CIVIL PROCEDURE

RULE 1 GENERAL PROVISIONS

1. 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; may be ordinary or
special
Criminal action one by which the state prosecutes a person for an act or omission
punishable by law
Special proceeding remedy by which a party seeks to establish a status, a right, or
a particular fact
2. Rules of Court shall !" be applicable to the following, except by analogy or in a
suppletory character, and whenever practicable and convenient
a. #lection cases;
b. $and registration;
c. Cadastral proceedings;
d. aturali%ation proceedings; and
e. &nsolvency proceedings
RULE 2 CAUSE OF ACTION
1. Cause of action an act or omission by which a party violates the right of another
2. R#'(&)&"#) !* +!&,#R !* C-()#) !* -C"&!.
a. "he party /oining the causes of action shall comply with the rules on /oinder of
parties;
b. "he /oinder shall !" include special civil action or actions governed by special
rules;
c. 0here the causes of action are between the same parties but pertain to different
venues or /urisdiction, the /oinder may be allowed in the R"C provided one of the
causes of action falls within the /urisdiction of the R"C and the venue lies therein;
1. 0here the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of /urisdiction.
2. 3is/oinder of causes of action !" a ground for dismissal; the action may, on motion
or motu proprio, be severed and proceeded with separately.
RULE 3 PARTIES TO CIVIL ACTIONS
1. C$-&3) "4-" )(R5&5# "4# ,#-"4 !* - 6-R"7.
a. -ctions to recover real and personal property against the estate;
b. -ctions to enforce liens thereon;
c. -ctions to recover for in/ury to persons or property by reason of tort;
d. -ctions to recover money arising from contract, e8press or implied.
2. ,eath of defendant in action on contractual money claims before /udgment of R"C
!" ground for dismissal. -ction continues until entry of final /udgment. -ny
/udgment against estate of deceased will be enforced as money claim. 0rit of
preliminary attachment, if any, not dissolved.
1. R#'(&)&"#) !* 6#R3&))&5# +!&,#R !* 6-R"&#).
a. Right to relief arises out of the same transaction or series of transactions,
whether /ointly, severally, or in the alternative;
b. "here is a 9uestion of law or fact common to all the plaintiffs and defendants;
c. )uch /oinder is not otherwise proscribed by the provisions of the Rules on
/urisdiction and venue.
2. R#'(&)&"#) !* - C$-)) )(&".
a. )ub/ect matter of the controversy is one of common or general interest to many
persons;
b. 6arties affected are so numerous that it is impracticable to bring them all to the
court;
c. 6arties bringing the class suit are sufficiently numerous or representative of the
class and have the legal capacity to file the action.
:. "R-)*#R !* &"#R#)"
-ction may be continued by or against the original party, unless the court, on
motion, directs the transferee to be substituted in the action or /oined with the
original party; however, if transfer is made before commencement of the action,
the transferee must necessarily be the party, since only he is the real party in
interest.
RULE 4 VENUE OF ACTIONS
* Uniform rule on venue in RTC and MTC
1. 5#(# !* R#-$ -C"&!) in the proper court which has /urisdiction over the area
wherein real property involved or a portion thereof is situated.
2. 5#(# *!R *!RC&;$# #"R7 -, ,#"-&#R -C"&!) in the 3"C of the municipality
or city wherein the real property or a portion thereof is situated.
1. 5#(# !* 6#R)!-$ -C"&!) 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.
!T"# =residence> means place where party actually resides at time of action;
does !" mean permanent home or domicile.
2. -ction against non<resident not found in the 6hilippines
-. -C"&! -**#C") "4# 6$-&"&**?) 6#R)!-$ )"-"() < in the court of the place
where the plaintiff resides.
;. -C"&! -**#C") -7 6R!6#R"7 !* "4# ,#*#,-" & "4# 64&$&66&#) < where
the property or any portion thereof is situated or found.
:. Rules on 5enue shall !" apply.
a. &n those case where a specific rule or law provides otherwise @e.g.$ civil case for
damages in cases of libel, where -rticle 1AB of R6C provides specific rules on
venueC; !R
b. 0here the parties have validly agreed & 0R&"&D before the filing of the action
on the #EC$()&5# venue thereof.
&n this instance, the action can only be filed in the place agreed upon even if
the other place is the place of residence of the parties or the location of the
real property involved.
R ULE 5 UNIFORM PROCEDURE IN TRIAL COURTS
1. "he procedure in the 3"Cs shall be the same as that in the R"C.
2. (niform 6rocedure shall !" be applicable.
a. 0here a particular provision e8pressly or impliedly applies only to either of said
courts.
b. &n civil cases governed by the Rule on )ummary 6rocedure.
RULE 6 KINDS OF PLEADINGS
1. egative %efense specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause of action.
2. &ffirmative defense an allegation of a new matter which, while hypothetically
admitting the material allegations in the pleading of the
claimant, would nevertheless prevent or bar recovery by him.
&ncludes.
a. *raud
b. )tatute of limitations
c. Release
d. 6ayment
e. &llegality
f. )tatue of frauds
g. #stoppel
h. *ormer recovery
i. ,ischarge in bankruptcy
/. -ny other matter by way of confession or avoidance.
1. Compulsory counterclaim R#'(&)&"#).
a. -rises out of or is necessarily connected with the transaction or occurrence
which is the sub/ect matter of the opposing party?s claim;
b. ,oes not re9uire for its ad/udication the presence of 1
rd
parties of whom the court
cannot ac9uire /urisdiction; and
c. 3ust be within the /urisdiction of the court both as to the nature and the amount,
except that in an !R&D&-$ action in the R"C, the counterclaim may be
considered regardless of the amount.
&gustin vs. 'acalang
- court @if 3"CC has no /urisdiction to hear and determine a set<off or
counterclaim in e8cess of its /urisdiction. - counterclaim beyond the court?s
/urisdiction may only be pleaded by way of defense, the purpose of which is to
defeat or weaken the plaintiff?s claim, but !" to obtain affirmative relief.
3!R#!5#R, the amount of /udgment obtained by the defendant on appeal
cannot e8ceed the /urisdiction of the court in which the action began. )ince the
trial court did not ac9uire /urisdiction over the counterclaim in e8cess of the
/urisdictional amount, the appellate court likewise did not have /urisdiction over
the same. &n such a case, the award in e8cess of the /urisdiction of the trial court
is void.
Calo vs. &(ax
- counterclaim, even if otherwise compulsory, but amount e8ceeds the
/urisdiction of the inferior court, will only be considered permissive. 4ence, fact
that it is not set<up in the inferior court will not bar plaintiff from instituting a
separate action to prosecute it.
RULE 7 PARTS OF A PLEADING
1. *!R3-$ R#'(&R#3#") !* 6$#-,&D).
a. Caption
b. "itle
c. ;ody divided into headings and paragraphs
d. ;ody divided into headings and paragraphs
e. )ignature and address
f. 5erification in some cases
2. )ignature of the lawyer constitutes a certification by him that.
a. 4e has read pleading
b. "o the best of his knowledge, information, and belief, there is good ground to
support it
c. &t is not interposed for delay.
1. 4!0 - 6$#-,&D &) 5#R&*&#,. ;y an affidavit stating that
a. -ffiant @person verifyingC has read the pleading
b. -llegations therein are true and correct as of his personal )nowledge or based
on authentic records. @)C Circular 2F<2BBB, effective 3ay 1, 2BBBC
2. - pleading re9uired to be verified which.
a. Contains a verification based on =information and belief>, !R
b. Contains a verification based on =knowledge, information and belief,> !R
c. $acks a proper verification
)hall be treated as an unsigned pleading.
:. 0hat pleadings have to be verified.
a. 6etition for relief from /udgment @1F.1C
b. -ppeal by certiorari from C- to )C @2:.1C
c. Complaint with prayer for preliminary attachment @:G. 1C
d. Complaint for in/unction @:F.2C
e. Complaint for replevin @AB.2C
f. 6etition for certiorari @A:.1C
g. 6etition for prohibition @A:.2C
h. 6etition for mandamus @A:.1C
i. Complaint for forcible entry or unlawful detainer @GB.2C
/. 6etition for appointment of general guardian @H1.2C
k. 6etition for leave to sell or encumber property of estate or guardian @H:.1C
l. 6etition for declaration of competency of the ward @HG.1C
m. 6etition for habeas corpus @1B2.1C
n. 6etition for change of name @1B1.2C
o. 6etition for voluntary dissolution of a corporation @1B2.1C
p. 6etition for cancellation or correction of entries in the civil registry @1BF.1C
9. 6etition to take deposition in perpetuam rei memoriam @before action or pending
appealC @22.2C
r. 3otion to set aside a default order of an inferior court
s. 3otion for dissolution of preliminary in/unction on the ground of irreparable
damage to the movant while the adverse party can be fully compensated
t. 6etition for appointment of receiver
u. 6etition for review of the decision of an R"C in cases within the e8clusive original
/urisdiction of the inferior court, by and elevated to the C-.
v. 6leadings that need not be verified but must be under oath.
w. ,enial of the genuineness and due e8ecution of an actionable document @F.FC
8. ,enial of allegations of usury @F.11C
y. -nswer to written interrogatories @2:.2C
%. -nswer to re9uest for admission @2A.2C
aa. otice of appeal from administrative tribunals to the C-
A. )upporting affidavits of merit re9uired.
a. 3otion to postpone for absence of evidence @1B.1C
b. 3otion to postpone for illness of a party or counsel @1B.2C
c. 3otion for summary /udgment or opposition thereto @1:.1,2,1,:C
d. 3otion for new trial on the ground of *-3# or opposition thereto @1G.2C
e. 6etition for relief from /udgment @1F.1C
f. "hird<party claim @1H.1AC
g. 6roof re9uired of a redemptioner @1H.1BC
h. 3otion for preliminary attachment @:G.1C
i. 3otion for dissolution of preliminary in/unction @:F.AC
/. -pplication for writ of replevin @AB.2C
k. Claim against the estate of the decedent @FA.HC
l. 3otion for new trial based on newly discovered evidence in criminal cases
@121.2C
G. C#R"&*&C-"&! -D-&)" *!R(3<)4!66&D. 6laintiff or principal party shall certify
under oath in the complaint or other initiatory pleading or in a sworn certification
anne8ed and filed therewith.
a. "hat he has not commenced any action or filed any claim involving the same
issues in any court, tribunal or 9uasi</udicial agency; to the best of his knowledge
no such other claim or action pending;
b. &f there is such other pending action, a complete statement of the present status
thereof;
c. &f he should thereafter learn that same or similar action or claim is filed or
pending, he shall report the same within : days therefrom to the court where he
filed his complaint.
!T"# *-&$(R# "! C!36$7 !" C(R-;$# ;7 3#R# -3#,3#" !* "4#
C!36$-&" !R 6$#-,&D ;(" )4-$$ ;# C-()# *!R ,&)3&))-$ !* "4#
C-)# 0&"4!(" 6R#+(,&C#; &* "4# -C") !* 6-R"7 !R C!()#$ C$#-R$7
C!)"&"("# 0&$$*($ I ,#$&;#R-"# *!R(3 )4!66&D, DR!(, *!R
)(33-R7 ,&)3&))-$ 0&"4 6R#+(,&C# -, C!)"&"("# ,&R#C"
C!"#36".
*or *orum<)hopping to e8ist, there must be.
i. )ame transactions involved;
ii. )ame essential facts and circumstances; and
iii. -ctions raise identical cause of action, sub/ect matter, and issues
RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS
1. -llegations of capacity
a. Capacity of party to sue or be sued or the authority of a party to sue or be sued in
a representative capacity or the legal e8istence of an organi%ed association that
is made a party must be averred;
b. "o raise an issue as to the legal e8istence of a party or the capacity of a party in
a representative capacity, do so by specific denial, including such supporting
particulars as are peculiarly within the pleader?s knowledge.
2. -ction or defense based on document
a. )ubstance of such document set forth in the pleading;
b. !riginal or copy attached to the pleading as e8hibit and deemed to be part of the
pleading; !R
c. Copy may be set forth in the pleading with like effect.
1. 4ow to contest actionable document. Denuineness and due e8ecution of instrument
deemed admitted unless adverse party.
a. )pecifically denies them under oath;
b. )ets forth what he claims to be the facts.
Re9uirement of an oath does !" apply.
i. 0hen diverse party does not appear to be a party to the instrument; or
ii. 0hen compliance with an order for an inspection of the original instrument is
refused.
-dmission of genuineness and due e8ecution.
i. 6arty whose signature appears admits that he signed it, or that it was signed
by another with his authority
ii. 0as in words and figures as set out at the time it was signed
iii. ,ocument was delivered
iv. -ny formal re9uisites re9uired by law which it lacks are waived by him
"he following defenses are cut<off by admission of genuineness and due
e8ecution of the document.
i. )ignature is a forgery
ii. )ignature is unauthori%ed
iii. Corporation is not authori%ed under its charter to sign the instrument
iv. 6arty charged signed the instrument in some other capacity than that alleged
in the pleading setting it out
v. ,ocument was never delivered.
2. )6#C&*&C ,#&-$
a. ,efendant must specify each material allegation of fact the truth of which he
does not admit;
b. ,efendant must set forth the substance of the matters upon which he relies to
support his denial, whenever practicable;
c. &f denying only part of an averment, he shall specify so much of it as is true and
material and shall deny the remainder;
d. &f defendant does not have knowledge or information sufficient to form a belief as
to the truth of a material averment, he shall so state and this has effect of denial.
egative pregnant a denial which at the same time involves an admission of
the substantial facts in the pleading responded to.
:. -llegations not specifically denied, other than those as to amount of unli9uidated
damages deemed admitted.
RULE 9 EFFECT OF FAILURE TO PLEAD
1. Deneral Rule. ,efenses and ob/ections not pleaded in answer or motion to dismiss
are deemed waived @!mnibus 3otion RuleC.
"xception# Court shall dismiss the claim, even without allegation in answer or motion
to dismiss, if any of the following appear from the pleadings or the
evidence on record.
a. $ack of /urisdiction over the sub/ect matter;
b. *itis pendentia between same parties for the same cause;
c. Res (udicata
d. -ction barred by statute of limitations.
2. ,#C$-R-"&! !* ,#*-($"
a. ,efendant entitled to notice of motion to declare him in default and of order of
default;
b. 3otion to set aside order of default may be filed after notice and before
/udgment;
c. 6arty may make motion, under oath, to set aside order of default upon proper
showing that failure to answer was due to *-3#;
d. #ffect of order of default party in default entitled to notice of subse9uent
proceedings but not to take part in trial;
e. 6artial default if several defending parties and not all in default, the court shall
try the case against all upon the answers thus filed and evidence presented;
f. -fter declaration of default, court may render /udgment on the basis of the
complaint or re9uire claimant to submit evidence;
g. +udgment against party in default shall not e8ceed the amount or differ in kind
from that prayed for nor award unli9uidated damages;
h. o defaults in action for annulment or declaration of nullity of marriage or for
legal separation.
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS
1. -mendments of pleadings may be made once as a matter of right.
a. -t any time before responsive pleading is served
b. &n the case of a reply, anytime within 1B days after service.
6laintiff may amend complaint as a matter of right even after defendant files a
3otion to ,ismiss, since the same is not a =responsive pleading.>
2. )ubstantial amendments may be made only with leave of court, except as provided
above.
1. -n amended pleading supersedes the pleading that it amends but admissions in
superseded pleadings may be received in evidence against the pleader. @!"
/udicial admissions anymore; thus, must be formally offeredC
2. Claims and defenses alleged in original but not incorporated in the amended
pleading shall be deemed waived.
:. -mended and )upplemental pleadings distinguished.
AMENDED SUPPLEMENTAL
Refers to facts e8isting at the time of the
commencement of the action
Refers to facts arising after the filing of the
original pleading
Results in the withdrawal of the original
pleading
3erely an addition, and does !" result in
the withdrawal of, the original pleading
Can sometimes be made as a matter of
right
-lways filed with leave of court
RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS
1. -nswer to complaint 1: days from service, unless different period fi8ed by the
courts;
2. -nswer of defendant foreign private /uridical entity when service of summons is
made on the government official designated by law, answer to be filed within 1B days
from receipt of summons by such entity.
1. -nswer to amended complaint if amended as a matter of right, 1: days from being
served with copy thereof
&f amended not as a matter of right, 1B days from notice of order admitting the
same
-nswer earlier filed may be answer to amended complaint, if no new answer is
filed
-pplicable to amended counterclaim, cross, third, etc,
2. -nswer to counterclaim or cross<claim within 1B days from service.
:. -nswer to 1
rd
party complaint 1: days from service
A. Reply may be filed within 1B days from service of the pleading responded to
RULE 12 ILL OF PARTICULARS
1. ;ill of particulars
a. 6eriod of filing motion before responding to a pleading; if pleading is a reply,
within 1B days from service thereof;
b. !rder for bill must be complied with in 1B days from notice !R period fi8ed by
court
c. -fter service of bill or denial of motion party has balance of time he was entitled
to file responsive pleading, but not less than : days
3otion for ;ill of 6articulars may !" call for matters which form part of the
proof of the complaint. "hus, motion should not be granted if the complaint,
while not very definite, nonetheless already states a sufficient cause of action.
RULE 13 FILING AND SERVICE OF PLEADINGS! "UDGMENTS AND OTHER PAPERS
1. Jinds of service of pleadings.
a. 6ersonal service to be done whenever practicable @3ost preferred modeC
b. )ervice by mail @ordinary if no registered mailC
c. )ubstituted service @delivering copy to clerk of court with proof of failure of 1
st
2
modesC
"xcept with respect to papers emanating from the court, a resort to other modes
must be accompanied by a written e8planation why the service or filing was not
done personally.
5iolation of rule may be cause to consider the paper as not filed.
2. Jinds of service of final orders.
a. 6ersonal
b. Registered mail
c. 6ublication @if summons by publicationC
1. 6roof of personal service
a. 0ritten admission of party served;
b. !fficial return of the server; or
c. -ffidavit of party serving, containing a full statement of the date, place and
manner of service.
RULE 14 SUMMONS
1. Contents of summons
a. )igned by the clerk under the seal of the court
b. ame of the court and that parties to the action
c. ,irection that the defendant answer within the time fi8ed by these rules
d. otice that unless defendant so answers, plaintiff will take /udgment by default
2. Jinds of service of summons.
-. 6#R)!-$.
i. 4anding a copy to the defendant in person; !R
ii. &f he refuses to receive and sign for it, by tendering it to him
;. )(;)"&"("#,.
i. $eave copies at his residence, with person of suitable age and discretion
residing therein; !R
ii. $eave copies at defendant?s officeKregular place of business, with competent
person in charge thereof.
c. ;y publication
1. ;y whom served.
a. )heriff
b. !ther proper court officer
c. -ny suitable person specially authori%ed by the /udge
2. 0hen e8traterritorial service allowed.
a. ,efendant is a non<resident and is not found in the 6hilippines and action affects
plaintiff?s personal status
b. )ub/ect of action is property within the 6hilippines in which the defendant has or
claims a lien or interest
c. 0here relief demanded consists in whole or in part in e8cluding the defendant
from any interest in such property
d. 0hen property of defendant has been attached within the 6hilippines
:. Jinds of e8tra territorial service
a. 6ersonal service
b. 6ublication and summons sent by registered mail to last known address
c. -ny other matter the court may deem sufficient
A. 0hen service by publication in a newspaper of general publication allowed.
a. &dentity of defendant unknown
b. 0hereabouts of defendant unknown and cannot be ascertained by diligent
in9uiry
@aC and @bC, applies to -7 action, even actions in personam
c. ,efendant is non<resident and the suit is +uasi in rem
d. ,efendant is temporarily out of the country and the suit is +uasi in rem
G. )ervice upon private domestic /uridical entity refers to corporation, partnership, or
association organi%ed under 6hil. $aws with a /uridical personality.
a. 6resident
b. 3anaging partner
c. Deneral manager
d. Corporate secretary
e. "reasurer
f. &n<house counsel
F. )ervice upon private foreign /uridical entity transacting business in the 6hils.
a. Resident agent designated in accord with $aw
b. &f no such agent, on government official designated by law !R
c. !n any of its officers or agents within the 6hils
!T"# &* ! R#)&,#" -D#", )#R5&C# !* )(33!)#) -, 6R!C#))#)
! "4# )#C.
H. ewspaper of general circulation @R- 2FF1, 6, 1BGHC
a. 6ublished for the dissemination of local news and general information
b. 4as a bona fide subscription list of subscribers
c. 6ublished at regular intervals
d. ot published for nor devoted to the interest of a particular group of persons
e. 3ust have been regularly published for at least 2 years before the date of the
publication in 9uestion.
3ere filing of an answer per se should not be automatically treated as a voluntary
appearance by the defendant for the purpose of sumons. &t should be noted that
when the appearance of the defendant is precisely to ob/ect to the /urisdiction of
the court over his person, it cannot be considered as an appearance in court.
RULE 15 MOTIONS
1. -ll motions must be in writing except.
a. "hose made in open court; !R
b. "hose made in the course of a hearing or trial.
2. "xceptions to the three<day notice rule.
a. "x parte motion
b. (rgent motion
c. 0hen court sets hearing on shorter notice for good cause
d. 3otion for summary /udgment @must be served at least 1B days before the
hearingC
- prudent /udge would, in the absence of the opposing party in the hearing of a
motion, in9uire from the other party or in9uire from the records the proof of the
service of notice rather than proceed with the hearing. 4e should not rely on a
party?s undertaking to notify the adverse party of a scheduled hearing. "he /udge
must demand what the rule re9uires, i.e., proof of such notice on the adverse
party. !therwise, a contentious motion should be considered a mere scrap of
paper which should not have even been received for filing.
)ubse9uent service of the motion on the adverse party may be considered
substantial compliance with the Rule 1:, L A. *ailure to attach to the motion
proof of service thereof to the adverse party is not fatal when the adverse party
had actually received a copy of the motion and was in fact present in court when
the motion was heard.
RULE 16 MOTION TO DISMISS
1. 3otion to ,ismiss must be filed within the time for and before the filing of an answer
to complaint.
2. Drounds for motion to dismiss.
a. Court has no /urisdiction over the person of the defendant< unlike old rule,
inclusion in motion to dismiss of other grounds aside from lack of /urisdiction over
the person does !" constitute a waiver of the said ground or voluntary
appearance;
b. Court has no /urisdiction over the sub/ect matter of the claim;
c. 5enue is improperly laid;
d. 6laintiff has no legal capacity to sue;
e. "here is another action pending between the same parties for the same cause;
Re9uisites of litis pendentia.
i. &dentity of partiesKinterest
ii. &dentity of rights asserted and prayed forKrelief founded on the same facts;
iii. &dentity of the 2 cases @such that /udgment in one would amount to res
/udicata in the otherC
f. Cause of action is barred by a prior /udgment or by statute of limitations;
Re9uisites of res (udicata.
i. *inal /udgment or order
ii. Rendered by court of competent /urisdiction
iii. !n the merits @even without trial, such as cases decided by +udgment on
the 6leadings, )ummary +udgment, or dismissed for failure to prosecute
or for refusal to obey an order of the courtC
iv. &dentity of the parties
g. 6leading asserting claim states no cause of action;
h. Claim or demand in the plaintiff?s pleading has been paid, waived, abandoned,
e8tinguished;
i. Claim on which action is founded is unenforceable under the statute of frauds;
/. Condition precedent for filing has not been complied with @this includes prior
recourse to barangay conciliation, or failure to make attempts to reach a
compromise in cases between members of the same familyC
"he court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable.
1. -ctions that court may take on a 3otion to ,ismiss.
a. Drant it remedy. appeal
b. ,eny !" appealable; but may avail of certiorari, prohibition and mandamus
c. !rder amendment of the pleading
2. &f denied, defendant must file answer within the balance of the 1:<day period, but not
less than : days from the time he received notice of the denial;
:. )ub/ect to the right to appeal, dismissal based on the following grounds will be bar to
refiling.
a.Res (udicata
b.#8tinguishment of claim or demand
c.6rescription
d.(nenforceability under the )tatute of *rauds
A. "he dismissal of the complaint shall be without pre/udice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer.
- motion to dismiss on the ground of failure to state a cause of action in the
complaint must hypothetically admit the truth of the facts alleged in the complaint.
"he admission, however, is limited only to all material and relevant facts which are
well pleaded in the complaint. "he demurrer does not admit the truth of mere
epithets charging fraud; nor allegations of legal conclusions; nor an erroneous
statement of law; nor matters of evidence; nor to legally impossible facts.
RULE 17 DISMISSAL OF ACTIONS
1. ,ismissal by the plaintiff
a. otice of dismissal any time before service of the answer or a motion for
summary /udgment;
,ismissal is without pre/udice ",C"-T on 2
nd
notice of dismissal, which
operates as ad/udication on the merits when filed by same plaintiff who has
once dismissed an action based on or including said claim.
b. &f answer or motion for summary /udgment already served, dismissal by a 3otion
for ,ismissal, which shall re9uire approval of the court; shall be without pre/udice
unless otherwise specified by the court
&f counterclaim has been pleaded by a defendant prior to the service upon
him of plaintiff?s motion to dismiss, dismissal is limited to the complaint;
dismissal is without pre/udice to defendant?s right to prosecute counterclaim
in a separate action or, if he makes a manifestation within 1: days from
notice of the motion, to prosecute CC in same action.
2. ,ismissal due to plaintiff?s fault < the following must be without /ustifiable cause
a. &f plaintiff fails to appear on the date of presentation of his evidence in chief;
b. 6laintiff fails to prosecute claim for an unreasonable length of time
c. 6laintiff fails to comply with the Rules of Court or any order of the court
Complaint may be dismissed upon defendant?s motion or motu proprio.
(nless otherwise declared by the court, dismissal has effect of ad/udication upon
the merits.
RU*" ! S"."R&C" !/ C!M-U*S!R0 CC# ,ismissal of principal action upon
plaintiff?s motion or due to plaintiff?s fault does not necessarily carry with it the
dismissal of the compulsory CC; defendant is also given option to prosecute the
same in same or separate action.
1. ,ismissal of counterclaim, cross<claim, or 1
rd
<party complaint must be made by
claimant before a responsive pleading or a motion for summary /udgment is served,
or if there is none, before the introduction of evidence.
RULE 18 PRE#TRIAL
1. 0hat to consider in pre<trial @with notice to counsel or party without counselC
a. 6ossibility of amicable settlement or arbitration
b. )implification of the issues
c. -mendments to the pleadings
d. )tipulations or admissions of facts and documents
e. $imitation of number of witnesses
f. 6reliminary reference of issues to a commissioner
g. 6ropriety of /udgment on the pleadings, summary /udgments, or dismissal of
action
h. !ther matters for the prompt disposition of the action
2. &t is the duty of the plaintiff to move ex parte for the setting of the case for pre<trial.
4owever, if plaintiff answers the defendant?s counterclaim, it will be the latter?s duty
to set the pre<trial.
1. *ailure of plaintiff to appear shall be cause for dismissal of the action. on<
appearance of defendant is cause to allow plaintiff to present evidence ex parte and
the court to render /udgment on basis thereof.
2. on<appearance of party e8cused only if.
a. - valid cause is shown therefor !R
b. &f representative shall appear in his behalf fully authori%ed 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,
:. 3ust file pre<trial brief so as to ensure that other party receives it at least 1 days
before pre<trial. *ailure to file brief has same effects as failure to appear at pre<trial.
A. 6roceedings recorded, and court shall issue an order reciting in detail matters taken
up.
RULE 19 INTERVENTION
1. Drounds for intervention
a. $egal interest in the matter in litigation
b. &nterest in the success of either or both parties or interest against both
c. 6arty is so situated as to be adversely affected by the distribution of the court
d. ,isposition of property in the custody of the court or of an officer thereof.
2. 3otion may be filed at any time before rendition of /udgment.
1. -nswer to complaint<in<intervention must be filed within 1: days from notice of court
admitting the complaint.
2. 3otion for intervention will be granted if it will not unduly delay or pre/udice
ad/udication of rights or original parties and if the intervenor?s rights may be fully
protected in separate proceedings.
:. Complaint in intervention is merely collateral to the principal action. 4ence, it will be
dismissed if main action is dismissed.
A. - complaint in intervention that seeks affirmative relief prevents a plaintiff from
taking a voluntary dismissal of the main action. )uch a case is not sub/ect to
dismissal upon intervenor?s petition showing him to be entitled to affirmative relief.
"he petition will be preserved and heard regardless of the disposition of the main
action.
RULE 20 CALENDAR OF CASES
1. Calendar of cases to be kept by clerk of court for cases set for pre<trial, trial, those
whose trials ad/ourned or postponed and those with motions set for hearings.
2. 6reference given to habeas corpus, election cases, special civil actions and those so
re9uired by law.
RULE 21 SUPOENA
1. )ubpoena issued by.
a. "he court before whom witness is re9uired to attend;
b. "he court of the place where the deposition is to be taken;
c. "he officer or body authori%ed by law to do so in connection with its
investigations;
d. -ny +ustice of the )C or C- in any case or investigation pending within the 6hils
2. o prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is
confined in any penal institution shall be brought outside said institution for
appearance or attendance in any court unless authori%ed by the )C.
1. Drounds for 9uashing subpoena duces tecum
a. &t is unreasonable or oppressive
b. "he articles sought to be produced do not appear to be relevant
c. 6erson asking for subpoena does not advance cost of production
2. Dround for 9uashing subpoena ad testificandum
a. "he witness is not bound thereby if witness resides more than 1BB km from the
place where he is to travel by the ordinary course of travel, or if he is a detention
prisoner and no permission is obtained from the court in which his case is
pending
"his is known as the =viatory right> of the witness; !T", however, that the
right is available only in C&5&$ cases
b. 0itness fees and kilometrage allowed by rules not tendered when subpoena
served.
:. )ervice of subpoena made in the same manner as personal or substituted service of
summons.
A. 6erson present in court before a /udicial officer may be re9uired to testify as if he
were in attendance upon a subpoena.
G. *ailure by any person without ade9uate cause to obey a subpoena served upon him
shall be deemed a contempt of the court from which subpoena issued.
RULE 22 COMPUTATION OF TIME
1. Computing for any period of time. day of the act or event from which designated
period of time begins to run is to be e8cluded and the date of performance included.
2. &f last day of period falls on )aturday, )unday or legal holiday in place where court
sits, the time shall not run until the ne8t working day.
1. &f there is effective interruption of period, it shall start to run on the day after notice of
the cessation of the cause of the interruption. "he day of the act that caused the
interruption is e8cluded in the computation of the period.
RULE 23 DEPOSITIONS PENDING ACTION
,#6!)&"&!) %" '"" "SS" 1 taken for purposes of pending action
1. ,epositions pending action
a. "aken by leave of court after court obtains /urisdiction over any defendant or
property sub/ect of the action
b. "aken without leave after an answer has been served
c. (pon the instance of any party
d. 3ay be deposition upon oral e8amination or written interrogatories
2. )cope of e8amination deponent may be e8amined regarding any matter not
privileged relevant to the sub/ect of the action
1. #8amination and cross<e8amination proceeds as in trials
2. ,epositions and -ffidavits distinguished
DEPOSITIONS AFFIDAVITS
0ritten testimony of witness in course of
/udicial proceedings, in advance of trial and
hearing
3ere sworn written statements
!pportunity for cross<e8amination o cross<e8amination
Can be competent testimonial evidence $ittle probative value @hearsayC
:. (se of depositions
-ny part or all of a deposition which is admissible in evidence may be used
against any party who was present or represented during the taking of the
deposition or who had notice thereof as follows.
DEPOSITION OF MA$ E USED $ PURPOSE
- witness -ny party "o contradict or impeach the
deponent?s testimony as a witness
-ny party, or anyone who
at the time of taking the
deposition was an officer,
director, or managing agent
of a public or private
corporation
-n adverse party *or any purpose
!f any witness, whether a
party or not
-ny party *or any purpose, &* court finds that.
a. 0itness is dead;
b. 0itness resides at a distance
more than 1BB km from place of
trial, ($#)) absence procured
by party offering the deposition
c. 0itness is unable to testify
because of age, sickness,
infirmity, or imprisonment;
d. 6arty offering the deposition has
been unable to procure the
attendance of the witness by
subpoena; !R
e. !ther e8ceptional circumstances
make it desirable to allow
deposition to be used.
,eponent is made the witness of the party offering the deposition.
&f only part of the deposition is introduced, adverse party may re9uire that all of it
which is relevant to the part introduced be introduced.
A. 6ersons before whom depositions may be taken
a. 0ithin the 6hilippines
i. +udge
ii. otary public
iii. -ny person authori%ed to administer oaths if the parties so stipulate in writing
b. &n foreign countries
i. !n notice, before a secretary of any embassy or legation, consul<general,
consul, vice<consul, consular agent of the 6hils
ii. ;efore such person or officer as may be appointed by commission or under
letters<rogatories
iii. -ny person authori%ed to administer oaths if the parties so stipulate.
Commission addressed to any authority in a foreign country authori%ed therein to
take down depositions; the taking of such depositions is sub/ect to the rules laid
down by the court issuing the commission
*etters Rogatory addressed to /udicial authority in the foreign country; the taking of
the depositions is sub/ect to the rules laid down by such foreign /udicial authority.
G. 6ersons dis9ualified to take depositions
a. Relative within A
th
degree of consanguinity or affinity of any party
b. #mployee of any party
c. Counsel of any party
d. Relative within the same degree of party?s counsel
e. #mployee of party?s counsel
f. -nyone financially interested in the action
F. ,epositions upon written interrogatories
6arty desiring to take such deposition 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 and descriptive title of the officer before whom the deposition is to
be taken;
6arty so served may serve cross<interrogatories upon the proponent within 1B
days thereafter
Re<direct interrogatories served within : days
Re<cross interrogatories served within 1 days
H. #ffects of errors and irregularities in the depositions
a. -s to notice waived unless written ob/ection is promptly served upon the party
giving the notice
b. -s to dis9ualification of officer waived unless made before the taking of the
deposition begins or as soon thereafter as the dis9ualification becomes known or
could be discovered with reasonable diligence
c. -s to competency or relevancy of evidence < !" waived by failure to make
them before or during the taking of the deposition, unless ground is one which
might have been obviated or removed if presented at that time
d. -s to oral e8am and other particulars < #rrors occurring at the oral e8am in the
manner of taking the deposition, in the form of 9uestions and answers, in oath or
affirmation, or in conduct of parties, and errors of any kind which might be
obviated, removed, cured if promptly prosecuted are waived unless reasonable
ob/ection is made at the taking of the deposition.
e. -s to form of written interrogatories < waived unless served in writing upon party
propounding them within the time allowed for serving succeeding cross or other
interrogatories and within 1 days after the service of the last interrogatories
authori%ed.
f. -s to manner of preparation < errors as to 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 are waived unless a motion
to suppress the deposition or some part of it is made with reasonable
promptness after such defect is, or with due diligence might have been,
ascertained.
- deposition, in keeping with its nature as a mode of discovery, should be taken
before and not during trial. & fact, the rules on criminal practice particularly on
the defense of alibi states that when a person intends to rely on such a
defense, that person must move for the taking of the deposition of his witness
within the time provided for filing a pre<trial motion.
RULE 24 DEPOSITIONS PENDING ACTION
,#6!)&"&!) 2 -"R-"TU&M R"2 M"M!R2&M 1 taken to perpetuate evidence for
purposes of an anticipated action or further proceedings in a case or appeal.
1. ,epositions before action
- person desiring to perpetuate his own testimony or that of another person
regarding any matter that may be cogni%able in any court of the 6hils may file a
verified petition in the court of the place of the residence of any e8pected adverse
party, which petition shall be entitled in the name of the petitioner and shall show.
a. "hat petitioner e8pects to be a party to an action in a court of the 6hils but is
presently unable to bring it or cause it to be brought;
b. "he sub/ect matter of the e8pected action and his interest therein;
c. "he facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it;
d. "he names or description of the persons he e8pects will be the adverse parties
and their addresses so far as known;
e. "he name and addresses of the persons to be e8amined and the substance of
the testimony which he e8pects to elicit from each.
2. (se of deposition
&f deposition to perpetuate testimony is taken under this rule or if not so taken
is still admissible in evidence may be used in any action involving the same sub/ect
matter subse9uent brought in accordance with the provisions of Rule 21.
RULE 25 INTERROGATORIES TO PARTIES
1. &nterrogatories and the answers thereto should be filed in court and served on
adverse parties, so that the answers may constitute /udicial admissions.
2. #ffect of failure to serve written interrogatories a party not served with such may
!" be compelled by the adverse party to give testimony in open court or deposition
pending appeal.
RULE 26 ADMISSION $ ADVERSE PART$
1. Re9uest for admission
- written re9uest for the admission of the other party of the genuineness of
any material or document or re9uest for the truth of any material and relevant matter
of fact set forth in the re9uest may be filed and served upon the other party at any
time after issues have been /oined.
2. &mplied admission
#ach of the matter re9uested to be admitted shall be deemed admitted within
a period designated in the re9uest, which shall not be less than 1: days after service
thereof or within such further time as the court may allow on motion, ($#)), party
re9uested serves upon the party re9uesting a sworn statement either specifically
denying or setting forth in detail the reasons why he cannot truthfully either admit or
deny those matters.
1. #ffect of admission
-dmission is only for the purpose of the pending action and shall !"
constitute an admission for any other person nor may it be used against him in any
other proceeding.
2. - party who fails to file and serve a re9uest for admission on the adverse party of
material facts within the personal knowledge of the latter shall not be permitted to
present evidence thereon,
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
1. -ny party may move for the court in which the action is pending to order any party to.
a. 6roduce and permit the inspection and copying or photographing of any
designated documents, papers, books, accounts, letters, photographs, ob/ects or
tangible things, not privileged, which.
i. Constitute or contain evidence material to any matter involved in the action
-,
ii. -re in his possession, custody or control.
b. 6ermit entry upon designated land or other property in his possession or control
for the purpose of inspecting, measuring, surveying, or photographing the
property or any designated relevant ob/ect or operation thereon.
2. "he order.
a. )hall specify the time, place and manner of making the inspection and taking
copies -,
b. 3ay prescribe such terms and conditions which are /ust.
RULE 28 PH$SICAL AND MENTAL E%AMINATION OF PERSONS
1. &f the mental or physical condition of a party is in controversy, the court may order
him to submit to a physical or mental e8amination by a physician.
2. "he party e8amined waives any privilege he may have in that action regarding the
testimony of the person who has e8amined or may e8amine him with respect to that
same mental or physical e8amination by.
a. Re9uesting and obtaining a report of the e8amination so ordered !R
b. "aking the deposition of the e8aminer.
RULE 29 REFUSAL TO COMPL$ WITH THE MODES OF DISCOVER$
1. &f a partyKdeponent refused to answer.
a. "he e8amination may be completed on other matters
b. "he e8amination may be ad/ourned
c. "he proponent may apply to the court for order to compel answer
"he court may then order.
i. "he refusing party or his counsel to pay the e8penses incurred in
obtaining the order, including the attorney?s fees @if it finds the refusal to
answer without substantial /ustificationC
ii. "he proponent or his counsel to pay the e8penses incurred in opposing
the application, including attorney?s fees @if it finds the application to be
without substantial /ustificationC
2. &f a partyKwitness refuses to be sworn or to answer after being directed to do so by
the court, the refusal may be considered a contempt of that court.
1. &f a partyKofficer or managing agent of a party refuses to obey an order re9uiring him.
a. "o answer designated 9uestions
b. "o produce a thing for inspection or to permit entry upon property
c. "o submit to a physical or mental e8amination
the court may order.
i. "hat the matters regarding which the 9uestions were asked, or the character
of the land or the thing, or the physical and mental condition of the party be
taken to be established.
ii. "he disallowance of the disobedient party?s claims
iii. "he prohibition of the disobedient party to present evidence
iv. "he striking out of the pleadings or parts thereof
v. "he dismissal of the action or parts thereof
vi. Rendering /udgment by default against the disobedient party !R
vii. "he arrest of any party or agent ",C"-T in disobeying an order to submit to
a physical or mental e8amination.
2. &f a party refuses to attend or serve answers, the court may.
a. )trike out all or any part of any pleading of that party.
b. ,ismiss the action or any part thereof.
c. #nter a /udgment by default against that party, !RK-,
d. !rder that party to pay reasonable e8penses incurred, including attorney?s fees.
:. "he Republic of the 6hilippines cannot be re9uired to pay e8penses and attorney?s
fees under this Rule.
RULE 30 TRIAL
1. !rder of trial
"rial shall be limited to the issues stated in the pre<trial order and shall
proceed as follows.
a. "he plaintiff shall adduce evidence in support of his complaint;
b. "he defendant shall adduce evidence in support of his defense, counterclaim,
cross<claim, and third<party complaint;
c. "he 1
rd
<party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross<claim, and 2
th
party complaint;
d. "he 2
th
party and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
e. "he 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. "he parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of /ustice, permits them to adduce
evidence upon their original case; and
g. (pon 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.
2. +udge should personally receive evidence ",C"-T that in default or ex parte
hearings and in any case where the parties so agree in writing, the court may
delegate the reception of evidence to its clerk of court who is a member of the bar.
"he clerk shall have no power to rule on ob/ections to any 9uestion or to the
admission of e8hibits, which ob/ections shall be resolved by the court upon
submission of his report and the transcripts within 1B days from the termination of
the hearing.
RULE 31 CONSOLIDATION OR SEVERANCE
1. C!)!$&,-"&! the court may order a /oint hearing or trial of any or all matters
in issue when actions involving a common 9uestion of law or fact are pending before
the court.
2. ;(" the court may order a separate trial of any claim, cross<claim, counterclaim, or
third<party complaint, in furtherance of convenience or in the interest of /ustice.
RULE 32 TRIAL $ COMMISSIONER
"rial by commissioner.
1. Reference by consent of both parties
2. Reference by motion of one of the parties or motu proprio.
a. "rial re9uires e8amination of a long account of either side
b. "aking of an account is necessary for the information of the court before
/udgment or for carrying a /udgment order into effect
c. 'uestion of fact, other than upon the pleadings, arises upon motion or otherwise,
in any stage of the case.
RULE 33 DEMURRER TO EVIDENCE
,emurrer to evidence is made by the defendant after the plaintiff has completed
the presentation of his evidence where the defendant moves for dismissal on the ground
that upon the facts and the law the plaintiff has shown no right to relief.
1. &f motion denied defendant has the right to present evidence
2. &f motion granted, but reversed on appeal defendant deemed to have waived the
right to present evidence.
RULE 34 "UDGMENT ON THE PLEADINGS
1. +udgment on the 6leadings is proper.
a. &f answer fails to tender an issue; or
b. &f answer otherwise admits the material allegations of the adverse party?s
pleading
"hen court may, on motion of that party, direct /udgment on the pleadings
2. 4owever, the material facts alleged in the complaint shall always be proved in
actions for.
a. ,eclaration of nullity of marriage
b. -nnulment of marriage
c. $egal separation
R ULE 35 SUMMAR$ "UDGMENTS
)ummary /udgment.
1. 6roper if no genuine issue as to any material fact @except as to damages
recoverableC and if moving party is entitled to a /udgment as a matter of law
2. ;ased not only on pleadings but also on affidavits, deposition, and admissions of the
parties showing that, except as to the amount of damages, there is no genuine issue.
1. 3otion shall be served at least 1B days before the time specified for the hearing.
2. 3ay be asked for by a party seeking to recover upon a claim, counterclaim, cross<
claim or to obtain a declaratory relief.
:. -lthough Rule does not specifically provide, also unavailable in actions for
annulment of and declaration of nullity of marriage, and for legal separation since
)ec. 1 refers to actions =to recover upon a claim>, or to recover a debt or a li9uidated
demand for money, or =to obtain declaratory relief.>
A. +udgment on the pleadings and summary /udgment distinguished.
"&'()*+, -+ ,.* /0*1'2+(3 S&))145 6&'()*+,
6roper when there is no genuine issue
between the parties
6roper even if there is an issue as to the
damages recoverable
;ased e8clusively on the pleadings without
introduction of evidence
;ased not only on pleadings but also on
affidavits, depositions and admissions of
the parties
-vailable in any action, except the 1
e8ceptions
6roper only in actions to recover a debt, or
for a li9uidated sum of money, or for
declaratory relief
3otions for summary /udgment may be filed by the claimant or by the defending
party. "he defending party may file such motion, pursuant to Rule 1:, L2=at any time>,
as distinguished from L1 where the claimant may file the motion at any time after the
answer is filed.
RULE 36 "UDGMENTS! FINAL ORDERS AND ENTR$ THEREOF
1. "he date of the finality of the /udgment or final order shall be deemed to be the date
of its entry. "he /udgment or final order shall be entered by the clerk in the book of
entries of /udgments if no appeal or motion for new trial or consideration is filed
within 1: days
2. )everal +udgments
&n action against several defendants, the court may render /udgment against
one or more of them, leaving the action to proceed against the others.
1. )eparate /udgments
+udgment rendered to dispose of one of the several claims for relief
presented in an action, made 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 sub/ect matter of the claim, which terminates such claim.
-ction shall proceed as to other claims
RULE 37 NEW TRIAL OR RECONSIDERATION
1. 3otion for new trial or reconsideration filed within 1: days from notice of /udgment
and resolved by the court within 1B days from submission for resolution.
2. Drounds. 3otion for ew "rial
a. *raud, accident, mistake, or e8cusable negligence;
b. ewly discovered evidence
Re9uisites.
i. ,iscovered after trial
ii. Could not have been discovered and produced at trial despite the
e8ercise of reasonable diligence
iii. &f presented, could probably alter the result of the action
1. Drounds. 3otion for Reconsideration
a. ,amages awarded are e8cessive
b. #vidence is insufficient to /ustify the decision or final order
c. ,ecision is contrary to law
2. 3otion for new trial shall be in writing, and supported by affidavits of merit if the
ground is *-3#; for newly<discovered evidence, it must be supported by affidavits of
witnesses by whom such evidence is e8pected to be given, or by duly authenticated
documents to be introduced.
3otion for reconsideration shall specifically point out the findings or
conclusions of the /udgment which are unsupported by evidence or contrary to law,
with e8press reference to the testimonial or documentary evidence or the provisions
of law alleged to be contrary to such findings.
:. -ro forma motion for new trial or reconsideration shall not toll the period for appeal.
A. o second motion for reconsideration allowed. )econd motion for new trial must be
based on a ground not e8isting or available when the first motion was made, which
may be filed during the remainder of the 1:<day period.
RULE 38 RELIEF FROM "UDGMENTS! ORDERS! OR OTHER PROCEEDINGS
1. 6etition for relief from /udgment filed within AB days after learning of /udgment and
not more than A months after such /udgment
3ust be supported by affidavit showing the *-3# and the facts constituting the
petitioner?s good or substantial cause of action or defense
2. 6arty who has filed a timely motion for new trial cannot file a petition for relief after
the former is denied. "he two remedies are e8clusive of one another.
1. Drounds.
a. +udgment or final order entered against a party by *-3#; or
b. +udgment or final order is rendered and party has been prevented by *-3# from
taking an appeal
*or fraud to be e8trinsic, the losing party must never have had a chance to
controvert the adverse party?s evidence.
(niform procedure for relief from /udgments of 3"C and R"C
2. -fter petition is filed, court shall order adverse parties to answer within 1: days from
receipt. -fter answer is filed or e8piration of period therefor, court shall hear the
petition.
:. &f granted, /udgment set aside and court shall proceed as if timely motion for new trial
has been granted; if granted against denial of appeal, court shall give due course to
appeal.
RULE 39 E%ECUTION! SATISFACTION AND EFFECT OF "UDGMENTS
1. #8ecution as a matter of right
!n motion with notice, upon a /udgment or order that disposes of the action or
proceeding upon the e8piration of the period to appeal therefrom if no appeal has
been duly perfected.
*or so long as there is a certificate of entry of /udgment, e8ecution may already
be issued by the court of origin or directed to do so by the C-.
2. ,iscretionary e8ecution pending period to appeal or during appeal; may issue only
upon good reasons to be stated in a special order after hearing.
a. ;y trial court even after the perfection of the appeal for so long as the motion
for e8ecution was filed while the "C has /urisdiction over the case and is in
possession or the records, upon motion of the prevailing party with notice to the
adverse party
b. -ppellate court after the "C has lost /urisdiction
#8ample.
6 receives /udgment. +une 1
, receives /udgment. +une 1
, files notice of appeal. +une :
0hen does trial court lose /urisdictionM +une 1F
;(", if 6 also files a notice of appeal on +une 1B, trial court loses /urisdiction on
that date.
#8ecution with respect to appealed cases< there is no need to await remand of
the records.
#8ecution with respect to conse9uential and e8emplary damages should be
postponed until such time as the merits of the case have been finally determined
in the regular appeal, as the amounts remain uncertain and indefinite pending
resolution.
1. a. 3otion for e8ecution of final and e8ecutory /udgment should be served on
adverse party and set for hearing;
b. &n case of appeal, motion is filed with court of origin supported by certified true
copies of final /udgment of appellate court.
c. -ppellate court may on motion order court of origin to issue writ of e8ecution @)C
Circular o. 22<H2, 2K1FKH2C
2. +udgments !" stayed by appeal @immediately e8ecutory, unless court provides
otherwiseC
a. -ctions for in/unction
b. Receivership
c. -ccounting
d. )upport
e. +udgments declared immediately e8ecutory
:. - final and e8ecutory /udgment may be e8ecuted on motion within : years from
entry. 3ay be revived and enforced by action after lapse of : years but before 1B
years from entry. Revived /udgment may be enforced by motion within : years from
entry and thereafter by action before barred by statute of limitations file motion
within 1B years from the finality of the revived /udgment.
A. #8ecution in case of party?s death.
a. ,eath of /udgment obligee < application of his e8ecutor or administrator or
successor<in<interest
b. ,eath of /udgment obligor <
i. -gainst his e8ecutor, etc. if the /udgment be for recovery of real or personal
property or the enforcement of a lien thereon.
ii. &f death after e8ecution is actually levied upon his property, it may be sold for
satisfaction of the obligation.
&f the /udgment obligor dies after the entry but before levy, e8ecution will issue if it
be for the recovery of real or personal property. 4owever, if /udgment is for a
sum of money, and the /udgment obligor dies before levy, such /udgment cannot
be enforced by writ of e8ecution but must be filed as a claim against his estate.
G. 0rit of e8ecution.
a. )hall issue in the name of the Republic of the 6hils from court which granted the
motion
b. )tate the name of the court, case number and title, dispositive portion of the
/udgment order
c. Re9uire the sheriff or other proper officer to whom it is directed to enforce the writ
according to its terms
F. 3anner of e8ecuting writ.
a. &f /udgment against property of the /udgment obligor out of real or personal
property with interest
b. &f against his real or personal property in the hands of the personal
representatives, heirs, devisees, legatees, tenants, or trustees of the /udgment
obligor out of that property, with interest
c. &f for sale of real or personal property to sell property, describing it and apply
the proceeds in conformity with /udgment.
d. &f for delivery of possession of property deliver possession of the same to the
party entitled to it, describing it, and to satisfy any costs, damages, rents, or
profits covered by the /udgment out of the personal property of the person
against whom it was rendered, and out of real property if sufficient personal
property cannot be found.
e. &n all cases, writ of e8ecution shall specifically state the amount of the interest,
costs, damages, rents, or profits due as of date of issuance of writ, aside from
principal obligation.
+udgment obligor is given option to choose which property may be levied on
sufficient to satisfy the /udgment.
H. 6roperty e8empt from e8ecution
a. *amily home as provided by law, homestead in which he resides, and land
necessarily used in connection therewith;
b. "ools and implements used in trade, employment, or livelihood;
c. 1 horses, cows, or carabaos or other beasts of burden used in his ordinary
occupation;
d. ecessary clothing and articles for ordinary personal use, e8cluding /ewelry;
e. 4ousehold furniture and utensils necessary for housekeeping not e8ceeding
61,BBB;
f. 6rofessional libraries and e9uipment of /udges, lawyers, physicians, etc. not
e8ceeding 61BB,BBB;
g. !ne fishing boat and accessories not more than 61BB,BBB owned by a fisherman
and by which he earns his living;
h. )alaries, wages, or earnings for personal services within the 2 months preceding
the levy which are necessary for the support of the family;
i. $ettered gravestones;
/. 3oney, benefits, annuities accruing or in any manner growing out of any life
insurance;
k. Right to receive legal support or any pension or gratuity from the government;
l. 6roperties especially e8empted by law.
#8emption does not apply if e8ecution upon a /udgment for its purchase price or
for foreclosure of mortgage.
Right of #8emption is a personal right granted to the /udgment creditor. "he
sheriff may thus not claim it.
1B. "hird party claims.
a. 6urpose of bond filed by /udgment obligee or plaintiff is to indemnify third<party
claimant, not the sheriff or officer;
b. -mount of bond not less than value of property levied on;
c. )heriff not liable for damages if bond is filed;
d. +udgment obligee or plaintiff may claim damages against third<party claimant in
the same or a separate action.
e. 1
rd
6arty claimant may vindicate his claim to property levied in a separate action
because intervention is no longer allowed since /udgment already e8ecutory; in
preliminary attachment and replevin, 1
rd
party claimant may vindicate his claim to
the property by intervention since the action is still pending.
11. 0ho may redeem real property sold.
a. +udgment obligor or his successor in interest in the whole or any part of the
property;
b. Creditor having lien by virtue of an attachment, /udgment, or mortgage on the
property sold subse9uent to the lien under which the property was sold.
@Redeeming creditor is termed a redemptionerC.
12. +udgment obligor has one year from the date of the registration of the certificate of
sale to redeem property sold by paying the purchaser the amount of his purchase,
with 1N per month interest plus any assessments or ta8es which he may have paid
thereon after purchase with interest on said amount at 1N per month.
Redemptioners have one year to redeem from the date of registration of the
certificate of sale. "hey may also redeem beyond one<year period within AB days
after the last redemption, with 2 N interest on the sum to be paid on the last
redemption. "he /udgment obligor?s right to redeem within AB days from last
redemption is limited to the one<year period, beyond which he can no longer redeem.
6urchaser or redemptioner not entitled to receive rents and income of property
sold inasmuch as these belong to the /udgment obligor until the e8piration of the
period of redemption.
11. #ffect of /udgment or final orders
a. &n case of /udgment against a specified thing, probate of will, or administration of
estate or legal condition or status, it is conclusive on the title or condition, status,
relationship, will or administration.
b. &n other casesKmatters directly ad/udged, or matters relating thereto that could
have been raised subse9uent to commencement of action, /udgment is
conclusive between parties and their successors in interest.
c. &n any other litigation, that only is deemed to have been ad/udged in a former
/udgment or which was actually and necessarily included therein.
12. #ffect of foreign /udgment
a. +udgment upon a specific thing, conclusive upon title to the thing;
b. &f against a person, /udgment is presumptive evidence of a right as between the
parties and their successors in interest;
1:. 0hen foreign /udgment may be repelled
a. #vidence of want of /urisdiction
b. 0ant of notice to party
c. Collusion
d. *raud
e. Clear mistake of law.
1A. Re9uisites for res (udicata
a. *inal former /udgment
b. +udgment is on the merits
c. Rendered by a court of competent /urisdiction
d. ;etween first and second actions, identity of sub/ect matter, parties and cause of
action.
1G. 0hen 9uashal of writ of e8ecution proper
a. &mproperly issued
b. ,efective in substance
c. &ssued against the wrong party
d. +udgment was already satisfied
e. &ssued without authority
f. Change of the situation of the parties renders e8ecution ine9uitable
g. Controversy was never validly submitted to the court
h. 0rit varies the terms of the /udgment
i. 0rit sought to be enforced against property e8empt from e8ecution
/. -mbiguity in the terms of the /udgment
1F. )6#C&-$ +(,D3#" < re9uires the performance of any other act than the payment
of money or the sale or delivery of real or personal property.
1H. Remedies against e8ecutory /udgments or orders.
a. 6etition for relief
b. ,irect attack
c. Collateral attack < /udgment is null on its face or court had no /urisdiction
2B. 0hen court may order e8ecution even before an e8ecutory /udgment and pending an
appeal
a. $apse of time would make the ultimate /udgment ineffective;
b. -ppeal is clearly dilatory;
c. +udgment is for support and the beneficiary is in need thereof;
d. -rticles sub/ect of the case are perishable;
e. ,efendants are e8hausting their income and have no other property aside from
the proceeds from the subdivision of lots sub/ect of the action;
f. 3ovants were in e8treme need of the premises sub/ect of the suit and the bond
to answer for damages in case of reversal on appeal @supersedeas bondC was
posted by them;
g. +udgment debtor is in imminent danger of insolvency;
h. 6revailing party is of advanced age and in a precarious state of health and the
right in the /udgment is non<transmissible being for support;
i. 6revailing party posts sufficient bond to answer for damages in case of reversal
of /udgment
;ut in most cases, the mere filing of a bond is not sufficient /ustification for
discretionary e8ecution.
21. !rder granting writ of e8ecution !$7 appealable when.
a. !rder varies terms of the /udgment
b. 0hen vague and court renders what is believed to be wrong interpretation.
22. 3arnishment act of appropriation by the sheriff if the property involved is money,
stocks, or other incorporeal property in the hands of third persons; merely sets apart
such funds but does not constitute the creditor the owner of the garnished property.
21. 6ersons dis9ualified from participating in the e8ecution sale.
a. !fficer conducting the e8ecution sale or his deputy;
b. Duardian with respect to the property under his guardianship;
c. -gents, the property entrusted to them, unless with principal?s consent;
d. #8ecutors and administrators, the property of the estate under administration;
e. 6ublic officers and employees, the property of the )tate or any subdivision
thereof, or any D!CC, the administration of which has been entrusted to them;
f. +ustices, /udges, prosecuting attorneys, clerks of courts, and other officers and
employees connected with the administration of /ustice, the property and rights in
litigation or levied upon an e8ecution before the court within whose /urisdiction or
territory they e8ercise their respective functions;
g. $awyers, the property and rights which may be the sub/ect of litigation in which
they take part by virtue of their profession;
h. !thers specifically dis9ualified by law. @e.g. seller of goods who e8ercise right of
resale of goodsC.
RULE 40 APPEAL FROM MTC TO RTC
1. -ppeal from /udgment or final order of 3"C taken to R"C e8ercising /urisdiction over
the area to which 3"C pertains. *ile notice of appeal with the 3"C which rendered
decision appealed from within 1: days after notice of such /udgment.
2. Record on appeal is filed within 1B days and re9uired only for special proceedings
1. -ppellate docket fees paid to clerk of court of 3"C < payment not a condition
precedent for perfection of appeal but must nonetheless be paid within the period for
taking appeal;
2. 6rocedure for appeal from cases dismissed without trial for lack of /urisdiction.
a. &f affirmed because the 3"C has no /urisdiction, R"C will try case on the merits
as if it has original /urisdiction;
b. &f reversed, the case shall be remanded to the 3"C;
c. &f the first level court tried the case on the merits without /urisdiction, the R"C
should not dismiss the case but shall decide it in the e8ercise of original
/urisdiction.
RULE 41 APPEAL FROM THE RTC
1. -ppeal may be taken from a /udgment or final order that completely disposes of the
case or of a particular matter therein.
2. o appeal may be taken from.
a. !rder denying a motion for new trial or recon;
b. !rder denying a petition for relief or any similar motion seeking relief from
/udgment;
c. &nterlocutory order;
d. !rder disallowing or dismissing an appeal;
e. !rder denying a motion to set aside a /udgment by consent, confession,
compromise on the ground of fraud, mistake, or duress, or any other ground
vitiating consent;
f. !rder of e8ecution;
ot appealable because e8ecution is only the result of the /udgment. &f order
of e8ecution is not in accord with the dispositive portion, remedy is certiorari
under Rule A:.
g. +udgment or final order for or against one or more of several parties or in
separate claims, while the main case is pending, unless the court allows an
appeal therefrom;
h. !rder dismissing an action without pre/udice;
&n all these cases, aggrieved party may file an appropriate civil action under Rule A:.
1. !rdinary appeal from R"C @in the e8ercise of original /urisdictionC to C- is by filing
notice of appeal with the R"C within 1: days from notice of its /udgment. Record on
appeal re9uired only for special proceedings and where multiple appeals allowed
filed within 1B days.
2. 3otion for e8tension of time to file a motion for new trial or reconsideration is
prohibited.
:. Contents of otice on appeal.
a. ames of the parties to the appeal;
b. )pecify /udgment or final order or part thereof appealed from;
c. Court to which the appeal is being taken;
d. 3aterial dates showing timeliness of appeal;
A. Contents of Record on appeal.
a. *ull names of all parties to the proceedings shall be stated in the caption;
b. &nclude /udgment or final order from which appeal taken;
c. &n chronological order, copies of only such pleadings, petitions, etc. and all
interlocutory orders as are related to the appealed /udgment;
d. ,ata showing that appeal perfected in time < material data rule;
e. &f an issue of fact is to be raised, include by reference all the evidence, oral or
documentary, taken upon the issues involved.
G. -ppeal from decision of R"C in appellate /urisdiction is by petition for review filed
with C-.
F. 0here only 9uestions of law are raised, by petition for review on certiorari with )C.
H. otice of -ppeal and Record of -ppeal distinguished.
N-,27* -8 A//*10 R*7-4' -8 A//*10
6arty?s appeal by notice of appeal deemed
perfected as to him upon the filing of the
notice of appeal in due time
,eemed perfected as to appellant with
respect to the sub/ect matter upon the
approval of the record on appeal filed in
due time
Court loses /urisdiction over case upon
perfection of the appeals filed in due time
and e8piration of time to appeal of other
parties
Court loses /urisdiction only over sub/ect
matter upon approval of records on appeal
filed in due time and e8piration of the time
to appeal of other parties.
1B. *ailure to pay appellate docket fees within the reglamentary period is ground for
dismissal of appeal.
11. Deneral Rule. -n ordinary appeal stays the e8ecution of a /udgment
"xceptions# a. ,ecisions of 9uasi</udicial body appealed to the C-
b. #8ecutions pending appeal
c. Cases covered by )ummary 6rocedure
RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA
1. *orm and contents of petition for review @from R"C to C-C
&n G legible copies.
a. *ull names of parties to case, without impleading the lower courts or /udges
thereof;
b. &ndicate specific material dates showing it was filed on time;
c. Concise statement of matters involved, issues raised, specification of errors of
fact or law, or both allegedly committed by the R"C, and the reasons or
arguments relied upon for the allowance of the appeal;
d. -ccompanied by clearly legible duplicate originals or true copies of the
/udgments or final order of both 3"C and R"C;
e. Certification under oath of non<forum shopping.
2. Contents of comment
&n G legible copies, accompanied by certified true copies of material portions of
record and other supporting papers.
a. )tate whether or not appellee accepts the statement of matters involved in the
petition;
b. 6oint out such insufficiencies or inaccuracies as he believes e8ists in petitioner?s
statement of matters;
c. )tate reasons why petition should not be give due course.
1. C- may.
a. Re9uire respondent to file a comment; or
b. ,ismiss the petition if it finds.
i. 6atently without merit
ii. 6rosecuted manifestly for delay
iii. 'uestions raised are to insubstantial to re9uire consideration

RULE 43 APPEALS FROM THE CTA AND 9UASI#"UDICIAL AGENCIES TO THE CA
1. -ppeals from /udgments and final orders of the Court of "a8 -ppeals and 9uasi<
/udicial agencies in e8ercise of 9uasi</udicial functions @unless otherwise provided by
law and the $abor Code O$RC decisionsPC shall be by petition for review to the C-,
to be taken within 1: days from notice of award or /udgment or from notice of the
denial of the motion for reconsideration. !nly 1 3otion for reconsideration allowed
2. 'uasi</udicial agencies covered.
a. Civil )ervice Commission;
b. Central ;oard of -ssessment -ppeals;
c. )ecurities and #8change Commission;
d. !ffice of the 6resident;
e. $and Registration -uthority;
f. )ocial )ecurity Commission;
g. Civil -eronautics ;oard;
h. ;ureau of 6atents, "rademarks and "echnology "ransfer;
i. ational #lectrification -dministration;
/. #nergy Regulatory ;oard;
k. ational "elecommunications Commission;
l. ,epartment of -grarian Reform under R- o. AA:G;
m. D)&);
n. #mployees Compensation Commission;
o. -gricultural &nventions ;oard;
p. &nsurance Commission;
9. Construction &ndustry -rbitration Commission;
r. 5oluntary arbitrators
St. Martin4s /uneral 5ome vs. *RC < ,#C&)&!) !* "4# $RC !R&D&-$
-C"&! *!R C#R"&!R-R& (,#R R($# A: *&$#, 0&"4 "4# C-, !" )C
/abian vs. %esierto -ppeals from decisions of the !ffice of the !mbudsman in
administrative disciplinary cases should be taken to the C- under Rule 21.
-ccording to -.3. no. HH<2<B2<)C @promulgated *ebruary H, 1HHHC, any
appeal by way of petition for review from a decision, final resolution or order
of the !mbudsman, or special civil action relative to such decision, filed with
the )C after 3arch 1:, 1HHH shall no longer be referred to the C-, but shall
be dismissed.
RULE 45 APPEAL $ CERTIORARI TO THE SUPREME COURT
1. 'uestion of $aw e8ists when doubt or difference arises as to what the law is,
based on a certain state of facts
'uestion of *act e8ists when doubt or difference arises as to the truth or the
falsehood of alleged facts
2. *indings of fact of the C- may be reviewed by the )C on appeal by certiorari when.
a. "he conclusion is a finding grounded entirely on speculations, surmises, or
con/ectures;
b. "he inference made is manifestly mistaken, absurd, or impossible;
c. "here is grave abuse of discretion;
d. "he /udgment is based on misapprehension of facts;
e. *indings of fact of trial court and C- are conflicting;
f. "he C-, in making its findings, went beyond the issues of the case and the same
is contrary to the admissions made;
g. C- manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would /ustify a different conclusion.
1. Certiorari as mode of appeal.
*rom /udgment or final order of the C-, )andiganbayan, R"C on pure
9uestions of law, or other courts whenever authori%ed by law, by filing a petition for
review on certiorari with the )C within 1: days from notice of /udgment.
2. Rule 2: and Rule A: distinguished.
R&0* 45 R&0* 65
o need for 3otion for Recon 3otion for Recon generally re9uired
Relates to final /udgments -pplies to interlocutory orders rendered in
e8cessKlack of /urisdiction
-n appeal ot an appeal in the strict sense
1: days from notice of /udgment AB days from notice of /udgment
6ho vs. Camacho. -n R"C /udge has no right to disapprove a notice of appeal
on the ground that the issues raised involve a pure 9uestion of law, and that the
mode of appeal is erroneous. "hat is the prerogative of the C-, not the R"C
/udge. - notice of appeal need not be approved by the /udge, unlike a record on
appeal.
RULE 47 ANNULMENT OF "UDGMENTS OR FINAL ORDERS AND RESOLUTIONS
1. Drounds for annulment of /udgment of R"C in civil cases.
a. #8trinsic fraud not available as a ground if availed of earlier in a motion for new
trial or petition for relief
b. $ack of /urisdiction.
2. 6etition for annulment available only if ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies no longer available through no fault of the
6etitioner.
1. 6eriods.
a. *or e8trinsic fraud four years from discovery;
b. $ack of /urisdiction must be filed before action barred by laches.
2. #ffects of /udgment of annulment gives the C- authority to order the trial court on
motion to try the case if the ground for annulment is e8trinsic fraud, but not if it is lack
of /urisdiction.
6rescriptive period for refiling the original action is suspended unless the
e8trinsic fraud is attributable to the plaintiff in the original action.
RULE 50 DISMISSAL OF APPEAL
1. Drounds for dismissal of appeal by the C-.
a. *ailure of the record on appeal to show on its face that the appeal was taken
within the reglamentary period;
b. *ailure to file the notice of appeal or record on appeal within the period;
c. *ailure of the appellant to pay the docket and other lawful fees;
d. (nauthori%ed alterations, omissions, or additions in the approved record on
appeal;
e. *ailure of the appellant to serve and file the re9uired number of copies of his brief
or memorandum within the time provided;
f. -bsence of specific assignment of errors in appellants brief or page references to
the record;
g. *ailure of the appellant to take necessary steps for the completion or correction
of the record within the time limited by the order;
h. *ailure of appellant to appear at the preliminary conference or to comply with
orders, circulars, or directives of the court without /ustifiable cause
i. +udgment or order appealed from is not appealable.
RULE 51 "UDGMENT
1. 3emorandum decisions are permitted in the C-.
2. -fter /udgment or final resolution of the C- and dissenting or separate opinions if
any, are signed by the +ustices taking part, they shall be delivered for filing to the
clerk who shall indicate thereon the date of promulgation and cause true copies to be
served upon parties or counsel.
1. ,ate when /udgment or final resolution becomes e8ecutory shall be deemed as date
of entry.
RULE 56 PROCEDURE IN THE SUPREME COURT
1. !riginal cases cogni%able e8clusive list.
a. 6etitions for certiorari, prohibition, mandamus, +uo warranto$ habeas corpus;
b. ,isciplinary proceedings against /udges and attorneys;
c. Cases affecting ambassadors, other public ministers, and consuls.
2. -n appeal to )C can only be taken by petition for review on certiorari, except in
criminal cases where the penalty imposed is death, reclusion perpetua$ or life
imprisonment.
1. Drounds for dismissal of appeal by )C
a. *ailure to take appeal within the reglementary period;
b. $ack of merit in the petition;
c. *ailure to pay the re9uisite docket fee and other lawful fees or to make deposit
for costs;
d. *ailure to comply with the re9uirements regarding proof of service and contents
of and the documents which should accompany the petition;
e. *ailure to comply with any circular, directive or order of the )C without /ustifiable
cause;
f. #rror in choice or mode of appeal
g. Case is not appealable to the )C.
2. ,iscretionary upon )C @and C-C to call for preliminary conference similar to pre<trial.
:. Deneral Rule. -ppeal to )C by notice of appeal shall be dismissed.
"xception# &n criminal cases where the penalty imposed is life imprisonment, or when
a lesser penalty is imposed but involving offenses committed on the same
occasion or arising out of the same occurrence which gave rise to the
more serious offense for which the penalty of death or life imprisonment is
imposed @)ection 1, Rule 122C
A. -ppeal by certiorari from R"C to )C submitting issues of fact may be referred to the
C- for decision or appropriate action, without pre/udice to considerations on whether
or not to give due course to the appeal as provided in Rule 2:.
PROVISIONAL REMEDIES
6rovisional remedies @ancillaryKau8iliaryC
0rits and processes available during the pendency of the action which may be
resorted to by a litigant to preserve and protect rights and interests therein pending
rendition, and for the purpose of ultimately affecting a final /udgment in the case.
6R!5&)&!-$ < constituting temporary measures availed of during the pendency of
the action.
-C&$$&-R7 < incidents in and dependent on the result of the main action.
RULE 57 PRELIMINAR$ ATTACHMENT
1. 6reliminary -ttachment
a. -vailable even if the recovery of personal property is only an incidental relief
sought in the action;
b. 3ay be resorted to even if the personal property is in the custody of a third
person;
c. #8tends to all kinds of property, real or personal or incorporeal;
d. "o recover possession of personal property un/ustly detained, presupposes that
the same is being concealed, removed, or disposed of to prevent its being found
or taken by the applicant;
e. Can still be resorted to even if the property is in custodia legis, as long as the
property belongs to the defendant, or is one in which he has proprietary interests,
-, with permission of the court
2. Drounds
a. Recovery of specified amount of money and damages, except moral or
e8emplary, where party is about to depart from the 6hils with intent to defraud
creditors;
b. -ction for money or property embe%%led or for willful violation of duty by public
officers, officers of corporation, agent, or fiduciary;
c. Recovery of possession of property @both real and personalC un/ustly detained,
when the property is concealed or disposed of to prevent is being found or taken;
d. -ction against party guilty of fraud in contracting the debt or incurring the
obligation or in the performance thereof;
e. -ction against party who is concealing or disposing of property, or is about to do
so, with intent to defraud creditors;
f. -ction against party who is not a resident of the 6hils and cannot be found
therein or upon who service by publication can be made.
1. 6R&C&6$# !* 6R&!R !R C!"#36!R-R7 +(R&),&C"&!.
#nforcement of writ of preliminary attachment must be preceded by or
simultaneously accompanied by service of summons, copy of complaint, application
and affidavits for the attachment and the bond upon the adverse party; ;(" the
re9uirement of prior or contemporaneous service of summons shall not apply where
the summons could not be served despite diligent efforts, or the defendant is a
resident of the 6hils temporarily absent therefrom, or the defendant is a non<resident
of the 6hils or the action is in rem or +uasi in rem.
2. 0hen preliminary attachment is discharged
a. ,ebtor posts a counterbond or makes re9uisite cash deposit< if attachment to be
discharged is with respect to particular property, counterbond or deposit shall be
e9ual to the value of the property as determined by the court; in all other cases,
amount of counterbond should be e9ual to the amount fi8ed in the order of
attachment.
C-)4 ,#6!)&" !R C!("#R;!, )4-$$ )#C(R# "4# 6-73#" !*
-7 +(,D3#" "4-" -""-C4&D 6-R"7 3-7 R#C!5#R
b. -pplicant?s bond is insufficient or sureties fail to /ustify;
c. -ttachment was improperly or irregularly issued;
d. 6roperty attached is e8empt from e8ecution;
e. +udgment is rendered against attaching party;
f. -ttachment is e8cessive discharge is with respect to the e8cess
:. -pplication for discharge may only be filed with the court where the action is pending
and may be filed even before enforcement of the writ so long as there has been an
order of attachment.
A. 0hen to apply for damages against the attachment bond
a. ;efore trial;
b. ;efore appeal perfected;
c. ;efore /udgment becomes e8ecutory;
d. &n the appellate court for damages pending appeal, before /udgment becomes
e8ecutory.
G. 0hen /udgment becomes e8ecutory, sureties on counterbond to lift attachment are
charged and can be held liable for the amount of /udgment and costs upon notice
and summary hearing. "here is no need to first e8ecute /udgment against the
/udgment obligor before proceeding against sureties.
F. Claims for damages cannot be sub/ect of independent action except.
a. 0hen principal case is dismissed by the trial court for lack of /urisdiction without
giving the claiming party opportunity to prove claim for damages;
b. 0hen damages sustained by a third person not a party to the action.
RULE 58 PRELIMINAR$ IN"UNCTION
1. 6reliminary in/unction distinguished from 6rohibition
P4*02)2+145 I+6&+7,2-+ P4-.2:2,2-+
Denerally directed against party to the
action but may be against any person
,irected against a court, tribunal, or person
e8ercising /udicial powers
,oes !" involve the /urisdiction of the
court
3ay be on the ground that the court
against whom the writ is sought acted
without or in e8cess of /urisdiction;
3ay be main action itself or /ust a
provisional remedy in the main action
-lways a main action
2. Drounds for 6reliminary &n/unction
a. 6laintiff is entitled to relief sought which consists in restraining or re9uiring the
performance of acts @latter is preliminary mandatory in/unctionC;
b. "he commission of acts or non<performance during pendency of litigation would
probably work in/ustice to the plaintiff;
c. ,efendant is doing or about to do an act violating plaintiff?s rights respecting the
sub/ect of the action and tending to render /udgment ineffectual.
1. &n/unction may be refused or dissolved when.
a. Complaint is insufficient;
b. ,efendant is permitted to post a counterbond it appearing that he would sustain
great and irreparable in/ury if in/unction granted or continued while plaintiff can be
fully compensated;
c. 6laintiff?s bond is insufficient or defective
2. o 6reliminary &n/unction or "R! may be issued without posting of bond and notice
to adverse party and hearing.
:. 6R&C&6$# !* 6R&!R !R C!"#36!R-R7 +(R&),&C"&!.
0hen an application for a writ of preliminary in/unction or a temporary restraining
order is included in a complaint or any initiatory pleading, the case, if filed in a
multiple<sala court, shall be raffled only after !"&C# to and & "4#
6R#)#C# of the adverse party or the person to be en/oined. &n any event,
such notice shall be preceded, or contemporaneously accompanied by service of
summons, together with a copy of the complaint and the applicant?s affidavit and
bond, upon the adverse party in the 6hils; ;(" the re9uirement of prior or
contemporaneous service of summons shall !" apply where the summons
could not be served despite diligent efforts, or the defendant is a resident of the
6hils temporarily absent therefrom, or the defendant is a non<resident of the 6hils
%ifference with principle in preliminary attachment &n attachment, the principle
applies only in the implementation of the writ, while in applications for in/unction
or "R!, this principle applies before the raffle and issuance of the writs or "R!.
A. "R! good for only 2B days from service; AB days for C-; until further orders from
)C.
G. "R! can be issued ex parte only if matter of grave urgency and plaintiff will suffer
grave in/ustice and irreparable in/ury. Dood for G2 hours from issuance, within which
/udge must comply with service of summons, complaint, affidavit and bond, and hold
summary hearing to determine whether "R! should be e8tended for 2B days. &n no
case can "R! be longer than 2B days including G2 hours.
F. o "R!, preliminary in/unction or preliminary mandatory in/unction may issue
against the government in cases involving implementation of government
infrastructure pro/ects. @3arcia vs. 'urgos, reiterated in -dministrative Circular no. G<
HH, promulgated +une 2:,1HHHC
RULE 59 RECEIVERSHIP
1. 0hen receiver may be appointed.
a. 6arty has an interest in the property or fund sub/ect of the action and such is in
danger of being lost, removed, or materially in/ured;
b. -ction by mortgagee for foreclosure of mortgage when the property is in danger
of being wasted or materially in/ured and that its value is probably insufficient to
discharge the mortgage debt, !R that the parties have stipulated in the contract
of mortgage;
c. -fter /udgment, to preserve the property during the pendency of the appeal, or to
dispose of it, or to aid in e8ecution when e8ecution has been returned unsatisfied
or the /udgment debtor refuses to apply his property to satisfy /udgment, or to
carry out the /udgment.
d. 0hen appointing one is the most convenient and feasible means to preserve,
administer, or dispose of the property in litigation.
2. 0hen receivership may be deniedKlifted
a. -ppointment sought is without sufficient cause;
b. -dverse party files sufficient bond for damages;
c. -pplicant or receiver?s bond is insufficient.
1. ;oth the applicant for the receivership and the receiver appointed must file separate
bonds.
2. &n claims against the bond, it shall be filed, ascertained and granted under the same
procedure as )ection 2B, Rule :G, whether is be damages against the applicant?s
bond for the unlawful appointment of the receiver or for enforcing the liability of the
sureties of the receiver?s bond by reason of the receiver?s management @in the latter
case, no longer need to file a separate actionC.
RULE 60 REPLEVIN
1. Replevin
a. -vailable only where the principal relief sought in the action is the recovery of
possession of personal property;
b. Can be sought only where the defendant is in the actual or constructive
possession of the personal property involved.
c. #8tends only to personal property capable of manual delivery;
d. -vailable to recover personal property even if the same is !" being concealed,
removed, or disposed of;
e. Cannot be availed of if property is in custodia legis, as where is it under
attachment, or was sei%ed under a search warrant or distrained for ta8
assessment.
2. ,efendant entitled to return of property taken under writ if.
a. 4e seasonably posts redelivery bond
b. 6laintiff?s bond is insufficient or defective
c. 6roperty is not delivered to plaintiff for any reason.
Replevin bond is only intended to indemnify defendant against any loss that he
may suffer by being compelled to surrender the possession of the disputed
property pending trial of the action. "hus, surety not liable for payment of
/udgment for damages rendered against plaintiff on a counterclaim for punitive
damages for fraudulent or wrongful acts committed by the plaintiffs which are
unconnected with the defendant?s deprivation of possession by the plaintiff.
SPECIAL CIVIL ACTIONS
1. "ypes of )pecial Civil -ctions
a. 3andamus
b. &nterpleader
c. Certiorari
d. Contempt
e. 6rohibition
f. #minent ,omain
g. ,eclaratory Relief
h. 'uo warranto
i. 6artition of real estate
/. *oreclosure of mortgage
k. (nlawful detainer
l. *orcible #ntry
RULE 62 INTERPLEADER
1. &nterpleader
a. !riginal action
b. 6resupposes that the plaintiff has no interest in the sub/ect matter of the action or
has an interest therein which, in whole or part, is not disputed by the other parties
to the action;
c. Complaint in interpleader must be answered 1: days from service of summons
RULE 63 DECLARATOR$ RELIEF AND SIMILAR REMEDIES
1. Re9uisites for action for declaratory relief.
a. )ub/ect matter of controversy is a deed, will, contract, or other written instrument,
statute, e8ecutive order, or regulation, or ordinance;
Court may refuse to ad/udicate where decision would not terminate the
uncertainty or controversy which gave rise to the action !R where the
declaration is not necessary and proper at the time;
b. "erms and validity thereof are doubtful and re9uire /udicial construction;
c. o breach of the document, otherwise ordinary civil action is the remedy;
3ust be before breach is committed, as in the case where the petitioner paid
under protest the fees imposed by an ordinance. ,eclaratory relief still
proper because the applicability of the ordinance to future transactions still
remains to be resolved, although the matter could be threshed out in an
ordinary suit for the recovery of the fees paid.
d. "here is an actual /usticiable controversy between persons whose interests are
adverse;
e. "he same is ripe for ad/udication;
f. -de9uate relief is not available through other means or other forms of action or
proceeding.
RULE 64 REVIEW OF "UDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE
COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT
*or petition for review of /udgments and final orders of the C!3#$#C and C!-
period to file is 1B days to be counted from notice of the /udgment or final order or
resolution sought to be reviewed and not from the receipt of the denial of the 3otion
for Reconsideration; the period to file petition is merely interrupted by the filing of the
3otion for Reconsideration and continues to run again for the remaining period
which shall not be less than 7 days from notice of denial.
RULE 65 CERTIORARI! PROHIITION AND MANDAMUS
1. Certiorari
a. 6urpose to correct an act performed by respondent;
b. -ct sought to be controlled discretionary acts;
c. Respondent one who e8ercises /udicial functions and acted with grave abuse
of discretion or in lack or e8cess of /urisdiction.
d. Denerally directed against an interlocutory order of the court prior to appeal from
the /udgment in the main case;
e. eed merely be filed seasonably @within AB daysC, without undue delay and
before the act, order, or proceedings, sought to be reviewed or set aside has
become fait accompli such that any reversal thereof shall have become
academic;
f. (nless a writ of preliminary in/unction shall have issued, does !" stay the
challenged order;
g. 6arties are the aggrieved parties against the lower court or 9uasi</udicial agency
and the prevailing parties;
h. 3otion for reconsideration is a condition precedent, sub/ect to certain e8ceptions;
i. 4igher court e8ercises original /urisdiction under its power of control and
supervision over the orders of lower courts.
&f C- reverses the /udge, the latter may not go the )C via a petition for
certiorari. 4e is merely a nominal party, and he should not seek the reversal
of a decision that is unfavorable to the action taken by him.
-rofessional Regulation Commission vs. C& &t is well settled that the
remedies of ordinary appeal and certiorari are mutually e8clusive, not
alternative or successive. 4owever, it has also been held that after a
/udgment has been rendered and an appeal therefrom had been perfected, a
petition for certiorari relating to certain incidents therein may prosper where
the appeal does not appear to be a plain, speedy and ade9uate remedy. &n
this case, the )C noted that, while petitioners tried to /ustify their recourse to
both an appeal and to a petition for certiorari by claiming that their appeal
would not constitute a plain, speedy and ade9uate remedy, they did not see
fit to withdraw or abandon said appeal after filing the petition. "hus, both the
C- and )C are reviewing the same decision of the R"C at the same time.
)uch a situation would lead to absurdity and confusion in the ultimate
disposition of the case.
2. 6rohibition
a. 6urpose to prevent the commission or carrying out of an act;
b. -ct sought to be controlled discretionary and ministerial acts;
c. Respondent one who e8ercises /udicial or non</udicial functions.
1. 3andamus
a. 6urpose to compel the performance of the act desired;
b. -ct sought to be controlled ministerial act;
c. Respondent one who performs /udicial or non</udicial functions.
2. 0hen )C allows the writ of certiorari even when appeal is available and proper.
a. -ppeal does not constitute a speedy and ade9uate remedy;
b. !rders were issued either in e8cess of or without /urisdiction;
c. *or certain special considerations, such as public welfare or policy;
d. 0here in criminal actions, the court re/ects rebuttal evidence for the prosecution,
as in ac9uittal;
e. 0here the order is a patent nullity;
f. 0here the decision in the certiorari case will avoid future litigation.
:. Cases where 3otion for Reconsideration is !" condition precedent for certiorari.
a. !rder is a patent nullity;
b. 'uestions raised in the certiorari proceeding were duly raised and passed upon
by the lower court, or are the same as those raised and passed upon in the lower
court;
c. (rgent necessity for the resolution of the 9uestion and any further delay would
pre/udice the interests of the government;
d. (nder the circumstances, a motion for recon would be useless;
e. 6etitioner was deprived of due process and there is e8treme urgency for relief;
f. 0here in a criminal case, relief from order or arrest is urgent and the granting of
such relief by the trial court is improbable;
g. 6roceedings in the lower court are null for lack of due process;
h. 6roceeding was ex parte or in which petitioner had no opportunity to ob/ect;
i. &ssue raised is one purely of law or where public interest is involved.
A. "he period for filing any of the 1 actions is not later than AB days from notice of
/udgment, order, or resolution sought to be reviewed.
&n case a motion for reconsideration or new trial is timely filed, whether such
motion is re9uired or not, the AB<day period shall be counted from notice of the
denial of said motion. @)C Circular :A<2BBB, effective )eptember 1, 2BBBC
o e8tension of time to file the petition shall be granted except for compelling
reason and in no case e8ceeding 1: days. @)C Circular :A<2BBBC
RULE 66 9UO WARRANTO
1. 'uo 0arranto distinguished from #lection Contest.
9&- W1441+,- E0*7,2-+ C-+,*3,
;asis is that occupant is dis9ualified from
holding office by reason of ineligibility or
disloyalty
Challenge rights of a person to hold office
on the ground of irregularities in the
conduct of the election
&f successful, respondent is ousted but
petitioner shall not automatically assume
the office vacated
)uccessful protestant will assume office if
he had obtained plurality of valid votes
RULE 67 E%PROPRIATION
1. &n e8propriation, the complaint must be verified.
2. "he defendant can only file an answer instead of a motion to dismiss
1. "he final order of e8propriation is appealable, but the lower court may determine the
/ust compensation to be paid.
"he power of eminent domain is e8ercised by the filing of a complaint which shall
/oin as defendants all persons owning or claiming to own, or occupying, any party
of the e8propriated land or interest therein. &f a known owner is not /oined as
defendant, he is entitled to intervene in the proceedings; or if he is /oined but not
served with process and the proceeding is already closed before he came to
know of the condemnation, he may maintain an independent suit for damages.
RULE 70 FORCILE ENTR$ AND UNLAWFUL DETAINER
1. *orcible entry distinguished from (nlawful detainer
F-472:0* *+,45 U+01;8&0 '*,12+*4
6ossession of land is unlawful from the
beginning due to force, intimidation, threat,
strategy or stealth
6ossession of defendant is inceptively
lawful but becomes illegal by reason of
termination of right of possession
o re9uirement of previous demand for
defendant to vacate premises
,emand is /urisdictional
6laintiff must prove that he was in prior
physical possession until he was deprived
thereof by defendant
6laintiff need not have been in prior
physical possession
1<year period counted from date of actual
entry or when plaintiff learned thereof.
1<year period from date of last demand
2. 0hen prior demand in unlawful detainer actions not re9uired;
a. 0hen purpose of action is to terminate lease because of e8piry of term and not
because of failure to pay rental or to comply with terms of lease contract;
b. 6urpose of suit is not for e/ectment but for enforcement of terms of contract;
c. 0hen defendant is not a tenant but a pure intruder
&n all other cases, there must be a demand.
i. "o pay or to comply with the conditions of the lease; -,
ii. "o vacate by written notice on the person in the premises or by posting such
notice on the premises if no person is found thereon and this is a condition
precedent to the filing of the case; !R-$ demand is not permitted.
iii. &f demand is in the alternative @pay !R vacateC, this is !" the demand
contemplated by the Rules.
1. 0hen the defendant raises the issue of ownership in his pleadings and the 9uestion
of possession cannot be resolved without deciding the issue of ownership, the latter
issue shall be resolved only to determine the issue of possession.
- forcible entryKunlawful detainer action has an entirely different sub/ect matter
from that of an action for reconveyance. "he former involves material
possession, and the latter, ownership. "hus, the pendency of an action for
reconveyance does not divest the 3"C of its /urisdiction over an action for
*#K(,, nor will it preclude e8ecution of /udgment in the e/ectment case where
the only issue involved is material possession.
RULE 71 CONTEMPT
1. Criminal contempt
a. 6urpose is to vindicate public authority;
b. Conduct directed against the dignity or authority of the court.
2. Civil Contempt
a. 6urpose is to protect and enforce civil rights and remedies for the litigants;
b. *ailure to do something ordered by the court for the benefit of a party.
1. ,irect Contempt @contempt in facie curiaeC
a. Committed in the presence of or so near a court or /udge;
b. 6unished summarily without hearing;
c. o appeal may be taken but the party ad/udged in contempt may avail himself of
actions of certiorari or prohibition which shall stay the e8ecution of the /udgment,
provided a bond fi8ed by the court is filed.
2. &ndirect Contempt
a. ot committed in the presence of the court;
b. 6unished only after hearing complaint in writing or motion or party or order of
court re9uiring person to appear and e8plain, opportunity to appear and show
cause.