled that docket fees
should be based on the orig. comp.
Held: A case is deemed filed only
upon payment of docket fees
regardless of the actual date of filing
in ct.. Thus, the TC did not acquire
jurisdiction w/ the payment of the
P410 docket fee. An amendment of
the complaint or similar pleading will
not vest jurisdiction, much less
payment of the docket fee, based on
the amount averred in the amended
pleading. The design to avoid
payment is obvious since it misled the
docket clerk. All complaints, petitions,
answers, & similar pleadings should
specify the amount of damages being
prayed for not only in the pleading but
also in the prayer & said damages
should be considered in the
assessment of the filing of fees in any
case. Any pleading that fails to comply
w/ this requirement shall not be
accepted nor admitted, & shall be
expunged fr. the record.
Sun Insurance v. Asuncion, 170 SCRA
Facts: Sun Insurance filed a
complaint in the RTC for consignation
of a premium fund on a private fire
insurance policy against Manuel Uy Po
Tiong. Manuel filed for a refund of the
premium but the amount of damages
was not specified in the prayer,
although it could be inferred in the
body. Thus, only P210 docket fee was
paid. SC ordered reassessment of the
docket fees. The amended complaint
stated a claim of not less than P10M in
the prayer but a second amendment
raised the amount to P44M+ w/c was
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admitted in ct.. Sun questions this
order.
Held: Petition dismissed for lack of
merit. The contention that Manchester
ruling cannot apply retroactively to
this case is untenable. Statutes
regulating the procedure of the cts.
will be construed to apply to actions
pending & undetermined at the time
of their passage. Procedural laws are
retrospective in that sense & to that
extent. It is not simply the filing of the
complaint or pleading but the
payment of the prescribed docket fee
that vests the trial ct. w/ jurisdiction
over the subject matter or nature of
the action. Where the TC acquires
jurisdiction over a claim w/ the filing of
the appropriate pleading & payment
of the prescribed filing fee, but
subsequently the an award of an
amount not specified in the pleading,
or if specified, the same has been left
for determination by the ct., the
additional filing fee shall constitute a
lien on the judgment. It shall be the
responsibility of the Clerk of Court or
his duly authorized deputy to enforce
said lien & assess the additional fee.
Katarungang Pambarangay
See RA 7160 provisions
Morata v. Go, 125 SCRA 444
Facts: This was a case for the
recovery of a sum of money plus
damages = P49,400.00. AA MTD was
filed bec. of failure to undergo
conciliation proceeding in the brgy.
The MTD was opposed on the ground
that the law on KP covers only to
those cases falling w/in the exclusive
juris. of the MTCs.
Held: There is no distinction
whatsoever w/ respect to the classes
of civil dispute that should be
compromised at the brgy level as
contradistinguished w/ that of the
criminal cases.
Royales v. IAC, 127 SCRA 470
Facts: This is an ejectment case
again in the MTC. R, the lessee,
participated in the trial & even cross-
Prepared by:
AKSYON PARTY
examined the petitioner. R, then, filed
a certiorari & prohibition w/
preliminary injunction when the
decision was adverse to him.
Held: Petition denied. A party who
has affirmed & invoked the jurisdiction
of a ct. in a particular matter to secure
an affirmative relief cannot,
afterwards, deny the same jurisdiction
to escape a penalty.
LECTURE ON KATARUNGANG
PAMBARANGAY
General Rule. All civil actions, regardless of
amount of relief, between parties of the same
baranggay, should undergo Katarunggang
Pambaranggay
Remedy: a) Don't arrive at a settlement
b) File case v. Lupon to compel them
to dismiss objectinable Lupon member
(This case need not undergo KP re sec. 408 (b)
and sec. 406 (a)) (WIT?)
MANCHESTER rule: full payment of docket
fees necessary for court to acquire jurisdiction
All prayers must be in the complaint,
not just in the body
Overruled LEGASPI re: installment
payments no longer allowed
SUN INSURANCE: bar problem. If there is an
honest difference of opinion as to amount of
docket fees and P is in good faith, court can
grant period of time to allow payment. Qualifies
MANCHESTER only to that extent
MANCHESTER: if award to judgment creditor
is greater than the amount prayed form,
difference in docket fees constitutes first lien.
NOTE: but no payback of excess fees even if
awarded less
L: Remember to bill your client for "incidental"
or "out of pocket" costs for sheriff's
transportation, food and vitamins
JURISDICTION (power to hear, try and
decide cases)
Conferred by law. Law can only be changed by
passing through Congress. Party can't amend
rules on jurisdiction by agreement or voluntary
act Jurisdiction can be raised at any time even
on appeal, after termination of case of decision
becomes final and executory, subject to rules on
prescription. Raise issues of jurisdiction via a
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 CIVIL PROCEDURE
MTD (Rule 16) but court can act motu proprio.
Rule on place not necessarily a rule on venue.
TIJAM. Bar problem. Qualifies who can raise
matters of jurisdiction. If estopped by laches,
can't file MTD in equity
JURISDICTION. May be subject to nature of
1. Cause of action - eg. Admiralty cases,
domestic violence
1. Relief
1. Subject matter (thing over which the rights
and duties occur - eg. rights or title to real
property > P50 T; claims incapable of pecuniary
estimation
1. Remedy - eg. forcible entry and unlawful
detainer, review by certiorari; BULAO v CA
Jurisdiction, once acquired, is never lost.
Exception: DY V CA. Court violates
constitution; ousted from jurisdiction.
NOTE: judgment still valid, no jurisdiction only
for purposes of issuing writ of execution due to
lack of notice to party
WORD GAME:
Conferment of Jurisdiction: law prescribes
jurisdiction
Acquisition of Jurisdiction: Rule 1 Section 5:
Filing of complaint vests court with jurisdiction
over res. Summons vests court with jurisdiction
over the corpus.
NOTE: filing of complaint happens upon full
payment of docket fees
CONDITIONS PRECEDENT
NOTE: Failure to undergo Katarunggang
Pambarangay not issue of jurisdiction Sec. 412
Loc. Government Code; neither a defect in
jurisdiction but vulnerable to a MTD (Rule 16
sec. J) for failure to undergo condition
precedent.
Failure to undergo condition precedent
can only be raised in a MTD or as an affirmative
defense
Summary Procedure
Rules on Summary Procedure (Oct. '91)
Del Rosario v. CA, 241 SCRA 519 ('95)
Held: The presence of an action for
quieting of title does not divest the
MeTC of original jurisdiction over the
ejectment case. An ejectment case
Prepared by:
AKSYON PARTY
(possession de facto) is independent
of any claim of ownership (possession
de jure). Under the revised Summary
Procedure (Nov. 15, 1991) all types of
ejectment cases are now covered by it
regardless of whether or not the issue
of ownership of subject property is
pleaded by a party. No hearings are
required in this procedure. The
adjudication of cases here are done on
the basis of affidavits & position
papers.
SUMMARY PROCEDURE
Remedy for forcible entry, unlawful detainer, <
P10,000
Katarunggang Pambaranggay condition
precedent before parties can obtain judicial relief
Not apply to ordinary civil actions in RTC
Summary Procedure
Ordinary Civil Action
Pleadings Allowed
Verified complaint
Compulsory counterclaim
Answer to complaint
Crossclaim v existing defendant
Complaint
Counterclaim
a. Compulsory(relates to transaction)
a. Permissive (not related)
Crossclaim
Third party claim
Intervention
Answer
Reply
Answer
File answer w/in 10 days of service of summons
File answer w/in 15 days of service of summons
Can court act motu proprio in dismissing the
case?
YES. Court can act motu proprio and dismiss
NO. Court cannot dismiss action motu proprio
but must wait for MTD
Effect of other party's failure to file an answer
Get judgment. No need for motion for default or
order for default
File a motion to declare the other party in
default
Preliminary Conference not later than 30 days
Effect of P's failure to appear
Cause for dismissal
Counterclaim barred
Main Action dismissed but Compulsory
Counterclaim not dismissed. D gets judgment
8
 CIVIL PROCEDURE
Cause for dismissal with prejudice
Main action dismissed and Compulsory
counterclaim also dismissed
Process
Submit position papers and affidavits 10 days
from receipt of pre-trail order
L: on those affidavits hinge your entire case so
pray (Angel of God, hindi motion) that the court
ask for clarificatory affidavits (motu proprio)
Extension of time not allowed
You figure it out.
Contents of Affidavits
State facts
Show competence to testify
Show admissibility of witness
Absent these: affidavits excluded and lawyer
may be subject to disciplinary action
Prohibited Motions
MTD on sec. 16 except lack of jurisdiction
Bill of particulars
New judgment
Periods
No time period from beginning to end but
mandatory periods in between
Rule 2
Actions in General
Section 1. Ordinary civil actions, basis of. -
Every ordinary civil action must be based on a
cause of action.
Section 2. Cause of action, defined. - A cause of
action is the act or omission by which a party
violates a right of another.
Section 3. One suit for a single cause of action.
- A party may not institute more than one suit
for a single cause of action.
Section 4. Splitting a single cause of action;
effect of. - 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.
Section 5. Joinder of causes of action. - A party
may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may
have against an opposing party, subject to the
following conditions:
Prepared by:
AKSYON PARTY
(a) The party joining the causes of
action shall comply with the rules on joinder of
parties;
(b) The joinder shall not include special
civil actions or actions governed by special
rules;
(c) Where the causes of action are
between the same parties but pertain to different
venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided
one of the causes of action falls within the
jurisdiction of said court and the venue lies
therein; and
(d) Where the claims in all the causes
of action are principally for recovery of money,
the aggregate amount claimed shall be the test
of jurisdiction.
Section 6. Misjoinder of causes of action. -
Misjoinder of causes of action is not a ground
for dismissal of an action. A misjoined cause of
action may, on motion of a party or on the
initiative of the court, be severed and proceeded
with separately.
Joseph v. Bautista, 170 SCRA 540 ('89)
FACTS: Joseph was a paying
passenger in a cargo truck. The cargo
truck tried to overtake a tricycle
proceeding in the same direction. At
the same time, a pick-up truck tried to
overtake the cargo truck, thus the
cargo truck was forced to veer towards
the shoulder of the road & rammed a
mango tree in the process. Joseph
sustained a bone fracture in one of his
legs. Joseph sued the owner of the
cargo truck for breach of the contract
of carriage & the owner of the pick-up
for quasi-delict for injuries he
sustained. The owner of the pick-up
paid Joseph the amount he was
claiming thru a settlement agreement.
Joseph still wants to maintain the
action vs. the truck owner claiming
that he still has another cause of
action vs. the latter, for breach of
contract of carriage.
HELD: When there is only one delict
or wrong (i.e. one injury), there is only
one cause of action regardless of the
number of rights that may have been
violated belonging to one person
(violation of contract of carriage &
quasi-delict).
9
 CIVIL PROCEDURE
The singleness of a cause of
action lies in the singleness of the
delict or wrong violating the rights of
one person. Nevertheless, if only one
injury resulted fr. several acts, only 1
cause of action arises. In this case,
the petitioner sustained a single injury
on his person. That vested in him a
single cause of action, albeit w/ the
correlative rights of action vs. the
different respondents thru appropriate
remedies allowed by law.
The resps. having been
found to be solidarily liable to the pet.,
the full payment made by some of the
solidary debtors & their subsequent
release fr. any & all liability to pet.
inevitably resulted in the
extinguishment & release fr. liability of
other solidary debtors.
JOSEPH V BAUTISTA: NCC 2177: Bar v
double recovery
City of Bacolod v. SM Brewery 29 SCRA
FACTS: The City of BCD passed an
ordinance imposing a bottling tax for
every case of soft drinks sold. For
delinquency in paying said tax, a
surcharge was to be imposed. For
failure to pay said taxes on time, City
of BCD sued SMB. The SC ruled in
favor of the City & ordered SMB to pay
taxes. Later, the City of BCD filed a
second complaint vs. SMB to recover
the surcharges it forgot to claim in the
first case.
HELD: SMB’s failure to pay the taxes violated
the City’s right to be paid. Thus, there was a
single cause of action. However, under the
ordinance, the City became entitled to 2 reliefs:
payment of taxes & the corresponding
surcharges. The act of the City of filing
separate complaints for each of the two reliefs
related to the same single cause of action
resulted in the splitting of the cause of action.
Under the rule that a party may not institute
more than 1 suit for a single cause of action, the
City’s 2nd complaint is barred by res judicata.
Bayang v. CA, 148 SCRA 91 ('87)
FACTS: Bayang sued Biong for
Quieting of Title w/ damages in 1969,
w/c resulted in a ruling in his favor in
1978. In 1978, Bayang sued Biong
again but this time for the income
Prepared by:
AKSYON PARTY
earned fr. the land while it was still in
the latter’s possession fr. 1970 to
1978.
HELD: The subject matter in the 2
cases are essentially the same as the
income is only a consequence or
accessory of the disputed property.
The claim for income fr. the land is
incidental to, & should have been
raised by Bayang in his earlier claim
for ownership of the land. As the filing
of the 2 cases constitute splitting of
the cause of action, the 2 nd case is
barred by the 1st. Also, for about 7
years, the petitioner made no move
at all to amend his complaint to
include a claim for the income
supposedly received by private resp.
during that period. He did not make
the proper claim at the proper time &
in the proper proceeding. Whatever
right he might have had is now
deemed waived bec. of his negligence.
Enriquez v. Ramos, 7 SCRA 265 ('63)
FACTS: Enriquez sold to Ramos 11
parcels of land for P101,000. Ramos
paid 5,000 as down payment.( 2,500-
cash, 2,500-check). To secure the
96,000 balance, Ramos mortgaged the
land to the vendors. Enriquez filed a
complaint vs. Ramos for stopping
the ;payment of the check. Enriquez
filed another case for foreclosure of
the mortgage due to Ramos’ failure to
comply w/ it’s conditions. Ramos now
moves to dismiss the 2nd case on
grounds that Enriquez split the cause
of action.
HELD: An examination of the 1 st
complaint shows it was based on
appellant’s having unlawfully stopped
payment of the check for P2,500 she
had issued in favor of appellees; while
the complaint in the first action is for
the non-payment of the balance of
96,000 guaranteed by the mortgage.
The claim for 2,500 was therefore a
distinct debt not covered by security;
the security was for the balance of the
purchase price amounting to 96,000.
Therefore, there is no splitting of C of
A in this case.
Cuevas v. Pineda, 143 SCRA 674 ('86)
10
 CIVIL PROCEDURE
FACTS. Priv. Resps. filed a complaint
in the CFI for quieting of title alleging
that they are the heirs of Igaya &, as
such, are the rightful owners of the
parcels of land. They came to know
that petitioners have caused the
preparation of a table-survey plan of
the lots in the name of Cancio
(prepared by Roxas for Cuevas).
Petitioners then filed an Application
for Free Patent for the lots, w/c was
granted. Priv. resps. filed an
administrative protest w/ the Bureau
of Lands & Register of Deeds, seeking
the recall & cancellation of the free
patents. They then prayed for the
issuance of writ of preliminary
injunction to declare null & void the
free patents & be declared as the
absolute owners. This was granted
upon the posting of a bond.
Meanwhile, a hearing on the protest
did not materialize as the ct. had
already issued the writ of preliminary
injunction. Did the ct. actually acquire
jurisdiction over the complaint?
HELD: Resps. have assumed
inconsistent positions. After filing an
administrative protest w/ the BoL,
claiming the lands belong to them,
they questioned the jurisdiction w/c
they invoked of that same agency,
claiming that it is the cts. & not the
administrative tribunal that should
settle the issue. At this time, both
parties had already invoked the
jurisdxn. of BoL, alleging that since the
BoL, w/c had jurisdiction over the
case, had already issued the free
patents, the land had become private.
Orderly procedure requires that BoL,
on a matter w/in its competence &
expertise, should first resolve the
issues before it.
CUEVAS V PINEDA: Petition for Certiorari
was dismissed on the ground of non-exhaustion
of administrative remedies, not for lack of cause
of action: was dismissed due to primary
administrative jurisdiction = failure to undergo
condition precedent
L: We are concerned with law, not with justice,
which is why we're not called the College of
Justice but the College of Law. Technique lang
lahat iyan.
LECTURE ON ACTIONS
Prepared by:
AKSYON PARTY
Action : Remedy /
Process
Cause of Action : Basis to file
an action Rule 2 sec. 2
Prohibition against splitting a single cause of
action:
1. Prevent multiplicity of suits
1. Prevent indirect violation / avoidance of res
judicata rule
Remedy: Instead, file cause of action and ask
for different reliefs
BAYANG: File supplemental pleading for new
relief or file amendment to pleading to introduce
new facts which arose after filing
WORD GAME:
REMEDY: Procedure
RELIEF: Specific things asked from court or
right granted by a specific court due to violation
of another right
Rule 3
Parties
Section 1. Who may be parties; plaintiff and
defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a
civil action. The term “plaintiff’ may refer to
the claiming party, the counter-claimant, the
cross-claimant, or the third (fourth etc.)-party
plaintiff. The term “defendant” may refer to the
original defending party, the defendant in a
counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
Section 2. Parties in interest. - A real party in
interest is the party who stands to be benefited
or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules,
every action must be prosecuted or defended in
the name of the real party in interest.
Section 3. Representatives as parties. - Where
the action is allowed to be prosecuted or
defended by a representative or someone acting
in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be
deemed to be the real party in interest. A
representative may be a trustee of an express
trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued
without joining the principal except when the
11
 CIVIL PROCEDURE
contract involves things belonging to the
principal.
Section 4. Spouses as parties. - Husband and
wife shall sue or be sued jointly, except as
provided by law.
Section 5. Minor or incompetent persons. - A
minor or a person alleged to be incompetent,
may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a
guardian ad litem.
Section 6. Permissive joinder of parties. - All
persons in whom or against whom any right to
relief in respect to or arising out of the same
transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in
these Rules, join as plaintiffs or be joined as
defendants, in one complaint, where any
question of law or fact common to all such
plaintiffs or to all such defendants, may arise in
the action; but the court may make such orders
as may be just to prevent any plaintiff or
defendant from being embarrassed or put to
expense in connection with any proceedings in
which he may have no interest.
Section 7. Compulsory joinder of indispensable
parties. - Parties in interest without whom no
final determination can be had of an action shall
be joined either as plaintiffs or defendants.
Section 8. Necessary party. - A necessary party
is one who is not indispensable but who ought to
be joined as a party if complete relief is to be
accorded as to those already parties, or for a
complete determination or settlement of the
claim subject of the action.
Section 9. Non-joinder of necessary parties to
be pleaded. - Whenever in any pleading in
which a claim is asserted a necessary party is
not joined, the pleader shall set forth his name,
if known, and shall state why he is omitted.
Should the court find the reason for the
omission unmeritorious, it may order the
inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
The failure to comply with the order for
his inclusion, without justifiable cause shall be
deemed a waiver of the claim against such party.
The non-inclusion of a necessary party
does not prevent the court from proceeding in
the action, and the judgment rendered therein
shall be without prejudice to the rights of such
necessary party.
Prepared by:
AKSYON PARTY
section 10. Unwilling co-plaintiff. - If the
consent of nay party who should be joined as
plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated
in the complaint.
Section 11. Misjoinder and non-joinder of
parties. - Neither misjoinder or non-joinder of
parties is ground for dismissal of an action.
Parties may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage of the action and on such
terms as are just. Any claim against a misjoined
party may be severed and proceeded with
separately.
Section 12. Class suit. - When the subject
matter of the controversy is one of common or
general interest to many persons so numerous
that it is impracticable to join all as parties, a
number of them which the court finds to be
sufficiently numerous and representative as to
fully protect the interest of all concerned may
sue or defend for the benefit of all. Any party in
interest shall have the right to intervene to
protect his individual interest.
Section 13. Alternative defendants. - Where the
plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any
or all of them as defendants in the alternative,
although a right to relief against one may be
inconsistent with a right of relief against the
other.
Section 14. Unknown identity or name of
defendant. - Whenever the identity or name of a
defendant is unknown, he may be sued as the
unknown owner, heir, devisee, or by such other
designation as the case may require; when his
identity or true name is discovered, the pleading
must be amended accordingly.
Section 15. Entity without juridical personality
as defendant. - When two or more persons not
organized as an entity with juridical personality
enter into a transaction, they may be sued under
the name by which they are generally or
commonly known.
In the answer of such defendant the
names and addresses or persons composing said
entity must all be revealed.
Section 16. Death of party, duty of counsel. -
Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be
the duty of his counsel to inform the court
12
 CIVIL PROCEDURE
within thirty (3) days after such death of the fact
thereof, and to give the name and address of his
legal representative or representatives. Failure
of counsel to comply with this duty shall be a
ground for disciplinary action.
The heirs of the deceased may be
allowed to be substituted for the deceased,
without requiring the appointment of an
executor or administrator and the court may
appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said
legal representative or representatives to appear
and be substituted within a period of thirty (30)
days from notice.
If no legal representative is named by
the counsel for the deceased party, or if the one s
named shall fail to appear within the specified
period, the court may order the opposing party
within a specified time, to procure the
appointment of an executor or administrator for
the estate of the deceased and the latter shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs.
Section 17. Death or separation of a party who
is a public officer. - When a public officer is a
party in an action in his official capacity and
during its pendency dies, resigns, or otherwise
ceased to hold office, the action may be
continued and maintained by or against his
successor if, within thirty (30) days after the
successor takes office or such time as may be
granted by the court, it is satisfactorily shown to
the court by any party that there is a substantial
need for continuing or maintaining it and that
the successor adopts or continues or threatens to
adopt or continue the action of his predecessor.
Before a substitution is made, the party or officer
to be affected, unless expressly assenting thereto,
shall be given reasonable notice of the
application therefor and accorded an opportunity
to be heard.
Section 18. Incompetency or incapacity. - If a
party becomes incompetent or incapacitated, the
court, upon motion with notice, may allow the
action to be continued by or against the
incompetent or incapacitated person assisted by
his legal guardian or guardian ad litem.
Section 19. Transfer of interest. - In case of any
transfer of interest, the actin may be continued
by or against the original party, unless the court
upon motion directs the person to whom the
interest is transferred to be substituted in the
action or joined with the original party.
Prepared by:
AKSYON PARTY
Section 20. Action on contractual money
claims. - When the action is for recovery of
money arising from contract, express or
implied , and the defendant dies before entry of
final judgment in the court in which the action
was pending at the time of such death, it shall
not be dismissed but shall instead be allowed to
continue until entry or final judgment. A
favorable judgment obtained by the plaintiff
therein shall be enforced in the manner
especially provided in these Rules for
prosecuting claims against the estate of a
deceased person.
Section 21. Indigent party. - A party may be
authorized to litigate his action, claim or defense
as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the
party is one who has no money or property
sufficient and available for food, shelter and
basic necessities for himself and his family.
Such authority shall include an
exemption from payment of docket and other
lawful fees, and of transcripts of stenographic
notes which the court may order to be furnished
him The amount of the docket and other lawful
fees which the indigent was exempted from
paying shall be alien on any judgment rendered
in the case favorable to the indigent, unless the
court otherwise provides.
Any adverse party may contest the
grant of such authority at any time before
judgment is rendered by the trial court. If the
court should determine after hearing that the
party declared as an indigent is in fact a person
with sufficient income or property, the proper
docket and other lawful fees shall be assessed
and collected by the clerk of court. If payment is
not made within the time fixed by the court,
execution shall issue or the payment thereof;
without prejudice to such other sanctions as the
court may impose.
Section 22. Notice to the Solicitor General. - In
any action involving the validity of any treaty,
law, ordinance, executive, order, presidential
decree, rules or regulations, the court in its
discretion, may require the appearance of the
Solicitor General who may be heard in person or
through a representative duly designated by him.
Filipinas Industrial Corp. v. Sn. Diego, 23
SCRA 706 ('68)
FACTS: Pastor Ago filed a complaint
vs. petitioner in his name as atty. in
13
 CIVIL PROCEDURE
fact of Laiz. Petitioner filed a MTD on
the ground that action was not
brought in the name of the real party
in interest.
HELD: Under the RoC, every action
must be brought in the name of the
real party in interest. This provision is
mandatory. The real party in interest
is the party who would be benefited or
injured by the judgment or is the party
entitled to the avails of the suit. An
atty.-in-fact is NOT a real party in
interest; there is no law permitting an
action to be brought by an atty.-in-fact
& hence, an action brought by him
cannot be maintained. Even if the
principal authorizes his agent to
commence actions in a ct. for & in
behalf of the principal, such action
must still be filed in the name of the
principal who is the real party in
interest.
FILIPINAS: Case dismissed due to lack of
cause of action; not due to non-joinder of
parties. Atty-in-fact can't represent principal in
the case since atty-in-fact was not the one
injured
REPRESENTATIVE PARTIES: Not the real
parties but are allowed by law or the Rules to
sue on behalf of the principal
Example of representative party authorized by
the Rules: Class suit
Plaintiffs sue in 2 capacities: 1) themselves; 2)
on behalf of the parties of the class or those with
an interest in the subject matter of the suit but
are too numerous to be brought in the suit
(OPOSA V FACTORAN)
L: What if defendant is a volleyball player of a
sportsfest and the plaintiff wants to sue all
participants of the sportsfest?
A: Identify all and do not apply sec. 15 since
identifiable and also a volleyball team is not a
proper juridical entity
JOINDER OF PARTIES (Sec. 6) not necessary
that parties be indispensable or necessary parties
a. Necessary or proper party (Sec. 8) Case may
proceed, only plaintiff may not be able to obtain
complete relief
Aranico-Rabino v. Aquino, 80 SCRA 254 ('77)
Facts: Petitioners filed a complaint for
recovery of a lot w/c priv. resp. claims
to be owned by one Meimban & his
Prepared by:
AKSYON PARTY
successors-in-interest. The ct. ordered
the complaint be amended to include
all the heirs of the late Meimban in
order that there will be a final
adjudication of the rights of the
parties in the case. Counsel for
petners. refused.
Held: The heirs of Meimban are
indispensable parties who should be
included in the complaint in order that
there will be a final adjudication of the
rights of the parties in their case.
ARANICO: Dismissal not due to failure to
implead a party but due to contumacious refusal
to comply with the order of the court; misjoiner
or non-joinder is not basis for the dismissal of
case
Laperal Dev. Co. v. CA, 223 SCRA 261 ('93)
Facts: Counsel sought recovery of
atty.’s fees fr. Sunbeams Foods
referred to in the complaint as “Mr.
Laperal’s Corporation” but w/c was not
joined by name as a party-defendant.
Held: Sunbeams should have been
joined as a party-deft. in order that the
judgment of the lower ct. could legally
affect it. But even if it was not
impleaded, the ct. could still validly
proceed w/ the case bec. Sunbeams
was not an indispensable party but
only a proper party. A proper party is
one w/c ought to be a party if
complete relief is to be accorded as
between those already parties. A
party is indispensable if no final
determination can be had of an action
unless it is joined either as plff. or deft.
FILIPINAS INDUSTRIAL - Indispensable
LAPERAL DEVT V CA - Proper party.
Sunbeam only a necessary party and therefore
not a party to the compromise agreement. But
atty can't collect atty's fees since there was a
udicial admission as to waiver of all claims
Barfel Dev. Co. v. CA, 223 SCRA 268 ('93)
Facts: Barfel (seller) & Reginas
(seller) concluded an agreement to
buy/sell 2 parcels of land w/c the
former warranted to be free fr. liens &
encumbrances except for the BPI
mortgage. Reginas found out later
14
 CIVIL PROCEDURE
that there was a second mortgage in
favor of PISO Bank. Things went sour
& Reginas found out that Barfel was
selling the land to other parties.
Reginas brought suit. Reginas filed an
amended complaint impleading PISO
as additional party.
Held: The reason for the amendment
impleading PISO is to compel the latter
to accept payment & release the 2 nd
mortgage thereby enabling Barfel to
deliver to Reginas the titles free fr. all
liens & encumbrances. But, PISO is
NOT a party to the contracts w/c are
the subject of the action for specific
performance & damages between
Barfel & Reginas. PISO is not a party
to the transactions & is thus not an
indispensable party. PISO is a 2 nd
mortgagee, whatever the outcome of
the litigation between Reginas &
Barfel. A “real interest” means a
present substantial interest, as
distinguished fr. a mere expectancy or
a future, contingent, subordinate or
consequential interest. Complete
relief by Reginas vs. Barfel can be had
even if PISO was not impleaded as a
party deft in the original case.
Also, amendment sought is a
substantial one. Priv. resp. will have to
present additional evidence on PISO.
Effect would be to start trial anew w/
parties recasting theories of the case.
BARFEL: disclosure, not existence of 2nd
mortgage is the issue. The 2nd mortgagee is
liable to plaintiff in Contract to Purchase. Not a
proper party. Mortgages follow property
wherever it goes, thus, PISO can't become a
party since there is no cause of action against it.
b. Indispensable (Sec. 7) If not impleaded, case
cannot proceed since there can be no final
determination
Oposa v. Factoran, 224 SCRA 792 ('93)
Facts: Plaintiffs-minors duly
represented & joined by their parents
instituted this taxpayers’ class suit vs.
the Secretary of DENR to order the
latter to cancel of timber license
agreements (TLA) & to cease & desist
fr. renewing & granting new TLAs. The
suit was filed for themselves & others
who are equally concerned about the
preservation of natural resources but
Prepared by:
AKSYON PARTY
are so numerous that it is
impracticable to bring them all before
the ct.. The minors also asseverate
that they represent their generation as
well as the generations yet unborn.
Held: The case is a class suit: the
subject matter of the complaint is of
common & general interest not just
several but to all citizens of the Phils.
Parties are so numerous that it is
impracticable, if not totally impossible,
to bring them all before the ct..
Plaintiffs are so numerous &
representative enough to insure full
protection of all concerned interests.
Petitioner-minors can, for themselves,
for others of their generation, & for the
succeeding generation, file a class suit. Their
personality to sue in behalf of succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the
right to a balanced & healthful ecology is
concerned. Every generation has a
responsibility to preserve the rhythm & harmony
for the full enjoyment of a balanced & healthful
ecology. The minor’s assertion of their right to a
sound environment constitutes, at the same time,
the performance of their obligation to ensure the
protection of that right for the generations to
come.
OPOSA V FACTORAN. Are unborn children w/
capacity to be party to a suit? No, but purposes
of this class suit, SC used intergenerational
responsibility argument. Limit Consti Art 11
sec. 16 to ecological suits. L's note: no legal
basis, natural law only. Also, other Art. 11
provisions hortatory and not basis for a class
action suit. Not all taxpayers' suits are class
suits
L: Is the environment property? Note: not
need to be property to be subject of a suit.
Mathay v. Consolidated Bank, 58 SCRA 559
('74)
Facts: The stockholders of
Consolidated Mines filed a class suit
vs. the Board of Organizers of
Consolidated Bank of alleged
anomalies in the incorporation of the
latter to w/c the stockholders were
subscribers.
Held: The necessary elements for the
maintenance of a class suit are: (1)
15
 CIVIL PROCEDURE
the subject matter of the controversy
be one of common or general interest
to many persons; & (2) such persons
be so numerous as to make it
impracticable to bring them all in ct..
An action does not become a class suit
bec. it is designated as such in the
pleadings: it depends upon the
attending facts & the complaint, or
other pleading initiating the class
action should allege the existence of
the necessary facts.
As to the 1st element: the
interest that appellants-plff. & Eg. Co-owner sues for partition of property
intervenors & the CMI stockholders
had in the subject matter was several,
not common or general in the sense
required by law. Each one had a
determinable interest, each had a
right, if any, only to his respective
portion of the stocks None of them
had an interest, or a right to, the stock
to w/c another was entitled.
As to the 2 nd element, the
number of said CMI subscribing
stockholder was not stated in the
complaint. Thus, the ct. could not
infer or make sure that the parties
before it were sufficiently numerous &
representative.
Veterans Manpower & Protective Services v,
CA, 214 SCRA 286 ('92)
FACTS: Petitioner filed a complaint vs.
the PC Chief & PC-SUSIA, government
agencies regulating security services,
to compel said agencies to issue
licenses to petitioner.
HELD: The State may not be sued w/o
its consent. Invoking this rule, the PC
Chief & PC- SUSIA, being
instrumentalities of the national gov’t.
exercising a primarily governmental
function may not be sued w/o the
Gov’t’s consent. This doctrine is also
applicable to complaints filed vs.
officials of the state for acts allegedly
performed by them in the discharge of
their duties.
A public official may sometimes
be held in his personal or private
capacity if he acts in bad faith or
beyond his authority or jurisdiction. In
this case, however, the acts were
performed as part of official duties
w/o malice, gross negligence or bad
faith. Thus, no recovery may be had
Prepared by:
AKSYON PARTY
vs. them in their private capacity as
well.
LECTURE ON PARTIES: Remedies available
for certain situations. L at his most practical.
1. P not the real party in interest but act as a
plaintiff
Counsel for D: MTD since no cause of action.
No injury v his person
1. X an Indispensable party but P refuses to
bring him in as an indispensable party
owned in common; thus, he must implead all co-
owners in order that final determination might
be made. What if P sues only 1 co-owner?
(ARANICO-RABINO)
Counsel for D: Plan A) Motion to implead the
other co-owners
Plan B) If court refuses to implead the other co-
owners, file MTD for lack of due process for
failure to implead an indispensable party
Plan C) Go to CA for certiorari on grounds of
grave abuse of discretion on part of trial court
judge for refusing to iplead indispensable party
w/o whom there can be no final determination of
the case.
To determine whether or not a party is
indispensable:
Proper joinder of parties: Parties necessary
Permissive joinder of parties: not necessarily
imply that parties indispensable or necessary
Rule 3 sec. 6 same transaction or common
question of law or fact is involved
1. Party becomes insane
Counsel for D: Rule 3 sec. 18 file motion to
bring guardian of insane party brought in as a
representative. If insane > 18 years old, ask for
guardian ad litem
1. Party dies. His counsel duty bound to inform
court of such fact and of his legal representative
If there is no rep, court will order Counsel for D
to procure appointment of executor or
administrator
NOTE: Personal action: remedy filed where
cause of action involves personal property or
right. Subject matter involves personal property
and others. Not a real action which involves
title to or possession of real property. Important
for proper venue
16
 CIVIL PROCEDURE
Rule 4
Venue
Section 1. Venue of real actions. - Actions
affecting title to or possession of real property,
or interest therein, shall be commenced and
tried in the proper court which has jurisdiction
over the area wherein the real property involved,
or a portion thereof, is situated.
Forcible entry and detainer actions
shall be commenced and tried in the municipal
trial court of the municipality or city wherein
the real property involved, or a portion thereof,
is situated.
Section 2. Venue of personal actions. - All other
actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides,
or where the defendant or any of the principal
defendants resides, or in the case of a non-
resident defendant where he may be found, at
the election of the plaintiff.
Section 3. Venue of actions against
nonresidents. - If any of the defendants does not
reside and ins not found in the Philippines, and
the action affects the personal status of the
plaintiff, or any property of said defendant
located in the Philippines, the action may be
commenced and tried in the court of the place
where the plaintiff resides, or where the property
of any portion thereof is situated or found.
Section 4. When Rule not applicable. - This
Rule shall not apply -
(a) In those cases where a specific rule
or law provides otherwise; or
(b) Where the parties have validly
agreed in writing before the filing of the action
on the exclusive venue thereof.
Diaz v. Adiong, 219 SCRA 631 ('93)
Facts: Certain public officers
instituted separate criminal & civil
complaints arising fr. libel vs. the
publisher & editor of the Mindanao
Kris, a newspaper of general
circulation in Cotabato City in the RTC
of Marawi City. Diaz claims it should
not be in Marawi since the resps.
didn’t hold office there; nor was the
article published there.
Prepared by:
AKSYON PARTY
Held: An offended party who is at the
same time a public official can only
institute an action arising fr. libel in 2
venues: the place where he holds
office & the place where the alleged
libelous articles were printed & first
published. In this case, although it is
indubitable that venue was improperly
laid, unless & until the deft. objects to
the venue in a MTD prior to a
responsive pleading, the venue cannot
truly be said to have been improperly
laid since, for all practical intents &
purposes, the venue through
technically wrong may yet be
considered acceptable to the parties
for whose convenience the rules on
venue had been devised.
The laying of venue is
procedural rather than substantive,
relating as it does to jurisdiction of
the ct. over the person rather than the
subject matter. Venue relates to trial
not to jurisdiction. The rule, therefore,
is that objections to improper venue
must be made in a MTD before any
responsive pleading is filed (Sec. 1
Rule 16). Otherwise, it may be
deemed waived.
LECTURE ON VENUE:
Exceptions:
1. non-resident
a) where P resides or
a) b) where property or port6ion thereof is
situated or found
1. when a specific Rule or Law provides
otherwise
1. when parties validly agreed in writing before
filing of action in the exclusive venue thereof
L: state in agreement "shall exclusively be" or
"shall only be"; if not phrased this way, can still
sue elsewhere
Person dies (governed by Rule 87) action
dismissed in cases where decedent is required to
personally perform his obligation, where his
estate or his heirs' defense is that the relief
cannot be complied with. If action is for a sum
of money, file it as a creditor in the settlement of
estate proceedings
Pauper litigant: one who has no money or
property sufficient and available for food, shelter
and basic necessities is exempted from payment
of fees.
Counsel for D: contest indigent status of party
by filing a motion to reverse order declaring
party as pauper litigant
17
 CIVIL PROCEDURE

Definition
THE CLAIM-ANSWER-COUNTERCLAIM- Rule 6, Sec. 1.
REPLY-CROSSCLAIM-LABYRINTH Pleadings are the written statements of
P files Complaint So the respective claims and defenses of the parties
D files answer submitted to the court for appropriate judgment
D
files counterclaim Allowed Pleadings
So P files Answer to counterclaim Rule 6, Sec. 2
P then files Amended Complaint due to new The claims of a party are asserted in a
matters raised complaint, counter-claim, cross-claim, third
So (fourth, etc.) party complaint, or complaint - in -
D files an amended answer called a reply intervention.
The defenses of a party are alleged in
A third guy files a CROSSCLAIM the answer to the pleading asserting a claim
against D against him.
So An answer may be responded to by a
D files an answer to the crossclaim reply.
And Liberal construction
he files his own crossclaim against Third
While P files his Answer to the 3rd Party Gerales v. CA, 218 SCRA
Complaint 638 ('93)

Facts: Counsel for petitioner: Sir

THE OGDEN CASE Luigi, este, Camacho pala) A vehicular
accident occurred resulting in
respondent filing a case for damage to
OGDEN-BECTEL property. Two cases were filed,
FILIPINO LANDOWNERS criminal & civil. The crim. case was
Cause of action dismissed beech. the parties entered
X breach of contract into an amicable settlement. The civil
case continued but resp. was declared
in default for failure to file an answer.
RULE 5
What respondent did was merely to
VENUE send a letter to the Clerk of Court
informing the ct. about the amicable
settlement.
Section 1. Uniform procedure. - The procedure
Held: The trial ct. should have considered the
in the Municipal Trial Courts shall be the same
letter as a responsive pleading even if it lacks
as in the Regional Trial Courts, except (a) where
the formalities required by law. The letter
a particular provision expressly or impliedy
contains an affirmative defense, i.e. mutual
applies only to either of said courts, or (b) in
settlement w/c, if proven in preliminary hearing
civil cases governed by the Rule on Summary
would constitute a meritorious defense barring
Procedure.
pet. fr. recovery. Pleadings as well as remedial
laws should be liberally construed in order that
Section 2. Meaning of terms. - The term
the litigant may have ample opportunity to prove
“Municipal Trial Courts” as used in these rules
their respective claims & to prevent possible
shall include Metropolitan Trial Courts,
denial of substantive due process. Litigations
Municipal Trial Courts in Cities, Municipal
should be decided on the merits not merely on
Trial Courts, and Municipal Circuit Trial
technicality.
Courts.
How allegations made
Rule 6 In General
Pleadings Rule 8, Sec. 1
(Substantial Requirements) Every pleading shall contain in a
methodical and logical form, a plain, concise
NOTES OF ANZIE-GIRL: and direct statement of the ultimate facts on
PLEADINGS which the party pleading relies for his claim or

Prepared by:
AKSYON PARTY
18
 CIVIL PROCEDURE
defense, as the case may be, omitting the
statement of mere evidentiary facts.
If a defense relied on is based on law,
the pertinent provisions thereof and their
applicability to him shall be clearly and
concisely stated.
Capacity
Rule 8, Sec. 4
Facts showing the capacity of a party to
sue or be sued or the authority of a prty to sue or
be sued in a representative capacity or the legal
existence of an organized association of persons
that is made a party, must be averred. A prty
desiring to raise an issue as to the legal
existence of any party or the capacity of any
party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as are
peculiarly within the pleader's knowledge.
Alternative claims and defenses
Rule 8, Sec. 2
A party may set forth two or more
statements of a claim or defense alternatively or
hypothetically, either in one cause of action or
defense or in separate causes of action or
defenses. When two or more statements are
made in the alternative and one of them if made
independently would be sufficient, the pleading
is not made insufficient by the insufficiency of
one or more of the alternative statements.
Conditions precedent
Rule 8, Sec. 3
In any pleading a general averment of
the performance or occurrence of all conditions
precedent shall be sufficient.
Fraud and Mistake
Rule 8, Sec. 5
In all averments of fraud or mistake,
the circumstances constituting the fraud or
mistake must be stated with particularity.
Malice, intent, knowledge or other condition of
the mind of a person may be averred generally.
Condition of mind
Rule 8, Sec. 5 supra.
Judgments
Rule 8, Sec. 6
In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision
without setting forth the matter showing
jurisdiction to render it.
Prepared by:
AKSYON PARTY
Official Documents
Rule 8, Sec. 9
In pleading an official document or
official act, it is sufficient to aver that the
document was issued or the act done in
compliance with law.
Complaint
Defined and in general
Rule 6, Sec. 3
The complaint is the pleading alleging
the plaintiff's cause or causes of action. The
names and residences of the plaintiff and
defendant must be stated in the complaint.
Tantuico v. Republic, 204 SCRA 428 ('91)
Facts: A case was filed by the PCGG
vs. the Marcoses & Tantuico, the latter
on the theory that he collaborated &
aided the Marcoses in concealing the
ill-gotten wealth. Tantuico filed a
motion for a bill of particulars. The
SolGen opposed the motion saying
that the matters sought by Tantuico
are evidentiary in nature & that the
complaint was sufficient as it contains
the essential elements of a cause of
action.
Held: A complaint is defined as a
concise statement of the ultimate
facts constituting the plaintiff’s cause
or causes of action. Its office or
purpose is to inform the defendant
clearly & definitely of the claims made
vs. him so that he may be prepared to
meet the issues at trial. The
complaint should inform the
defendant all the material facts on w/c
the plaintiffs rely to support his
demand The complaint should inform
the defendant of all the material facts
on w/c the plaintiff relies to support his
demand; it should state the theory of
a cause of action w/c forms the bases
of the plaintiffs claim of liability. The
rules on pleading speak of two (2)
kinds of facts: the first, the "ultimate
facts", & the second, the "evidentiary
facts." The term "ultimate facts" as
used in Sec. 3, Rule 3 of the Rules of
Court, means the essential facts
constituting the plaintiffs cause of
action.
19
 CIVIL PROCEDURE
TEST: A fact is essential if it cannot be
stricken out w/o leaving the statement
of the cause of action insufficient....
Ultimate facts are important &
substantial facts w/c either directly
form the basis of the primary right &
duty, or w/c directly make up the
wrongful acts or omissions of the
defendant. The term does not refer to
the details of probative matter or
particulars of evidence by w/c these
material elements are to be
established. It refers to principal,
determinate, constitutive facts, upon
the existence of w/c, the entire cause
of action rests. "Evidentiary facts"
are those facts w/c are necessary for
determination of the ultimate facts;
they are the premises upon w/c
conclusions of ultimate facts are
based.
Where the complaint states ultimate facts
that constitute the three (3) essential elements of
a cause of action, namely: (1) the legal right of
the plaintiff, (2) the correlative obligation of the
defendant, & (3) the act or omission of the
defendant in violation of said legal right, the
complaint states a cause of action, otherwise, the
complaint must succumb to a motion to dismiss
on that ground of failure to state a cause of
action. However, where the allegations of the
complaint are vague, indefinite, or in the form
of conclusions, the proper recourse would be,
not a motion to dismiss, but a motion for a bill
of particulars.
Allegations
In general
Rule 8, Sec. 1
Every pleading shall contain in a
methodical and logical form, a plain, concise
and direct statement of the ultimate facts on
which the party pleading relies for his claim or
defense, as the case may be, omitting the
statement of mere evidentiary facts.
If a defense relied on is based on law,
the pertinent provisions thereof and their
applicability to him shall be clearly and
concisely stated.
Metropolitan Bank v. Quilts, 222 SCRA 486
('93)
Facts: The property of Quilts was
mortgaged to Metrobank to secure a
Prepared by:
AKSYON PARTY
personal loan of its pres. Dizon. Quilts
asked for the cancellation of the
mortgage on the ground that Dizon
had no authority to mortgage the
property. Metrobank refused. Quilts
filed an action vs. Metrobank for the
annulment & cancellation of the
mortgage. Metrobank moved to
dismiss the complaint for failure to
state a cause of action as the
complaint merely contained a single
par. alleging that Metrobank
committed illegal acts vs. Quilts.
Held: The complaint filed vs.
Metrobank does not contain sufficient
COA. The complaint expresses legal
conclusions & not averments or
allegations of ultimate facts. The
ultimate facts upon w/c such
conclusions rest must be alleged. In
CAB, the bare allegations neither
establishes any right or COA on part of
the plaintiff.
Mathay v. Consolidated Bank, 58
SCRA
Facts: This is the classic case of the
class suit filed by Mathay vs.
Consolidated Bank. Mathay & Co.
averred in the complaint that they
were denied the right to subscribe
shares in the Bank. All in all, the
complaint filed by Mathay contained 6
COA’s .
Held: Bare allegations that one is entitled to
something is an allegation of a conclusion.
Such kind of allegation adds nothing to the
complaint it being necessary to plead
specifically the facts upon w/c such conclusion
is founded. In CAB, the pet. did not show their
qualifications to being stockholders nor their
right to subscribe the shares. Did not show how
they acquired the right, the extent of its exercise
& amount of shareholdings that they are entitled
to.
Capacity of parties
Rule 8, Sec. 4
Facts showing the capacity of a party to
sue or be sued or the authority of a prty to sue or
be sued in a representative capacity or the legal
existence of an organized association of persons
that is made a party, must be averred. A prty
desiring to raise an issue as to the legal
existence of any party or the capacity of any
20
 CIVIL PROCEDURE
party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as are
peculiarly within the pleader's knowledge.
Actions based upon a document
Rule 8, Sec. 7
Whenever an action or defense is based
upon a written instrument or document, the
substance of such instrument or document shall
be set forth in the pleading and the original or a
copy thereof shall be attached to the pleading as
an exhibit, which shall be deemed to be a part of
the pleading, or said copy may with like effect
be set forth in the pleading.
Answer
Defined and in general
Rule 6, Sec. 4
An answer is a pleading in which a
defending party sets forth his defenses.
Types of Defenses
Negative
Rule 6, Sec. 5(a)
Defenses may either be negative or
affirmative.
(a) A negative defense is the specific
denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause or
causes of action.
How alleged, generally
Rule 8, Sec. 10
A defendant must specify each material
allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth
that substance of the matters upon which he
relies to support his denial. Where a defendant
desires to deny only a part of an averment, he
shall specify so much of it as is true and
material and shall deny only the remainder.
Where a defendant is without knowledge or
information sufficient to form a belief as to the
truth of a material averment made in the
complaint, he shall so state, and this shall have
the effect of a denial.
Capacity of parties
Rule 8, Sec. 4
Facts showing the capacity of a party to sue or
be sued or the authority of a party to sue or be
sued in a representative capacity or the legal
existence of an organized association of persons
that is made a party, must be averred. A prty
desiring to raise an issue as to the legal
existence of any party or the capacity of any
Prepared by:
AKSYON PARTY
party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as are
peculiarly within the pleader's knowledge.
Genuineness of document
Rule 8, Sec. 8
When an action or defense is founded
upon a written instrument, copied in or attached
t o the corresponding pleading as provided in
the preceding section, the genuineness and due
execution of the instrument shall be deemed
unless the adverse party, under oath specifically
denies them, and sets forth what he claims to be
the facts; but the requirement of an oath does
not apply when the adverse party does not
appear to be party to the instrument or when
compliance with an order for an inspection of
the original instrument is refused.
Donato v. CA
Controversy over a parcel of land
allegedly sold to defendants by Rarang by virtue
of special power of attorney executed the by the
mother (deceased) of plaintiffs. Trial court held
in favor of plaintiffs on the ground that
defendants failed to present evidence to prove
genuineness of the power of attorney. CA
Affirmed.
Supreme Court held that while R.8,
Sec. 8 provides for rule on implied admission of
the genuineness and due execution of a
document subject of an action/defense, one
exception is when the adverse party does not
appear to be a party to the instrument. In this
case, their plaintiffs were mere witnesses to the
power of attorney in question. Besides, the
document should not be afforded presumption of
genuineness and due execution in view of the
discrepancies in its execution.
Negative pregnant
PHILAMGEN v. Sweet Lines
Controversy over several shipments of
chemicals aboard the vessel owned by Sweet
Lines which were delivered damaged and
lacking in number to plaintiff PHILAMGEN.
Sweet Lines argued that the action has
prescribed since the claim for damages were not
presented within the period stipulated in the
bills of lading. PHILAMGEN contended that
the bills of lading were not presented in
evidence, therefore, since the tenor and
existence of the stipulations were not
21
 CIVIL PROCEDURE
established, it was inconceivable how they can
comply therewith. Trial court held in favor of
PHILAMGEN but CA reversed.
Supreme Court held that the action has
already prescribed. Besides, plaintiff's failure to
specifically deny the existence, genuineness and
due execution of the instruments amounted too
an admission.
PHILAMGEN's denial has procedural
earmarks of a "negative pregnant" which is a
denial pregnant with the admission of the
substantial facts in the pleading responded to
which are not squarely denied. Such defense is
in effect an admission of the averment. Thus,
while they objected to the stipulation in the bills
of lading as being contrary to policy, existence
of the bills were nevertheless impliedly
admitted.
Affirmative
Rule 6, Sec. 5(b)
(b) An affirmative defense is an
allegation of a new matter which, while
hypothetically admitting the material allegations
in the pleading of the claimant, would
nevertheless prevent or bar recovery by him.
The affirmative defenses include fraud, statute
of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by
way of confession and avoidance.
Periods to plead
Rule 11, Sec. 1
The defendant shall file his answer to
the complaint within 15 days after service of
summons, unless a different period is fixed by
the court.
Rule 11, Sec. 2
Where the defendant is a foreign
private juridical entity and service of summons
is made on the government official designated
by law to receive the same, the answer shall be
filed within 30 days after receipt of summons by
such entity.
Rule 11, Sec. 3
Where the plaintiff files an amended
complaint as a matter of right, the defendant
shall answer the same within 15 days after being
served with a copy thereof.
Where its filing is not a matter of right,
the defendant shall answer the amended
complaint within 10 days from notice of the
order admitting the same. An answer earlier
Prepared by:
AKSYON PARTY
filed may serve as the answer to the amended
complaint if no new answer is filed.
This Rule shall apply to the answer to
an amended counterclaim, amended cross-claim,
amended third (fourth, etc) party complaint, and
amended complaint-in-intervention.
Waiver of defenses
Rule 9, Sec. 2
A compulsory counterclaim, or a cross-
claim, not set up shall be barred.
Director of Lands v. CA, 106 SCRA 426 ('81)
Facts: Resp. filed an application for
confirmation of imperfect title. The
Dir. of Lands opposed. The trial ct.
ruled in favor of resp. On appeal, the
Dir. raised the argument that the
award to resp. is erroneous on ground
of res judicata. The lots were already
declared public lots in a cadastral
proceeding, it cannot be awarded to
the private resp.
Held: The failure of the Dir. to raise in
the proceedings before the trial ct. to
interpose his objection nor set up the
defense of res judicata constitutes
procedural infirmity w/c cannot be
cured on appeal. All defenses not
interposed in a motion to dismiss or in
an answer are deemed waived. It
cannot be pleaded for the first time or
on appeal.
Counterclaims
LECTURE ON CLAIMS AND
COUNTERCLAIMS:
L: are all counterclaims that are not compulsory
permissive?
A: No; permissive counterclaims need not arise
from same transaction or occurrence
constituting the subject matter of the opposing
party's claim
Compulsory counterclaim: need not pay docket
fees since ancillary to main case
Permissive counterclaim: need to pay docket
fees since has lfe independent of transaction in
main case
Apply Logical Relationship Test: arising out of
same transaction
22
 CIVIL PROCEDURE
If there is duplication of effort and time, then
compulsory counterclaim
ROC: if counterclaim only for sum of money
less juridical limit, within RTC jurisdiction via
compulsory/permissive counterclaim
Crossclaims always compulsory since arise from
same transaction or occurrence that is the
subject matter of the complaint. Mandatory to
raise it or else barred forever
GO V CA
L: Go did not sue Lim since business partners
or didn't want to spend more, etc.
SC wanted Go to sue Lim, wondered why?
L: see that SC not acquainted with business
practices
Test: if P chose to sue only one P, then
the other P can be joined as party
Lim could have been necessary
party thus Clover v Go
Go can file 3rd party complaint
v. Lim
L: Do all 3rd party complaints arise from the
same transaction or question of law?
A: No eg. Insurance and torts
Test: if 3rd party D can be subrogated for D and
D can raise same defense (Rule 14)
PASCUAL V BAUTISTA
L: SC did not rule on W/N 3rd party complaint
propert since not put in issue. Here, 3rd-party
complaint, since ancillary, then left behind, not
carried with main cause of action on appeal
(Differentiate from REPUBLIC V CENTRAL
SURETY where CA acquired jurisdiction since
Central Surety appealed) Since Flores did not
appeal, CA did not acquire appellate jurisdiction
over him
Defined and in general
Rule 6, Sec. 6
A counterclaim is any claim which a
defending party may have against an opposing
party.
Rule 6, Sec. 7
A compulsory counterclaim is one
which, being cognizable by the regular courts of
justice, arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing party's claim and
does not require for its adjudication the presence
of third parties of whom the court cannot
acquire jurisdiction. Such a counterclaim must
be within the jurisdiction of the court both as the
amount and the nature thereof, except that in an
Prepared by:
AKSYON PARTY
original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount.
BA Finance v. Co, 224 SCRA 163 ('93)
Facts: Does the dismissal of the
complaint for non-appearance of
plaintiff at pre-trial upon motion of the
defendant carry w/ it the dismissal of
compulsory counterclaim? In CAB, the
plaintiff did not appear at pre-trial, the
defendant moved for the dismissal of
the complaint. The same was granted.
Now, the defendant moves for an
adjudication of his compulsory
counterclaim.
Held: YES. Compulsory counterclaim
is also dismissed. There are several
requirements of a compulsory
counterclaim:
 It arises out or is necessarily.
connected w/ the transaction or
occurrence that is the subj. matter of
the opposing parties claim.
 It does not require the presence of
third parties of whom the ct. cannot
acquire jurisdiction.
 The trial ct. has jurisdiction to
entertain the same. The test of
compulsoriness is : WON the same
evidence to sustain it would refute the
plaintiff’s cause of action.
In CAB, the compulsory
counterclaim cannot remain pending
for independent adjudication. The CC
is auxiliary to the proceeding in the
original suit & merely derives its
jurisdictional support fr. the orig. case.
If the ct. has no or loses jurisdiction
over the main case, it has no jurisdxn
over the comp. counterclaim. In CAB,
the ct. has lost jurisdxn. over the main
case by virtue of its dismissal upon
motion by the defendant.
Reyes v. CA, 38 SCRA 138 ('71)
Facts: Reyes were lessees of a bldg.
owned by Kalaw. Kalaw sought the
ejectment of Reyes. Reyes filed an
action w/ City Court for prel. injunction
& Kalaw filed a counterclaim for
damages. The CA ultimately awarded
temperate damages in favor of Kalaw.
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 CIVIL PROCEDURE
Held: The award of temp. damages is
in error. the damages contemplated in
a forcible entry & detainer cases like
the one at bar means rents &
reasonable compensation or for use of
the property excluding profits w/c
might be received. The issue in this
kind of suit is merely possession. In
CAB, while the damages arose out of
the same transaction, these are not
CC’s bec. they exceed the jurisdiction
of the inferior ct.. The rule on bars to
cc, meaning the counterclaim cannot
be set up in a difference. case if not
set up in the main case, applies only
when the inferior ct. involved has
jurisdiction over the claim.
The reason for barring cc not set up in
an orig. case is to avoid multiplicity of suits & to
dispose of the whole matter in controversy in
one action & adjustments of defendants demand
by counterclaim.
Maceda v. CA, 176 SCRA 440 ('89)
Facts: Three ejectment cases were
filed in the MTC vs. Maceda. Maceda
set up a counterclaim amounting to
240,000. The RTC granted Maceda’s
counterclaim. The CA denied the
grant on appeal.
Held: The CA correctly ruled that the MTC did
not have original jurisdiction over the
counterclaim as it exceeds 20,000,
correspondingly, the RTC could not have
appellate jurisdiction over the claim. Thus, the
award to Maceda is invalid for lack of
jurisdiction. The jurisdiction of the MTC in a
civil action is limited to a demand that does not
exceed 20,000 exclusive of interests & costs but
inclusive of damages of whatever kind. A
counterclaim in a municipal or city ct. beyond
that jurisdictional limit may be pleaded only by
way defense to weaken the plaintiff’s claim but
not to obtain affirmative relief.
How raised
Included in answer
Rule 6, Sec. 9
A counterclaim may be asserted against
an original counterclaimant.
A cross-claim may also be filed against
an original cross-claimant.
Rule 11, Sec. 8
A compulsory counterclaim or a cross-
claim that a defending party has at the time he
filed his answer shall be contained therein.
Prepared by:
AKSYON PARTY
After answer
Rule 6, Sec. 9 supra.
Rule 11, sec. 9
A counterclaim or a cross-claim which
either matured or was acquired by a party after
serving his pleading may, with the permission of
the court, be presented as a counterclaim or a
cross-claim by supplemental pleading before
judgment.
Rule 11, Sec. 10
When a pleader fails to set up a
counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment
before judgment.
In criminal actions
Rule 111, Sec. 1
Rule 119, Sec. 3
Shafer v. RTC Judge, 167 SCRA 386 ('88)
Facts: Shafer is the owner of a car
involved in an accident. A case was
filed vs. him for reckless imprudence.
Shafer filed a third party complaint
impleading his insurer. The TPC was
dismissed upon motion by the ins. co.
on the ground that Shafer has to pay
first & found liable before the insurer
could be made to pay the claim.
Shafer alleges that the dismissal of
the TPC amounts to a denial or
curtailment of his right to defend
himself in the civil aspect of the case.
Held: The lower ct. erred in
dismissing the TPC on the ground that
there is no COA vs. the ins. co. There
is no need on the part of the insured
to wait for the decision of the trial ct.
finding him guilty of reckless
imprudence. The occurrence of the
injury to third party immediately gave
rise to the liability of the insurer. A
third party complaint is a device
allowed by the ROC by w/c the
defendant can bring into the original
suit a party vs. whom he will have a
claim for indemnity or remuneration
as a result of a liability established vs.
him in an original suit. TPC’s are
allowed to minimize the number of
lawsuits established vs. him to avoid
the necessity. of two or more lawsuits
involving the same subj. matter.
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 CIVIL PROCEDURE
Javier v. IAC, 171 SCRA 605 ('89)
Facts: A case for violation of BP 22
was filed vs. resp. Resp. on his part
filed a separate civil action in another
ct. for damages alleging that the
check was issued through fraud &
deception practiced upon him by the
pet. the pet. filed a motion to
dismiss the second case on grounds of
lack of jurisdiction & litis pendentia.
The same was denied.
Held: The lower ct. should dismiss the
second case for damages. As the civil
action was not reserved by the pet. in
the orig. case, it is deemed impliedly
instituted w/ the crim. case in the RTC
in accordance. w/ Rule 111 Sec. 1. It
was before the RTC where resp. could
have explained why he had issued the
check. The civil action filed by resp.
based on the same act should be
deemed filed in the same RTC too. He
could have done this by way of a
counterclaim for damages for the
alleged deception of the pet. In fact,
the counterclaim is compulsory &
could have been also set up as an
affirmative defense.
Kinds of counterclaims
Compulsory
Rule 6, Sec. 7, supra.
Rule 9, Sec. 2, supra.
Meliton v. CA, 216 SCRA 485 ('92)
Facts: Ziga filed a complaint adjacent
Meliton for rescission of a contract of
lease. Meliton answered w/
counterclaims. Ziga filed an MTD &
the same was granted. The CC of
Meliton was dismissed w/o prejudice
on the ground that the docket fees
were not paid, the ct. did not acquire
jurisdiction over the counterclaim.
Meliton instituted a separate. civil
action for his counterclaim but the
same was dismissed on the ground
that his claims are compulsory &
should have been set up in the case
filed vs. him by Ziga. Meliton’s failure
to do so amounted to a bar to a filing
of a subsequent case based on the
same ground.
Prepared by:
AKSYON PARTY
Held: While it is true that the
counterclaim of Meliton satisfies the
requisites of a compulsory
counterclaim, in CAB, the SC allowed
Meliton to file a separate. civil action
on the counterclaim. The SC held that
Sec. 4 of Rule 9 is not applicable
beech. 1) Meliton set up the CC in the
prior case but the same was
dismissed. 2) The prior case was
adjudicated not on the merits so that
res judicata would not lie. 3) the first
counterclaim was dismissed by the
RTC on the ground of LOJ. 4) In the
RTC order, there was a reservation for
the filing of a separate. case based on
the counterclaim.
The lower ct. in the prior case
erred in dismissing the counterclaim
for non-payment of docket fees. The
lesson of Manchester provides that
payment of docket fees for purposes
of assuming jurisdiction over the claim
is necessary only for permissive
counterclaims & does not apply for
compulsory counterclaims like the one
at bar.
TEST OF COMPULSORINESS:
Existence of a logical
relationship between the claim in the
complaint & the counterclaim. Where
conducting separate trials of the
respective claims would entail
substantial duplication of effort & time
& involves many of the same factual &
legal issues.
Lim Tanhu v. Ramolete, 66 SCRA 425 ('75)
Facts: This is the 30++ page case w/c
was so diligently digested by Miss
Secretary Lourie but was not
discussed in class (Ang bitter!). Upon
motion of the plaintiff, 4 of the 6
defendants were declared in default
while the case vs. the remaining two
were dismissed upon motion by the
plaintiff.
Held: The respondent judge erred in dismissing
the 2 defendants fr. the case. The respondent
judge disregarded the existence of a
counterclaim w/c the judge earlier declared to be
compulsory in nature. A counterclaim is
compulsory nature if it arose out of or is
necessarily connected w/ the occurrence that is
the subject matter of the plaintiff’s claim. It is
compulsory not only bec. the same evidence to
sustain it will also refute the cause of action
25
 CIVIL PROCEDURE
alleged in plaintiff’s complaint but also bec. fr.
its very nature it is obvious that the counterclaim
cannot remain pending for independent
adjudication of the ct.. ( see Rule 17 Sec. 2 )
Permissive
Remedies
For failure to raise
Rule 9, Sec. 2, supra.
Visayan Packing v. Reparations Commission,
155 SCRA 542 ('87)
Facts: REPACOM sought to collect vs.
Visayan. Visayan instituted an action
for declaratory relief alleging that the
contract bet. them is ambiguous w/
respect to its failure to define clearly
the terms of payment. REPACOM then
filed an ordinary civil action for
collection. Visayan moved to dismiss
the collection suit on the ground of
LCOA.
Held: The separate. collection suit should have
been dismissed & set up as a CC in the
declaratory relief suit filed by Visayan packing
by way of an amended answer. In CAB, the
actions proceeded independently & were decided
on the merits. However, under the circ. where
the length of time the case has been pending, it
would be violative to subs. justice to pronounce
the proceedings in the collection suit totally
defective for breach of the rule on compulsory
counterclaim. Rules of Procedure are after all
laid down to attain justice & technicalities
cannot prevail over substance.
Oversight, inadvertence, excusable
neglect, et al
Rule 11, Sec. 10, supra.
BA Finance v. Co, 224 SCRA 163 ('93)
Facts: Does the dismissal of the
complaint for non-appearance of
plaintiff at pre-trial upon motion of the
defendant carry w/ it the dismissal of
compulsory counterclaim? In CAB, the
plaintiff did not appear at pre-trial, the
defendant moved for the dismissal of
the complaint. The same was granted.
Now, the defendant moves for an
adjudication of his compulsory
counterclaim.
Prepared by:
AKSYON PARTY
Held: YES. Compulsory counterclaim
is also dismissed. There are several
requirements of a compulsory
counterclaim:
 It arises out or is necessarily.
connected w/ the transaction or
occurrence that is the subj. matter of
the opposing parties claim.
 It does not require the presence of
third parties of whom the ct. cannot
acquire jurisdiction.
 The trial ct. has jurisdiction to
entertain the same. The test of
compulsoriness is : WON the same
evidence to sustain it would refute the
plaintiff’s cause of action.
In CAB, the compulsory
counterclaim cannot remain pending
for independent adjudication. The CC
is auxiliary to the proceeding in the
original suit & merely derives its
jurisdictional support fr. the orig. case.
If the ct. has no or loses jurisdiction
over the main case, it has no jurisdxn
over the comp. counterclaim. In CAB,
the ct. has lost jurisdxn. over the main
case by virtue of its dismissal upon
motion by the defendant.
In case main action fails
For failure to raise permissive
counterclaims
Answer to counterclaim
In general
Rule 6, Sec. 4, supra.
Period to plead
Rule 11, Sec. 4
An counterclaim or cross-claim must be
answered within 10 days from service.
Reply
Defined and in general
Rule 6, Sec. 10
A reply is a pleading, the office of
which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of
defense in the answer and thereby join or make
issue as to such new matters. If a party does not
file such reply, all the new matters alleged in the
answer are deemed controverted.
If a plaintiff wishes to interpose any
claims arising out of the new matters so alleged,
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 CIVIL PROCEDURE
such claims shall be set forth in an amended or
supplemental complaint.
When required
Rule 6, sec. 10, supra.
Challenge due authenticity of documents
Rule 8, Sec. 8, supra.
Usury
Rule 9, sec. 1
Period to plead
Rule 11, Sec. 6
A reply may be filed within 10 days
from service of the pleading responded to.
Third/Fourth Party Complaint
Defined
Rule 6, sec. 11
A third (fourth,etc.)-party complaint is
a claim that a defending party may, with leave of
court, file against a person not a party to the
action, called the third (fourth, etc)-party
defendant, for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.
Go v. CA, 224 SCRA 143 ('93)
Facts: Clover delivered denim
garments to Go but the latter refused
to pay on the ground that he received
the goods fr. Lim to whom he already
made payments. Lim was made a
witness for Go instead of being
impleaded as a third party def.
Held: Lim should have been impleaded as a
third party def. Go should still pay. A third
party complaint is a claim that a def. may w/
leave of ct. file vs. a third person not party to the
action called third party def. for cont. indemnity,
subrogation or any other relief in respect to
opponent’s claim. In CAB, if payments to Lim
were true, then Go could have impleaded him as
a TPD for relief vs. Clover’s claim vs. him.
Pascual v. Bautista, 33 SCRA 301 ('70)
Facts: The issue involved in this case
is the nature of a third party
complaint. Is a third party complaint
arising fr. the same transaction or
occurrence a separate action fr. the
main complaint?
Held: A TPC is similar to a cross-claim
in that a TPC plaintiff seeks to recover
fr. another person some relief w/
respect to the opposing party’s claim
Prepared by:
AKSYON PARTY
but it differs fr. a cross-claim in that in
cross-claims, the third party is already
impleaded in the main action while in
TPC, the def. seeks to implead a third
party not yet include in the main
action. A counterclaim does not
depend upon the main claim but rests
on WON the claim is based or related
to the same transaction. A TPC, the
relation must be to the claim, to the
COA & not to the transaction fr. w/c
the claim arises.
Balbastro v. CA, 48 SCRA 232 ('72)
Facts: There are two persons
contesting the right to receive rental
payments of Balbastro. the Latter
filed an action for interpleader &
consignation vs. the two claimants.
One claimant, Fernandez then filed a
third [party complaint vs. Balbastro for
refusing to pay the rents to him.
Balbastro moved to dismiss the TPC
but the RTC & CA denied the motion.
Held: A TPC has the following
requisites.
 The complaint should assert a
derivative/ secondary claim for relief
fr. the third party defendant.
 The third party should not be a party
to the action, otherwise, the claim
should be a counterclaim or cross-
claim
 Claim vs. the third party def. must
be based on the pltf. claim vs. the orig.
def.
Thus, citing the case of
Capayas, “ the test to determine WON
to allow a TPC is WON it arises out of
the same transaction on w/c pltf’s
claim is based o retired party’s claim,
though arising out of a different
transaction or contract is connected w/
pltf’s claim. Absent a nexus between
third party def. & third party pltf.
showing strong evidence of a
secondary or derivative liability of
former in favor of the latter, no third
party complaint may be allowed.
However, in the CAB, in lieu w/
the policy of avoiding multiplicity of
suits, the SC allowed the TPC of
Fernandez.
Republic v. Central Surety, 25 SCRA 641 ('68)
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 CIVIL PROCEDURE
Facts: Rep. filed an action vs. Central
Surety for forfeiture of the bond it
issued when Po Kee Kam, a def. in CID
proceedings failed to appear . The
Surety filed a TPC vs. Po Kee Kam on
ground that the latter executed an
indemnity agreement in favor of the
surety. The TC dismissed the TPC on
the ground that the 3rd party claim is
only 6,000.
Held: A TPC is an ancillary suit w/c
depends on the jurisdiction of the ct.
over the main action. Jurisdiction over
the main action embraces all the
incidental matters arising therefr. or
connected therew/, otherwise there
would be split jurisdiction. The TPC is
a continuation of the main action the
purpose of w/c is to seek contribution
or any other relief in resp. to
opponents claim. Thus, regardless of
LOJ over the amount in TPC, when ct.
has jurisdxn. over main action, it has
jurisdxn. over the TPC.
In TPC, the defendant sue in
capacity he is being sued w/ resp. to
pltf. claim in the main action. the def.
cannot compel the pltf. to implead the
third party def. There must also be
privity of contract in relation to the
property in litigation.
TEST: there must be a
showing that such third party is or
might be liable to the def. or pltf. for
all or part of the claim vs. the def.
- WON it arises out of the same
transaction on w/c pltf’s claim is
based. ( CAVEAT)
The ct. must wait before the
3rd party def. files his answer before
proceeding to trial since before the
answer, the case is not yet ready for
trials as issues have not yet been
joined.
Remedies when denied
Appeal, De Dios v. Balagot, 20 SCRA 950
Facts: This is an action for recovery of
possession of land filed by De Dios v.
Balagot. the latter filed a third party
complaint fr. his alleged seller of the
lot. The TPC was denied.
Held: The remedy for an order
denying motion to file TPC is APPEAL.
An order disallowing TPC is appealable
Prepared by:
AKSYON PARTY
to enforce the vendor’s warranty vs.
eviction since it leaves no other
alternative to enforce such warranty.
Remember Sales, where the vendee
must file an action vs. the vendor to
make him liable for breach of warranty
vs. eviction. ( Art. 1559 CC- the
vendee may do this in two ways. 1) As
a co-defendant. 2) As a third party
def.)
The appeal would finally
dispose of Balagot’s rights to enforce
the warranty.
Answer to third/fourth party complaint
In general
Rule 6, Sec. 13
A third (fourth, etc.)-party defendant
may allege in his answer his defenses,
counterclaims or cross-claims, including such
defenses that the third (fourth, etc)-party
plaintiff may have against the original plaintiff's
claim. In proper cases, he may also assert a
counterclaim against the original plaintiff in
respect of the latter's claim against the third-
party plaintiff.
Time to plead
Rule 11, Sec. 5
The time to answer a third (fourth,
etc.)-party complaint shall be governed by the
same rule as the answer to the complaint.
Extension of time to plead
Rule 11, Sec. 11
Upon motion and on such terms as may
be just, the court may extend the time to plead as
provided in these Rules.
The court may also, upon like terms,
allow an answer or other pleading to be filed
after the time fixed by these Rules.
Formal Requirements
Rule 7
Sec. 1 Caption
The caption sets forth the name of the
court, the title of the action, and the docket
number if assigned.
The title of the action indicates the
names of the parties. They shall be named in
the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the
name of the first party in each side be stated
with an appropriate indication when there are
other parties.
Their respective participation in the
case shall be indicated.
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Sec. 2 The body
The body of the pleading sets forth its
designation, the allegations of the party's claims
or defenses, the relief prayed for, and the date of
the pleading.
(a) Paragraphs - The allegations in the
body of a pleading shall be divided into
paragraphs so numbered as to be readily
identified, each of which shall contain a
statement of a single set of circumstances so far
as that can be done with convenience. A
paragraph may be referred to by its number in
all succeeding pleadings.
(b) Headings - when 2 or more causes
of action are joined, the statement of the first
shall be prefaced by the words ""first cause of
action" of the second by
"second cause of action", and so on for the
others.
When one or more paragraphs in the
answer are addressed to one of several causes of
action in the complaint, they shall be prefaced
by the words "answer to the first cause of
action", or "answer to the second cause of
action" and so on; and when one or more
paragraphs of the answer are addressed to
several causes of action, they shall be prefaced
by the words to that effect.
(c) Relief - The pleading shall specify
the relief sought, but it may add a general prayer
for such further or other relief as may be deemed
just or equitable.
d) Date - Every pleading shall be dated.
Sec. 3 Signature and address
Every pleading must be signed by the
party or counsel representing him, stating in
either case his address which should not be a
post office box.
The signature of counsel constitutes a
certificate by him that he has read the pleading;
that to the best of his knowledge, information
and belief there is good ground to support it; and
that it is not interposed for delay.
An unsigned pleading produces no
legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied
if it shall appear that the same was due to mere
inadvertence and not intended for delay.
Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of this
Rule, or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a
change of his address, shall be subject to
appropriate disciplinary action.
Sec. 4 Verification
Prepared by:
AKSYON PARTY
Except when otherwise specifically
required by law or rule, pleadings need not be
under oath, verified or accompanied by affidavit.
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
knowledge and belief.
A pleading required to be verified
which contains a verification based on
"information and belief", or upon "knowledge,
information and belief", or lacks proper
verification shall be treated as an unsigned
pleading.
Sec. 5 Certification against forum shopping
The plaintiff or principal party shall
certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or
in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has
not theretofore commenced any action or filed
any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to
the best of his knowledge, no such other action
or claim is pending therein; (b) if there is such
other pending action or claim, a complete
statement of the present status thereof; and (c) if
he should thereafter learn that the same or
similar action or claim has been filed or is
pending, he shall report that fact within 5 days
therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Failure to comply with the foregoing
instruments shall not be curable by mere
amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of
the case without prejudice, unless otherwise
provided, upon motion and after hearing. The
submission of a false certification or non-
compliance with any of the undertakings therein
shall constitute indirect contempt of court,
without prejudice to the corresponding
administrative and criminal actions. If the acts
of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same
shall be ground for summary dismissal with
prejudice and shall constitute direct contempt, as
well as a cause for administrative sanctions
LECTURE ON STAGES OF TRIAL:
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 CIVIL PROCEDURE
WORD GAME:
Motion: request for interlocutory order related
to relief prayed for in pleading
Pleading: sets forth ultimate facts and defenses
Complaint: pleading that starts off civil action
Answer: defense against claims in complaint
and present issues in case
Issue: allegation denied
Allegation: ultimate fact
L: Distinguish between: Conclusion of Law;
Ultimate Facts; and Evidentiary Facts
Non-issue if a) not alleged therefore not
need to be denied
b) acceptance of allegation
Defense: tends to defeat claim as alleged in
complaint
L: prayer would be to dismiss for fact of merit
Counterclaim: if answer with affirmative relief
Negative defenses: which factual allegations in
complaint alleged as issues
Issues: allegations and denials joined
General denial: accept everything: admission
of everything: it specifically denies each and
every allegation made by the plaintiff: therefore,
no factual issues anymore and so no more need
to go through trial or pre-trial
L: Counsel for P: file motion for judgment on
the pleading
Specific denial proper: qualified, under oath and
allege lack of knowledge or information
sufficient to support a belief (WIT)
Affirmative defense: defeats allegations
contained in complaint
Effect: if able to prove during hearing,
then entire pleading of the other party is
defeated
Eg. Defense of Lack of jurisdiction or failure to
undergo a condition precedent. It is a new
matter. Hypothetical admission but still
avoidance. Relief prayed for is dismissal of
complaint
Unlike Counterclaim: raises a relief other than
dismissal of complaint; always allege a new
matter will have specific and general denials.
Compulsory counterclaim: arises from the same
transaction or relation. If not set up
immediately, deemed barred
Test: the logical relationship test - if there is
substantial duplication of efforts or that the same
Prepared by:
AKSYON PARTY
set of evidences will be used to prove the
complaint and the counterclaim
Reply: if no reply, matters raised in
counterclaim deemed incontroverted
If with reply, all new matters raised in
answer deemed controverted
Reply necessary when need to challenge new
matters raised by affirmative defense. Can't rely
on implied setting up of specific denial
Document: res ipsa loquitur: thing speaks for
itself
Deny under oath: a) genuineness and
due execution of the document
b) usury charges
L: Amended and Supplemental Pleadings
Joinder of Parties: arises from the same
transaction or common question of fact or law
Joinder of Causes of Action: so long as the court
has jurisdiction, party can raise all causes of
action between the original P and D
P can raise all causes of action against D arising
from different sources but if court has no J over
the cause of action, can't join cause of action
But if complaint filed with the RTCF for a sum
of money, if the sum is within RTC's
jurisdiction, then can raise
If you want to bring in a new D, need to find
commonality in cause of action originally raised,
not commonality of parties
Counsel for D: Remedies when a complaint is
filed:
(note: D must wait until court acquires
jurisdiction and serves him with summons
(service, not summons, if court sends him other
pleadings) or he can voluntarily appear and let
the court acquire jurisdiction over him
file bill of particulars; file motion for extension
of time for filing a pleading and file an amended
pleading / supplemental pleading
Final Order/Dismissal
1. MTD (filed by D)
1. Dismissal of action by notice or motion (filed
by P)
1. Default (D not act)
1. Non-sut (P acts maliciously and not do what
is required of him Rule 17 sec. 3
Or P acts passively)
L: the trial is not about justice, it's about what
you can prove
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Rule 13
Service of Pleadings
Coverage, Rule 13, Secs. 1, 4
Filing
Defined, Rule 13, Sec. 2
How, Rule 13, Sec. 12
Proof of Filing, Rule 13, Sec. 12
Service
Defined, Rule 13, Sec. 12
Modes of Service
Generally, Rule 13, Sec. 5, Sec.
11
Personal, Rule 13, Sec. 6
Registered Mail, Rule 13, Sec. 7
Substituted Service, Rule 13,
Sec. 8
Echaus v. CA
Facts: Spouses Gonzales file action
for collection of debt vs. Echaus. Ct.
orders E to pay. E files w/ SC certiorari
to set aside decision, denied; then
mandamus to allow appeal, granted.
E files w/ TC Urgent Motion to Transmit
Record on Appeal to CA. At the
hearing, Judge verbally approves the
record on appeal in abeyance, until
resolution of Gps Motion for Execution
of the TC judgment. E asks CA to
order Judge to comply w/ SC decision,
denied. CA says no willful refusal on
part of Judge to comply w/ order. E
goes to SC, says her appeal had been
perfected when the Judge verbally
approved the record on appeal.
Held: The oral order approving the
record on appeal had no juridical
existence; to give it that existence it
had to be reduced to writing &
promulgated (filed w/ clerk of ct.). But
even if it had been written &
promulgated, even if it had already
been properly served on the parties, it
still was w/in the power of the Judge to
recall it & set it aside. For every ct.
has the inherent power to amend its
process & orders so as to make them
conform to law & justice.
No judgment, or order whether final or
interlocutory, has juridical existence until &
unless it is set down in writing, signed &
promulgated, i.e., delivered by Judge to clerk of
ct. for filing, release to the parties &
Prepared by:
AKSYON PARTY
implementation & even after this, it does not
bind the parties unless & until notice thereof is
duly served on them by any of the modes
prescribed by law.
Service of Judgments, Final
Orders or Resolutions, Rule 13, Sec. 9
Completeness of Service, Rule
13, Sec. 10
Proof of Service, Rule 13, Sec. 12, 13
See also SC Circular No.
19-91
Rule 14
Summons
Definition and purpose
Duty to issue, Rule 14, Sec 1, 5
Form
Content, Rule 14, Sec 2
If with leave of court, Rule 14,
Sec. 17
Who serves, Rule 14, Sec 3
On Whom,
In general, Rule 14, Sec 1, 6
Entity without juridical
personality, Rule 14, Sec 8
Associations, Rule 14, Sec 9
Domestic, Rule 14, Sec
11
Rebolido v. CA, 170 SCRA 800 (1989)
Facts: Pepsi Cola was served
summons, in connection w/ a case for
damages arising fr. vehicle-collision,
through Sison who represented herself
as a person authorized to received ct.
process as she was a secretary of the
legal dept. of Pepsi Cola. Later, Pepsi
Cola was dissolved, & all its debts &
liabilities were assumed by PEPSICO.
Meanwhile, Pepsi Cola was declared in
default in the aforementioned case, &
writ of execution was served on
PEPSICO. The latter now moves to
vacate judgment, alleging lack of
jurisdiction of the ct. as the summons
was served on the legal secretary of
Pepsi Cola, not PEPSICO.
Held: There was valid service of
summons.
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 CIVIL PROCEDURE
1. Although Pepsi Cola was already
dissolved when summons was served,
the same may be served upon the
same person upon whom the process
could be served before the
dissolution. Therefore, service to any
of the persons in R 14 Sec. 13 is
allowed.
2. Purpose of Summons: To render it
reasonably certain that corporation
will receive prompt & proper notice in
an action vs. it.
3. Liberal Interpretation of Sec. 13:
That there is Substantial Compliance
w/ the requirement of Sec. 13 if the
purpose for the service of summons is
attained, & the person served knew
what to do w/ the legal papers served
upon him.
Summit Trading v. Avendano, 146 SCRA 197
(1986)
Facts: In connection w/ a case for
redemption of lots filed vs. ST (Type!),
summons were served on the
Secretary of the President of Summit
Trading. ST was later held in default.
Judgment was rendered vs. it. ST filed
MFR contending that ct. in the first
place did not acquire jurisdiction over
the company when it served summons
on the Sec of the Pres. who is not an
agent of the company.
Held: Since the Secretary did not
explain what she did to the summons,
the logical assumption is that she
gave it to her boss. (SC here
considered the fact that a copy of the
default judgment held vs. ST was also
served on the Sec. & the same
reached the Pres., & consequently, ST
was able to file a MFR.)
While Summit Trading is
technically correct in contending that
there was no strict compliance w/ Sec.
13, under the facts of this case, where
the President contact the outside
world normally through his Secretary,
the latter may be regarded as an
“agent” w/in the meaning of Sec. 13.
Note: Remember that SC did
not rule that service upon Secretaries
is always proper. It was only under the
facts of the CAB that Sec. may be
considered as an agent of the
corporation.
Prepared by:
AKSYON PARTY
Foreign, Rule 14, Sec 12
Public corporation, Rule
14, Sec 13
Minors, RuLe 14, Sec 10
Insane, incompetents, Rule 14,
Sec 10
Prisoners, Rule 14, Sec 9
Unknown defendant, Rule 14,
Sec 14
Residents temporarily out, Rule
14, Sec 18, 16
Venturanza v. CA, 156 SCRA 305 (1987)
Facts: Venturanza was sued for
collection of a sum of money.
Summons for V was served upon her
father at his residence in Tondo. V was
later held in default. V filed Motion to
Set Aside Default Judgment on the
ground that there was no proper
service of summons when it was
served not in her residence w/c was in
Pasay City.
Held: There was no proper service of
summons.
1. It is only when defendant cannot be
served w/in reasonable time that a
substituted service may be availed of
under Sec. 8 (Pls. see Part VI). The law
requires an effort or attempt to
personally serve the defendant, & only
after this has failed that a substituted
service may be availed of. Why? Bec.
Substituted Service is in derogation of
the usual method of service. It is a
method extraordinary in character &
hence may be used only as prescribed
in the circumstances authorized by
statute.
2. Substituted service is valid only if
served at defendant’s residence, NOT
former residence. “Residence” means
where he is living at the time service
was made, even though temporarily
out of the country.
Non-resident, Rule 14, Sec 15
Modes of service
Personal, Rule 14, Sec 6
Substituted, Rule 14, Sec 7
Laus v. CA, 219 SCRA 688 (1993)
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 CIVIL PROCEDURE
Facts: This is the 10-minute case.
Torres filed a complaint for Collection
vs. Laus. Deputy Sheriff went to Laus’
residence to serve summons, but
found that there was no one in the
house. He waited for 10 minutes.
Then a three-wheeled vehicle (tricykol)
came w/ the savior who claimed to be
the maid in the house. The Sheriff
served summons upon the latter. Laus
was declared in default. Before he
received the final judgment, Laus filed
an MTD on the ground that there was
ineffective service of summons bec.
there was no indication that S first
exerted efforts to serve the same
personally before resorting to
substituted service.
Held: There was an ineffective
service of summons.
General Rule: Must serve personally.
Exception: If cannot serve personally
w/in reasonable period of time, may
resort to Substituted Service.
How can Impossibility of Service be
shown? By stating efforts made to
find defendant personally & the fact
that such efforts failed.
Mapa v. CA, 214 SCRA 417 (1993)
Facts: A complaint for Recovery of
sum of money was filed vs. High Peak
Mining. Summons was issued to be
served upon Mapa, the chairperson, &
upon other officers of the corporation.
However, said summons was served
upon an employee of said corp.
Defendants were declared in default.
Defs. filed MTD & Set Aside Default
Judgment on the ground of lack of
jurisdiction of the ct. over their person
as the service of summons was
improper, i.e., served upon an EE who
may not be considered as an “agent”
of the corporation; moreover, Sheriff
did not indicate in his Return his
efforts at serving summons personally
before resorting to substituted service.
Held: Court lacked jurisdiction.
1. General Rule: Sheriff’s Return
must show that prior attempts at
personal service were made by the
Sheriff & that such attempts had
failed, prompting him to resort to
Substituted service. HOWEVER, it
must be emphasized that Absence in
the Sheriff’s Return of a statement
about the impossibility of personal
service DOES NOT conclusively prove
Prepared by:
AKSYON PARTY
that the service is invalid. Proof of
such prior attempts may be submitted
by the plaintiff during the hearing of
any incident assailing the validity of
the substituted service. While Sheriff’
Return carries w/ it the presumption of
regularity, that entries therein are
deemed correct, it does not
necessarily follow that an act done in
relation to the official duty for w/c the
return is made was not simply done
bec. it is not disclosed therein.
Besides, the sheriff’s neglect in
making such a disclosure should not
unduly prejudice the plaintiff if what
was undisclosed was in fact done.
2. The EE may be considered as an
“agent” for the purpose of Sec. 13, &
there was a substantial compliance
under the said sec. bec. in the CAB,
petitioner failed to deny the statement
in Sheriff’s Return that the EE is
“authorized to receive process of this
nature”, said Return enjoying the
presumption of regularity, & the
logical conclusion is that she delivered
the summons to the corporation.
3. In an action in personam as in the
CAB, personal service of summons
w/in the forum is essential to the
acquisition of jurisdiction over the
person of the defendant who does not
voluntarily submit himself to the
authority of the ct..
Extraterritorial, Rule 14, Sec 15
Dial Co. v. Soriano, 161 SCRA 737 (1988)
DIAL CO. V. SORIANO
Facts: Dial is a foreign corporation
organized & existing under the laws of
UK, US & Malaysia. It has NO agents,
officers or office in the Philippines.
Imperial Vegetable Oil, a Phil. corp.,
entered, through its President, into
several contracts w/ Dial for the
delivery of coco oil by the former to
the latter. Later, IVO repudiated said
contracts on the ground that they are
“mere paper trading in futures” as no
actual delivery of coco oil was really
intended. IVO also filed complaint for
Damages vs. Dial. RTC, upon motion
of IVO, authorized the latter to effect
Extraterritorial Service of Summons to
Dial through DHL. Dial, w/o submitting
33
 CIVIL PROCEDURE
itself to court’s jurisdiction, filed MTD
on the ground that Extraterritorial
Service was improper, hence RTC
acquired no jurisdiction.
Held: There was an Improper service
of summons.
1. There are 4 instances when
Extraterritorial service of summons
can be properly done:
a) Action affects status of the plaintiff
b) Action relates to, or the subject of
w/c is, property w/in the Phils., in w/c
defendant has or claims a lien or
interest, actual or contingent
c) When relief demanded consists in
whole or in part, in excluding the def.
fr. any interest in the property located
in the Phils.
d) Defendant non-resident’s property
has been attached w/in the Phils.
2. The CAB is purely an action for
Injunction, not any of the 4. This is
only an action in personam. In
any of the 4 instances, Court has
jurisdiction over the RES, i.e. personal
status or property, so jurisdiction over
the person is NOT essential.
In Personam - an action vs. a
person on the basis of his personal
liability;
In Rem - action vs. the thing
itself instead of vs. the person.
3. In CAB, Court cannot subject Dial &
Co. to processes of RTC w/c are
powerless to reach them outside the
region over w/c they exercise their
authority.
Sievert v. CA, 168 SCRA 692 (1988)
Facts: Sievert, a citizen & resident of
the Phils. received by mail a Petition
for Issuance of Preliminary Attachment
w/o previously receiving any summons
& copy of the complaint filed vs. him.
His counsel entered a special
appearance for a limited purpose of
objecting to the jurisdiction of the ct..
Held: RTC has no jurisdiction over
Sievert.
1. Rule 57 Sec. 1. -- Writ of
Preliminary Attachment may be
applied for by a plaintiff “at the
commencement of the action or at
anytime thereafter...” However, what
should be identified is not the time
when the action may be regarded as
having commenced, as this is not
necessarily fixed nor identical. The
Prepared by:
AKSYON PARTY
Critical Time to be identified is when
the trial ct. acquires authority under
the law to act coercively vs. the
defendant or his property in a
proceeding in attachment. Answer:
the time of the vesting of jurisdiction
in the ct. over the person of the
defendant in the main case.
2. NON-RESIDENT DEFENDANT:
Attachment of property may be sought
in order to bring RES w/in the
jurisdiction of the ct., in substitution,
as it were, of the body of the
defendant. Jurisdiction over the res &
the person of the defendant is, in
such case, acquired by service of
summons by publication, though that
jurisdiction may be made effective
only in respect of the res attached.
RESIDENT DEFENDANT: A ct. w/c
has not acquired jurisdiction over the
person of the defendant cannot bind
that def. whether in the main case or
in an ancillary proceeding such as
attachment proceedings. The service
of a Petition for Prelim Attachment w/o
the prior or simultaneous service of
summons & a copy of the complaint in
the main case does not confer
jurisdiction upon the issuing ct. over
the person of the defendant.
Citizen's Surety v. Herrera, 38 SCRA 369
(1972)
Facts: Citizen’s Surety filed complaint
for reimbursement of money vs.
Dacanay. Since Dacanay’s address
was unknown, CS petitioned the Court
that summons be made by
publication. Petition was granted, but
still no Dacanay appeared. (Kung
kayo ba s’ya lalabas kayo?) CS asked
the ct. that Dacanay be held in
Default. Trial ct. denied since this is
an action in personam, & dismissed
the case.
Held: The judge was correct that the
Court could not validly acquire
jurisdiction on a non-appearing
defendant, absent a personal service
of summons w/in the forum.
Otherwise, there would be a violation
of Due Process.
The proper recourse for the
creditor is to locate properties, real or
personal, of the resident defendant
debtor w/ unknown address & cause
them to be attached under R57 Sec.
1(f), in w/c case, the attachment
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 CIVIL PROCEDURE
converts the action into a proceeding
in rem or quasi in rem, & the
summons by publication may then
accordingly be deemed valid &
effective.
Consolidated Plywood v.
Breve, 166 SCRA 589 (1988)
Facts: Consolidated Plywood
Mindanao Hemp Export are co-owners
of real property: land & building.
Consolidated undertook to repair &
improve the property, subject to
reimbursement fr. Mindanao of 1/2 of
costs. After Mindanao refused to pay,
a suit for collection was filed by
Consolidated. When summons was
issued, it was found out that Mindanao
was no longer doing business at its
former address. Can summons be
served by publication?
Held: No. Suit is for the collection of an
amount of money--a personal action, ct. cannot
acquire jurisdiction over the person by serving
summons by publication. The proper recourse
for a creditor is to locate properties, real or
personal, of the resident defendant debtor w/
unknown address & cause them to be attached
under R57 Sec. 1(f), in w/c case, the attachment
converts the action into a proceeding in rem or
quasi in rem, & the summons by publication
may then accordingly be deemed valid &
effective.
Waiver of service, Rule 14, Sec 20
Delos Santos v. Montesa, 221 SCRA
15 (1993)
Facts: In connection w/ a complaint
for Ejectment filed vs. De los Santos,
summons was served upon the latter
through her mother as the process
server failed to locate the defendant.
DLS filed an MFR of MC decision,
alleging, inter alia, that the summons
was improperly served.
Held: While it may appear that there
is no proof that it was impossible to
personally serve the summons, & the
statutory norms on service of
summons were not strictly complied
w/, by the acts of the petitioner’s
counsel, such defects are deemed
erased. (Counsel filed MFR )
Appearance of counsel is equivalent to
summons unless such is made to
protest the jurisdiction of the ct. over
the person of the defendant. The MFR
filed cannot be treated as a special
Prepared by:
AKSYON PARTY
appearance as it raised other grounds
than the invalid service of summons,
i.e. failure to state COA, no
Katarungang Pambarangay).
Return of service, Rule 14, Sec 4
Proof of service, Rule 14, Sec 18
& Publication, Rule 14, Sec
19
Registered mail, Rule 14,
Sec 19
NOTES ON SUMMONS:
Venturanza - residence means "actual residence"
What make time reasonable is the efforts exerted
by the sheriff in serving the summons personally
to the defendants.
Remedies in default judgment:
1. Motion for New Trial
2. Appeal
3. Motion for Relief from Judgment
4. Motion to Set Aside Judgment
A judgment rendered without jurisdiction never
prescribes, passage of time can never correct the
judgment of a court which has never acquired
jurisdiction.
Personal and real actions are important in
determining venue of actions.
Actions in personam and in rem are important
for service of summons.
Actions affecting personal actions are actions in
rem and therefore extraterritorial service by
publication may be made.
Options for service of summons:
1. Personal service
2. Substituted service
3. Extraterritorial service: not a mode of service,
principally
(a) personal
(b) service by publication (always accompanied
by registered mail)
Service of other Pleadings: Rule 13 Service of
Summons: Rule 14
1. Personal Delivery
1. Personal Service
To party/counsel To
the defendant only
Residence, to person of suitable no
such thing as service by registered
35
 CIVIL PROCEDURE
Age and Discretion
mail
Purpose: acquisition of jurisdiction
2. Substituted Service
2. Substituted Service
3. Extraterritorial Service
Either personally or by publication
File a motion for leave of court inorder to be
able to serve extraterritorially
Extraterritorial Service by publication - may be
made only in four (4) instances as enumerated in
§15 of Rule 14 and Dial Co. v. Soriano.
In rem for publication.
Resident temporarily out may be served
extraterritorially, personally
Can apply to a foreigner having residence in the
Philippines
Rule 15
Motions
Municipality of Binan v. CA, 219 SCRA
FACTS: P filed a civil case for
unlawful detainer vs. G. After filing an
answer, G filed a Motion for
Preliminary Hearing as if a Motion to
Dismiss has been Filed on the ground
that the complaint states no cause of
action. The MTC, instead of
conducting a hearing, rendered a
judgment order in G to vacate the
premises.
HELD: A motion for Preliminary
Hearing is merely PERMISSIVE. Sec. 5
Rule 16 is not mandatory even when
prayed for. It rests largely on the
sound discretion of the TC & is not a
matter of right demandable. A prelim
hearing on an affirmative defense of
lack of cause of action is not
necessary since the question
submitted is the sufficiency of
allegation in the complaint itself.
International Container Terminal Services v,
CA, 214 SCRA
Facts: ICTSI adopted its co-
respondent PPA’s MTD the complaint
vs. them filed by Sharp. When such
MTD was granted, ICTSI moved for a
reconsideration of said order insofar
as it dismissed ICTSI’s counterclaim.
Prepared by:
AKSYON PARTY
Held:
1. Dismissal of complaint on
defendant’s own motion operated to
also dismiss the counterclaim
questioning the complaint.
2. Defendant himself joined PPA in
moving for dismissal of complaint; it
did not object to the dismissal.
Secondly, compulsory claim was so
intertwined w/ complaint that it could
not remain pending for independent
adjudication.
Calalang v. CA, 217 SCRA 462
Facts: The 7-year delay in the
prosecution of the bank’s case was
due to the several MTD’s w/c required
oppositions & replies, pre-trial was
reset several times, & the judges
handling the case were constantly
being replaced.
Held:
1. Though it is w/in the discretion of
the TC to declare a party non-suited
for non-appearance in pre-trial
conference, such discretion must not
be abused.
2. To constitute sufficient ground for
dismissal, delay must not only be
lengthy but also unnecessary &
dilatory resulting in the trifling of
judicial process.
Rule 16
Motion to Dismiss
Lagutan v. Icao, 224 SCRA 9
FACTS: The heirs of L filed a
complaint vs. I for specific
performance. I, in his answer, raised
the ff. defenses: lack of cause of
action, prescription, non-compliance
w/ the Statute of Frauds. Afterwards, I
filed a motion to dismiss. CFI granted
the MTD.
HELD: Under R. 16, a MTD must be
filed w/in the time for pleading (period
to answer). Thus, the ct. erred in
granting the MTD considering that it
was filed 3 mo. after the amended
answer was filed.
The sufficiency of a motion to
dismiss should be tested on the
strength of the allegations of facts
contained in the complain & no other.
36
 CIVIL PROCEDURE
The ct. cannot inquire into the truth of
the allegations & declare them to be
false. Otherwise, there would be a
denial of procedural due process.
Laus v. CA, 219 SCRA
HELD: If a defendant had not been
properly summoned, the period to file
a MTD for lack of jurisdiction over his
person does not commence to run
until he voluntarily submits to the
jurisdiction of the ct..
In this case, D did not
voluntarily submit. Thus, the period to
file a responsive pleading did not even
commence to run.
As a general rule: an order
denying a MTD being interlocutory
cannot be the subject of certiorari.
EXCEPTION: When TC clearly
acted outside of its jurisdxn or w/
grave abuse of discretion in denying
MTD.
Bar by prior judgment
DBP v. Pondugar, 218 SCRA 118
FACTS: CFI dismissed the injunction
suit filed by IISMI vs. the government,
DBP CB BOI & Sheriff of Lanao del
Norte w/ prejudice for IISMI’s failure to
appear during the pre-trial. Fourteen
years later, IISMI, Fernando Jacinto &
Jacinto Steel filed a complaint vs.
DBP, NDC & NSC before the RTC Iligan
praying that the extrajudicial
foreclosure conducted in accordance
w/ the decision in the first case be
annulled.
HELD:
1. As a general rule, certiorari
is not available since a motion to
dismiss is merely interlocutory.
However, when the ct., in denying the
MTD, acts w/o or in excess of
jurisdiction or w/ grave abuse of
discretion, certiorari becomes
available to relieve the defendant of
the trouble of undergoing the ordeal &
expense of a useless trial.
2. 2nd Case should be
dismissed bec. of res judicata.
RES JUDICATA - ELEMENTS
a. Former judgment
must be final. CFI order has attained
finality
Prepared by:
AKSYON PARTY
since there was no motion for
recon or appeal.
b. The ct. w/c rendered
it had jurisdiction over the subject
matter
& the parties.
c. Must be a judgment
on the MERITS. The first case was an
adjudication
on the merits since the CFI
considered the evidence presented
during the hearing;
dismissed w/ prejudice due to
failure to appear during pre-trial
despite due notice.
d. There must be,
between the 1st & 2nd actions,
identity of parties, subject
matter & cause of action.
Absolute identity of
parties is not required. Substantial
identity is sufficient. Inclusion of add’l
parties will not affect the application
of RJ.
Test Of Identity of COA
does not lie in the form of the action
but on whether
the same evidence would
support & establish the former &
present COA
3. RTC has committed grave
abuse of discretion in taking
jurisdiction . Although it is not prayed
that the CFI orders be annulled, the
effect is to annul the findings of
mismanagement & to relitigate the
same claims. Action for reconveyance
is misleading since it is but the
inevitable consequence if the CFI
orders are annulled.
4. A finding that the complaint
states a COA does not imply that the
complainant is assured of a ruling in
his favor. While a MTD based on
failure of the complainant to state a
COA necessarily carries w/ it the
admission, for purposes of the motion,
of the truth of all material facts
pleaded in the complaint, what is
submitted for determination therein is
the sufficiency of the allegations in the
complaint.
5. A MTD may be granted
even if only 1 ground is present.
Litis pendencia
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 CIVIL PROCEDURE
Vitrionics Computers v. RTC, 217 SCRA 1
FACTS: P filed w/ the RTC Makati Br.
63 a complaint for a sum of money &
damages vs. PR (*1st case - Civil Case
# 91-2069) The following day, the PR
filed a complaint for the nullification of
the contract on the ground of fraud.
This was docketed as Civil Case # 91-
2192 * 2nd case.
PR filed a MTD & or to suspend
proceedings 1st case. RTC Makati Br.
63 dismissed the 1st case on the
ground of litis pendentia
HELD: The 2nd case should be the
one dismissed & not the 1st case.
REQUISITES OF LITIS
PENDENTIA
1. Identity of parties or at least
such as representing the same
interests in both actions;
2. Identity of rights asserted &
relief prayed for; the relief being
founded on the same facts;
3. Identity in the 2 cases
should be such that the judgment that
may be rendered in the pending case
would, regardless of w/c party is
successful, amount to res judicata in
the other.
In our jurisdiction, the ROC
simply requires that there is a
PENDING action, NOT a PRIOR
PENDING ACTION. Therefore, the
priority in time rule is not applicable.
***CRITERIA IN DETERMINING
WHICH OF THE CASES SHOULD BE
ABATED
1. The more appropriate action
shall be maintained (Teodoro vs.
Mirasol)
2. Interest of justice test,
taking into account a) the nature of
controversy; b) comparative
accessibility of the ct. to the parties; c)
other similar factors (Roa-Magsaysay
vs. Magsaysay)
**In both tests, the bona fides
or the good faith of the parties shall
be taken into consideration
Res judicata
Abalos v. CA, 223 SCRA
FACTS: The RTC, acting as a Land
Registration Court, granted the
application for registration of title filed
by A. After this, PR filed a complaint
Prepared by:
AKSYON PARTY
vs. A for the annulment of the
document of sale & or redemption of
ownership plus damages. A filed a
MTD on the ground of res judicata.
HELD: MTD granted on the ground of
res judicata. The general rule is that
the land registration ct. has limited
jurisdiction. EXCEPTIONS: 1. The
parties have agreed or have
acquiesced in submitting the issues
for determination by the ct. in the
proceedings; 2. the parties were
accorded opportunity in presenting
their respective arguments of the
issues litigated & of the evidence in
support thereof; 3. the ct. has already
considered the evidence on record & is
convinced that the same is sufficient &
adequate for rendering a decision
upon the issues controverted. In the
CAB, the issue of ownership was fully
ventilated.
While the jurisdiction of the LRC
is limited, the power to determine the
validity of the documents pertaining to
sale of lands is necessarily w/in its
jurisdiction.
Res judicata v. conclusiveness of
judgment
Nabus v. CA, 190 SCRA
FACTS: Nabus brought an action for
reconveyance of land vs. Lim. This
was based on the Public Land Law.
Upon failure of N to comply w/ the ct.
order (CFI ordered him to deposit the
repurchase price), the ct., upon L’s
filing of a MTD, dismissed the case w/
prejudice.
N filed a 2nd case for the rescission of
the contract Was the complaint for
rescission & damages barred by prior
judgment of dismissal.
HELD: NO.
A. Res Judicata has 2
concepts:
1. Bar by Former Judgment.
There is identity of parties, subject
matter & COA. The judgment on the
merits rendered on the 1st case
constitutes an absolute bar to the
subsequent action not only as to every
matter w/c was offered but as to any
admissible matter w/c might have
been offered for that purpose.
ELEMENTS OF BAR BY FORMER
JUDGMENT
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 CIVIL PROCEDURE
a. presence of a final
former order
b. former judgment
rendered by a ct. having jurisdiction
over
the subject matter & the
parties
c. former judgment is a
judgment on the merits.
d. identity of parties,
subject matter & cause of action.
Judgment on the Merits
 When it determines the rights &
liabilities of the parties based on
disclosed facts, irrespective of formal,
technical or dilatory objections.
 Where complaint is dismissed for
failure of P to comply w/ a lawful order
of the ct., this has the effect of an
adjudication upon the merits.
In the CAB, there is No identity
of Cause of Action since the evidence
that was presented in the 1st case is
not the same evidence that is needed
to sustain the 2nd case.
2. Conclusiveness of Judgment
- There is identity of parties but no
identity of cause of action. In this
case, judgment is conclusive only as
to matters actually & directly
controverted & determined & not as to
matters merely involved. This is not
applicable bec. the unpaid balance
was never put in issue.
B. Nevertheless, the action
was dismissed bec. it had has already
prescribed.
UP v. CA, 218 SCRA 72
FACTS: Elizalde & the Tasaday
representatives filed a case vs. B & S
based on torts. UP filed a motion to
intervene w/c was granted. After UP
has filed an answer in intervention, B
& S filed a MTD on the ground of lack
of COA. Court denied B & S’s MTD. Up
also filed a MTD but this was denied
bec. UP has already filed an answer.
HELD: Res Judicata does not apply
bec. there is no identity of subject
matter. The ct. denied B & S’s MTD on
the ground that there is a COA while it
Prepared by:
AKSYON PARTY
denied UP’s MTD bec. it had already
filed an answer.
The argument that B & S are
protected by academic freedom is a
valid defense that must be raised
during trial.
It is not w/in the competence of
the ct. to declare the Tasadays a
distinct ethnic community. This is akin
to a prayer for a judicial declaration of
citizenship w/c may not be granted in
a petition for declaratory relief.
LECTURE ON DISMISSALS
MTD should contain:
a) relief sought to be obtained
a) grounds on which it is based
a) supporting affidavits and other papers as
required by the Rules or to prove the facts
alleged
a) notice of hearing since MTD can't be heard
ex parte
Procedure: Movant: one who files motions:
sets date for hearing: clerk of court to calendar
it after getting proof of service: oppositor
should have actual receipt of notice 3 days
before hearing and hearing should not be > 10
days from filing of the motion: periods depend
on how the filing is done whether personal
delivery or registered mail: if the latter,
explainwhy not personal delivery and with proof
of service
Execptions to motions must be in writing:
a) made in open court or made in the course of a
hearing or trial
eg. Exclude public; hold other counsel in
contempt; admissibility of evidence; motion to
leave the court
a) motions which do not substantially prejudice
the rights of the other party
eg. Motions for suspension of the trial
If no MTD filed, any of the grounds for an MTD
can be raised as an affirmative defense
Except lack of jurisdiction over the person
Affirmative defense since it means that D made
an answer and subjected himself to the
jurisdiction of the court
Defenses NOT waived when not set up in an
MTD or affirmative defense Rule 9 sec 1
a) jurisdiction over subject matter
a) res judicata or statute of limitations
a) litis pendencia
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 CIVIL PROCEDURE

if D files MTD for failure to state a cause of
action, P's remedy is to file an amended
pleading
Nature of MTD: hypothetically admits
allegations in complaint as true: affirmative
defense
MTD confusion and avoidance (WIT):
hypothetical admission and denial
Possible defenses when served with a complaint.
Line by line:
RTC - lack of jurisdiction
NCR, QC - wrong venue
P - lack of capacity to sue
Summons - lack of J over D
Pleading - no cause of action
Body - litis pendentia, res judicata,
paid/waived/unenforceable
Allegations of conditions precedent -
failure to undergo conditions precedent
Failure to include certification against
forum shopping under oath
NOTE Rule 16 sec 6 makes it discretionary on
the trial court to rule on affirmative defense
raising any of the grounds of MTD as long as
MTD not filed
L: res judicata already raised as MTD, MTD
denied during hearing, then can't raise
affirmative defense on same ground since
already settled that not res judicata (WIT)
LINA V CA: Remedies for default judgment
a) motion to set aside order of default
b) motion for new trial
c) appeal
d) petition for review of judgment
LAUS: no default since D did not receive
summons. Period for filing answer has not yet
started to run. Remedy: MTD. Remedy if
MTD denied: certiorari for arbitrary ruling
NOTES ON MOTION TO DISMISS

Court after proper hearing on MTD can: Bar by prior judgment

a) sustain MTD and dismiss the complaint conclusiveness of judgment
b) deny the MTD and compel D to file an JUDGMENT Former judgment
answer F
c) order that the complaint be amended Valid court with jurisdiction
V
Court will rule on face of document: no need to Merits
receive evidence but should give other party the M
opportunity to be heard. Other party to file his
opposition to the MTD
IDENTITY Cause of action
Hearing not necessary if there is no need to Subject matter
present evident Parties
eg. improper venue, no jurisdiction over subject
matter or person - just study complaint or return
of summons Certiorari Special civil action
When hearing necessary, movant has the burden May be related to main cause
of proving his opposition. D to present evidence of action
first. Evidence presented during hearing on WON court a quo committed
MTD automatically reproduced during trial grave abuse of discretion

Hearing on motion: receive evidence in support
of motion
Trial : receive evidence on ultimate
causes
MTD not a responsive pleading but a motion
After filing MTD can no longer file Bill of
Particulars since MTD means that D is
presumed to have understood the complaint.
Must file B of P before MTD then motion for
extension of time to plead then pleading with
counterclaim
Prepared by:
AKSYON PARTY
U. P. case - certiorari by Bailen and Salazar in
SC first civil action
Certiorari - as a mode of appeal
Certiorari - special civil action, grave abuse of
discretion
Distinguish between petition for review by
certiorari and original special civil action for
certiorari
UP -orders of MTD contained two (2) different
things
Special civil action is a different thing
Certiorari is an extraordinary remedy
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 CIVIL PROCEDURE
Answer-in-intervention: grounds for dismissal
may be raised in an affirmative defense inspite
of prior dismissal of a MTD by the original
defendant.
Procedure to intervene:
1. Motion for leave of court to intervene
2. After granting by the court, intervenor may
file MTD.
Denial of MTD is only a denial of the
hypothetical admission mode by the defendant
but may still be controverted in the trial. Once
a MTD has been filed and denied, grounds
raised can no longer be set up as affirmative
defenses.
Lack of Jurisdiction over the person cannot be
raised in an affirmative defense.
Default - remedy of the complainant
Rule 17 §37 - plaintiff declared non-suited.
If answer filed after reglementary
period and default (motion) filed thereafter,
court should not render an order of default since
default are generally frowned upon.
Remedies for a default judgment:
1. Motion under oath to set aside order of
default
2. Motion for new trial - judgment not final &
executory
3. Petition for relief from judgment - judgment
final & executory
4. Appeal - no way that defendant can present
evidence.
Rule 19 § 5 - failure of defendant to appear,
presentation of evidence shall be proved.
No more "as in default"
No opportunity to jump to judgment, only that
plaintiff may present evidence ex-parte.
Lesaca - What judgment can be rendered
Rule 34. Judgment on the Pleadings
If no material issue is contested (e.g. only
amount of damages), judgment on the pleadings
may be issued.
MTD - confession/avoidance
Motion for Summary Judgment - remedy so as
not to go through the entire trial.
Motion for Summary Judgment may be
substituted by an Answer.
Judgment after Trial ]
Prepared by:
AKSYON PARTY
Summary Judgment ]
Judgment on the merits;
Judgement on the Pleadings ]
ways of terminating trial
Judgment by Default ]
MTD - judgment which do not look at the merits
Final orders
Judgment ] Ways of terminating
trial
Order ]
Rule 17
Dismissal of Actions
Meliton v. CA, supra
Facts: When the complaint vs. Meliton
was dismissed, her counterclaims
were also dismissed, w/ the trial ct.
ruling that it acquired no jurisdiction
over such counterclaims due to non-
payment of docket fees. Later, Meliton
sued on these counterclaims. The
defendants therein raised the defense
of res judicata.
Held: Where a counterclaim is made the subject
of a separate suit, it may be abated upon a plea
of auter action pendentia or litis pendentia, &/or
dismissal on the ground of res judicata. Res
judicata, however, is not applicable since
counterclaim was dismissed w/o prejudice since
the ct. held that it did not acquire jurisdiction
due to non-payment of docket fees. Neither is
there litis pendentia. Dismissal on the ground of
lack of jurisdiction does not constitute res
judicata, there having been no consideration &
adjudication of the case on the merits.
DBP v. Pondugar, supra
Facts: IISMI instituted an injunction
suit to stop foreclosure on its property.
PI was issued. While case was pending
in 1972, Martial Law was declared.
1972 LC dissolved the writ & held
there was mismanagement b IISMI. LC
said applicant for preliminary
injunction should establish a clear
case & must come to ct. w/ clean
hands. PI being an equitable remedy.
LC dismissed the case. 14 years later,
complaint was filed to set aside the
foreclosure.
Held: Complaint should be dismissed.
There is res judicata as the former
judgment was final, ct. had jurisdiction
41
 CIVIL PROCEDURE
over subject matter & parties, there
was judgment on the merits, & there
was identity of parties, subject matter
& COA’s. Martial Law doesn’t qualify as
a force majeure w/c would suspend
the running of the period. That the
Jacintos were abroad & couldn’t come
home as Marcos canceled their
passports is not a bar to the filing of
the injunction case. When they lost,
they should have filed an appeal or
separate action to annul the same
through their consuls based here.
Rule 9, Sec. 3
Default
Lim Tan Hu v. Ramolete, supra
Facts: supra.
Held: Parties declared in default waive their
right to be heard & present evidence & are not
entitled to receive notice of other proceedings &
to service of papers except when the latter
consist of substantially amended pleadings &
final orders. If the parties in default file a
Motion to Lift Order of Default, they shall not
lose their right to the notices.
Malanyaon v. Sunga, 208 SCRA
Facts: Petitioner got sick & asked the
judge to defer the schedule of his
appearance at the pre-trial hearings.
As P did not appear at the hearings,
the judge declared P in default &
ordered his arrest.
Held: Where the failure to appear at
the pre-trial hearing was
uncontrovertedly due to illness, the
default order may be set aside on the
ground of accident over w/c petitioner
had no control. Also, the order of
arrest was illegal as there is nothing in
the Rules of Court w/c authorizes such
as a consequence of a default order.
Lesaca v. CA, 215 SCRA
Facts: Defendant failed to appear at
the scheduled preliminary conference
for a complaint for ejectment & as
such was declared in default. The ct.
then considered the case submitted
for decision.
Held: The Rules on Summary
Procedure was applied in this case.
Sec. 6 thereof states that in case of
Prepared by:
AKSYON PARTY
failure of parties to appear at the pre-
trial conf., the ct. should have issued a
"preliminary conference order"
defining the issues of the case.
Thereafter the parties should have
submitted their affidavits & other
evidence. Sec. 5 states that it is only
when defendants fail to file a
responsive pleading w/in the
reglementary period may the ct.
proceed to render judgment. In the
CAB, resp. did not file an answer. TC
may not declare him in default bec. a
motion to declare defendant in default
is a prohibited pleading under Sec. 15
(h) of the Rules on SumPro.
Datu v. CA, 215 SCRA
Facts: Defendant Habaluyas was
declared in default. Decision was
rendered in favor of Mangelen
awarding him exemplary damages w/c
was not included in his prayer for
specific performance.
Held: In a judgment based on
evidence presented ex-parte,
judgment should not exceed the
amount or be different in kind fr. that
prayed for Thus, Mangelen is not
entitled to exemplary damages. On
the other hand, in a judgment where
an answer was filed but def. did not
appear at the hearing, the award may
exceed the amount or be different in
kind fr. that prayed for.
Dulos v. CA, 188 SCRA
Facts: Dulos spouses were declared
as in default for failure to appear at
the pre-trial conference. In their
action for certiorari w/ the SC, they
contend that they were not able to
move to set aside the order of default
since they were not furnished w/
copies of the order declaring them in
default.
Held: Party in default is not entitled
to notice of subsequent proceedings
under the Rules of Court.
Ramnami v. CA, 221 SCRA
Facts: A complaint for collection of a
sum of money was filed vs. the
Ramnanis, who failed to appear at pre-
trial. They were declared in default. A
motion to lift the order of default was
filed w/c was denied. TC decision
rendered vs. them. They filed w/ the
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 CIVIL PROCEDURE
CA a petition for certiorari w/c was
dismissed since it was not the proper
remedy. Hence this petition.
Held: Motion to set aside default
order could not be issued since there
was inexcusable non-appearance
(remember FAME?). The appropriate
remedy was an ordinary appeal under
Sec. 2, Rule 41 of the Rules of Court.
Certiorari is proper only if party was
illegally declared in default. In CAB,
no irregularities in the pre-trial have
been alleged. It is w/in the sound
discretion of the ct. to set aside an
order of default but it is not error, or
abuse of discretion to refuse to set
aside order of default & to refuse to
accept the answer where it finds no
justiciable reason for the delay of the
filing of an answer.
Gerales v. CA, 218 SCRA 68
Facts: supra.
Held: Pleadings, as well as remedial
laws, should be liberally construed in
order that litigants may have ample
opportunity to prove their respective
claims, & possible denial of substantial
justice, due to technicalities may be
avoided. Default judgment is frowned
upon, & unless it clearly appears that
reopening of the case is intended for
delay, it is best to give parties a
chance to fight their case.
Rule 34
Judgment on the Pleadings
Rule 35
Summary Judgments
Rule 18
Pre-Trial
Sec. 1. When conducted. – After the last
pleading has been served and filed, it shall be
the duty of the plaintiff to promptly move ex
parte that the case be set for pre-trial.
Sec. 2. Nature and purpose. – The pre-trial is
mandatory. The court shall consider:
Prepared by:
AKSYON PARTY
(a) The possibility of an amicable
settlement or of a submission to alternative
modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of
amendments to the pleadings;
(d) The possibility of obtaining stipulations
or admissions of facts and of documents to avoid
unnecessary proof;
(e) The limitation of the number of
witnesses;
(f) The advisability of a preliminary reference
of issues to a commissioner;
(g) The propriety of rendering judgement
on the pleadings, or summary judgement, or of
dismissing the action should a valid ground
therefor be found to exist;
(h) The advisability or necessity of
suspending the proceedings; and
(i) Such other matters as may aid in the prompt
disposition of the action.
Sec. 3. Notice of pre-trial. – The notice of pre-
trial shall be served on counsel, or on the party
who has no counsel. The counsel served with
such notice is charged with the duty of notifying
the party represented by him.
Sec. 4. Appearance of parties. – It shall be the
duty of the parties and their counsel to appear at
the pre-trail. The non-appearance of a party
may be excused only if a valid cause is shown
therefor or if a representative shall appear in his
behalf fully authorized in writing to enter into
an amicable settlement, to submit to alternative
modes of dispute resolution, and to enter into
stipulations or admissions of facts and of
documents.
Sec. 5. Effect of failure to appear. – The
failure of the plaintiff to appear when so
required pursuant to the next preceding section
shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless
otherwise ordered by the court. A similar failure
on the part of the defendant shall be cause to
allow the plaintiff to present his evidence ex
parte and the court to render judgement on the
basis thereof.
Sec. 6. Pre-trial brief. – The parties shall file
with the court and serve on the adverse party, in
such manner as shall ensure their receipt thereof
at least three (3) days before the date of the pre-
trial, their respective pre-trial briefs which shall
contain, among others:
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 CIVIL PROCEDURE
(a) A statement of their willingness to
enter into amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereof.
(b) A summary of admitted facts and
proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be
presented, stating the purpose thereof;
(e) A manifestation of their having availed
or their intention to avail themselves of
discovery procedures or referral to
commissioners; and
(f) The number and names of the witnesses,
and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
Sec. 7. Record of pre-trial. – The proceedings
in the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue an
order which shall recite in detail the matters
taken up in the conference, the action taken
thereon, the amendments allowed to the
pleadings, and the agreements or admissions
made by the parties as to any of the matters
considered. Should the action proceed to trial,
the order shall explicitly define and limit the
issues to be tried. The contents of the order
shall control the subsequent course of the action,
unless modified before trial to prevent manifest
injustice.
Citibank v, Chua, 220 SCRA
Facts: Pre-Trial was set. Counsel of
Citibank appeared w/ an SPOA
executed by Citibank officer Tarriela in
favor of the counsel to represent &
bind Pet at the PT conference. Velezes,
the private resps, moved to have
Citibank declared “as in default” since
SPOA was not executed by the Board
of Directors. TC declared the bank “as
in default.”
Held: TC should have accepted the
first SPOA as sufficient for PT. SC
admonished Courts vs. precipitate
orders of default as they have the
effect of denying the litigant the
chance to be heard. There are
instances when parties may properly
be defaulted, but such is the EXC
rather than the rule & should be
allowed only in clear cases of
Prepared by:
AKSYON PARTY
obstinate refusal or inordinate neglect
to comply w/ ct. orders.
Municipality of Binan v. Garcia, 180 SCRA
Facts: A special civil action for
eminent domain/ expropriation.
Defendant, instead of filing answer
filed “MTD” on grounds not specified
under Rule 16 (refer to Rule 16). Her
MTD was filed pursuant to R67, S3 of
the ROC : “Within the time specified in
the summons, each defendant , in lieu
of an answer, shall present in a single
motion to dismiss of for other
appropriate relief, all his objections &
defenses to the right of the plaintiff to
take his property for the use specified
in the complaint.”
The TC :
 reversed the order of trial allowing
defendant to present her evidence
before the plaintiff &
 subsequently rendered order
sustaining defendant’s defense &
dismissing the action as to her, solely
on her evidence
Rule: A MTD under Eminent Domain
(R67) is really an answer. Thus if such
MTD is filed (under R67), the order of
trial remains under R30.
CAB: There was no valid cause to reverse the
order of trial. MTD here partakes the nature of
a pleading. Plaintiff should thus go first. What
the trial ct. have in mind was the provision of
Sec. 5, R16 allowing “any of the grounds for
dismissal in R16 to “be pleaded as an
affirmative defense” & authorizing the holding
of a preliminary hearing x x thereon as if a
MTD has been filed. Defendants defense
however was not a ground for dismissal under
R16. She meant to prove plaintiff’s lack of
cause of action w/c is not the same as failure to
state a cause of action. There is also nothing in
the record to prove the Municipality’s waiver of
right to present contrary proof.
Rule 20
Calendar of Cases
Rule 30
Trial
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 CIVIL PROCEDURE
Rule 31
Consolidation or Severance
Rule 32
Trial by Commissioner
Laluan v. Malpaya, 64 SCRA
Lim Tan Hu v. Ramolete, supra
Pagkatipunan v. Bautista, 108 SCRA
NOTES ON TRIAL BY COMMISSIONER
Rule 18. Pre-Trial
Laying down the issues - allegations and what
are being denied.
Stipulation of facts - evidentiary facts
Compromise judgment - final & executory;
immediately executory.
1. Trial by assessors - Pagkatipunan v. Bautista,
mandatory
Rarely invoked; tend to earn the ire of the judge
Sit only for the trial
2. Trial by commissioners
3. Delegation of reception of evidence by the
Clerk of Court
Qualifications of Assessors Act 190 -
Rule 33
Demurrer to Evidence
Rule 21
Subpoena
Section 1. Subpoena and subpoena duces tecum.
- Subpoena is a process directed to a person
requiring him to attend and to testify at the
hearing or the trial of an action, or at any
investigation conducted by competent authority,
or for the taking of his deposition. It may also
require him to bring with him any books,
documents, or other things under his control in
which case it is called a subpoena duces tecum.
Prepared by:
AKSYON PARTY
Section 2. By whom issued. - the subpoena may
be issued by -
(a) the court before whom the witness is
required to attend;
(b) the court of the place where the
deposition is to be taken;
(c) the officer or body authorized by
law to do so in connection with investigations
conducted by said officer or body or
(d) any Justice of the Supreme Court or
of the Court of Appeals in any case or
investigation pending within the Philippines.
When the application for a subpoena to
a prisoner is made, the judge or officer shall
examine and study carefully such application to
determine whether the same is made for a valid
purpose.
No prisoner sentenced to death,
reclusion perpetua or life imprisonment and who
is confined in any penal institution for
appearance or attendance in any court unless
authorized by the Supreme court.
Section 3. Form and Contents. - A subpoena
shall state the name of the court and the title of
the action or investigation, shall be directed to
the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books,
documents or things demanded which must
appear to the court prima facie relevant.
Section 4. Quashing a subpoena. - The court
may quash a subpoena duces tecum upon motion
promptly made and, in any event, at or before
the time specified therein if it is unreasonable
and oppressive, or the relevancy of the books,
documents or things does not appear, or if the
person in whose behalf the subpoena is issued
fails to advance the reasonable cost of
production thereof.
The court may quash the subpoena ad
testificandum on the ground that the witness is
not bound thereby. In either case, the subpoena
may be quashed on the ground that the witness
fees and kilometrage allowed by these Rules
were not tendered when the subpoena was
served.
Section 5. Subpoena for depositions. - Proof of
service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the
issuance of subpoenas for the persons named in
said notice by the clerk of the court of the place
in which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces
45
 CIVIL PROCEDURE
tecum to any such person without an order of the
court.
Section 6. Service. - Service of a subpoena shall
be made in the same manner as personal or
substituted service of summons. The original
shall be exhibited and a copy thereof delivered
to the person on whom it is served, tendering to
him the fees for one day’s attendance and the
kilometrage allowed by these rules, except that,
when a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or
agency thereof, the tender need not be made.
The service must be made so as to allow the
witness a reasonable time for preparation and
travel of the place of attendance. If the
subpoena is duces tecum, the reasonable cost of
producing the books, documents or things
demanded shall also be tendered.
Section 7. Personal appearance in court. - A
person present in court before a judicial officer
may be required to testify as if he were in
attendance upon a subpoena issued by such court
or officer.
Section 8. Compelling attendance. - In case of
failure of a witness to attend, the court or judge
issuing the subpoena, upon proof of the service
thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province, or
his deputy, to arrest the witness and bring him
before the court or officer where his attendance
is required, and the cost of such warrant and
seizure of such witness shall be paid by the
witness if the court issuing it shall determine
that his failure to answer the subpoena was
willful; and without just excuse.
Section 9. Contempt. - Failure by any person
without adequate cause to obey a subpoena
served upon him shall be deemed a contempt of
the court from which the subpoena is issued. If
the subpoena was not issued by a court, the
disobedience thereto shall be punished in
accordance with the applicable law or Rule.
Section 10. Exceptions. - The provisions of
sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred
(100) kilometers from his residence to the place
where he is to testify by the ordinary course of
travel, or to a detention prisoner if no
permission of the court in which his case is
pending was obtained.
Prepared by:
AKSYON PARTY
Discovery
Modes of Discovery
RULE 23
DEPOSITIONS PENDING ACTION
Section 1. Depositions pending actin, when
may be taken. - By leave of court after
jurisdiction has been obtained over any
defendant or over property which is the subject
of the action, or without such leave after an
answer has been served, the testimony of any
person, whether a party or not, may be taken, at
the instance of any party, by deposition upon
oral examination or written interrogatories. The
attendance of witnesses may be compelled by the
use of a subpoena as provided in Rule 21.
Depositions shall be taken only in accordance
with these Rules. The deposition of a person
confined in prison may be taken only by leave of
court on such terms as the court prescribes.
Section 2. Scope of examination. - Unless
otherwise ordered by the court as provided by
section 16 or 18 or this Rule, the deponent may
be examined regarding any matter, not
privileged, which is relevant to the subject of the
pending action, whether relating to the claim or
defense of any other party, including the
existence, description, nature, custody,
condition, and location of any books,
documents, or other tangible things and the
identity and location of persons having
knowledge of relevant facts.
Section 3. Examination and cross-examination.
- Examination and cross-examination of
deponents may proceed as permitted at the trial
under sections 3 to 18 of Rule 132.
Section 4. Use of depositions. - At the trial or
upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence, may
be used against any party who was present or
represented at the taking of the deposition or
who had due notice thereof, in accordance with
any one of the following provisions:
(a) Any deposition may be used by any
party for the purpose of contradicting or
impeaching the testimony of deponent as a
witness;
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(b) The deposition of a party or of any
one who at the time of taking the deposition was
an officer, director, or managing agent of a
public or private corporation, partnership, or
association which is a party may be used by an
adverse party for any purpose;
(c) The deposition of a witness,
whether of not a party may be used by any party
for any purpose if the court finds: (1) that the
witness is dead; or (2) that the witness resides at
a distance more than one hundred (100)
kilometers from the place of trial or hearing, or
is out of the Philippines, unless it appears that
his absence was procured by the party offering
the deposition; or (3) that the witness is unable
to attend or testify because of age, sickness,
infirmity, or imprisonment; or (4) that the party
offering the deposition has been unable to
procure the attendance of the witness by
subpoena; or (5) upon application and notice,
that such exceptional circumstances exist as to
make it desirable, in the interest of justice and
with due regard to the importance of presenting
the testimony of witnesses orally in open court,
to allow the deposition to be used; and
(d) If only part of a deposition is offered
in evidence by a party; the adverse party may
require him to introduce all of it which is
relevant to the part introduced, and any party
may introduce any other parts.
Section 5. Effect of substitution of parties. -
Substitution of parties does not affect the right to
use depositions previously taken, and, when an
action has been dismissed and another action
involving the same subject is afterward brought
between the same parties or their representatives
or successors in interest, all depositions lawfully
taken and duly filed in the former action may be
used in the latter as if originally taken therefor;
section 6. Objections to admissibility. - Subject
to the provisions of section 29 of this Rule,
objection may be made at the trial or hearing to
receiving in evidence any deposition or part
thereof for any reason which would require the
exclusion of the evidence if the witness were
then present and testifying.
Section 7. effect of taking depositions. - A party
shall not be deemed to make a person his own
witness for nay purpose by taking his deposition.
Section 8. Effect of using depositions. - The
introduction in evidence of the deposition or any
part thereof for any purpose other than that of
contradicting or impeaching the deponent makes
the deponent the witness of the party
Prepared by:
AKSYON PARTY
introducing the deposition, but this shall not
apply to the use by an adverse party of a
deposition as described in paragraph (b) of
section 4 of this rule.
Section 9. Rebutting deposition. - At the trial or
hearing any party may rebut any relevant
evidence contained in a deposition whether
introduced by him or by any other party,
Section 10. Persons before whom depositions
may be taken within the Philippines. - Within
the Philippines, depositions may be taken before
any judge, notary public, or the person referred
to in section 14 hereof.
Section 11. Persons before whom depositions
may be taken in foreign countries. - In a foreign
state or country, depositions may be taken (a) on
notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines; (b)
before such person or officer as may be
appointed by commission or under letters
rogatory; or (c) the person referred to in section
14 hereof.
Section 12. Commission or letters rogatory. - A
commission or letters rogatory shall be issued
only when necessary or convenient, on
application and notice, and on such terms and
with such direction as are just appropriate.
Officers may be designated in notices or
commissions either by name or descriptive title
and letters rogatory may be addressed to the
appropriate judicial authority in the foreign
country.
Section 13. Disqualification by interest. - No
deposition shall be taken before a person who is
a relative within the sixth degree of
consanguinity or affinity, or employee or counsel
of any of the parties; or who is a relative within
the same degree, or employee of such counsel;
or who is financially interested in the action.
Section 14. Stipulations regarding taking of
depositions. - If the parties so stipulate in
writing, depositions may be taken before any
person authorized to administer oaths, at any
time or place, in accordance with these Rules,
and when so taken may be used like other
depositions.
Section 15. Deposition upon oral examination;
notice, time and place. - A party desiring to take
the deposition of any person upon oral
examination shall give reasonable notice in
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writing to every other party to the action. The
notice shall state the time and place for taking
the deposition and the name and address of each
person to be examined, if known, and if the
name is not known, a general description
sufficient to identify him or the particular class
or group to which he belongs. On motion of any
party upon whom the notice is served, the court
may for cause shown enlarge or shorten the
time.
Section 16. Orders for the protection of parties
and deponents. - After notice is served for taking
a deposition by oral examination upon motion
seasonably made by any party or by the person
to be examined and for good cause shown, the
court in which the action is pending may make
an order that the deposition shall not be taken,
or that it may be taken only at some designated
place other than that stated in the notice or that
it may be taken only in written interrogatories,
or that certain matters shall not be inquired into,
or that the scope of the examination shall be
held with no one present except the parties to
the action and their officers or counsel, or that
after being sealed the deposition shall be opened
only by order of the court or that secret
processes, developments, or research need not be
disclosed, or that the parties shall
simultaneously file specified documents or
informatin enclosed in sealed envelope to be
opened as directed by the court, or the court may
make any other order which justice requires to
protect the party or witness from annoyance,
embarrassment or oppression.
Section 17. Record of examination; oath;
objections. - The officer before whom the
deposition is to be taken shall put the witness on
oath and shall personally, or by some one acting
under his direction and in his presence, record
the testimony of the witness. The testimony
shall be taken stenographically unless the parties
agree otherwise. All objectins made at the time
of the examination to the qualifications of the
officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the
conduct of any party and any other objection to
the proceedings, shall be noted by the officer
upon the deposition. Evidence objected to shall
be taken subject to the objections. In lieu of
participating in the oral examination, parties
served with notice of taking a deposition may
transmit wrtieen interrogatories to the officers,
who shall propound them to the witness and
record the answers verbatim.
Prepared by:
AKSYON PARTY
Section 18. Motion to terminate or limit
examination. - At any time during the taking of
the depositin, on motion or petition of any party
or of the deponent and upon a shwing that the
examination is being conducted in bad faith or
in such manner, as unreasonably to annoy,
embarrass, or oppress the deponent or party, the
court in which the action is pending or the
Regional Trial Court of the place where the
deposition is being taken may order the officer
conducting the examinatin to cease forthwith
from taking the deposition , or may limit the
scope and manner of the taking of the
deposition, as provided in section 16 of this
Rule. If the order made terminates the
examination, it shall be resumed thereafter only
upon the order of the court in which the action
is pending. Upon demand of the objecting party
or deponent, the taking of the deposition shall be
suspended for the time necessary to make a
notice for an order. In granting or refusing such
order, the court may impose upon either party or
upon the witness the requirement to pay such
costs or expenses as the court may deem
reasonable.
Section 19. Submission to witness; changes;
signing. - When the testimony is fully
transcribed, the deposition shall be submitted to
the witness for examination and sahll be read to
or by him, unless such examination and reading
are waived by the witness and by the parties.
Any changes in form or substance which the
wirness desires to make shall be entered upon
the deposition by the officer with a statement of
the reasons given by the witness for making
them. The deposition shall then be signed by
the witness, unless the parties by stiplation
waive the signing or the witness is ill or cannot
be found or refuses to sign. If the deposition is
not signed by the witness, the officer shall sign
it and state on the record the fact of the waiver
or of the illness or absence of the witness or the
fact of the refusal to sign together with the
reason given therfor, if any, and the deposition
may then be used as fully as though signed,
unless on a motion to suppress under section
29(f) of this Rule, the court hold that the reasons
given for the refusla to sign require rejection of
the deposition in whole or in part.
Section 20. Certification and filing by officer. -
The officer shall certify on the deposition that
the witness was duly sworn to by him and that
the deposition is a true record of the testimony
given by the witness. He shall then securely seal
the deposition in an envelope indorsed with the
title of the action and marked “Deposition of
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(here insert the name of witness)” and shall
promptly file it with the court in which the
action is pending or send it by registered mail to
the clerk thereof for filing.
Section 21. Notice of filing. - The officer taking
the deposition shall give prompt notice of its
filing to all the parties.
Section 22. Furnishing copies. - Upon payment
of reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or
to the deponent.
Section 23. Failure to attend of party giving
notice. - If the party giving the notice of the
taking of a deposition fails to attend and proceed
therewith and another attends in person or by
counsel pusuant to the notice, the court may
order the party giving the notice to pay such
other party the amount of the reasonably
expenses incurred by him and his counsel in so
attensing, including reasonable attorney’s fees.
Section 23. Failure of party giving notice to
serve subpoena. - If the party giving the notice
of the taking of a deposition of a witness fails to
serve a subpoena upon him and the witness
because of such failure does not attend, and if
another party attends in person or by counsel
because he expects the deposition of that witness
to be taken, the court may order the party giving
the notice to pay to such other party the amount
of the reasonable expenses incurred by him
andhis counsel in so attending, including
reasonable attorney’s fees.
Section 25. Deposition ypon written
interrogatories; service of notice and of
interrogatories. - A party desiring to take the
deposition of any person ypon written
interrogatories shall serve them upon every
other party with a notice stating the name and
address of the person who is to answer them and
the name or descriptive title and address of the
officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party
so served may serve cross-interrogatories upon
the party proposing to take the deposition.
Within five (5) days thereafter, the latter may
serve re-direct interrogatories upon a party who
has served cross-interrogatories. Within three
(3) days after being served with a re-direct
interrogatories, a party may serve recross-
interrogatories upon the party proposing to take
the deposition.
Prepared by:
AKSYON PARTY
Section 26. Officers to take responses and
prepare record. - A copy of the notice and copies
of all interrogatories served shall be delivered by
the party taking the deposition to the officer
designated in the notice, who shall proceed
promptly in the manner provided by sections 17,
19 and 20 of this Rule, to take the testimony of
the witness in response to the interrogatories
and to prepare, certify, and file or mail the
deposition; attaching thereto the copy of the
notice and the interrogatories received by him.
Section 27. Notice of filing and furnishing
copies. - When a deposition uon interrogatories
is filed, the officer taking it shall promptly give
notice thereof to all the parties, and may furnish
copies to them or to the deponent upon payment
of reasonable charges therefor.
Section 28. Orders for the protectin of parties
and deponents. = After the service of the
interrogatories and prior to the taking of the
testimony of the deponent, the court in which
the action is pending, on motin promptly made
by a party or a deponent, and for good cause
shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate
and just or an order that the deposition shall not
be taken before the officer designated in the
notice or that it shall not be taken except upon
oral examination.
Section 29. Effect of errors and irregularities in
depositions. -
(a) As to notice. - All errors and
irregularities in the notice for taking a
deposition are waived unless writeen objection is
promptly served upon the party giving the
notice.
(b) As to disqualification of officer. -
Objection to taking a deposition because of
disqualification of the officer before whom it is
to be taken is waived unless made before the
taking of the deposition begins or as soon
thereafter as the disqualificatin becomes known
or could be discovered with reasonable
diligence.
(c) As to competency or relevancy of
evidence. - Objections to the competency of a
witness or the competency, relevancy, or
materiality of testimony are not waived by
failure to make them bofore or during the taking
of the deposition, unless the ground of the
objection is one which might have been obviated
or removed if presented at that time.
(d) As to oral examinatin and other
particulars. - Errors and irregularities occurring
at the oral examination in the manner of taking
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the deposition , in the form of the questions or
answers; in the oath or affirmation, or in the
conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosectued, are waived unless
reasonable objection thereto is made at the
taking of the deposition.
(e) As to form of written
interrogatories. - Objections to the form of
written interrogatories submitted under sections
25 and 26 of this Rule are waived unless served
in writing upon the party propounding them
within the time allowed for serving succeeding
cross or other interrogatories and within three
(3) days after service of the last interrogatories
authorized.
(f) As to manner of preparation. -
Errors and irregularities in the manner in which
the testimony is transcribed or the deposition is
parepared, signed, certified, selaed, indorsed,
transmitted, filed, or otherwise dealt with by the
officer under sections 17, 19, 20 and 26 of this
Rule are waived unless a motion to suppress the
deposition or some part thereof is made with
reasonable promptness after such defect is, or
with due diligence might have been, ascertained.
RULE 24
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
Section 1. Depositions before action; petition. -
A person who desires to perpetuate his own
testimony or taht of another person regarding
any matter that may be cognizable in any court
of the Philippines, may file a verified petition in
the court of the place of the residence of any
expected adverse party.
Section 2. Contents of petition. - The petition
shall be entitled in the name of the petitioner
and shall show: (a) that the petitioner expects to
be a party to an action in a court of the
Philippines but is presently unable to bring it or
cause it to be brought; (b) the subject matter of
the expected action and his interest therein; (c)
the facts which he desires to establish by the
proposed testimony and his reasons for desiring
to perpetuate it; (d) the names or a description of
the persons he expects will be adverse parties
and them addresses so far as known; and (e) the
names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to
take the depositions of the persons to be
Prepared by:
AKSYON PARTY
examined named in the petition for the purpose
of perpetuating their testimony.
Section 3. Notice and service. - The petitioner
shall serve a notice upon each person named in
the petition as an expected adverse party,
together with a copy of the petition; stating that
the petitioner will apply to the court, at a time
and place named therein, for the order described
in the petition. At least twenty (20) days before
the date of the hearing, the court shall casue
notice thereof to be served on the parties and
prospective deponenets int he manner provided
for service of summons.
Section 4. Order and examination. - If the court
is satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose depostion may be takne and
specifying the subject matter of the examination
and wherher the depositions shall be taken upon
oral examination or written interrogatories. The
depositions may then be taken in accordance
with Rule 23 before the hearing.
Section 5. Reference to court. - For the purpose
of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to
the court in which the action is pending shall be
deemed to refer to the court in which the
petition for such deposition was filed.
Section 6. Use of deposition. - If a deposition to
perpetuate testimony is taken under this Rule,or
if, although not so taken, it would be admissible
in evidence, it may be used in any action
involving the smae subject matter subsequently
brought in accordance with the provisions of
sections 4 and 5 of Rule 23.
Section 27. Depositions pending appeal. - If an
appeal has been taken from a judgment of a
court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the
time therefor has not expired, the court in which
the judgment was rendered may allow the taking
of depositions of witnesses to perpetuate their
testimony for use in the event of further
proceedings in the said court. In such case the
party who desires to perpetuate the testimony
may make a motion in the said court for leave to
take the depositions, upon the smae notice and
service thereof as if the action was pending
therein.. The motion shall state a) the names
and addresses of the persons to be examined and
the substance of the testimony which he expects
to elicit from each; and (b) the reason for
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perpetuating their testimony. If the court finds
that the perpetuation of the testimony is proper
to avoid a failure or delay of justice, it may make
an order allowing the depositions so be taken,
and thereupon the depositions may be takne and
used in the same manner and under the smae
conditions as are prescribed in these Rules for
depositions taken in pending actions.
RULE 25
INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties; service
thereof. - Under the same conditions specified in
section 1 of Rule 23, any party desiring to elicit
material and relevant facts from any adverse
parties shall file and serve upon the latter
written interrogatories to be answered by the
party served or, fi the party served is a public or
private corporation or a partnership or
association, by any officer thereof competent to
testify in its behalf.
Section 2. Answer to interogatories. - The
interrogatories shall be answered fully in writing
and shall be signed and sworn t by the person
making them. The party upon whom the
interrogatories have been sserved shall file and
serve a copy of the answers on the party
submitting the interrogatories within fifteen (15)
days after service thereof, unless the court on
motino and for good cause shown, extends or
shortens the time.
Section 3. Objections to interrogatories. -
Objections to any interrogatories may be
presented to the court within ten (10) days after
service thereof, with notice as in case of a
motion; and answers shall be deferred until the
objections are resolved., which shall be at as
early a time as is practicable.
Section 4. Number of interrogatoties. - No party
may, without leave of court, serve more than one
set of interrogatories to be answered by the same
party.
Section 5. Scope and use of interrogatories. -
Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23,
and the answers may be used for the same
purposes provided in section 4 of the same Rule.
Section 6. Effect of failure to serve written
interrogatories. - Unless thereafter allowed by
the court for good cause shown and to prevent a
failure of justice; a party not served with written
interrogatories may now be compelled by the
Prepared by:
AKSYON PARTY
adverse party to give testimony in open court; or
to give a deposition pending appeal.
RULE 26
ADMISSION BY ADVERSE PARTY
Section1. Request for admission. - At any time
after issues have been joined, a party may file
and serve upon any party a written request for
the admission by the latter of the genuineness of
any material and releant document described in
and exhibited with the request or of the truth of
any meterial and relevant matter of fact set forth
in the request. Copies of the documents shall be
delivered with the request unless copies have
already been furnished.
Section 2. Implied admission. -0 Each of the
matters of which an admission is requested shall
be deemed admitted unless, within a period
designated in the request, which shall not be less
than fifteen (15) days after service thereof, or
within such further time as the court may allow
on motion, the party to whom the request
directed files and serves upon the party
requesting the admission a sworn statement
either denying specifically the matters of which
an admission si requested or setting forth in
detail the reasons why he cannot truthfully
either admit or deny those matters.
Objections to any request for admission
shall be submitted to the court by the party
requested within the period for and prior to the
filinf of his sworn statement as contemplated in
the preceding paragraph and his compliance
therewith shall be deferred until such obligatins
are resolved, which resolution shall be made as
early as practicable.
Section 3. Effect of admission - Any admission
made by a party pursuant to such request is for
the purpose of the pending actin only and shall
not consitute an admission by him for any other
purpose nor may the same be used against him
in any other proceeding.
Section 4. Withdrawal. - The court may allow
the party making an admissin under this Rule,
whether express or implied, to withdraw or
amend it upon such terms as may be just.
Section 5. Effect of failure to file and serve
request for admission. - Unless otherwise
allowed by the court for good cause shown and
to prevent a failure of justice, a party who fails
to file and serve aw request for admission on the
adverse party of material and relevant facts at
issue which, or ought to be within the personal
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knowledge of the latter, shall not be permitted to
present evidence on such facts.
RULE 27
PRODUCTION OR INSPECTION OF
DOCUMENT OR THINGS
Section 1. Motion for productio or inspection;
order. - Upon motion of any party showing good
cause therefor, the court in which an action is
pending may (a) order any party to produce and
permit the inspection and dopying or
photographing, by or on behalf of the moving
party, of any designated documents, papers,
books, accounts, loetters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
involved in the action and which are in his
possessin, custody or control; or (b) order any
party or permit entry upon designated land or
other porpoerty in his possession or control for
the puropse of inspecting, measuring, surveying,
or photogrpahing the property or any designated
relevant object or operation thereon. The order
shall specify the time, place and manner of
making the inspection and taking ciopies and
photogrpahs, and may prescribe such terms and
conditions as are just.
RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
Section 1. When examination may be ordered. -
In an action on which the mental or physical
condition of a party is ain controversy, the court
in which the acito is pending may in its
discretion order him to submit to a physical or
mental examination by a physician.
Section 2. Oder for examination. - The orer for
examination may be made only on motion for
good cause shown and upon notice to the party
to be examined and to all other parties, and shall
specify the time, place, manner, conditions and
scope of the esmination and the person or
persons by whom it is to be made.
Section 3. Report of findings. - If requested by
the party examined, the party causeing the
esamination to be madee shall deliver to him a
copy of a detailed written report of the
examining physician setting out his findings and
conclusions. After such request and delivery, the
party causing the examination to be made shall
be entitled upon request to receive from the
party examined a like report of any examination,
previously or thereafter made, of the same
Prepared by:
AKSYON PARTY
metnal or physical condition. If the party
examined refuses to deliver such report, the
court on motion and notice may make an order
requiring delivery on such terms as are just, and
if a physician fails or refuses to make such a
report the court may exlude his testimony if
offered at the trial.
Section 4. Waiver of Privilege. - By requesting
and obtaining a report of the examination so
ordered or by taking the deposition of the
examiner , the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has
examined or may thereafter examine him in
respect of the mental or physical examination.
RULE 29
REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
Section 1. Refusal to answer. - If a party or
other deponent refuses to answer any question
upon oral examination, the examination may be
completed on other matters or adjourned as the
proponent of the question may prefer. The
proponent may thereafter apply to the proper
court of the place where the deposition is being
taken, for an order to compel an answer. The
same procedure may be availed of when a party
or a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
If the application is granted, the court
shall require the refusing party or deponent to
answer the question or interrogatory and if it
also finds that the refusal to answer was without
substantial justification, it may require the
refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the
proponent the amount of the reasonable
expenses incurred in obtaining the order,
including attorney’s fees.
If the application is denied and the
court finds that it was filed without substantial
justification, the court may require the
proponent or the counsel advising the filing of
the application, or both of them, to pay to the
refusing party or deponent the amount of the
reasonable expenses incurred in opposing the
application, including attorney’s fees.
Sec. 2. Contempt of court. - If the party or other
witness refuses to be sworn to answer any
question after being directed to do so by the
court of the place in which the deposition is
being taken, the refusal may be considered a
contempt of that court.
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Sec. 3. Other consequences - If any party or an
officer or managing agent of a party refuses to
obey an order made under section 1 of this Rule
requiring him to answer designated questions, or
an order under Rule 27 to produce any
document or other thing for inspection copying
or photographing or to permit it to be done, or to
permit entry upon land or other property, or an
order made under Rule 28 requiring him to
submit to a physical or mental examination, the
court may make such orders in regard to the
refusal as are just, and among others the
following:
(a) An order that the matters regarding
which the questions were asked, or the character
or description of the thing or land, or the
contents of the paper , or physical or mental
condition of the party, or any other designated
facts shall be taken to be established for the
purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or prohibiting him
from introducing in evidence designated
document or things or items of testimony, or
from introducing evidence of physical or mental
condition;
(c) An order striking out pleadings or
parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party; and
(d) In lieu of any of the foregoing
orders or in addition thereto, an order directing
the arrest of any party or agent of a party for
disobeying any such orders except an order to
submit to a physical or mental examination.
Sec. 4. Expenses on refusal to admit. - If a party
after being served with a request under Rule 26
to admit the genuineness of any document or the
truth of any matter of fact, serves a sworn denial
thereof and if the party requesting the
admissions thereafter proves the genuineness of
such document or the truth of any such matter of
fact, he may apply to the court for an order
requiring the other party to pay him the
reasonable expenses incurred in making such
proof, including attorney’s fees. Unless the court
finds that there were good reasons for the denial
or that admissions sought were of no substantial
importance, such order shall be issued.
Sec. 5. Failure of party to attend or serve
answers. - If a party or an officer or managing
Prepared by:
AKSYON PARTY
agent of a party willfully fails to appear before
the officer who is to take his deposition, after
being served with a proper notice, or fails to
serve answers to interrogatories submitted under
Rule 25 after proper service of such
interrogatories, the court on motion and notice,
may strike out all or any part of any pleading of
the party, or dismiss the action or proceeding or
any part thereof, or enter a judgment by default
against the party, and in its discretion, order him
to pay reasonable expenses incurred by the
other, including attorney’s fees.
Sec. 6. Expenses against the Republic of the
Philippines. - Expenses and attorney’s fees are
not to be imposed upon the Republic of the
Philippines under this Rule.
Republic v. Sandiganbayan, 204 SCRA 212
The various modes or instruments of
discovery are meant to serve (1) as a device,
along with the pre-trial hearing, to narrow and
clarify the basic issues between the parties, and
(2) as a device for ascertaining the facts relative
to those issues. The evident purpose is, to repeat,
to enable the parties, consistent with recognized
privileges, to obtain fullest possible knowledge
of the issues and facts before civil trails and thus
prevent that said trials are carried on in the
dark. To this end, the field of inquiry that may
be covered by depositions or interrogatories is as
broad as when the interrogated party is called as
a witness to testify orally at trial. The inquiry
extends to all facts which are relevant, whether
they be ultimate or evidentiary, excepting only
those matters which are privileged. The
objective is as much to give every party the
fullest possible information of all relevant facts
before the trial as to obtain evidence for use
upon said trial.
In line with the principle of according
liberal treatment to the deposition-discovery
mechanism, such modes of discovery as a)
depositions (whether by oral examination or
written interrogatories), (b) interrogatories to
parties, and (c) requests for admissions, may be
availed of without leave of court, and generally,
without court intervention. The Rules of Court
explicitly provide that leave of court is not
necessary to avail of said modes of discovery
after an answer to the complaint has been
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 CIVIL PROCEDURE

served. It is only when an answer has not yet 4. Production or inspection of document or
been filed (but after jurisdiction has been things
obtained over the defendant or property subject 5. Motion for physical and mental examination
of the action) that prior leave of court is needed of persons
to avail of these modes of discovery, the reason
being that at that time the issues are not yet Two Kinds of Depositions:
joined and the disputed facts are not clear. 1. Oral examination
2. Written Interrogatories - different from two
On the other hand, leave of court is above
required as regards discovery by (a) production
or inspection of documents or things in
accordance with Rule 27, or (b) physical and Motions: Don't forget:
mental examination of persons under Rule 28, Notice, signatures
which may be granted upon due application and Request for admission, questions are
a showing of due course. answerable by yes or no
Attach receipt of registered mail in the
pleading to be sent to the court.
Po v. CA, 164 SCRA 668
A party should not be compelled to Purpose for suppression of evidence - based on
admit matters of fact already admitted by his form.
pleading and concerning which there is no issue, Purpose of provisional remedies - to prevent
nor should he be required to make a second judgment from being useless, judgment can be
denial of those already denied in his answer to satisfied
the complaint. A request for admission is not
intended to merely reproduce or reiterate the DISCOVERY
allegations of the requesting party’s pleading but PROVISIONAL
should set forth relevant evidentiary matters of
fact, or documents described in and exhibited PURPOSE to discover evidence
with the request, whose purpose is to establish prevent judgment from being
said party’s cause of action or defense. ineffective

Bribonera v. CA, 216 SCRA 607 NATURE ancilliary

ancilliary
(Same ruling as in Po v. CA.) -may be extrajudicial -should be
The request for admission should be applied for before the court where the action is
served upon the party himself and not upon pending
counsel.
MODES 1. Deposition
1. Preliminary attachment; pending
Revilla v. CA, 217 SCRA 583 appeal 2. Written
Interrogatories 2.
Evidence is negative when the witness Preliminary injunction
states that he did not see or know the occurrence 3. Admission of adverse party
of a fact, and positive when the witness affirms 3. Receivership - pending appeal
that a fact did or did not occur. Don Cayetano’s 4. Production/Inspection of Doc.
declaration that he did not execute a second will, 4. Replevin
constitutes positive evidence of a fact personally 5. Physical & mental examination
known to himself: that he did not make a second 5. Support pendente lite - pending
will. appeal

NOTES ON DISCOVERY:
PROVISIONAL REMEDIES
Modes of Discovery allowed by the Rules:
1. Depositions
2. Written interrogatories of the parties Preliminary Attachment
3. Admissions of the adverse party Rule 57

Prepared by:
AKSYON PARTY
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 CIVIL PROCEDURE
Sec. 1. Grounds upon which attachment may
issue. - At the commencement of the action or at
any time before entry of judgment, a plaintiff or
any proper party may have the property of the
adverse party attached as security for the
satisfaction of any judgment that may be
recovered in the following cases:
(a) In an action for the recovery of a
specified amount of money or damages, other
than moral and exemplary, on a cause of action
arising from law, contract, quasi-contract, delict
or quasi-delict against a party who is about to
depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer, or
an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of
his employment as such, or by any other person
in a fiduciary capacity, or for a willful violation
of duty;
(c) In an action to recover the
possession of property unjustly or fraudulently
taken, detained or converted, when the property,
or any part thereof, has been concealed,
removed, or disposed of to prevent its being
found or taken by the applicant or an
authorized person;
(d) In an action against a party who
has been guilty of a fraud in contracting the
debt or incurring the obligation upon which the
action is brought, or in the performance
thereof;
(e) In an action against a party who
has removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors; or
(f) In an action against a party who
does not reside and is not found in the
Philippines, or on whom summons may be
served by publication.
If prayer for writ of attachment is included in a
Complaint, verification in the Complaint is
sufficient, separate affidavit is not necessary.
Sec. 2. Issuance and contents of order. - An
order of attachment may be issued either ex-
parte or upon motion with notice and hearing
by the court in which the action is pending, or
by the Court of Appeals or the Supreme Court,
and must require the sheriff of the court to
attach so much of the property in the
Philippines of the party against whom it is
issued, not exempt from execution, as may be
Prepared by:
AKSYON PARTY
sufficient to satisfy the applicant’s demand,
unless such party makes deposit or gives a bond
as hereinafter provided in an amount equal to
that fixed in the order, which may be the amount
sufficient to satisfy the applicant’s demand or
the value of the property to be attached as
stated by the applicant, exclusive of costs.
Several writs may be issued at the same time to
the sheriffs of the courts of different judicial
regions.
Consolidated Bank and Trust Company v. Court
of Appeals
197 SCRA
Where the basis for the application of a writ of
attachment is embezzlement of money or
property committed by a defendant who is an
officer of a corporation, a public officer, or an
atorney, factor, broker or agent or clerk of the
plaintiff, it is not necessary to establish his
fiduciary capacity before the writ is granted as
such fiduciary capacity is assumed from the
nature of his position. it is only when the
misappropriation was committed by any other
person that his fiduciary relationship with the
plaintiff will have to be established. Such
relationship does not have to be shown because
it suffices that the questioned acts of employing
illegal machinations in obtaining enormous
credit facilities for the corporation were
committed by the officers of UPLFC in the
course of their duties and not by “any other
person in a fiduciary capacity.”
Sec. 3. Affidavit and bond required. - An order
of attachment shall be granted only when it
appears by the affidavit of the applicant, or
some other person who personally knows the
facts, that a sufficient cause of action exists,
that the case is one of those mentioned in
section 1 hereof, that there is no other sufficient
security for the claim sought to be enforced by
the action, and that the amount due to the
applicant, or the value of the property the
possession of which he is entitled to recover, is
as much as the sum for which the order is
granted above all legal counterclaims. The
affidavit, and the bond required by the next
succeeding section, must be duly filed with the
court before the order issues.
K.O. Glass Const. Co., Inc. v. Valenzuela
116 SCRA
Facts:
Held: In pleading for attachment against a
foreigner, allegation must not be merely that
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 CIVIL PROCEDURE
defendant is a foreigner; there must also be a
showing that defendant is about to leave the
Philippines with intent to defraud their creditor,
or that he is a non-resident alien.
Requisites for issuance of writ of attachment:
1. a sufficient cause of action exists;
2. case is one of those mentioned in Sec 1(a) of
Rule 57;
3. there is no other sufficient security for the
claim sought to be enforced by the action;
4. the amount due to the applicant for
attachment or the value of the property of which
he is entitled to recover is as much as the sum
for which the order is granted above all legal
counterclaims.
Once defendant files a counter-bond, the writ of
attachment should be dissolved.
Sec. 4. - Condition of applicant’s bond. - The
party applying for the order must thereafter give
a bond executed to the adverse party in the
amount fixed by the court in its order granting
the issuance of the writ, conditioned that the
latter will pay all the costs which may be
adjudged to the adverse party and all damages
which he may sustain by reason of the
attachment, if the court shall finally adjudge
that the applicant was not entitled thereto.
Bond - undertaking done by the surety that it
will pay the damages in case the party
guaranteed does not comply with the orders of
the court.
Sec. 5. Manner of attaching property. - The
sheriff enforcing the writ shall without delay
and with all reasonable diligence attach, to
await judgment and execution in the action,
only so much of the property in the Philippines
of the party against whom the writ is issued, not
exempt from execution, as may be sufficient to
satisfy the applicant’s demand, unless the
former makes a deposit with the court from
which the writ is issued, or gives a counter-bond
executed to the applicant, in an amount equal to
the bond fixed by the court in the order of
attachment or to the value of the property to be
attached, exclusive of costs. No levy on
attachment pursuant to the writ issued under
section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied,
by service of summons, together with a copy of
the complaint, the application for attachment,
the applicant’s affidavit and bond, and the order
Prepared by:
AKSYON PARTY
and writ of attachment, on the defendant within
the Philippines.
The requirement of prior
contemporaneous service of summons shall not
apply where the summons could not be served
personally or by substituted service despite
diligent efforts, or the defendant is a resident of
the Philippines temporarily absent therefrom, or
the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi
in rem.
Oñate v. Abrogar
230 SCRA 181
Facts:
Held: Writ of preliminary attachment may be
validly applied for and granted even before the
defendant is summoned or is heard from.
Enforcement of the preliminary attachment is
valid even if it preceded the actual service of
summons where a previous attempt to serve the
summons and the writ of attachment failed due
to factors beyond the control of either the
plaintiff or the process server.
Reasons:
1. Defendant may put his property beyond the
reach of the plaintiff while the latter is trying to
serve the summons and the writ anew.
2. Court eventually acquired jurisdiction over
the plaintiffs (6 days later).
3. Ease by which a writ of attachment can be
obtained is counter-balanced by the ease with
which the same can be discharged. To discharge
writ of preliminary attachment, defendant
simply has to make a cash deposit or post a
counter-bond equivalent to the value of the
property attached.
Sec. 6. Sheriff’s return. - After enforcing the
writ, the sheriff must likewise without delay
make a return thereon to the court from which
the writ issued, with a full statement of his
proceedings under the writ, and a complete
inventory of the property attached, together
with any counter-bond given by the party
against whom attachment is issued, and serve
copies thereof on the applicant.
Sec. 7. Attachment of real and personal
property; recording thereof. - Real and
personal property shall be attached by the
sheriff executing the writ in the following
manner:
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(a) Real property, or growing crops belonging to said party, are attached in
thereon, or any interest therein, standing upon pursuance of such writ;
the records of the registry of deeds of the (e) The interest of the party against
province in the name of the party against whom whom attachment is issued in the property
attachment is issued, or not appearing at all belonging to the estate of the decedent, whether
upon such records, or belonging to the party as heir, legatee, or devisee, by serving the
against whom attachment is issued and held by executor or administrator or other personal
any other person, or standing on the records of representative of the decedent with a copy of the
the registry of deeds in the name of any other writ and notice that said interest is attached. A
person, by filing with the registry of deeds a copy of said writ of attachment and of said
copy of the order, together with a description of notice shall also be filed in the office of the
the property attached, and a notice that it is clerk of court in which said estate is being
attached, or that such real property and any settled and served upon the heir, legatee or
interest therein held by or standing in the name devisee concerned.
of such other person are attached, and by If the property sought to be attached is
leaving a copy of such order, description, and in custodia legis, a copy of the writ of
notice with the occupant of the property, if any, attachment shall be filed with the proper court
or with such other person or his agent if found or quasi-judicial agency, and notice of the
within the province. Where the Land attachment served upon the custodian of such
Registration Act or the Property Registration property.
Decree, the notice shall contain a reference to
the number of the certificate of title, the volume Properties subject to Manner of attachment
and page in the registration book where the attachment
certificate is registered, and the registered File with register of
owner or owners thereof. deeds a copy of the
The registrar of deeds must index order of attachment
attachments filed under this section in the with notice that it is
names of the applicant, the adverse party, or the Real property, growing attached and a
person by whom the property is held or in whose crops thereon, any description of the
name it stands in the records. If the attachment interest in such real property being
is not claimed on the entire area of the land property attached
covered by the certificate of title, a description Leave copy of
sufficiently accurate for the identification of the attachment order,
land or interest to be affected shall be included description and notice
in the registration of such attachment; with the occupant of
(b) Personal property capable of the property
manual delivery, by taking and safely keeping it Serve attachment
in his custody, after issuing the corresponding Personal property order, issue receipt for
receipt therefor; capable of manual the property being
(c) Stocks or shares, or an interest in delivery attached and take
stocks or shares, of any corporation or property in his custody
company, by leaving with the president or Leave with president
managing agent thereof, a copy of the writ, and or managing agent
a notice stating that the stock or interest of the Stocks or shares, copy of the writ and
party against whom the attachment is issued is interest in such stocks notice that said stocks
attached in pursuance of such writ; or shares or shares or any
(d) Debts and credits, including bank interest therein is
deposits, financial interest, royalties, attached
commissions and other personal property not Debts and credits Leave with person
capable of manual delivery, by leaving with the (bank deposits, owing such debts or
person owing such debts, or having in his financial interest, credits a copy of the
possession or under his control, such credits or royalties,commissions) writ and a notice that
other personal property, or with his agent, a such debts or credits
copy of the writ, and notice that the debts owing Other personal are attached
by him to the party against whom attachment is property not capable of
issued, and the credits and other personal manual delivery
property in his possession or under his control, Serve executor or
administrator with a
Prepared by:
AKSYON PARTY
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Interest of an heir, copy of the writ and a
legatee or devisee in notice that said
the property of a interest is attached.
decedent File copy of the writ
and notice of
attachment with clerk
of court where estate is
being settled.
Sec. 8. Effect of attachment of debts, credits
and all other similar personal property. - All
persons having in their possession or under
their control any credits or other similar
personal property belonging to the party
against whom attachment is issued, or owing
any debts to him, at the time of service upon
them of the copy of the writ of attachment and
notice as provided in the last preceding section,
shall be liable to the applicant for the amount
of such credits, debts or other similar personal
property, until the attachment is discharged, or
any judgment recovered by him is satisfied,
unless such property is delivered or transferred,
or such debts are paid, to the clerk, sheriff, or
other proper officer of the court issuing the
attachment.
Garnishment - is a species of attachment for
reaching any property or credits pertaining or
payable to a judgment debtor. It is a forced
novation by the substitution of creditors: the
judgment debtor, who is the original creditor of
the garnishee, is, through the service of the writ
of garnishment, substituted by the judgment
creditor who thereby becomes creditor of the
garnishee. It serves as a warning to a person
having in his possession property or credits of
the judgment debtor, not to pay the money or
deliver the property to the latter, but rather to
appear and answer the plaintiff’s suit.
Perla Compania de Seguros, Inc. v. Ramolete
203 SCRA
Facts:
Held: Service of summons upon the person of
the garnishee is not necessary to acquire
jurisdiction over his person, all that is necessary
is the service of the writ of garnishment.
Through the service of the writ of garnishment,
the person who has in his possession credits
belonging to the judgment debtor becomes a
“virtual party” to or a “forced intervenor” in, the
case and the trial court thereby acquires
jurisdiction over his person. Such person is,
therefore, bound to comply with all orders and
processes of the trial court with a view to the
Prepared by:
AKSYON PARTY
complete satisfaction of the judgment of the
court.
Garnishment of third party liability insurance
contract may be effected from the moment the
insured became liable to the third person for it is
also at that moment that the insured acquired an
interest in the insurance contract. Such interest
may be garnished like any other credit. It is not
necessary that the insured has effected payment
to the injured third person in order that the
obligation of the insurer may arise.
Sec. 9. Effect of attachment of interest in
property belonging to the estate of a decedent.
- The attachment of the interest of an heir,
legatee, or devisee in the property belonging to
the estate of a decedent shall not impair the
powers of the executor, administrator, or other
personal representative of the decedent over
such property for the purpose of administration.
Such personal representative, however, shall
report the attachment to the court when any
petition for distribution is filed, and in the order
made upon such petition, distribution may be
awarded to such heir, legatee, or devisee, but
the property attached shall be ordered delivered
to the sheriff making the levy, subject to the
claim of such heir, legatee, or devisee, or any
person claiming under him.
Sec. 10. Examination of party whose property
is attached and persons indebted to him or
controlling his property; delivery of property to
sheriff. - Any person owing debts to the party
whose property is attached or having in his
possession or under his control any credit or
other personal property belonging to such party,
may be required to attend before the court in
which the action is pending, or before a
commissioner appointed by the court, and be
examined on oath respecting the same. The
party whose property is attached may also be
required to attend for the purpose of giving
information respecting his property, and may be
examined on oath. The court may, after such
examination, order personal property capable
of manual delivery belonging to him, in the
possession of the person so required to attend
before the court, to be delivered to the clerk of
court of sheriff on such terms as may be just,
having reference to any lien thereon or claim
against the same, to await the judgment in the
action.
Sec. 11. When attached property may be sold
after levy on attachment and before entry of
judgment. - Whenever it shall be made to
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 CIVIL PROCEDURE
appear to the court in which the action is
pending, upon hearing with notice to both
parties, that the property attached is perishable,
or that the interests of all the parties to the
action will be subserved by the sale thereof, the
court may order such property to be sold at
public auction in such manner as it may direct
and the proceeds of such sale to be deposited in
court to abide the judgment in the action.
Sec. 12. Discharge of attachment upon giving
counter-bond. - After a writ of attachment has
been enforced, the party whose property has
been attached or the person appearing on his
behalf, may move for the discharge of the
attachment wholly or in part on the security
given. The court shall, after due notice and
hearing, order the discharge of the attachment
if the movant makes a cash deposit, or files a
counter-bond executed to the attaching party
with the clerk of the court where the application
is made an amount equal to that fixed by the
court in the order of attachment, exclusive of
costs. But if the attachment is sought to be
discharged with respect to a particular property,
the counter-bond shall be equal to the value of
that property as determined by the court. In
either case, the cash deposit or the counter-
bond shall secure the payment of any judgment
that the attaching party may recover in the
action. A notice of the deposit shall forthwith be
served on the attaching party. Upon the
discharge of the attachment in accordance with
the provisions of this section, the property
attached, or the proceeds of any sale thereof,
shall be delivered to the party making the
deposit or giving the counter-bond, or to the
person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the
property so released. Should such counter-bond
for any reason be found to be or become
insufficient, and the party furnishing the same
fail to file an additional counter-bond, the
attaching party may apply for a new order of
attachment.
Motion to Discharge cannot be acted upon ex-
parte - must be accompanied by hearing.
Sec. 13. Discharge of attachment on other
grounds. - The party whose property has been
ordered attached may file a motion with the
court in which the action is pending, before or
after levy or even after the release of the
attached property, for an order to set aside or
discharge the attachment on the ground that the
same was improperly or irregularly issued or
enforced, or that the bond is insufficient. If the
Prepared by:
AKSYON PARTY
attachment is excessive, the discharge shall be
limited to the excess. If the motion be made on
affidavits on the part of the movant but not
otherwise, the attaching party may oppose the
motion by counter-affidavits or other evidence
in addition to that on which the attachment was
made. After due notice and hearing, the court
shall order the setting aside or the
corresponding discharge of the attachment if it
appears that it was improperly or irregularly
issued or enforced, or that the bond is
insufficient, or that the attachment is excessive
and the defect is not cured forthwith.
Peroxide Philippines Corp. v. Court of Appeals
199 SCRA
Where the order lifting of the writ of attachment
was improperly issued as the attaching creditor
was not allowed to oppose the application for the
discharge of the attachment by counter-affidavit
or other evidence, such order is void and does
not have any effect at all to the writ of
attachment. The writ continued to be valid from
its issuance since the judgment had not been
satisfied , nor has there been a valid discharge
thereof either by the filing of a counter-bond or
for improper or irregular issuance.
Sec. 14. Proceedings where property claimed
by third person. - If the property attached is
claimed by any person other than the party
against whom attachment had been issued or his
agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof,
stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the
latter has possession of the attached property,
and a copy thereof upon the attaching party, the
sheriff shall not be bound to keep the property
under attachment, unless the attaching party or
his agent, on demand of the sheriff, shall file a
bond approved by the court to indemnify the
third-party claimant in a sum not less than the
value of the property levied upon. In case of
disagreement as to such value, the same shall
be decided by the court issuing the writ of
attachment. No claim for damages for the
taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The sheriff shall not be liable for
damages for the taking or keeping of such
property, to any such third-party claimant, if
such bond shall be filed. Nothing herein
contained shall prevent such claimant or any
third person from vindicating his claim to the
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property, or prevent the attaching party from
claiming damages against a third-party
claimant who filed a frivolous or plainly
spurious claim, in the same or separate action.
When the writ of attachment is issued
in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of
such bond shall not be required, and in case the
sheriff is sued for damages as a result of the
attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the
actual damages adjudged by the court shall be
paid by the National Treasurer out of the funds
to be appropriated for the purpose.
Sec. 15. Satisfaction of judgment out of
property attached; return of sheriff. - If
judgment be recovered by the attaching party
and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the
property attached, if it be sufficient for that
purpose in the following manner:
(a) By paying to the judgment obligee
the proceeds of all sales of perishable or other
property sold in pursuance of the order of the
court or so much as shall be necessary to satisfy
the judgment;
(b) If any balance remains due, by
selling so much of the property, real or
personal, as may be necessary to satisfy the
balance, if enough for that purpose remain in
the sheriff’s hands, or in those of the clerk of
the court;
(c) By collecting from all persons
having in their possession credits belonging to
the judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts, the amount of such credits and
debts as determined by the court in the action,
and stated in the judgment, and paying the
proceeds of such collection over to the
judgment obligee.
The sheriff shall forthwith make a
return in writing to the court of his proceedings
under this section and furnish the parties with
copies thereof.
Sec. 16. Balance due collected upon
execution; excess delivered to judgment
obligor. - If after realizing upon all the property
attached, including the proceeds of any debts or
credits collected, and applying the proceeds of
any debts or credits collected, and applying the
proceeds to the satisfaction of the judgment,
less the expenses of proceedings upon the
judgment, less the expenses of proceedings upon
the judgment, any balance shall remain due, the
sheriff must proceed to collect such balance as
Prepared by:
AKSYON PARTY
upon ordinary execution. Whenever the
judgment shall have been paid, the sheriff, upon
reasonable demand, must return to the judgment
obligor the attached property remaining in his
hands, and any proceeds of the sale of the
property attached not applied to the judgment.
Sec. 17. Recovery upon the counter-bond. -
When the judgment has become executory, the
surety or sureties on any counter-bond given
pursuant to the provisions of this Rule to secure
the payment of the judgment shall become
charged on such counter-bond and bound to pay
the judgment obligee upon demand the amount
due under the judgment, which amount may be
recovered from such surety or sureties after
notice and summary hearing in the same action.
Towers Assurance Co. v. Ororama Supermart
80 SCRA
In order that the judgment creditor might
recover from the surety on the counterbond, it is
necessary (1) that execution be first issued
against the principal debtor and that such
execution was returned unsatisfied in whole or
in part; (2) that the creditor made a demand
upon the surety for the satisfaction of the
judgment; and (3) that the surety be given notice
and a summary hearing in the same action as to
his liability for the judgment under his
counterbond.
Sec. 18. Disposition of money deposited. -
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under
the direction of the court to the satisfaction of
any judgment rendered in favor of the attaching
party, and after satisfying the judgment the
balance shall be refunded to the depositor or
his assignee. If the judgment is in favor of the
party against whom attachment was issued, the
whole sum deposited must be refunded to him or
his assignee.
Sec. 19, Disposition of attached property where
judgment is for party against whom
attachment was issued. - If judgment be
rendered against the attaching party, all the
proceeds of sales and money collected or
received by the sheriff, under the order of
attachment, and all property attached
remaining in any such officer’s hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged.
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Sec. 20. Claim for damages on account of
improper, irregular or excessive attachment. -
An application for damages on account of
improper, irregular, or excessive attachment
must be filed before the trial or before appeal is
perfected or before the judgment becomes
executory, with due notice to the attaching party
and his surety or sureties, setting forth the facts
showing his right to damages and the amount
thereof. Such damages may be awarded only
after proper hearing and shall be included in
the judgment on the main case.
If the judgment of the appellate court
be favorable to the party against whom
attachment was issued, he must claim damages
sustained during the pendency of the appeal by
filing an application in the appellate court, with
notice to the party in whose favor the
attachment was issued or his surety or sureties,
before judgment of the appellate court becomes
executory. The appellate court may allow the
application to be heard and decided by the trial
court.
Nothing herein contained shall prevent
the party against whom the attachment was
issued from recovering in the same action the
damages awarded to him from any property of
the attaching party not exempt from execution
should the bond or deposit given by the latter
be insufficient or fail to fully satisfy the award.
Santos v. Court of Appeals
95 Phil 360
Where a writ of attachment was issued and
levied upon a property belonging to a third
person not party to the main action, said third
person may file a separate action for damages.
The rule that recovery of damages on account of
the issuance of a writ of attachment cannot be
subject of a separate action, is not applicable
where damages are sought not because the writ
of attachment was illegally or wrongfully issued
by the court, but because said writ was caused to
levied upon the property of the plaintiff which
was not a party in the case where the attachment
was issued.
Rule on Third party Claim & §20, Rule 57,
important.
Status quo ante - refers to a legal situtation
Preliminary writ of injunction - status quo
Final injunction - change in legal relationship,
Bacolod Milling
Grave & irreparable injury - no fair or
reasonable orders can be granted by the court
Prepared by:
AKSYON PARTY
Right in esse and clear for a writ of preliminary
mandatory injunction
Preliminary Injunction
Rule 58
Sec. 1. Preliminary injunction defined; classes.
- A preliminary injunction is an order granted
at any stage of an action or proceeding prior to
the judgment or final order, requiring a party or
a court , agency or a person to refrain from a
particular act or acts. It may also require the
performance of a particular act or acts, in
which case it shall be known as a preliminary
mandatory injunction.
The primary purpose of injunction is to preserve
the status quo by restraining action or
interference or by furnishing preventive relief.
The status quo is the last actual, peaceable,
uncontested status which precedes the pending
controversy.
A mandatory injunction is an extreme remedy
and will be granted only on a showing that (a)
the invasion of the right is material and
substantial, (b) the right of the complainant is
clear and unmistakable, and (c) there is an
urgent and paramount necessity for the writ to
prevent serious damage.
Distinctions between injunction and prohibition:
a. Injunction is generally directed against a
party in the action while prohibition is
directed against a court, tribunal or person
exercising judicial powers;
b. Injunction does not involve the jurisdiction
of the court, whereas prohibition may be on
the ground that the court against whom the
writ is sought acted without or in excess of
jurisdiction;
c. Injunction may be the main action itself, or
just a provisional remedy in the main
action, whereas prohibition is always a
main action. Hence, for temporary restraint
in a proceeding for prohibition, preliminary
injunction must be sought therein.
Bataclan v. Court of Appeals
175 SCRA
A writ of preliminary injunction is primarily
intended to maintain the status quo between the
parties existing prior to the filing of the case. As
an ancillary or preventive remedy, it may only
be resorted to by a litigant to protect or preserve
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his rights or interests and for no other purpose
during the pendency of the principal action.
Courts should not just summarily issue an order
of denial without an adequate hearing and
judicious evaluation of the merits of the
application as the same would be a denial of
procedural due process and could result in
irreparable prejudice to a party.
Sec. 2. Who may grant preliminary injunction.
- A preliminary injunction may be granted by
the court where the action or proceeding is
pending. If the action or proceeding is pending
in the Court of Appeals or in the Supreme
Court, it may be issued by said court or any
member thereof.
Sec. 3. Grounds for issuance of preliminary
injunction. - A preliminary injunction may be
granted when it is established:
(a) That the applicant is entitled to the
relief demanded, and the whole or part of such
relief consists in restraining the commission or
continuance of the act or acts complained of, or
in requiring the performance of an act or acts,
either for a limited period or perpetually;
(b) That the commission, continuance
or non-performance of the act or acts
complained of during the litigation would
probably work injustice to the applicant; or
(c) That a party, court, agency or a
person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done,
some act or acts probable in violation of the
rights of the applicant respecting the subject of
the action or proceeding, and tending to render
the judgment ineffectual.
Bacolod Murcia Milling v. Capitol
17 SCRA
For the writ of preliminary injunction to issue,
there must be a showing based on facts that the
party availing of the remedy is entitled to the
relief demanded.
An injunction will not issue to protect a right
not in esse and which may never arise or to
restrain an act, which does not give rise to a
cause of action
The function of an injunction is the maintenance
of the status quo as of the time of its issuance. In
the case at bar, the right of the Central in using
the railway has already expired: there being no
right to be protected anymore, the writ of
preliminary injunction cannot be had.
Prepared by:
AKSYON PARTY
Merville Park Homeowners Association Inc. v.
Velez
196 SCRA
Where the village association seeks to take
possession and control of the waterworks system
from the Salandanan who failed to undertake
certain contractual obligations necessary to
assure the homeowners of a steady water supply,
a writ of preliminary mandatory injunction will
not be granted absent a showing that the severe
water shortage had not been remedied and that a
clear and present danger of the same or similar
default on Salandanan’s part, threatening the
same severe consequences for the subdivision
residents.
A preliminary mandatory injunction is not a
proper remedy to take property out of the
possession and control of one party and to
deliver the same to the other party where
possession of such property is being disputed. It
may issue pendente lite only in cases of extreme
urgency, where the right to the possession,
during the pendency of the main case, of the
property involved is very clear; where the
considerations of relative inconvenience bear
strongly in favor of the complainant seeking the
possession of pendente lite; where there was
willful and unlawful invasion of plaintiff’s
rights, over his protest and remonstrance the
injury being a continuing one; where the effect
of the preliminary mandatory injunction is to re-
establish and maintain a pre-existing and
continuing relationship between the parties,
recently and arbitrarily interrupted by the
defendant, rather than to establish a new
relationship during the pendency of the
principal case. It is for the party requesting the
writ to demonstrate clearly the presence of one
or more of the above grounds.
Sec. 4. Verified application and bond for
preliminary injunction or temporary
restraining order. - A preliminary injunction or
temporary restraining order may be granted
only when:
(a) The application in the action or
proceeding is verified and shows facts entitling
the applicant to the relief demanded; and
(b) Unless exempted by the court, the
applicant files with the court where the action
or proceeding is pending a bond executed to the
party or person enjoined, in an amount to be
fixed by the court, to the effect that the
applicant will pay to such party or person all
damages which he may sustain by reason of the
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injunction or temporary restraining order if the
court should finally decide that the applicant
was not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary injunction
shall be issued.
(c) When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a complaint or
any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after
notice to and in the presence of the adverse
party or the person to be enjoined. In any event,
such notice shall be preceded, or
contemporaneously accompanied by service of
summons, together with a copy of the complaint
or initiatory pleading and the applicant’s
affidavit and bond, upon the adverse party in
the Philippines.
However, where the summons could not
be served personally or by substituted service
despite diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous
service of summons shall not apply.
(d) The application for a temporary
restraining order shall thereafter be acted upon
only after all parties are heard in a summary
hearing which shall be conducted within twenty-
four (24) hours after the sheriff’s return of
service and/or the records are received by the
branch selected by raffle and to which the
records shall be transmitted immediately.
Sec. 5. Preliminary injunction not granted
without notice; exception. - No preliminary
injunction shall be granted without hearing and
prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by
affidavits or by verified application that great
or irreparable injury would result to the
applicant before the matter can be heard on
notice, the court to which the application for
preliminary injunction was made, nay issue ex
parte a temporary restraining order to be
effective only for a period of twenty (20) days
from service on the party or person sought to be
enjoined, except as herein provided. Within the
said twenty-day period, the court must order
said party or person to show cause, at a
specified time and place, why the injunction
should not be granted, determine within the
same period whether or not the preliminary
injunction shall be granted, and accordingly
issue the corresponding order.
Prepared by:
AKSYON PARTY
However, and subject to the provisions
of the preceding sections, if the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the
presiding judge of a single-sala court may issue
ex parte a temporary restraining order effective
for only seventy-two (72) hours from issuance
but he shall immediately comply with the
provisions of the next preceding section as to
service of summons and the documents to be
served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge
before whom the case is pending shall conduct a
summary hearing to determine whether the
temporary restraining order shall be extended
until the application for preliminary injunction
can be heard. In no case shall the total period
of effectivity of the temporary restraining order
exceed twenty (20 days, including the original
seventy-two hours provided herein.
In the event that the application for
preliminary injunction is denied or not resolved
within the said period, the temporary
restraining order is deemed automatically
vacated. The effectivity of a temporary
restraining order is not extendible without need
of any judicial declaration to that effect and no
court shall have authority to extend or renew
the same on the same ground for which it was
issued.
However, if issued by the Court of
Appeals or a member thereof, the temporary
restraining order shall be effective for sixty (60)
days from service on the party or person sought
to be enjoined. A restraining order issued by the
Supreme Court or a member thereof shall be
effective until further orders.
Temporary restraining order, when issued
1. When great or irreparable injury would
result to the applicant even before the
application is heard on notice; 20-day
temporary restraining order is issued.
2. If the matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury, the court may issue ex
parte a 72-hour temporary restraining order;
can only be issued by the executive judge of
a multiple-sala court or by the presiding
judge of a single-sala court.
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The judge issuing a 72-hour TRO is obliged to
conduct a summary hearing within the
effectivity of the 72-hour TRO to determine
whether the TRO shall be extended in which
case, the same is converted into a 20-day TRO.
Within the 20-day period of effectivity of the
TRO the court shall determine in a hearing
whether or not the preliminary injunction is to
be granted. This 20-day period is inextendible.
Thus, a TRO may be converted to a preliminary
injunction, which in turn may be converted into
a final injunction. TRO and preliminary
injunction are issued to maintain the status quo
ante, that is, prior to the institution of the main
action. A final injunction confirms a preliminary
injunction and perpetually enjoins a party or
person from doing the act/s complained of.
Effectivity of TROs:
TRO issued by trail court may either be for 72
hours or 20 days; if issued by the CA or a
member thereof, it shall be effective for sixty
(60) days; TROs0 issued by the SC shall be
effective until further notice.
Social Security Commission v. Bayona
5 SCRA
Damages are irreparable within the meaning of
the rule relative to the issuance of injunction
when there is no standard by which their
amount can be measured with reasonable
accuracy. An irreparable injury which a court of
equity will enjoin includes that degree of wrong
of a repeated and continuing kind which
produce hurt, inconvenience, or damage that can
be estimated only by conjecture and not by any
accurate standard of measurement. An
irreparable injury to authorize an injunction
consists of “a serious charge of, or is destructive
to, the property it affects, either physically or in
the character in which it has been held and
enjoined, or when the property has some
peculiar quality or use, so that its pecuniary
value will not fairly recompense the owner of
the loss thereof.”
For an injury to be irreparable, it does not have
to refer to the amount of damages that may be
caused but rather to the difficulty of measuring
the damages inflicted. If full compensation can
be obtained by way of damages, equity will not
apply the remedy of injunction.
Prepared by:
AKSYON PARTY
Sec. 6. Grounds for objection to, or for motion
of dissolution of, injunction or restraining
order. - The application for injunction or
restraining order may be denied, upon a
showing of its insufficiency. The injunction or
restraining order may also be denied, or, if
granted, may be dissolved, on other grounds
upon affidavits of the party or person enjoined,
which may be opposed by the applicant also by
affidavits. It may further be denied or granted,
may be dissolved, if it appears after hearing
that although the applicant is entitled to the
injunction or restraining order, the issuance or
continuance thereof, as the case may be, would
cause irreparable damage to the party or
person enjoined while the applicant can be fully
compensated for such damages as he may suffer,
and the former files a bond in an amount fixed
by the court conditioned that he will pay all
damages which the applicant may suffer by the
denial or the dissolution of the injunction or
restraining order. If it appears that the extent of
the preliminary injunction or restraining order
granted is too great, it may be modified.
Sec. 7. Service of copies of bonds; effect of
disapproval of same. - The party filing a bond
in accordance with the provisions of this Rule
shall forthwith serve a copy of such bond on the
other party, who may except to the sufficiency of
the bond, or of the surety or sureties thereon. If
the applicant’s bond is found to be insufficient
in amount, or if the surety or sureties thereon
fail to justify, and a bond sufficient in amount
with sufficient sureties approved after
justification is not filed forthwith, the injunction
shall be dissolved. If the bond of the adverse
party is found to be insufficient in amount, or
the surety or sureties thereon fail to justify a
bond sufficient in amount with sufficient sureties
approved after justification is not filed
forthwith, the injunction shall be granted or
restored, as the case may be.
Sec. 8. Judgment to include damages against
party and sureties. - AT the trial, the amount of
damages to be awarded to either party, upon the
bond of the adverse party, shall be claimed,
ascertained, and awarded under the same
procedure prescribed in section 20 of Rule 57.
Sec. 9. When final injunction granted. - If after
the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined, the court
shall grant a final injunction perpetually
restraining the party or person enjoined from
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the commission or continuance of the act or
acts or confirming the preliminary mandatory
injunction.
Gilchrist v. Cuddy
29 Phil 542
Receivership
Rule 59
Sec. 1. Appointment of receiver. - Upon a
verified application , one or more receivers of
the property subject of the actin or proceeding
may be appointed by the court where the action
is pending, or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the
following cases:
(a) When it appears from the verified
application, and such other proof as the court
may require, that the party applying for the
appointment of a receiver has an interest in the
property or fund which is the subject of the
action or proceeding, and that such property or
fund is in danger of being lost, removed, or
materially injured unless a receiver be
appointed to administer and preserve it;
(b) When it appears in an action by the
mortgagee for the foreclosure of a mortgage
that the property is in danger of being wasted or
dissipated or materially injured, and that its
value is probable insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
(c) After judgment, to preserve the
property during the pendency of an appeal, or
to dispose of it according to the judgment, or to
aid execution when the execution has been
returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of
the judgment, or otherwise to carry the
judgment into effect;
(d) Whenever in other cases it appears
that the appointment of a receiver is the most
convenient and feasible means of preserving,
administering, or disposing of the property in
litigation.
During the pendency of an appeal, the
appellate court may allow an application for
the appointment of a receiver to be filed in and
decided by the court of origin and the receiver
appointed to be subject to the control of said
court.
Prepared by:
AKSYON PARTY
Commodities Storage v. Court of Appeals
G.R. No. 125008
A petition for receivership requires that the
property or fund which is the subject of the
action must be in danger of loss, removal or
material injury which necessitates protection or
preservation. In the instant case, there is no
sufficient showing that the ice plant is in danger
of disappearing or being wated and reduced to a
‘scrap heap.” At the time the trial court issued
the order for receivership of the property, the
problem had been remedied and there was no
imminent danger of any leakage.
Neither party to a litigation should be appointed
as receiver without the consent of the other
because a receiver should be a person indifferent
to the parties and should be impartial and
disinterested. The receiver is not the
representative of any of the parties but of all of
them to the end that their interests may be
equally protected with the least possible
inconvenience and expense.
Sec. 2. Bond on appointment of receiver. -
Before issuing the order appointing a receiver
the court shall require the applicant to file a
bond executed to the party against whom the
application is presented, in an amount to be
fixed by the court, to the effect that the
applicant will pay such party all damages he
may sustain by reason of the appointment of
such receiver in case the applicant shall have
procured such appointment without sufficient
cause; and the court may, I its discretion, at any
time after the appointment, require an
additional bond as further security for such
damages.
Sec. 3. Denial of application or discharge of
receiver. - The application may be denied, or
the receiver discharged, when the adverse party
files a bond executed to the applicant, in an
amount to be fixed b the court, to the effect that
such party will pay the applicant all damages
he may suffer by reason of the acts, omissions,
or other matters specified in the application as
ground for such appointment. The receiver may
also be discharged if it is shown that his
appointment was obtained without sufficient
cause.
Sec. 4. Oath and bond of receiver. - Before
entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum
as the court may direct, to the effect that he will
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faithfully discharge his duties in the action or
proceeding and obey the orders of the court.
Sec. 5. Service of copies of bonds; effect of
disapproval of same. - The person filing a bond
in accordance with the provisions of this Rule
shall forthwith serve a copy thereof on each
interested party, who may except to its
sufficiency or of the surety or sureties thereon.
If either the applicant’s of the receiver’s bond is
found to be insufficient in amount, or if the
surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties
approved after justification is not filed
forthwith, the application shall be denied or the
receiver discharged, as the case may be. If the
bond of the adverse party is found to be
insufficient in amount or the surety or sureties
thereon fail to justify, and a bond sufficient in
amount with sufficient sureties approved after
justification is not filed forthwith, the receiver
shall be appointed and re-appointed, as the
case may be.
Sec. 6. General powers of receiver. - Subject to
the control of the court in which the action or
proceeding is pending, a receiver shall have the
power to bring and defend, in such capacity,
actions in his own name; to take and keep
possession of the property in controversy; to
receive rents; o collect debts due to himself as
receiver or to the fund, property, estate, person,
or corporation of which he is the receiver; to
compound and compromise the same; to make
transfers; to pay outstanding debts; to divide
the money and other property that shall remain
among the persons legally entitled to receive
the same; and generally to do such acts
respecting the property as the court may
authorize. However, funds in the hands of a
receiver may be invested only by order of the
court upon the written consent of all the parties
to the action.
No action may be filed by or against a
receiver without leave of the court which
appointed him.
Sec. 7. Liability for refusal or neglect to
deliver property to receiver. - A person who
refuses or neglects, upon reasonable demand, to
deliver to the receiver all the property, money,
books, deeds, notes, bills, documents and
papers within his power of control subject of or
involved in the action or proceeding, or in case
of disagreement, as determined and ordered by
the court, may be punished for contempt and
shall be liable to the receiver for the money or
the value of the property and other things so
Prepared by:
AKSYON PARTY
refused or neglected to be surrendered, together
with all damages that may have been sustained
by the party or parties entitled thereto as a
consequence of such refusal or neglect.
Sec. 8. Termination of receivership;
compensation of receiver. - Whenever the
court, motu propio or on motion of either party,
shall determine that the necessity for a receiver
n longer exists, it shall, after due notice to all
interested parties and hearing, settle the
accounts of the receiver, direct the delivery of
the funds and other property in his possession to
the person adjudged to be entitled to receive
them, and order the discharge of thereceiver
from further duty as such. The court shall allow
the receiver such reasonable compensation as
the circumstances of the case warrant, to be
taxed as costs against the defeated party, or
apportioned, as justice requires.
Sec. 9. Judgment to include recovery against
sureties. - The amount, if any, to be awarded to
any party upon any bond filed in accordance
with the provisions of this Rule, shall be
claimed, ascertained, and granted under the
same procedure prescribed in section 20 of Rule
57.
Replevin
Rule 60
Sec. 1. Application - A party praying for the
recovery of possession of personal property
may, at the commencement of the action or at
any time before answer, apply for an order for
the delivery of such property to him, in the
manner hereinafter provided.
Sec. 2. Affidavit and bond. - The applicant must
show by his own affidavit or that of some other
person who personally knows the facts:
(a) That the applicant is the owner of
the property claimed, particularly describing it,
or is entitled to the possession thereof;
(b) That the property is wrongfully
detained by the adverse party, alleging the
cause of detention thereof according to the best
of his knowledge, information, and belief;
(c) That the property has not been
distrained or taken for a tax assessment or a
fine pursuant to law, or seized under a writ of
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execution or preliminary attachment, or
otherwise placed under custodia legis, or if so
seized, that it is exempt from such seizure or
custody; and
(d) The actual market value of the
property.
The applicant must also give a bond,
executed to the adverse party in double the
value of the property as stated in the affidavit
aforementioned, for the return of the property to
the adverse party if such return be adjudged,
and for the payment to the adverse party of such
sum as he may recover from the application in
the action.
Sec. 3. Order. - Upon the filing of such affidavit
and approval of the bond, the court shall issue
an order and the corresponding writ of replevin
describing the personal property alleged to be
wrongfully detained and requiring the sheriff
forthwith to take such property into his custody.
Sec. 4. Duty of the sheriff. - Upon receiving
such order, the sheriff must serve a copy thereof
on the adverse party, together with a copy of the
application, affidavit and bond, and must
forthwith take the property, if it be in the
possession of the adverse party, or his agent,
and retain it in his custody. If the property or
any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery,
and if it be not delivered, he must cause the
building or enclosure to be broken open and
take the property as herein provided, he must
keep it in a secure place and shall be
responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary
expenses for taking and keeping the same.
Sec. 5. Return of property. – If the adverse
party objects of the sufficiency of the
applicant’s bond, or of the surety or sureties
thereon, he cannot immediately require the
return of the property, but if he does not so
object, he may, at any time before the delivery
of the property to the applicant, require the
return thereof, by filing with the court where the
action is pending a bond executed to the
applicant, in double the value of the property as
stated in the applicant’s affidavit for the
delivery thereof to the applicant, if such
delivery be adjudged, and for the payment of
such sum to him as may be recovered against
the adverse party, and by serving a copy of such
bond on the applicant.
Sec. 6. Disposition of property by sheriff. – If
within five (5) days after taking the property by
Prepared by:
AKSYON PARTY
the sheriff, the adverse party does not object to
the sufficiency of the bond, or the surety or
sureties thereon; or if the adverse party so
objects and the court affirms its approval of the
applicant’s bond or approves a new bond, or if
the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an
approved bond, the property shall be delivered
to the applicant. If for any reason the property
is not delivered to the applicant, the sheriff must
return it to the adverse party.
Sec. 7. Proceedings where property claimed by
third person. – If the property taken is claimed
by any third person other than the party against
whom the writ of replevin had been issued or his
agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof,
stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has
possession of the property and a copy thereof
upon the applicant, the sheriff shall not be
bound to keep the property under replevin or
deliver it to the applicant unless the applicant
or his agent, on demand of said sheriff shall file
a bond approved by the court to indemnify the
third-party claimant in a sum not less than the
value of the property under replevin as provided
in section 2 hereof. In case of disagreement as
to such value, the court shall determine the
same. No claim for damages for the taking or
keeping of the property may be enforced against
the bond unless the action therefor is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
The sheriff shall not be liable for
damages, for the taking or keeping of such
property, to any such third-party claimant if
such bond shall be filed. Nothing herein
contained shall prevent such claimant or any
third person from vindicating his claim to the
property, or prevent the applicant from claiming
damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in
the same or a separate action.
When the writ of replevin is issued in
favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such
bond shall not be required, and in case the
sheriff is sued for damages as a result of the
replevin, he shall be represented by the Solicitor
General, and if held liable therefor, the actual
damages adjudged by the court shall be paid by
the National Treasurer out of the funds to be
appropriated for the purpose.
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Sec. 8. Return of papers. – The sheriff must file
the order, with his proceedings indorsed
thereon, with the court within ten (10) days after
taking the property mentioned therein.
Sec. 9. Judgment. – After trial of the issues, the
court shall determine who has the right to the
possession to and the value of the property and
shall render judgment in the alternative for the
delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be
made, and also for such damages as either
party may prove, with costs.
Sec. 10. Judgment to include recovery against
sureties. – The amount, if any, to be awarded to
any party upon any bond filed in accordance
with the provisions of this Rule, shall be
claimed, ascertained, and granted under the
same procedure as prescribed in section 20 of
Rule 57.
Support Pendente Lite
Rule 61
Sec. 1. Application. - At the commencement of
the proper action or proceeding, or at any time
prior to the judgment or final order, a verified
application of support pendente lite may be
filed by any party stating the grounds for the
claim and the financial conditions of both
parties, and accompanied by affidavits,
depositions or other authentic documents in
support thereof.
What is support pendente lite?
It is a provisional remedy which grants a person
entitled to support an amount enough for his
“sustenance, dwelling, clothing, medical
attendance, education and transportation” (Art.
194, Family Code) while the action is pending
in court. It may be availed of by any of the
parties in the action for support or in a
proceeding where one of the reliefs sought is
support for the applicant. The capacity of the
person who will provide the support and the
needs of the one entitled to be supported are
taken into consideration in setting the amount of
support to be granted.
Support pendente lite can be availed of at the
commencement of the action or at any time
before the judgment or final order is rendered in
the action or proceeding.
Prepared by:
AKSYON PARTY
The one claiming for support must establish
before the court the relationship between the
parties as to entitle one to receive support from
the other.
The following are obliged to support each other:
1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the
legitimate and illegitimate children of the latter;
and
5. Legitimate brothers and sisters, whether of
the full or half-blood. ( Art. 195, Family Code)
Sec. 2. Comment. - A copy of the application
and all supporting documents shall be served
upon the adverse party, who shall have five (5)
days to comment thereon unless a different
period is fixed by the court upon his motion.
The comment shall be verified and shall be
accompanied by affidavits, depositions or other
authentic documents in support thereof.
The application for support pendente lite is
responded to not by an answer but by a verified
comment accompanied by affidavits, depositions
or other authentic documents in support of the
facts set forth in the comment.
Sec. 3. Hearing. - After the comment is filed, or
after the expiration of the period for its filing,
the application shall be set for hearing not more
than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is
provided for evidence on motions.
Hearing on the application is mandatory. It shall
be held not later than three (3) days from the
receipt of the comment or from the expiration of
the period to file the same.
Sec. 4. Order. - The court shall determine
provisionally the pertinent facts, and shall
render such orders as justice and equity may
require, having due regard to the probable
outcome of the case and such other
circumstances as may aid in the proper
resolution of the question involved. If the
application is granted, the court shall fix the
amount of money to be provisionally paid or
such other forms of support as should be
provided, taking into account the necessities of
the applicant and the resources or means of the
adverse party, and the terms of payment or
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mode for providing the support, If the
application is denied, the principal case shall
be tried and decided as early as possible.
Ramos v. Court of Appeals
45 SCRA
Held: Where the trial court ruled that the claim
of filiation and support has been adequately
proven, alimony pendente lite can be validly
granted pending appeal of such decision.
Trial court’s refusal to grant support pendente
lite does not deprive the appellate court the
authority to grant the same especially so where,
in view of the poverty of the child, it would be a
travesty of justice to refuse him support until the
decision of the judge is sustained on appeal.
Reyes v. Ines-Luciano
81 SCRA
Facts:
Held: Where petitioner failed to present
evidence on the alleged adultery of his wife
when the action for legal separation is heard on
the merits, the grant of support pendente lite is
valid. Adultery is a good defense and if properly
proved and sustained will defeat the action.
However, the alleged adultery of the wife must
be established by competent evidence. Mere
allegation would not suffice to bar her from
receiving support pendente lite.
In determining the amount to be awarded as
support pendente lite it is not necessary to go
fully into the merits of the case, it being
sufficient that the court ascertain the kind and
amount of evidence which it may deem
sufficient to enable it to justly resolve the
application, one way or the other, in view of the
merely provisional character of the resolution to
be entered. Mere affidavits may satisfy the court
to pass upon the application for support
pendente lite. It is enough that the facts be
established by affidavits or other documentary
evidence appearing in the record.
Sec. 5. Enforcement of order. – If the adverse
party fails to comply with an order granting
support pendente lite, the court shall, motu
propio or upon motion, issue an order of
execution against him, without prejudice to his
liability for contempt.
When the person ordered to give
support pendente lite refuses or fails to do so,
any third person who furnished that support to
the applicant may, after due notice and hearing
in the same case, obtain a writ of execution to
Prepared by:
AKSYON PARTY
enforce his right of reimbursement against the
person ordered to provide support.
Sec. 6. Support in criminal cases. – In criminal
actions where the civil liability includes support
for the offspring as a consequence of the crime
and the civil aspect thereof has not been
waived, reserved or instituted prior to its filing,
the accused may be ordered to provide support
pendente lite to the child born to the offended
party allegedly because of the crime. The
application therefor may be filed successively
by the offended party, her parents, grandparents
or guardian and the State in accordance with
the procedure established under this Rule.
Sec. 7. Restitution. – When the judgment or
final order of the court finds that the person
who has been providing support pendente lite is
not liable therefor, it shall order the recipient
thereof to return to the former the amounts
already paid with legal interest from the dates
of actual payment, without prejudice to the right
of the recipient to obtain reimbursement in a
separate action from the person legally obliged
to give support. Should the recipient fail to
reimburse said amounts, the person who
provided the same may likewise seek
reimbursement thereof in a separate action from
the person legally obliged to give such support.
JUDGMENTS AND FINAL ORDERS
FORM
Rule 36, Sec. 1. Rendition of final judgements
and final orders. -- A judgement or final order
determining the merits of the case shall be in
writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and
the law on which it is based, signed by him, and
filed with the clerk of court.
Concept of Final Judgement and
Final Order
Rule 41, Sec. 1. Subject of appeal. –
An appeal may be taken from a
judgement or final order that
completely disposes of the case, or of a
particular matter therein when declared
by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new
trial or reconsideration;
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(b) An order denying a petition for relief or
any similar motion seeking relief from
judgement;
(c) An interlocutory order;
(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside
a judgement by consent, confession or
compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent;
(f) An order of execution;
(g) A judgement or final order for or
against one or more of several parties or in
separate claims, counter-claims, cross-claims
and third-party complaints, while the main case
is pending, unless the court allows an appeal
therefrom; and
(h) An order dismissing an action without
prejudice.
In all the above instances
where the judgement or final order is not
appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
Ceniza v. CA, 218 SCRA 390
Facts: CA, in a resolution, dismissed
petitioner Ceniza’s appeal on the
ground of delayed filing of appellants’
brief. Issue here is WON this resolution
was a final order?
Held: Yes. A final order or judgment is one w/c
either TERMINATES the action itself or
operates to vest some right in such a manner as
to put out of the power of the ct. making the
order to place in the parties in their original
conditions. A final order disposes of the whole
subject matter or terminates proceedings/action,
LEAVING NOTHING TO BE DONE BUT TO
ENFORCE BY EXECUTION. However, a final
order is appealable.
KINDS
As to finality
Rendition of Judgement
Rule 36, Sec. 1, supra.
Rule 40, Sec. 2. When to appeal. – An appeal
may be taken within fifteen (15) days after
notice to the appellant of the judgement or final
order appealed from. Where a record on appeal
is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30)
days after notice of the judgement or final order.
Prepared by:
AKSYON PARTY
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed.
Rule 41, Sec. 3. Period of ordinary appeal –
The appeal shall be taken within fifteen (15)
days from notice of the judgement or final order
appealed from. Where a record on appeal is
required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30)
days from notice of the judgement or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed.
Rule 42, Sec. 1. How appeal taken; time for
filing – A party desiring to appeal from a
decision of the Regional Trial Court rendered in
the exercise of its appellate jurisdiction may file
a verified petition for review with the Court of
Appeals, paying at the same time to the clerk of
said court the corresponding docket and other
lawful fees, depositing the amount of P 500.00
for costs, and furnishing the Regional Trial
Court and the adverse party with a copy of the
petition. The petition shall be filed and served
within fifteen (15) days from notice of the
decision sought to be reviewed or of the denial
of petitioner’s motion for new trial or
reconsideration filed in due time after
judgement. Upon proper motion and the
payment of the full amount of the docket and
other lawful fees and the deposit for costs before
the expiration of the reglementary period, the
Court of Appeals may grant an additional period
of fifteen (15) days only within which to file the
petition for review. No further extension shall
be granted except for the most compelling
reason and in no case to exceed fifteen (15)
days.
Entry of judgement
Rule 36, Sec. 2. Entry of judgements and final
orders. – If no appeal or motion for new trial or
reconsideration is filed within the time provided
in these Rules, the judgement or final order shall
forthwith be entered by the clerk in the book of
entries of judgements. The date of finality of the
judgement or final order shall be deemed to be
the date of its entry. The record shall contain
the dispositive part of the judgement or final
order and shall be signed by the clerk, with a
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certificate that such judgement or final order has
become final and executory.
Rule 38, Sec. 3. Time for filing petition;
contents and verification. – A petition provided
for in either of the preceding sections of this
Rule must be verified, filed within sixty (60)
days after the petitioner learns of the judgement,
final order, or other proceeding to be set aside,
and not more than six (6) months after such
judgement or final order was entered, or such
proceeding was taken; and must be accompanied
with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon,
and the facts constituting the petitioner’s good
and substantial cause of action or defense, as the
case may be.
Rule 39, Sec. 6. Execution by motion or by
independent action. – A final and executory
judgement or order may be executed on motion
within five (5) years from the date of its entry.
After the lapse of such time, and before it is
barred by the statute of limitations, a judgement
may be enforced by action. The revived
judgement may also be enforced by motion
within five (5) years from the date of its entry
and thereafter by action before it is barred by the
statute of limitations.
Entry of Satisfaction of Judgement
Rule 39, Sec. 44. Entry of satisfaction of
judgement by clerk of court. – Satisfaction of a
judgement shall be entered by the clerk of court
in the court docket, and in the execution book,
upon he return of a writ of execution showing
the full satisfaction of the judgement executed
and acknowledged in the same manner as a
conveyance of real property by the judgement
obligee or by his counsel unless a revocation of
his authority is filed, or upon the endorsement of
such admission by the judgement obligee or his
counsel on the face of the record of the
judgement.
Sec. 45. Entry of satisfaction with or without
admission. – Whenever a judgement is satisfied
in fact, or otherwise than upon an execution, on
demand of the judgement obligor, the judgement
obligee or his counsel must execute and
acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding
section, and after notice and upon motion the
court may order either the judgement obligee or
his counsel to do so, or may order the entry of
satisfaction to be made without such admission.
Prepared by:
AKSYON PARTY
As to process of procuring
Judgement of the Pleadings
Rule 34, Sec. 1. Judgement on the pleadings. –
Where an answer fails to tender an issue, or
otherwise admits the material allegations of the
adverse party’s pleading, the court may, on
motion of that party, direct judgement on such
pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal
separation, the material facts alleged in the
complaint shall always be proved.
Judgement on Demurrer to Evidence
Rule 33, Sec. 1. Demurrer to evidence. – After
the plaintiff has completed the presentation of
his evidence, the defendant may move for
dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief.
If his motion is denied, he shall have the right to
present evidence. If the motion is granted but
on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to
present evidence.
Summary Judgements
Rule 35
Sec. 1. Summary judgement for claimant. – A
party seeking to recover upon a claim, counter-
claim, or cross-claim or to obtain a declaratory
relief may, at any time after the pleading in
answer thereto has been served, move with
supporting affidavits, depositions or admissions
for a summary judgement in his favor upon all
or any part thereof.
Sec. 2. Summary judgement for defending
party. – A party against whom a claim, counter-
claim, or cross-claim is asserted or a declaratory
relief is sought may, at any time, move with
supporting affidavits, depositions or admissions
for a summary judgement in his favor as to all
or any part thereof.
Sec. 3. Motion and proceedings thereon. – The
motion shall be served at least ten (10) days
before the time specified for the hearing. The
adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days
before the hearing. After the hearing, the
judgement sought shall be rendered forthwith if
the pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as to
the amount of damages, there is no genuine
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issue as to any material fact and that the moving
party is entitled to a judgement as a matter of
law.
Sec. 4. Case not fully adjudicated on motion. –
If on motion under this Rule, judgement is not
rendered upon the whole case or for all the
reliefs sought and a trial is necessary, the court
at the hearing of the motion, by examining the
pleadings, and the evidence before it and by
interrogating counsel shall ascertain what
material facts exist without substantial
controversy and what are actually and in good
faith controverted. It shall thereupon make an
order specifying the facts that appear without
substantial controversy, including the extent to
which the amount of damages or other relief is
not in controversy, and directing such further
proceedings in the action as are just. The facts
so specified shall be deemed established, and the
trial shall be conducted on the controverted facts
accordingly.
Sec. 5. Form of affidavits and supporting
papers. – Supporting and opposing affidavits
shall be made on personal knowledge, shall set
forth such facts as would be admissible in
evidence, and shall show affirmatively that the
affiant is competent to testify to the matters
stated therein. Certified true copies of all papers
or parts thereof referred to in the affidavit shall
be attached thereto or served therewith.
Sec. 6. Affidavits in bad faith. -- Should it
appear to its satisfaction at any time that any of
the affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose
of delay, the court shall forthwith order the
offending party or counsel to pay to the other
party the amount of the reasonable expenses
which the filing of the affidavits caused him to
incur, including attorney’s fees. It may, after
hearing, further adjudge the offending party or
counsel guilty of contempt.
Rule 29, Sec. 3. Other consequences. – If any
party or an officer or managing agent of a party
refuses to obey an order made under section 1 of
this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce
any document or other thing for inspection,
copying, or photographing or to permit it to be
done, or to permit entry upon land or other
property, or an order made under Rule 28
requiring him to submit to a physical or mental
examination, the court may make such orders in
regard to the refusal as are just, and among
others the following:
Prepared by:
AKSYON PARTY
(a) An order that the matters regarding
which the questions were asked, or the character
or description of the thing or land, or the
contents of the paper, or the physical or mental
condition of the party, or any other designated
facts shall be taken to be established for the
purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or prohibiting him
from introducing in evidence designated
documents or things or items of testimony, or
from introducing evidence of physical or mental
condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
judgement by default against the disobedient
party; and
(d) In lieu of any of the foregoing orders or
in addition thereto, an order directing the arrest
of any party or agent of a party for disobeying
any of such orders except an order to submit to a
physical or mental examination.
Default Judgements
Rule 9, Sec. 3. Default; declaration of. – If the
defending party fails to answer within the time
allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending
party, and proof of such failure, declare the
defending party in default. Thereupon, the court
shall proceed to render judgement granting the
claimant such relief as his pleading may
warrant, unless the court in its discretion
requires the claimant to submit evidence. Such
reception of evidence may be delegated to the
clerk of court.
(a) Effect of order of default. – A party in
default shall be entitled to notice of subsequent
proceedings but not to take part in the trial.
(b) Relief from order of default. – A party
declared in default may at any time after notice
thereof and before judgement file a motion
under oath to set aside the order of default upon
proper showing that his failure to answer was
due to fraud, accident, mistake or excusable
negligence and that he has a meritorious
defense. In such case, the order of default may
be set aside on such terms and conditions as the
judge may impose in the interest of justice.
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(c) Effect of partial default. – When a parte and the court to render judgement on the
pleading asserting a claim states a common basis thereof.
cause of action against several defending parties,
some of whom answer and the others fail to do Dismissals under Rule 29, Sec. 5
so, the court shall try the case against all upon
the answers thus filed and render judgement Rule 29, Sec. 5. Failure of party to attend or
upon the evidence presented. serve answers. – If a party or an officer or
(d) Extent of relief to be awarded. – A managing agent of a party wilfully fails to
judgement rendered against a party in default appear before the officer who is to take his
shall not exceed the amount or be different in deposition, after being served with a proper
kind from that prayed for nor award notice, or fails to serve answers to
unliquidated damages. interrogatories submitted under Rule 25 after
proper service of such interrogatories, the court
(e) Where no defaults allowed. – If the
on motion and notice, may strike out all or any
defending party in an action for annulment or
part of any pleading of that party, or dismiss the
declaration of nullity of marriage or for legal
action or proceeding or any part thereof, or enter
separation fails to answer, the court shall order
a judgement by default against that party, and in
the prosecuting attorney to investigate whether
its discretion, order him to pay reasonable
or not a collusion between the parties exists, and
expenses incurred by the other, including
if there is no collusion, to intervene for the State
attorney’s fees.
in order to see to it that the evidence submitted
is not fabricated.
As to parties
Judgements after ex parte
As against one or more several parties
presentation of Evidence
Rule 36, Sec. 3. Judgement for or against one
Rule 18, Sec. 5. Effect of failure to appear. –
or more of several parties. – Judgement may be
The failure of the plaintiff to appear when so
given for or against one or more of several
required pursuant to the next preceding section
plaintiffs, and for or against one or more of
shall be cause for dismissal of the action. The
several defendants. When justice so demands,
dismissal shall be with prejudice, unless
the court may require the parties on each side to
otherwise ordered by the court. A similar failure
file adversary pleadings as between themselves
on the part of the defendant shall be cause to
and determine their ultimate rights and
allow the plaintiff to present his evidence ex
obligations.
parte and the court to render judgement on the
basis thereof.
Several Judgement
Compromise Judgement
Rule 36, Sec. 4. Several judgements. – In an
action against several defendants, the court may,
when a several judgement is proper, render
judgement against one or more of them, leaving
Order for Dismissal
the action to proceed against the others.
Motion to Dismiss (See Rule 16)
Rule 9, Sec. 3 (c). Effect of partial default. –
When a pleading asserting a claim states a
Dismissals under Rule 17 (Dismissal
common cause of action against several
of Actions)
defending parties, some of whom answer and
the others fail to do so, the court shall try the
Dismissals under Rule 18, Sec. 5
case against all upon the answers thus filed and
render judgement upon the evidence presented.
Rule 18, Sec. 5. Effect of failure to appear. –
The failure of the plaintiff to appear when so
Against entity without juridical personality
required pursuant to the next preceding section
shall be cause for dismissal of the action. The
Rule 36, Sec. 6. Judgement against entity
dismissal shall be with prejudice, unless
without juridical personality. – When judgement
otherwise ordered by the court. A similar failure
is rendered against two or more persons sued as
on the part of the defendant shall be cause to
an entity without juridical personality, the
allow the plaintiff to present his evidence ex
Prepared by:
AKSYON PARTY
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judgement shall set out their individual or
proper names, if known.
As to claims
At various stages or separate judgements
Rule 36, Sec. 5. Separate judgements. – When
more than one claim for relief is presented in an
action, the court, at any stage, upon a
determination of the issues material to a
particular claim and all counter-claims arising
out of the transaction or occurrence which is the
subject matter of the claim, may render a
separate judgement disposing of such claim.
The judgement shall terminate the action with
respect to the claim so disposed of and the
action shall proceed as to the remaining claims.
In case a separate judgement is rendered, the
court by order may stay its enforcement until the
rendition of a subsequent judgement or
judgements and may prescribe such conditions
as may be necessary to secured the benefit
thereof to the party in whose favor the
judgement is rendered.
Rule 31. Sec. 2. Separate trials. – The court, in
furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-
claim, counter-claim, or third-party complaint,
or of any separate issue or of any number of
claims, cross-claims, counter-claims, third-party
complaints or issues.
Rule 41, Sec. 1 (g). No appeal may be taken
from: x x x x A judgement or final order for or
against one or more of several parties or in
separate claims, counter-claims, cross-claims
and third-party complaints, while the main case
is pending, unless the court allows an appeal
therefrom; and x x x x
As to how executed
Judgements not stayed on appeal
Rule 39, Sec. 4. Judgements not stayed by
appeal. – Judgements in actions for injunction
receivership, accounting, support, and such
other judgements as are now or may hereafter be
declared to be immediately executory, shall be
enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion
may make an order suspending, modifying,
restoring or granting the injunction,
receivership, accounting, or award of support.
Prepared by:
AKSYON PARTY
The stay of execution shall be upon such terms
as to bond or otherwise as may be considered
proper for the security or protection of the rights
of the adverse party.
Judgements for money
Rule 39, Sec. 9. Execution of judgements for
money, how enforced. –
(a) Immediate payment on demand. – The
officer shall enforce an execution of a judgement
for money by demanding from the judgement
obligor the immediate payment of the full
amount stated in the writ of execution and all
lawful fees. The judgement obligor shall pay in
cash, certified bank check payable to the
judgement obligee, or any other form of
payment acceptable to the latter, the amount of
the judgement debt under proper receipt directly
to the judgement obligee or his authorized
representative if present at the time of payment.
The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn
over the said amount within the same day to the
clerk of court of the court that issued the writ.
(b) If the judgement obligee or his
authorized representative is not present to
receive payment, the judgement obligor shall
deliver the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within the
same day to the clerk of court of the court that
issued the writ, or if the same is not practicable,
deposit said amounts to a fiduciary account in
the nearest government depository bank of the
Regional Trial Court of the locality.
.
The clerk of said court shall thereafter arrange
for the remittance of the deposit to the account
of the court that issued the writ whose clerk of
court shall then deliver said payment to the
judgement obligee in satisfaction of the
judgement. The excess, if any, shall be
delivered to the judgement obligor while the
lawful fees shall be retained by the clerk of court
for disposition as provided by law. In no case
shall the executing sheriff demand that any
payment by check be made payable to him.
(b) Satisfaction by levy. – If the judgement
obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode of
payment acceptable to the judgement obligee,
the officer shall levy upon the properties of the
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judgement obligor of every kind and nature
whatsoever which may be disposed of for value
and not otherwise exempt from execution giving
the latter the option to immediately choose
which property or part thereof may be levied
upon, sufficient to satisfy the judgement. If the
judgement obligor does not exercise the option,
the officer shall first levy on the personal
properties, if any, and then on the real properties
if the personal properties are insufficient to
answer for the judgement.
The sheriff shall sell only a sufficient portion of
the personal or real property of the judgement
obligor which has been levied upon.
When there is more property of the judgement
obligor than is sufficient to satisfy the judgement
and lawful fees, he must sell only so much of the
personal or real property as is sufficient to
satisfy the judgement and lawful fees.
Real property, stocks, shares, debts, credits, and
other personal property, may be levied upon in
like manner and with like effect as under a writ
of attachment.
(c) Garnishment of debts and credits. –
The officer may levy on debts due the judgement
obligor and other credits, including bank
deposits, financial interests, royalties,
commissions and other personal property not
capable of manual delivery in the possession or
control of third parties. Levy shall be made by
serving notice upon the person owing such debts
or having in his possession or control such
credits to which the judgement obligor is
entitled. The garnishment shall only cover such
amount as will satisfy the judgement and all
lawful fees.
The garnishee shall make a written report to the
court within five (5) days from service of the
notice of garnishment stating whether or not the
judgement obligor has sufficient funds or credits
to satisfy the amount of judgement. If not, the
report shall state how much funds or credits the
garnishee holds for the judgement obligor. The
garnished amount in cash, or certified bank
check issued in the name of the judgement
obligee, shall be delivered directly to the
judgement obligee within ten (10) working days
from service of notice on the said garnishee
requiring such delivery, except the lawful fees
which shall be paid directly to the court.
Prepared by:
AKSYON PARTY
In the event there are two or more garnishees
holding deposits or credits sufficient to satisfy
the judgement, the judgement obligor, if
available, shall have the right to indicate the
garnishee or garnishees who shall be required to
deliver the amount due; otherwise, the choice
shall be made by the judgement obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to
delivery of payment to the judgement obligee.
Judgements for specific acts
Rule 39, Sec. 10. Execution of judgements for
specific acts. –
(a) Conveyance, delivery of deeds, or other
specific acts; vesting title. – If a judgement
directs a party to execute a conveyance of land
or personal property, or to deliver deeds or other
documents, or to perform any other specific act
in connection therewith, and the party fails to
comply within the time specified, the court may
direct the act to be done at the cost of the
disobedient party by some other person
appointed by the court and the act when so done
shall have like effect as if done by the party. If
real or personal property is situated within the
Philippines, the court in lieu of directing
conveyance thereof may by an order divest the
title of any party and vest it in others, which
shall have the force and effect of a conveyance
executed in due form of law.
(b) Sale of real or personal property. – If
the judgement be for the sale of real or personal
property, to sell such property, describing it, and
apply the proceeds in conformity with the
judgement.
(c) Delivery or restitution of real property.
– The officer shall demand of the person against
whom the judgement for the delivery or
restitution of real property is rendered and all
persons claiming rights under him to peaceably
vacate the property within three (3) working
days, and restore possession thereof to the
judgement obligee; otherwise, the officer shall
oust all such persons therefrom with the
assistance, if necessary, of appropriate peace
officers, and employing such means as may be
reasonably necessary to retake possession, and
place the judgement obligee in possession of
such property. Any costs, damages, rents or
profits awarded by the judgement shall be
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 CIVIL PROCEDURE
satisfied in the same manner as a judgement for
money.
(d) Removal of improvements on property
subject of execution. – When the property
subject of the execution contains improvements
constructed or planted by the judgement obligor
or his agent, the officer shall not destroy,
demolish or remove said improvements except
upon special order of the court, issued upon
motion of the judgement oblige after due
hearing and after the former has failed to
remove the same within a reasonable time fixed
by the court.
(e) Delivery of personal property. – In
judgements for the delivery of personal property,
the officer shall take possession of the same and
forthwith deliver it to the party entitled thereto
and satisfy any judgement for money as therein
provided.
Special Judgements
Rule 39, Sec. 11. Execution of special
judgements. – When a judgement requires the
performance of any act other than those
mentioned in the two preceding sections, a
certified copy of the judgement shall be attached
to the writ of execution and shall be served by
the officer upon the party against whom the
same is rendered, or upon any other person
required thereby, or by law, to obey the same,
and such party or person may be punished for
contempt if he disobeys such judgement.
Effect of Judgements and Final Orders
Local
Rule 39, Sec. 47. Effect of judgements or final
orders. – The effect of a judgement or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgement or final
order, may be as follows:
(a) In case of a judgement or final order
against a specific thing, or in respect to the
probate of a will, or the administration of the
estate of a deceased person, or in respect to the
personal, political, or legal condition or status of
a particular person or his relationship to
another, the judgement or final order is
conclusive upon the title to the thing, the will or
administration, or the condition, status or
relationship of the person; however, the probate
of a will or granting of letters of administration
Prepared by:
AKSYON PARTY
shall only be prima facie evidence of the death
of the testator or intestate.
(b) In other cases, the judgement or final
order is, with respect to the matter directly
adjudged or as to any other matter that could
have been raised in relation thereto, conclusive
between the parties and their successors in
interest by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same capacity;
and
(c) In any other litigation between the
same parties or their successors in interest, that
only is deemed to have been adjudged in a
former judgement or final order which appears
upon its face to have been so adjudged, or
which was actually and necessarily included
therein or necessary thereto.
Foreign
Rule 39, Sec. 48. Effect of foreign judgements
or final orders. – The effect of a judgement or
final order of a tribunal of a foreign country,
having jurisdiction to render the judgement or
final order is as follows:
(a) In case of a judgement or final order
upon a specific thing, the judgement or final
order is conclusive upon the title of the thing;
and
(b) In case of a judgement or final order
against a person, the judgement or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title.
In either case, the judgement or final order may
be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
NOTES ON JUDGMENT AND FINAL
ORDERS:
Rule 36 § 1. Rendition of judgment and final
orders. A judgment or final order determining
the merits of the case shall be:
(1) in writing
(2) personally and directly prepared by the judge
(3) stating clearly and distinctly the facts and
the law on which it is based.
(4) Signed by him
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(5) And filed with the Clerk of Court.
Rule 36 § 3. Judgment for or against one or
more of several parties.
Judgment is rendered in favor of party
A; based on particular judgment is rendered
only against
Final order - Court has nothing else to do.
Order granting a MTD - a Final Order
Only final orders and judgment are subjects of
appeal. Interlocutory orders are not subject of
appeal.
Rendition of judgment - upon the clerk receiving
the copy
Book of entry of judgment - date of the lapse of
the fifteen (15) days; not on the date of entry.
Book of satisfaction of judgment
Entry of judgment - important for counting of
petition for entry of judgment, among others.
First Sense - terminates action
Second Sense of finality - final and executory.
Final judgment under new rules - that which can
already be executed
Nunc pro tunc - "then as now"
Final & executory - even if ground is substantial
can no longer be modified, except:
1. Clerical errors
2. Nunc pro tunc
3. Annulment of judgment based on extrinsic
fraud (Jep Management Co.)
4. Void judgment (Paluwagan and Vda de
Macoy) a void judgment never prescribes.
Difference between Motion for Re-open and
MNT (taken within the period for taking
appeal):
To re-open trial - make use of ordinary
prudence, rules on motions
MNT - extrinsic fraud - basis of the cause of
action, performance of a contract
Content of the action itself.
Extrinsic Fraud - one of the parties prevented
the other by fraudulent acts to be given his day
in court.
Amendment of judgment
Prepared by:
AKSYON PARTY
Before it becomes final and
executory
Eternal Gardens Memorial v. IAC
165 SCRA 439
Facts: A Land Development
Agreement was executed between
Eternal & Mission. Mission owned the
property & Eternal was to develop it
into a memorial park. Thereafter, a
Deed of Absolute Sale w/ mortgage
was executed. BUT Maysilo claimed
ownership over the land. Thus, Eternal
filed w/ the CFI a complaint for
interpleader vs. Mission & Maysilo
Estate. It alleged that, in view of the
conflicting claims & to protect its
interests, defendants should be
required to interplead & litigate
between themselves.
Mission filed a Motion for placing
on judicial deposit the amounts due &
unpaid fr. Eternal. Motion was DENIED.
The contract was declared ineffective
on the ground that the subject matter
of the sale was not existing.
Mission then filed a Motion to
Dismiss the Interpleader. TC ordered
Eternal to comply w/ the contract
EXCEPT w/ regard to the interpleader
of Maysilo Estate. Maysilo filed Motion
for Recon w/c was GRANTED by the TC.
Hearings on the merits were ordered
BUT Mission filed for Writ of Execution.
This was DENIED. On appeal, CA
dismissed & this was affirmed by the
SC. The order became final &
executory.
In 1983, heirs of Singson spouses
filed an action for quieting of title
where Eternal & Mission were
defendants. This case is still pending.
In the present case, Mission filed a
petition for certiorari w/ the CA for the
setting aside of RTC orders regarding
the setting of the hearing on the
merits. CA dismissed BUT later on
reversed. Eternal filed a Motion for
Recon w/c was again DENIED.
Held: Courts have the power to
amend their judgments, to make them
conformable to the applicable
jurisprudence PROVIDED said
judgments ARE NOT YET FINAL. In the
CAB, Eternal admitted it still has to
pay whoever will be declared as
owner. Therefore, there was no
plausible reason for petitioner’s
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objections to the deposit order after
having asked the ct. by complaint for
interpleader whose deposit is not only
required but is a contractual
obligation.
Finally, there is no res judicata
here bec. there was no judgment on
the merits. Also, there was no identity
of issues. One case involved the
propriety of motion for recon w/o a
hearing & the denial of the motion for
execution. The other case involved the
propriety of a CA order that Eternal
shall deposit what was required of it
pending the trial on the merits.
After it becomes final and
executory
David v. CA< 214 SCRA 644
Facts: SUPRA
Held: The filing of the petition for
relief fr. judgment w/ the TC was an
unequivocal admission on Afable’s
part that his period to appeal fr. the
decision had already expired. When a
final judgment has become executory,
it thereby becomes immutable &
unalterable. The judgment MAY NO
LONGER BE MODIFIED in any respect
even if the modification is meant to
correct what is perceived to be an
erroneous conclusion of fact or law, &
regardless of whether the modification
is attempted to be made by the ct.
rendering it or by the highest ct. of the
land.
The only recognized EXCEPTIONS
are:
1. Correction of clerical errors
2. Judgment Nunc Pro Tunc
3. Where the judgment is VOID
These are entries w/c cause NO INJURY
to any party.
Judgments nunc pro tunc
Cardoza v. Singson, 181 SCRA 45
Annulment of judgment
Top Management Programs v. CA
222 SCRA 763
Facts: Gregorio promised to give a
large tract of land to Trinidad & Fajardo
Prepared by:
AKSYON PARTY
if a case bet. Greggy & Velasquez
regarding the lot will be successful.
Trini & Fajards then filed an action to
ENFORCE the agreement & the TC
ruled in their favor. Trini & Fajards then
filed a motion for the issuance of a
writ of execution w/c was granted by
the TC. The Register of Deeds,
however, informed the ct. that the
deed of conveyance cannot be issued
in favor of Trini & Fajards bec. the land
had already been sold to other
persons. However, the TC directed the
Register of Deeds to issue separate
titles in favor of the two. Top
Management then filed this petition to
annul the orders of the TC on the
ground of extrinsic fraud. It claimed
the it has title to the same parcel of
land w/c was being levied upon since
it bought the same fr. the heirs of
Greggy. The CA dismissed the petition
for annulment.
HELD: Extrinsic fraud is one the effect
of w/c PREVENTS a party fr. having a
trial or real contest or fr. presenting all
of his case to the ct. or where it
operates upon matters pertaining NOT
TO THE JUDGMENT ITSELF but of the
MANNER in w/c it was procured so that
there is not a fair submission of the
controversy.
In other words, EXTRINSIC FRAUD
refers to any fraudulent act of the
prevailing party in the litigation w/c is
committed OUTSIDE OF THE TRIAL of
the case, whereby the defeated party
has been PREVENTED fr. exhibiting
FULLY his side of the case, by fraud,
deception or deception practiced upon
him by his opponent.
The relief is granted on the theory
that by reason of the extrinsic fraud
preventing a party fr. fully trying his
case, there has never been a real
contest before the ct. on the subject
matter of the action.
The allegations that the judge had
no jurisdiction to order the sheriff to
levy on execution since the judge had
full knowledge that Top Management
& not Greggy who owned the land,
that the writ vs. the prop. was not
justified bec. Top Management was not
a party to the case--These DO NOT
CONSTITUTE FRAUD.
Top Management has not pointed
to any act w/c prevented it form fully
ventilating its case. If ever there was
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any failure in the presentation of its
case, it was caused by its own
inaction.
Paluwagan ng Bayan v. King, 172 SCRA 60
Vda. De Macoy v. CA, 206 SCRA 244
Motion for New Trial/Reconsideration
Grounds and nature, Rule 37, Sec. 1
Motion for new trial, Rule 37,
Sec. 1, par 1
Distinguished from Motion to
reopen trial
Agulto v. CA, 181 SCRA 30
Facts: Agulto was convicted of
bigamy. He filed a motion to reopen
trial due to newly discovered evidence
AFTER THE PARTIES HAD RESTED BUT
BEFORE JUDGMENT. His new evidence
was a photocopy of a marriage
certificate of his second wife to
another man. (His theory was that if
his second wife had been previously
married, he could not have validly
married her, therefore, no bigamy).
Held: The MNT may be filed AFTER
judgment but w/in the period of
perfecting an appeal for the grounds
stated in S1,R37 & S2R121.
A Motion to Reopen Trial may
be presented only after either or both
parties have formally offered & closed
their evidence but BEFORE judgment.
The reopening of a trial for the
reception of new evidence is not a
grant of a new trial. There is no
specific provision in the rules w/c
governs. It is only a recognized
procedural recourse deriving validity
fr. long established rules. The
governing rule is paramount interests
of justice resting entirely on the sound
judicial discretion of the trial ct..
Therefore, the grant/denial is not
subject to certiorari under grave abuse
of discretion.
On the merits, the SC decided
that the new evidence had defects & it
failed to show that the 2nd wife's
marriage was still existing when she
married Agulto.
Prepared by:
AKSYON PARTY
Grounds
Velasco v. Ortiz, 184 SCRA 303
Facts: The ward of the spouses
Velasco was able to w/draw money of
the dead husband of P Velasco (the
latter was diagnosed as disabled).
The ward argued that she was
instructed by the decedent to w/draw
money. The TC ruled in favor of
Velasco. Copy of the decision was
given to the 1st counsel of the ward.
The NEW counsel filed an MNT based
on newly discovered evidence (a
certification fr. a doctor that the
decedent can still properly
communicate)
Held: For Velasco. There is no
dispute that at the time the MNT was
filed, the reglementary period to
appeal had lapsed, & the decision had
become final & executory. A judgment
w/c has become final & executory can
no longer be altered & modified, mush
less set aside by the ct. w/c rendered
it since such ct. has already lost
jurisdiction over the case. Thereafter,
the power & prerogative to order
suspension of the rules of procedure is
reposed, not in the ct. w/c had
rendered such decision but rather in
an appellate ct. & ultimately in the SC,
& then only upon a showing that
otherwise the imperious demands of
substantial justice will be thwarted.
Where the reglementary period
to appeal had expired, the remedy is
an MNT. If it has become final &
executory, one can file a petition for
relief under R 38 or a petition for
annulment of judgment.
An MNT upon the ground of
newly discovered evidence is properly
granted where there is concurrence of
the following requisites:
1. the evidence had been
discovered after trial;
2. the evidence could not have
been discovered & produced during
trial even w/ exercise of reasonable
diligence
3. the evidence is material &
not merely corroborative, cumulative
or impeaching.
What is essential is not so
much the time when the evidence
offered first sprang into existence not
the time when it first came to the
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knowledge of the party now
submitting it; what is essential is,
rather, that the offering party had
exercised reasonable diligence in
seeking to locate such evidence
before or during trial but had not
nonetheless failed to secure ( it must
have been searched for but not found
during trial. )
In the CAB, the new evidence
was already presented as evidence in
a criminal case vs. the ward for
falsification. Therefore, she had
already come across that evidence
before.
Moreover, it is in the nature of
an impeaching evidence for it seeks
merely to weaken or controvert
previous evidence; it is not material
or corroborative.
Tumang v. CA 172 SCRA 332
Facts: Tumang filed for an annulment
of a deed of sale bec. there was no
consideration. The trial ct. rule for her.
The defendant filed an MFR & an MNT
based on the ground that the decision
was based on insufficiency of
evidence & that it was contrary to law.
As evidence, D presented receipts
proving consideration. Tumang assails
the decision of the CA w/c granted the
motion of D by saying that it was
FORGOTTEN EVIDENCE (it had existed
at trial & w/c could have been
discovered by D if due diligence was
exercised.
Held: NEWLY DISCOVERED
EVIDENCE: need not be newly created
evidence. May & does commonly refer
to evidence already in existence prior
or during the trial but w/c could not
have been secured & presented during
the trial despite reasonable diligence.
FORGOTTEN EVIDENCE: evidence
already in existence or available
before or during the trial, w/c was
known to & obtainable by the party
offering it w/c could have been
presented seasonably were it not for
the oversight or forgetfulness of such
party or his counsel.
In the case at bar, the receipts
were found during a gen. cleaning, w/c
goes to show that the it could hardly
have been located w/ the exercise of
reasonable/average diligence.
The receipts are MATERIAL
bec. they are of such import that a
Prepared by:
AKSYON PARTY
reasonably prudent man would have
searched for them. There would be a
great benefit to D if he presents it in
trial, therefore, there is no reason why
did not try to locate it.
Motion for reconsideration, Rule
37, Sec. 1, par. 2
Periods. Rule 37, Sec. 1
For filing
Effect of Motion for
Extension of Time to File
See also Rule 41,
Sec. 3, par. 2; Rule 40, Sec. 2, par. 2
Habaluyas v. Japson, 142 SCRA 208
This a resolution on a Motion for
Reconsideration on the SC's 2nd
division decision.
Held: In S 39 of BP 129, the period of
appeal in the RTC was reduced fr. 30 to
15 days for appeals fr. final orders,
resolution, awards, judgment or
decision. But only 48 hours for
habeas corpus cases.
Only notice of appeal is
required. Record is not required
except in (a) appeals in spl. proc.; (2)
where multiple appeals are allowed.
In these cases, the period is 30 days.
According to the Interim Rules, no
appeal bond in necessary for appeal.
Its S 4 disallows a second MFR of a
final order or judgment.
The purpose of such is to avoid
procedural delays. But the Rules does
not expressly prohibit a motion for
extension of time to file a MFR of a
final order or judgment.
The interest of justice would
be better served if the ruling in the
original decision (denying extension)
were applied prospectively fr. the time
herein stated. It would be unfair to
deprive parties of their right to appeal
simply bec. they availed themselves of
a procedure w/c was not expressly
prohibited or allowed by the law or
Rules.
On the other hand, an MNT or
MFR is not a prerequisite to an appeal,
a petition for review or a petition for
review on certiorari, & since the
purpose is to expedite the final
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disposition of cases, a strict but
prospective application of said ruling
is in order
From June 30, 1986, the rule
shall be strictly enforced that no
motion for extension of time to file an
MNT or MFR, may be filed w/ the MeTC,
MTC, RTC, & IAC. Such a motion may
be filed only in cases pending w/ the
SC as the ct. of last resort, w/c may in
its sound discretion either grant or
deny the extension requested.
In appeals in spl. proc. under R
109 & in other cases wherein multiple
appeals are allowed, a motion for
extension of time to file the record on
appeal may be filed w/in the
reglementary period of 30 days. If the
ct. denies the motion for extension,
the appeal must be taken w/in the
original period since such a motion
does not suspend the period for
appeal.
The TC may grant said motion
after the expiration of the period for
appeal provided it was filed w/in the
original period.
Not required for appeal
Director of Lands v. Aquino, 192 SCRA 296
Facts: Abra Industrial applied for
registration of a piece of land w/c was
granted. The Director opposed saying
that the land was mineral &
unalienable. Within one year fr. the
issuance of the registration decree,
Director filed a petition for review the
decrees of registration.
Held: An MNT or MFR is not a pre-
requisite to an appeal for review or
petition for review on certiorari. The
reglementary period for filing a
petition for review on certiorari in the
instant case was 30 days fr. notice of
order or judgment subject of review
w/c period, parenthetically, is now 15
days pursuant to S 39 of BP129. The
Director having been granted a total of
60 days w/in w/c to file the petition,
the same was timely filed.
Second Motion for New
Trial, Rule 37, Sec. 5, par. 1
Second Motion for
Reconsideration, Rule 37, Sec. 5, par. 2
Prepared by:
AKSYON PARTY
For Resolution, Rule 37, Sec. 4
Contents of Motion for New Trial, Rule
37, Sec. 2
In general, Rule 37, Sec. 2; see
also Rule 15
Motion for New Trial, Rule 37,
Sec. 2, par. 2
Motion for Reconsideration, Rule
37, Sec. 2, par. 3
Pro forma motion and its effects,
Rule 37, Sec. 2, par. 4
Pojas v. Gozo-Dadole, 192 SCRA 575
Facts: The plaintiff filed a complaint
for recovery of possession. The TC
ruled for the plaintiff & ordered the
defendant to vacate. The defendant
filed an MFR BUT IT FAILED TO
MENTION THE DAY THE MOTION IS TO
BE RESOLVED (no notice of hearing).
Later, the defendant filed a notice of
appeal.
Held: Notice of appeal denied. The
MFR was a mere scrap of paper &
therefore, pro forma. It did not contain
the day when the motion is to be
heard, violating S5 R15. As such it
does not suspend the running of the
period of appeal. The notice of appeal
filed out of time.
Action upon Motion for New Trial
Options in general, Rule 37, Sec.
3
Granting, Rule 37, Sec. 6
Effect in general, Rule 37,
Sec. 5
Fernan v. CA, 142 SCRA 208
Facts: Fernan was suspected of
having stolen a wallet. The TC ruled
against the plaintiff store & awarded
damages to Fernan. The CA affirmed
the TC but upon the MFR of the
plaintiff, the TC was reversed.
Held. The appeal of the store raises
no question of law but of fact Review
of facts is not a function of the CA. An
exception to this rule is when
manifestly correct findings has been
unwarrantedly rejected or reversed.
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In the CAB, the CA reversed the TC. (a) evidence

These instances of conflict of findings (b) law
between the CA & TC is a basis of (c) award of damages is excessive
recourse to the SC.
There must be a showing on After final & executory:
the face of the record of gross or 1. Nunc pro tunc
extraordinary misperception or 2. Petition for relief from judgment
manifest bias. 3. Annulment of judgment
In the CAB, there was no 4. Remedies during execution
substantial reason given by Fernan
refuting the assessment of the CA w/c Final judgment - 16th day after notice
ruled that her testimony had No prescriptive period in actions to nullify
contradictions & inconsistencies. Estoppel - by act
Laches - by negligence
Partial New Trials, Rule 37, Sec. Petition for relief from judgment- equitable
6, 7 remedy; only very highly discretionary on the
part of the court.
Denying
Remedies, Rule 37, Sec. Action to annul - separate action. Res judicata
9; Rule 41, Sec. 1 (a) may be raised.
Any kind of order for Petition for relief, if
granted, not appealable.
If not granted, not
NOTES ON MOTION FOR NEW TRIAL & appealable - only special civil actions
MOTION FOR RECONSIDERATION:

Judgment is vacated. Relief from Judgments, Orders or

On appeal - accept evidence as it is; attach the
evidence as it is.
New trial is not de novo, only those affected
Denial of MNT - appeal the judgment within the
remaining time to file an appeal even if less
than five (5) days.
MNT- not supported by evidence, not supported
by law, damages are excessive.
There can be a second MNT only when
________
Order granting MNT - first judgment is vacated
for purposes of entering new evidence.
When judgment may be vacated in part - in case
of separate and several judgments.
Motion to Re-open - governed by rules on
Motions.
Options after judgment: but not yet final &
executory:
1. Appeal
2. Motion for new trial FAME/good & PFR was dismissed by CA saying that
substantial grounds for saying so
Discovery after J is ren
Newly discovered evidence Not
discovered with reasonable evidence
Not merely colorative
3. Motion for reconsideration
other Proceedings
Grounds and nature, Rule 38, Secs. 1, 2
Grounds
Garcia v. CA, 202 SCRA 228
Facts: Eduardo Garcia was able to
secure a judgment fr. the trial ct.
issuing to him the Certificate of Title to
a land actually owned by the spouses
Garcia. He did this by misinforming
the ct. of the spouses’ address so that
the notices wont reach them thereby
depriving them of the opportunity to
participate in the trial. Garcia further
made further recovery of the land
difficult by conveying the land to
another. The couple filed a petition
for relief (PFR) fr. said judgment but
failed to categorically allege extrinsic
fraud in their affidavit of merit. The
extrinsic fraud should be expressly
alleged in the affidavit of merit for the
petition to lie. The SC said that since
in case at bar, the spouses were able
to allege facts leading to extrinsic
fraud, express allegation of such is not
necessary.

Prepared by:
AKSYON PARTY
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Held: Where fraud is the ground, the
fraud must be extrinsic or collateral &
the facts upon w/c the extrinsic fraud
is based must have not been
controverted or resolved in the case
where the judgment sought to be
annulled was rendered. For this
purpose, fraud is regarded as extrinsic
or collateral where it has prevented a
party fr. having a trial or fr. presenting
all of his case to the ct.. Intrinsic fraud
takes the form of acts of the party in a
litigation during the trial, such as the
use of forged instruments of perjured
testimony w/c did not affect the
presentation of the case but did
prevent a fair & just determination of
the case.
Conde v. IAC, 144 SCRA 144
Facts: Petitioners alleged fraud.
Gutierrez was able to make it appear
that he was the son of Esteban &
Fermina Gutierrez & as a necessary
consequence of such filiation, was the
absolute owner by succession of the
prop. in Q.
Held: Petition should be dismissed for
lack of merit bec. the fraud allegedly
perpetuated by G is only intrinsic in
nature & not extrinsic. Fraud is
regarded as extrinsic or collateral
where it has prevented a party fr.
having a trial or fr. presenting all of his
case to the ct.. In the case at bar, the
fraud was in the nature of documents
allegedly manufactured by G to make
it appear he was the rightful heir of
the disputed property. Hence the
fraud is intrinsic in nature.
Meralco v. CA, 187 SCRA 200
Facts: Meralco, after failing to appear
at a pre-trial conference, was declared
in default. Thereafter, Meralco made
the following steps: 1) Filed a MFR to
Lift Order of Default & to Vacate
Judgment by Default - bec. of
counsel’s influenza. Denied. 2)
Petition for Relief fr. Judgment .
Dismissed. 3) Petition for Certiorari.
Propriety of this last action is the issue
in this case.
Held: Certiorari is not proper. Such
remedy had already been lost bec. of
Meralco’s neglect or error in the choice
of remedies. Certiorari shall not lie to
shield Meralco fr. the adverse
consequences of such neglect or error.
Prepared by:
AKSYON PARTY
Relief under Rule 38 is of equitable
character & is allowed only in
exceptional cases where there is no
other available or adequate remedy.
Meralco could have proceeded by
appeal to vacate or modify the default
judgment. Relief will not be granted
when the loss of remedy at law was
due to his own negligence or a
mistaken mode of procedure,
otherwise the petition for relief will be
tantamount to the right of appeal
already. Further, when other lawyers
could have appeared & moved for
postponement, sickness of counsel is
not excusable.
Requires final judgment or loss of
appeal
Villa Rey Transit v. Far East Motor Co., 81
SCRA 298
Facts: Villa Rey failed to answer w/in
the reglementary period even after
denial of its motion to extend time to
answer. Hence, & order of default was
rendered. Thereafter it filed a MTQ
Service of Summons, Motion to Lift
Order of Default & To Set Aside
Judgment. This was denied. The 30-
day appeal period expired w/o any
appeal. Villa Rey contends the motion
it filed should be considered as
Petition for Relief.
Held: This is untenable. A petition
for relief presupposes a final &
unappealable judgment. In this case,
judgment has not yet become final &
unappealable at the time of the filing
of the motion.
David v CA, 214 SCRA 644
Facts: An RTC decision was affirmed
by CA w/ slight modification to reflect
the date for the computation of the
interest to be awarded. This was done
after denying the petitioner’s relief fr.
judgment.
Held: CA. In sustaining the RTC
decision to deny the petition for relief
fr. judgment the respondent Court
cannot at the same time modify the
decision sought to be overturned by
such a petition. The filing of the
petition for relief fr. judgment w/ the
trial ct. was an unequivocal admission
on the private respondent’s that his
period to appeal fr. the decision had
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 CIVIL PROCEDURE
already expired. A petition for relief fr.
judgment under Rule 38 presupposes
a final judgment or loss of the right to
appeal. The affirmance of the CA of
the denial of the petition is a
confirmation of the existence of a final
& executory judgment. CA can neither
amend nor modify it. When a final
judgment becomes executory it
becomes immutable & unalterable,
even if modification is meant to
correct an erroneous conclusion of fact
or law. Only corrections of clerical
errors or the making of so-called NUNC
PRO TUNC entries & other judgment
w/c cause no prejudice to any party
are the exceptions to this rule,
otherwise any other modifications of a
final & executory judgment is VOID.
Time for Filing, Rule 38, Sec. 3
Strictly followed
First Integrated Bonding v. Hernando, 199
SCRA 796
Facts: FIB was impleaded as the
insurance agency of defendant who
figured in an accident killing one
person. FIB failed to answer so it was
declared in default. FIB took no
positive step to vacate the order of
default. Instead it chose to file a
petition for relief fr. judgment almost
five months fr. its receipt of copy of
the amended decision.
Held: The petition for relief fr.
judgment was filed out of time. The
rules require that such petition should
be filed w/in 60 days after receipt of
judgment & not more than six months
after entry of judgment. Period
required by R 38 is non-extendible &
never interrupted. It is not subject to
any cond. or contingency, bec. it is
itself devised to meet a condition or
contingency. The remedy under the
Rule 38 was an act of grace, designed
to give the party one last chance.
Being in the position of one who begs,
such party’s privilege is not to impose
conditions, haggle, or dilly-dally, but
to grab what is offered him.
Contents
Affidavit of Merit, Rule 38, Sec.
3 Las Piñas. Pre-trial was set but the
Prepared by:
AKSYON PARTY
Garcia v. CA, 202 SCRA 228
Facts: Eduardo Garcia was able to
secure a judgment fr. the trial ct.
issuing to him the Certificate of Title to
a land actually owned by the spouses
Garcia. He did this by misinforming
the ct. of the spouses’ address so that
the notices wont reach them thereby
depriving them of the opportunity to
participate in the trial. Garcia further
made further recovery of the land
difficult by conveying the land to
another. The couple filed a petition for
relief fr. said judgment but failed to
categorically allege extrinsic fraud in
their affidavit of merit. The PFR was
dismissed by CA saying that extrinsic
fraud should be expressly alleged in
the affidavit of merit for the petition to
lie. The SC said that since in case at
bar, the spouses were able to allege
facts leading to extrinsic fraud,
express allegation of such is not
necessary.
Held: CA denied PFR for want of
express allegation of extrinsic fraud.
SC reversed saying that since Rule 38
Sec 3 (FAME as ground in affidavit of
merit for PFR) & that in case at bar,
petitioners were able to show extrinsic
fraud, affidavit is not necessary.
HELD: The affidavit of merit serves as
a jurisdictional basis for a ct. to
entertain a petition for relief. But it
admits of exceptions, i.e. Where the
attachment of the affidavit of merit in
the petition for relief is unnecessary.
The affidavit of merit is essential bec.
a new trial would be a waste of court’s
time if the complaint turned out to be
groundless. Thus, where there was no
jurisdiction over the defendant on the
subject matter of the action, where a
judgment was taken by default before
defendant’s time to answer had
expired, where it was entertained by
mistake, or was obtained by fraud &
other similar cases, as when the
applicant had no notice of the trial, we
ruled that an affidavit is not necessary.
When motion for reconsideration
considered as petition for relief
Dulos v. CA, supra
Facts: Nocom spouses filed forcible
entry case v Dulos spouses in the MTC
Nocoms still filed another case for
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 CIVIL PROCEDURE
annulment & a writ of preliminary
injunction in Makati. Dulos’ motion for
suspension on forcible entry case was
dismissed there being no prejudicial
question. Pre-trial saw that the Dulos
spouses were in default despite the
presence of a purported
representative (Rectra) who held a
special power of attorney executed by
said spouses. Judgment on forcible
entry case for the Nocoms. The Dulos’
filed a motion for reconsideration of
said judgment w/c was denied & the
aggrieved spouses went to the
Supreme Court via special civil action
for certiorari, w/c the Supreme Court
dismissed. Nocoms filed for a writ of
demolition w/c was countered by
petitioner spouses by filing for a
petition for certiorari, prohibition &
preliminary injunction, w/c was
granted by the CA. Hence, this
appeal.
Held: A motion for reconsideration of
a judgment of default may be
considered a petition for relief fr.
judgment under R38 S2 only if it is
a)verified, b) filed w/in 60 days fr. time
petitioner learns of the decision but
not more than 6 months fr. entry of
judgment & c) if in case of failure to
file an answer the motion must be
accompanied by an affidavit of merit.
It may be considered as a motion for
new trial under R27 S2 only if it is
accompanied by an affidavit of merit.
Action of Court before Answer
Power to Deny, Rule 37, Sec. 4
Remedies after denial, see
Rule 41, Sec. 1(b)
Service Specialists v. Sheriff of Manila, 145
SCRA 139
Facts: Service Specialists & counsel
failed to appear at a pre-trial & was
declared in default. Service filed a
petition for relief fr. judgment. The
lower ct. dismissed the petition for
relief for lack of jurisdiction to hear &
determine the same. Service filed a
notice of appeal to the IAC.
Held: Service filed its petition for
relief also w/ the RTC Manila but not in
the same case but in another case.
This is erroneous. A judgment or order
denying relief under Rule 38 is final &
Prepared by:
AKSYON PARTY
not appealable, unlike an order
granting such relief w/c is
interlocutory. However, in such an
appeal, the appellate ct. is only to
determine the existence of any of the
grounds relied upon (fraud, accident,
mistake or excusable negligence) &
the merit of the petitioner’s cause of
action or defense, as the case may be.
Moreover, Service merely filed a
notice of appeal to the IAC fr. the order
of the lower ct. w/c dismissed his
petition for relief. The appeal should
have been made to this Court through
a petition for review on certiorari.
Prelimnary Injunction pending
proceedings, Rule 38, Sec. 5
Order to file an answer, Rule 38,
Sec. 4
Procedure
Order to file an answer, Rule 38,
Sec. 4
Availability of preliminary
injunction, Rule 38, Sec. 5
Proceedings after answer is filed,
Rule 38, Sec. 6
Where denial of appeal is set
aside, Rule 38, Sec. 7
Action of court after giving due course
Granting of petition for relief,
Rule 38, Sec. 7
Remedies
David v. CA, 214 SCRA 644
Facts: An RTC decision was affirmed
by CA w/ slight modification to reflect
the date of computing interest. This
was done after denying the
petitioner’s relief fr. judgment.
Held: The remedy under R41 w/c
provides that a judgment denying
relief under R38 is subject to appeal, &
in the course thereof, a party may also
assail the judgment on the merits,
upon the ground that it is not
supported by the evidence or it is
contrary to law. This provision,
however, can’t be construed as
allowing the review of the decision on
the specific ground therein indicated,
if the denial of the petition for relief
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 CIVIL PROCEDURE
by the TC is sustained by the Appellate
Court. It may only be done if the
appellate ct. overturns such denial.
The CA, after sustaining the trial
court’s denial of the petition for relief
should have dismissed the appeal & to
declare the lower court’s decision as
firm, final & executory.
Cheesman v. IAC, 193 SCRA 93
Facts: Thomas Cheesman attempted
to annul the sale by his Filipino wife of
a residential lot & building to Padilla.
The sale was declared void ab initio.
However, judgment was set aside as
regards Padilla on a petition for relief
filed by her ground on fraud, accident,
mistake or excusable negligence w/c
had seriously impaired her right to
present her case adequately. The
petition for relief fr. judgment was
given due course & a new judge
presided over the case. Padilla filed a
motion for summary judgment w/c
was granted. The judgment declared
sale as valid. Cheesman questions the
propriety of such judgment.
Held: An order of the CFI granting a
petition for relief under Rule 38 is
interlocutory & is not appealable.
Once the petition for relief is granted
& the judgment subject thereof set
aside, & further proceedings are
thereafter had, the ct. in its judgment
on the merits may properly grant the
relief sought in the petitioner’s basic
pleadings, although different fr. that
stated in his petition for relief.
Therefore, since both CFI & IAC found
that the facts adequately proved
fraud, mistake or excusable
negligence by w/c Padilla’s rights have
been substantially impaired, the sale
was declared valid.
Denying petition for relief, Rule 41, Sec.
1 (b)
Service Specialists v. Sheriff of Manila, supra
Facts: Petitioner filed an action for
replevin & damages against private
respondents. A pre-trial conference
was set but private respondent &
counsel failed to appear w/c resulted
in the issuance of an order &
judgment of default against
respondents. Private respondent then
moved for relief fr. judgment & order
of default. This motion was opposed
Prepared by:
AKSYON PARTY
by a motion to dismiss filed by
petitioner. The Lower ct. dismissed
the petition for relief on the ground of
lack of jurisdiction. Respondent filed a
notice of appeal but a writ of
execution was nevertheless filed. This
case stems fr. the deputy sheriff’s
refusal to proceed w/ the auction of
respondent’s properties.
Held: A judgment or order denying
relief under Rule 38 is final &
appealable, unlike an order granting
such relief w/c is interlocutory.
However, in the appeal the ct. may not
reverse or modify the judgment on the
merits. The judgment fr. w/c relief is
sought is already final & executory.
This remedy only enables the
appellate ct. to determine not only the
existence of any of the grounds relied
upon whether it be fraud, accident,
mistake or excusable negligence, but
also & primarily, the merit of the
petitioner’s cause of action or the
defense, as the case may be. If the
appellate ct. finds that one of the
grounds exist & that the petitioner has
a good cause of action or importance,
it will reverse the denial or dismissal,
set aside the judgment in the main
case & remand the case to the lower
ct. for a new trial in accordance w/ Sec
7 Rule 38. Finally, a notice of appeal
fr. the order of the lower ct. w/c
dismissed his petition for relief fr.
judgment “for lack of jurisdiction to
hear & determine the same” should
have been made to the SC through a
petition for review on certiorari & not
to the IAC.
Remedies after petition for relief expires
Ramirez v. CA, 187 SCRA 153
Facts: Ramirez, as a plaintiff in a suit
over an airstrip failed to do the
following: furnish a copy of the notice
of hearing to other party; appear at
the pre-trial; file appeal instead of
seeking relief; & seasonably file a
motion for reconsideration. After the
judgment in (favor of Ramirez’s
opponent) had become final &
executory. Ramirez filed a petition for
relief fr. judgment even if the period
for filing the same had expired.
Held: There is no means whereby the
defeated party may procure a final &
executory judgment to be set aside w/
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 CIVIL PROCEDURE
a view to the removal of the litigation
beyond the period for seeking relief, fr.
a final order of judgment under Rule
38 unless A) judgment is void for want
of jurisdiction or for lack of due
process of law or B) it has been fraud.
(In other words, period for filing of PFR
is mandatory but admits of exceptions
– lack of J & fraud.)
Reopening not allowed
Alvendia v. IAC, 181 SCRA 252
Facts: Alvendia defaulted on his
obligation to pay Bonamy. Alvendia
did not do anything fr. the filing of the
complaint against him up to the time
that the judgment became final &
executory. Execution has been ordered
& his property has been levied. He
moved for extension of time to file
petition for review.
Held: It is axiomatic that there is no
justification in law & in fact for the reopening of
a case w/c has long become final & w/c in fact
has been executed. Time & again this ct. has
said that the doctrine of finality of judgment is
grounded on fundamental considerations of
public policy & sound practice that at the risk of
occasional error, the judgments of cts. must
become final at some definite date fixed by law –
Alvendia cannot invoke equity to reopen case
since they have been given opportunity but
failed.
Appeals
Rules 40 - 56
NOTES ON APPEAL:
Appeal is a matter of right created by statutes.
Once denied, one can avail of the constitutional
right to due process
Appeal is asking appellate court to correct errors
in the exercise of jurisdiction
Errors of jurisdiction corrected by review on
certiorari.
Question of fact (Qf): existence of a particular
issue of fact.
Issue: which evidence is credible?
Whether or which particular situations exists.
As the case goes higher in court hierarchy, court
deal with evidence as part of record, hence
becomes farther and farther from the source.
Prepared by:
AKSYON PARTY
For this reason, Trial courts are accorded high
respect in their findings of questions of fact.
Questions of law: characterization of facts as
shown by the evidence, correct characterization
of fact based on a provision of law. Which law
is applicable given a set of circumstances
Several Modes of Appeal:
1. Mandatory - appellate court must accept
2. Discretionary - appellate court can deny
Normally:
First appeal - always mandatory; as a matter of
statutory right
Second appeal - discretionary
Third appeal - discretionary (however, if
originating fr. MTC, may not be discretionary)
Exercise of jurisdiction - subject matter of
appeal
Questions of jurisdiction - file an entirely new
case; subject matter of special civil actions
In Appeals - title of the case remains the same
Plaintiff/Defendant only
becomes Appellant/Appellee
Issue of jurisdiction - file entirely a different
case by filing special civil action attaching as a
ground, abuse of discretion
Appeal can focus in the issue of law or fact or
both.
Execution, Satisfaction and Effect of
Judgments
Rule 39
Special Civil Actions
Rules 62 - 71
NOTES ON SPECIAL CIVIL ACTIONS:
Certiorari - means discretion
Appeal by certiorari - Rule 45 - title does not
change
Petition for review on certiorari - title does not
change
Special civil action for certiorari - Rule 65 - title
does not change because it is an entirely
different case
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 CIVIL PROCEDURE
Rule 45 is a mode of appeal while Rule 65 is an
entirely different action
Petition for Relief from Judgment - title does not
change, judge is not a party
On old rule, the Record on Appeal are merely
summary of proceedings while the new in the
rules, the entire records are elevated to the
appellate court, esp. if only one appeal is
possible.
Remedies where more than 1 appeal is allowed
e.g., Special Civil Action of Eminent Domain
(Mun of Biñan)
2 orders:
(1) condemnation of the property, Q of
just taking, RTC original and exclusive
jurisdiction
(2) order of whether there is just compensation
(final order: right to take and use prop)
(final order: value of prop)
Note: In the appeal of the 1st order, the court
cannot elevate the entire records since the court
must still rule on the 2nd order. The appellant
summarizes records on appeal which must be
approved by the RTC then such will be elevated
with exhibits and relevant documents. Therefore
Record on Appeal (in Eminent Domain)
substitutes the entire records.
Effect: time periods differ
a. elevation of records - after notice, records are
elevated in 15 days
b. records on appeal - 30 days appellee can
object within 5 days only upon approval of
record.
Note: always institute action at the lowest court
to maximize appeals
MTC to RTC - Rule 40
Multiple appeals - notice and
record of appeal
Go directly to the SC when appeal contains only
questions of law.
Start with CA - action to annul and special civil
actions
Only one mode of appeal to SC - Appeal by
certiorari.
6-9 - Appeal; execution of judgments -
Interpleader, declaratory relief; special civil
actions
Prepared by:
AKSYON PARTY
Ordinary civil actions - record on appeal; in
situations when you can take multiple appeals
Special civil actions - eminent domain; record
on appeal also essential
Record on appeal substitutes for the records.
Ordinary appeals - entire records are elevated
SC
Original jurisdiction MTC- mode: only appeals
by certiorari Rule 45; discretionary on the part
of the SC; raise only questions of law
Stay the judgment of the CA; [15] extendible for
compelling reasons for 30 days
Gen Rule: All appeals stay execution of
judgment
Exception: Rule 43
CA
Mode: Petition for review by cert; [15]
extendible for 15 days and no second extension
unless compelling reasons [15 days]; must raise
questions of fact with questions of law or
questions of fact alone (Habaluyas case: a Bar Q,
classmates).
Rule 42- file petition not with court of origin but
with the CA; summarizes the case, facts, the
issues and puts in the arguments.
RTC
mode: file notice of appeal [15]
Ordinary
appeal Ordinary
civil actions- partial new trial
Rule 41 record on appeal [30]
several judgments
No extension; avail only
separate judgments;
Where mult. Appeals are
where appeal is allowed
Avail; raise Q fact & Q law
Special civil actions- eminent domain
partition
now: an appeals bond is not
Special proceedings- only under Rule
109
required
MTC
CA
88
 CIVIL PROCEDURE

Rule 43; in cases originating from Quasi-

Judicial Agency, the CA having appellate
jurisdiction, the CA does not stay the execution
of Judgment 45

Quasi-judicial
Agency QJA CA
SC
Rule 45- Appeal by certiorari (18 copies) 43 45

From RTC to SC possible only when questions

of law are raised. [15] days extendible for 30 APPEAL (PROCESS)
days
MTC } Ordinary appeal by filing
Appeals from MTC to RTC - original appellate notice of appeal with court of origin within
jurisdiction RTC } 15 days from notice of order
Rule 41
Rule 45- errors of exercise of jurisdiction Periods not a. notice of
Rule 65- errors in jurisdiction appeal [15 days]
Extendible b. notice
SC with record on appeal [30 days]
Rule 45 Questions of law
Mode: Appeal by cert. Only Ql
CA Original and concurrent jurisdiction
Mode: Ordinary appeals
Multiple appeals - notice with record SC - Ordinary civil action - cases involving
on appeal ambassadors and consuls;
Raises Qf/Ql Special civil actions

RTC (exercises original jurisdiction)

CA - Ordinary civil actions
annulments/nullification of judgment
SC - discretionary; may wish not to entertain Special civil actions cert,
appeal mandamus, prohibition, h. corpus

Rule 45; Questions of law

Appeal by certiorari Ordinary appeal

CA - Court of origin Court of origin - where notice of appeal is filed

Perfection: when notice is filed
Or Annulment of judgment For defendants that
Nullification of judgment did not file an appeal: when the period to
Special civil actions
Habeas corpus appeal had lapsed

SC From date of perfection of appeal- court loses

Mode: Appeal by cert.; raise only Ql; jurisdiction over the parties
[15] extension [30 days; After appeal is perfected- court of origin may
Rule 45, furnish 18 copies still act prior to transmission of records
Not contentious points
RTC Approve compromises
Permit appeals of indigent litigants
Eg. Subject matter is perishable

Rule 41 Appellate Court - has jurisdiction to dismiss the

42 45 case only for reasons provided in ROC, it is nor
MTC RTC discretionary on their part
CA SC
Prepared by:
AKSYON PARTY
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 CIVIL PROCEDURE

MTC to RTC- appellant's memorandum/ Errors in the

appellee's memorandum exercise Appeal
RTC to CA- appellant's brief/ appellee's brief Of
jurisdiction
Petition for review -
Nothing is filed at the court of origin; always
filed with the appellate court; summarizes facts Q: When is appeal by cert under rule 65
Court has the option to dismiss the petition available?
outright not on the procedural ground but on the A: After a judgment or final order
merits because grounds are not substantions It is not available if there is already a final
(Rule 42, Rule 43) judgment (Eternal Gardens) or a final order
Other parties required to file only a Comment
Rule 42 & 43 period to file memoranda; not Substitutes for an appeal
extendible Gen Rule: No . MNT/MR is technically
Rule 45 period to file memoranda; extendible not a substitute
Excep'n: Presco v. CA, SCA by cert.
Ordinary Appeal - Record on Appeal
Should be written by the judge; but burden of
drafting the record falls on the appellant
TC losses jurisdiction, with respect to the party
filing the appeal, upon its approval of the
Record of Appeal
Other party may object within 5 days from
receipt of record on appeal
After approval; notice, record on appeal,
exhibits, etc. are elevated to the appellate court

Concept of Multiple Appeals -

Eminent Domain

Concept of Record of Appeal (Summary of the

case, looks like a Pre-Trial Brief)- should be
written by the Judge but the burden falls on the
appellant, subject to approval of the court.
Period: within 30 days

Court of Origin loses jurisdiction upon

the approval of record of appeal

MODES OF APPEAL
Ordinary Appeal Notice (1
Appeal)
Notice with
record of appeal (Multiple Appeal)

Petition for Review 42

43

Appeal by Certiorari
Notice: Rule 65 is not an Appeal

Concept of an APPEAL

Errors of jurisdiction
Rule 65
Subject matter

Prepared by:
AKSYON PARTY
90

Preliminary Attachment
Purpose To have property of adverse party
attached as security for the
satisfaction of judgment that may be
recovered in cases falling under Sec
1, Rule 57.
When At the commencement of the action
applied/grante or at any time prior to the entry of
d judgment
How applied
for File affidavits and applicant’s bond
Court where action is pending, the
CA or the SC even if action is
Who may pending in the lower court.
grant
Requisites for  Sufficient cause of action
granting  Case is covered by section 1
application Rule 57
 No other sufficient security for
the claim exists
 Amount due to applicant or
value of property he is entitled
to recover is equal to the sum
for which the order of
attachment is granted
Prepared by:
AKSYON PARTY
PROVISIONAL REMEDIES
Preliminary
Injunction/Preliminary
Mandatory Injunction
To require a party or a court, agency
or a person to refrain from doing a
particular act or acts or to require
the performance of a particular act
or acts.
At any stage prior to the judgment
or final order
File verified application and
applicant’s bond; if application is
included in the initiatory pleading,
the adverse party should be served
with summons together with a copy
of the initiatory pleading and the
applicant’s bond
Only the Court where the action is
pending; Lower Court, Ca or SC
provided action is pending in the
same court which issues the
injunction.
 Applicant is entitled to the
relief demanded
 Act/s complained of would
work injustice to the applicant
if not enjoined
 Acts sought to be enjoined
probably violates applicants
rights respecting the subject of
the action or proceeding
CIVIL PROCEDURE
Receivership
To place the property subject of an
action or proceeding under the
control of a third party for its
preservation and administration litis
pendentia
At any time prior to satisfaction of
judgment
File verified application and
applicant’s bond; application may
also be included in initiatory
pleading in actions for foreclosure
of mortgage
Court where action is pending, the
CA or the SC even if action is
pending in the lower court.
Appellate court may allow
application for receivership be
decided by the court of origin.
 Applicant has interest in the
property or fund subject matter
of the action or proceeding
 Property or fund is in danger of
being lost removed or
materially injured
 Appointment of receiver is the
most convenient and feasible
means of preserving,
administering or disposing of
the property in litigation
Replevin
To recover possession of personal
property
At the commencement of the action
but before answer is filed
File affidavits and applicant’s bond
Only in the court where action is
pending
 Applicant is the owner of the
property claimed or is entitled
to the possession of the same
 Property is wrongfully detained
by the adverse party
 Property is not distrained or
taken for a tax assessment or a
fine pursuant to law
Support Pendente Lite
To compel adverse party to provide
support while action is pending in
court
At the commencement of the action
or at any time prior to the judgment
or final order
File verified application; bond not
required
Court of origin and appellate court.
(See Ramos v. CA)
 Affidavits, depositions or other
documents should show, at least
provisionally, that the applicant
is entitled to receive support
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 CIVIL PROCEDURE

Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite

Injunction/Preliminary
Mandatory Injunction
Where When third-party claimant makes When third-party claimant makes
property is an affidavit of his title to the an affidavit of his title to the
claimed by property or his right to the property or his right to the
third person possession thereof, and serves such possession thereof, and serves such
affidavit to the sheriff and a copy affidavit to the sheriff and a copy
thereof to the attaching party, the thereof to the attaching party, the
sheriff shall not be bound to keep sheriff shall not be bound to keep
the property unless the attaching the property under replevin unless
party files a bond approved by the the applicant files a bond approved
court to indemnify the third-party by the court to indemnify the third-
claimant in a sum not less than the party claimant in a sum not less
value of the property levied upon. than double the value of the
Claim for damages for the taking or property levied upon. Claim for
keeping the property must be filed damages for the taking or keeping
within 120 days from filing of the the property must be filed within
bond. 120 days from filing of the bond.
Bond executed to the adverse party
in double the value of the property
Bond Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to for the return of the property to the
requirement the adverse party and all damages which he may sustain by reason of the granting of provisional remedy prayed adverse party if such return be No bond required
for, if the court shall finally adjudge that the applicant was not entitled thereto adjudged, and for the payment to
the adverse party of such sum as he
may recover from the applicant of
the action

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Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite

Injunction/Preliminary
Mandatory Injunction
By counter-bond: Party against whom the provisional remedy is availed of, may move for the discharge of the provisional remedy granted by filing a
counter-bond in an amount equal to that fixed by the court or equal to the value of the property if with respect to a particular property to secure the
payment of any judgment that the adverse party may recover in the action

Not applicable.

Discharge of
remedy

Filing of counter-bond made only

Cash deposit may be made in lieu of
the counter-bond
Other grounds: improper or
irregular issuance or enforcement or
insufficiency of the bond
upon showing that the issuance or
continuance thereof would cause
irreparable damage to the party or Amount of counter-bond should
person enjoined while the applicant also be double the value of the
can be fully compensated for such property
damages as he may suffer ; counter-
bond alone will not suffice to
discharge the injunction.
Insufficiency of the application Appointment was obtained without
sufficient cause

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Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite

Injunction/Preliminary
Mandatory Injunction
Damages in When judgment or final order finds
case applicant the person who has been providing
for any of the support pendente lite not liable
provisional  Owner of property attached must file before trial or before perfection of appeal application for damages therefor:
remedies not  Party who availed of provisional remedy and his surety or sureties must be notified , showing right to damages and amount thereof
entitled thereto  Damages awarded only after proper hearing; included in judgment of the main case  Court shall order the recipient
or for any to return the amounts already
irregularity in If judgment of appellate court is favorable to the party against whom provisional remedy was effected: received with interest from the
the dates of actual payment
procurement of  Application must be filed with the appellate court before the judgment of the appellate court becomes executory  Recipient may obtain
provisional reimbursement from the person
 Appellate court may allow application to be heard and decided by the trial court
remedy legally obliged to give support
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: (separate action must be filed
for the purpose)
 Adverse party may recover damages in the same action  If recipient fails to reimburse
the amount, person who
provided the same may seek
reimbursement from the person
legally obliged to give the
support (separate action must
be filed for the purpose)

SPECIAL CIVIL ACTIONS

Interpleader Declaratory Certiorari Certiorari Prohibition Quo Expropriation Foreclosure of Partition Forcible Detainer Contempt
Relief (COMELEC Mandamus Warranto Real Estate Entry
and COA) Mortgage
Purpose Compel conflicting Declaration of
claimants to litigate rights and duties Division of real Protect judicial
their claims among (reformation of Taking of private Satisfy creditor property among the system from
themselves instrument, Correcting errors of jurisdiction Remove a usurper property for public based upon parties claiming Recover possession in fact unwarranted
quieting of title, use security rights thereto intrusion
consolidation of
ownership)

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Requisites  Conflicting  Person has  Judgment or Certiorari:  A person  Property  A person  Real property  A person  A person Direct contempt:
claims exist upon interest under a final order has  Any tribunal, board or officer usurps, intrudes owned by a owes another a is owned by enjoys lawful lawfully takes  A person
the same subject deed, will, been rendered by exercising judicial or quasi judicial into, or private party loan several persons possession of the possession of the behaved
matter contract or other the COMELEC functions has rendered judgment unlawfully holds  Taking by  Loan is  Person property land at the improperly in the
 Such claims written or the COA  Such tribunal, etc. has acted without or exercises office, government for secured by claiming right to  Another beginning presence or so
are made upon a instrument  Aggrieved or in excess of its jurisdiction position, or public use mortgage of real the property does person acquires  Such lawful near a court
person who claims  Person’s party wants the franchise  Just property not want co- possession of the possession has  Such
no interest in the rights are judgment or final Prohibition:  A public compensation  Debtor ownership to same property by ended misbehavior
subject matter affected by a order reviewed  Proceedings in a tribunal, officer does or defaulted in continue force,  A demand to obstructed or
statute, executive by a higher court corporation, board, officer or person suffers an act payment intimidation, vacate has been interrupted court
order or exercising judicial, quasi judicial or which, by the  Final demand threat, strategy or made proceedings
regulation, ministerial functions are conducted provision of law, has been made stealth
ordinance, or any without or in excess of its jurisdiction constitutes a Indirect contempt:
other ground for the
governmental Mandamus: forfeiture of his  Misbehavior
regulation  When any tribunal, corporation, office; in performance of
 No breach or board, officer or person unlawfully  An official functions
violation of the neglects performance of an act which the association acts as  Disobe-
rights has yet law specifically enjoins a corporation dience to lawful
occurred within the court orders
Common requisite: Philippines  Abuse or
 There is no appeal or any plain, without being unlawful
speedy, and adequate remedy in the legally interference with
ordinary course of law incorporated or court processes
without lawful  Improper
authority so to act conduct which
tends to impede
administration of
justice
 Pretending to
be a lawyer or
officer
 Failure to
obey subpoena

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cedure  Complaint is  Action is  18 copies of  Petition must be filed within 60 days  Verified  Verified  Complaint filed
filed brought before verified petition from notice of judgment petition in the complaint filed,  Court ascertaines
 Summons appropriate RTC shall be filed  Court orders respondents to file name of the RP is stating right and amount due to
served upon  All persons within 30 days comment within 10 days from receipt of filed (Person purpose of plaintiff and
parties affected made from notice of the order claiming to be expropriation renders judgment
 Parties files parties judgment or final  Court may order filing of reply or entitled to a  Persons owning ordering defendant
motion to dismiss  Notice to Sol order other responsive pleadings public office or or claiming to own to pay within a
or answers the Gen if validity of  If motion for  Court may hear the case or require position usurped any interest within a period not
complaint a statue, executive new trial or recon- parties to submit memoranda by another may pertaining to the less than 90 days
 Pre-trial order or sideration is  Court either grants petition or bring action in his property must be but not more than
 Court regulation of any allowed, period to dismisses the same if it finds the same to own name) joined as 120 days
determines other file petition is be patently without merit, prosecuted  Person at defendants  If defendant fails
parties’ respective governmental interrupted. If manifestly for delay, or that the questions whose instance  Plaintiff may to pay, foreclosure
rights and regulation is motion is denied, raised are too insubstantial to require the petition is enter property after sale ensues
adjudicate their involved petition shall be consideration brought pays costs filing complaint  Costs deducted
several claims  Notice to filed within  Certified copy of judgment is served and expenses and depositing with from proceeds of
prosecutor or remaining period, upon the court, quasi-judicial agency,  Respondent is a government sale, mortgagee
Note: Docket fees attorney of LGU in no case less than tribunal, corporation, board, officer or notified depositary amount paid amount due; if
paid by if involving 5 days. person and disobedience thereto shall be  Court may equivalent to there is excess in
complainant validity of a local  Pay docket punished as contempt. reduce periods for assessed value of the proceeds, same
constitute a lien ordinance and other lawful filing pleadings to property is turned over to
upon subject matter  Court acts on fees and deposit of secure most  Defendants mortgagor
of the action application P500 for costs expeditious allowed to file  If proceeds of
 If during  SC either determination of objections sale is not sufficient
pendency of orders respon- matters involved  Court rules on to cover entire
action there dents to file their in the action the issue of indebtedness,
occurs breach or comment if it finds  Judgment is expropriation, deficiency
violation, action is petition sufficient rendered. Court granting or denying judgment is
converted into an in form and may render the same rendered: execution
ordinary action substance or judgment for costs  If expropriation immediately issues
dismisses the against petitioner, is granted, court if whole debt is
petition if it was relator or person/s appoints notmore due, otherwise,
filed manifestly for claiming to be a than 3 mortagor entitled
delay or the corporation commisioners to execution upon
questions raised  Person  Objections to original terms of
are too adjudged entitled appointment of the contract
unsubstantial to public office commisioners may  Certified copy of
 Respondents may demand of be filed within ten final order
file comment the respondent to days from service confirming the sale
 SC either sets deliver all books  Commissioners is registered in the
case for oral and papers to him take oath before registry of deeds
argument or assuming function
requires  Commissioners
submission of ascertain and report
memoranda or the just
decides the case compensation for
based on submit- the property
ted documents  Clerk of court
serves copies of

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