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DISCLAIMER: I didnt have time to read this so Im sure there are lots of typos/grammatical errors. Sorry about that. There are a few gaps in the notes from when I zoned out/was absent or couldnt type fast enough. Anyway, hope you find these notes useful. If there are any corrections, please let me know asap! Good luck everyone serve summons so you dont need 15 days! They are already parties to the action.
Amended complaint (as a matter of right) 15 days from receiving a copy thereof Amended complaint (with leave of court) 10 days from receipt of the order of the court granting the amended complaint Filing of a reply is OPTIONAL, but if one is filed, should be filed within 10 days Process to have a party declared in default: 1. Motion by the claiming party to declare the defending party in default This is not necessarily the defendant, because if the defendant files a counterclaim and the plaintiff does not answer, the plaintiff can be declared in default
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DEFAULT If the DEFENDING party fails to file a responsive pleading (answer) can be declared in default o o o Not limited to a complaint Also applies to counter-claim, third etc. see Sec 2 Rule 6 All these pleadings assert a claim complaint, answer to third fourth party etc complaint. If you do not serve summons, the period to file responsive pleadings does not yet start to run.
2. Notice to the defending party (comply w/ Rule 15 on motions, this is a litigated motion and should be set for hearing) 3. Order of default Remedies available to a party declared in default: o Before judgment: the defending party can have the motion to set aside the order of default or certiorari under Rule 65 (but this is
The answer should be filed within 10 days from the service of the pleading asserting a counterclaim or a cross-claim in this case, there is no need to
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After judgment but before finality: motion for new trial appeal motion for reconsideration
o o
Requirements: o o o Must be in writing (sec 2) Must state the grounds upon which it is based (sec 3) If required by rules/need to prove facts accompanied with affidavits and other papers (sec 3)
Between these periods, a party can also file for bill of particulars
A pleading is not the same as a motion this is an express provision Sec 1 Rule 15 Motion basically relates to an incident in the proceeding, it is not usually based on the merits of an action o e.g. motion for extension of time, bill of particulars etc
Kinds of motions o Motion ex parte addressed to the discretion to the court, not prejudicial to adverse party, no hearing needed Motion of course (motions in due course) not required to be in writing! Made in the due course of the proceeding e.g. 132 motion when grounds become reasonably apparent such as: (as stated by
Rule 41 Sec 1
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Motion day: Rule 15 Sec 7 Friday o Rule 20 Sec 1: motions to set for hearing should be included in the calendar. Motions are usually set on Friday.
Litigated motion made with notice to the adverse party, who should be given an opportunity to oppose Special motion addressed to discretion of the court e.g. rule 28 physical/mental examination
Omnibus Motion Rule: Rule 15 Sec 8 subject to sec 1 rule 9, In a motion attacking a pleading, order, judgment or proceeding, include all objections available o Rule 9 Sec 1: All defenses not raised deemed waived
3 day Notice Rule: Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. o Without being set for hearing, motion is a mere scrap of paper and should be consigned to the dust bin
Motion for leave Rule 15 Sec 9: motion for leave to file a pleading shall be accompanied by a pleading or motion to be admitted
BILL OF PARTICULARS
Exception: Rule 35 Sec 3: summary judgment. 10 day Notice Rule: The motion shall be served at least 10 days before the time specified for the
Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him to properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the
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Bill of particulars is filed when the allegations in the pleading are vague In certain instances, motion to dismiss is not the remedy, the remedy is a motion for bill of particulars o Counterpart in crimpro, also called a bill of particulars
11.23.2010 Service summons by publication: in no case less than 60 days For foreign juridical persons period is 30 days from receipt by the foreign corporation not by the government agency (Rule 11 Sec 2)
What should the court do as soon as the motion is filed? o Clerk of court must immediately bring it to attention of the court So the court can examine the pleading and deny it outright If there is merit, the court can set it for hearing
MOTION TO DISMISS Within what period must you file an MTD? o o Within the time for filing an answer or responsive pleading May be 15, 30, 60, depending on who the defendant is
The party may respond to it directly by filing a separate pleading, or the party can amend its pleading and incorporate
Grounds for MTD: (Rule 16 Sec 1) o o o No jurisdiction over person of defending party No jurisdiction SM Venue improper
If youre a defending party and want to stall After you are served with summons File a motion for b of p, because this SUSPENDS the period within which to file a responsive pleading
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What if the defendant is a domestic corporation and there is a personal action arising from a contract, what is the venue? o Principal place of business as stated in the AOI
o Lack
litis
Venue is Improperly Laid How do you determine issues on proper venue? o o o o Nature of the action Stipulation or agreement Residence of the personal actions parties especially in
What if the plaintiff is a foreign corporation and wants to sue one of the parties in the Philippines arising from breach of contract? o Residence of the defendant
What about if a person sues a sole proprietorship arising from breach of contract? What is the venue? o A sole proprietorship is not a juridical entity, so it should be the residence of the plaintiff
When there is a specific law or rules that provides for venue e.g. Rule 66 Sec 7 Quo Warranto
What about partnership? o o Rule 3 Sec 15 May be sued under the name by which they are generally or commonly known
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What about this rule on stipulation on parties? o o o Parties may agree in writing in the contract or agreement Executed before the action should arise The terminology qualifying must be restrictive
E.g. in case of breach of contract the action shall be filed exclusively in the court of Makati (exclusively, solely, nowhere else except..) only..
Capacity to sue or be sued the party is not suffering from any disqualification such as minority, civil interdiction, limited legal personality, incompetence, insanity What allegation is required if the party is a foreign private juridical entity? o Must allege that it is duly licensed to do business in the Philippines, even if it turns out during trial that it is not in fact authorized Or that it is a foreign corp suing on a single isolated transaction
Litis Pendentia Rule 2 Sec 3+ 4: two or more suits instituted on the basis of the same cause of action
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b (res judicata proper; preclusion of claims cannot re-litigate) c (preclusion of issues any issue relating thereto cannot be litigated in another action)
Requisites: o o o Identity of parties OR the parties represent the same interest in the same action Identity of cause of action Judgment in one is res judicata in the other 11.25.2010 Res Judicata
requisites of res judicata: o o o o identity of parties identity as to cause of action identity as to issues identity as to subject matter of the action
Which should be dismissed? o Choose the action in which all the issues may be litigated! The other action should be dismissed
final = final and executory o Rule 36 Sec 2: Upon the lapse of the period to appeal or to file an MR, the judgment shall be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry.
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When a defendant files an MTD based on this ground, what is the nature of this? o The defendant hypothetically admits the allegations except: o Legal Conclusions Unliquidated damages
GR probate court cant determine ownership over the property except for purposes of inventory or if the parties agree that the probate court can decide. If probate court decides without the parties agreeing, the decision is merely provisional and cannot be considered res judicata. But if the parties agree, it is considered res judicata. Judgment on a compromise with respect to res judicata: immediately final + executory! As a general rule, you cannot appeal. To question the validity, (e.g. fraud attended execution) annul the judgment first. For purposes of another litigation over the same parties, and the same subject matter, you can invoke res judicata
Can the court consider facts not alleged in the complaint? NO. The court cannot consider evidence aliunde, it may only consider allegations on the complaint, it cannot consider extraneous facts, except:
Failure to State Cause of Action Cause of action: the act or omission by which a party violates a right of another (Rule 2 Sec 2)
where there is no dispute as to the due execution of the document jurisprudence because courts are obliged to take judicial
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Claim has been extinguished These are in the nature of affirmative defenses In these instances there may be a preliminary hearing if in answer (Rule 16 Sec 6) o No MTD filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer and at the discretion of the court and a preliminary hearing may be had
Rule 133 Sec 7 tells you how evidence on motion is presented as in cases for MNT based on FAME when the court is unhappy with the evidence on record, it can require additional affidavits or depositions. This also applies in MTD when the court can require parties to appear to prove the grounds of the MTD. Usually this evidence is automatically reproduced in the trial so you dont have to recall the witnesses.
Barred by the Statute of Limitations RANDOM NOTES: Rule 2 Sec 6: Misjoinder of causes of action NOT a ground for dismissal, the remedy is to sever the issue and continue Misjoinder of parties is also NOT a ground for dismissal, parties may be joined or severed as provided by the court For purposes of the amended complaint, plaintiff can amend on anything including vesting Prescription: Rights may be through the passage of time Found in the Civil Code: o (memorize these grounds daw) acquired or lost
Example of when prescription is important: Rule 1 Sec 4 2nd sentence: additional defendant impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading
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Prescriptive period: o o o o o o Actions concerning movables 8 years Real actions over immovables 30 years Mortgage 10 years Written contract 10 years Obligations created by law 10 years Judgment 10 years
Which of the following must be brought within one year? o o o o Defamation Unlawful detainer Recision of contract Specific performance
Failure to comply with Conditions Precedent e.g. barangay conciliation, earnest compromise between family members effort to
Unenforceable under the Statue of Frauds See Art 1403 NCC Should be in writing in order to be enforceable o e.g. sale of real property should be in a public instrument
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Rule 16 Sec 3 What may court do after hearing on MTD? o o o Grant Deny Order amendment of pleading
o Prescription o Unenforceable under the statue of frauds o Res judicata o Extinguished claim
Rule 16 Sec 6 If a complaint is dismissed on this ground does not dismiss the counterclaim pleaded in the answer Compare w/ Rule 17 Sec 2 + 3
What is meant by indubitable in the provision? Not open to question. This is because in the past courts could refuse to rule on the MTD. This is no longer allowed.
Rule 16 Sec 4 The filing of an MTD suspends the period to file a responsive pleading This is similar to the filing of a motion for bill of particulars If the MTD denied, the party can file an answer within the remaining period, which in no case shall be less than 5 days o Note: if the remaining period is longer than 5 days, thats the period he has to file. But if the remaining period is less than 5 days, the period becomes 5 days Rule 16 No need to manifest intention to continue with counterclaim This is because in this case it is the defendant who already deliberated on what he plans to do with his counterclaim Rule 17 Need to manifest intention to continue with counterclaim w/in 15 days Since this is filed at the instance of the plaintiff, the defendant is granted the 15 days from notice to decide if he wants to continue w/ counterclaim
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When are issues joined in a criminal action? o During arraignment, because there is no responsive pleading to an information
o Exceptions:
When should an answer be filed? o o o o o Rule 14 Sec 12 Rule 11 Sec 2 Service upon resident agent 15 days Service upon government agency 30 days Service via publication 60 days
Under Rule 8 the requirements: Section 1 o o Answer should also state the ultimate facts relied on for claim/defense If defense is a matter of law, state the specific provision of law and say why it is applicable Section 2 o o Conflicting defenses may be raised in answer based on alternative defenses See Section 10 re: specific denial. Cant just specifically deny the allegations, must specify reason you are denying it E.g. defendant denies allegations in paragraph 1 2 3 because (then state reason of denial like payment etc)
Note that the rule on liberality should NOT be applied to periods, as these are mandatory and should be strictly complied with.. otherwise you will delay the proceedings Note that answer does not necessarily apply to complaint, may also be counter-claim, cross-claim etc. it should be filed in response to a pleading that asserts a claim against him
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Sec 2 of Rule 23 Can examine deponent whether party on ANY MATTER Restrictions: not privileged must show some relevance (not as strict as in Rule 128), but what is asked should be germane to purpose Sec 16 (Protective Orders prior to taking of Depositions) Sec 8 (Protective Orders while Depositions going on)
Depositions may initially be a mode of discovery, and may be used for testimonial evidence Even if file motion for Bill of Particulars, and same granted/ denied, can still avail of modes Modes are CUMULATIVE, can avail of all of them and technically at any stage of the proceeding Most are resorted to prior to trial but there is nothing in the rules that will prevent a party from taking a deposition in the course of a trial, even in the course of the execution of judgment
What is privileged/not privileged? o Rule 130 Sec 4 privileged communications cannot be the subject of depositions
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if NOT a party, can only use the deposition to IMPEACH the witness e.g. prior inconsistent statement Sec 13 Rule 132
exception: if you call an adverse party, you can use the deposition for ANY purpose; not only for purposes of impeachment, but also as your own evidence! Taking a deposition is like an advance trial, so its a good idea to take the deposition of the adverse party since at that time he has not been coached as a witness and because he will testify under oath. You can use the deposition as direct evidence! You can
The reference to Rule 132 is because of the mention in Sec 3 that the USE of deposition must
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Can a barangay captain take a deposition? o If he is allowed under local government code to administer oaths, he can be authorized to take the deposition
Outside the Philippines (with leave of court) o Commission request that a particular person is designated to take the deposition of a deponent situated in that foreign jurisdiction If the deponent doesnt show up before the commission there is nothing you can do because the commission doesnt have compulsory powers NOTE: the commission person CANNOT rule on the objections. He/she can only note them down. However, the rules provide that objections not raised at the first opportunity are deemed waived Objections Re: rules of admissibility,
Section 8: if you use the deposition for a purpose other than impeaching a witness, you should make the deponent your witness! o Unless you are using the deposition of the adverse party, because you cannot be compelled to make the adverse party your witness Note: For purposes of USE of deposition, must distinguish whether deponent party or not
Depositions may be taken in Philippines, outside of the Philippines or in Foreign Jurisdiction o In Phil: Judge
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The other way to take depositions is through written interrogatories o Instead of oral examination of the deponent outside the Philippines, you can resort to written interrogatories Here there is an exchange of questioning
Leave of court is needed because the court should determine whether the same info can be gathered from other witnesses who are in the Philippines because then you can procure appearance through subpoena Must be NECESSARY + CONVENIENT How do you procure testimony if within 100km? o Subpoena!
o Rule 24
Deposition BEFORE action This pertains to a situtation wherein you anticipate that the litigation will arise later, and you know of a person who has knowledge, so you decide to take his deposition to preserve his testimony This is only available in CIVIL cases not criminal cases (Sec 1) But Sec 7 deposition pending appeal is applicable to criminal + civil actions The manner by which the deposition may be taken is similar to Rule 23 and the use is practically the same
How do you procure testimony of a witness outside the Philippines? o Through a commission/ letters rogatory
Disqualifications: against the DEPONENT up to the 6th degree (2nd cousins) Formal requirements: o What should deposing officer do? Take it stenographically unless agree
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Note Sec 4
Rule 27 This is more useful than a subpoena! Because you can procure the document BEFORE trial instead of getting it during the trial Can you ask for exhumation of a cadaver under Rule 27? o Yes, a cadaver is a THING! But if the person is still alive, that will fall under Rule 28 (examination of persons) TRIAL (RULE 30) Difference between trial and hearing o o o Hearing is more broad than trial Trial primarily involves the presentation of evidence Remember that in certain cases there can be hearing and judgment WITHOUT trial E.g. Motion for summary judgment, judgment on pleadings. In these cases there is no trial but there is a hearing.
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Is there a specific period for trial? o Not more than one month for adjournment or total of three months each o
E.g. if you subpoena records and the officer does not give them to you, or if the person you need is a prisoner in detention
Where should court conduct its trial? o Rule 135 Sec 7 in open court and so far as convenient in a regular court room. All other acts or proceedings may be done by judge in chambers NOTE: pre-trial can be conducted in the chambers of judge Remember: Exclusion of the public under Rules of Evidence. Trial may be held in the chambers because of the nature of the testimony. Also remember the rules on examination of a child witness can be a closed circuit television.
Problem with this rule is that there should be an affidavit showing that the evidence is material and relevant. This should be known to the court because of the exclusionary rule related to pre-trial.
Postponement because of illness of party/counsel: o Motion stating the ground with affidavit or sworn certification showing: o Presence indispensable of party/counsel renders non-
o o
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o o
It should be the affidavit of the doctor! Note: Under Rule 141 Sec 4 h, fee for filing of a motion for postponement is five hundred pesos Note: this rule does NOT apply to criminal cases because it is covered under Sec 2 Rule 119 Court would not ordinarily accept the illness of the handling lawyer because there is usually another lawyer in the firm who can represent the party
Correlate w/ Rule 17 Sec 3 dismissal due to fault of plaintiff o o But if the defendant doesnt show up? Note Rule 30 Sec 5 g upon admission of the evidence refers to both
Order of Trial: o (Differentiate with Rule 132 Sec 4 order of examination of witnesses: direct, cross, redirect, re-cross) Rule 30 Sec 5 refers to the order of
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SUMMARY: plaintiff presents evidence, makes formal offer, court makes ruling on evidence of plaintiff, after all parties present evidence, court makes another ruling, then technically can render judgment. But prior to that the court can require the parties to submit their respective memoranda. Note that the submission of the memoranda is NOT mandatory but is discretionary. If the court requires the submission of memoranda and the party fails to do so, what is the effect? NOTHING! The court cannot refuse to issue judgment, so the court should render judgment. The submission of memoranda is a privilege granted by the court! So if the party doesnt file a memorandum, the court is still bound to render judgment. In practice you should submit this memoranda because this may be used as the draft of the
main purpose of trial is to see through the conflicting facts. Because if there is no conflict in the pleadings or if there are no factual controversies, there is no need to go to trial. This is in addition to the stipulations agreed upon during pre-trial. The agreement should be made in writing. The parties may submit the case for judgment on the facts. E.g. During pre-trial the party refuses to admit the due execution of the document. During trial, the party can change their mind and can choose to stipulate the due execution of the document and then submit the case for judgment This is different from the stipulation in the course of the proceedings. If during the proceeding parties decide that there is no need for the witness to testify, can just stipulate and excuse the witness. Then the stipulation forms part of the records of the case WITHOUT the parties agreeing in
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Rule 136 Sec 17 pro tanto deemed modified because all courts now are courts of record, so you can ignore this rule haha
Suspension of actions: o o Because parties may settle amicably so there is no need to prolong trial Article 2030: Willingness to discuss a possible compromise expressed by one or both parties If it appears one of the parties before commencement offered to compromise but the other party rejected this
NOTE: stipulations not applicable in legal separation and annulment of marriage (possibly also in recognition of illegitimate child, Sir is not sure)
Statement of the judge: o Same as Rule 132 Sec 2 Proceedings to be recorded. Entire proceedings of a trial or hearing, including questions propounded to a witness and statements made by the judge.. Statements made by the judge made with reference to the case should be recorded. NOTE: Rule 5 which requires the proceedings in all courts should be the same, because all courts are courts of record so the statements of judges should always be recorded! How should it be recorded?
o o
Reason: Rule 133 Sec 1 Preponderance of Evidence court should consider manner of witness testifying, probability of their
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Court
Ways of consolidation of cases: o o o by recasting the cases already instituted by consolidation by proper consolidating existing cases by test-case method or by
e.g. Rule 18 Sec 5 Failure of defendant to appear at pre-trial shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment
NOTE: if the cases are pending in different courts you need the authorization of the SC Parties may be different but the Courts may still consolidate the cases, the requirement is that there is a common question of law or fact See Rule 111 allowing consolidation of civil and criminal actions In some cases, the consolidation of the civil and
CONSOLIDATION OR SEVERANCE (RULE 31) What is consolidation? o involves several actions having a common question of law or fact which may be jointly tried.
Purpose:
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Modifies rule 111 sec 5. Deemed instituted by the institution of the criminal action, no reservation allowed. Automatic consolidation.
TRIAL BY COMMISSIONER (Rule 32) Commissioner: the one referred by the Court to receive evidence Need commissioners because sometimes the evidence is technical in nature Two kinds of trial by commissioner: o By consent or agreement of the parties o By order of the court Note you can still have trial by commissioners AFTER judgment for purposes of execution o E.g. partition, the commissioners determine the aliquot shares of the heirs Clerk of Court Receive Evidence Must be lawyer Can NOT rule on objections During trial Commissioner Receive Evidence Not need to be lawyer CAN rule on objections Even after judgment final
DEMURRER TO EVIDENCE (Rule 33) GR the concept is that there is only judgment after full blown trial (aka after both parties have presented evidence) BUT in certain instances, there can be judgment..: o After partial presentation of evidence This is where the demurrer to evidence comes in o Even if there is no presentation of evidence o Full presentation of parties evidence Demurrer to evidence: after the plaintiff presents his evidence and rests his case, the defendants ask the court to render judgment because the plaintiff has no right to relief Differentiate: Demurrer to evidence Based on the evidence presented by the plaintiff Failure to PROVE cause of action Because of insufficiency of EVIDENCE MTD failure to state cause of action Based on the allegations on the complaint Failure to STATE cause of action Because of insufficiency of ALLEGATIONS
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This is allowed because the plaintiff claims he has a cause of actions, so he must prove that he has a cause of action!
12.02.2010 What is judgment? o The ruling by the court of competent jurisdiction which determines the rights and obligations of the parties to the action o FINAL adjudication by the court What are the kinds of judgment? o Judgment on compromise o On ??? o On the merits o Summary judgment o Clarificatory judgment o Judgment on the pleadings o Conditional judgment o Judgment nunc pro tunct o Special judgment o Judgment pro hac vice Judgment that you cannot take as a precedent ruling The classification of judgment depends on the kinds of proceedings of the court In the rules beginning Rule 33-35, there is a demurrer to evidence. That kind of ruling is in the nature of a judgment. You need to distinguish, because there can be judgment w/ no reception of evidence (no trial), but
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JUDGMENT ON THE PLEADINGS (RULE 34) When the answer fails to raise an issue or otherwise admits the material allegations of the adverse party o Note: answer expected from defending party. This can also apply to cross-claim, counterclaim etc. E.g. A v. B, B files counterclaim, A files an answer, but the answer fails to tender an issue, there can be judgment on the pleadings Similarly there can be a default on the counterclaim, cross-claim, third-party etc complaint Example of when the answer fails to tender an issue/otherwise admits the material allegations: o If there is a general denial or insufficient denial o e.g. based on the manner of making
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JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF (RULE 36) Usually after a full blown trial Can the judge refuse to render judgment? o NCC Article 9: judge will not refuse to render judgment based on silence, obscurity or insufficiency of laws o Even if there is no provision in the NCC, the
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ORDERS
AND
ENTRY
What are the parts of the judgment? o Opinion why you find the evidence lacking/sufficient, the narration of facts, statement of the law in question o Fallo/dispositive portion the adjudication, this is what will be executed, so ordered o Signature of the judge o Body If there is a conflict between opinion and the fallo, the fallo should prevail o EXCEPT if ? If a judge is about to write a decision and is transferred, he is allowed to write the decision provided the parties file a manifestation that the same judge be allowed to write the decision, AND provided he is transferred to a court of the same grade or category Rule 135 Sec 9 when judge in province transferred to another court and can send the decision by registered mail Rule 131 Sec 3 (m) (n) (o) presumption of regularity of official duty, court or judge acting in the Phil in the lawful exercise of jurisdiction; all matters w/in an issue Rule upon judgment upon the compromise when approved by the court, final and executory o Remedy: first have judgment/compromise
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12.07.2010 NEW TRIAL OR RECONSIDERATION (RULE 37) Who may file a motion for reconsideration?
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** NOTE: FAME always requires that the petition is accompanied by an affidavit of merit ** When you speak of fraud, what is the fraud that is contemplated? o Extrinsic Fraud. o E.g. if a witness testifies but perjures during a trial is this the fraud that will be a ground for an MR or MNT? No. This is not extrinsic fraud, it is intrinsic fraud or collateral fraud. o Extrinsic fraud is when the judgment seems to be alright but outside of that, there is something wrong..? When you say accident, what is contemplated? o E.g. Where a party was not able to present his evidence because did not receive notice. Or a party declared in default because he was the address was wrong. Or file an answer which gets lost in the mail. What about mistake? Whose mistake is contemplated? o Mistake of FACT not mistake of law o E.g. in one case the SC forgave a party because he thought there were only 30 days in October. What about negligence? o Refers to excusable neglect of the party. What is excusable depends on each case.
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Requisites for newly discovered evidence for NT: o Discovered after trial o Could not have been discovered + produced at trial w/ reasonable diligence o Evidence would alter the result of the action o Must also be accompanied by affidavits Witnesses etc which are in the nature of the synthesis of the evidence sought to be presented or if documents, attach the documents
Motion for New Trial Motion for Reopening After promulgation of After each party rests its judgment case but before the rendition of judgment Rule 37 Rule 132 Sec 9 recalling witness Basic requirements of both MNT/MR: o Should be in writing o Should state the grounds o Written notice of which served by the movant on the adverse party
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What is an affidavit? o Statement of facts verified and under oath so person can be held liable for perjury What is the effect of filing a MNT? o Tolling the reglementary period to file an appeal o If denied: file an appeal within 15 days, can NO LONGER file for certiorari Rule 37 Sec 9: an order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order Appeal should be on the judgment, not on the denial of the MNT o If granted: judgment is vacated, and there is trial de novo. ( Rule 37 Sec 7 The evidence presented at the previous trial will be disregarded; the
Relief from Judgment Available after the judgment has become final and executory DOUBLE CHECK Whats the difference between Rule 38 and Rule 47? o Rule 38 only available in the SAME COURT
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12.08.10 Appeal What is an appeal? o Remedy given to an aggrieved party, resort to a superior court to review the decision of the lower court Purpose: review of errors of fact or law in the JUDGMENT o NOT errors of jurisdiction Error of jurisdiction correctible by certiorari under Rule 65 When is appeal a matter of right? o Generally, appeal is NOT a matter of right. but once granted, cannot deprive a party of that right. appeal from the initial judgment from a lower court to a superior court. Ex Rule 40 appeal first level rtc is a matter of right RTC appellate is in original jurisdiction The rest are called discretionary appeals Petition for review and appeal by certiorari are called discretionary appeals Rule 45 Sec 6: Section 6. Review discretionary. A review is not a matter of right, but of sound judicial discretion,
Appeal Judgment is final but not yet executory Always remember the doctrine of hierarchy of courts Which courts have appellate jurisdiction? o All courts except the first level courts What is the nature of an appeal? o It is a statutory right, a privilege granted by law When you see appeal, that basically means review. Thats why when you look at the courts, the first two are trial courts. In the constitution the rules must be uniform in all courts of the same ground. RTC and MunTC are the same level because they are both trial courts. Sandiganbayan is both a trial court and an appellate court. SB SC because three heads are better than one in RTC there is only 1 judge, in SB there are
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Rule 40 Mode of appeal is an ordinary appeal NOTE: habeas corpus is NOT included in this rule because it is an exception since it is only when no RTC judges available Where the first level court decides the case under the doctrine of delegated jurisdiction, the appeal is to be to the CA. this is an express provision of BP 129 o E.g. In land registration cases, value not exceed 100k, appealable to the CA. (this is in the outline on jurisdiction! MEMORIZE!) Rule 40 Sec 8:
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Rule 42 Is this a matter of discretion? o Yes because only the first appeals are a matter of right. Rule 43 appeal from decision for quasi-judicial bodies. Also a petition for review! But different from Rule 43
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12.13.10 Cannot just say affirm a toto must state facts on which based
Rule 43
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Rule 44 How many briefs are required? o Appellants brief and the appellees brief and reply brief o There are NO MEMORANDUM (only in
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Rule 50 Sec 1 Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record
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Rule 51 (for this section, he mostly asked the person reciting to read the codal) Sec 1 Rule 51 Ordinary Appeals remember BRIEFS 1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. 2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period
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Rule 52 + 53 Nothing new, we took this up before w/ Rule 37 The periods are the same as w/ Rule 45, 15 days. No second MR Sec 4 the filing of the MR stays the execution of judgment Sec 1 Rule 53 duration of the period: it depends on when appeal is deemed perfected! Section 1. Period for filing; ground. At any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly
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Rule 54 All the rules on internal business are in the internal rules of the CA. the internal rules show raffles, resignation etc etc Rule 49 Now hearings in the SC are w/ respect to habeas data, writ of amparo etc. so this rule isnt really used anymore Oral argument based on where there is lack of clarity in pleadings but this is usually threshed out in the CA
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the CA service may be by personal service/registered mail, either way, reckon from date of receipt is this period extendible? o YES. You can file a motion for extension to file petition for review w/in the 15 day period. cannot extend something that has already attached. In practice, also pay docket + attach copy of decision you want to appeal from. Also, furnish adverse copy of motion to extend time so they dont file motion to execute judgment. o Present rules: filing for petition for review + certiorari STAYS the execution of judgment. SC now issues STATUS QUO ORDER. (different from TRO/injunction). This retroacts to the time of the FILING OF THE PETITION. In other words, if there was partial payment, under a status quo order this should be returned, unlike in the TRO. Also, a status quo order has no expiry date. Unlike a TRO which has a lifetime of 20 days. No action shall be taken until further action by the SC they can put this in the status quo order 18 legible copies should be filed o Extra copies b/c there is no distinction btwn division and en banc cases. Instead of requiring parties to file pleadings again Contents: o Full name of the appealing party same as o
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o o
When
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GR No 55076 who may redeem properties When judgment is final + executory vary depending on w/n appeal was pursued. Execution: process provided by law for the enforcement of a final judgment. Fruit of litigation. Purpose of execution is to enforce the judgment so that there can be satisfaction The last part of a civil action is a proclusion of claim and proclusion of issues res judicata! Section 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment 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 judgment 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 shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive between the parties and their successors in interest, by title subsequent to the commencement of the action or special
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12.15.10
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Paragraph c) Read w/ Rule 39 Sec 9 b (illustration of levy) (b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment 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 judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if
Sec 8: Section 8. Issuance, form and contents of a writ of execution. The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; o Because it is the sheriff who executes it, and he is the representative of the state. Since it is a coercive writ, it should be in the name of the Philippines. (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and o So there is a reference to the specific case o Because this is part that will be enforced. Verbatim to prevent confusion and abuse on the part of the sheriff. 3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: (a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor;
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