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Order of fefault vs Defendant in default vs Judgment by default

IN case of failure to file a responsive pleading within the prescribed period.


MOTIONS OR REMEDIES WHICH MAY BE FILED BEFORE FILING OF RESPONSIVE
PLEADINGS:
I.

Motion to declare defendant in default/motion to lift the same

STEP 1: Declaration in default: (a litigated motion)


1. Must be in writing
2. Proof of service of summons
3. Proof of failure by the defendant party to file the responsive pleading
Gen. rule: motion by the party
Exc: sec.15, envi law the court may declare defendant in default for failure to file a
responsive pleading
Effects of defendant in default
1. Loses the right over the trial
2. Can be a witness
3. Entitled to receive notice, judgments, final orders, resolutions or substantially
amended pleadings
- In case of amended pleading, an order of default on the orig
pleading is lifted or superseded by the amended complaint
STEP 2: Order of default
Remedes before judgment-1. Motion to lift order of default
Requirements:
- Affidavit of merit
- Must be in writing
- On the ground of extrinsic FAME or meritorious cases (pag meron
nito, laging may affidavit of merit)
- Notice of hearing
- Motion must be furnished to the other party 3 days before hearing
- Hearing must be set
- Proof of service
- Must be verified (r9, Sec3)
Scenario:
Order of default is declared by MTC.
If motion to lift order of default is denied:

MR within 15days
Certiorati R65 to rtc, bec order of default or motion for recon are interlocutory
orders so its not appealable under R41.
In case of denial of petition for certionarari by RTC, file a MR.
In case of denial of MR, may final judgment. So remedy is Appeal under R41 to CA
(notice of appeal) bec RTC exercised jurisdiction over denial of Petition for Certiorari.
(sa CA at notice of appeal kase RTC in its orig juris hindi appealed from mtc to rtc)
Lastly, Remedy is rule 45 in case of denial of appeal under r41.
Kinds of Affidavit of merit:
2. Motion to admit answer
STEP 3: presentation of evidence ex parte by the plaintiff
STEP 4: judgment by default
-

Based on the prayer or evidence presented by the plaintiff and


cannot exceed beyond that. (one sided trial)
If the judge awards in excess, that is abuse in discretion. Remedy is
R65

Remedies in case of judgment by default


1. Motion to set aside judgment by default
2. New trial (R37, Sec1. Par 1) On the ground of: FAME
3. MR because this is a final judgment.
If these 3 remedies were denied, remedy is:
1. Appeal if it is the speedy adequate remedy. Otherwise, Certiorari R65 with
TRO or Injunction
(why certiorari is a remedy? Kase plaintiff lang nagpresent ng evidence, pag
inappeal sa CA yan, anong rereviewin ng CA?)
In case of denial of Certiorari, Appeal is the remedy.
NOTE:Failure to file written interrogatories or deposition is a ground for judgment by
default (R29, Sec5 relate to R9 and R25)
Partial Default in case of multiple defendants, if sumagot yung iba, sumagot yung
iba.
In Small Claims:

Remedy of plaintiff is to file a motion for rendition of judgment

Defendant may present evidence even without filing a responsive pleading under
the rules (kase pag dating nya pwede syang tanungin ng plaintiff kung anong
defenses nya and the court has the discretion whether to allow the presentation)
Omnibus motion Rule ( Sec1, r9 and sec8,R15)
1.
2.
3.
4.
II.

All objections must be raised in the pleading otherwise waive,


except:
Res judicata
Lack of jurisdiction
Litis pendencia
Prescription

MOTION TO AMEND AS A MATTER OF RIGHT


Supplemental merely supplement the prior allegations in the pleading
and always a matter of discretion.

Kinds of Amendments:
1.
2.
3.
4.

As a matter of right once before filing of responsive pleading


As a matter of discretion if responsive pleading has been filed
Amend to confer jurisdiction before filing of responsive pleading
Amended to conform to evidence issues not raised in the pleading but were
tried by the parties expressly or impliedly, the court may amend the
pleading. Sec5, R10)
5. Substantial amendment if causes of action are changed or it affects
substantial right s of the parties in the pleading.
6. Formal amendment mere clerical errors
NOTE: motion to amend as a matter of right may be filed even if there is a motion to
dismiss bec it is not a pleading. R10 in relation to r16 in relation to r60)
-

(R60 sec6) Failure to state a cause of action the party may amend
the pleading.
Amendment is allowed in Summary Proceedings
Amendment is allowed in Special proceedings and special civil
actions bec R10 is suppletory to said rules
Amendment is allowed in small claim cases

Amendment as a matter of discretion if denied, Certiorari is the remedy bec


motion to amend is an interlocutory order.
Note:
-

amended motion is allowed either supplemental or amended


motion.

In case of supplemental pleadings, if the claim in raised from 100k


to 800k, payment of new docket fees is not required bec it is
required only in initiatory pleadings
Service of summon is not required if the court has acquired
jurisdiction already upon amendment
PLEADINGS ang inaamend

RULE 17 Dismissal of actions


III.

Sec1 (before filing)

Sec2 (after filing)


Sec3 (failure to prosecute)
Notice of dismissal by the plaintiff (sec1)
- Before filing of an answer
- 2 dismissal rule
(Sec2)
-

Filed after answer has been filed


2 dismissal rule apply
If in the answer, may counterclaim, even if the plaintiffs claim is
dismissed, the counterclaim is retained.

R30 TRIAL
Failure to appear on the date of presentation of evidence in
chief
With prejudice unless otherwise ordered by court to be without
prejudice

(ec3)

Failure to prosecute his action for an unreasonable length


of time
-

Without prejudice
Failure to comply with these RULES of any order of the court

IV.

may dismiss with or without prejudice or be held in contempt under


R71
SUMMARY JUDGMENT
- if in the original complaint, there is no issue raised or inloved, you
may file a motion for summary judgment

V.

VI.
VII.
VIII.

- Availed of by the defendant against the initiatory pleading.


Motion to dismiss based on SLAPP (envi law)
Quantum of evid:
a. Yung nag file ng MD based on SLAPP substantial
b. Yung nag file ng MD para mamaintain na hindi SLAPP yun
preponderance
INTERVENTION
- Can be availed of before commencement of the action
- Motion with leave of court to intervene
Bill of particulars
Provisional Remedies
- At the commencement of the action except replevin, pwede ifile
before judgment meaning pwede ifile before filing of responsive
pleading.
- An auxiliary or ancilliary remedy which is available during the
pendency of an action.
- Not an action but an ancilliary meaning it cannot exist without the
original action
Ex: R19 (intervention)
- Purpose is to preserve or protect the right of the party or the
property during the pendency
- Brgy conciliation is not required (basis: express provision of
katarungan pambarangay)
- Injunction and replevin may be filed as a provrem or an action.
Replevin as an original action, meron nyan valuation so 300/400
appies. Action for injunction is filed before RTC bec it is incapable.

Kinds of ProvRem:
1. Preliminary attachment (R57)
the property of the defendant are placed under the constructive
custody of the court in order to cover for the payment of claim after
judgment
- Quasi in rem proceeding if an action is coupled with preliminary
attachment. (importance: for service of summons and jurisdiction) 3
modes of service is now allowed. [R57 sec1 par6]
- Mtc/rtc/ca/sc can issue writ of attachment
- Applicable in envi cases
Grounds (r7 sec1)
a.
b.
c.
d.
e.
f.

Recovery of property
Fraud
Temporarily outside the ph
Disposing the property with intention to defraud creditors
_____
_____

2 kinds of attachment;
a. Levy or attachment real property is involved. Attachment is annotated at
the back of the title
b. Garnishment property in possession of 3rd person. Say, may pera sa bangko
bukod sa dollor, pwede igarnish upon serving of notice of garnishment and
writ of execution.
How to avail of these attachment?
- By a verified application and payment of bond plus affidavit of
applicant stating the ground relied upon and that there is no other
security to satisfy the obligation.
Step1: application
Step2: issuance (may be issued ex parte)
Step3: implementation (cannot be issued ex parte)
Remedy if attachment is made:
-

Motion to discharge of attachment plus counter bond. (sec12)


Motion to quash f there is insufficient bond or impropriety in the
issuance (Sec13 R57) or (r39 sec13). If denied, MR. (basis bakit MR:
r65 sec4 in relation to R37 kase interlocutory order lang sya
therefore not appealable so file certiorati under R65. MR under 37 is
applicable only if may final judgment or oder )

R9---r10---r57 = May complaint --- may amendment --- may attachment. Yung
attachment mawawala kase may amended pleading.

2. Preliminary injunction as amended by (Admin 7712)


- A writ or process directed to a court of tribunal directing it to do or
not to do an act.
Kinds:
Preliminary prohibitory injunction interlocutory so not appealable
Preliminary mandatory injuction - interlocutory
Permanent final judgment so appealable
Grounds: (sec3, R58)
- How to apply: Motion, bond, verified
- Motion and hearing are required. Exparte is not allowed.
- TRO = provrem in provrem ordering the party t restrain
performance of an act for 20days. Here, hearing ex parte is allowed.
BUT, if the ground is for extreme emergency, 72hrs to have a
summary hearing on whether the 17days left will be allowed. In
envi law, TEPO is same as this, 72hrs din.

Status quo order = is an order upon motion by the party to the


court in order to place the party in the original status. Effective
during the pendency of the action. Purpose is to maintain last
actual, peaceable, uncontested condition of the parties preceding
the action.
Doctrine of Strong arm of equity = injuction can only be issued if it
is equitable and will not cause damage or injury to the parties.
R65 sec7 if you want to stop the proceedings below after you file a
petition for certiorari. Why? Bec. The mere filing of the petition will
not stop the proceedings as a general rule.
R70 sec15 and sec20 injunction is present (prohibitory and
mandatory injunction)
SB/CA/RTC/MTC may issue injunction
R58 is applicable suppletorily to R127

Instances where injunction will not lie:


-

If the act to be restraint has already been performed


In case of criminal prosecution except the 11 exceptions under
crimpro. (broca vs enrile)
Preliminary investigation
Growing labor dispute under art264 of Labor code
Govt. infrastructure project
Actions for enforcement of envi law except SC
Extra judicial foreclosure of mortgage
In doctrine of non-interference, injunction will not life to retrain coequal court.

3. Receivership to preserve the property during the pendency of the action. 3 rd


person is appointed to preserve.
- Grant of this remedy is allowed only if it is necessary. (discretionary)
- During the pendency of receivership, execution of judgment in labor
cases is not allowed.
Grounds:
How to apply? Verified application At the commencement of the
action or before judgment, bond by the applicant and receiver
4. Replevin recovery of possession of personal property.
- It is an exercise of courts discretion
- May be commenced at the filiing of the action or at any time before
judgment
How to apply? Verified application, bond double the amount. Remedy of
other party is to file a bond double the amount also.
Attachment vs replevin
5. Support pendente lite
at the commencement or during the pendency before judgment.
- FC has jurisdiction or rtc if there is no FC assigned.

Applicable not only to married parties but also to those who has a
child out of wedlock. If ayaw magbayad, remedy is r39 (writ of
execution) or R71 (contempt) provided may ibabayad. If nabayaran
na tapos dip ala liable, what is paid as support pendent lite may be
reverted back thru restitution.
Available in criminal cases, in case of rape at nagka anak, may
support pendent lite

6. Environmental protection orders under envil law


7. TPO/WRO/Production orders/inspection orders in writ of amparo
8. Production and inspection is Habeas Data
9. VAW-C brgy protection or temporary protection order
10.Hold order departure in criminal cases issued by the RTC or if not within the
jurisdiction of the RTC, DOJ issues.
Kinds of pleading:
What is an Answer? A responsive pleading.
Content: specifc denial and defenses of the defendant.
-

All initiatory pleadings require answer, otherwise there is default.

Kinds of defenses:
1. Affirmative
2. Negative how? By denials.
Kinds of denials:
a. Absolute
b. Partial
c. Disavowal of knowledge
Counterclaim - Permissive and compulsory
Cross-claim
Counter-crossclaim
Counter counter-claim
Period to file pleadings: R11 (10, 15, 30, 60)
10 summary and small claims
15 normal or regular
30 foreign juridical entities
60 publication

When to file responsive pleading if motion to dismiss is denied? within the balance
left under rule 11 but in no case shall be less than 5 days.
REMEDIES AFTER FILING OF THE ANSWER:
1. Judgment on the pleading R34 if it does not raise an issue. Plaintiff can only
file this motion.
35 vs 34
Summary judgment based on the affidavits and deposition which does not
raise an issue
34
34- comply with the 3 day notice rule
35- comply with 10 day notice rule
2. Filing of reply
- Responsive pleading the purpose of which is to deny the allegations
in the responsive pleading
- Within 10 days
3. Filing of supplemental answer
PRE-TRIAL CONFERENCE: - after the period to file all pleadings, or the pleading have
already been filed:
-

Ex parte motion to move for trial


Purpose: amicable settlement, stipulation of facts, what is to be
admitted, amendment of the pleadings, naming of the witnesses to
be presented, marking of the evidence
Appearance: doctrine of non-suited = failure to appear in the pretrial is with prejudice.
Dismissal of the action does not dismiss the counterclaim
If dismissal is silent as to whether it is with or without prejudice,
adopt the rule. So with prejudice.
No default in pre-trial

Judicial affidavit rule parties are required to submit judicial affidavit of witness
within 5 days before the date of pre-trial conference. Failure to submit, such witness
cannot be presented plus payment of fine 1-1k pesos. NOT APPLICABLE IN SMALL
CLAIM CASES.
Failure of the party to present evidence:
Scenario: 4 scenarios
Purpose of scenarios: to know the remedies
1. MR on the order allowing the presentation of evidence ex parte. In case of
denial, R65 bec it is an interlocutory order.
2. MR within 15days with prayer of setting aside the presentation of evidence ex
parte, denial, R65.

3. Judgment which is not yet final and executory bec of failure to appear in the
pre-trial, MNT or MR. if denied, R65 plus TRO injunction. Because one sided
trial ito.
4. Judgment which is final and executory based on failure to appear by the
defendant in the pre trial., a. (R38, if denied, R65); b. (R47, if denied, R65)
and c. (R65, if denied, R41)
Pre-trial in civil cases (r18)
-

Motion ex parte
Period:
Purpose
Required
Failure to appear
Admission must be signed by parties and counsel
Mediation and conciliation is part of pre-trial
Judicial dispute resolution upon agreement of the parties, it may
be referred to JDR.
An informal proceedings by the parties and judge convincing to
enter into amicable settlement. If the parties arrive to compromise,
it must be executed. If not, same court may conduct the pre-trial if
agreed by the parties or sent to executive judge and raffled to
another court.
Parties are required to submit their pre-trial brief 3 days before the
date of pre-trial conference
NOTE: is a pre-trial brief a pleading? NO. because it does not
contain claims and defenses. It only narrates claims and
defenses.

Pre trial in criminal (r118)


-

No motion for ex parte


After arraignment within 30 days
Purpose: no amicable settlement exc in civil aspect
Not required
Failure to appear, party can be held liable
Need not be signed

After pre-trial conference, Pre-trial order is issued. It can be modified within 15days,
otherwise final.
MOST IMPORTANT WITNESS RULE the examination of the witness will be
terminated in 1 day including direct, redirect, cross and recross. (amendment in r18
and r119).
Pre trial vs preliminary conference

1. Prelim conference in MTC is summary in nature. Thus, no filing of pre-trial


unless the court warrants.
R18 vs r48 (pre trial vs Prelim conference in Appellate courts)
What if motion for ex parte is not filed? (sec1 R18) = failure to prosecute
Remedies before pre-trial or during pre-trial or before trial or after trial (until
final termination of the case)
1. Modes of discovery Generally, should be resorted to before trial but if
can also be resorted to during trial.
- A scheme or device to acquire knowledge
- A fishing expedition
- Purpose: to illicit material relevant facts of the adverse parties, to
abbreviate proceedings, to determine false or sham or fraudulent
claims/defenses
Kinds:
1. Deposition before or pending action (r23)
- It is a testimony of a person or party to the case
Kinds of depositions:
- Deposition pending action
- Deposition before action
Who may take deposition?
If w/in the phil: Judges, notary public, or officers authorized to
administer oath upon the agreement of the parties
If abroad: consular agents, consul, vice consul, sec of immigration
Letter Nugatory = motion to take the deposition (find the grounds)
- Testimony from prior proceedings is an exception to hearsay
evidence in case the opponent dies. It may be used as an evidence.
(sec37 R130)
- Availed of after service of summons, file a motion to take deposition
may be made.
- Taking of deposition (r132 sec3-18) may be Oral examination or
Written interrogatories or Video (sec 27, Rule on child witness rule):
ORAL = a trial type taking of testimony; WRITTEN = deposition by
written interrogatories, submit a direct interrogatories then give a
copy to the adverse party. The latter may submit a cross direct
interrogatories.
2. Deposition action action (r24) if a person anticipates that the case will go
further, he may take depositions of persons or of himself.
Limitations in taking of depositions:
a. privilege communications (R130, sec24)
b. Impeachment of adverse parties witness (R132, sec11 and sec13 in
relation to sec4, r23) or a.k.a. preying the predicate contradicting
the testimony of the witness of the adverse party.
3. Interrogatories to parties (R25) for purposed of eliciting material relevant
facts.

Submitted before the court directly.


Answer may be filed. Otherwise, judgment by default

Liminations: Privilege communication (sec24, r130)


4. Production and inspection of documents and things (R26)
2 modes of discovery: a. production of documents and b. inspection of premises
Purpose: to photocopy, to know the contents of the document in order to know
the evidence to be presented. May be used as a mode of discovery or for ocular
inspection
Limitation: those privileged in character. (sec1 R27 in relation to Sec24 R130)
Mental or Physical examination: example: juan enters into a contract but
found to be insane. R27 may be used to perform mental examination.
5. R27
6. R28
7. Penalty (R29) penalty imposed for non compliance with the order in mode of
discovery
NOTE: these modes are applicable in Envi cases or when there is no provision in
special laws suppletory in character. In criminal cases, may sariling provision for
modes of discovery sa crimpro so din na suppletory to.

TRIAL: (R30)
-

Proceedings in which the court will investigate the evidence in chief


and ends with oral arguments of the parties.
- Presentation of evidence until resolved.
- Hearing broader in scope and includes trial.
- Pre trial conference is a hearing but not a trial bec it is limited to
the presentation of evidence.
- As long as there is a factual issue to be determined which requires
presentation of evidence, trial is necessary.
- Order of trial in civil action:
Civil (Rule 30); crim (R119)
KINDS OF TRIAL:
a. Regular
b. Inverted
c. Trial by commissioner
d. Trial in absentia
e. Public trial
f. Speedy trial
Filing of memorandum:

NOT A PLEADING. Summary decision of claims and defenses of the


parties.

Direct examination R130, sec5


Demurrer to evidence filed after the plaintiff has rested his case not before
based on insufficiency of evidence. Available only before the trial court
-

Appellate court cannot grant this


Nature: a litigated motion. In case of denial, defendant will present
evidence.

R33 as against sec23, R119


-

R33 upon motion of the party


May be filed with or without prejudce
If motion is granded,

Motu proprio
If motion is granted, no more appeal

R 119

Civpro re-opening is based on equity while in crimpro, there is an express


provision
Judgment final determination of the basic rights of the parties (Rule 36)
Constitutional req of a valid judgment:
-

Sec14, Art8 = no court shall render a decision without stating


clearly and distinctly the facts and the law on which it is based.

Procedural req:
-

In writing
Personally prepared by the judge
State clearly and distinctly the facts and law on which it is based
Must be recorded in the book of entry of judgment

Kinds of judgment:
Judgment on he merits based on evid and issues of the case
Final judgment disposes the action in its entirety and determine the
rights of the parties
Final and executory the period to appeal has already elapse. It is subj
to execution

Summary judgment rendered based on admission, evid, affidavits


when there is no genuine issue
Judgment on the pleadings based on the allegations on the pleading
which does not post an issue
Judgment on the compromise based on the compromise agreement
of the parties
Special judgment judgment other than payment of money or delivery
of a thing
Judgment upon confession based on the admission of the liability of
the person making the same
Judgment which is immediately executor must be executed
immediately by the court
Separate judgment to determine the every rght of the party in the
action
Rendition off judgment - actual announcing of the judgment
Entry of judgment act of the clerk of court in recording the judgment
of the court in the record of entries
Clarificatory judgment judgment which is difficult to comply may be
subj to clarification by the court.
(post judgment remedies)
After judgment before finality; remedies
Immutability of judgment a judgment which has already been rendered cannt be
altered except clerical errors and nunc pro tunc (now for then) judgment.
Immediaely executor judgments:
1. MR (R52 in relation to R37)
Ground: damages is excessive; judgment is not supported by law

SEC4, r65 In case of MR for CPM.


Period to file MR and MNT: 15days
If denied: fresh period to appeal, 15 days or 30 days.
Effect of filing MR or MNT: toll the running of prescriptive period of appeal provided,
it must comply with the provisions of sec4-6, R15. Because MR and MNT is a
litigated motion. Failure to comply with R15, I becomes pro-forma, thus it will not toll
the period.
Under summary pro and small claims cases: (Sec19) MR or MNT against a judgment
is a prohibited motion. The remedy is to file an appeal.
However, MR against interlocutory order is allowed bec it does not disposes of the
case in its entirety.
Effect of granting MR or MNT: judgment is deemed vacated or set aside.
If MR is denied, the subj of appeal is the judgment or order.
2. Motion for NT (R37, sec1) (trial de novo)
- filed upon perfection of appeal
- applicable only to final judgments or orders
- applicable only to trial courts
- Rule 52 and 53 are used in appellate courts for MNT
If 53, isa lang ang ground (newly discovered evid which cannot be produced in court
despite due diligence); used in appellate courts
37 used in trial courts
Grounds: FAME or Newly discovered evidence
Requirements:
1. verified motion accompanied by affidavit of merit
2. sec 4-6 of Rule 15 must be complied with

3.Appeal (r40-45)
- only final judgments or orders lang ang pwede i-appeal.
- period of perfecting is jurisdictional in character

Appeal from mtc to rtc (rule 40)


1. notice of appeal (ordinary appeal) by filing within 15days from notice of
judgment plus payment of appeal docket and lawful fees.
- Deemed perfected upon filing of notice of appeal within 15 days
then the clerk of court will transmit the case from mtc to rtc. If not
yet transmitted, residual power is available to mtc.
Order of preservation of rights of the parties R135
2. Record on appeal - Under specpro or involves multiple appeal an payment of
docket or lawful fees.
- Deemed perfected upon approval of the record on appeal. (30 days)
In case of Habeas corpus cases, the filing of appeal must be made within 48hrs.
Ex. Of multiple appeals: in case of partition, the determination of partition,
the order issued is appealable. The judgment of partition is also appealable.
Appeal from rtc to ca if exercising orig jurisdiction (Rule 41)
-

By way of notice or record on appeal.

Appeal from quasi judicial parties to CA (r43)


-

Petition for review under 42 (within 15days)


Remedy in case of Res. Of OM under admin cases
NLRC decision if by way of R65 not R43 because after the denial of
the MR of the judgment or decision of the NLRC, it becomes final
and executor after the lapse of 10days and no more remedy is
available. Thus, R65.
Sec. of labor decisions, remedy is R65 in the CA, if denied, R45.

Appeal from cta and sb or rtc on purely questions of law (rule 45)
-

PFR on certiorari within 15days on the ground of purely questions of


law. (issue brought before the sc as to which law shall apply to the
given facts)
Exceptions:
a. If the findings of facts of lower courts are conflicting
b. In action for writ of amparo, there is a factual findings here.
c. Writ of habeas data/kalikasan/continuing mandamus
d. Grave abuse of discretion committed by the trial court
Period to appeal is 15days.
Except in data/amparo the period is 5 working days. In kalikasan
and continuing mandamus, 15 days.

Appeal from the RTC to the CA is by way of Rue 42 within 15days in


cases of intellectual property cases, unfair competition, copyright
violation.

Appeal from mtc umakyat sa rtc, then rtc is exercising appellate jurisdiction
umakyat sa CA (rule 42)
- petition for review 15days from notice of judgment or notice denying MR or
MNT
Appeal from mtc umakyat sa rtc, then rtc is exercising appellate jurisdiction
umakyat sa CA then umakyat sa SC (rule 45)
-

PFR on certiorari

R45 vs r65
R45 is a mode of appeal. It is a continuation of the proceedings below.
R65 is a mode of review. Limited.
R45 is filed only to the SC
R65 may be filed to SC, CA, CTA, SB, RTC, sharia
R45 ground is question of law
R65 ground is grave abuse of discretion
R45 appeal is 15days
R65 appeal is 60days from notice of judgments, or orders denying the MR and MNT
R45 parties are the plaintiff/respondent
R65 parties are the respondent and the court/tribunal
CR 1:05 1:07
4. Reopening
- not available in sum pro (sec19)
- in case of judgments in small claims cases, Rule 65 Is the remedy. MR is
prohibited.
After Finality: (remedies)
-

37 or38 if MR/MNT is no longer available.

Petition for relief from judgment


Petition for annulment of judgment
R65
Collateral attack

Rule 38: Petition from relief from judgment


-

Can be filed within 60 days not exceeding 6 months from entry of


judgment on the ground of FAME.
Against a final judgment, orders or even proceedings.
Filed in the court of origin where the case was decided.
Failure to file an appeal on the ground of FAME, R38 is available.

NOTE: Effects of judgment for granting the petition for relief: deemed
vacated. If asking for appeal, not yet final is the effect.
-

Not available under Small claims and summpro. A prohibited


petition. Also in labor cases.

Petition for annulment of judgment (R47)


-

Filed in the RTC or CA, original in character. (sec9, bp129 or Rule 47)
Grounds:
1. Extrinsic fraud
2. Lack of jurisdiction over the subj matter
3. Lack of jurisdiction over the person of the defending party
4. Lack of due process
Effect: deemed vacated.
If denied, the remedy is R65. TRO may be applied.

Available only if petition for relief, MR or MNT are no longer


available.

Collateral attack subsequent filing of an action attacking collaterally/indirectly the


findings and judgments of the court.
SPECIAL CIVIL ACTIONS
-

Extra ordinary remedies governed primarily by Civpro and special


rules.

Kinds: (62-71)
Interpleader
Interpleader vs intervention

Intervention is merely ancillary and the one filing has a legal


interest over the action while in interpleader, it is an original
separate action and the one filing has no legal interest. In
intervention, remedy is by motion for leave of court, in 62, by filing
a complaint in court. R19 is denied, the remedy is appeal of file a
separate interest while in R62 the only remedy is appeal.
Court that has jurisdiction depends on whether real/personal.

Declaratory relief
-

By way of declaratory relief


Purpose: for construction and validity of R63.
Jurisdiction: RTC bec the subj matter is incapable of pecuniary
estimation
By way of reformation of instrument
= if there is an ambiguity or imperfections or mistake in the written
agreement or the true intention of the parties does not reflect.
= subj is the changing of agreement, thus incapable. RTc has
jurisdiction
Removal of clouds
= flaw in the title of the real property
Consolidation of ownership
= example Is an action which the subj is incapable of pecuniary
estimation.

Review of judgments or final orders of COMELEC or COA


-

Review to SC within 30days under R65.


R64 vs R65
Office involved: R64 Comelec coa; R65 Court, tribunal exercising
judicial and quasi judicial functions
Period: R64 60 days SC; R65 60days higher court.
MR: depends if there is a specific rule: R65 MR is a condition
precedent

CPM (rule 65)


Certiorari - To annul the judgments or final orders proceedings
-

Limited form of review from the judgment or order of courts or


tribunals excercising judicial and quasi judicial function.
Hierarchy of courts apply. except in special and compelling reasons.
Grounds:
a. Grave abuse of discretion
b. Lack of jurisdiction on the part of the prosecution or in excess of
jurisdiction
c. Interlocutory order
d. No appeal, speedy adequate and plain remedy

Material dates rule: - must be stated in the body of the petition.


Otherwise, denied.
-

Date of the receipt of the subject order, resolution or final orders.


Date of the filing of the MR or MNT
Date of the notice or receipt of the order denying the MR or MNT

Prohibition - to prohibit further proceedings


Mandamus ministerial
Quo warranto (r66)
-

Usurpation of public office or an entity without legal personality.


Dissolution of corporation
Applicable to SC, CA, SB, RTC In its original jurisdiction
If filed by the SolGen, it should be filed in the RTC of Manila.

Expropriation proceedings (R67)


-

Subject matter is the right of the state to take private property


upon just compensation and not the real property itself. Thus,
incapable and RTC has jurisdiction.
MR is a prohibited motion here. Instead, file an answer within the
period prescribe and allege the affirmative defenses.
Process: 1. Payment of just compensation; 2.for public use;
If made by local government, ordinance is required.
Value is based on the assessed value but if it is intended for govt or
national infrastructure, the basis is the sonal valuation.

Foreclosure of real estate mortgage (R68)


-

Real property involving interest and with assessed value where the
property is located.
Quasi in rem, personal or real, so the service of summon is
personal, substituted or publication.
appealable by ordinary appeal.
Mortgagor who died under Rule 86 sec8 is related.
1. Mortgagee may abandon his mortgage and participate in the
general distribution of the property of the decedent
2. Foreclosure and file for deficiency claim
3. Wait for the foreclosure
R68 is related to R63 and R69(b)

Partition (R69)
-

Quasi in rem, personal or real or mixed.


RTC or mtc has jurisdiction depending on the value involved.

2 stages:
1. Determination of co-ownership
2. Determination of actual or right to partition
One is an order and the other one is a judgment. Thus, both
appealable and involve multiple appeal.
Personal properties may be subj of partition thus, 300/400 applies.
R69 correlate to R74 sec1.

Unlawful detainer/forcible entry (Rule 70)


-

Issue is the right of possession.


There can be a resolution of ownership
Mtc
Nature of action is real property. In personam, binding between
defendant and plaintiff.
Governed by rules on sum pro.
Demand to vacate AND pay rentals or compensation for use of
premises is a jurisdictional requirement or a condition precedent.
(both must be present)
UD, no prior physical possession; in FE, there must be.
How to stay judgment in UD/FE----2 injuncions: 15 and 20. Preliminary and

Contempt (R71)
6 kinds: (RoC and jurisprudence 2011)
Direct act or behavior which is offensive in court. Remedy is appeal under sec2
r71.
Indirect failure to follow the order of the court.
Out of court committed outside
In court within the proceedings
Civil
Criminal contempt against the integrity of the court
In reboso vs reboso, Quasi judicial bodies, look if there is a law giving the quasi
judicial bodies the power to cite a person in contempt, NIRC and labor arbiter has
the power. otherwise, RTC.
Petition for writ of kalikasan
Petition for writ of continuing mandamus
Limitations in availment of SCA:

Cannot be joined with ordinary civil actions

Execution: Rule 39
As a matter right: within 5yrs from entry of judgment by way of motion. In case of
denial, correctible by mandamus. In case of motion and an oder, it is not
appealable.
As a matter of discretion:
By revival of judgment: beyond 5yrs by filing another action or petition with the
court who rendered the judgment to revive the same. It can be enforced by way of
motion within the period of 5yrs.
How to make an execution:
By Levy: writ of execution must be annotated at the back of the title
By Garnishment: taking of property for the possession of a 3 rd person.
Terceria or third party claim by way of filing a 3 rd party claim with the sheriff and
the court will determine your claim. Filed by a person who is not a party in the
action and the property is in his possession.
Grounds for motion to quash

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