Professional Documents
Culture Documents
Rule 1
Section 1. Title of the Rules. xxx Sec. 2. In what courts applicable. These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. (n) Sec. 3. Cases governed. These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. (a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. (1a, R2) A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. (n) (b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (n) (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (2a, R2) Memorize! Civil action one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong Criminal action one by which the State prosecutes a person for an act or omission punishable by law. Special proceeding a remedy by which a party seeks to establish a status, a right, or a particular fact Special civil actions are called so because special rules govern. Sec. 4. In what cases not applicable. These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a) Cases where the Rules apply only by analogy or suppletorily 1. election cases 2. land registration 3. cadastral 4. naturalization and 5. insolvency proceedings, and 6. other cases not herein provided for Sec. 5. Commencement of action. A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (6a)
Sec. 6. Construction. These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. (2a) Memorize Sec.6. (Just, Speedy, Inexpensive catch-all answer in the bar!)
B. Cases
the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. 2) Permissive counterclaims, third party claims and similar pleadings, shall not be considered filed until and unless the filing fee prescribed therefore is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period. 3) If the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. Escolin: There are some compulsory counterclaim that needs payment of docket fees, and some which does not.
damages were dismissed for lack of jurisdiction. Complainant in a libel case, where the information stated the amount of moral damages, did not pay filing fees for the impliedly instituted civil action. Held: When a civil action is deemed impliedly instituted with the criminal, when the amount of damages, other than actual, is alleged in the complaint or information filed in court, then the corresponding filing fees shall be paid. However, when the amount of damages is not so alleged, filing fees need not be paid and shall simply constitute a first lien on the judgment, except in an award for actual damages (in every crime there is also civil liability. These are the actual damages. Thus they should not be charged docket fees). In no case shall filing fees for actual damages be collected. Manuel case is applicable to civil cases impliedly instituted with criminal cases. In purely civil actions, the Manchester ruling applies. de Leon: Note that under the Criminal Procedure Rules of 2000, filing fees for actual damages may be collected in case of cases for violation of BP 22.
II. Civil Procedure A. Ordinary Civil Actions (Rules 2-5) 1. Cause of Action a. Kinds of actions 1) Real or Personal action
Real action the subject matter of the action is real property (disputes about ownership, possession, and interest concerning real property) (e.g. foreclosure of real mortgage) Personal action the subject matter of the action is personal property (e.g. foreclosure of chattel mortgage)
b. Rule 2
Section 1. Ordinary civil actions, basis of. Every ordinary civil action must be based on a cause of action. (n) Sec. 2. Cause of action, defined. A cause of action is the act or omission by which a party violates a right of another. (n) Memorize! cause of action act or omission by which a party violates a right of another. Sec. 3. One suit for a single cause of action. A party may not institute more than one suit for a single cause of action. (3a) Sec. 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. (4a) cf grounds for MtD Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 -4-
Sec. 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: (a) The party joining the causes of action shall comply with the rules on joinder of parties; cf Rule 3, Sec. 6
Sec. 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. (6)
Escolin: if there is joinder of parties, the cause of action asserted by all the plaintiffs must be based on a common question of law common to all plaintiffs or to all the defendants. (b) The joinder shall not include special civil actions or actions governed by special rules; e.g. forcible entry and unlawful detainer; actions governed by the rules on summary procedure (e.g. ejectment) (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 Joiner of actions in different venues and jurisdictions must be in a RTC, not MTC (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. (5a) Joiner of causes of action was introduced in the 1997 Rules of Civil Procedure. Memorize Section 5! A plaintiff can not split a single cause of action, but he may join several causes of action against the same defendant, subject to the following rules 1. must comply with the rules on joinder of parties 2. joinder shall not include special civil actions or actions governed by special rules (e.g. summary procedure) 3. where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided a. one of the causes of action falls within the jurisdiction of the RTC court and b. the venue lies within such RTC 4. 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. Sec. 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. (n) cf Rule 31, Sec. 2
Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues.
cf Rule 36, Sec. 5 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 -5-
Sec. 5. Separate judgments. 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 counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment 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 judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (5a)
Escolin: A party generally can not appeal from a judgment on 1 cause of action in joined causes of action. He must file a leave of court before appealing, or wait for judgment from all other joined causes of action.
c. Cases
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(meaning: go back on promise) by the plaintiff. Lessor seeks to auction-off lessees properties again. Lessee now files a case for damages with the RTC against the lessor. Lessor filed a MtD the damage suit on the ground of litis pendencia and forum shopping. Instead of ruling on the motion, Judge Santiago issued an order archiving the case pending the outcome of the forcible entry case being heard at the MeTC for the reason that the damages is principally anchored on whether or not the defend ants (petitioner herein) have committed forcible entry. Petitioner moved for recon of the order and reiterated its motion to dismiss the damages suit. Before petitioners MtD could be resolved, private respondent filed with the RTC an amended complaint for damages. Westin also filed an Urgent Ex-Parte Motion for the Issuance of a TRO and Motion for the Grant of a Prelimi Prohibitory and Prelim Mandatory Injunction. RTC denied petitioners MtD and admitted Westins amended complaint and granting the TRO. Progressive filed with CA a special civil action for certiorari and prohibition in the ground that Judge Santiago acted in excess of his jurisdiction and/or committed grave abuse of discretion amounting to lack of jurisdiction in admitting the amended complaint of Westin and issuing a restraining order against Progressive; in allowing private respondent to engage in forum shopping; and, taking cognizance of the action for damages despite lack of jurisdiction. CA dismissed the petition due to the failure of petitioner to file a MfR of Judge Santiagos order, which it explained was a prerequisite to the institution of a petition for certiorari and prohibition. CA also found that the elements of litis pendencia were lacking to justify the dismissal of the action for damages with the RTC because despite the pendency of the forcible entry case with the MeTC the only damages recoverable thereat were those caused by the loss of the use and occupation of the property and not the kind of damages being claimed before the RTC which had no direct relation to loss of material possession. CA clarified that since the damages prayed for in the amended complaint with the RTC were those caused by the alleged high-handed manner with which petitioner reacquired possession of the leased premises and the sale of Westins movable found therein, the RTC and not the MeTC had jurisdiction over the action of damages. Petitioner filed petition for review on certiorari under Rule 45 alleging that CA erred in finding that petitioner failed to avail of its plain, speedy and adequate remedy of a prior MfR with the RTC; ruling that the trial judge did not act with grave abuse of discretion in taking cognizance of the action for damages and injunction despite the pendency of the forcible entry case with the MeTC; and ruling that private respondent did not commit forum shopping since the causes of action before the RTC and MeTC were not identical with each other. Held: Petition is with merit. While generally a MfR must first be filed before resorting to certiorari in order to give the lower court an opportunity to correct the errors imputed to it, this rule admits of exceptions and is not intended to be applied without considering the circumatances of the case. The filing of the MfR before availing of the remedy of certiorari is not sine qua non when the issue raised is one purely of law, or where the error is patent or the disputed order is void, or questions raised on certiorari are the same as those already squarely presented to and passed upon the lower court. The MtD the action for damages with the RTC on the ground that another action for forcible entry was pending at the MeTC between that same parties involving the same matter and cause of action. Outrightly rejected by the RTC, the same issue was elevated by petitioner on certiorari before the CA. Clearly, any MfR on the trial court would have been a pointless exercise. The forcible entry and damages case arose from a single cause of action. Hence, the case for damages may be dismissed. Petition is granted. CA decision and order of RTC reversed and set aside. RTC directed to dismiss the damages case. MeTC directed to proceed with forcible entry case. Escolin: The SC was wrong. Previous jurisprudence ruled that in cases filed with the MTC, a compulsory counterclaim in excess of the jurisdiction of the MTC should be filed as a separate action, or if filed in the same action, the excess is waived. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 -8-
de Leon: Under Rule 70, if a claim in an ejectment case in the MTC is for reasonable use of the property, the claim may go beyond the jurisdiction of the MTC. But if the claim is other than reasonable use of the property, it must be within the jurisdiction of the MTC. de Leon: Counterclaims for moral and exemplary damages in ejectment cases before the MTC should be within the the amounts prescribed for summary procedure.
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. (1a) Sec. 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. (2a) Memorize! real party in interest 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. Sec. 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 contract involves things belonging to the principal. (3a) Sec. 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by law. (4a) Sec. 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. (5a) Sec. 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. (6) Memorize! Rule on 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 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 Misjoinder of causes of action is not a ground to dismiss a case. The proper remedy is to sever the other cause of action and to try separately. Sec. 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. (7) Memorize! Key word final indispensable parties parties in interest without whom no final determination can be had of an action Failure to implead an indispensable party is ground to dismiss the case. Sec. 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. (8a) Memorize! Key word complete Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 10 -
necessary party 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. Failure to implead a necessary party is a waiver of the claim against such party. It is not ground to dismiss the case. Sec. 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. (8a, 9a) When necessary party not pleaded 1. the pleader shall set forth his name, if known, and shall state why he is omitted 2. 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. 3. failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. 4. 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. Sec. 10. Unwilling co-plaintiff. If the consent of any 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. (10) Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor 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. (11a) de Leon: The non-joinder of a party which does not cause dismissal refers to necessary parties. Nonjoinder of an indispensable party is a ground to dismiss the action. Sec. 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 interests 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. (12a) Memorize! Requisites of a Class Suit 1. the subject matter of the controversy is one of common or general interest 2. to many persons so numerous it is impracticable to join all as parties 3. a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned sues or defends for the benefit of all Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 11 -
4. Any party in interest shall have the right to intervene to protect his individual interest. Sec. 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. (13a) Sec. 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. (14) Sec. 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 of the persons composing said entity must all be revealed. (15a) cf Rule 14, Sec. 8
Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a)
Chang Kai Shek v. CA, 172 SCRA 389 (1989) Facts: Dismissed teacher sues unincorporated school. Plaintiff tries to amend to implead school officials, but CFI dismissed the case. CA reverses. Held: The school can not invoke its non-compliance with the law to escape being sued. It is now in estoppel. Sec. 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 within thirty (30) 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 so 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. (16a, 17a) Sec. 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 of 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. (21a) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 12 -
Money claims are now not extinguished by the death of a party. The court can not cite in contempt a legal representative who refuses to appear in court. cf Rule 78, Sec. 6 which shows that the plaintiff-creditor may apply for letters of administration.
Rule 78 Letters Testamentary and of Administration, When and to Whom Issued Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.
Next of kin is someone who will inherit next to the spouse. The remedy in case conflict of interest where a creditor being appointed administrator is in Rule 86, Sec. 8, is to appoint a special administrator where the creditor appointed will have to file his claim.
Rule 86 Claims Against Estate Sec. 8. Claim of executor or administrator against an estate. If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.
If the plaintiff wins in a money claim, he must present a writ of execution with the probate court as a claim in the estate proceedings. If the plaintiff wins in a non-money claim, the writ of execution may be enforced without going to the probate court. cf Rule 39, Sec. 7
Rule 39, Execution Satisfaction and Effect of Judgments Sec. 7. Execution in case of death of party. In case of the death of party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. (7a)
If the judgment creditor dies after the final judgment, the judgment will be executed upon initiative of the executor or administrator. If the judgment debtor dies after the final judgment, and the judgment is a real action or action for damages, the executor or administrator substitutes the decedent and judgment is executed. But if the case is for a sum of money, and if he dies before levy was executed, the judgment is filed as a claim before the estate proceedings. But if levy was already made, the sale of the property proceeds, the proceeds is delivered to the plaintiff and the excess is delivered to the executor/administrator. cf Rule 87, Sec. 1
Sec. 1. Actions which may and which may not be brought against executor or administrator. - No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions
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to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.
If the defendant dies before a case may be filed 1. for recovery of sum of money file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim; because the amount sought to be collected is definite 2. for recovery of property file a separate case against the executor/administrator; because the amount of the claim is unliquidated 3. for damages for injury file a separate case before the courts. de Leons Rules: (SUMMARY) If the defendant dies 1. before a case is filed a. for recovery of a sum of money file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim b. real action and action for damages file a separate case against the executor/administrator 2. after a case is filed but before judgment a. for recovery of a sum of money case shall not be dismissed but shall instead be allowed to continue until entry of final judgment; the judgment is then filed as a claim in the estate proceedings; Regalado, p. 101: Decedents legal representative should be substituted for the decedent. b. real action and action for damages 1) heirs of the deceased may be allowed to be substituted, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. 2) If no legal representative appears, 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. Priority to in the appointment to a) Surviving spouse, or next of kin b) one or more of the principal creditors, if competent and willing to serve c) other person as the court may select. 3) in case conflict of interest where a creditor being appointed administrator is to appoint a special administrator where the creditor appointed will have to file his own claim 3. after judgment but before execution a. for sum of money present the writ of execution as a claim before the probate court b. real action and action for damages substitute the defendant with his administrator or executor, and enforce the writ against him without going to the probate court 4. after levy on execution (applies only to recovery of a sum of money) continue with the auction sale and the officer making the sale shall deliver the proceeds to the plaintiff, and account to the executor or administrator for any excess Sec. 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 ceases 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 14 -
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. (18a) Sec. 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. (19a) Sec. 19. Transfer of interest. In case of any transfer of interest, the action 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. (20) Sec. 20. Action on contractual money claims. xxx (moved to under Rule 3, Sec. 16) Sec. 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 a lien 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 for the payment thereof, without prejudice to such other sanctions as the court may impose. (22a) Indigent party one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Sec. 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. (23a)
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vested in him. A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.
be predicated on a source of obligation other than delict. Where the civil liability survives, an action for recovery therefor may be pursued but only by way of filing a separate civil action against the executor/administrator or the estate of the accused, depending on the source of obligation. In cases where in the civil action is impliedly instituted with the criminal action, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case.
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order was improper because the proper procedure was to substitute. Hence failure to comply was not a valid ground for dismissal of the complaint. Escolin: Heirs of the decedent are indispensable parties in an action to for support by an illegitimate child of the decedent.
Jurisdiction authority to hear and decide a case, established by substantive law, establishes relation between court and subject matter; fixed by law and can not be conferred by the party Venue place of trial, established by procedural law, establishes relation between parties; conferred by agreement of parties, can be fixed by agreement
JURISDICTION Authority to hear and decide a case Established by substantive law Establishes relation between the court and subject matter Fixed by law Cannot be conferred by the party Lack of jurisdiction is a ground for dismissal by the court motu propio VENUE Place of trial Established by procedural law Establishes relation between parties Can be fixed by agreement Conferred by agreement of parties Improper venue may not be a ground for dismissal if there is no motion from
b. Rule 4
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. (1[a], 2[a]a) Venue of real actions is where the real property is located. Sec. 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. (2[b]a) Sec. 3. Venue of actions against nonresidents. If any of the defendants does not reside and is 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 or any portion thereof is situated or found. (2[c]a) Venue of personal actions is (at the option of the plaintiff) 1. where plaintiff or any of the plaintiffs reside 2. where defendant or any of the defendants reside 3. where the non-resident defendant a. is in the Philippines where he may be found b. outside the Philippines and the action affects the personal statuts of the plaintiff or any property of the defendant located in the Philippines, either 1) where the plaintiff resides, or 2) where the property or any portion thereof is situated or found Sec. 4. When Rule not applicable. This Rule shall not apply(a) In those cases where a specific rule or law provides otherwise; or Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 21 -
e.g. Labor cases are filed with the Labor arbiter (RA 1171) (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (3a, 5a) Escolin: the rules now allow raising the issue of improper venue as an affirmative defense in the answer even if there was failure to raise it in a motion to dismiss.
c. Cases
is therefore a real action which should be commenced and tried in the province where the property or part thereof lies. Petition denied. CA decision affirmed.
Held: Hernandez's action is not a real but a personal action. His action is one to declare null and void the cancellation of the lot and house in his favor which does not involve title and ownership over said properties but seeks to compel respondent to recognize that the award is a valid and subsisting one which it cannot arbitrarily and unilaterally cancel and to accept payment. Such an action is a personal action which may be properly brought by petitioner in his residence.
Escolin: the rules now allow raising the issue of improper venue as an affirmative defense in the answer even if there was failure to raise it in a motion to dismiss (Rule 16, Sec. 6).
b. Rule on Summary Procedure (SC Resolution dated October 15, 1991) 1) Coverage
I. Applicability Sec. 1. Scope. - This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction: A. Civil Cases: (1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00). Now, the amount of damages is irrelevant. (2) All other civil cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed ten thousand pesos (P10,000.00), exclusive of interest and costs. B. Criminal Cases: Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 25 -
(1) Violations of traffic laws, rules and regulations; (2) Violations of the rental law; (3) Violations of municipal or city ordinances; (4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000.00). This Rule shall not apply to a civil case where the plaintiffs cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. Rules on summary procedure are applicable in the following cases before the MTCs 1. Civil cases a. forcible entry and unlawful detainer, regardless of amount of damages (compensation for use of property) or unpaid rentals b. except probate proceedings, civil cases where the total amount of the plaintiff's claim does not exceed P10,000 exclusive of interest and costs. 2. Criminal cases a. traffic violations b. rental law violations c. municipal or city ordinances violations d. damage to property through criminal negligence, where the imposable fine does not exceed P10,000 e. penalty not exceeding 6-month imprisonment, or a P1,000 fine Exceptions: 1. civil case where the plaintiffs cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure 2. criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. Recall that criminal cases that should undergo reconciliation proceedings under the Katarungang Pambaranggay are offenses punishable by not more than 1 year or a fine not over P5,000 de Leon: Therefore nearly all summary procedure criminal cases must go through the Katarungang Pambaraggay. Sec. 2. Determination of applicability. - Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination to avoid the application of the Rule on Summary Procedure is a ground for disciplinary action. Upon filing of the initiatory pleading, the court shall declare whether the case is governed by the rule on summary procedure.
2) Civil cases
II. Civil Cases Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 26 -
Procedure in summary civil cases 1. complaint is filed 2. court declares it falls under summary procedure 3. may dismiss the case motu propio; if not, issue summons 4. defendant files his answer within 10 days (defenses and claims not pleaded are waived, except lack of jurisdiction over subject matter) 5. answer to counterclaims or cross-claims within 10 days from service of the answer 6. preliminary conference not later than 30 days after the last answer is filed; absence of a. plaintiff cause for the dismissal of his complaint; defendant entitled to judgment on his counterclaim as if plaintiff did not file an answer to the counterclaim; all cross-claims dismissed b. sole defendant - plaintiff shall be entitled to judgment as if defendant did not file an answer c. 1 or some of many defendants sued under a common cause of action who had pleaded a common defense no adverse effect on the defense 7. the court issues record of preliminary conference, within 5 days after the termination of the preliminary conference, covering a. terms of any amicable settlement b. stipulations or admissions entered into by the parties c. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order d. material facts which remain controverted e. matters intended to expedite the disposition of the case. 8. parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers, within 10 days issuance of record of preliminary conference 9. within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court either a. renders judgment b. requires clarification of certain material facts, within 10 days from receipt of said order; then render judgment within 15 days from receipt of the last clarificatory affidavits, or the expiration of the period for filing the same Sec. 3. Pleadings. A. Pleadings allowed. - The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims' pleaded in the answer, and the answers thereto. B. Verifications. - All pleadings shall be verified. Allowable pleadings (must all be verified) 1. complaint 2. compulsory counterclaims 3. cross-claims in the answer 4. answer Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 27 -
Note that permissive counterclaims and 3rd party complaints are not allowed. Sec. 4. Duty of Court. - After the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. The only grounds where the defendant may file a MTD (Sec. 19) 1. lack of jurisdiction 2. failure to resort to Katarungang Pambaranggay when required de Leon: Note that in summary procedure, the GR is the court may motu propio dismiss the case. In ordinary civil actions, the court can motu propio dismiss the case only on specific grounds. Escolin: Dacoycoy case does not apply in cases of summary procedure. The court has the power to motu proprio dismiss the case on the ground that venue was improperly laid. If it does not, the ground of improper venue should be included as a special defense in the defendants answer, otherwise it is deemed waived (Sec. 5). Sec. 5. Answer. - Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded. Sec. 6. Effect of failure to answer. - Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein: Provided, however, that the court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 15 of the Rules of Court, if there are two or more defendants. cf Rule 15, Sec. 4
Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. 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. (4a)
Failure of the defendant to answer the court shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for; the court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. de Leon: Note that when the defendant fails to answer in summary procedure, the court may motu propio rule for the plaintiff. In ordinary civil actions, the court can do so only upon motion by the plaintiff to declare the defendant in default and after plaintiff supports his claim with evidence. Sec. 7. Preliminary conference; appearance of parties. - Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 28 -
entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. Effect of failure to appear at the preliminary conference by 1. the plaintiff cause for the dismissal of his complaint; defendant who appears entitled to judgment on his counterclaim as may be warranted by the facts alleged. All cross-claims shall be dismissed. 2. the sole defendant plaintiff entitled to judgment as may be warranted by the facts alleged in his complaint 3. one of many defendants sued under a common cause of action who had pleaded a common defense case continues Sec. 8. Record of preliminary conference. - Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; b) The stipulations or admissions entered into by the parties;. c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; d) A clear specification of material facts which remain controverted; and e) Such other matters intended to expedite the disposition of the case. Sec. 9. Submission of affidavits and position papers. - Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. Sec. 10. Rendition of judgment. - Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.
3) Criminal cases
III. Summary Procedure in Criminal cases 1. Initiated either by complaint or information (only by information, in Metro Manila and Chartered cities, except when the offense cannot be prosecuted de oficio) 2. As many copies of the information or complaint, with affidavits of complainant and his witnesses, as there are accused plus 2, within 5 days from filing; otherwise the case may be dismissed Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 29 Criminal Cases
3. Court declares if the case is covered by the rule on summary procedure 4. If commenced by complaint and patently without basis or merit, court may dismiss the case; otherwise, court requires accused to submit his counter-affidavit and the affidavits of his witnesses and any evidence in his behalf 5. Filing and service on prosecution of defenses evidence within 10 days from receipt of the order 6. prosecution may file reply affidavits within 10 days after receipt of the counter-affidavits of the defense. 7. Court either dismisses the case, or set arraignment and trial 8. If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced. 9. Preliminary conference a. no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel b. parties must manifest intention to present additional affidavits or counter-affidavits as part of his direct evidence, and it should be allowed by the court; filed and served within 3 days after the termination of the preliminary conference; accused may file and serve his counter-affidavits within 3 days from such service. 10. Trial the affidavits submitted by the parties shall constitute the direct testimonies, subject to crossexamination, redirect or re-cross examination; failure of affiant to testify will render his affidavit incompetent for the offeror, but admissible for the opposing party; witnesses must submit affidavits before testifying, except on rebuttal or surrebuttal 11. Accused shall not be arrested, except for failure to appear when required; Accused may be released either on bail or recognizance 12. the court renders judgment within 30 days after the termination of trial. Note that preliminary conference is required in both civil and criminal cases. In criminal cases, there is hearing and actual trial. In civil cases, only the pleadings, affidavit, evidence, and position papers are considered. There is no hearing or trial in summary civil cases. Only those who have executed affidavits may testify on the stand, except rebuttal and sur-rebuttal witnesses. Sec. 11. How commenced. - The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided, however, that in Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio. The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus two (2) copies for the court's files. If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed. In Metro Manila, offenses can not be commenced by complaint, except if it can not be prosecuted de oficio. (cf with the 2000 Criminal Procedure Rules). Sec. 12. Duty of court. (a) If commenced by compliant. - On the basis of the compliant and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 30 -
(b) If commenced by information. - When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense. Ground for motu propio dismissal of criminal case covered by summary procedure initiated by complaint - patently without basis or merit The court can not dismiss a criminal case outright if it is commenced by information. Sec. 13. Arraignment and trial. - Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial. If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced. Sec. 14. Preliminary conference. - Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused. Sec. 15. Procedure of trial. - At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof. However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the court, the additional affidavits of the prosecution or the counteraffidavits of the defense shall be submitted to the court and served on the adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits are presented by the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within three (3) days from such service. Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court. Sec. 17. Judgment. - Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial. IV. Common Provisions Sec. 18. Referral to Lupon. - Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 31 -
requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant. Failure to comply with Katarungang Pambaranggay when required is ground for dismissal of the complaint, unless the accused was arrested without a warrant. Sec. 19. Prohibited pleadings and motions. - The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: (a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section (concillation proceedings); (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings, affidavits or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third party complaints; (l) Interventions. Prohibited pleadings and motions 1. Motion to dismiss the complaint or to quash the complaint or information, except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the Katarungang Pambaranggay 2. Motion for a bill of particulars 3. MNT, or MfR, or motion for opening of trial 4. Petition for relief from judgment 5. Motion for extension of time to file pleadings, affidavits or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare the defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third party complaints 12. Interventions. Sec. 20. Affidavits. - The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein.
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A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. Special requirement for affidavits under summary procedure: must state only admissible evidence and show their competence to testify on such matters. Otherwise, the offering party or counsel may be subject to disciplinary action and the inadmissible portion is expunged Sec. 21. Appeal. - The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 (of the 1964 Rules of Court) shall be deemed repealed. Summary decisions are appealable to the RTC. RTC decision in ejectment cases are immediately executory. Sec. 22. Applicability of the regular rules. - The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith. Sec. 23. Effectivity. xxx
Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a) Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply. (n) Sec. 3. Complaint. 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. (3a) Sec. 4. Answer. An answer is a pleading in which a defending party sets forth his defenses. (4a) Pleadings written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment Complaint the pleading alleging the plaintiff's cause or causes of action Answer a pleading in which a defending party sets forth his defenses. Sec. 5. Defenses. 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. (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. (5a) negative defense specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. affirmative defense 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 Affirmative defenses 1. fraud 2. statute of limitations 3. release 4. payment 5. illegality 6. statute of frauds 7. estoppel 8. former recovery 9. discharge in bankruptcy 10. other matter by way of confession and avoidance. Sec. 6. Counterclaim. A counterclaim is any claim which a defending party may have against an opposing party. (6a) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 34 -
Sec. 7. Compulsory counterclaim. 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 to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. (n) Sec. 8. Cross-claim. A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (7) Sec. 9. Counter-counterclaims and counter-cross-claims. A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant. (n) Counterclaim any claim which a defending party may have against an opposing party Requirements for a compulsory counterclaim 1. arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim 2. does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. 3. must be within the jurisdiction of the court both as to the amount and the nature In an original action before the RTC, a counterclaim may be considered compulsory regardless of the amount. A permissive counterclaim must also be within the jurisdiction of the court, and must not require the presence of 3rd parties over whom the court can not acquire jurisdiction. It must not be connected with the transaction or occurrence constituting the subject matter of the opposin g partys claim, otherwise, it would be a compulsory counterclaim. Cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Sec. 10. Reply. A reply is a pleading, the office or function 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 the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (11) Reply a pleading 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 the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (e.g. in a case for recovery of land, defendant alleges that he bought the land from plaintiffs predecessor-in-interest. Plaintiff can file an amended complaint to annul the sale to defendant). Sec. 11. Third, (fourth, etc.)-party complaint. 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 35 -
action, called the third (fourth, etc.)-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (12a) Third (fourth, etc.)-party complaint a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. Sec. 12. Bringing new parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (l4) This refers to necessary parties. Sec. 13. Answer to third (fourth, etc.)- party complaint. 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. (n)
b. Cases
The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. (1a, 2a) 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. (n) (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. (3a) (b) Headings. When two 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 words to that effect. (4) (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. (3a, R6) (d) Date. Every pleading shall be dated. (n) Escolin: Never mind this section. 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. (5a) Escolin: A post office box address is not allowed because receipt of pleadings will be adversely affected. Significance of counsels signature 1. 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. 2. 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. 3. 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. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 37 -
Sec. 4. Verification. 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 personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on "information and belief, or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (4a) Memorize! Verification affidavit by an affiant that he has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. Note that belief as basis for verification has been deleted by a 1 May 2000 amendment. based on "information and belief," or upon "knowledge, information and belief" is not sufficient verification. Not all pleadings need to be verified. 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 five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements 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. (n) Certification against forum shopping (applies to initiatory pleadings; de Leon: and also to petitions for review, and petition for review on certiorari) 1. 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 2. if there is such other pending action or claim, a complete statement of the present status thereof; and 3. 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 to the court wherein his aforesaid complaint or initiatory pleading has been filed If dismissal of a case on the ground of lack of certificate against forum shopping is silent, it is deemed to be without prejudice. If forum shopping was willful and deliberate, dismissal shall be with prejudice. cf Rule 16, Sec. 5
Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)
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Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; xxx
Escolin: In criminal cases, the accused has a constitutional right to counsel. Hence if his defense was handled by a fake attorney which resulted in to a conviction, the case should be remanded. The same is true when it comes to civil cases (Telan v. CA, 1991)
capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (4) Sec. 5. Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a) Manner of making averments of 1. Fraud or mistake particular 2. malice, intent, knowledge, or other condition of the mind general If allegation of fraud or mistake is not particular, the remedy is to file a bill of particulars. Sec. 6. Judgment. 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 matter showing jurisdiction to render it. (6) Judgment of other tribunals can be averred without alleging its jurisdiction. Sec. 7. Action or defense based on document. 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. (7) Sec. 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted 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 a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) Where an action or defense is based on a document, the substance of such document be set forth in the pleading and a copy thereof attached as an exhibit. The opposing party must specifically deny such document under oath, otherwise, the genuineness and due execution of the instrument shall be deemed admitted. The rule applies only to pleadings, not motions. Hence, an actionable document in a MTD need not be denied under oath. Note that even documents on which a defense is based must be denied under oath. This is an exception to the rule that all new matters in the answer are deemed controverted by failure to file a reply. cf Rule 7, Sec. 10
Sec. 10. Reply. xxx If a party does not file such reply, all the new matters alleged in the answer are deemed controverted.
under oath is the same as verified, or affidavit. Recall that pleadings need not be verified unless required by law or the rules (Rule 7, Sec. 4)
Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (5a)
When denial under oath of an actionable document not required 1. the adverse party is not a party to the instrument 2. compliance with an order for an inspection of the original is refused The order referred to here is the order issued by the court pursuant to Rule 27, Sec. 1 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 41 -
Section 1. Motion for production 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 copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, xxx.
Sec. 9. Official document or act. 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. (9) Allegations that may be general 1. ultimate fact, no evidentiary facts 2. pertinent provisions of law on which a defense relies on 3. conditions precedent 4. capacity or authority to sue and be sued, or legal existence must be averred 5. Malice, intent, knowledge or other condition of the mind 6. judgment of another court or tribunal, domestic or foreign 7. official document or official act 8. denial of unliquidated damages Allegations that must be specific 1. Questions as to legal existence or capacity to sue and be sued 2. circumstances constituting fraud or mistake must be stated with particularity 3. substance of an document on which an action or defense is based 4. contest of an actionable document (under oath) 5. denial of plaintiffs allegations 6. denial of usurious interest (under oath) Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the 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. (10a) For an allegation that defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint to constitute denial, it must be shown that the defendant indeed was in no position to know the truth of the averment in the complaint. But if it can be demonstrated that he in fact was in a position to know, then the denial is ineffective and the averment is deemed admitted. Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9) Sec. 12. Striking out of pleading or matter contained therein. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 42 -
Matters that may be stricken out from a pleading 1. sham or false 2. redundant 3. immaterial 4. impertinent 5. scandalous
b. Cases
The rule requiring denial under oath does not apply where the litigant signed the instrument merely as a witness, not as a party (Donato v. CA, 217 SCRA 196 [1993]).
Escolin: Counsel for Jabalde should have objected on the ground that the fact that the evidence sought to prove had already been admitted. de Leon: If counsel did object, I submit that the offerors mere presentation of supporting evidence was enough waiver of the technical admission. cf Rule 10, Sec. 5
Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)
Presentation of evidence by the offeror of the actionable document treats the issue of authenticity and due execution of the actionable document as having been raised in the pleadings (i.e. as if there had been a specific denial under oath).
4. Statute of limitations Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a) There are no exceptions to waiver of compulsory counterclaims, and cross-claims. 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 judgment 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. (1a, R18) (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. (2a, R18) A party in default is still entitled to notice of subsequent proceedings. (b) Relief from order of default. A party declared in default may at any time after notice thereof and before judgment 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. (3a, R18) (c) Effect of partial default. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18) (d) Extent of relief to be awarded. A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18) (e) Where no defaults allowed. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, Rl8) Procedure for declaring a defending party in default 1. failure to answer within the time allowed 2. motion of the claiming party 3. notice to the defending party 4. court declares the defending party in default 5. Court either a. requires the claimant to submit evidence (may be delegated to the clerk of court), or b. renders judgment granting the claimant such relief as his pleading may warrant, which shall not 1) exceed the amount prayed for or 2) be different in kind from that prayed for nor 3) award unliquidated damages
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The court has no authority to motu proprio declare a defendant in default. If the plaintiff does not move to declare the defendant in default, the court may motu proprio dismiss with prejudice the action on the ground of failure to prosecute under Rule 17 Sec. 3
Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails xxx to prosecute his action for an unreasonable length of time, xxx the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)
Effects of default 1. defaulting party still entitled to notice of subsequent proceedings, but not to take part in the trial 2. defaulting party may move to set aside the order of default, provided a. filed at any time after notice of default and before judgment b. motion must be under oath c. proper showing that 1) his failure to answer was due to fraud, accident, mistake or excusable negligence (FAME), and 2) he has a meritorious defense 3. When some of several defending parties answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. Escolin: after judgment on default is rendered, the remedy is Rule 37 (New Trial or Reconsideration), then appeal. But if the judgment has become final and executory, the remedy is Rule 38 (Relief from Judgments, Orders, or Other Proceedings). de Leon: If Rule 38 is no longer available, then use Rule 47 (Annulment of Judgments or Final Orders and Resolutions) Actions where no defaults allowed 1. annulment 2. declaration of nullity 3. legal separation
b. Cases
(Pacson v. Lorenzo) *
Facts: Plaintiff sues for reconveyance of land. Defendant filed MTD on the ground of prescription. Court denies the MTD on the ground that prescription was not indubitable. Defendant does not file an answer Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 46 -
and was declared in default. Plaintiffs evidence shows that the action had already prescribed. Plaintiffs action was dismissed on the ground of prescription. Plaintiff appeal on the ground that prescription as a ground to dismiss was waived by failure to file an answer. Held: The dismissal was proper.
This is a reiteration of La Naval case. Assertion by the defendant of an affirmative relief in the MTD or filing of an answer is a voluntary appearance before the court.
Partition, Accounting, and Damages. Petitioners failed to file their Answer within the requested period. Upon motion of the private respondents, the petitioners were declared in default. Counsel for petitioner received a copy of the decision and filed a motion for new trial on the grounds of lack of jurisdiction over Primitivo and Quirino who had not been legally served with summons. Motion for new trial was granted in an Order in 23April. Private respondents filed MfR of the order granting new trial and prayed that a writ of execution be issued but only in so far as Perfecta is concerned. On 21July CFI set aside the order granting new trial and directed the execution. Petitioners MfR which was denied. Thus petitioner brought the case to the SC. SC granted petition, setting aside the 21July Order and reviving the 23April Order. Thereafter, the pre-trial and trial was scheduled before RTC. Petitioners presented Perfecta as their first witness. The respondents moved for her disqualification as a witness on the ground that having been declared in default, Perfecta has lost her standing in court and she cannot be allowed to participate in all proceedings therein, even as witness. Respondent judge Florendo sustained the respondents contention and disqualified Perfecta from testifying. Petitioners filed MfR which was denied. HELD Parties in default are not disqualified from testifying in favor of non-defaulting co-defendants.
b. name of any party 2. by correcting a. a mistake in the name of a party b. a mistaken or inadequate allegation or description in any other respect Sec. 7. Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a) Sec. 2. Amendments as a matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a) Sec. 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a) When amendments a matter of right (only once) 1. before a responsive pleading is served, or 2. in the case of a reply, within 10 days after it is served Procedure for substantial amendments by leave of court 1. motion filed in court 2. notice to the adverse party 3. opportunity to be heard 4. leave may be refused if it appears to the court that the motion was made with intent to delay Sec. 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4a) Formal amendments may be summarily corrected at any stage (even on appeal), motu propio or on motion, provided no prejudice is caused thereby to the adverse party 1. defect in the designation of the parties 2. other clearly clerical or typographical errors
Sec. 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by law. (4a)
Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a) When issues not raised by the pleadings are tried with the express or implied consent of the parties 1. treated as if raised in the pleadings 2. pleadings may be amended to conform to the evidence and to raise these issues, upon motion at any time, even after judgment 3. failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings 1. the court may allow the pleadings to be amended and shall do so with liberality if it will subserve a. the presentation of the merits of the action and b. the ends of substantial justice 2. The court may grant a continuance to enable the amendment to be made Sec. 6. Supplemental pleadings. xxx (moved to after Sec. 8) Sec. 7. Filing of amended pleadings. xxx (moved to after Sec. 1) Sec. 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n) For admissions in superseded pleadings to be received in evidence against the pleader, the adverse party must offer the superseded pleading as evidence. Sec. 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a) Procedure for supplemental pleadings (refers to transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented) 1. motion of a party 2. reasonable notice to the other party 3. upon such terms as are just, the court permits the party to serve a supplemental pleading 4. adverse party may plead thereto within 10 days from notice of the order admitting the supplemental pleading Amended pleading Supplemental pleading Mark de Leon, JD 2001 - 50 -
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1. as to fact, events occurring before or at time of 1. event occurs after filing of original pleading filing of original pleading 2. supersedes original 3. may be filed as a matter of right in some instances 2. just additional to original pleading 3. always with leave of court
b. Cases
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Escolin: If the corporation is not doing business in the Philippines, the period to answer is 30 days from receipt of summons by such foreign entity. If the corporation is doing business in the Philippines, the period to answer is 15 days from receipt of summons by its resident agent. Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (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 ten (10) days from notice of the order admitting the same. An answer earlier 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. (3a) Period to answer when the complaint is amended 1. as a matter of right within 15 days 2. not as a matter of right within 10 days Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be answered within ten (10) days from service. (4) Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint. (5a) Sec. 6. Reply. A reply may be filed within ten (10) days from service of the pleading responded to. (6) Sec. 7. Answer to supplemental complaint. A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (n) When response to the following pleadings must be filed 1. main complaint, third or fourth party complaint within 15 days after service of summons, unless a different period is fixed by the court 2. if defendant is a foreign private juridical entity and service of summons is made on the government official so designated by law within 30 days after receipt of summons by the foreign entity 3. amended claims a. 15 days from service of amended complaint, if amended as a matter of right b. 10 days from notice of admission of amended complaint, if amended with leave of court (An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed) 4. answer, counterclaim or cross-claim within 10 days from service 5. supplemental complaint within 10 days from notice of the admitting court order, unless a different period is fixed by the court (answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed) Escolin: The period to answer to the counterclaim or cross-claim is shorter because the defendant is already familiar with the case, unlike in an original complaint, the defendant is not yet familiar with the claim. Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a, R6) Sec. 9. Counterclaim or cross-claim arising after answer. xxx (moved to after Sec. 10) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 52 -
Sec. 10. Omitted counterclaim or cross-claim. 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. (3a, R9) Grounds to admit an omitted counterclaim or cross-claim by amendment(before judgment) 1. oversight 2. inadvertence 3. excusable neglect 4. justice requires Sec. 9. Counterclaim or cross-claim arising after answer. 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. (9, R6) Sec. 11. Extension of time to plead. Upon motion and on such terms as may be just, the court may extend the time to plead 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. (7)
b. Cases
well as recovery of possession of a portion of petitioners lot which was allegedly encroached upon by the wall subsequently erected by Bernardo. Bernardo filed his answer denying petitioners averments, and alleging that the demolition made by him took place within the boundary of his own property. By way of counterclaim, Bernardo claimed that petitioners were the ones who encroached and that petitioners complaint is premature, uncalled fo r, capricious and without any justifiable cause, for which Bernardo prayed that petitioners be sentenced to vacate his portion of land and to pay damages. On the last day of the reglementary period to answer counterclaim, petitioners filed an ex-parte urgent motion for extension of time, but the motion was denied and stricken off the record. Petitioners were declared in default as to counterclaim. Bernardo presented his evidence the Manila CFI ruled in favor of him. Petitioners MfR but was denied. Petitioners filed a petitioner for relief from judgment which was granted only to be denied by the CFI on MfR by Bernardo. Petitioner filed their notice of appeal. Petitioners sought an extension of time to file their appeal bond and their record on appeal but was denied for lack of merit. The court ordered the issuance of the writ of execution but said writ was ordered stayed pending trial on the merits on petitioners complaint. On motion of Bernardo, said order was set aside and the issuance of a writ of execution was ordered. Petitioner MfR but was denied. Clerk of Court issued an alias writ of execution and Sheriff of Manila caused to be published a notice of sale at public auction of petitioners property. ISSUE WON CFI erred in declaring petitioners in default. HELD YES. Where the allegations in the counterclaim (not necessarily compulsory) have already been controverted by the original complaint, failure of the the defendant in the counterclaim to file an answer to the counterclaim is not sufficient to declare him in default.
otherwise. The excess award of the CFI is therefore null and void. Action to declare nullity of award is proper. The award not in excess stands. Escolin: A compulsory counterclaim beyond the jurisdiction of the court can be filed as a separate action. If filed in the same action, the excess is deemed waived.
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5. The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party 6. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event. 7. If the order is not obeyed, or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. 8. A bill of particulars becomes part of the pleading for which it is intended.
2. Cases
Salita was not content, but TC upholds its sufficiency and directed Joselita to file her responsive pleading. Held: A complaint only needs to state the ultimate facts constituting the plaintiff's cause or causes of action. Ultimate facts has been defined as those facts which the expected evidence will support. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to the facts which the evidence on the trial will prove, and not the evidence which will be required to prove the existence of those facts. A motion for bill of particulars will not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. A motion for bill of particulars may not call for matters which should form part of the proof of the complaint upon trial. Such information may be obtained by other means. The Bill of Particulars filed by private respondent is sufficient to state a cause of action, and to require more details from private respondent would be to ask for information on evidentiary matters. On the basis of the aforequoted allegations, it is evident that petitioner can already prepare her responsive pleading or for trial.
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de Leon: Was this dismissal for failure to file a bill of particulars with or without prejudice? I think it is with prejudice because it should be in the nature of a dismissal based on failure to prosecute.
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Sec. 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (2a) Papers required to be filed and served 1. judgment 2. resolution 3. order 4. pleading subsequent to the complaint 5. written motion 6. notice 7. appearance 8. demand 9. offer of judgment 10. or similar papers Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. (n) Except court papers, resort to modes other than personal service must be accompanied by a written explanation why the service or filing was not done personally, otherwise it is ground to consider the paper as not filed. Sec. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. (la) 2 ways of filing 1. personally presenting the original copies to the clerk of court, who shall endorse on the pleading the date and hour of filing 2. sending the original copies by registered mail, the date of the mailing as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing Note that filing may not be by ordinary mail or substituted service. These methods are available only on service of papers, not filing. Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 58 -
with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. (n) Proof of filing 1. its existence in the record of the case 2. If it is not in the record, but is claimed to have been filed a. Personally written or stamped acknowledgment of its filing by the clerk of court on a copy b. registered mail by the 1) registry receipt and 2) affidavit of the person who did the mailing, containing a full statement of a) the date and place of depositing the mail in the post office b) in a sealed envelope c) addressed to the court d) with postage fully prepaid e) with instructions to the postmaster to return the mail to the sender after 10 days if not delivered Sec. 4. Papers required to be filed and served. xxx (moved to after Sec. 2) Sec. 5. Modes of service. Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail. (3a) Sec. 6. Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a) Sec. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (5a) Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a) Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a) When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 59 -
or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (8a) Sec. 11. Priorities in modes of service and filing. xxx (moved to before Sec. 3) 4 modes of service of papers 1. personal complete upon delivery 2. Registered mail complete upon actual receipt, or after 5 days receipt of first notice of the postmaster, whichever is earlier 3. ordinary mail complete upon expiration of 10 days after mailing, unless the court otherwise provides 4. substituted service complete upon delivery to the clerk of court Priorities in personal service of papers 1. leaving it in his office with his clerk or with a person having charge thereof 2. if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at his residence, with a person of sufficient age and discretion then residing therein Priorities in service by mail of papers 1. registered mail to office, if known 2. otherwise registered mail to residence, if known 3. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. Requisites for substituted service of papers 1. service can not be made personally or by mail 2. the office and residence of the party or his counsel being unknown 3. deliver a copy to the clerk of court 4. with proof of failure of both personal service and service by mail (certified or sworn copy of the notice given by the postmaster to the addressee) Sec. 12. Proof of filing. xxx (moved to after Sec. 3) Sec. 13. Proof of service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a) cf Rule 13, Sec. 7
Sec. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (5a)
Proof of service of papers 1. personal service shall consist of a. either Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 60 -
1) written admission of the party served 2) official return of the server, or 3) the affidavit of the party serving b. and, containing a full statement of the 1) date 2) place and 3) manner of service. 2. registered mail proof shall be made by a. affidavit showing 1) deposit of the copy in the office 2) in a sealed envelope 3) plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known 4) postage fully pre-paid 5) with instructions to the postmaster to return the mail to the sender after 10 days if undelivered b. registry receipt issued by the mailing office c. and, registry return card which should be filed immediately upon its receipt by the sender (Escolin: not really required) 3. ordinary mail consist of an affidavit of the person mailing showing no registry service is available in the locality of either the sender or the addressee 4. Substituted service Sec. 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (24a, R14) Procedure in a notice of lis pendens (either by the plaintiff or the defendant, when affirmative relief is claimed in his answer) 1. action affecting the title or the right of possession of real property 2. record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action 3. notice shall contain the a. names of the parties b. object of the action or defense c. description of the property affected Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 61 -
4. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names 5. notice of lis pendens may be cancelled only upon order of the court, after proper showing that a. the notice is for the purpose of molesting the adverse party, or b. it is not necessary to protect the rights of the party who caused it to be recorded
Adamson Ozanam Educational Institution v. Adamson University Faculty and Employees Association, 179 SCRA 279 (1989)
Where the copy of the decision is served on a person (e.g. security guard) who is neither a clerk nor one in charge of the attorney's office, such service is invalid and is not considered as service on the party.
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2. Summons a. Rule 14
Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a) Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a) Contents of a summons 1. names of the court and parties to the action 2. a direction that the defendant answer within the time fixed by these Rules 3. a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 63 -
4. copy of the complaint and order for appointment of guardian ad litem, if any Sec. 3. By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. (5a) Sec. 4. Return. When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. (6a) Sec. 5. Issuance of alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a) Procedure in summons 1. filing of the complaint and the payment of the requisite legal fees 2. the clerk of court issues the corresponding summons to the defendants 3. summons served by a. the sheriff b. his deputy c. other proper court officer, or d. any suitable person authorized by the court issuing the summons, for justifiable reasons 4. If a. service has been completed within 5 days from service, the server shall 1) serve a copy of the return, personally or by registered mail, to the plaintiff's counsel and 2) return the summons to the clerk who issued it, accompanied by proof of service b. If a summons is returned without being served on any or all of the defendants 1) server shall serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service within 5 days therefrom 2) the clerk, on demand of the plaintiff, may issue an alias summons (also if summons has been lost) de Leon: Here is my humble attempt to condense the rules on summons on defendant who is a 1. resident a. Present in the Philippines 1) Personal service (Rule 14, Sec. 6) 2) Substituted service (Rule 14, Sec. 7) 3) Publication, but only if a) his identity or whereabouts is unknown (Rule 14, Sec. 14), AND b) the action is in rem or quasi in rem [Citizen Surety v. Melencio-Herrera, 38 SCRA 369 (1971)] b. Absent from the Philippines 1) Substituted service (Rule 14, Sec. 7) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 64 -
2) Extraterritorial service {Rule 14, Sec. 16 and 15; action need not be in rem or quasi in rem [Valmonte v. CA, 252 SCRA 92 (1996)]} 2. non-resident a. Present in the Philippines 1) Personal service (Rule 14, Sec. 6) 2) Substituted service (Rule 14, Sec. 7) b. Absent from the Philippines 1) Action in rem or quasi in rem only Extraterritorial service (Rule 14, Sec. 15) 2) Action in personam, and judgment can not be secured by attachment (e.g. action for injunction) a) wait for the defendant to come to the Philippines and to serve summons then b) bait the defendant to voluntarily appear in court (Rule 14, Sec. 20) c) plaintiff can NOT resort to extraterritorial service of summons [Kawasaki Port Services v. Amores, 199 SCRA 230 (1991), and Dial Corporation v. Soriano, 161 SCRA 737 (1988)]. Sec. 6. Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (7a) Sec. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (8a) Priority in modes of service of summons 1. personal - by handing a copy to the defendant, or, if he refuses to receive and sign for it, by tendering it to him 2. substituted by leaving copies of the summons at the a. defendant's residence with some person of suitable age and discretion then residing therein, or b. defendant's office or regular place of business with some competent person in charge thereof Whenever practicable, the summons shall be served personally. If, for justifiable causes, the defendant cannot be served within a reasonable time, service may be effected by substituted service. Note that in substituted service of summons, priority is the residence of the defendant himself, not counsel, before office, while in service of other papers, priority is the office of counsel of record, before the residence. Summons are served on the defendant himself because he has yet no counsel of record, unlike service of other papers which are served primarily on counsel. Summons may not be served by registered or ordinary mail. Substituted service in summons (leaving copies not with the defendant personally) is different in substituted service of other papers (leaving copies with the clerk of court). de Leon: Distinguish filing of papers, from service of papers and service of summons Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 65 -
them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) cf Rule 3, Sec. 15
Sec. 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 of the persons composing said entity must all be revealed. (15a)
Chang Kai Shek v. CA, 172 SCRA 389 (1989) Facts: Dismissed teacher sues unincorporated school. Plaintiff tries to amend to implead school officials, but CFI dismissed the case. CA reverses. Held: The school can not invoke its non-compliance with the law to escape being sued. It is now in estoppel. Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a) Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (10a, 11a) Service of summons on minor and incompetents should be both personally AND on his legal guardian. Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a) Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a) cf Rule 11 Sec. 2
Sec. 2. Answer of a defendant foreign private juridical entity. 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 thirty (30) days after receipt of summons by such entity. (2a)
Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (15) Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a) Escolin: Service by publication can only be possible if the action is in rem or quasi in rem. If the action is in personam, summons by publication is not valid. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 66 -
Requisites for service by publication 1. the action is in rem or quasi in rem 2. defendants identity or whereabouts a. are unknown and b. cannot be ascertained by diligent inquiry 3. with leave of court Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (l7a) Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a) Requisites for extraterritorial service 1. Either a. defendant does not reside and is not found in the Philippines, or b. defendant ordinarily resides within the Philippines, but who is temporarily out of it 2. action either a. affects the personal status of the plaintiff or b. relates to, or the subject of which is, property within the Philippines 1) in which the defendant has or claims a lien or interest, or 2) in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 3) belongs to the defendant and has been attached 3. leave of court 4. the order shall specify a reasonable time, which shall not be less than 60 days after notice, within which the defendant must answer Actions in rem or quasi in rem 1. affects the personal status of the plaintiff or 2. relates to, or the subject of which is, property within the Philippines a. in which the defendant has or claims a lien or interest, actual or contingent, or b. in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 67 -
c. belonging to the defendant and has been attached How extraterritorial service of summons effected with leave of court 1. by personal service out of the Philippines 2. by publication with copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or 3. in any other manner the court may deem sufficient (should be resorted to when #2 is impossible) a. e.g. service by registered mail where registry return shows actual receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)] b. must be made outside the Philippines [Valmonte v. CA, 252 SCRA 92 (1996)]
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summons and papers attached thereto, inclosed in an envelope and addressed to the defendant, with postage prepaid, has been mailed, to which certificate or affidavit the registry receipt and return card shall be attached."
HELD Under Section 17, extraterritorial service of summons is proper: (1) when the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded in such an action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when defendant nonresident's property has been attached within the Philippines (Sec. 17, Rule 14, Rules of Court). In any of such four cases, the service of summons may, with leave of court, be effected out of the Philippines in three ways: (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant; and (3) in any other manner which the court may deem sufficient. The third mode of extraterritorial service of summons was substantially complied with in this case. (De Midgely v. Ferandos, 64 SCRA 23, 33, 34). There is no question that the requirement of due process has been met as shown by the fact that defendants actually received the summonses and copies of the complaint and as evidenced by the Registry Return Cards marked as Annex A-1 (page 56-Record) and Annex B-1. Whatever defect there may have been in the service of summons was aptly corrected by the court a quo in its assailed order dated January 16, 1978, which gave said defendants ninety (90) days from receipt of order within which to file their responsive pleadings. Defendants have no reason to complain that they were unaware of the action filed against them or claim that they were denied due process. The case of Habana v. Vamenta et al., L-27091, June 30, 1970, or 33 SCRA 569, cited by the petitioners in support of their claim has no bearing in the case at bar since in said case service of summons was never made, even if defendant knew of the case against him, while in the case under consideration, service of summons was made upon them (although claimed erroneously by them as defective). HELD When extraterritorial service of summons is proper, service by registered mail is sufficient (in any other manner which the court may deem sufficient). More so if the defendants actually received the summons and copies of the complaint and as evidenced by the Registry Return Cards. Whatever defect there may have been in the service of summons may be corrected by the court by giving the defendants 90 days from receipt of order within which to file their responsive pleadings. Escolin: There is no provision that allows extraterritorial service by registered mail only. In this case, it was allowed only because the registry card was returned which proved that the defendant abroad did in fact receive the summons, otherwise the court would not have allowed it.
The complaint was filed, summons was served on defendant Fr. Maximo at the parish church of Concepcion, Malabon, Rizal, through Fr. Arsenio Bautista a priest in the same parish church. Fr. Bautista sent a letter to the Clerk of Court of the Manila CFI, informing him that defendant Fr. Maximo left for Europe and "will be back on the first week of November." Actually, Fr. Maximo returned from abroad about the second week of October, 1958. CFI declared defendant in default, on plaintiffs' motion. Upon plaintiffs' evidence, the court rendered judgment sentencing defendant to pay damages claimed by plaintiff. Plaintiffs themselves wrote defendant Fr. Maximo, at the Malabon Catholic Church, informing the latter of the CFI's decision, requesting prompt compliance therewith and suggesting that he communicate with or personally see their lawyer, Jose W. Diokno, at the latter's address, 332 Regina Building, Escolta, Manila. Defendant, through his legal counsel, Dr. Nicanor T. Santos, answered the foregoing letter expressing regret that he could not comply with plaintiffs' request, because he (defendant) was not aware of the said civil case, and that, in the criminal action arising out of the same incident, said defendant was acquitted by the Municipal Court of Manila. Deputy Sheriff of Rizal notified defendant of the issuance of the writ of execution and demanded payment of the amount set forth therein. The Sheriff's return to the writ shows that in response to such demand, defendant alleged that he was then "financially hard up," and that the Sheriff found no property that could be subject to execution. An alias writ of execution was issued. Copy thereof was received by defendant. Deputy Sheriff attached and levied on a residential house located in Caloocan City and purportedly belonging to defendant. Two years and two months after defendant admittedly learned of the lower court's decision from counsel for plaintiffs herein, said defendant, by counsel, filed a verified motion in the same case praying for the annulment of the entire proceedings. His ground is this: Summons was not duly served upon him "as provided under Sec. 7, Rule 7 of the Rules of Court"; accordingly, the lower court "did not acquire jurisdiction over his person", and "the trial and decision by default" are "null and void," The court denied this motion. Defendant's move to reconsider was rejected by the court. Hence, this appeal from the orders duly certified to the SC by the CA. After the case was submitted for decision, defendant's lawyer informed the SC of the death of defendant on August 1, 1965. Following extensive efforts to have the deceased defendant substituted by any of his heirs or the executor or administrator of his estate, which were to no avail, the SC appointed the Clerk of Court of the Maniala CFI, representative of the deceased defendant. HELD 1. A question of transcendental importance which necessarily involves an inquiry into procedural due process is whether summons in a suit in personam against a resident of the Philippines temporarily absent therefrom may be validly effected by substituted service under Section 8, Rule 14 (formerly Section 8, Rule 7) of the Rules of Court. A head on collision of views becomes inevitable considering the diametrically opposing positions taken by plaintiffs, on the one hand, and defendant, on the other. For, plaintiffs make the point that even with defendant temporarily abroad, substituted service is valid under Section 8 by leaving a copy of the summons "at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein." Plaintiffs argue that if the ordinary method prescribed by the rules, that is, personal service under Section 7, Rule 14, is not feasible, then the substituted service in Section 8 aforesaid comes into play. Section 8 says: Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 70 -
"SEC. 8. Substituted service. If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof." Upon the other hand, defendant advances the theory that in a situation like the present, where defendant was temporarily abroad, the sole and exclusive method of service of summons in a case in personam is that set forth in Section 18, Rule 14 of the Rules (formerly Section 18, Rule 7), which reads: "SEC. 18. Residents temporarily out of the Philippines. When an action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be effected out of the Philippines, as under the preceding section." Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in turn states: "SEC. 17. Extraterritorial service. When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 7; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time which shall not be less than sixty (60) days after notice, within which the defendant must answer." Historically, in its common-law origin, the jurisdiction of courts to render judgments in personam was grounded on their de facto power over defendant's person. Jurisdiction was based on the power to seize and imprison defendant. If a defendant was absent from the territory, the fact that he was a citizen would not enable the court's officers to seize him and service could not represent this power. Hence, his presence within the territorial jurisdiction was a pre- requisite to the rendition of a judgment personally binding against him. Anglo-American law then emphasized the power concept of jurisdiction. Continental law, however, was somewhat different. It had two fundamental principles of Roman origin: (1) in suits in personam and those relating to movables, courts of the domicile of the defendant have general jurisdiction actor rei forum sequitur; and (2) in actions concerning immovables, the courts of the situs have exclusive jurisdiction. In the development of the law, the variance between Anglo- American law and continental law became "less and less clear-cut" because "American law has had to yield to the increasing necessity of enlarging more and more the catalogue of forums available to the plaintiff." Thus it is, that American cases forged the doctrine, now long recognized, that domiciliaries of a state, though temporarily out of its territorial jurisdiction, are always amenable to suits in personam therein. And this precept is the foundation for the American rule that declares substituted service binding on absent residents. The leading case of Milliken vs. Meyer, furnishes the rationale: " . . . the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. 'Enjoyment of the privileges of residence within the state and the attendant right to invoke the protection of its laws, are inseparable' from the various incidences of state citizenship . . . The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 71 -
state, where the state has provided and employed e reasonable method for apprising such an absent party of the proceedings against him." There should be no doubt, therefore, that in suits in personam, courts have jurisdiction over residents temporarily out of the country. This brings us to the question of procedural due process. Substituted service such as one contemplated in Section 8 upon a temporarily absent resident, it has been held, is wholly adequate to meet the requirements of due process. The constitutional requirement of due process exacts that the service be such as may be reasonably expected to give the notice desired. Once the service provided by the rules reasonably accomplishes that end, the requirement of justice is answered, the traditional notions of fair play are satisfied; due process is served. In American jurisprudence, whether a defendant be in another state under the federal system or is abroad in Europe, substituted service is still considered to be valid. The language in Milliken vs. Meyer, supra, is expressive: "Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, then traditional notions of fair play and substantial justice (McDonald vs. Mabee, supra) implicit in due process are satisfied." When the framers of our Rules adapted Section 8, it is to be implied that they intended to give the provision the same meaning shaped out by the jurisprudence of the jurisdiction from whence it was patterned. Section 8 is to be viewed in the same context it is understood in the American legal system. The word "defendant" in that provision is to be construed as including any resident of this country. By comparative construction, Section 8 is to be applied to all resident defendants without distinction as to whether he is physically present in this country or not. Chief Justice Moran shares this view. Commenting on Section 18, Rule 14, he states: "Since the defendant is residing in the Philippines, jurisdiction over his person may be acquired by Philippine courts by substituted service of summons under section 8. But extraterritorial service is allowed also by leave of court according to the above provision [Section 18]." Justice Martin regards the word "residence" in Section 8 as "the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the state at the time." This construction is but fair. It is in accord with substantial justice. The burden on a plaintiff is not to be enlarged with a restrictive construction as desired by defendant here. Under the rules, a plaintiff, in the initial stage of suit, is merely required to know the defendant's "dwelling house or residence" or his "office or regular place of business" and no more. He is not asked to investigate where a resident defendant actually is, at the precise moment of filing suit. Once defendant's dwelling house or residence or office or regular place of business is known, he can expect valid service of summons to be made on "some person of suitable age and discretion then residing" in defendant's dwelling house or residence, or on "some competent person in charge" of his office or regular place of business. By the terms of the law, plaintiff is not even duty-bound to see to it that the person upon whom service was actually made delivers the summons to defendant or informs him about it. The law presumes that for him. It is immaterial then that defendant does not in fact receive actual notice. This will not affect the validity of the service. Accordingly, the defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, "which in fact may not become actual notice to him," and which may be accomplished in his lawful absence from the country. For, the rules do not require that papers be served on defendant personally or a showing that the papers were delivered to defendant by the person with whom they were left. Reasons for the views just expressed are not wanting. A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 72 -
importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a case comes up in court against him, he cannot in justice raise his voice and say that he is not subject to the processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be summoned at his dwelling house or residence or his office or regular place of business. Not that he cannot be reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to communicate with him. In the light of the foregoing, we find ourselves unwilling to concede that substituted service provided in Section 8 may be down- graded as an ineffective means to bring temporarily absent residents within the reach of our courts. As we go back to the case at hand, there is the temporarily absent defendant who was a parish priest. Summons upon him was served upon Fr. Bautista who lived in the same convent where defendant resided. Fr. Bautista, we must assume, is a responsible person. Service upon him is effective. 2. The view we take of this case sweeps away defendant's argument that Section 18 is the sole provision that governs summons upon a defendant temporarily absent in an action in personam, as here. Indeed, defendant's posture strikes at the very language employed by this reglementary provision cited by him. The word "may" in the statement in Section 18 that "service may, by leave of court, be effected out of the Philippines," as under Section 17 will not support the deduction, without more, that Section 18 is the only provision controlling in this case. On the contrary, the phraseology of the rule is a recognition of the fact that substituted service out of the Philippines under Section 17 is but one of the modes of effective service to bring a defendant in court. And upon the basic concepts under which our rules governing processes operate, the normal method of service of summons on one temporarily absent is by substituted service set forth in Section 8. And this, because personal service outside the country and service by publication are not ordinary means of summoning defendants. In practical terms, we perceive that in suits in personam the more circuitous procedure delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's dwelling house or residence or place of business in this country is not known; or, if known, service upon him cannot be had thereat upon the terms of Section 8. Here, since personal service is impossible, resort to substituted service becomes a necessity. A comparison between the service in Section 8 and that in Sections 17 and 18 is beside the point. They both provide for substituted service. Anyway, as Goodrich observed: "[I]f a substitute is to be made where an actual personal service is impossible, 'the best is none too good.'" 3. The judgment has long since become final. It enjoys the presumption of regularity. It is, unless stricken down, entitled to respect. Non quieta movere. Because "[p]ublic policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law." 25 The norm of conduct observed by defendant would not, we believe, tilt the scales of justice in his favor. We go to the background facts. Logic and common sense tell us that Fr. Bautista who received the summons and who took interest in the case must have informed defendant one way or another of the suit, at the latest upon his return in October, 1958. By then there was still time for him to move to set aside the default order of September 20, 1958. Defendant did not move. It is well to remember also that judgment by default was not rendered against defendant until June 8, 1959, or almost nine (9) months after the default order was issued. Again, defendant did nothing. According to defendant, he learned of that judgment on December 20, 1959. The full impact of the judgment totalling P34,000 must have by then left an indelible mark in his mind. A judgment of a court of justice is no piddling matter. It should not be trifled with. Especially so when the amount is big, as it is here. That same day December 20 his attorney took a hand on the matter, wrote back plaintiffs refusing payment of the claim. The first writ of Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 73 -
execution was served on defendant on January 14, 1960. That time he did not pay, because according to the Sheriff's return, defendant then stated that he was "financially hard up." Defendant did not bestir himself until February 20, 1962, i.e., not less than two years and two months after he learned-by his own admission-of the judgment. And, that was shortly after levy was made on his house in Caloocan. It is in this factual environment that then CFI Judge Magno Gatmaitan, in his order of March 24, 1962, correctly observed that 'the Court once again believes that this solution (denial of the motion to reconsider the appealed order) is just because of the apparent intentional inaction of defendant since 20 December, 1959." Indeed, it was not right that defendant should have supinely sat on the decision, and deliberately disregarded the import thereof. Neither was it correct for him to have waited so long, slept on his rights, and only put plaintiffs to task when his own property was threatened because of the levy and execution thereon. The decision below may not thus be annulled. Plaintiffs may not be compelled to file a fresh suit. Because, prejudice to plaintiffs, which could have been avoided by defendant, will become a reality. The additional expense, trouble and anxiety need not be essayed. The accident took place on December 16, 1957. The lower court's decision made mention of two eyewitnesses and two doctors of medicine who testified as to injuries. To bring back those witnesses to court becomes a serious problem. Plaintiffs will have to search for them and if found, they may not be able to present to the court a narrative as accurately as they had done before. Time has an unfortunate tendency of obliterating occurrences from a witness' memory. Recollections are apt to be blurred. Human memory can even be treacherous. Lapse of time may also carry with it dissipation of other evidence. Surely, there is great validity to the statement that the march of time is truth in flight. 26 These, in broad outlines, give life to the salutary policy on which laches is founded. WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are hereby affirmed. Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19) Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21) Proof of service of summons 1. personal or substituted a. in writing b. by the server c. set forth the manner, place, and date of service d. specify 1) any papers which have been served with the process and 2) the name of the person who received the same Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 74 -
e. sworn to when made by a person other than a sheriff or his deputy 2. by publication a. affidavit of 1) the printer, his foreman or principal clerk, or 2) the editor, business or advertising manager b. to which affidavit a copy of the publication shall be attached c. an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) This is a reiteration of La Naval case. Assertion by the defendant of an affirmative relief is a voluntary appearance before the court. Filing of an answer is automatically a voluntary appearance. de Leon: cf this with Corporation Law principles on foreign corporation being sued.
b. Cases
Defendants' counsel filed a motion for relief from judgment charging irregularity in the service of the summons and praying that the order of default and the judgment by default be set aside and that defendants' answer, which was attached to said motion, be admitted. The defendants alleged in said motion that the subject land was inherited by them so that they have a good and valid right thereto. They further alleged that they had been paying taxes on the land that the complaint was filed merely to compel them to settle a criminal case for frustrated homicide which they had filed against the plaintiff's son. Leyte CFI issued an order denying the motion for relief from judgment on the ground that the same was not accompanied by an affidavit of merit. A copy of said order was received by the defendants on September 28, 1967. Defendants' counsel filed a motion for reconsideration contending that since the motion for relief from judgment was predicated on lack of jurisdiction over the person of the defendants, the same need not be accompanied by an affidavit of merit, However, before the court could act on the motion for reconsideration, the defendants' counsel amended the same and attached thereto, their affidavit of merit. Leyte CFI issued an order denying defendants' motion for reconsideration. A copy of said order was received by the defendants on January 9, 1968. Defendants, thru counsel, filed a notice of appeal and a motion to appeal as pauper and submitted to the court for approval their record on appeal. The plaintiff, on the other hand, filed on January 31, 1968, a motion for execution pending appeal. Leyte CFI issued an omnibus order approving defendants' record on appeal and directing that the appeal be given due course; granting defendants' motion to appeal as pauper; and denying plaintiff's motion for execution pending appeal. ISSUE Was there a valid and effective service of summons? HELD We hold that there was no valid service of summons on the defendants and, consequently, the Leyte CFI did not acquire jurisdiction over their person. Sec. 5, Rule 14 of the Rules of Court, expressly provides that summons may be served by the sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same. Contrary to appellee's contention, this enumeration is exclusive. Thus, in Sequito vs. Letrondo, G.R. No. L-11588, July 20, 1959, 105 Phil. 1139, We considered as irregular the service of summons by a police sergeant who was not a sheriff or a court officer and who was not authorized by the court to deliver the summons. And in the more recent case of Spouses Olar vs. Cuna, G.R. No. L-47935, May 5, 1979, 90 SCRA 114, We ruled that the postmaster of Bato, Leyte, not being a sheriff or court officer, or a person authorized by the court to serve the summons cannot validly serve the summons. There, as in the case at bar where summons was served by one who is not included in the specification of Sec. 5, Rule 14 of the Rules of Court, this Court had to rule that the court which issued the summons did not acquire jurisdiction over the person of the defendants. Furthermore, the appellants point to other irregularities which attended the service of summons by Pat. Yobia. Thus, it is alleged that said policeman merely tendered the summons to them and did not give them a copy of the same and of the complaint. While it is true that Pat. Yobia had denied such allegation in his counter-affidavit which We have heretofore quoted, nevertheless, We find appellants' version to be more credible. For, the records of the case are replete with indications that the serving policeman was grossly ignorant of the rules concerning summons. Thus, the return of service shows that the summons was first served on the plaintiff (back of p. 3, records). Besides, such return of service was not made under oath - in violation of Sec. 20, Rule 14 of the Rules of Court - which requires that "the proof of service of a summons . . . shall be sworn to when made by a person other than the sheriff or his deputy." And even if We were to give credence to Pat. Yobia's counter-affidavit, We would still find the service of the summons to be irregular since it is expressly admitted therein that only one copy of the summons and of the complaint was served on the two defendants. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 76 -
Since a court acquires jurisdiction over the person of the defendant only by means of a valid service of summons, trial and judgment without such valid service are, therefore, null and void. WHEREFORE. the trial court's order of default and judgment by default are set aside and said court is directed to accept defendants-appellants' answer to the complaint and to conduct further proceedings on the case. Costs against plaintiff-appellee.
Lourdes. Alfredo filed his answer with counterclaim. Lourdes did not file her answer. RTC refused to declare Lourdes in default. CA reverses and declared her in default. Held: In an action in personam, personal service of summons or, if this is not possible, substituted service, is essential. If the defendant is temporarily abroad, but a Philippine resident, service of summons may, by leave of court, be made by publication. A resident defendant in an action in personam, who cannot be personally served with summons, may be summoned either by means of substituted service or by publication. It should be noted that the defendant must be a resident of the Philippines. On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served exterritorialy. Plaintiffs action in this case, which is for partition and accounting, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant's interest in a specific property and not to render a judgment against him. As defendant Lourdes is a nonresident who is not found in the Philippines, service of summons on her must be either (1) by personal service; (2) by publication and registered mail; or (3) in any other manner which the court may deem sufficient. Since the service of summons upon Lourdes was not done by means of any of the first two modes. Neither does it qualify under the 3rd mode. This mode of service, like the first two, must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where the defendant resides. Furthermore, service of summons on Alfredo was not made upon the order of the court and certainly was not a mode deemed sufficient by the court which in fact refused to consider the service to be valid and on that basis declare Lourdes in default. In the second place, service in the attempted manner was not made upon prior leave of the trial court as required. Such leave must be applied for by motion in writing, supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application. Finally, because there was no order granting such leave, petitioner Lourdes was not given ample time to file her Answer which, according to the rules, shall be not less than 60 days after notice. It must be noted that the period to file an Answer in an action against a resident defendant (15 days from service) differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines (at least 60 days from notice). Lourdes did not appoint her husband as her attorney-in-fact. Although she wrote plaintiff that "all communications" intended for her should be addressed to her husband who is also her lawyer at the latter's address in Manila, no power of attorney to receive summons for her can be inferred therefrom. In fact the letter was written seven months before the filing of this case below, and it appears that it was written in connection with the negotiations between her and plaintiff, concerning the partition of the property in question. As is usual in negotiations of this kind, the exchange of correspondence was carried on by counsel for the parties. But the authority given to defendant's husband in these negotiations certainly cannot be construed as also including an authority to represent her in any litigation. Escolin: Substituted service could not be made here because an essential requisite of substituted service could not be complied with, cf Rule 14, Sec. 7
Sec. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (8a)
de Leon: I think the essential requisite that Justice Escolin was referring to is that the defendant is a resident of the Philippines. Remember, if a defendant is a non-resident, he may not be summoned through substituted service, only extraterritorial service.
summons could not be sereved, the remedy is not to dismiss the case but retain the case in the courts archives. Escolin: Citizen Surety could not have availed of service by publication under Rule 14, Sec. 14 because this provision applies only to actions in rem. He should have attached defendants property under Rule 57, Sec. 1 (f)
Section 1. Grounds upon which attachment may issue. xxx: (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.(1a)
to convert the action into quasi in rem, and then serve summons by publication. FACTS Petitioner Citizens' Surety filed its complaint in the Manila CFI, alleging that at request of defendant Santiago Dacanay, the plaintiff Surety Company had issued its Surety Bonds Nos. 4942 and 4944, the first, in favor of Gregorio Fajardo to guarantee payment of a P5,000-promissory note executed by said Dacanay, and the second, in favor of Manufacturers Bank & Trust Co., to guarantee payment of another promissory note in like amount; that in consideration of said bonds, Santiago and Josefina Dacanay executed Indemnity Agreements, binding themselves jointly and severally to indemnify plaintiff for any losses, costs and expenses which it might sustain in connection with the issuance of the bonds aforesaid, with interest at 12% per annum; that as additional security, the Dacanays mortgaged to plaintiff a parcel of land in Baguio City, covered by Certificate of Title No. T-8116, the mortgage having been duly recorded; that the promissory notes were not paid .and as a result, plaintiff Surety was compelled to pay P5,000.00 to Gregorio Fajardo and P4,081.69 to the Manufacturers' Bank; that the Dacanays failed to reimburse the Surety for such payments, whereupon the Surety caused the extrajudicial foreclosure of the mortgage to pay its claim of P12,941.69 representing its payments, interest and stipulated liquidated damages: that at the foreclosure sale, the land mortgaged was sold to plaintiff, as highest bidder, for the sum of P2,000.00 leaving an unsatisfied balance of P10,491.69, that plaintiff sought to recover from defendants Dacanay, plus 10% thereof as attorneys' fees, and the costs. At petitioner's request, respondent Judge caused summons to be made by publication in the newspaper Philippines Herald. But despite the publication and deposit of a prepaid copy of the complaint at the Manila post office, defendants did not appear within the period of 60 days from last publication, as required by the summons. Plaintiff then asked that defendants be declared in default; but instead, the Judge, by order of May 16, 1970, asked it to show cause why the action should not be dismissed, the suit being in personam and defendants not having appeared. Then, on May 29, 1970, respondent Judge dismissed the case, despite plaintiff Surety's argument that the summons by publication was sufficient and valid under section 16 of Rule 14 of the Revised Rules of Court. HELD We agree with respondent Judge that the action of plaintiff petitioner, being in personam, the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons within the forum. We have explicitly so ruled in Pantaleon vs. Asuncin, 105 Phil. 765, pointing out without such personal service, any judgment on a non-appearing defendant would be violative of due process. The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, section 1(f), in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. But because debtors who abscond and conceal themselves are also quite adept at concealing their properties, the dismissal of the case below by respondent Judge should be set aside and the case held pending in the court's archives, until petitioner as plaintiff succeeds in determining the whereabouts of the defendants' person or properties and causes valid summons to be served personally or by publication as the case may be. In this manner, the tolling of the period of prescription for as long as the debtor remains Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 79 -
in hiding would properly be a matter of court records and he can not emerge after a sufficient lapse of time from the dismissal of the case to profit from his own misdeed and claim prescription of his just debt. WHEREFORE, the order of dismissal of the case issued by the Court below is hereby set aside, and in the interest of justice, the proceedings are ordered suspended, to be held pending until the plaintiff petitioner succeeds in ascertaining the whereabouts of the defendants and/or locating properties of the same, to enable proper summons to be issued conformably to this Opinion. No costs.
E. Motions 1. Rule 15
Section 1. Motion defined. A motion is an application for relief other than by a pleading. (1a) motion an application for relief other than by a pleading A motion is not a pleading! cf Rule 6, Sec. 1
Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a)
Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial. (2a) Sec. 3. Contents. A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a) Contents of a motion 1. relief sought to be obtained 2. the grounds upon which it is based Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 80 -
3. supporting affidavits and other papers (if required by these Rules or necessary to prove facts alleged therein) Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. 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. (4a) Non-litigous motions need not be set for hearing. Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (5a) Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a) Requisites for a motion not in open court or in the course of a hearing or trial 1. in writing 2. hearing set by the applicant 3. notice of hearing which specifies the time and date of the hearing, not later than 10 days from filing of the motion (except for motions which the court may act upon without prejudicing the rights of the adverse party) 4. served to ensure its receipt by the other party at least 3 days before the date of hearing, unless the court for good cause sets the hearing on shorter notice (except for motions which the court may act upon without prejudicing the rights of the adverse party) 5. proof of service Sec. 7. Motion day. Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. (7a) Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a) cf Rule 9 Sec. 1
Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)
Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (n) Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (9a)
a. Cases
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adverse party as there is no proof of service thereof. In fact, the movants did not indicate therein the manner by which a copy of the motion was served upon counsel for the plaintiffs-appellees. Counsel for the defendants-appellants merely stated therein: "Copy furnished Atty. Federico R. Vinluan, San Nicolas, Pangasinan." In the motion for new trial, counsel for the defendants-appellants claimed that he sent to plaintiffs-appellees' counsel a copy of the motion for postponement by registered mail. The motion for postponement, however, does not contain an affidavit of the person who mailed the motion, showing compliance with the provisions of Section 5, Rule 11 of the Rules of Court, and the registry receipt issued by the mailing office, as required by Section 10 of the same Rule. Neither does the motion for postponement adverted to state the time and place for the hearing of the same, as required by the Rules of Court. In the said motion for postponement, counsel of the defendantsappellants addressed the Clerk of the Court of First Instance of Pangasinan, Urdaneta Branch, thus: "Upon receipt of the foregoing motion please submit the same to the Honorable Court for its consideration." And yet, the provisions of the Rules of Court requiring that a motion shall state the time and place of the hearing of the same are quite clear. Sections 4 and 5, rule 15 of the rules of Court expressly provide that a motion shall state the time and place of the hearing and shall be served upon all the parties concerned at least three (3) days in advance. And, according to Section 6 of the same Rules no motion shall be acted upon by the court without proof of such notice, and it has been held that, in such a case, the motion is nothing but a useless piece of paper. The reason is obvious: unless the movant sets the time and place of hearing, the court would have no way of determining whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection, since the Rules do not fix any period within which he may file his reply or opposition thereto. Besides, it appears that it was defendants-appellants' counsel who had to be in Cabanatuan City on the date of hearing so that the defendants-appellants themselves could have appeared in Court on the date set for the hearing since their presence at the pre-trial conference was also required. But, as it stands, both defendants-appellants and their counsel failed to appear at the pre-trial conference. It is a well-settled rule that the grant or denial of a motion for postponement is discretionary on the court. The defendantsappellants, as well as their counsel, should not have presumed that the motion for the deferment of the pretrial conference would be granted. They had no right to rely on the liberality of the court or on the generosity of the adverse party. Defendants-appellants should also have taken upon themselves the duty to inquire as to what action the court took on their motion for the postponement of the pre-trial conference. In this, they failed. WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED, without pronouncement as to costs.
of the Rules of Court on Motions, and therefore, did not toll the running of the period to perfect an appeal. CFI disapproved petitioner's Record on Appeal, stating: "The records show that on March 7, 1978, defendant filed a MOTION FOR EXTENSION OF TIME TO FILE RECORD ON APPEAL, but since said motion did not contain any notice of hearing, the COURT did not act on it. The reglementary period expired on March 13, 1978, without any extension granted to defendant. It is rather, too presumptuous, on the part of the defendant to assume that the Court would grant the extension just because he prayed for it. IN VIEW OF THE FOREGOING, the approval of defendant's RECORD ON APPEAL is hereby denied for having been filed out of time." Petitioner moved to reconsider the said Order, but reconsideration was denied by the Trial Court. Petitioner then filed with the Court of Appeals a Petition for "Certiorari and Mandamus" praying that the CFI be ordered to approve his Record on Appeal and give due course thereto. CA dismissed the Petition ruling that the Trial Court did not commit grave abuse of discretion in disapproving the Record on Appeal as the same was filed beyond the prescribed period. MfR was denied for lack of merit. ISSUE The only issue is whether the said Motion for extension should mandatorily comply with the requirements of the Rules on Motions before the same may be acted upon by the trial Court. Sections 4, 5 and 6 of Rule 15 provide: "Section 4. Notice. - Notice of a motion shall be served by the applicant to all parties concerned at least three days before the hearing thereof, together with a copy of the motion, and other papers accompanying it. The Court, however, for good cause may hear a motion on shorter notice, specially on matters which the Court may dispose of on its own motion. "Section 5. Contents of Notice. - The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. "Section 6. Proof of service to be filed with motion. - No motion shall be acted upon by the court, without proof of service of the notice hereof, except when the court is satisfied that the rights of the adverse party or parties are not affected." HELD As a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his right be not affected without an opportunity to be heard. The three-day-notice required by law is intended not for the benefit of the movant but to avoid surprises upon the adverse party and to give the latter time to study and meet the arguments of the motion. The Motion in question does not affect the substantive rights of private respondents as it merely seeks to extend the period to file the Record on Appeal, which extension may be granted by the Trial Court upon application made prior to the expiration of the original period. Neither was there any claim that said Motion, which was grounded on justifiable reason, was interposed to delay the appeal. As early as Moya vs. Barton, 76 Phil. 831 [1946], this Court held that a Motion requesting an extension within which to file Record on Appeal may be considered as one which may be heard ex-parte. In Que Tiac vs. Republic, 43 SCRA 56 [1972], it was similarly held that a telegraphic Motion for extension of time to file a Record on Appeal is addressed to the discretion of the Court, which may act thereon ex-parte. And in the more recent case of Commercial Union Assurance Company Limited vs. Lepanto Consolidated Mining Company, 86 SCRA 79, 98 [1978], this Court ruled that the Trial Court has the power and authority to act on an ex-parte Motion for extension of time to file the Record on Appeal, which was filed within the original period prescribed by the Rules since the said Motion did not appear to be a litigated or a contentious Motion and may be acted upon even without proof of service on adverse party. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 84 -
Accordingly, we find for petitioner. Dismissal of appeals on purely technical grounds is frowned upon as the policy of the Court is to encourage the hearing of appeals on the merits. Litigants should be afforded every opportunity to establish the merits of their cases without the constraints of technicalities. WHEREFORE, the Petition is granted. The questioned Decision and Resolution of respondent Court of Appeals dated May 22, 1979 and July 26, 1979, respectively, are hereby annulled and set aside. The Court of First Instance of Cebu, Branch XIII, is hereby directed to approve petitioner's Record on Appeal and to elevate the same to the Court of Appeals.
Contending that such a notice was fatally defective and rendered the MtD incapable of tolling the period to answer, Azajar filed a motion to declare Cham Samco in default, which the CFI granted. CFI pronounced Cham Samco in default and allowed Azajar to present evidence ex-parte. CFI rendered judgment by default against defendant Cham Samco. Cham Samco filed MfNT. It contended that its failure to observe the rules governing notice of motions was due to excusable negligence, "because the grounds alleged in the MtD were all in such nature and character that addressed themselves to a motu proprio resolution by the court and thus rendered a hearing dispensable." It also alleged certain defenses available to it which if duly alleged and proven, would absolve it from all liability. This motion was denied. Cham Samco went to the CA on certiorari asserting that the CFI acted with grave abuse of discretion amounting to lack of jurisdiction in declaring it in default and then rendering judgment by default. CA dismissed the petition was dismissed for lack of merit by the Court of Appeals on November 20, 1974. But on MfR, CA reversed itself. By Resolution dated March 25, 1975, 10 it set aside the Trial Court's order of default of February 22, 1974, judgment by default of March 13, 1974, and Order dated June 4, 1974 denying Cham Samco's motion for new trial, and directed the lower Court to allow Cham Samco to file its answer to the complaint and upon due joinder of issues, to try and decide the case on the merits. The Court held that: " . . . (t)he notice in the motion which was addressed to the clerk of court asking him to submit the motion for the consideration of the court is a substantial compliance with the provision of section 3 Rule 16 of the Rules of Court. Verily under the said rule, the Court has the alternative of either hearing the case or deferring the hearing and determination thereof until the trial on the merits. Thus upon the filing of said motion the court should have set the motion for hearing or outrightly deny the motion, or otherwise postpone the hearing until the trial on the ground that the grounds thereof do not appear to be indubitable. The prompt filing and apparently valid grounds invoked in the motion are not the acts and declarations of a defaulting party." " . . . (E)ven assuming that the declaration of default of the petitioner was in order we find that the trial court committed a grave abuse of discretion when it denied the motion for new trial that was filed by the petitioner not only on the ground of excusable negligence we have above discussed but also on the ground that it has a meritorious defense." and " . . . (E)xcessive damages have been awarded to the private respondent. In addition to ordering the petitioner to deliver to the private respondent the nails ordered by the latter, the petitioner was also ordered to pay not only P15,000 actual damages for profits that the private respondent could have earned but also consequential damages of P10,000 for the unrealized profits that the said earnings and capital of the plaintiff could have earned, plus interest in both instances, exemplary damages of P5,000 and P7,500 for attorney's fees and related expenses of litigation. Thus for the capital of respondent of P18,100.00 in the purchase of the nails, the petitioner was ordered to pay damages of a total of P37,500.00, which including the interest awarded can amount to over P40,000, more than double the value of the said investment of respondent. Under Section 1, Rule 37 of the Rules of Court award of excessive damages could be a ground for new trial." The Court concluded its opinion with the observation that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court." Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 86 -
It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss for hearing on a specified date and time. The law explicitly requires that notice of a motion shall be served by the appellant to all parties concerned at least three (3) days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it; and that the notice shall be directed to the parties concerned, stating the time and place for the hearing of the motion. The uniform holding of this Court has been that a failure to comply with the requirement is a fatal flaw. Such notice is required to avoid surprises upon the opposite party and give the latter time to study and meet the arguments of the motion, as well as to determine or make determinable the time of submission of the motion for resolution. Cham Samco quite frankly admits its error. It pleads however that under the circumstances the error be not regarded as irremediable or that it be deemed as constituting excusable negligence, warranting relief. It argues that legal and logical considerations, which it took to be tenable, caused it to theorize that a hearing on the motion was dispensable. It also adverts to its possession of affirmative defenses in addition to those set out in its motion to dismiss which, if ventilated and established at the trial, would absolve it from all liability under the complaint. Cham Samco's belief that it was not necessary that its motion to dismiss be set for hearing was avowedly engendered by two factors, namely: 1) the fact that while the Rules of Court "specify the motions which can be heard only with prior service upon adverse parties," 15 said Rules "do not point out which written motions may be ex parte, preferring, it appears, to leave to the court, in motions other than those specified, the discretion either to ex parte resolve . . . or to call the parties to a hearing . . . ; and 2) the further fact that its motion to dismiss was based on two grounds on which a hearing was superfluous, the first, failure of the complaint to state a cause of action, being determinable exclusively from the allegations of the complaint and no evidence being allowable thereon; and the second, that venue is improperly laid, being resolvable exclusively on the basis of documents annexed to the motion. These considerations, to be sure, did not erase movant's duty to give notice to the adverse party of the date and time of the hearing on its motion, the purpose of said notice being, as already stressed, not only to give the latter time to oppose the motion if so minded, but also to determine the time of its submission for resolution. Without such notice, the occasion would not arise to determine with reasonable certitude whether and within what time the adverse party would respond to the motion, and when the motion might already be resolved by the Court. The duty to give that notice is imposed on the movant, not on the Court. Withal, the reasons for Cham Samco's erroneous notion of the dispensability of a hearing on its motion to dismiss are not utterly without plausibility. This circumstance, taken together with the fact, found by the Intermediate Appellate Court and not disputed by petitioner Azajar, that Cham Samco has meritorious defenses which if proven would defeat Azajar's claim against it, and the eminent desirability more than once stressed by this Court that cases should be determined on the merits after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections, all conduce to concurrence with the Court of Appeals that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court." Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 87 -
WHEREFORE, the Resolutions of the Court of Appeals appealed from, are affirmed. Costs against petitioner.
5. another action pending between the same parties for the same cause 6. barred by a prior judgment 7. barred by the statute of limitations 8. the pleading asserting the claim states no cause of action 9. the claim or demand has been paid, waived, abandoned, or otherwise extinguished 10. claim is unenforceable under the statute of frauds 11. non-compliance with a condition precedent for filing the claim Sec. 2. Hearing of motion. At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n) Evidence presented at the hearing of the MTD are automatically part of the evidence of the offeror at the trial. Sec. 3. Resolution of motion. After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a) Options of the court after hearing but not to defer the resolution of the motion for the reason that the ground relied upon is not indubitable 1. dismiss the action or claim 2. deny the MTD 3. order amendment of the pleading Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a) MTD tolls the period to file an answer. If denied, the movant as the remaining period from receipt of notice of denial to file his answer, but not less than 5 days in any case. If the pleading is amended, he has 15 days from service of the amended pleading to answer, unless the court provides a longer period. de Leon: if a defendant files an answer with counterclaim, an MTD by the defendant to the counterclaim undoubtedly tolls the period to answer the counterclaim, but does it also toll the period to file a reply? I dont think so. The responses to the answer and the counterclaim are separate. Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n) Grounds for dismissal that bar refilling 1. cause of action is barred by a prior judgment 2. cause of action is barred by the statute of limitations
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3. claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished 4. claim is unenforceable under the statute of frauds cf Rule 9 Sec. 1
Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)
Grounds to dismiss that the court may invoke motu proprio 1. the action is barred by a prior judgment 2. the action is barred by statute of limitations 3. no jurisdiction over the subject matter 4. there is another action pending between the same parties for the same cause Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n) Any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. The court may conduct a preliminary hearing as if an MTD had been filed. If a complaint is dismissed not based on an MTD, but on an affirmative defense pleaded in the answer, a counterclaim pleaded in the answer may be prosecuted in the same or a separate action. de Leon: I recall Justice Relova made a distinction between permissive and compulsory counterclaims on this point. He said if the counterclaim is compulsory, the counterclaim is also dismissed with the complaint. If the counterclaim is permissive, the counterclaim survives the dismissal. In effect, he said that the 2nd par of Sec. 6 applies only to a permissive counterclaim.
b. Cases
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3. the court shall issue an order confirming the dismissal 4. the dismissal is without prejudice, unless a. otherwise stated in the notice b. claimant has once dismissed in a competent court an action based on or including the same claim Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a) cf Rule 16, Sec. 6
Sec. 6. Pleading grounds as affirmative defenses. xxx The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n)
Procedure in dismissing upon motion by the claimant 1. after service of the answer or of a motion for summary judgment 2. claimant moves to dismiss 3. approval of the court and upon such terms and conditions as the court deems proper 4. dismissal shall be without prejudice, unless otherwise specified in the order 5. counterclaims pleaded before service of motion to dismiss survive, either a. resolved in the same action counterclaimant must manifest such preference within 15 days from notice of the motion to dismiss b. prosecuted in a separate action A class suit shall not be dismissed or compromised without the approval of the court. Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a) Grounds for Dismissal due to fault of the claimant If, for no justifiable cause, the claimant fails to 1. appear on the date of the presentation of his evidence in chief on the claim 2. prosecute his action for an unreasonable length of time 3. comply with these Rules or any order of the court Procedure for dismissal due to fault of claimant 1. claimant commits the grounds for dismissal 2. court dismisses the complaint motu proprio, or upon the defendants motion Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 92 -
3. dismissal is with prejudice, unless otherwise declared by the court. Counterclaims survive in the same or in a separate action. Dismissal by 1. notice without prejudice 2. motion without prejudice 3. fault with prejudice Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. xxx (moved to before Sec. 1)
b. Cases
G. Pre-trial 1. Rule 18
Section 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. (5a, R20) It is now the plaintiff who moves ex parte that the case be set for pre-trial. Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider: Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 93 -
(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 judgment on the pleadings, or summary judgment, 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. (1a, R20) In civil cases, pre-trial is now mandatory. Things to consider in a pre-trial 1. possibility of an amicable settlement or of a submission to alternative modes of dispute resolution 2. simplification of the issues 3. necessity or desirability of amendments to the pleadings 4. possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof 5. limitation of the number of witnesses 6. advisability of a preliminary reference of issues to a commissioner 7. propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist 8. advisability or necessity of suspending the proceedings; and 9. 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. (n) Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-trial. 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. (n) Note that both the parties and their counsel are required to appear at the pre-trial. Grounds for excused absence of a party at the pre-trial 1. valid cause is shown, or 2. a representative appears in his behalf fully authorized in writing to a. enter into an amicable settlement b. submit to alternative modes of dispute resolution, and c. enter into stipulations or admissions of facts and of documents Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 94 -
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 judgment on the basis thereof. (2a, R20) Effect of failure to appear or failure to file pre-trial brief by the 1. plaintiff dismissal of his complaint with prejudice, unless otherwise ordered by the court. 2. defendant cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof Note failure of the defendant to appear at the pre-trial authorizes the court to render judgment as warranted by the evidence presented. It is not limited by what is alleged in the pleadings, like in case where a defendant has been declared in default. 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 pretrial, their respective pre-trial briefs which shall contain, among others: (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. (n) Some contents of the pre-trial brief 1. statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; 2. summary of admitted facts and proposed stipulation of facts; 3. issues to be tried or resolved; 4. documents or exhibits to be presented, stating the purpose thereof; 5. manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and 6. number and names of the witnesses, and the substance of their respective testimonies. 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. (5a, R20) Procedure in civil pre-trial 1. plaintiff moves that the case be set for pre-trial Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 95 -
2. notice of pre-trial shall be served on counsel, or on the party who has no counsel 3. parties shall file with the court and serve on the adverse party in such manner as shall ensure their receipt thereof at least 3 days before the date of the pre-trial, their respective pre-trial briefs 4. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial 5. parties and their counsel must appear at the pre-trial, exceptions a. a valid cause is shown b. a representative shall appear fully authorized in writing to 1) enter into an amicable settlement 2) submit to alternative modes of dispute resolution 3) enter into stipulations or admissions of facts and of documents 6. Effect of failure to appear, or to file a pre-trial brief by the a. plaintiff cause for dismissal of the action with prejudice, unless otherwise ordered by the court b. defendant cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof 7. In any case, failure to appear or to file pre-trial brief results in judgment rendered based on evidence ex-parte 8. The proceedings in the pre-trial shall be recorded. 9. Upon the termination of the pre-trial, the court shall issue an order which shall recite in detail a. the matters taken up in the conference b. the action taken thereon c. the amendments allowed to the pleadings d. the agreements or admissions made by the parties e. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. 10. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. Distinction between pre-trial in civil and pre-trial in criminal cases
Agreement included in pre-trial order need not be in Agreements or admissions must be written and writing signed by the accused and counsel to be admissible against him. Can have proffer of evidence Proffer of evidence only after trial Mark de Leon, JD 2001 - 96 -
3. Cases
Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM
H. Intervention 1. Rule 19
Section 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. (2[a], [b]a, R12) Who may intervene a person who 1. has a legal interest a. in the matter in litigation b. in the success of either of the parties, or Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 97 -
c. against both parties 2. or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (n) Requisites for intervention 1. filed by a proper person 2. filed at any time before rendition of judgment 3. copy of the pleading-in-intervention attached to the motion and served on the original parties 4. with leave of court 5. does not unduly delay or prejudice the adjudication of the rights of the original parties 6. intervenor's rights could not be fully protected in a separate proceeding Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (2[c]a, R12) Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12)
2. Cases
Held: There is here no final dismissal of the main case. The aforementioned order of the lower court has the effect not only of allowing the intervention suit to proceed but also of vacating its previous order of dismissal. The reinstatement of the case in order to try and determine the claims and rights of the intervenor is proper. The joint motion of therein plaintiff and the original defendants to dismiss the case, without notice to and consent of the intervenor, has the effect of putting to rest only the respective claims of the said original parties inter se, but the same cannot in any way affect the claim of private respondent which was allowed by the court to intervene without opposition from the original parties. Escolin: In Ordoez, the character of the intervention was truly ancilliary. The compromise agreement between the original parties in effect resolved the issue raised by the intervenor. Hence, there was no need for the intervenors to present evidence since the issue raised by them had already been answered in the principal action. However, in Metrobank, the character of the intervention was that it was entirely independent of the principal action. The settlement by the original parties would not settle the rights fo the intervenor, and in fact such rights may even be prejudiced by the settlement.
J. Subpoena 1. Rule 21
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. (1a, R23) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 99 -
Subpoena a process 1. directed to a person 2. requiring him to attend and to testify a. at the hearing or the trial of an action, or b. at any investigation conducted by competent authority, or c. for the taking of his deposition 3. if it also requires him to bring with him any books, documents, or other things under his control, it is called a subpoena duces tecum Sec. 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 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 shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a, R23) Who may issue subpoena 1. the court before whom the witness is required to attend 2. the court of the place where the deposition is to be taken 3. the investigating officer or body authorized by law 4. any SC or CA Justice in any case or investigation pending within the Philippines Only the SC may authorize a prisoner sentenced to death, reclusion perpetua or life imprisonment, and who is confined in any penal institution, to be brought outside the said penal institution for appearance or attendance in any court. Sec. 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. (3a, R23) Form and contents 1. name of the court 2. title of the action or investigation 3. directed to the person whose attendance is required 4. a reasonable description of any objects so demanded Sec. 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 100 -
in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a 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. (4a, R23) Motion to quash a subpoena duces tecum must be filed at or before the time specified therein. Grounds for quashing a subpoena duces tecum 1. unreasonable and oppressive, or 2. relevancy of the object does not appear, or 3. the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production of the object 4. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served cf Rule 141 for kilometrage fees Grounds for quashing a subpoena ad testificandum 1. the witness is not bound thereby 2. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served Sec. 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 tecum to any such person without an order of the court. (5a, R23) cf Rule 23, Secs. 15 and 25
Sec. 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 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. (15, R24) Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party desiring to take the deposition of any person upon 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 re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24)
The clerk of court can issue a subpoena ad testificandum to a witness to take his deposition. However, such clerk of court can not issue a subpoena duces tecum unless there is an order of the court. Requisites for a clerk of court, of the place in which a deposition is to be taken, to issue a subpoena ad testificandum 1. reasonable notice in writing to every other party to the action 2. notice shall state a. the time and place for taking the deposition b. 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 101 -
c. (in case of written interrogatories) name or descriptive title and address of the officer before whom the deposition is to be taken 3. proof of service of the notice Sec. 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 days 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 to 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. (6a, R23) Note that subpoenas are served like summons, not simply like other papers. Service of a subpoena 1. in the same manner as personal or substituted service of summons. 2. original shall be exhibited and a copy thereof delivered to the person on whom it is served 3. there must be tender of fees for one days attendance and the kilometrage, unless the subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof 4. must allow the witness a reasonable time for preparation and travel to the place of attendance 5. If the subpoena is duces tecum, the reasonable cost of producing the objects demanded shall also be tendered. de Leon: Is service of a subpoena duces tecum issued by or on behalf of the government also exempt from tendering the reasonable cost of producing the object? Sec. 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. (10, R23) A person present in court may be compelled to testify even without being served a subpoena. Sec. 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. (11, R23) Requisites for an arrest warrant against a witness 1. proof of the service of the subpoena 2. failure of a witness to attend 3. issued by the court or judge issuing the subpoena Sec. 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. (12a, R23) Penalty for failure without adequate cause to obey a subpoena served upon and issued by 1. a court - contempt 2. not a court - punished in accordance with the applicable law or Rule Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 102 -
Sec. 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. (9a, R23) When witness may disobey subpoena 1. he resides more than 100 kilometers from the place where he is to testify by the ordinary course of travel, 2. a detention prisoner if no permission of the court in which his case is pending was obtained
2. Cases
If the last day of the period falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period. (n) Should the period be interrupted, the day of interruption shall be excluded. The period shall run again on the day after notice of the cessation of the cause.
a. Rule 23
Section 1. Depositions pending action, 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. (1a, R24) When depositions of anyone pending action may be taken 1. after jurisdiction has been obtained over any defendant or over property which is the subject of the action, but before answer has been served by leave of court 2. after an answer has been served leave of court not required The attendance of witnesses may be compelled by the use of a subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by section 16 or 18 of 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 104 -
books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2, R24) Sec. 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 on 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 information enclosed in sealed envelopes 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. (16a, R24) Sec. 18. Motion to terminate or limit examination. At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing 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 examination 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. (18a, R24) The deponent may be examined regarding any matter 1. not privileged, and 2. is relevant to the subject of the pending action 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 1. deposition shall not be taken 2. it may be taken only at some designated place other than that stated in the notice 3. it may be taken only on written interrogatories 4. certain matters shall not be inquired into 5. the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel 6. after being sealed the deposition shall be opened only by order of the court 7. secret processes, developments, or research need not be disclosed 8. the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court 9. any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. Requisites for a court order to terminate or limit the scope and manner of taking of the deposition Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 105 -
1. motion or petition of any party or of the deponent 2. At any time during the taking of the deposition 3. showing that the examination is being conducted in bad faith or to unreasonably to annoy, embarrass, or oppress the deponent or party 4. issued by the court in which the action is pending or the RTC of the place where the deposition is being taken 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. Sec. 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. (3a, R24) cf Rule 132, Sec. 3 and 18
Sec. 3. Rights and obligations of a witness. - A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3 a, l9 a) Sec. 18. Right to inspect writing shown to witness. - Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9 a)
Sec. 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; (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 or 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 106 -
(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. (4a, R24) Memorize Sec. 4! The deposition may be used against any party who 1. was present or represented at the taking of the deposition, or 2. who had due notice When deposition may be used 1. At the trial or 2. upon the hearing of a. a motion or b. an interlocutory proceeding Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. Instances when the deposition of any witness may be used by the adverse party for any purpose 1. the deponent is a party 2. the deponent, 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 Instances when the deposition of any witness may be used by any party for any purpose 1. the witness is dead; or 2. the witness resides at a distance more than 100 kilometers from the place of trial or hearing 3. the witness is out of the Philippines, unless it appears that his absence was procured by the offeror 4. the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment 5. offeror has been unable to procure the attendance of the witness by subpoena; or 6. 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 If only part of a deposition is offered in evidence by a party 1. the adverse party may require him to introduce all of it which is relevant to the part introduced, and 2. any party may introduce any other parts. Sec. 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. (5, R24) Substitution of parties does not affect the right to use depositions previously taken. 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. Sec. 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 Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 107 -
thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6, R24) Sec. 29. Effects of errors and irregularities in depositions. (a) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written 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 disqualification 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 before 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 examination and other particulars. Errors and irregularities occurring at the oral examination in the manner of taking 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 prosecuted, 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 prepared, signed, certified, sealed, 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. (29a, R24) GR: Objections to depositions raised at the time they are offered in evidence as if the witness were actually testifying. Exceptions: Objections as to 1. notice promptly served upon the party giving the notice. 2. disqualification of officer made a. before the taking of the deposition begins or b. as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. 3. competency or relevancy of evidence which might have been obviated or removed if presented at upon deposition at the time of deposition 4. conduct of the oral examination which might be obviated, removed, or cured if promptly raised at the taking of the deposition. 5. form of written interrogatories. served in writing upon the party propounding them within a. the time allowed for serving succeeding cross or other interrogatories and b. within 3 days after service of the last interrogatories authorized. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 108 -
6. manner of transcribing or preparation by the officer with reasonable promptness after such defect is, or with due diligence might have been, ascertained. Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (7, R24) Sec. 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 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. (8, R24) cf Rule 23, Sec. 4
Sec. 4. Use of depositions. xxx (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;
GR: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Exception: The introduction in evidence of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition. Exception to the exception: Introduction of deposition in evidence does not make the deponent a witness of the offeror where 1. the purpose was to contradict or impeach the deponent 2. the deposition is that of an adverse party or an officer, director, or managing agent of entities which is an adverse party Sec. 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. (9, R24) Any party may rebut any relevant evidence contained in a deposition introduced by anybody, including himself. Sec. 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. (10a, R24) Sec. 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. (11a, R24) Sec. 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. (14a, R24) Persons before whom depositions may be taken within the Philippines 1. any judge 2. notary public, or 3. any person authorized to administer oaths, if the parties so stipulate in writing Escolin: Never designate a RTC judge to be a deposition officer. Persons before whom depositions may be taken in foreign countries Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 109 -
1. on notice before Philippine Republics a. a secretary of embassy or legation b. consul general c. consul d. vice-consul, or e. consular agent 2. person or officer as may be appointed by commission or under letters rogatory 3. any person authorized to administer oaths, if the parties so stipulate in writing Sec. 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 and 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. (12a, R24) When commission or letters rogatory may be issued 1. only when necessary or convenient 2. on application and notice 3. on such terms and with such direction as are just and 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. Sec. 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. (13a, R24) Disqualifications in taking depositions 1. relation as to a party a. relative within the sixth degree of consanguinity or affinity b. employee or counsel 2. relation as to counsel of any of the parties a. relative within the same degree b. employee 3. financial interest in the action Sec. 14. Stipulations regarding taking of depositions. xxx (moved after Secs. 10 and 11) Sec. 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 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. (15, R24) Procedure in deposition upon oral examination 1. reasonable notice in writing given to every other party to the action Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 110 -
2. notice shall state a. time and place for taking the deposition b. if known, name and address of each person to be examined c. if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs 3. On motion of any party, the court may enlarge or shorten the time Sec. 16. Orders for the protection of parties and deponents. xxx (moved to after Sec. 2) Sec. 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 objections 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 written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24) 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. Following objections, made at the time of the examination, shall be noted by the officer upon the deposition 1. the qualifications of the officer taking the deposition 2. the manner of taking it 3. the evidence presented 4. the conduct of any party, and 5. any other objection to the proceedings. Evidence objected to shall be taken subject to the objections. de Leon: Note that the deposition officer does not rule on the objections. He merely notes them. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. Sec. 18. Motion to terminate or limit examination. xxx (moved to after Sec. 2) Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall 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 witness 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 stipulation 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 therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 111 -
section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (19a, R24) cf Sec. 29 (f)
Sec. 29. Effects of errors and irregularities in depositions. (f) As to manner of preparation. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, 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. (29a, R24)
Sec. 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 (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. (20, R24) Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24) Post examination procedure 1. testimony is fully transcribed 2. deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties 3. Any changes in form or substance which the witness 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. 4. The deposition shall then be signed by the witness, unless a. the parties by stipulation waive the signing or b. the witness is 1) ill or 2) cannot be found or 3) refuses to sign. 5. If the deposition is not signed by the witness a. the officer shall sign it and b. state on the record the fact of 1) the waiver, illness, or absence of the witness or 2) the refusal to sign together with the reason given therefor, if any c. the deposition may then be used as fully as though signed, unless on a motion to suppress is filed and the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. 6. The officer shall then a. certify on the deposition that 1) the witness was duly sworn to by him and 2) the deposition is a true record of the testimony given by the witness Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 112 -
b. securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" c. promptly 1) file it with the court in which the action is pending or 2) send it by registered mail to the clerk thereof for filing. d. give prompt notice of its filing to all the parties Sec. 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. (22, R24) Upon payment of reasonable charges, the officer shall furnish a copy of the deposition to any party or to the deponent. Sec. 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 pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorneys fees. (23a, R24) Sec. 24. 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 and his counsel in so attending, including reasonable attorneys fees. (24a, R24) When court may order the party giving the notice to pay the other attending party reasonable expenses incurred by him and his counsel in so attending, including reasonable attorneys fees 1. Failure to attend of party giving notice 2. Failure of a witness to attend because of failure of the party giving notice to serve a subpoena upon him Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party desiring to take the deposition of any person upon 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 redirect interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24) Sec. 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. (26, R24) Sec. 27. Notice of filing and furnishing copies. When a deposition upon 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. (27, R24) Procedure in taking deposition upon written interrogatories Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 113 -
1. service of the written interrogatories and notice every other party 2. notice shall state a. the name and address of the person who is to answer them and b. the name or descriptive title and address of the officer before whom the deposition is to be taken 3. Within 10 days thereafter, a party so served may serve cross-interrogatories 4. Within 5 days thereafter, re-direct interrogatories may be served 5. Within 3 days thereafter, recross-interrogatories may be served 6. 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 7. the officer shall proceed to a. take the testimony of the witness in response to the interrogatories and b. prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. c. Notify all parties of the filing of the deposition upon interrogatories The officer may furnish copies of the deposition upon interrogatories to the parties or to the deponent upon payment of reasonable charges. Sec. 28. Orders for the protection 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 motion 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. (28a, R24) Requisites for an court order for the protection of parties and deponents 1. After the service of the interrogatories and prior to the taking of the testimony 2. motion made by a party or a deponent 3. for good cause shown 4. the order either that a. order specified in sections 15, 16 and 18 of this Rule b. the deposition shall not be taken before the officer designated in the notice c. the deposition shall not be taken except upon oral examination Sec. 29. Effects of errors and irregularities in depositions. xxx (moved to after Sec. 6)
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Petitioner maintains that respondent judge committed a grave abuse of discretion in forbidding the taking of said deposition, she being entitled thereto as a matter of right, without leave of court, after the filing of the answer of the defendants. Respondent invokes Sec16 Rule 29 which explicitly vests in the court the power to order that the deposition shall not be taken and, this grant connotes the authority to exercise discretion in connection therewith. HELD If the order of the court forbidding the taking of a deposition does not claim to seek to avert discovery which is intended not as an aid to litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or both, and tends, in effect, to deprive a party of not only the right to take depositions, but also the opportunity to prove his claim (e.g. party can not afford to transport witnesses to testify at the trial) the said order should be set aside. The objection to the effect that if the depositions were taken the court could not observe the behaviour of the deponents is untenable. Otherwise, no deposition could ever be taken, said objection or handicap being common to all deposition. It is not claimed that the order complained of sought to avert any of the evils which Sec16 Rule 29 was meant to prevent or arrest. Moreover, petitioner was permitted to institute and maintain the case as a pauper. As such, she can ill afford to meet the expenses to make, with her witnesses, the trip or trips from Manila (where Lourdez and Salvador settled) to Davao, and to stay there for the duration of the hearing. Hence, the order in question tended, in effect, to deprive her, not only of her right to take the deposition, but also the opportunity to prove her claim, and consequently, of due process. It is consequently clear that a grave abuse of discretion was committed by respondent judge in issuing the order. Said order is annulled and set aside. Famador: Lopez vs Maceren is one of the exceptions to the testimony of witnesses in open court. Another exception is when the witness is a minor.
Leave of court for the taking of depositions should be distinguished from the approval of the court for the use of the depositions taken. Although approval of court for the taking of the deposition is not required because the answer has already been filed and served, the court has discretion to admit or disallow such deposition when offered in evidence. In the instant case, it is not disputed that notice of the deposition-taking was received by petitioners well before the intended date and that although petitioners filed an opposition, this was not acted upon by the trial court before the taking of the deposition. If despite due notice, the counsel for petitioners failed to appear on the date set for the taking of the deposition, petitioners cannot claim denial of their right, to cross-examine the deponent.
b. cause it to be brought 3. the subject matter of the expected action and his interest therein 4. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it 5. the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 6. the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each 7. ask for an order authorizing the petitioner to take the depositions of the persons named to perpetuate their testimony. Sec. 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 cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a, R134) Sec. 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 deposition may be taken and specifying the subject matter of the examination and whether 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. (4a, R134) Sec. 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. (5a, R134). Sec. 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 same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134) Sec. 7. 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 same 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 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 to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134) General procedure for depositions pending appeal 1. Either a. appeal has been taken from a judgment of a court (including CA), or b. before the taking of an appeal if the appeal period has not expired Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 117 -
2. party moves for leave to take deposition pending appeal 3. The motion shall state a. 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 perpetuating their testimony. 4. service of notice of hearing on the motion 5. court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice 6. court order allowing the depositions to be taken and used as in depositions pending actions
Requisites in interrogatories to parties 1. Leave of court a. after jurisdiction has been obtained over any defendant or over property which is the subject of the action by leave of court b. after an answer has been served leave of court not required 2. file and serve written interrogatories upon a. the adverse party, or b. if the party served is an entity, on an officer competent to testify in its behalf Sec. 2. Answer to interrogatories. The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served 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 motion and for good cause shown, extends or shortens the time. (2a) Requisites for Answer to interrogatories 1. answered fully in writing 2. signed and sworn to by the person making them 3. file and serve a copy of the answers on the party submitting the interrogatories within 15 days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. Sec. 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. (3a) Procedure in objections to any interrogatories 1. presented to the court within ten 10 days after service of the interrogatories Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 118 -
2. with notice of hearing 3. answers shall be deferred until the objections are resolved Sec. 4. Number of interrogatories. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (4) Service on a party of interrogatories beyond the 1st set must be with leave of court. Sec. 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. (5a) cf Rule 23, Sec. 2
Sec. 2. Scope of examination. xxx 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. (2, R24)
Interrogatories may relate to any matters, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party. The answers may be used for the same purposes as that of depositions pending actions. Sec. 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 not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (n) GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Exception: Allowed by the court for good cause shown and to prevent a failure of justice.
trial as to obtain evidence for use upon said trial. Either party may compel the other to disgorge whatever facts he has in his possession. Leave of court is not necessary to avail of said modes of discovery (depositions before action, pending action, pending appeal, interrogatories to parties, requests for admissions) after an answer to the complaint has been served. It is only when an answer has not yet been filed (but after jurisdiction has been obtained over the defendant or property subject of the action) that prior leave of court is needed to avail of these modes of discovery, the reason being that at that time the issues are not yet joined and the disputed facts are not clear. On the other hand, leave of court is required as regards discovery by (a) production or inspection of documents or things, or (b) physical and mental examination of persons, which may be granted upon due application and a showing of due cause. The fact that a motion for bill of particulars on the same matter has been denied is not ground to deny a resort to modes of discovery. A bill of particulars may elicit only ultimate facts, not evidentiary facts, but modes of discovery can elicit evidentiary facts. That interrogatories deal with factual matters is not ground to deny it.
2. files and serves upon the requesting party a sworn statement 3. either a. denying specifically the matters of which an admission is requested or b. 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 within the period for and prior to the filing of his sworn statement. His compliance therewith shall be deferred until such objections are resolved. Note that in interrogatories to parties, the period to answer is 15 days, but the period to object is only 10. In request for admissions, the period to answer and object is the same (15 days). Sec. 3. Effect of admission. Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. (3) Any admission pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. de Leon: This is an exception to extra-judicial admissions under Rule 130, Sec. 26
Sec. 26. Admissions of a party. - The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)
Sec. 4. Withdrawal. The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. (4) The court may allow the party making an admission, whether express or implied, to withdraw or amend it upon such terms as may be just. Sec. 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 a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (n) GR: A party who fails to file and serve a request for admission of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. Exception: Allowed by the court for good cause shown and to prevent a failure of justice.
measuring, surveying, or photographing 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 copies and photographs, and may prescribe such terms and conditions as are just. (1a) Upon motion of any party showing good cause therefor, the court in which an action is pending may 1. order any party a. to produce and permit the inspection and copying or photographing b. of any designated documents or tangible things c. not privileged d. which constitute or contain evidence material to any matter involved in the action e. which are in his possession, custody or control 2. order any party a. to permit entry b. upon designated land or other property c. in his possession or control d. for the purpose of inspecting, measuring, surveying, or photographing e. 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 copies and photographs, and may prescribe such terms and conditions as are just. Subpoena duces tecum Item is brought to court Can not cover land Must be presented as evidence in court cf Rule 8, Sec. 8
Sec. 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted 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 a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)
Court order for production of documents and things Item is not brought to court; merely produced and permit inspection or entry by adverse party Could cover lands Need not be presented in evidence in court
3. upon notice to all parties 4. notice shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made 5. the court in which the action is pending orders him to submit to a physical or mental examination Sec. 3. Report of findings. If requested by the party examined, the party causing the examination to be made 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 mental 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 exclude his testimony if offered at the trial. (3a) If requested by the party examined, the party causing the examination to be made 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 mental 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. If a physician fails or refuses to make such a report, the court may exclude his testimony if offered at the trial. Sec. 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 same mental or physical examination. (4) 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 1. By requesting and obtaining a report of the examination so ordered or 2. by taking the deposition of the examiner
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 attorneys fees. (1a) Sec. 2. Contempt of court. If a party or other witness refuses to be sworn or refuses 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. (2a) If a party or other deponent refuses to answer any question upon oral examination, or interrogatory 1. as the proponent of the question may prefer, the examination may be a. completed on other matters or b. adjourned. 2. 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. 3. If the application is a. Granted the court shall require the refusing party or deponent to answer the question or interrogatory; if 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 attorneys fees. b. 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 attorneys fees. 4. If a party or other witness refuses to be sworn or refuses 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. 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 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 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 of such orders except an order to submit to a physical or mental examination. (3a) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 124 -
If any party or an officer or managing agent of a party refuses to obey an order made requiring him to answer designated questions, or an order 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 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 1. An order that the matters involved in the order shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order 2. 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 3. 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 4. 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. de Leon: Note that the court may not compel a party to submit to 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 attorneys 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. (4a) When party may be required to pay the other the reasonable expenses incurred in making proof, including attorneys fees 1. party is served with a request to admit the genuineness of any document or the truth of any matter of fact 2. party serves a sworn denial thereof 3. the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact 4. the court finds a. no good reasons for the denial or b. the admissions sought were of substantial importance Sec. 5. Failure of party to attend or serve answers. If a party or an officer or managing agent of a party wilfully 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 that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorneys fees. (5) If a party or an officer or managing agent of a party willfully 1. either a. fails to appear before the officer who is to take his deposition, after being served with a proper notice, or b. fails to serve answers to interrogatories submitted after proper service of such interrogatories Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 125 -
2. the court on motion and notice may a. may strike out all or any part of any pleading of that party, or b. dismiss the action or proceeding or any part thereof, or c. enter a judgment by default against that party, d. order him to pay reasonable expenses incurred by the other, including attorneys fees. Sec. 6. Expenses against the Republic of the Philippines. Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines under this Rule. (6) Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines.
b. Case
Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. (5a, R22) Requisites of motion to postpone trial for illness of party or counsel affidavit or sworn certification that 1. the presence of such party or counsel at the trial is indispensable and 2. the character of his illness is such as to render his non-attendance excusable. Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: (a) The plaintiff shall adduce evidence in support of his complaint; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, crossclaim and third-party complaint; (c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; (d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. (1a, R30) cf Rule 31, Sec. 2
Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)
GR: Order of trial the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows 1. plaintiff shall adduce evidence in support of his complaint 2. defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and thirdparty complaint 3. third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; 4. fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; 5. parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 127 -
6. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and 7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. Exceptions to the order of trial 1. when separate trial of any claim or issue is ordered 2. court otherwise directs for special reasons 3. as determined by the court in case of several defendants or third-party defendants, and so forth, having separate defenses who appear by different counsel Sec. 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (2a, R30) Sec. 7. Statement of judge. During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. (3a, R30) Sec. 8. Suspension of actions. The suspension of actions shall be governed by the provisions of the Civil Code. (n) Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (n) GR: The judge shall personally receive the evidence to be adduced by the parties. Exceptions: the court may delegate the reception of evidence to its clerk of court who is a member of the bar 1. in default 2. ex parte hearings 3. where the parties agree in writing The clerk of court shall have no power to rule on objections. The objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from termination of the hearing.
b. Cases
3. Trial by Commissioner
Procedure in Trial by Commissioner 1. court orders reference to a commissioner 2. clerk furnishes the commissioner with a copy of the order of reference 3. commissioner takes an oath, swearing to a faithful and honest performance of his duties 4. commissioner sets and notifies the parties or their counsel a time and place for their first meeting to be held within 10 days after the date of the order of reference 5. The trial or hearing before him shall proceed in all respects as it would if held before the court. 6. Failure of parties to appear commissioner may a. proceed ex parte or b. adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment 7. refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner 8. commissioner should proceed with all reasonable diligence; either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report 9. commissioner files with the court his report in writing a. upon the matters submitted to him by the order of reference b. attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him c. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report 10. Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed 10 days within which to signify grounds of objections. 11. The report shall be set for hearing. 12. When the parties stipulate that a commissioners findings of fact shall be final, only questions of law shall thereafter be considered. 13. The court orders a. Adopting b. modifying, or c. rejecting the report in whole or in part, or d. recommitting it with instructions, or e. requiring the parties to present further evidence before the commissioner or the court.
a. Rule 32
Section 1. Reference by consent. By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (1a, R33) Procedure in Reference by consent Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 130 -
1. written consent of both parties 2. court order any or all of the issues in a case to be referred 3. to a commissioner, referee, auditor or examiner a. to be agreed upon by the parties or b. to be appointed by the court Sec. 2. Reference ordered on motion. When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2a, R33) When reference may be ordered 1. the trial of an issue of fact requires the examination of a long account on either side the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein 2. the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect 3. a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court. (3a, R33) When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The trial or hearing before him shall proceed in all respects as it would if held before the court. The order may 1. specify or limit the powers of the commissioner 2. direct him to a. report only upon particular issues b. do or perform particular acts c. receive and report evidence only 3. fix the date for Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 131 -
a. beginning and closing the hearings and b. for the filing of his report. 4. specify and limit the powers of the commissioner Powers of the commissioner 1. to regulate the proceedings in every hearing before him 2. to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. 3. may issue subpoenas and subpoenas duces tecum, 4. swear witnesses 5. rule upon the admissibility of evidence, unless otherwise provided in the order of reference Note that unlike the deposition officers, and clerks of court who has been delegated power to receive evidence, who have no power to rule on admissibility of evidence, commissioners can rule on the admissibility of evidence, but subject to contrary provision in the order of reference. Sec. 4. Oath of commissioner. Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof. (14, R33) Sec. 5. Proceedings before commissioner. Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) days after the date of the order of reference and shall notify the parties or their counsel. (5a, R33) Sec. 6. Failure of parties to appear before commissioner. If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment. (6a, R33) Sec. 7. Refusal of witness. The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner. (7a, R33) Sec. 8. Commissioner shall avoid delays. It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report. (8a, R33) Sec. 9. Report of commissioner. Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. (9a, R33) Sec. 10. Notice to parties of the filing of report. Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (10, R33) Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 132 -
Sec. 11. Hearing upon report. Upon the expiration of the period of ten (10) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. (11a, R33) Sec. 12. Stipulations as to findings. When the parties stipulate that a commissioners findings of fact shall be final, only questions of law shall thereafter be considered. (12a, R33) Sec. 13. Compensation of commissioner. The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (13, R33)
b. Case
Ground for MTD on demurrer to evidence in criminal cases insufficiency of evidence Dismissal on demurrer to evidence in criminal cases may be Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 133 -
1. motu proprio, with hearing 2. upon motion In criminal cases, if MTD on demurrer to evidence is denied 1. when filed with leave of court accused may adduce evidence in his defense 2. when filed without leave of court accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution de Leon: What if in criminal cases, the demurrer is filed with leave of court, granted but reversed on appeal?
b. Distinguish demurrer to evidence in civil and criminal cases (Rule 119, Sec. 18)
Demurrer to Evidence in Civil Cases Ground is: Facts and law show no right to relief On motion Demurrer to Evidence in Criminal Cases ground is: Insufficient evidence On motion or motu proprio
If denied he has right to present evidence, no prior If denied and MTD was filed without leave of court leave of court required; If granted but reversed on waiver of right to present evidence; If denied and appeal it is a waiver of the right to present evidence MTD was filed with leave of court the accused may adduce evidence in his defense
2. Judgment on the Pleadings and Summary Judgments a. Judgment on the Pleadings (Rule 34)
Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partys pleading, the court may, on motion of that party, direct judgment 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. (1a, R19) Grounds for judgment on the pleadings 1. answer fails to tender an issue, or 2. admits the material allegations of the adverse partys pleading Where the defendant fails to specifically deny the material averment in the complaint other than those as to the amount of unliquidated damages, such shall be deemed admitted and will be a ground for judgment on the pleadings. cf Rule 8, Sec. 11
Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. xxx
3. move with supporting affidavits, depositions or admissions for a summary judgment in his favor Sec. 2. Summary judgment for defending party. A party against whom a claim, counterclaim, 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 judgment in his favor as to all or any part thereof. (2a, R34) Requisites for a Summary judgment for defending party 1. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought 2. at any time 3. move with supporting affidavits, depositions or admissions for a summary judgment in his favor If summary judgment is sought by the 1. claimant, he must move after the pleading in answer to his claim has been served 2. defending party, he may move any time 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 judgment 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 issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (3a, R34) Grounds for summary judgment - there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law Sec. 4. Case not fully adjudicated on motion. If on motion under this Rule, judgment 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. (4a, R34) Procedure in summary judgments 1. motion served at least 10 days before the time specified for the hearing 2. any opposing affidavits, depositions, or admissions must be served by the adverse party at least 3 days before the hearing 3. hearing 4. judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that a. except as to the amount of damages, there is no genuine issue as to any material fact and b. the moving party is entitled to a judgment as a matter of law. 5. if judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court ascertains what material facts a. exist without substantial controversy, and b. are actually and in good faith controverted Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 135 -
6. Court makes 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. 7. The facts specified as without substantial controversy shall be deemed established, and the trial shall be conducted only on the controverted facts. 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. (5a, R34) Requisites for supporting and opposing affidavits 1. personal knowledge 2. state facts as would be admissible in evidence 3. show affirmatively that the affiant is competent to testify to the matters stated therein 4. 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 attorneys fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt. (6a, R34) Should it appear to the court that any of the affidavits presented are presented in bad faith, or solely for the purpose of delay, the court shall 1. 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 attorneys fees. 2. after hearing, further adjudge the offending party or counsel guilty of contempt.
Motion for judgment on the pleadings must be Motion for summary judgment must be served at served at least 3 days prior to the scheduled hearing least 10 days prior to the scheduled hearing
d. Cases
Form of judgment or final order determining the merits of the case 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 5. filed with the clerk of the court Only when the judgment is filed with the clerk of court that a judgment is rendered. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 137 -
Sec. 2. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith 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. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. (2a, 10, R51) If no appeal or motion for new trial or reconsideration is filed within the required time 1. the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments 2. The date of finality of the judgment or final order shall be deemed to be the date of its entry 3. The record a. shall contain the dispositive part of the judgment or final order b. shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. When the case is appealed, it is the clerk of court of the appellate court that makes the entry of judgment. cf Sec. 15 (1), Art. VIII, Constitution
Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pending, brief, or memorandum required by the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.
Periods to decide 1. All lower courts: 3 months from the filing of the last pleading 2. Collegiate courts: 12 months 3. Supreme Court: 2 years Sec. 3. Judgment for or against one or more of several parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. (3) Judgment may be given for or against one or more of several parties. The court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. cf Rule 62, Sec. 1
Sec. 1. When interpleader proper. Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. (1a, R63)
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Sec. 4. Several judgments. In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. (4) Sec. 5. Separate judgments. 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 counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment 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 judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (5a) When more than one claim for relief is presented in an action 1. the court a. at any stage b. upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim c. may render a separate judgment disposing of such claim 2. judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims 3. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment/s and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. (6a)
b. Cases
satisfactory explanation, respondent judge set aside his previous verbal order of dismissal and rescheduled the case for continuation of trial. Hence this petition. Rivera alleges that the verbal order of dismissal made in open court amounted to the acquittal of petitioner and which order is immediately final and executory. Rivera alleges that his constitutional right against double jeopardy was violated. HELD Where an order of dismissal was made orally, the order is not valid. Judgments must be writing in the official language, personally and directly prepared by the judge and signed by him. Petition is denied and remanded to the court of origin for further proceedings.
for the enforcement of the subsidiary civil liability may be considered as part of the proceeding for the execution of the judgment. A case in which an execution has been issued is regarded as still pending so that all proceedings on the execution are proceedings in the suit. There is no question that the court which rendered the judgment has a general supervisory control over its process of execution, and this power carries with it the right to determine every question of fact and law which may be involved in the execution. The validity of the claim of Felipe that he is no longer the owner and operator of the ill-fated bus as he sold it already to Isaac, father of the accused Joselito, is a matter that could be litigated and resolved in the same criminal case. Felipe may adduce all the evidence necessary for that purpose. The enforcement of the employer's subsidiary civil liability may be conveniently litigated within the same proceeding because the execution of the judgment is a logical and integral part of the case itself.
b. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. 5. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. 6. A motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution. 7. The trial court may a. set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion b. accordingly amend the judgment or final order if it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law 8. A second motion for a. reconsideration not allowed b. new trial based on a ground not existing nor available when the first motion was made may be filed within the time herein provided excluding the time during which the first motion had been pending.
a. Rule 37
Section 1. Grounds of and period for filing motion for new trial or reconsideration. Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law. (1a) Grounds for new trial Within the period for taking an appeal when the following causes materially affects the substantial rights of the aggrieved party 1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or 2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Grounds for reconsideration Within the same period 1. the damages awarded are excessive 2. the evidence is insufficient to justify the decision or final order, or 3. the decision or final order is contrary to law Sec. 2. Contents of motion for new trial or reconsideration and notice thereof. The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 143 -
of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a) cf Rule 15, Sec. 3
Sec. 3. Contents. A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a)
Note that a MNT should always be accompanied with affidavits or supporting evidence. A MfR is not always required to be so accompanied. The court may accept affidavits and depositions, but this does not preclude the court from holding a hearing. Escolin: The latest jurisprudence ruled that a MfR can cite the same grounds and allegations of a memorandum. Pro forma Motion did not comply with the requisites in Sec. 2; e.g. MNT is not accompanied with affidavit of merit; MNT did not attach the affidavits of the additional witnesses; the motion is not served on the other party; any violation of the rules on MNT or MFR de Leon: Note that in ordinary appeals, after denial of a MNT or MfR a party has only the remaining period to appeal. In petitions for review, petitions for review on certiorari, and special civil actions for certiorari, after denial of MNT or MfR, a party has a fresh period to seek other remedies. Sec. 3. Action upon motion for new trial or reconsideration. - The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. (3a) Sec. 4. Resolution of motion. A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. (n) Sec. 5. Second motion for new trial. A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order. (4a; 4, IRG) A 2nd MNT may be allowed on a different ground not previously available. A 2nd MfR is absolutely prohibited. Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 144 -
action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (5a) If a new trial is granted 1. the original judgment or final order shall be vacated, and 2. the action shall stand for trial de novo 3. but the recorded evidence taken upon the former trial shall be used at the new trial without retaking Sec.7. Partial new trial or reconsideration. If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (6a) If the grounds for a MNT or MFR affect the issues as to only a part of the matter in controversy, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. Sec. 8. Effect of order for partial new trial. When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. (7a) When less than all of the issues are ordered retried, the court may either 1. enter a judgment or final order as to the rest, or 2. stay the enforcement of such judgment or final order until after the new trial Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. (n) An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. But the resolution may be taken on review by the appellate court by a special civil action of certiorari, mandamus, or prohibition.
b. Cases
In petitioner for relief, the judgment has already been entered. In MNT and MfR, the judgment has not yet been entered. If the defendant has been declared in default or parties failed to appear at the pre-trial (except #1 in case of plaintiff who fails to appear at the pre-trial) 1. If there is as yet no judgment that has been rendered, his remedy is to move to lift the order of default which should be accompanied by a. affidavit of FAME b. under oath c. affidavit of good and meritorious defense 2. If there is already a judgment, but it has not yet been entered, he should move for new trial (Rule 37), which should be accompanied by a. affidavit of FAME b. under oath c. affidavit of good and meritorious defense 3. If MNT is denied, the remedy is ordinary appeal. 4. If appeal is denied, he should petition for relief from denial of appeal (Rule 38) 5. If there is already a judgment and it has been entered, within 60 days from discovery but not more than 6 months after entry of judgment petition for relief from judgment (Rule 38), which should be accompanied by a. affidavit of FAME b. under oath c. affidavit of good and meritorious defense 6. de Leon: If there had been more than 6 months from entry of judgment, but within 4 years from discovery of extrinsic fraud petition before the CA for annulment of judgments (Rule 47) a. Under oath b. Affidavit of extrinsic fraud c. Affidavit of good and substantial defense d. Certificate against forum-shopping de Leon: What is the remedy before judgment of a plaintiff who fails to appear at the pre-trial? I think he should MfR the decision to allow defendants evidence to be presented ex -parte, or he could petition for relief from the order allowing defendants evidence to be presented ex-parte.
a. Rule 38
Procedure in Petition for relief from judgment or denial of appeal 1. Verified petition filed within 60 days after discovery, but not more than 6 months from entry of judgment or proceedings taken; with affidavits of FAME and good and substantial cause of action or defense 2. court orders adverse parties to answer within 15 days from the receipt of the order 3. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition
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4. if after such hearing the court finds that the allegations are true, the court shall set aside the judgment complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. 5. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. 6. Where the denial of an appeal is set aside, the lower court shall be required a. to give due course to the appeal and b. to elevate the record of the appealed case, as if a timely and proper appeal had been made Section 1. Petition for relief from judgment, order, or other proceedings. When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a) Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. (1a) Grounds for Petition for relief from judgment, order, or other proceedings 1. a judgment or final order is entered through FAME, or 2. any other proceeding is thereafter taken against a party in any court through FAME Conditions for Petition for relief from denial of appeal 1. a judgment or final order is rendered by any court in a case, and 2. a party has been prevented from taking an appeal, by FAME 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 judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment 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. (3) Requisites filing Petition for relief from judgment or denial of appeal 1. verified 2. filed a. within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and b. not more than 6 months after entry of such judgment 3. must be accompanied with affidavits showing a. the FAME relied upon, b. and the facts constituting the petitioner's good and substantial cause of action or defense Sec. 5. Preliminary injunction pending proceedings. The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 148 -
issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. (5a) cf Rule 58, Sec. 3 (c)
Sec. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established: (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 probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (3a)
Court may grant preliminary injunction 1. as may be necessary for the preservation of the rights of the parties 2. upon the filing by the petitioner of a bond a. in favor of the adverse party b. conditioned that he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction, if 1) the petition is dismissed or 2) the petitioner fails on the trial of the case upon its merits 3. such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. Sec. 4. Order to file an answer. If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. (4a) Sec. 6. Proceedings after answer is filed. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (6a) Sec. 7. Procedure where the denial of an appeal is set aside. Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appelaed case as if a timely and proper appeal had been made. (7a)
b. Cases
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The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. Sec. 2. Discretionary execution. (a) Execution of a judgment or final order pending appeal. On motion of the prevailing party with notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (b) Execution of several, separate or partial judgments. A several separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (2a) Requisites for Discretionary Execution (partial judgment, or a judgment pending appeal) 1. notice to the adverse party 2. motion of the prevailing party, which state the amounts of the reliefs sought 3. with the a. appellate court after the trial court has lost jurisdiction b. trial court while the trial court 1) has jurisdiction over the case and 2) is in possession of the original record or the record on appeal 4. due hearing. 5. good reasons to be stated in a special order Good reason depends on the discretion of the court. Offer to file a bond is not a good reason to order discretionary execution, because otherwise such execution would be routinary. de Leon: Note that posting of a bond is not a requisite for execution pending appeal. cf Rule 41, Sec. 9
Sec. 9. Perfection of appeal; effect thereof. A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. xxx In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. xxx In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, xxx, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
The court loses jurisdiction only when the record on appeal is transmitted. cf Sec. 10, Rule 41
Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court: xxx
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(d) To transmit the records to the appellate court. If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that could be taken to have them available. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (10a)
If the clerk of court fails to transmit the record on appeal even after the lapse of 30 days, the court may still order execution pending appeal. But if the court of origin is an MTC, the period in which to transmit the record on appeal is just 15 days. cf Rule 40 Sec. 6
Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court shall transmit the original record or the record on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall be furnished the parties. (n)
Bottomline: The court a quo can order execution pending appeal while the records on appeal is yet to be transmitted. Sec. 3. Stay of discretionary execution. Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. (3a) Requisites for Stay of discretionary execution 1. approval by the proper court 2. sufficient supersedeas bond filed by the losing party 3. conditioned upon the performance of the original judgment in case it shall be finally sustained in whole or in part The bond given to stay discretionary exection may be proceeded against on motion with notice to the surety. Sec. 4. Judgments not stayed by appeal. Judgments in actions for injunction, receivership, accounting and support, and such other judgments 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. 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. (4a) Judgments not stayed by appeal 1. injunction 2. receivership 3. accounting 4. support 5. other judgments declared to be immediately executory, e.g. ejectment cases When judgments not stayed by appeal are stayed 1. ordered by the trial court.
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2. appellate court orders the suspending, modifying, restoring or granting of the injunction, receivership, accounting, or award of support. de Leon: can judgments not stayed by appeal be stayed by bond? Sec. 5. Effect of reversal of executed judgment. Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. (5a) Where the executed judgment is modified, on motion, the trial court may issue orders of 1. restitution or 2. reparation of damages Sec. 6. Execution by motion or by independent action. A final and executory judgment 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 judgment may be enforced by action. The revived judgment 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. (6a) A final and executory judgment, or a revived judgment may be executed 1. on motion - within 5 years from entry 2. by action after 5 years from entry, and before it prescribes Sec. 7. Execution in case of death of party. In case of the death of party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corrsponding executor or administrator for any surplus in his hands. (7a) How execution may issue or be enforced in case of the death of the judgment 1. obligee upon the application of his executor or administrator, or successor in interest; 2. obligor a. if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon against his executor or administrator or successor in interest b. If the judgment be for a sum of money 1) Before levy on execution case continues (Rule 3, Sec. 20) and judgment presented as claim in the estate proceedings 2) after execution is actually levied the property may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus Sec. 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; (2) state the name of the court, the case number and title, the dispositive part of the subject Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 153 -
judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner herein after 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; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such properties; (c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; (d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and (e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. (8a) de Leon: Note that a writ of execution is always directed to a sheriff. Hence, mere refusal of a party to comply with a writ of execution does not constitute contempt. Sec. 9. Execution of judgments for money, how enforced. (a) Immediate payment on demand. The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment 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. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possesssion 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 amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of 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 judgment obligee in satisfactionn of the judgment. The excess, if any, shall be delivered to the judgment 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 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 the personal properties are insufficient to answer for the judgment. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 154 -
The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or persoanl 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 judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the posssession 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 judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment 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 judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishing requiring such delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment 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 judgment obligee. The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee. (8a, 15a) How money judgments are enforced 1. Immediate payment on demand 2. Satisfaction by levy 3. Garnishment of debts and credits Immediate payment on demand 1. officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. 2. judgment obligor shall pay in a. cash b. certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. c. In no case shall the executing sheriff demand that any payment by check be made payable to him. 3. The lawful fees shall be handed under proper receipt to the executing sheriff 4. If the judgment obligee or his authorized representative is not present, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. 5. executing sheriff shall Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 155 -
a. turn over all the amounts coming into his possesssion within the same day to the clerk the court that issued the writ, or if the same is not practicable b. deposit said amount to a fiduciary account in the nearest government depository bank of the RTC of the locality. 1) The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ 2) clerk of such court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. 6. Any excess shall be delivered to the judgment obligor 7. The lawful fees shall be retained by the clerk of court Satisfaction by levy 1. 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 2. the officer shall levy upon any properties of the judgment obligor a. which may be disposed of for value and b. not otherwise exempt from execution 3. The judgment obligor has the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. 4. If the judgment obligor does not exercise the option, the officer shall first levy on the a. personal properties b. if the personal properties are insufficient, then real properties 5. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. 6. When there is more than sufficient property to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. 7. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment, cf Rule 57, Sec. 7
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: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment;
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(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor; (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; (d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property.(7a)
Satisfaction by levy on real property 1. filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and 2. by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. 3. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. 4. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. 5. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment; Satisfaction by levy on personal property capable of manual delivery by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor Satisfaction by levy on stocks or shares by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ Satisfaction by levy on debts and credits and other personal property not capable of manual delivery by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; Satisfaction by levy on interest of the party in property belonging to the estate of the decedent by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 157 -
If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. Garnishment of debts and credits 1. The officer may levy on debts due the judgment obligor and other credits, including a. bank deposits b. financial interests c. royalties d. commissions and e. other personal property 1) not capable of manual delivery 2) in the posssession or control of third parties. 2. 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 judgment obligor is entitled. 3. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. 4. The garnishee shall make a written report to the court within 5 days from service of the notice of garnishment stating a. whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. b. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. 5. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be a. delivered directly to the judgment obligee within ten 10 working days from service of notice on said garnishing requiring such delivery b. lawful fees shall be paid directly to the court. 6. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment a. the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due b. otherwise, the choice shall be made by the judgment obligee. 7. If the judgment obligee or his authorized representative is not present, the garnishee shall deliver the payment to the executing sheriff. 8. executing sheriff shall a. turn over all the amounts coming into his possesssion within the same day to the clerk the court that issued the writ, or if the same is not practicable b. deposit said amount to a fiduciary account in the nearest government depository bank of the RTC of the locality. 1) The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 158 -
2) clerk of such court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. 9. Any excess shall be delivered to the judgment obligor 10. The lawful fees shall be retained by the clerk of court Sec. 10. Execution of judgments for specific act. (a) Conveyance, delivery of deeds, or other specific acts; vesting title. If a judgment directs a party who 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 personla property is situated within the Philippines, the court in lieu of directing a conveyance thereof may be 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. (10a) (b) Sale of real or personal property. If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (8[c]a) (c) Delivery or restitution of real property. The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all person claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust and 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 judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (13a) (d) Removal of improvements on property subject of execution. When the property subject of the execution contains improvements constructed or planted by the judgment 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 judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. (14a) Note that the officer can not destroy or remove improvements on the property on the strength of the writ of execution alone. The judgment obligee must move for a special order to demolish, which can only be issued after hearing and unexercised opportunity for the judgment obligor to remove his improvements. (e) Delivery of personal property. In judgments 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 judgment for money as therein provided. (8a) Specific acts which may be executed 1. Conveyance, delivery of deeds, or other specific connected acts 2. Sale of real or personal property 3. Delivery or restitution of real property 4. Removal of improvements on property subject of execution 5. Delivery of personal property Conveyance, delivery of deeds, or other specific connected acts 1. If a party fails to comply within the given period, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 159 -
2. The act when so done shall have like effect as if done by the party. 3. If real or personal property is situated within the Philippines, the court a. in lieu of directing a conveyance thereof b. may by an order divest the title of any party and c. vest it in others, which shall have the force and effect of a conveyance executed in due form of law. Sale of real or personal property 1. sell such property 2. describing it, and 3. apply the proceeds in conformity with the judgment Delivery or restitution of real property 1. The officer shall demand of the judgment obligor and all person claiming rights under him a. to peaceably vacate the property within 3 working days, and b. restore possession thereof to the judgment obligee c. otherwise, the officer shall 1) oust and such persons therefrom a) with the assistance, if necessary of appropriate peace officers, and b) employing such means as may be reasonably necessary to retake possession, and 2) place the judgment obligee in possession of such property. 2. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. Removal of improvements on property subject of execution the officer shall not destroy, demolish or remove said improvements, except 1. upon special order of the court 2. issued upon motion of the judgment obligee 3. after due hearing and 4. after the judgment obligor has failed to remove within a reasonable time fixed by the court. Delivery of personal property 1. the officer shall take possession of the personal property and 2. deliver it to the party entitled thereto and 3. satisfy any judgment for money Sec. 11. Execution of special judgments. When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment 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 judgment. (9a) Special judgments are acts which can be performed by the judgment obligor alone (e.g. painting by a famous painter). Execution of special judgments Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 160 -
1. a certified copy of the judgment shall be attached to the writ of execution and 2. shall be served by the officer upon a. the judgment obligor, or b. any other person required thereby, or by law, to obey the same 3. such party or person may be punished for contempt if he disobeys such judgment. de Leon: Note that disobedience by a party to a writ of execution, by itself, is not contempt because the writ of execution is not directed to a party. However, in case of special judgments, the judgment is attached to the writ of execution. The judgment is addressed to the party, disobedience to which would now constitute contempt. Sec. 12. Effect of levy on execution as to third persons. The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. (16a) Sec. 13. Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution; (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in hs trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempt by law. But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (12a) Property exempt from execution Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 161 -
1. family home, or the homestead in which he resides, and land necessarily used 2. ordinary tools and implements personally used in his trade, employment, or livelihood; 3. 3 beasts of burden as the judgment obligor may select, necessarily used in his ordinary occupation 4. necessary clothing and articles for ordinary personal use, excluding jewelry; 5. Household furniture and utensils necessary for housekeeping, and used for that purpose, such as the judgment obligor may select, of a value not exceeding P100k 6. Provisions for individual or family use sufficient for 4 months 7. professional libraries and equipment, not exceeding P300k in value 8. One fishing boat and accessories not exceeding the total value of P100,000 owned by a fisherman and by the lawful use of which he earns his livelihood; 9. salaries, wages, or earnings for his personal services within the 4 months preceding the levy as are necessary for the support of his family 10. Lettered gravestones 11. Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance 12. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government 13. Properties specially exempt by law. No property shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. Sec. 14. Return of writ of execution. The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. (11a) cf Rule 39, Sec. 6
Sec. 6. Execution by motion or by independent action. A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. xxx
Return of writ of execution 1. If the judgment has been satisfied in part or in full - the writ of execution shall be returnable to the court 2. If the judgment cannot be satisfied in full within 30 days after his receipt of the writ a. the officer shall report to the court and state the reason therefor. b. Such writ shall continue in effect for 5 years from entry (Rule 39, Sec. 6) c. The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall 1. set forth the whole of the proceedings taken, and 2. shall be filed with the court and copies thereof promptly furnished the parties. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 162 -
Sec. 15. Notice of sale of property on execution. Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days; (c) In case of real property, by posting for twenty (20) days in the three (3) public places above-mentioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; (d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which should not be earlier than nine oclock in the morning and not later than two oclock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. (18a) Notice of sale of property on execution 1. specify the a. place b. date and c. exact time of the sale, which should not be earlier than 9 am and not later than 2 pm. 2. personally served to the judgment obligor, at least 3 days before the sale, except in case of perishable property where notice shall be given at any time before the sale cf Rule 13, Sec. 6
Sec. 6. Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein.
3. posted in a public place 4. for the following periods a. perishable property reasonable time considering the character and condition of the property b. other personal property not less than 5 days c. real property for 20 days 5. for real property the notice must Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 163 -
a. particularly describe the property b. state where the property is to be sold c. if the assessed value exceeds P50,000 publish a copy of the notice once a week for 2 consecutive weeks in one newspaper 1) selected by raffle 2) whether in English, Filipino, or any major regional language 3) published, edited and circulated or, in the absence thereof, having general circulation in the province or city Place of the sale 1. agreed upon by the parties. 2. In the absence of such agreement the sale of a. real property or personal property not capable of manual delivery in the office of the clerk of the court which issued the writ or which was designated by the appellate court. b. personal property capable of manual delivery in the place where the property is located Without such notice or with a defective notice, the sale on execution is void. Sec. 16. Proceedings where property claimed by third person. If the property levied on is claimed by any person other than the judgment obligor 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 the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. 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 officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. When the writ of execution 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 or levying officer is sued for damages as a result of the levy, 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 such funds as may be appropriated for the purpose. (17a) Requisites for a claim by a 3rd person 1. the property is levied 2. the claimant is a person other than the judgment obligor or his agent 3. makes an affidavit of a. his title thereto or right to the possession thereof b. stating the grounds of such right or title 4. serves the same upon a. the officer making the levy Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 164 -
b. the judgment obligee Proceedings where property claimed by third person 1. the officer shall not be bound to keep the property, unless a. judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the 3rd party claimant in a sum not less than the value of the property levied on. b. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. 2. The officer shall not be liable for damages for the taking or keeping of the property, to any 3d party claimant if such bond is filed. 3. 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 120 days from the date of the filing of the bond. 4. Nothing herein contained shall prevent a. such claimant or any 3rd person from vindicating his claim to the property in a separate action, or b. the judgment obligee from claiming damages in the same or a separate action against a 3 rd party claimant who filed a frivolous or plainly spurious claim. 5. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it a. the filing of such bond shall not be required, and b. in case the sheriff or levying officer is sued for damages as a result of the levy 1) he shall be represented by the Solicitor General and 2) if held liable, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. Note that 3rd party claims over property levied on execution may be asserted only in a separate action. However, 3rd party claims over property attached may be asserted in the same or a separate action. In both cases, the judgment obligee may claim damages from a frivolous 3rd party claimant in the same or in a separate action. Sec. 17. Penalty for selling without notice, or removing or defacing notice. An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages, both to be recovered by motion in the same action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.000) pesos to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action. (19a) A person may be liable for actual damages and punitive damages of P5,000 to any person injured due to the following acts 1. An officer selling without the notice 2. any person willfully removing or defacing the notice posted a. if done before the sale, or b. before the satisfaction of the judgment if it be satisfied before the sale Such damages may be recovered by motion in the same action
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Sec. 18. No sale if judgment and costs paid. At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. (20a) At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying 1. the amount required by the execution 2. costs incurred therein Sec. 19. How property sold on execution; who may direct manner and order of sale. All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. (21a) How property sold on execution 1. at public auction 2. to the highest bidder 3. to start at the exact time fixed in the notice 4. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. 5. When the sale is of real property a. consisting of several known lots must be sold separately; or b. a portion of which is claimed by a 3rd person he may require it to be sold separately 6. When the sale is of personal property capable of manual delivery, it must be sold a. within view of those attending the same and b. in such parcels as are likely to bring the highest price. 7. The judgment obligor, if present at the sale, may direct the order in which property shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. 8. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. (22a) Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 166 -
If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution 1. the officer a. may again sell the property to the highest bidder and b. shall not be responsible for any loss occasioned thereby 2. the court may a. order the refusing purchaser to pay into the court the amount of such loss, with costs, and b. punish him for contempt if he disobeys the order. c. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. d. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. Sec. 21. Judgment obligee as purchaser. When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. (23a) Sec. 22. Adjournment of sale. By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned. (24a) When officer may adjourn the sale 1. By written consent of the judgment obligor and obligee, or their duly authorized representatives to any date and time agreed upon by them 2. Without such agreement from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned. Sec. 23. Conveyance to purchaser of personal property capable of manual delivery. When the purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (25a) When the purchaser of any personal property, capable of manual delivery, pays the purchase price 1. the officer making the sale must deliver the property to the purchaser and 2. if desired, the officer may execute and deliver to him a certificate of sale. 3. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery. When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (26a) When the purchaser of any personal property, not capable of manual delivery, pays the purchase price 1. the officer making the sale must execute and deliver to the purchaser a certificate of sale Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 167 -
2. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds. Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price paid by him; (d) A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. (27a) Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: 1. A particular description of the real property sold 2. The price paid for each distinct lot or parcel 3. The whole price paid by him 4. A statement that the right of redemption expires 1 year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. Sec. 26. Certificate of sale where property claimed by third person. When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-party claim. (28a) Sec. 27. Who may redeem real property so sold. Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. (29a) Real property sold, or any part thereof sold separately, may be redeemed by the following persons: 1. judgment obligor, or his successor in interest in the whole or any part of the property; 2. Redemptioner a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment. de Leon: Note that in judicial foreclosure sale, generally there is no right of redemption, only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption. Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser the amount of his purchase, with one per centum per month Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 168 -
interest thereon in addition, up to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid on the last redemption, with two per centum thereon in addition, and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. (30a) The judgment obligor, or redemptioner, may redeem the property from the purchaser 1. at any time within 1 year from the date of the registration of the certificate of sale 2. by paying the purchaser a. the amount of his purchase b. amount of any assessments or taxes which the purchaser may have paid after purchase c. if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien d. with 1% per month interest up to the time of redemption 3. Property redeemed may again be redeemed within 60 days after the last redemption by a redemptioner, upon payment of a. the sum paid on the last redemption, with additional 2% b. the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest c. the amount of any liens held by said last redemptioner prior to his own, with interest. 4. The property may be again, and as often as a redemptioner is so disposed, similarly redeemed from any previous redemptioner within 60 days after the last redemption 5. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place 6. if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds 7. if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 169 -
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made. If the judgment obligor
redeems, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. (31a) If the judgment obligor redeems 1. he must make the same payments as are required to effect a redemption by a redemptioner 2. no further redemption shall be allowed and he is restored to his estate 3. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption a. acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property b. filed and recorded in the registry of deeds of the place in which the property is situated 4. the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. 5. The payments may be made to the purchaser or redemptioner, or for him to the officer who made the sale. Sec. 30. Proof required of redemptioner. A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien. (32a) A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer 1. either a. a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or b. if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or c. an original or certified copy of any assignment necessary to establish his claim 2. and an affidavit executed by him or his agent, showing the amount then actually due on the lien. Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 170 -
in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. (33a) Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property 1. by injunction 2. on the application of the purchaser or the judgment obligee 3. with or without notice 4. it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to a. continue to use it in the same manner in which it was previously used; or b. use it in the ordinary course of husbandry; or c. make the necessary repairs to buildings thereon while he occupies the property Sec. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. (34a) The purchaser or a redemptioner shall not be entitled to receive 1. the rents, earnings and income of the property sold on execution, or 2. the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor. (35a) In all cases the judgment obligor shall have the entire period of 1 year from the date of the registration of the sale to redeem the property. The purchaser is entitled to a conveyance and possession of the property if no redemption be made within 1 year from the date of the registration of the certificate of sale. The last redemptioner is entitled to the conveyance and possession of the property 1. whenever 60 days have elapsed Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 171 -
2. no other redemption has been made, and 3. notice thereof given, and 4. the time for redemption has expired If the purchaser or last redemptioner is entitled to the conveyance and possession of the property 1. The deed shall be executed by the officer making the sale or by his successor in office 2. Upon the expiration of the right of redemption, he shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. 3. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a 3rd party is actually holding the property adversely to the judgment obligor. Sec. 34. Recovery of price if sale not effective; revival of judgment. If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. (36a) Requisites for purchaser on execution of real property to recovery price or revive judgment 1. the purchaser of real property sold on execution, or his successor in interest, either a. fails to recover the possession thereof, or b. is evicted because of 1) irregularities in the proceedings concerning the sale, or 2) the judgment has been reversed or set aside, or 3) the property sold was exempt from execution, or 4) a third person has vindicated his claim to the property 2. Either a. on motion in the same action or in a separate action recover from the judgment obligee 1) the price paid, with interest, or 2) so much thereof as has not been delivered to the judgment obligor; or b. on motion have the original judgment revived in his name 1) for the whole price with interest, or 2) so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. Sec. 35. Right to contribution or reimbursement. When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of one of them, as security for another, and the surety Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 172 -
pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. (37a) When a judgment obligor can compel contribution from other judgment obligors 1. more than a due proportion of the judgment is satisfied out of the proceeds of the sale on execution of the property of one of the judgment obligors, or 2. a judgment obligor pays, without a sale, more than his proportion Requisites for a judgment obligor to claim reimbursement from other judgment obligors 1. a judgment is upon an obligation of one of them, as security for another 2. the surety pays the amount, or any part thereof Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. (38a) Requisites for other property and income of the judgment obligor may be applied to a judgment against a property of the judgment obligor 1. When the return of a writ of execution issued against property shows that the judgment remains unsatisfied, in whole or in part, 2. an order from the court requiring such judgment obligor to appear and be examined concerning his property and income a. before such court or before a commissioner appointed by it b. at a specified time and place But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. Sec. 37. Examination of obligor of judgment obligor. When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. (39a) Procedure for Examination of obligor of judgment obligor 1. When the return of a writ of execution against the property shows that the judgment remains unsatisfied, in whole or in part, and Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 173 -
2. upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, 3. the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, a. to appear before the court or a commissioner appointed by it, b. at a time and place within the province or city where such debtor resides or is found, and c. be examined concerning the same. 4. The service of the order shall bind a. all credits due the judgment obligor and b. all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service 5. the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. In case the person denies the judgment obligors ownership of the property in his possession, cf Rule 39, Sec. 43
Sec. 43. Proceedings when indebtedness denied or another person claims the property. If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just.
Sec. 38. Enforcement of attendance and conduct of examination. A party or other person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers before a court or commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. (40a) Enforcement of attendance and conduct of examination 1. Any person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify 2. he may be punished for contempt upon failure to a. obey such order or subpoena or b. be sworn, or c. answer as a witness or d. subscribe his deposition 3. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. 4. If the examination is before a commissioner, he must take it in writing and certify it to the court.
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5. All examinations and answers before a court or commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. Sec. 39. Obligor may pay execution against obligee. After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment, in the manner prescribed in section 9 of this Rule, and the sheriffs receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution. (41a) Requisites for sheriffs receipt to be a sufficient discharge of the judgment obligor s obligor for the amount so paid or directed to be credited by the judgment obligee on the execution 1. After a writ of execution against property has been issued 2. a person indebted to the judgment obligor 3. pays to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment Sec. 40. Order for application of property and income to satisfaction of judgment. The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property. If, upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal services are more than necessary for the support of his family, the court may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt. (42a) Requisites for property applied to satisfaction of judgment via court order 1. properties not exempt from execution, either a. property of the judgment obligor b. or money due him 2. in the hands of either a. himself or b. another person, or c. a corporation or d. other juridical entity, 3. subject to any prior rights over such property. Requisites for the court to order the judgment obligor to pay the judgment in fixed monthly installments 1. upon investigation of his current income and expenses 2. the earnings of the judgment obligor for his personal services are more than necessary for the support of his family Upon his failure to pay any such installment when due without good excuse, he may be punished for indirect contempt.
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Sec. 41. Appointment of receiver. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. (43a) As to the properties of the judgment obligor not exempt from execution, the court may 1. appoint a receiver, and 2. also forbid a. a transfer or b. other disposition, or c. any interference Sec. 42. Sale of ascertainable interest of judgment obligor in real estate. If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed. (44a) Requisites for a receiver to be ordered to sell and convey interest of the judgment obligor in real estate 1. the judgment obligor has an interest in real estate in the place in which proceedings are had, and 2. his interest therein can be ascertained without controversy, 3. such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution 4. proceedings thereon shall be approved by the court before the execution of the deed. Sec. 43. Proceedings when indebtedness denied or another person claims the property. If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. (45a) If it appears that a person or corporation, alleged to have property of, or is indebted to the judgment obligor, claims an interest in the property adverse to the judgment obligor or denies the debt, the court may 1. authorize the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt 2. forbid a transfer or other disposition of such interest or debt within 120 days from notice of the order, and 3. punish disobedience of such order as contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 176 -
admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. (46a) When clerk of court may enter in the court docket and in the execution book the satisfaction of a judgment 1. upon the return of a writ of execution showing the full satisfaction of the judgment, or 2. upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by a. the judgment obligee or b. by his counsel, unless a revocation of his authority is filed, or 3. upon the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. Sec. 45. Entry of satisfaction with or without admission. Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the judgment 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 judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. (47a) Whenever a judgment is satisfied in fact, or otherwise than upon an execution, 1. on demand of the judgment obligor, 2. the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction 3. If not, after notice and upon motion the court may order a. either the judgment obligee or his counsel to do so, or b. the entry of satisfaction to be made without such admission. Sec. 46. When principal bound by judgment against surety. When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the suretys request to join in the defense. (48a) Requisites for principal to be bound by judgment against surety 1. a judgment is rendered against a party who stands as surety for another 2. principal has a. notice of the action or proceeding b. an opportunity at the suretys request to join in the defense cf Rule 9, Sec. 2
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)
Sec. 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, Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 177 -
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 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 judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (49a) Memorize requisites of res judicata! Effect of judgment or final order 1. against a specific thing conclusive upon the title to the thing 2. in respect to the probate of a will, or the administration of the estate of a deceased person conclusive upon the will or administration, but only prima facie evidence of the death of the testator or intestate 3. in respect to the personal, political, or legal condition or status of a particular person or his relationship to another - conclusive upon the condition, status or relationship of the person 4. Res judicata: 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, with respect to a. the matter directly adjudged or b. any other matter that could have been raised in relation thereto 5. In any other litigation between the same parties or their successors in interest that only is deemed to have been adjudged in a former judgment or final order a. which appears upon its face to have been so adjudged, or b. which was actually and necessarily included therein or necessary thereto Sec. 48. Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment 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 judgment 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. (50a) Effect of foreign judgments or final orders 1. upon a specific thing conclusive upon the title to the thing; and 2. against a person presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. Remedial Law Reviewer, Part III of IX, Last printed 3/31/2014 11:07:00 AM Mark de Leon, JD 2001 - 178 -
3. In either case may be repelled by evidence of a. want of jurisdiction b. want of notice to the party c. collusion d. fraud, or e. clear mistake of law or fact
judgment does not become executory, where notice of appeal was served on other co-parties and the judgment is not severable as to the parties.
Held: The term "tools and implements" refers to instruments of husbandry or manual labor needed by an artisan craftsman or laborer to obtain his living. Pentagon is a business enterprise. It does not use the firearms personally, but they are used by its employees. Not being a natural person, Pentagon cannot claim that the firearms are necessary for its livelihood. The exemption contemplated by the provision involved is personal, available only to a natural person.
judgment obligee is entitiled to other writs of execution. Payment must be made to the judgment obligee, or his authorized representative, in order to satisfy the judgment. Ordinarily, the sheriff is an authorized representative of the judgment obligee. However, if payment to the sheriff was by check, and worse, in his own name, such payment is not considered in satisfaction of the judgment. de Leon: Under Rule 39, Sec. 9 (a) checks are acceptable only if the judgment obligee or his authorized representative is present. In PAL, payment by check was in the absence of the judgment obligee, and hence not valid. In fact, the same provision provides In no case shall the executing sheriff demand that any payment by check be made payable to him.
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