Professional Documents
Culture Documents
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
-
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.
Kinds of Amendments:
1.
2.
3.
4.
(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
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)
Without prejudice
Failure to comply with these RULES of any order of the court
IV.
V.
VI.
VII.
VIII.
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:
-
R9---r10---r57 = May complaint --- may amendment --- may attachment. Yung
attachment mawawala kase may amended pleading.
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
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:
-
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.
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
TRIAL: (R30)
-
Motu proprio
If motion is granted, no more appeal
R 119
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
3.Appeal (r40-45)
- only final judgments or orders lang ang pwede i-appeal.
- period of perfecting is jurisdictional in character
Appeal from cta and sb or rtc on purely questions of law (rule 45)
-
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)
-
NOTE: Effects of judgment for granting the petition for relief: deemed
vacated. If asking for appeal, not yet final is the effect.
-
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.
Kinds: (62-71)
Interpleader
Interpleader vs intervention
Declaratory relief
-
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)
-
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.
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:
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