Final Civ Pro Reviewer

CIVIL PROCEDURE GRAND REVIEWER
2004 remedial law team (100% bar-ops)
he lThis reviewer was made especially for the UP 2004 bar reviewees by the Civ Pro team composed of Debbie Acosta,
Toie Biruar, JP Cabilao, Yang Quimson, Alan Tan, Gme Tomboc, Charles Veloso (head), and Tonette Veloso of Class 2006A,
finished on 25 June 2004. This reviewer was completely patterned after the 2004 Civ Pro Syllabus of our Professor, Antonio Bautista
(former Bar Examiner in Rem Law), to whom we are eternally indebted. In the grand manner tradition, this 193-page reviewer
contains a record of 55 tables (from various sources) 1 and 168 digests (by Gme and Charles) of all US and Philippine cases in the
outline. Brief notes from Feria, Bautista, class discussions, and other sources are also included. Due to time constraint, some
substantive and technical (grammar, format, & footnotes) errors may be present. This reviewer would be also be very helpful for
Baltik’s Civ Pro class. Good luck!
I. JURISDICTION
1. General concepts
Constitution, Art. VIII

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but
may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members.
 Jurisdiction is the power of the court to hear or entertain an action or proceeding and to render a judgment thereon which
will bind the parties to such action or proceeding2.
 An error of judgment is one which the court may commit in the exercise of it jurisdiction. An error of jurisdiction renders an
order or judgment void or voidable3. Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by appeal4.
Classes of Jurisdiction5
(1) General and Limited/Special
General jurisdiction extends to all controversies which may be brought before a court within the legal bounds of
rights and remedies.
Limited or special jurisdiction, on the other had, is confined to particular causes prescribed by the statute.
(2)Original and Appellate
Original jurisdiction is that conferred on, or inherent in, a court of first instance.
Appellate jurisdiction is the power conferred on a superior court to rehear and determine causes which have
been tried in inferior courts.
(3) Exclusive and Concurrent/Coordinate
Exclusive jurisdiction is that confined to a particular tribunal or grade of courts and possessed by it to the
exclusion of others.
Concurrent or coordinate jurisdiction is that exercised by different courts at the same time over the same
subject matter and within the same territory, and wherein litigants may, in the first instance, resort to either indifferently.
(4) Criminal and Civil
Criminal jurisdiction is the power to take cognizance of a criminal offense and to impose sentence after a lawful
trial.
Civil jurisdiction is that which exists when the matter is not of a criminal nature.
(5) Territorial Jurisdiction
It is the power of the court with reference to the territory within which it is to be exercised.
(6) Jurisdiction of the subject matter
Jurisdiction over the subject matter pertains to the classes or kinds of actions or proceedings which the court is
authorized to entertain and adjudicate
(7) Jurisdiction over the person
. Jurisdiction over the person is the power to render a personal judgment against a person and is acquired by
the voluntary appearance of a party in court and his submission to its authority, or by the coercive power of legal process
exerted over the person6.
(8) Jurisdiction over the res or property
Jurisdiction over the res or property is that obtained by a seizure of the property under legal process of the
court, whereby it is held to abide by such order as the court makes, and with respect to the person whose rights in the
1
Special acknowledgments to jan Aliling and Joane Trinidad.
2
A. Bautista, Basic Civil Procedure (2003), page 3.
3
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 130.
4
Cochingyan, Jr. v. Cloribel, 76 SCRA 361, 386 (1977); Fernando v. Vasquez, 31 SCRA 288 (1970).
5
J. Feria. Vol. 1 Civil Procedure Annotated (2001), pages 131-133.
6
Banco Español-Filipino v. Palanca, 37 Phil. 921, 927 (1918).
ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

UP College of Law 2006 A
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property are to be affected, jurisdiction may be attained by constructive service of process, it not being necessary that
they should be brought within the reach of the process of the court or should receive actual notice 7. Jurisdiction over the
res includes jurisdiction over the personal status of a plaintiff 8.
CASES:
DECANO v. EDU (1980)

Decano was given temporary appointment at the Dagupan City office by Public Works Usec. Later, Edu (Land
Commissioner, who holds office in Manila) removed him. He filed for mandamus and injunction with CFI Pangasinan.
Issue: WON CFI of Pangasinan has jurisdiction over the petition for mandamus and injunction although the official station of the
respondent, whose official actuation (terminating petitioner from job) is assailed, is in Quezon City, which is outside the jurisdictional
district of the said court. Yes.
Held: A CFI has no jurisdiction to require or control the execution of an act committed beyond the limits of its territorial jurisdiction.
But the ,mandamus and injunction are merely collateral remedies to the main relief sought – to enjoin the implementation of the
termination order. Though the order was issued by Edu, it was to be implemented in Dagupan by subordinate officer and respondent
Acting Registrar. The termination was fait accompli, the injunction must be taken only to restrain the implementation of order by his
co-respondent whose official station at Dagupan is within the territorial boundaries of the trial court’s jurisdictional district. Edu was
joined not for injunction purposes but mainly for testing the legality of his dismissal order.
TIJAM v. SIBONGHANOY (1968)

Tijam sued Sibonghanoy and its surety in CFI Cebu for 1,908. One month before, Judiciary Act of 1948 was passed, giving
exclusive original jurisdiction to inferior courts if value does not exceed 2000. However, this ground was raised in MTD only after trial
and only after surety had raised (and were rebuffed on) other grounds – 15 years after the action commenced.
Held: Jurisdiction over the subject matter is conferred by law and as the lack of it affects the very authority of the court to take
cognizance of the case, the objection may be raised at any stage of the proceedings. However, a party may be barred by laches
from invoking this plea for the first time on appeal for the purpose of annulling everything done. From the time the surety became a
quasi-party, it could have raised the question of lack of jurisdiction of the CFI Cebu. It failed to do so. Instead, at several stages of
the proceedings in the CFI and in the CA, it invoked the jurisdiction of said courts to obtain affirmative relief and merits. It was only
after an adverse decision was rendered by the Court of Appeals that it finally woke up to raise the question of jurisdiction. Were we
to sanction such conduct, we would in effect be declaring as useless all the proceedings had.
NATIONAL STEEL CORP v. CA (1999)

NSC owns100 shares of stock, registered before in Jacinto’s name. Jacinto filed for recovery, but failed to pay the correct
docket fees. NSC alleges lack of jurisdiction.
Held: Action is to recover prop, not specific performance. Docket fee should be based on value of prop and damages being claimed,
exclusive of interest. Although payment of docket fees is jurisdictional requirement, trial court may allow plaintiff to pay
within a reasonable time before the expiration of the applicable prescriptive or reglementary period. NSC filed in 1990 a mtd but did
not raise the issue of jurisdiction. Instead, it based its motion on prescription. Upon the denial of the trial court of the mtd, it filed an
answer, submitted its pre-trial brief, and participated in the proceedings before the trial court. It was only in 1993, more than 3 years
after filing its mtd that NSC again filed a mtd on the ground of lack of jurisdiction. Clearly, the petitioner is estopped from raising this
issue. Indeed, while the lack of jurisdiction of a court may be raised at any stage of an action, nevertheless, the party raising such
question may be estopped if he has actively taken part in the very proceedings in which he questions and he only objects to the
court’s jurisdiction because the judgment or the order subsequently rendered is adverse to him.
CHUNG FU INDUSTRIES v. CA (1992)

Roblecor, contractor, failed to finish Chung Fu’s factory. They agreed to compulsory arbitration and that arbitrator’s decision
is final and unappealable, without any further judicial recourse.
Held: Whatever be the case, such recourse to an extrajudicial means of settlement is not intended to completely deprive the courts
of jurisdiction. The doctrine before was that a clause in a contract providing that all matters in dispute between the parties shall be
referred to arbitrators and to them alone is contrary to public policy and cannot oust the courts of jurisdiction. The issue is squarely
met by Article 2044 of the Civil Code: any stipulation that the arbitrator’s award or decision shall be final is valid, without prejudice to
Articles 2038, 2039, and 2040. When the courts refuse to review an arbitration award, the proper remedy is certiorari under Rule 65.
Even decisions of administrative agencies which are declared final by law are not exempt from judicial review. Since voluntary
arbitrators act in a quasi-judicial capacity, their decisions should not be beyond the scope of the power of judicial review of the SC.
 Case remanded for further hearing bec Arbit failed to apply provisions of the ©.
LACKS v. LACKS (U.S. 1976)

Husband got divorce from wife. 4 yrs after judgment became final, wife said SC without subj matter jurisdiction bec husband
did not meet residence requirement to get divorce in that State.
Held:
Residency requirements go only to the substance of the divorce cause of action, not to the competence of the court to
adjudicate the case. Statement that the court lacks jurisdiction may mean in reality that elements of cause of action are absent or
7
21 C.J.S. Courts §84.
8
Rule 4, §3 and Rule 14, §15.

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that party has no standing to file action. Absence of competence to entertain an action deprives court of subj matter jurisdiction;
absence of power to reach the merits does not.
2. Subject-matter jurisdiction/ Jurisdiction of the different levels of courts in civil cases
 Jurisdiction over the subject matter is conferred by law9.

 There are four levels of courts in the Philippines: the Supreme Court, the Court of Appeals, Regional Trial Courts (RTCs),
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. The MTCs are legislative creations and
their respective jurisdiction is defined by statute.
 As a rule, neither waiver nor estoppel shall apply to confer jurisdiction upon a court barring highly meritorious and
exceptional circumstance. One such exception was enunciated in Tijam v. Sibonghanoy where it was held that “after
voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question
the jurisdiction or power of the court.”10
 Parties to an action cannot stipulate on the matter as to vest or oust jurisdiction in or from the court. They may stipulate in
a contract that they will enter into an arbitration process in case a dispute arises but such recourse to extrajudicial
settlement cannot oust courts of jurisdiction and the right to review11.
 General rule: subject-matter jurisdiction of the court is determined by the allegations in the complaint. Allegations in an
answer cannot oust the court of jurisdiction12.
a) SUPREME COURT
Const., Art VIII.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
Const., art. VIII

Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments
and orders of lower courts in:
(a) All cases involving the constitutionality or validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not
exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.
ORIGINAL JURISDICTION
(1) Cases affecting ambassadors, other public ministers and consuls, and
(2) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus13.
A. Original and Exclusive
9
21 C.J.S. Courts §84
10
11
Chung Fu Industries (Phils.), Inc. v. CA, 206 SCRA 545 (1992).
12
Sta. Clara Homeowners’ Assn. V. Gaston, 198 SCRA 73 (2002).
13
Phil. Const., art. IX, § 5(1).

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(1) Petitions for the issuance of writs of certiorari, prohibition and mandamus against the following:
(a) Court of Appeals.14
(b) Commission on Elections.15
(c) Commission on Audit. 16
(d) Sandiganbayan. 17
 These writs may be issued against a court only by another court superior in rank to the former 18.
B. Original and Concurrent with the Court of Appeals

(a) National Labor Relations Commission.19
 However, the petitions should be filed with the Court of Appeals; otherwise, they shall be dismissed 20.
(b) Civil Service Commission.21
(c) Central Board of Assessment Appeals.22
(d) Court of Tax Appeals and Quasi-Judicial Agencies. 23
 The petitions should be filed with the Court of Appeals24.
(e) Regional Trial Courts and Lower Courts.25
C. Original and Concurrent with the Court of Appeals and Regional Trial Court
(1) Petitions for habeas corpus and quo warranto. 26
(2) Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower courts or bodies.27
 Where the issuance of an extraordinary writ is also within the competence of the CA or an RTC, it is either of these courts
that the specific action for the writ’s procurement must be presented. Courts and lawyers must strictly observe this 28.
D. Original and Concurrent with the Regional Trial Court

(1) Actions affecting ambassadors, other public ministers and consuls.29
(2) Actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of trade.
30
APPELLATE JURISDICTION
(1) The Supreme Court shall have the power to review, revise, reverse, modify or affirm on appeal or certiorari as the law
or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases involving the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(e) All cases in which only an error or question of law is involved.31
(f) Petitions for naturalization or denaturalization.32
(g) All decisions of the Auditor General, if the appellant is a private person or entity. 33
14
Judiciary Act of 1948, RA No. 296, § 17 (1948).
15
Phil. Const., art IX, §7.
16
Id.
17
Pres. Decree No. 1606, as amended (1978).
18
Pineda v. Lantin, 6 SCRA 757 (1962) ; Poblete Construction Co. v Social Security Commission, 10 SCRA 1 (1964).
19
BP Blg. 129, § 9, as amended by RA No. 7902 (1995); see St. Martin Funeral Homes v. NLRC, 295 SCRA 494 (1998).
20
In Re: Dismissal of Special Civil Actions in NLRC Cases, Supreme Court Administrative Matter 99-2-01 (1999).
21
RA 7902 (1995).
22
Pres. Decree No. 464; BP Blg. 129, §9 as amended by RA No. 7902.
23
BP Blg. 129, § 9, as amended by RA No. 7902 (1995);
24
Rule 65, § 4.
25
BP Blg. 129, § 9(1)
26
Id. at § 21(1).
27
Id.
28
Vergara Sr. v. Suelto, 165 SCRA 753 (1987).
29
Phil. Const., art, VIII, § 5(1); BP Blg. 129, §21(2).
30
Judiciary Act of 1948, § 17.
31
Phil. Const., art. VIII, § 5(2).
32
Judiciary Act of 1948, § 17.
33
Id.

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(h) Final judgments or orders of the Commission on Elections.34
b) COURT OF APPEALS
BP 129, Sec 9. The Court of Appeals shall exercise:

1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, whether or not in
aid of its appellate jurisdiction;
2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and
3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts
and quasi-judicial agencies, instrumentalities, boards or commissions, including the SEC, Social Security Commission, the ECC
and the CSC, except those falling within the appellate jurisdiction of the SC in accordance with the Constitution, the Labor Code
of the Philippines under PD 442, as amended, the provisions of this Act, and of subparagraph 4 of the 4 th 35par of Sec 17 of the
(1) Actions for annulment of judgments of RTCs on the grounds of extrinsic fraud and lack of jurisdiction.
Judiciary Act of 1948.
The CA shall have the power to try cases and conduct hearings, receive evidence, and perform any and all acts necessary to
B. Original and Concurrent with the Supreme Court
resolve factual issues raised in issues falling within its original jurisdiction, including the power to grant and conduct new trials or
further proceedings. Trials or hearings in the CA must be36continuous and must be completed within 3 months, unless extended
(a) National Labor Relations Commission.
by the Chief Justice.
(b) Civil Service Commission.37
(c) Central Board of Assessment Appeals.38
(d) Court of Tax Appeals and Quasi-Judicial Agencies. 39
(e) Regional Trial Courts and Lower Courts.40
C. Original and Concurrent with the Supreme Court and the Regional Trial Court
(1) Petitions for habeas corpus and quo warranto. 41
(2) Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower courts or bodies.42
 Under Section 30 of the Judiciary Act of 1948, the CA could only issue such writs in aid of its appellate jurisdiction. The
supervisory power of the CA to issue these writs must co-exist with its appellate jurisdiction to review, the final decisions of
the lower court, in order to have a complete supervision over the acts of the latter 43. Now, under BP Blg. 129, the CA may
issue these writs and auxiliary processes, whether or not in aid of its appellate jurisdiction 44.
A. Exclusive Appellate Jurisdiction
(1) Ordinary appeal by Notice of Appeal or Record on Appeal
(a) Appeals from the judgments, decisions or final orders of the RTC in the exercise of its original jurisdiction, 45
except in all cases where only questions of law are involved, which are appealable to the SC.
(b) Appeals from the RTC on constitutional, tax and jurisdictional questions which involve questions of fact
and should be appealed first to the CA.46
(c) Appeals from decisions and final orders of the Family Courts. 47
(2) Appeal by Petition for Review
An appeal may be taken to the CA whether the appeal involves questions of fact, mixed questions of fact and
law, or questions of law, in the following cases:
Regular
(a) Appeals in cases decided by the RTC in the exercise of its appellate jurisdiction.48
Special
(a) Appeals from the Civil Service Commission.49
34
Id.
35
Rule 47; BP Blg. 129, § 9(2).
36
BP Blg. 129, § 9, as amended by RA No. 7902 (1995); see St. Martin Funeral Homes v. NLRC, 295 SCRA 494 (1998).
37
RA 7902 (1995).
38
Pres. Decree No. 464; BP Blg. 129, §9 as amended by RA No. 7902.
39
BP Blg. 129, § 9, as amended by RA No. 7902 (1995);
40
BP Blg. 129, § 9(1)
41
Id. at § 21(1).
42
Id.
43
Breslin v. Luzon Stevedoring Co., 84 Phil. 618 (1949).
44
45
Rule 41, § 3 (a).
46
Judiciary Act of 1948, § 17 as amended by RA Nos. 2618 and 5440; BP Blg. 129, § 9(3).
47
RA No. 8369, § 14.
48
Rule 41, § 2(b); Rule 122, §3(b); BP Blg. 129, §22.
49
BP Blg. 129, §9 as amended by RA No. 7902 and Rule 43.

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(b) Judgments or final orders of the Court of Tax Appeals, and

(c) Awards, judgments, final orders or resolutions authorized by any of the following quasi-judicial agencies in
the exercise of their quasi-judicial functions:
(i) Central Board of Assessment Appeals
(ii) Securities and Exchange Commission
(iii) Office of the President
(iv) Land Registration Authority
(v) Social Security Commission
(vi) Civil Aeronautics Board
(vii) Bureau of Patents, Trademarks and Technology Transfer (Intellectual Property Office)
(viii) National Electrification Administration
(ix) Energy Regulatory Board
(x) National Telecommunications Commission
(xi) Department of Agrarian Reform under RA No. 6657
(xii) Government Service Insurance System
(xiii) Employees Compensation Commission
(xiv) Agricultural Inventions Board
(xv) Insurance Commission
(xvi) Board of Investments
(xvii) Philippine Atomic Energy Commission
(xviii) Construction Industry Arbitration Commission
(xix) Voluntary Arbitrators authorized by law50
(xx) Ombudsman, in administrative disciplinary cases51
(xxi) National Commission on Indigenous Peoples.52
c) REGIONAL TRIAL COURTS

(1)
BP Blg. 129. Sec. 18. Authority to define territory appurtenant to each branch. - The Supreme Court shall define the territory over
which a branch of the Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the
territorial area of the branch concerned for purposes of determining the venue of all suits, proceedings or actions, whether civil or
criminal, as well as determining the Metropolitan Trial Court, Municipal Trial Courts, and Municipal Circuit Trial Courts over the said
branch may exercise appellate jurisdiction. The power herein granted shall be exercised with a view to making the courts readily
accessible to the people of the different parts of the region and making the attendance of litigants and witnesses as inexpensive as
possible.
(2) Family Courts
RA 8369- FAMILY COURTS ACT OF 1997
Section 3. Establishment of Family Courts. — There shall be established a Family Court in every province and city in the country.
In case where the city is the capital of the province, the Family Court shall be established in the municipality which has the highest
population.
Section 5. Jurisdiction of Family Courts- The Family Courts shall have exclusive jurisdiction to hear and decide the ff cases:
a) Criminal cases where 1 or more of the accused is below 18 yrs of age but not less than 9 yrs of age, or where one or more
of the victims is a minor at the time of the commission of the offense. Provided, That if the minor is found guilty, the court
shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however,
shall be suspended without need of application pursuant to PD 603, otherwise known as the Child and Youth Welfare Code.
b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter
c) Petitions for adoption of children and the revocation thereof
d) Complaints for annulment of marriage, declaration of nullity of marriage, and those relating to marital status and property
relations of husband and wife or those living together under diff status and agreements, and petitions for dissolution of CPG
e) Petitions for support and/or acknowledgment
f) Summary judicial proceedings brought under the provisions of EO 209, otherwise known as the Family Code of the
Philippines
g) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or
involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases
cognizable under PD 603, EO 56 (series of 1986), and other related laws
h) Petitions for the constitution of the family home
i) Cases against minors cognizable under the Dangerous Drugs Act, as amended
j) Violations of RA 7610, otherwise known as the Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act, as amended by RA 7633
k) Cases of domestic violence against
50
BP Blg. 129 as amended by RA No. 7902; Rule 43.
51
Fabian v. Desierto, et al., 295 SCRA 470 (1998).
52
The Indigenous Peoples Rights Act of 1997, RA No. 8371, § 67(1997).

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1) Women — which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological
harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which
violate a woman's personhood, integrity and freedom of movement; and
2) Children — which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination
and all other conditions prejudicial to their development.
If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the
corresponding penalties.
3)
Administrative Circular 09-94, June 14, 1994 – The inclusion of the term “damages of whatever kind” in determining the
jurisdictional amount under Section 19(8) and Section 33 (1) of BP 129, as amended by RA 7691, applies to cases
when the damages are merely incidental to or a consequence of the main cause of action. MHowever, in cases
where the claim for damages is the main case of action, or one of the causes of action, the amount of such claim
shall be considered in determining the jurisdiction of the court.
(4)
SC Res. A.M. No. 01-2-04 (Interim Rules of Procedure for Intra-Corporate Controversies under RA 8799)
Section 5. Venue- All actions covered by these Rules shall be commenced and tried in the RTC which has jurisdiction over the
principal ofc of the corp, partnership, or assoc concerned. Where the principal ofc of the corp, partnership or assoc is registered in
the SEC as Metro Mla, the action must be filed in the city or municipality where the head ofc is located.
(1) Civil actions in which the subject of the litigation is incapable of pecuniary
estimation53.
 An action for expropriation is incapable of pecuniary estimation and falls within the jurisdiction of the RTC, regardless
of the value of the subject property.54
 In foreclosure of mortgage, the court of appropriate jurisdiction depends upon both the value of the mortgaged
property, real or personal, and the amount of the mortgage debt being recovered. If one amount is within the
jurisdiction of the RTC and the other is within that of the inferior court, then the RTC has jurisdiction. 55
 An action for the annulment of a Deed of Declaration of Heirs and for partition of a parcel of land with an assessed
value of P5,000.00 is not capable of pecuniary estimation. The partition of land is just incidental to the main action for
annulment.56
 Other examples: actions for specific performance, support, or foreclosure of mortgage 57 or annulment of mortgage;
also actions involving the validity of a mortgage, annulling a deed of sale or conveyance and to recover the price
paid and for rescission, which is a counterpart of specific performance.58
(2) Civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value
of the property is involved exceeds Twenty Thousand pesos (P20,000.00) or for civil actions in Metro Manila, where
such value exceeds Fifty Thousand pesos (P50,000.00) except actions for forcible entry into and unlawful detainer
of lands or of buildings.59
(3) Actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two Hundred Thousand pesos
(P200,000.00) or in Metro Manila, where such claim exceeds Four Hundred Thousand pesos (P400,000.00).60
(4) Matters of probate, both testate and intestate, where the gross value of the estate exceeds Two Hundred Thousand
pesos (P200,000.00) or, in Metro Manila, where such gross value exceeds Four Hundred Thousand pesos
(P400,000.00).61
53
BP Blg. 129, § 19(1).
54
Barangay San Roque v. Heirs of Pastor, GR No. 138896, June 20, 2000.
55
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 167; see Seño v. Pestolante and Barimbao, 103 Phil. 414 (1958) and The Good Development Corporation v. Tutaan,
73 SCRA 189 (1989).
56
Russell v. Vestil, 304 SCRA 738 (1999).
57
Amorganda v. CA, 166 SCRA 203 (1988); De Jesus et. al., v. Garcia et. al., 19 SCRA 554 (1967).
58
Russell v. Vestil, 304 SCRA 738 (1999).
59
Id., 129, § 19(2).
60
Id., 129, § 19(3); RA No. 7691. §5(1994); Office of the Court Administrator Circular No.21-99 (1999).
61
Id., 129, § 19(4).

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(5) Actions involving the contract of marriage and marital relations62.
 These are now under the jurisdiction of the Family Courts.63
(6) Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial
functions.64
(7) Cases falling within the exclusive jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian
Relations as now provided by law.65
 Cases falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court are now under
the jurisdiction of the Family Courts.66
(8) Other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs or the value of the property in controversy exceeds Two Hundred Thousand pesos (P200,000.00) or
in Metro Manila, where such demand exceeds Four Hundred Thousand pesos (P400,000.00).67
 Under both Section 5 of RA No. 7691, which took effect in 1994, and Circular 21-99, the jurisdictional amount
for RTCs should be adjusted as follows: Five years after the effectivity of RA No. 7691, the amount exceeds
Two Hundred thousand pesos; and five years thereafter, the amount exceeds Three Hundred thousand pesos.
In Metro Manila, the amount shall be adjusted after five years from the effectivity of RA No. 7691 such that the
amounts exceed Four Hundred Thousand pesos.
 The term “damages of whatever kind” has been specially defined by the SC as to apply only to cases when the
damages are merely incidental to or a consequence of the main cause of action, and that therefore where the
claim for damages is the main cause of action or one of the causes of action, the amount of the claim shall be
considered in determining the jurisdiction of the court.68
(9) Actions under the Proposed Interim Rules of Procedure Governing Intra-Corporate Controversies under RA No.
879969.
B. Original and Concurrent with the Supreme Court

(1) Issuance of writs of certiorari, prohibition, mandamus, quo warranto and injunctions.
 As issued by RTCs, these writs may only be enforced within their respective regions. 70
(2) Actions affecting ambassadors, other public ministers and consuls.71

(3) Actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of trade.
72
C. Original and Concurrent with the Court of Appeals

(1) Issuance of writs of certiorari, prohibition, mandamus, quo warranto and injunctions.
D. Original and Concurrent with the Insurance Commission

(1) Claims not exceeding One Hundred Thousand pesos (P100,000.00).73
The RTC shall exercise appellate jurisdiction over:

(1) Cases decided by the MTC, MeTC and MCTC in their respective territorial jurisdictions.74
62
Id., 129, § 19(5).
63
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 163, footnote.
64
BP Blg. 129, § 19(6).
65
Id., §19(7).
66
J. Feria. Vol. 1 Civil Procedure Annotated (2001), page 163, footnote
67
BP Blg. 129, § 19(8) as amended by RA No. 7691.
68
SC Administrative Circular No. 09-94, effective 14 June 1994.
69
SC A.M. No. 01-2-04, Rule 1, §5 and Rule 2, § 1.
70
BP Blg. 129, §21.
71
Phil. Const., art, VIII, § 5(1); BP Blg. 129, §21(2).
72
A. Bautista, Basic Civil Procedure (2003), page 7; Judiciary Act of 1948, § 17.
73
The Insurance Code, PD No. 612, §416 (1974).
74
BP Blg. 129, § 22.

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SPECIAL JURISDICTION
 The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and domestic relations
cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and
agencies, and/or such other special cases as the SC may determine in the interest of a speedy and efficient
administration of justice.75
d) METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS
 The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction.
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not
exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property, estate, or amount
of the demand does not exceed Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged.
Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be
included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions
between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of
the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different
transactions. 76
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases,
the defendant raises the questions of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession.77
(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest therein does not exceed Two Hundred Thousand pesos
(P200,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Four Hundred Thousand
pesos (P400,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs:
Provided, That in cases of land not declared for taxation purposes, the value of such property shall be
determined by the assessed value of the adjacent lots.78
(4) Exclusive original jurisdiction over admiralty and maritime cases where the demand or claim does not exceed Two
Hundred Thousand Pesos (P200,000.00).79
(5) Exclusive original jurisdiction in cases of inclusion and exclusion of voters. 80
 In joinder of claims or causes of action by one party against another, the totality of the claims for money shall be the test
of the jurisdiction. However, in joinder of parties plaintiff or defendant, the conditions on permissive joinder of parties, the
conditions on permissive joinder of parties shall apply. 81
DELEGATED JURISDICTION
(1) The MTCs may be assigned by the SC to hear and determine the cadastral or land registration cases covering lots
where there is no controversy or opposition, or contested lots where the value of which does not exceed One Hundred
Thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the
respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their
decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts. 82
75
Id., § 23.
76
BP Blg. 129, § 33(1).
77
Id., § 33(2).
78
Id., § 33(3).
79
80
Omnibus Election Code of the Philippines, BP Blg. 881, §138(1985).
81
Rule 3, §6.
82
BP Blg. 129, § 34 as amended by RA No. 7691, §4.

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SPECIAL JURISDICTION
In the absence of all the RTC judges in a province or city, any MTC, MeTC or MCTC Judge may hear and decide petitions
for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent RTC judges sit. 83
CASES:
Reyes v. Sta. Maria (1979)
Defendants (Ds) refused to vacate land they occupy by the mere tolerance of Plaintiffs (Ps). Ps file action to quiet title. D
filed mtd on the ground that the CFI has no jurisdiction over the suit which is actually one for ejectment and unlawful detainer.
Held:
Refusal of Ds to vacate was due to their adverse claim of ownership, on their counter-allegation that they bought the land
from PA; therefore the action is clearly one for recovery of their right to possess the property and to be declared owners thereof. Ps
correctly filed accion publiciana before the CFI.
Ortigas and Co v. Herrera (1983)

The action involved in this case is one for specific performance and not for a sum of money and therefore incapable of
pecuniary estimation because what private respondent seeks is the performance of petitioner’s obligation under a written contract to
make a refund but under certain specific conditions still to be proven or established. Factual allegations of complaint seeking
performance of an obligation under a written contract which is a matter clearly incapable of pecuniary estimation prevail over
designation in the complaint as one for a sum of money and damages.
Ortigas and Co. v. CA (1981)

An action for unlawful detainer, which is a summary proceeding to wrest possession from one who has no right thereto, is
applicable only when the issue is that of possession; but rights of the property created by the agreements, especially the relative
rights and obligations of the parties to the improvements are directly involved and the Municipal Court did not have jurisdiction as
the same involved rights over real property, other than mere possession. The complaint for unlawful detainer filed before the MTC
sought not only the ejectment of the defendant from the subject lot, but likewise prayed that the residential building constructed by
him on the same lot be declared forfeited in P’s favor. Clearly, the issues raised did not only involve possession of the lot but also
the rights and obligations of the parties to the residential building, which is a real property (Art. 415 CC).
Nera v. Vacante (1961)

A violation by a party of any of the stipulations of a contract to sell real property would entitle the other party to resolve or rescind it.
An allegation of such violation in a detainer suit may be proved by competent evidence. And if proved, a justice of the peace might
make a finding to that effect, but it certainly cannot declare and hold that a contract is resolved or rescinded. It is beyond its power to
do so. And as the illegality of the possession of realty is premised upon the resolution of the contract, it follows that an allegation and
proof of such violation , a condition precedent to such resolution or rescission, cannot be taken cognizance of by a justice of the
peace court.
Specialized courts/tribunals/agencies
INSURANCE COMMISSIONER
 Claims involving any loss, damage or liability for which an insurer may be liable under any kind of policy or contract, or for
which such insurer may be liable under a contract of suretyship, or for which a reinsurer may be sued…or for which a
mutual benefit association may be liable.
 Where the amount of such loss, damage or liability, exclusive of interest, cost and attorney’s fees, does not exceed in any
single claim One Hundred Thousand pesos (P100,000.00) .
 Jurisdiction acquired over the parties in accordance and pursuant to the Rules of Court.
 Authority to adjudicate shall be concurrent with that of the civil courts, but the filing of a complaint with the Commissioner
shall preclude the civil courts form taking cognizance of a suit involving the same subject matter.
 May be appealed to Intermediate Appellate Court (CA now).
 In case of contumacy or refusal to obey subpoena issued to any person, the Commissioner may invoke the aid of any
RTC within the jurisdiction of which such proceeding is carried on to issue an order or to punish for contempt of RTC if still
disobeyed.84
Katarungang Pambarangay
SC Administrative Circular No. 14-93 (Guidelines on Katarungang Pambarangay Conciliation Procedure)- pursuant to The
Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local Government Code of 1991, effective on
January 1, 1992, and which repealed P.D. 1508,
I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law (formerly P.D.
1508, repealed and now replaced by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and prior recourse thereto is a pre-condition before filing a complaint in
83
Id., at §35.
84
Insurance Code of the Phils., PD No. 612. § 416.

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court or any government offices, except in the following disputes:

1. Where one party is the government, or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;
3. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to
submit their difference to amicable settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay
conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
5. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate
Lupon;
6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand
pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the
following:
a. Criminal cases where accused is under police custody or detention (See Sec. 412 (b)(1), Revised Katarungang
Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally
deprived of his liberty or one acting in his behalf;
c. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and
support during the pendency of the action; and
d. Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary
of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art.
226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes,
grievances or problems to certain offices of the Department of Labor and Employment);
12. Actions to annul judgment upon a compromise, which may be filed directly in court (See Sanchez vs. Tupaz, 158 SCRA
459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as implemented by the Katarungang
Pambarangay Rules and Regulations promulgated by the Secretary of Justice, the certification for filing a complaint in court or
any government office shall be issued by Barangay authorities only upon compliance with the following requirements:
1. Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong Barangay), certifying that a confrontation of
the parties has taken place and that a conciliation or settlement has been reached, but the same has been subsequently
repudiated (Sec. 412, Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules);
2. Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying that:
a. a confrontation of the parties took place but no conciliation/settlement has been reached (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat through no fault of the complainant (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules).
3. Issued by the Punong Barangay, as requested by the proper party on the ground of failure of settlement where the dispute
involves members of the same indigenous cultural community, which shall be settled in accordance with the customs and
traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the
minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement, and
there has been no settlement as certified by the datu or tribal leader or elder to the Punong Barangay of the place of
settlement (Secs. 1, 4, & 5, Rule IX, Katarungang Pambarangay Rules); and If mediation or conciliation efforts before the
Punong Barangay proved unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b], Revised Rule
Katarungang Pambarangay Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the respondent fails
to appear at the mediation proceeding before the Punong Barangay (3rd par. Sec. 8, a, Rule VI, Katarungang
Pambarangay Rules), the Punong Barangay shall not cause the issuance of this stage of a certification to file action,
because it is now mandatory for him to constitute the Pangkat before whom mediation, conciliation, or arbitration
proceedings shall be held.
CASES:
GONZALES v. CA (1987)
Gonzales wants his lessee to vacate bec his married children need the premises. He sued for ejectment in City Court of
Caloocan. CA dismissed for lack of jurisdiction bec failed to undergo confrontation at brgy level.
Held:
Conciliation under PD 150885 is not jurisdictional. Jurisdiction conferred by BP 129 and Judiciary Act of 1948. PD 1508
does not vest jurisdiction in lupong tagapayapa. Jurisdiction means the power to try and decide a case. Lupon does not decide
cases, but only has conciliation functions. While non-compliance with condition precedent could affect sufficiency of the complaint
85
PD 1508- predecessor of Local Govt Code

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and make it vulnerable to MTD for lack of cause of action or prematurity, it will not prevent competent court from exercising its power
of adjudication before the case, where defendants failed to object.
 Defendant took part in trial= waiver of objection to jurisdiction
AGBAYANI v BELEN (1986)

Quieting case dismissed by CFI on defendant’s motion that there was no conciliation yet before the Lupon Tagapayapa.
Held:
Generally, disputes involving parties actually residing in the same city or municipality, or in adjoining brgys of diff cities or
municipalities, should first be brought before the approp Brgy Lupon. Proceeding before Lupon is precondition to filing of any action
or proceeding, and complaint may be dismissed on motion of any interested party for failure to state a cause of action.
Venue for conciliation:
1. where parties reside
2. where any respondent reside, if parties live in diff brgys in same city or municipality
3. where real prop or any part is situated, if dispute about real prop or interest therein
Since parties reside in diff municipalities or cities and their barangays do not adjoin each other, Lupon has no jurisdiction,
even if subj is real prop.
II. VENUE
 Venue determines which of several courts in the Philippines having jurisdiction over it shall take cognizance of it. It would
depend on the nature of the action, whether real or personal.
 Real actions are those affecting title to or possession of real property. These include partition of, or foreclosure of
mortgage on, real property. All other actions are personal.86
 Personal actions may be filed in alternative places, at the election of the plaintiff:
(1) where the plaintiff resides or any of the principal plaintiffs resides; or
(2) where the defendant or any of the principal defendant resides; or
(3) in the case of a non-resident, where he may be found.87
 Unlike subject-matter jurisdiction, venue is waivable and may be the subject of the parties’ stipulation. Parties may
stipulate in the contract that any action arising therefrom including unlawful detainer should be filed exclusively in a place
other than where the property is located.88
 The Supreme Court is empowered by the Constitution to order a change of venue to avoid a miscarriage of justice. 89
 However, where the venue stipulation appears to be too one-sided as to amount to a “contract of adhesion,” the consent
of the parties thereto may well be vitiated and the venue stipulation will not be given any effect.90
(1)
Rules of Court, RULE 4

Sec. 1. Venue of real actions.
Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein
the real property involved, or a portion thereof, is situated.
Sec. 2. Venue of personal actions.
All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the
election of the plaintiff.
Sec. 3. Venue of actions against non-residents.
If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the
plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of
the place where the plaintiff resides, or where the property or any portion thereof is situated or found.
Sec. 4. When Rule not applicable.
This Rule shall not apply:
(a) In those cases where a specific rule or law provides otherwise; or
Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.
(2)
SEC. 18, BP 129

Authority to define territory appurtenant to each branch. - The Supreme Court shall define the territory over which a branch of the
Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the branch
concerned for purposes of determining the venue of all suits, proceedings or actions, whether civil or criminal, as well as
determining the Metropolitan Trial Court, Municipal Trial Courts, and Municipal Circuit Trial Courts over the said branch may
86
exercise
J. Feria. Vol.appellate jurisdiction.
1 Civil Procedure AnnotatedThe power
(2001), herein granted shall be exercised with a view to making the courts readily accessible to
page 258.
87 the people of the different parts of the region and making the attendance of litigants and witnesses as inexpensive as possible.
Rule 4, §2.
88
Rule 4, §4(b); Villanueva v. Mosqueda, 115 SCRA 904 (1982).
89
Phil. Const., Art. VIII, Sec. 5(4).
90
Sweet Lines v. Teves, 83 SCRA 361 (1978).

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(3)
1. ART. VIII, SEC. 5 (4) (1987 Constitution)
The Supreme Court shall have the following powers:
Order a change of venue or place of trial to avoid a miscarriage of justice.
CASES:
CLARIDADES V MERCADER (1966)

Claridades sued Mercader before the CFI Bulacan (where Claridades the plaintiff lives) for dissolution o f partnership,
consisting of a fishpond located in Marinduque.
Held:
The fact that plaintiff prays for the sale of the asset of the partnership, including the fishpond in question, did not change
the nature or character of the action as personal, such sale being merely a necessary incident of the liquidation of the partnership,
which should precede and or is part of its process of dissolution.
SWEET LINES INC v TEVES (1978)

Passengers sued Sweet Lines in CFI Misamis Oriental for breach of © of carriage. However, ticket stipulated that all
actions should be filed in Cebu.
Held: Contracts of adhesion call for greater strictness and vigilance on the part of the courts of justice with a view to protecting the
weaker party from abuses and imposition, and to prevent their becoming traps for the unwary. Art. 24 CC, “[i]n all contractual,
property, or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence,
mental weakness, tender age and other handicap, the courts must be vigilant for his protection. Condition No. 14 must be held as
void and unenforceable for being contrary to public policy – to make courts accessible to all who may have need of their service: (1)
under circumstances obtaining in the inter-island shipping industry, it is not just and fair to bind passengers to the terms of the
conditions printed at the back of the passage tickets, on which condition 14 is printed in fine letters, (2) condition 14 subverts the
public policy on transfer of venue of proceedings of this nature since the same will prejudice rights and interests of innumerable
passengers in different parts of the country, who will have to file suits in Cebu City. Although venue may be transferred by
agreement in writing (Rule 4 S4), such an agreement will not be held valid where it practically negates the action of the claimants,
such as the private respondents herein. The philosophy underlying the provisions on transfer of venue of actions is the convenience
of the plaintiffs as well as his witnesses and to promote the ends of justice.
VILLANUEVA v MOSQUEDA (1982)

Lessor resides in Pampanga. Lessee is renting in lessor’s house in Manila. If someone violates the ©, they stipulated that
one could sue the other in their respective residences. Lessor sued lessee for ejectment in MTC Pampanga.
Held: Rules of Court: FE and UD cases regarding real prop shall be brought in the municipality or city in which the subj matter
thereof is situated. This does not refer to the jurisdiction of the court over the subj matter, but only to the place where the ejectment
suit may be brought. By written agreement of the parties the venue of an action may be changed or transferred from one province to
another.
EASTERN ASSURANCE & SURETY CORP v CUI (1981)

Transunion sued Eastern Assurance in CFI Manila. Eastern then filed a 3rd party complaint v Pan, its indemnitor.
Indemnity agreement however stipulated that all actions to be brought in QC.
Held: Paragraph 7 of the Indemnity Agreement was imposed on the Pan spouses by the petitioner surety company for its benefit
and convenience and therefore the latter could waive the provision by filing its complaint not in QC but in Manila. Granting that Par 7
imposed a reciprocal obligation, it has to be remembered that at 3 rd party complaint is but an ancillary to the main action and is a
procedural device to avoid multiplicity of suits. Thus, a tpc has to yield to the jurisdiction and venue of the main action. A contrary
rule would result in split jurisdiction which is not favored, and in multiplicity of suits.
 Provision on venue was inserted for Eastern’s benefit. Therefore, he could waive it by filing somewhere
else.
DAVAO ABACA PLANTATION v DOLE PHILS (2000)

Lease agreement bet Davao Abaca (with office in Manila) and Dole (with office in Makati). Davao sued Dole before RTC
Manila to comply with the lease agreement.
Held:
Jurisdiction of court over subj matter is determined upon allegations made in the complaint. Breach of © is cause of action
either for specific performance or rescission of ©. => personal action, where venue can be where any plaintiff or defendant resides.
 If principal relief affects title or possession of realty or interest therein, it is real. If not, personal.

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Table 1: Venue v. Jurisdiction91

VENUE JURISDICTION
1. Place where the action is instituted 1. Power of the court to hear and decide a case
2. May be waived 2. Jurisdiction over the subject matter and over the nature of the
action is conferred by law and cannot be waived
3. Procedural 3. Substantive
4. May be changed by the written agreement of the parties 4. Cannot be the subject of the agreement of the parties
Uniform rule on venue in RTC and MTC92
1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein real property involved or a portion
thereof is situated.
2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the real property or a
portion thereof is situated.
3. VENUE OF PERSONAL ACTIONS – 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.
 “Residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.
 Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one’s domicile.93
4. Action against non-resident not found in the Philippines
a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the plaintiff resides.
b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the property or any portion thereof is
situated or found.
5. Rules on Venue shall NOT apply:
a. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article
360 of RPC provides specific rules on venue); OR
b. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.
 In 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.
REAL ACTIONS
(1) An action to annul a deed of sale of real property and to obtain a judicial declaration that the plaintiff is the owner thereof. 94
(2) An action for the rescission of the sale of land or building does not efface the fundamental and prime objective and nature of the
action which is to recover said real property, even if the plaintiff does not directly seek the recovery of title or possession of the
property in question.95
(3) A suit that principally seeks the recovery of a sum of money, but in the event of failure of the defendant to voluntarily pay the
amount, the foreclosure on the real estate mortgage shall be commenced and tried in the province where the property or any part
thereof lies.96
PERSONAL ACTION
91
From the Bar 2004 Remedial Law Notes
92
From the Bar 2004 Remedial Law Notes
93
Raymond v. CA, 166 SCRA 50,54 (1988) citing Garcia Fule v. CA. 74 SCRA 50, 54 (1974); Koh v. CA, 70 SCRA 298 (1976).
94
Muñoz v. Llamas, 87 Phil. 737 (1950).
95
Punsalan v. Vda, de Lacsamana, 121 SCRA 331(1983).
96
Navarro v. Lucero, et al., 100 Phil. 147 (1956).

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(1) An action for the dissolution of a partnership is a personal action, even though it may involve a fishpond. Thus, it can be brought
either in the residence of the plaintiff or the defendant, not just where the fishpond is located.97
(2) An action for the recovery of damages is purely personal, despite the prayer for the issuance of a writ of preliminary injunction to
restrain the spouse from selling certain parcels of land belonging to the conjugal partnership.98
(3) An action for specific performance or rescission of contract due to a breach of contract is a personal action. Here, the plaintiff is
not attempting to recover land, but is only claiming rental payments for the use of the land.99
III. PARTIES
1. CAPACITY TO SUE AND BE SUED
 Sec. 1 Who may be parties; plaintiff and defendant.

Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the
claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to
the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant.
 Sec. 4. Spouses as Parties.

Husband and wife shall sue or be sued jointly, except as provided by law.
 Sec. 5. Minor or incompetent persons.

A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has
none, a guardian ad litem.
 Sec. 15. Entity without juridical personality as defendant.

When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.
 A person can become a party if he sues, intervenes or is impleaded.

 But merely being sued does not make him a party. He becomes party not by filing of case against him but
by being summoned.
 Entity without juridical personality cannot sue but can be sued. (ex. frat or law partnership
 Spouses must sue or be sued jointly
EXCEPTION: Wife may sue alone when
1) spouses are judicially separated
2) separation in fact for at least 1 yr
3) sep of prop in M settlements
4) admin of prop in M transferred to wife
5) litigation bet H and W
6) suit concerns her paraphernal prop
7) action is civil liab from crim offense
8) litig is incidental to her profession, occupation or business
9) any civil action in CC 25-35100
10) action upon quasi-delict
 Co-owner can bring action in behalf of co-owners
PHHC v JEREMIAS (1976)

After their loss in an ejectment case, MTC required Jeremias couple to execute surety bond. City Court later gave PHHC writ of
execution against surety bond, from which surety appealed.
Held:
A party is one who is to benefited or injured by a judgment or order of the court, and includes a person who is a party to the record.
When surety filed performance bond to insure execution of judgment in FE and UD case, surety became necessarily a party when it
filed its bond in court and when notice was served on it of the motion for execution. Surety had standing to appeal the order of
execution.
97
Claridades v. Mercader, 17 SCRA 1 (1966).
98
De Guzman v. Genato, 89 SCRA 674 (1979).
99
Davao Abaca Plantation Co. Inc., v. Dole Phils. Inc., 346 SCRA 682 (2000).
100
CC: thoughtless extravagance (25), dignity & privacy (26), refusal of public servant to perform official duty (27), unfair competition (28), acquittal of accused in crim case
(29), separate civil liab from crim offense (30), violation of civil rights (32), defamation, fraud and physical injuries (33), failure of police to render assistance (34), for civil liab
from crime if fiscal refuses to prosecute (35)

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MR Holdings v. Bajar(2002)
If a foreign corporation does business in the Philippines without license, it cannot sue before the Philippine courts; if a foreign
corporation is not doing business in the Philippines, it needs no license to sue before Philippine courts on an isolated transaction or
on a coa entirely independent of any business transaction; and if a foreign corporation does business in the Philippines with the
required license, it can sue before Philippine courts on any transaction.
Doing business implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of
acts or works or the exercise of some of the functions normally incident to, and in progressive prosecution of, the purpose and
object for which the corporation was organized. At this early stage and with petitioner’s acts or transactions limited to the
assignment of contracts, it cannot be said that it had performed acts intended to continue the business for which it was organized.
2. REAL PARTY IN INTEREST

A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails
of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real
party in interest.
 Real party in interest required bec Consti says that judicial power should be exercised to settle actual
controversies
 Test if a person is real party in interest: if there will be double recovery
Sosnow, Kranz, & Simcoe Inc. v. Storatti Corp.

The purpose of the agreements was to secure for the insured Sosnow, et.al. an amount equivalent to their loss without subjecting
the assured to the risk of liability for repayment if no recovery against the 3 rd party (Storatti) can be had, and without transferring to
the insurer by subrogation. The parties had the right so to shape their transactions that title would reside wherever they saw fit. So
long as the wrongdoer against whom the coa is asserted is not subjected to the danger of double recovery, he is in no position to
complain. Plaintiff transferred to their insurers the beneficial interest in any recovery, but refrained from transferring the legal title to
their claims. By retaining title to the coa, the Ps were constituted trustees of an express trust and as such are the real parties in
interest to prosecute the claims.
3. REPRESENTATIVE SUITS
Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a
trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in
his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the
contract involves things belonging to the principal.
 If no executor or administrator for estate of deceased person, heirs may sue or be sued on a claim of or
against the deceased. Suit may be in the heirs’ personal capacity and not as reps of the deceased
although they may be invoking or claiming rights of the deceased.
A) Class Suit
 Rule 3, Sec 12
When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully
protect the interests of all concerned, may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest.
 Common interest must be in the subj matter of the controversy and not in the legal question involved, and
must be common for each member of the class and should not conflict with each other.
 Example: Subd residents question fee of 50 for maintenance of improvements. Can a resident bring class
suit in behalf of all?
Answer: No, because interest of each homeowner is only in their respective lots.
Hansberry v. Lee
Prior case: Burke v. Kleiman, Burke is a landowner who sought to enforce the 95% to allow colored to own lots. Burke lost the case,
the 95% was not met. Present case: Petitioner Hansberry, negroes, wants to own land, invokes that the 95% was met; respondent
cries breach of the agreement, invokes res judicata of prior case.
Held: The restrictive agreement did not create a joint obligation or liability. If valid and effective, its promises were the several
obligations of the signers and those claiming under them. The promises ran severally to every other signer. It is plain that in such
circumstance, all those alleged to be bound by the agreement would not constitute a single class in any litigation brought to enforce

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it, for the agreement imposes obligations and confers rights on the owner of each plot of land; their interests are several and may be
conflicting.
4. JOINDER OF PARTIES
 Sec. 6. Permissive joinder of parties.

All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of
transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join
as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all
such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant
from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.
 Sec. 7. Compulsory joinder of indispensable parties.

Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.
 Sec. 8. Necessary party.

A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to
those already parties, or for a complete determination or settlement of the claim subject of the action.
 Sec. 9. Non-joinder of necessary parties to be pleaded.

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known,
and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such
party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein
shall be without prejudice to the rights of such necessary party.
 Sec. 10. Unwilling co-plaintiff.

If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason
therefor shall be stated in the complaint.
 Sec. 11. Misjoinder and non-joinder of parties.

Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a
misjoined party may be severed and proceeded with separately.
BLUME AND REED, PLEADING AND JOINDER

Joinder of parties has 2 distinct meanings:
1) Joinder of parties- When 2 or more persons have a joint right in one claim, or are jointly liable on one
claim, they must, ordinarily, join as plaintiffs or be joined as defendants.
2) Joinder of claims- When 2 or more persons, each having a claim against another person, join their
claims in one action, it is called joinder of claims, but is usually called joinder of parties
- applies also if plaintiff has several claims against a diff person but joins claims in 1
action
 Requirements for joinder:

1) right to relief in respect to or arising out of the same transaction or series
of transactions
2) question of fact or law common to all
 Joinder is mandatory if there are indispensable parties
 Joinder of necessary parties depends on court. Example of necessary party: junior mortgagee who, if not
made a party in foreclosure, will simply not be bound by judgment
Bank of California v. Superior Court
Other legatees are merely necessary, not indispensable parties. Each distribute is individually held as a constructive trustee solely
of the property which came to him, and none is interested in the granting or denial of similar relief. Plaintiff may litigate her claim
against the appearing defendants alone and obtain a decree which binds them alone, though the entire matter, the disposition of all
the decedent’s property cannot be finally settled without a binding adjudication for or against every legatee.
Olsen v. Bankers Trust Co.

The claims of the plaintiffs maker and payee are not coordinate, alternative, or complementary. They are not joint, nor several, nor
common. They are mutually destructive. If one plaintiff proves his right to recover, the other’s claim [from the bank] must be entirely
extinguished. The right of action is now in the maker and no obligation remains to the payee upon the bank’s part.

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Fortemeyer v. National Biscuit Co.

Why should the plaintiff, having but one cause of action and entitled to only one satisfaction of it be compelled to proceed against
the defendants separately, and bring these separate actions, instead of one, for the same coa?
5. SUBSTITUTION OF PARTIES
Sec. 16. Death of party; duty of counsel.

Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30)
days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the
specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or
administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
Sec. 17. Death or separation of a party who is a public officer.
When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold
office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes
office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need
for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his
predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an opportunity to be heard.
Sec. 18. Incompetency or incapacity.
If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or
against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem.
Sec. 19. Transfer of interest.
In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs
the person to whom the interest is transferred to be substituted in the action or joined with the original party.
Sec. 20. Action on contractual money claims.
When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final
judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.
6. ALTERNATIVE & UNKNOWN DEFENDANTS
Rule 3, Secs. 13 & 14

Sec. 13. Alternative defendants.
Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in
the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.
Sec. 14. Unknown identity or name of defendant.

Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other
designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly
7. INDIGENT PARTY
Rule 3, Sec. 21. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and
basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes
which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted
from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court
should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper
docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by
the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose.

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8. SOLICITOR GENERAL
Rule 3, Sec. 22. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or
regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through
a representative duly designated by him.
9. NEW/ADDITIONAL PARTIES
a. Impleader
Rule 6, Secs. 11 –13

Sec. 11. Third, (fourth, etc.) party complaint.
A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the
action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.
Sec. 12. Bringing new parties.

When the presence of parties other than those to the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them
can be obtained.
Sec. 13. Answer to third (fourth, etc.) party complaint.

A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses
that the third (fourth, etc.) party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a
counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff.
Rule 11, Sec. 5

Answer to third (fourth, etc.)- party complaint.
The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint.
STATE EX REL WILLIAMS v SUPERIOR COURT

Rice & Co. is contractor to build railway. Rice then subcontracted to Cross. In turn, Cross also subcontracted to Williams. Cross later
sued Rice. Williams filed complaint in intervention where he claimed that Cross still owed him money.
Held:
Interest which entitles a party to intervene must be of such direct and immediate character that intervenor will either gain or lose by
the direct legal operation and effect of the judgment. His interest must be such that if orig action had not been brought, and he had
first brought it as sole plaintiff, he would have been entitled to recover in his own name.
Creditor has no such direct interest in litigation that he has right to intervene. He will not suffer loss nor gain by judgment in original
action. If plaintiff loses, creditor still has right to sue plaintiff upon his ©. There is no contractual relation or privity between him and
defendant.
FIRESTONE TIRE AND RUBBER CO. v TEMPONGKO (1969)

Tempongko, defendant, filed 3rd party complaint against Luna. Tempongko ordered to pay Firestone, and Luna ordered to pay
Tempongko. However, only Luna appealed.
Held:
3rd party complaint is a device where a 3rd party, who is neither a party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court by defendant who acts as 3rd party plaintiff. It is actually independent and distinct
from plaintiff’s complaint, but is permitted to avoid circuitry of action and unnecessary proliferation of lawsuits. Court in effect renders
2 judgments in the same case. Therefore, appeal by one party does not benefit the other.
Prior leave of court is necessary, so if 3rd party complaint will only delay, court could require separate action.
Judgment v defendant (who had not appealed) became final and executory.
Venue of 3rd party complaint has to yield to jurisdiction of main action to which it is ancillary (Eastern Assurance and Surety v Cui)
Since 3rd party defendant can usually assert defenses which defendant may have against plaintiff’s original claim, the plaintiff can
assert claim directly vs 3rd party defendant without having to amend his complaint.
b. Intervention
Rule 19
Section 1. Who may intervene.
A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is
so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will

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unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding.
Sec. 2. Time to intervene.

The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention
shall be attached to the motion and served on the original parties.
Sec. 3. Pleadings-in-intervention.
The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-
intervention if he unites with the defending party in resisting a claim against the latter.
Sec. 4. Answer to complaint-in-intervention.

The answer to the complaint-in -intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless
a different period is fixed by the court.
DIRECTOR OF LANDS v CA (1979)

Widow filed for reconstitution of her TCT covering 140 hectares in Muntinlupa and Paranaque. Despite opposition of Dir of Lands,
CA granted reconstitution. Greenfield Devt Corp and Alabang Devt Corp filed for motion to intervene bec the widow’s title would
overlap with their lands. However, motion filed after trial had been concluded and judgment rendered => too late.
Held:
Even if RoC orders intervention before or during trial, denial of motions for intervention would lead Court to commit injustice. There
would be overlap of 78 hectares and due to the many subdivisions built on this area, would bring about swamping of the courts.
Moreover, they are indispensable parties without whom a final adjudication cannot be made in their absence. Their joinder is
compulsory, their presence being sine qua non to exercise of judicial power. There can be no valid judgment if there is want of
indispensable parties.
c. Interpleader
Rule 62
Sec. 1. When interpleader proper.
Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in
the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the
conflicting claimants to compel them to interplead and litigate their several claims among themselves.
Sec. 2. Order.
Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the
interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court.
Sec. 3. Summons.
Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.
Sec. 4. Motion to dismiss.

Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader
action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied,
the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned
from notice of denial.
Sec. 5. Answer and other pleadings.

Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a
copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant
fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring
him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto,
as provided by these Rules.
Sec. 6. Determination.
After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the
court shall proceed to determine their respective rights and adjudicate their several claims.
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens.
The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise.

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WACK WACK GOLF v WON (1976)

Won got judgment ordering Wack Wack to give him membership certif. Bienvenido Tan is also claiming ownership. Wack Wack then
filed complaint of interpleader.
Held:
Interpleader is a remedy where person who has personal prop in his possession or an obl to render wholly or partially, without
claiming any right to either, comes to court and asks that the claimants be required to litigate among themselves. This remedy is
afforded to a person not against double liability but against double vexation in respect of one liability.
Stakeholder should use reasonable diligence to hale contending claimants to court. He should file interpleader within a reasonable
time after a dispute has arisen without waiting to be sued by either of the contending claimants. Otherwise, he may be barred by
laches or undue delay.
Stakeholder’s action of interpleader came too late after judgment had been rendered against him in favor of one of the contending
claimants, esp where he had prior notice of the conflicting claims prior to the rendition of the judgment. Since he is already liable to
one party, interpleader suit is improper and unavailing.
Besides, successful litigant cannot be impleaded by his defeated adversary and compelled to prove his claim anew as that would be
collateral attack upon the judgment.
Interpleader filed too late
Table 2: Intervention v. interpleader

INTERVENTION INTERPLEADER
* An ancillary action. * An original action
* Proper in any of the four situations mentioned in this Rule. * Presupposes that plaintiff has no interest in the subject matter
of the action or has an interest therein, which in whole or in part,
is not disputed by the other parties to the action
* Defendants are already original parties to the pending suit * Defendants are being sued precisely to implead them.
Table 3: Interpleader v. Intervention

INTERPLEADER INTERVENTION
1. an original action 1. ancillary action
2. presupposes that plaintiff has no interest in the subject matter 2. proper in any of the four situations: persons having (a) legal
of the action or has interest therein in whole or in part which is interest in the matter of litigation, or (b) success of either of the
not disputed by the other parties parties, or (c) an interest against both, or (d) is so situated as to
be adversely affected by a distribution or other disposition of
property in the custody of the court or of an offer thereof, (Rule
19, Sec. 1)
3. defendants are being sued precisely to interplead them 3. defendants are original parties to the pending suits
IV. SUMMONS
 A writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance
therein.
 The service of summons enables the court to acquire jurisdiction over the person of the defendant.
 In the absence of service of summons, and unless the defendant waives such defect by his voluntary appearance in court,
any judgment rendered in regard to such defendant is null and void.
 The general rule is that summons is served by the sheriff or the court officer. However, as an exception, the court for
justifiable reason allow any suitable person authorized by the court to serve summons (Sec. 3, Rule 14). An example of
an instance when a suitable person is authorized by the court to serve summons is when the court is overworked and
understaffed or it the court doesn’t know the location.
 Residence as opposed to domicile is physical. It is possible to have more than one residence.
1. Issuance and contents of the summons

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Rules of Court. RULE 14

Sec. 1. Clerk to issue summons.
Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants.
Sec. 2. Contents.
The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: the name of the court
and the names of the parties to the action; a direction that the defendant answer within the time fixed by these Rules; a notice
that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.A copy of
the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the
summons.
2. Service of summons
a.) By whom issued

Sec. 1. Clerk to issue summons.
Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants.
Sec. 5. Issuance of alias summons.
If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return
on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the
summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons.
b.) By whom made

Sec. 3. By whom served.
The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable
person authorized by the court issuing the summons.
CASE:
BELLO v UBO (1982) 117 SCRA 91

Bello filed complaint to recover real prop with damages. Patrolman was the one who served summons. Judgment
issued against defendant in default.
Held:
Summons may be served by the sheriff or other proper court officer, or for special reasons, by a person especially
authorized by the judge. This enumeration is exclusive. Service of summons is irregular if made by police sergeant who is not a
sheriff and who was not authorized by the court. Service of summons invalid. No jurisdiction acquired by the court. Also, return
of service was not under oath, and only one copy of the summons was served on the 2 defendants.
c.) Modes of Service

Sec. 6. Service in person on defendant.
Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to
receive and sign for it, by tendering it to him.
Sec. 7. Substituted service.
If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in
charge thereof.
Sec. 8. Service upon entity without juridical personality.
When persons associated in an entity without juridical personality are sued under the name by which they are generally or
commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge
of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection
with the entity has, upon due notice, been severed before the action was brought.
Sec. 9. Service upon prisoners.

When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the
management of such jail or institution who is deemed deputized as a special sheriff for said purpose.
Sec. 10. Service upon minors and incompetents.
When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal
guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of
a minor, service may also be made on his father or mother.
Sec. 11. Service upon domestic private juridical entity.

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When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house
counsel.
Sec. 12. Service upon foreign private juridical entity.
When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on
its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents within the Philippines.
Sec. 13. Service upon public corporations.
When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city
or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the
law or the court may direct.
Sec. 14. Service upon defendant whose identity or whereabouts are unknown.
In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of
general circulation and in such places and for such time as the court may order.
Sec. 15. Extraterritorial service.
When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or
the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for
such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to
the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.
Sec. 16. Residents temporarily out of the Philippines.
When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it,
service may, by leave of court, be also effected out of the Philippines, as under the preceding section.
Sec. 17. Leave of court.
Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be
made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the
application.
Sec. 20. Voluntary Appearance
The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.
 Form/Directive (R 14, S. 2)
 Directed to the defendant
 Signed by the Clerk of Court under seal
1. File and serve
2. Attach copy of complaint and/or order for appointment of a guardian ad litem, if any
3. Specification of period within which to answer
4. Specification of consequence if D fails to answer, i.e., judgment by default and grant of relief prayed for
 Contents (R14.2)
1. Name of the court
2. Name of the parties to the action
3. A direction that the defendant answer within the time fixed by Rules
4. Notice that unless defendant so answers, plaintiff will take judgment by default and may be granted
the relief applied for.
5. Copy of complaint attached
 When an additional defendant is included in the action, summons should be served upon him.
 When a defendant is merely substituted for the deceased defendant, such as the substitution of the administrator
or the heirs of the deceased, service upon him of the ORDER making him party is sufficient without service of
summons.
 Issuance and Service

 Who issues? Clerk of Court (R 14, S. 1) upon filing of complaint and payment of the requisite legal fees
 Who serves?
1. sheriff
2. sheriff’s deputy
3. other proper court officer
4. any suitable person authorized by the court issuing the summons

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 Types of Service:
1. Personal
a. handing
b. tendering – occurs when the person refuses (But what do you exactly mean by tendering; is putting it
under the door tendering?)
2. Substituted – This is allowed only when the defendant cannot be served summons by personal service; In the
sheriff’s return, there must be a statement that says that personal service is not possible. It must state the efforts
exerted by the sheriff.
a. Residence – with some person of suitable age and discretion residing therein
b. Office – with some competent person in charge thereof
- One cannot leave summons with a receptionist since the person is not in charge of the office.
- Read the Laus case (219 SCRA 688). This is the law now. The Supreme Court set a very strict
standard. The standard is such because substituted service is an extreme case.
3. Publication
4. By other means – Under the Electronic Commerce Act, summons may be served by fax or even e-mail. However,
one cannot serve summons by a pigeon or through smoke signals. According to Prof. Bautista, registered mail is
also one of the other means by which summons may be served if the court deems it sufficient.
 Extraterritorial service is proper only in 4 instances:
1. when the action affects the personal status of the plaintiff;

2. when the action relates to, or the subject of which is property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent;
3. when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; and
4. when the defendant non-resident’s property has been attached in the Philippines
 For a newspaper to be a newspaper of general circulation, the following elements must concur:
1. it must be a newspaper, i.e. it published local news and general information, not merely feature articles;
2. published at regular intervals (not just occasionally);
3. published for the general public and not just a specific group of persons
 Thus, the Pinoy Times is probably not a newspaper since it does not contain any news articles. It only has
featured articles. (Although as of 1 February 2001, it appears that the Pinoy Times has “evolved” into a
newspaper by now publishing predominantly news and matters of general interest.) The Supreme Court in
one case said that the Daily Record was a newspaper of general circulation.
 Where summons effective:
Rule 135 (1997)
 Sec. 3 - Process of superior courts enforced throughout RP

 Sec. 4 - Process of inferior courts enforceable within the province where the municipality or city lies may be served
outside province with the approval of the RTC Judge of said province & only in the ff cases:
1. when order for DELIVERY OF PERSONAL PROPERTY lying outside the province is to be complied with;
2. when an ATTACHMENT of REAL property lying outside the province is to be made;
3. when the action is against 2 or more defendants residing in different provinces; and
4. when the place where the case has been brought is that specified in a contract in writing between the
parties, or is the place of the execution of such contract as appears therefrom.
BP 129, as amended (1980)
- Sec. 38 (2) - Judgments and processes issued by the METC, MTC and MCTC , in cases falling under their jurisdictions,
may be served ANYWHERE in the Philippines without the necessity of certification by the Judge of the RTC.
 Modes of Service of Summons:
Handing it to defendant
Personal

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Tendering it if D refuses to receive it
Handing v. Tender  note that in both of these modes of personal service, location is
not important, so service could be done anywhere, no need for it to be made at the
residence of the D
WHERE WITH WHOM

residence suitable age & discretion &
residing therein
Substituted
**when D can’t be
served within office or place competent person in
reasonable time of business charge thereof
Justifiable reasons for substituted service:
(a) staff not available (understaffed)

(b) distance
(c) identification of person to be sued
e..g. Tatalon estate; squatters area/houses with no numbers
Publication
- Must be in a newspaper of general circulation
- Defendant whose identity or whereabouts unknown {R 14 (14)}
Extraterritorial Service
- HOW DONE? By leave of court
- Either by:
a) personal service OR
b) publication in a newspaper of general circulation in such places and for such time as the court may order,
copy of summons and order of court sent by registered mail to last known address.
- Order granting such leave shall specify reasonable time within w/c def must answer  must not be less than
60 days
- When applicable:
a) D does not reside and is not found in RP AND action :
 affects the PERSONAL STATUS of the plaintiff OR
 relates to or the subject matter of which is PROPERTY W/IN RP in which the D has or claims a lien or
interest, actual or contingent, OR
 in which the RELIEF demand consists, wholly or in part, in EXCLUDING D from any interest therein
OR
 property of D has already been attached w/in RP
- In cases falling under extraterritorial service [R 14(15)], service by publication must be COUPLED with
sending of summons and order of the court by REGISTERED MAIL to the last known address of the D.
Registered mail  note the numbering machine has a lock to prevent tampering
b) D is resident but temporarily outside of RP (but resort to substituted service first**)
Any other manner – as the court may deem sufficient

CASES:
LAUS v CA (1993) 219 SCRA 688

Torres sued Laus for a sum of money. Sheriff went to Laus’ house to serve the summons and copy of the complaint. He
waited for only 10 minutes before he left it on a maid. Judgment in default vs Laus.
Held:
Gen rule is that summons must be personally served, to be accomplished by handing a copy to the defendant in person or
if he refuses to receive it, by tendering it to him. If this mode cannot be effected within a reasonable time, substituted service may be
resorted to by a) leaving copies at defendant’s dwelling house or residence with some person of suitable age and discretion residing
therein, or b) by leaving copies at defendant’s office or regular place of business with some competent person in charge thereof.
“Within a reasonable time” – contemplates period of time longer than “prompt”, and presupposes a prior attempt at
personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court.
Since substituted service is in derogation of the common law and is extraordinary in character, it must be used as prescribed and in
the circumstances authorized by statute. Statutes prescribing modes other than personal service must be strictly complied with to
give the court jurisdiction. If substituted service not validly effected, trial court doesn’t acquire jurisdiction. Service of summons may
be made at night as well as during the day, or even on a Sunday or holiday bec of its ministerial character. If defendant not properly
summoned, period to file MTD for lack of jurisdiction over his person does not commence to run until he voluntarily submits to
jurisdiction of the trial court. Sheriff’s return did not indicate impossibility of service of summons within a reasonable time, specify the

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efforts to locate petitioners, or state that it was served on person of sufficient age and discretion. He could have returned in the
evening or during the weekend. Also, no proof of service on husband.
KEISTER v NAVARRO (1977) 77 SCRA 209

Keister, pres of Batjak, was sued by Batjak for selling a company car. Summons served at his lawyer’s office, the address
given by Batjak, even if Batjak knew his home and office address.
Held:
Service of summons upon def is the means by which the court may acquire jurisdiction over his person. In such absence
of a valid waiver, trial and judgment without such service are null and void. This process is solely for the benefit of the defendant. Its
purpose is to give court jurisdiction of the person and to give defendant an opportunity to be heard on the claim made against him.
Summons must be served to def in person. Only when he cannot be served personally within a reasonable time can a
substituted service be made. Impossibility of service should be shown by stating the efforts made to find the defendant personally
and the fact that such efforts failed. This statement should be made in the proof of service, bec substituted service is in derogation
of usual method of service. Dwelling house or residence should be where he is living at the time service is made, not the former
dwelling house. Office or regular place of business=> at the time of service. Such relation of confidence must exist bet person with
whom copy is left and the defendant, and therefore assumes that such person will deliver the process to defendant or in some way
give him notice thereof.
SUMMIT TRADING v AVENDANO (1985) 135 SCRA 397

Vendors a retro sued the vendee and Summit Trading, to whom the land was subsequently transferred. Summons and the
default judgment were served on Summit through the secretary of Summit’s president.
Held:
While technically, no strict compliance with rule that service on pvt domestic corp or partnership must be made on the
president, mgr, sec, cashier, agent or any of its directors, President’s sec may be regarded as an agent bec it is through secretary
that Pres normally has contact with outside world. Also, service of judgment came to notice of Summit also through secretary. Cf:
Delta Motor v Mangosing: invalid summons on mere clerks who cannot be relied on to know what to do with legal papers
CARIAGA JR. v MALAYA (1986) 143 SCRA 441

Cariaga (defendants), sued for recovery of real prop, were both residing abroad and not served with summons. CFI
approved plaintiff’s motions to effect extra-territorial service by registered mail abroad. Def made special appearance to move that
service by registered mail null and void,
Held:
Extraterritorial service of summons is proper when
1) action affects personal status of the plaintiff
2) action relates to, or the subj of which is prop within the Phils
3) when relief demanded consist in excluding def from any int in prop located in the Phils
4) when defendant’s nonresident prop has been attached within the Phils (Sec 17, Rule 14, RoC)
In any of these 4 cases, service may, with leave of court, be effected out of the Phils, in 3 ways:
1) by personal service
2) by publ in newspaper of gen circulation as the court may order + copy of summons and court order sent by registered
mail to last known address
3) in any other manner as court may deem sufficient
3rd mode was substantially complied with
whatever defect in summons corrected by 2nd order giving them 90 days anew to file pleadings
MCDONALD v MABEE (US, 1917)

Mabee served with summons by publ only in newspaper once a week for 4 weeks. However, he had already left the state with intent
to establish a home elsewhere, even as his family stayed behind.
Held:
Service by publ does not warrant a personal judgment against a non-resident. Advertisement in local newspaper is not
sufficient notice to bind a person who has left a State intending not to return. To dispense with personal service, the substitute that is
most likely to reach the defendant is the least that ought to be required if substantial justice is to be done.
GILBERT v BURNSTINE (US, 1931)

Burnstine are residents of New York. They contracted to sell within US, but stipulated that all differences to be arbitrated
at London pursuant to Arbitration Law of Great Britain. Plaintiff obtained summons from King, which was served in New York.
Held:
Generally, extraterritorial jurisdiction of alien tribunals is denied. But © in advance to submit to foreign tribunals
partake of strictly pvt business, and is not void as against public policy. Jurisdiction over the person of the defendant may be
acquired by his consent.
MAGDALENA ESTATE v NIETO (1983) 125 SCRA 758

Action for sum of money. Defendants allegedly concealed themselves to avoid service, so court ordered service through
publication.
Held:

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Personal service within the state or a voluntary appearance in the case is essential to acquisition of jurisdiction.
In actions in personam, personal service of summons is essential. Due process requires personal service to support a personal
judgment. Proper recourse of creditors is to locate properties, real or personal, of the resident defendant debtor with unknown
address and cause them to be attached, in which case the attachment converts the action into a proceeding in rem or quasi in rem
and the summons by publ may then be deemed valid and effective.
UNITED COCONUT PLANTERS BANK v ONGPIN (2001) 368 SCRA 464

UCPB sued Ongpin, surety of his company’s debt to UCPB, for enforcement of his obl. He transferred residence to HK in fraud of
creditors. Publication of summons held in abeyance, although court granted permission. Sheriff served summons on exec secretary
of Piltel, where Ongpin is chairman of the board. Refused to be received by Ongpin’s lawyer.
Held:
Party who makes special appearance in court challenging jurisdiction based on ground of eg. invalidity of service of
summons cannot be considered to have submitted himself to the jurisdiction of the court. Jurisdiction cannot be acquired over
person of respondent even if he knows of the case against him unless he is validly served with summons. Office or regular place of
business must be office or place at time of service. It doesn’t necessarily follow that regular place of chairman of board is the same
as address of the corp since possible for him to hold ofc elsewhere. If def is non-resident and his prop on the Phils had been
attached, or if whereabouts of def is unknown and cannot be ascertained with diligent inquiry, service may, by leave of court, be
effected outside the Phils or by publication in a newspaper of general circulation.
Table 4: Comparative Modes of Service and Filing

Summons Pleadings & Other papers Final Orders & Judgments
Mode of Service 1. Personal 1. personal 1. personal

* Handing * delivery to 2. mail
* tendering party/counsel * registered
2. substituted * leaving it in office 3. publication if D summoned by
* residence: with with clerk or person publication fails to appear in
resident of in charge action
sufficient age & * leaving it in
discretion residence of party or
* office/regular place counsel from 8 am
of business: to 6 pm
some competent 2. substituted
person in charge * with clerk of court
thereof after personal
3. publication service fails
4. any other means 3. mail
 registered (date of
mailing is date of
filing)
 ordinary
Mode of Filing n/a 1. personal 1. Personal

2. registered mail 2. Mail
 registered
 ordinary
d.) Proof of Service, Alias Summons

If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the
plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has
been lost, the clerk, on demand of the plaintiff, may issue an alias summons.
Sec. 18. Proof of service.
The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service;
shall specify any papers which have been served with the process and the name of the person who received the same; and shall be
sworn to when made by a person other than a sheriff or his deputy.
Sec. 19. Proof of service by publication.
If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of
the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing
the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address.
CASE:

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MECHANICAL APPLIANCE v CASTLEMAN (1910)

Action in Missouri against Mechanical Appliance. Summons served in Missouri on its agent in Missouri. Mechanical said
that it did not have any agent in Missouri.
Held:
Foreign corp may be served with process within the State only when it is doing business there, and such
service must be made upon an agent who represents the corp in its business. Return of sheriff is not conclusive upon question of
validity of service or process (esp when recital of facts involves legal component)
e.) Return of Service

Sec. 4. Return.
When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by
registered mail, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service.
(6a)
If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the
plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has
been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a)
3. Voluntary Appearance

Sec. 20. Voluntary appearance.
The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)
CASES:
UCPB v ONGPIN (2001)

Held: Party who makes special appearance in court challenging jurisdiction based on ground of eg. invalidity of service of summons
cannot be considered to have submitted himself to the jurisdiction of the court.
OROSA v CA (1996) 261 SCRA 376

Orosa et al were sued of sum of money. Summons on one def through his secretary; one def through his employee. They
asked for more time to file answer. In questioning the default judgment vs them, they questioned summons.
Held:
Any flaw in sheriff’s return which failed to state particulars of impossibility of personal service within a reasonable time was
deemed waived by filing of motion for additional time to file answer. Whatever defect there was in the mode of service of summons
was deemed waived and the court acquired jurisdiction over the persons of petitioners by their voluntary submissions thereto.
But inclusion of other grounds in special appearance ≠ voluntary appearance.
Table 5: Completeness of a Service

1. Personal Service
- By handing a copy to defendant; or
- Tendering him a copy if he refuses
- Complete upon actual delivery
2. Service by ordinary mail:
Complete upon expiration of 10 days after mailing, unless the court provides otherwise.
3. Service by registered mail:
(a) Complete upon actual receipt by the addressee; or
(b) After 5 days from the date he received the first notice of the postmaster, whichever date is earlier.
What pleadings have to be verified:
a. Petition for relief from judgment (38.3)

b. Appeal by certiorari from CA to SC (45.1)
c. Complaint with prayer for preliminary attachment (57. 3)
d. Complaint for injunction (58.4)
e. Complaint for replevin (60.2)
f. Petition for certiorari (65.1)
g. Petition for prohibition (65.2)
h. Petition for mandamus (65.3)

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i. Complaint for forcible entry or unlawful detainer (70.4)

j. Petition for appointment of general guardian (93.2)
k. Petition for leave to sell or encumber property of estate or guardian (95.1)
l. Petition for declaration of competency of the ward (97.1)
m. Petition for habeas corpus (102.3)
n. Petition for change of name (103.2)
o. Petition for voluntary dissolution of a corporation (104.1)
p. Petition for cancellation or correction of entries in the civil registry (108.1)
q. Petition to take deposition in perpetuam rei memoriam (before action or pending appeal) (24.2)
r. Motion to set aside a default order of an inferior court
s. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party
can be fully compensated
t. Petition for appointment of receiver
u. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of the inferior court, by and
elevated to the CA.
v. Pleadings that need not be verified but must be under oath:
w. Denial of the genuineness and due execution of an actionable document (8.8)
x. Denial of allegations of usury (8.11)
y. Answer to written interrogatories (25.2)
z. Answer to request for admission (26.2)
aa. Notice of appeal from administrative tribunals to the CA
Supporting affidavits of merit required:
a. Motion to postpone for absence of evidence (30.3)

b. Motion to postpone for illness of a party or counsel (30.4)
c. Motion for summary judgment or opposition thereto (35.1,2,3,5)
d. Motion for new trial on the ground of FAME or opposition thereto (37.2)
e. Petition for relief from judgment (38.3)
f. Third-party claim (39.16)
g. Proof required of a redemptioner (39.30)
h. Motion for preliminary attachment (57.3)
i. Motion for dissolution of preliminary injunction (58.6)
j. Application for writ of replevin (60.2)
k. Claim against the estate of the decedent (86.9)
l. Motion for new trial based on newly discovered evidence in criminal cases (121.4)
CERTIFICATION AGAINST FORUM-SHOPPING:
Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification
annexed and filed therewith:
a. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial
agency; to the best of his knowledge no such other claim or action pending;
b. If there is such other pending action, a complete statement of the present status thereof;
c. If he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 5 days
therefrom to the court where he filed his complaint.
NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL
BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY
CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE
AND CONSTITUTE DIRECT CONTEMPT.
 For Forum-Shopping to exist, there must be:
i. Same transactions involved;
ii. Same essential facts and circumstances; and
iii. Actions raise identical cause of action, subject matter, and issues
Table 6: Modes of Service

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A. JUDGMENTS, FINAL ORDERS AND RESOLUTIONS

(a) By personal service; or
(b) By service by mail;
(c) By service by publication, if party is summoned by publication and has failed to appear in the action, judgment, final order or
resolution.
- They can be served only under the three modes.

* - They CANNOT be served by substituted service.
B. PLEADINGS
1. personal service
(a) Delivering personally a copy to the party or his counsel or;
(b) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof or;
(c) Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and
discretion residing therein – if no person found in his office, or if his office is unknown, or if he has no office.
2. service by mail
(a) If no registry service is available in the locality, of either sender or addresses, service may be done by ordinary mail.
(b) With proof of failure of both personal and service by mail.
Table 7: Service of Summons on Different Entities

A. SERVICE ON ENTITY WITHOUT - Upon any or all defendants being sued under common name; or
JURIDICAL PERSONALITY - Person in charge of office
B. SERVICE UPON MINORS AND - Serve personally and on guardian or any person exercising parental authority
INCOMPETENTS over him;
- In case of minors: by serving upon the minor, regardless of age, AND upon
his legal guardian, or also upon either of his parents.
- In case of incompetents: by serving on him personally AND upon his legal
guardian, but not upon his parents, unless when they are his legal guardians
- IN ANY EVENT, if the minor or incompetent has no legal guardian, the
plaintiff must obtain the appointment of a guardian ad item for him.
C. SERVICE UPON PRISONER - Serve an officer having management of the jail or prison
D. SERVICE UPON DOMESTIC - To the president, managing partner, general manager, corporate secretary,
PRIVATE JURIDICAL ENTITY treasurer or in-house counsel
- Service upon a person other than those mentioned is invalid and does not
bind the corporation.
E. SERVICE UPON FOREIGN - Serve on (15) resident agent; or if none;
PRIVATE JURIDICAL ENTITY - Gov’t official (30) designated by law; or
- On any officer or agent of the corporation within the Philippines
F. SERVICE UPON PUBLIC - In case defendant is the Republic of the Philippines – by serving upon the
CORPORATIONS Solicitor General
- In case of a province, city or municipality, or like public corporations – by
serving on its executive head, or on such other officer or officers as the law
or the court may direct.
G. EXTRA-TERRITORIAL SERVICE 1. Requisites
a) Defendant does not reside or is not found within the Philippines
b) The action either:
* Affects the status of the plaintiff;
* Relates to or the subject of which is property within the Philippines on which
defendant has a lien or interest;
* Demands a relief which consists wholly or in part in excluding the defendant from any
interest in any property within the Philippines;
* Property of defendant has been attached to the Philippines
2. Mode of Service
a) With leave of court served outside the Phil. By personal service; or
b) With leave of court served by publication in a newspaper of general circulation, in
which case copy of the summons and order of court must also be sent by registered
mail to the last known address of defendant; or
c) Any other manner the court deem sufficient.
H. SERVICE UPON RESIDENT Substituted service or with leave of court, personal service out of the Philippines as
TEMPORARILY OUT OF THE under extraterritorial service.
PHILIPPINES
V. PLEADINGS
1. Pleadings in general

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a.)
Sec. 1. Pleadings defined.
Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for
appropriate judgment.
Sec. 2. Pleadings allowed.
The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-
in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against him.
An answer may be responded to by a reply.
Sec. 1. In general.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on
which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and
concisely stated.
b.)
Sec. 36, BP 129
Summary procedure in special cases.
In MeTCs and MTCs with at least 2 branches, the SC may designate 1 or more branches thereof to try exclusively FE and UD
cases, those involving violations of traffic laws, rules and regulations, violations of the rental law, and such other cases
involving summary disposition as the SC may determine. The SC shall adopt special rules or procedures applicable to such
cases in order to achieve an expeditious and inexpensive determination thereof w/o regard to technical rules. Such simplified
procedures may provide that affidavits and counter-affidavits may be admitted in lieu of oral testimony and that the periods for
filing pleadings shall be non-extendible.
c.) see Revised Rules on Summary Procedure, November 15, 1991
CLARK, SIMPLIFIED PLEADING

In Continental Europe, parties are not bound by the pleadings.
Anglo-Saxon: pleading binds parties
Pleadings, at the minimum, must sufficiently differentiate the situation of fact which is being litigated from all others to allow
application of res judicata. They will also show type of cases brought for proper routing. These minimal requirements do not force a
pleader to allege all the fine details or to include legal conclusions.
SIMPSON, A POSSIBLE SOLUTION OF THE PLEADING PROBLEMS

Pleadings should inform each side of the contentions of the other as to matters of fact. They should tell the defendant what he is
being sued for; they should tell the plaintiff what defenses the defendant proposes to make. Pleadings should facilitate preparation
for trial and formulate the issues to be tried.
Code system of pleading- complaint, answer and reply pleads facts sufficient to give a right of action
Possible solution: notice pleading- only a general statement by plaintiff of his claim and by defendant of his defense. However,
there’s high possibility of surprise.
JAMES AND HAZARD

Pleadings are a way of showing that the case falls within the court’s categories of jurisdiction.
Imposing on a plaintiff a requirement that the claim be articulated in detail means that only claimants who have access to such detail
can state a claim. But a liberal rule which does not require such details allows claimants who have such details to bring litig on
suspicion only.
2. The complaint
a) Rules of Court
Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and
defendant must be stated in the complaint.
Sec. 1. Ordinary civil actions, basis of.
Every ordinary civil action must be based on a cause of action.
Sec. 2. Cause of action, defined.
A cause of action is the act or omission by which a party violates a right of another.

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b.)
BP 129, Sec 33
(1) Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. -
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:
Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not
exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of
the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest,
damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing
fees: Provided, further, That where there are several claims or causes of actions between the same or different parties,
embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different transactions;
JAMES AND HAZARD

Code requirement against pleading law means that it is improper to plead facts according to their legal effect. However, it is natural
to use words which give the facts legal coloring.
The pleader wants not only to protect himself against the possibility of surprise but also to show as little of his hand as possible to
his adversary.
However, social interest is best served by full mutual disclosure of all pertinent info about the controversy
CASES:
CALLAHAN v BRODERICK (1899)

The complaint alleged that the Board of Commissioners approved unlawful demands on a fund and sought to restrain the
audit of such demands. Demurrer for insufficiency of facts.
Held:
There are no averments of fact from which it can be determined whether the demands are or are not illegal or
unauthorized. There is no statement of the character of the demands. Necessity for a statement of the facts essential to a right
claimed is not obviated by averments of legal conclusions for allegations of conclusions of law will be disregarded in considering
objections raised by demurrer. A conclusion of law tenders no issue, and a complaint of law tenders no issue. Code provision
requires a concise statement of facts constituting the cause of action.
GILLISPIE v GOODYEAR SERVICE STORE (1963)

Complaint alleged that Goodyear, without cause or just excuse and maliciously came upon and trespassed upon plaintiff’s
residence, and which placed her in great fear and public scorn.
Held:
Complaint must contain a plain and concise statement of the facts constituting a cause of action, determinative of the
plaintiff’s right to relief. The law is presumed to be known, but the facts to which the law is to be applied are not known until properly
presented by pleading. The facts alleged, but not the pleader’s legal conclusions, are deemed admitted when the sufficiency of the
complaint is tested by demurrer. Where it merely alleges conclusions and not facts, it fails to state a cause of action and is
demurrable. In an action or defense based upon negligence, it is not sufficient to allege the mere happening of an injurious event
and call it negligence. Negligence is not a fact in itself, but is the legal result of certain facts.
 Complaint does not state what occurred, when, where etc.
 Note though that pleadings can assert only conclusions of law only when the defense relied on is based on
law. But the complaint should always state the facts.
c.) Splitting & Joinder of Causes of Action
(1).
Sec. 3. One suit for a single cause of action.
A party may not institute more than one suit for a single cause of action.
Sec. 4. Splitting a single cause of action; effect of.
If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits
in any one is available as a ground for the dismissal of the others.
Sec. 5. Joinder of causes of action.
A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an
opposing party, subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules;
(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall

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be the test of jurisdiction.

Sec. 6. Misjoinder of causes of action.
Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a
party or on the initiative of the court, be severed and proceeded with separately.
 Joinder of parties is compulsory if it’s a class suit. But joinder of claims may be permissive (but of course they are required
to plead everything constituting a single cause of action)
CASE:
DE LUZURIAGA v ADIL (1985) 136 SCRA 279
Luzuriaga sued Young in CFI for quieting, annulment and declaration of ownership. 3 days later, he sued Young again for FE with
damages in MTC. Young filed MTD based on litis pendentia. CFI judges said 2 causes of action must be joined in one suit and
ordered MTC case dismissed.
Held:
Party may institute only one suit for a single cause of action. Filing of 1 st suit may be pleaded in abatement of the other, and a
judgment upon the merits in anyone is available as a bar to others. Rule against splitting of action is to prevent repeated litigation
bet the same parties in regard to the same subject controversy, to protect defendant from unnecessary vexation, and to avoid costs
of numerous suits.
Issue of possession is connected with ownership. MTC judge should dismiss 2nd case.
3. The answer
a. Rule 6, Secs. 4 & 5; Rule 8, Secs. 10 & 11; Rule 9, Secs. 1-2
Sec. 4. Answer.
An answer is a pleading in which a defending party sets forth his defenses. (4a)
Sec. 5. Defenses.
Defenses may either be negative or affirmative.
(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his
cause or causes of action.
(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute
of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance. (5a)
Sec. 10. Specific denial.
A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny
only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the
complaint, he shall so state, and this shall have the effect of a denial. (10a)
Sec. 11. Allegations not specifically denied deemed admitted.
Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted
when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not
denied under oath. (1a, R9)
Sec. 1. Defenses and objections not pleaded.
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim. (2a)
Sec.2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)
CASES:
CANFIELD v TOBIAS (1863)
P Canfield filed action to recover balance due on an account of D Tobias. D’s answer admits indebtedness but claims that P
received promissory notes as payment. His answer also contains a copy of the receipt of the notes signed by P and claims that the
notes were paid.
Plaintiff however claims that the answer fails to deny his allegation in the complaint that D procured the arrangement with fraud and
misrepresentation.
Issue: WON an inference of truth can be drawn from the answer’s failure to deny allegations of F & M in the complaint. No
Held: The statute states that every material allegation in the complaint not specifically controverted in the answer shall be taken as
true; a material allegation us one which is essential to the claim and cannot be stricken from the pleading without leaving it
insufficient.

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P’s allegations were inserted by way of anticipation and are not part of the cause of action necessary to be stated in the first place.
They are not required to be stated in the complaint. allegations inserted to intercept or cut-off a defense are superfluous and
immaterial.
The purpose of the pleading is to put the D upon his oath without making him a witness, and the effect of allowing it would be to
establish a system of discovery in conflict with the spirit of the statute.
CRAMER v AIKEN (1934)

P James Cramer filed an action to recover damages for malicious prosecution and false arrest against D Ernest Aiken. It appears
the Cramer was imprisoned for 12 hours upon charges of larceny; he was acquitted. D moved for a directed verdict, TC ruled in
favor of D. P excepted and appealed: that D’s pleas were not denials of the allegations, were negative pregnant and constituted an
admission; that all he has to do was prove damages.
Issue: WON D’s answer was a negative pregnant: No
Held: A negative pregnant is a form of denial which implies an affirmative, or a denial in such a form as to imply or express an
admission of the substantial fact which apparently is controverted, or a denial, although in form of traverse, which really admits the
important facts in the allegations. A negative pregnant is a fault in pleading for it is ambiguous and evasive. But prohibition against it
is not strictly construed and an objection to it is not regarded favorably if made before trial. A literal denial is not a negative pregnant.
A reasonable interpretation of the denials in the plea is that D did not deny that he has imprisoned P, but he denied that it was done
unlawfully. This is a traverse of the charge of unlawful detention. The allegation of unlawfulness is material to P’s case, he has the
burden of proving that there was malice, no reasonable and probable cause for his prosecution. P failed to present proof.
HOME INSURANCE CO. v EASTERN SHIPPING LINES (1983) 123 SCRA 424
This is a consolidation of 2 cases: case 1: P insured Atlas Cons. Mining’s shipment of coils of copper wire rods by Eastern Shipping.
There was loss of 590 kg., P paid Atlas, became subrogated against Eastern Shipping.
Case 2: P insured shipment of 30 packages of service parts of farm equipment for Harvester Macleod by Columbian Phil. 1 package
was short and 5 had missing items, P paid insured and became subrogated. P now claims payment from the carriers. Ds, in their
answers, denied P’s capacity to sue for lack of knowledge or information sufficient to form a belief as to the truth thereof. At the time
the insurance contracts were entered into, P had no license. But when it filed the present suit, it was already licensed.
CFI dismissed complaints of P Home Insurance Co. on the ground that it had failed to prove its capacity to sue. It cites Sec. 68 & 69
of the Corporation Law requiring license for foreign corporation to do business as policy designed to protect public interest.
Contracts entered into are void under CC 1409(1). P files this petition for review on certiorari.
Issues: 1. WON contracts null & void. No
2. WON D’s denial re P’s capacity adequate. No
Held: 1. the purpose of Sec 68 and 69 is to subject foreign corporations to the jurisdiction of the court. It is not necessary to declare
the contract null and void against erring foreign corp, the penal sanction and denial of access to our courts are sufficient for policy.
Lack of capacity at the time of execution of contracts was cured by subsequent registration.
2. P sufficiently alleged its capacity to sue. D countered either with an admission or with a general denial bases on lack of
knowledge or information sufficient to form a belief as to the truth of the averments. The denial is inadequate: Section 4 Rule 8
states:
“Capacity. — Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association of person that is made a party, must be averred. A party
desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative
capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's
knowledge. (4)”
WILLIAMS v ROBINSON (1940)

D Robinson’s wife filed suit for maintenance, D answered with counter-claim (the case uses the term cross-claim which is
erroneous): absolute divorce for adultery with P Williams as co-respondent. P answered cc with denial. P then filed this suit for libel
and slander against D, for maliciously and falsely charging him in the cc for adultery. D moved to dismiss: P failed to assert claim in
the cc in the maintenance suit, invoking rule 13(a) of the FRCP, therefore, P is now precluded (barred) from asserting it in an
independent action.
Rule 13(a) relates to compulsory counterclaim: it required P to state as a counterclaim any claim he had, at the time of filing his
answer to maintenance suit, against D, if it arose out of the transaction or occurrence that was the subject matter of D’s
counterclaim (adultery) in the maintenance suit.
Issue: WON libel and slander arose out of the same transaction or occurrence that was the subject matter of D’s cross-complaint.
No.
Held: The acts of adultery and the subsequent accusations regarding such adultery are NOT one and the same transaction or
occurrence. A “transaction” denotes something done, a completed action, an affair as a whole. An “occurrence” is a happening,
incident, or event. The words “transaction” and “occurrence” as used in Rule 13(a) include the facts and circumstances out of which
a cause of action may arise. Test: will the same evidence support or refute the opposing claims? Clearly the use of defamatory
language constituted no portion of the facts and circumstances in the counterclaim for adultery; there is no common point between
the causes of action.
To sustain D’s motion to dismiss would require P to admit that there was a transaction or occurrence as alleged by D. P makes no
such admission but specifically denies the acts of adultery.
4. Counterclaim and cross-claim

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a. Rule 6, Secs. 6-9, 12; Rule 9, Sec. 2; Rule 11, Secs. 8-10
Sec. 6. Counterclaim.
A counterclaim is any claim which a defending party may have against an opposing party.
Sec. 7. Compulsory counterclaim.
A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with
the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within
the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional
Trial Court, the counterclaim may be considered compulsory regardless of the amount.
Sec. 8. Cross-claim.
A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-
claimant.
Sec. 9. Counter-counterclaims and counter-cross-claims.
A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original
cross-claimant.
Sec. 12. Bringing new parties.
When the presence of parties other than those to the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over
them can be obtained.
Sec. 2. Counterclaim or cross-claim not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred.
Sec. 8. Existing counterclaim or cross-claim.
A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained
therein.
Sec. 9. Counterclaim or cross-claim arising after answer.
A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment.
Sec. 10. Omitted counterclaim or cross-claim.
When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.
 Cross-claim, unlike counterclaim, is always compulsory

 But cross claim, like compulsory counterclaim: if not set up, is barred
CASES:
International Container Terminal Services Inc. v. CA (1992)
Sharp Inc. filed a complaint for prohibition with preliminary injunction against DOTC Secretary, the PPA, and ICTSI, enjoining the
negotiation and awarding of contract for the dev’t, mgt., and operation of the Container Terminal of the Port of Manila to ICTSI as
winning bidder. TC issued writ of preliminary injunction. ICTSI filed an answer with compulsory counterclaim for damages (more
than PhP100M) for Sharp’s unfounded and frivolous action. SC nullified preliminary injunction. PPA and ICTSI filed motion to
dismiss Sharp’s complaint. Both complaint and counterclaim were dismissed by RTC, upheld by CA. ICTSI files petition for review
claiming that counterclaim should not have been dismissed.
Issue: WON the counterclaim could remain pending despite dismissal of original complaint. No
Held: ICTSI’s counterclaim was clearly compulsory. It was not permissive, it had no independent existence being merely ancillary to
the main action. CC is compulsory where:
1. it arose out of, or is necessarily connected with, the same transaction or occurrence that is the subject matter of the opposing
party’s claim;
2. it does not require for its adjudication the presence of 3rd parties over whom the court cannot acquire jurisdiction;
3. the court has jurisdiction to entertain the claim.
The same evidence needed to sustain the cc would also refute the cause of action alleged by Sharp’s complaint. Therefore, it could
not remain pending for independent adjudication, i.e. without adjudication by the court of the complaint itself on which the cc is
based.
Rule 17, Section 2 is determinative
Meliton v. CA (1992)
Respondent Nelia Ziga filed a complaint against Petitioner Lydia Meliton for a rescission of a contract of lease over a parcel of land
in Naga City, for failure to deposit one month rental and pay monthly rents; construction of a concrete wall and roof without lessor’s
consent; and unauthorized sublease. Meliton filed an answer denying material averments and set-up 3 counterclaims: value of
kitchenette, improvements, and furnitures and fixtures that were demolished by Ziga, plus damages. Ziga’s complaint, upon Ziga’s
motion, was dismissed by TC: moot and academic by the expiration of lease contract. P’s counterclaim was also dismissed for non-
payment of docket fees (lack of jurisdiction). P filed this complaint for recovery of the same amounts in the cc. R filed motion to

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dismiss: barred by prior judgment of dismissal. TC denied motion. CA reversed and dismissed complaint. Hence this appeal by
certiorari.
Issue: WON CC are compulsory. YES
WON Ps are barred from asserting claims in another action (having failed to seek reconsideration or appeal from dismissal). NO
Held: 1. Test of compulsoriness: the logical relationship between the claim alleged in the complaint and that in the cc, i.e. where
conducting separate trials would entail a substantial duplication of effort and time, as where they involve many of the same factual &
legal issues. Here, both claims arose from the same contract of lease: their rights and obligations and their potential liability for
damages emanated from the same contractual relation.
2.A compulsory cc made the subject of a separate suit may be abated upon a plea of auter action pendant (litis pendentia) or res
judicata depending on the stage of the suit. Both cannot be invoked by R Ziga. Dismissal of complaint was made under Rule 17.2.
and dismissal thereunder is without prejudice except when stated in mtd or upon court’s order. Same rule applies to CC by parity of
rationale. CC was due to lack of jurisdiction for failure to pay docket fees: dismissal for lack of jurisdiction does not constitute res
judicata (not tried on merits).
The order of dismissal impliedly did not intend to prejudice the claims of P by barring subsequent judicial enforcement thereof.
Under R17.2. an action shall not be dismissed at p’s request after service of the answer except by order of the court upon such
terms and conditions the court deems proper. Therefore, the tc could not have BUT reserved Meliton’s right to maintain a separate
action for damages. (under new rule, motion to dismiss after cc filed, dismissal limited to complaint. at any rate, dismissal shall be
without prejudice to d’s right to prosecute cc in a separate action, unless d w/in 15 days from notice of mtd manifests preference to
have cc resolved in the same action).
Court also applied Manchester doctrine: failure to seek reconsideration because they were made to believe that their cc was merely
permissive should not prejudice them.
Toribio v. Bidin (1985)

The 3 Toribio siblings (Ps) Segundino, Eusebia, and Olegario, filed an action to recover heridtary rights against Dalmacio Ramos
and Juanito Camacho (Rs). The subject matter is the 8 pro-indiviso shares of a parcel of land inherited from their mother Justa. The
Ps were the only heirs who did not alienate their shares. But the Rs claim that they also sold their share to their brother Dionisio,
who in turn sold it to Rs.
The Rs presented as evidence of the alleged sale to and from Dionisio: deeds of sale, and R’s TCTs. During trial, Eusebia was
asked if she executed any sale of her share, Rs counsel objected: proper mode of contesting actionable documents should be
followed pursuant to Rule 8.7-8. Ps filed constancia w motion for reconsideration: documents merely evidentiary, not actionable;
subject of litigation was hereditary shares of Ps, therefore a simple denial w/o oath would suffice. CFI ruled in favor of Rs, hence this
p for review on certiorari.
Issue: WON the documents are actionable. Yes
Held: actionable documents are not only those that are the basis of plaintiff’s cause of action, but also include those that are the
foundation of a defense. Since the Ps claim that they never sold their shares, the deed of sale to Dionisio is therefore essential and
indispensable to Rs defense. The deed of sale by Dionisio to Rs would be insufficient. Hence, both deeds are elemental. Test: won it
can be made subject of a material issue. i.e. will the failure to prove it decide the case in whole or in part.
The purpose of R8.8 is to relieve the party of the trouble and expense of proving an alleged fact, the existence of which is within the
knowledge of the adverse party, and to notify adverse party, won he will have to meet issue of g &de during trial. Since Ps are party
to the instrument, the exception does not apply.
Issue 2: WON, by failure to follow R8.8. in contesting documents, genuineness and due execution of actionable documents are
deemed admitted.No.
Held: Court ruled based on equitable considerations due to the unusual circumstances of the case. The rule is a discovery
procedure and must be constrained to attain its purpose so as not to effect denial of substantial justice. Counsel of P was lulled into
complacency: 1) P already stated under oath that they never sold their shares; 2) the usual procedure is for D to deny under oath. It
skipped counsel’s attention that the rule applies to either an action or a defense based on a written document. Rs were also placed
on adequate notice that they would be called to prove g & de during trial. Furthermore, the heirs of Olegario are not parties to the
deed and therefore not required to deny the deeds under oath.
5. The reply
a. Rule 6, Sec. 10

Sec. 10. Reply.
A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way
of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an
amended or supplemental complaint.
 If answer pleads defense on actionable doc or on usurious transaction, plaintiff may file reply to make
verified (and specific) denial of actionable doc lest he be deemed to have impliedly admitted it
CASES:
McCARTHY v EMPLOYER’S FIRE INS (1934)

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P Mrs. MacCarty’s car worth $1,500 was insured by D Employer’s Fire Ins. P filed an action to recover on the policy alleging on the
complaint that the policy was in full force at the time of the fire and that P complied with all the terms and conditions. D, by leave of
court, filed an amended answer: that P w/o assent of D mortgaged the car to secure a $100 note which, under the terms, would
render the policy void. P replied: D waived the policy by taking possession of the wrecked car and retaining it even after knowledge
of the mortgage; estoppel by failure to return unearned premium. D demurred to the reply, overruled.
Issue; WON Ps reply is a departure from her original complaint (therefore a different cause of action). NO
Held:
Function of a reply is to join issue on a cc or new matter by way of defense appearing in the answer, and therein, P may set up any
new matter not inconsistent with the complaint , constituting a defense to such cc or new matter in the answer. Thus, a reply cannot
supply omissions in the complaint or broaden its scope by adding new grounds for relief, or permit P to take a position inconsistent
with complaint. If insurer claims violation of a clause in the contract, the P may plead in reply facts constituting waiver or estoppel.
This is not a new or different cause of action, there is no attempt to reform the policy and recover from a new contract: the action
remains upon the original comtract.
Conditions subsequent are matters of defense to be pleaded by the defendant, and it is not necessary that the plaintiff anticipate
such defenses, and negative them by averring performance (Tillis). Conditions precedent (must be performed so that policy take
effect) must be alleged in the complaint. Conditions subsequent are the acts of the D constituting waiver and may be pleaded in the
reply.
Potts v. Point Pleasant Land Co.

Plaintiff Potts files a complaint for breach of contract against D Point Pleasant. Under the K, P was supposed to file and grade
certain lots and clay sidewalks at Point Pleasant. They would be paid 18c per cubic yard removed. Complaint avers the due
performance of the work and failure of D to pay. D pleaded in their answer that performance of the work, as condition precedent to
payment, was not undertaken. P replied that they tendered themselves ready and willing to complete the said work, but they were
prevented from performing the work. D demurred to the reply: the ground in the P’s right of action in the reply was a clear departure
from their complaint.
Issue: WON the grounds for the claim in Ps reply is distinct from that in its original complaint. Yes
Held: The reply was not a fortification of their original position. P assumes ON EACH that he has a condition to perform as a
precedent to recover compensation (and each condition precedent are distinct from each other). The performance of such a
condition and an excuse for not performing it are matters so distinct that a good pleading should aver which one P relies.
6. Formal requirements of pleadings
a. Rule 7
Sec. 1. Caption.
The caption sets forth the name of the court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication
when there are other parties.
Their respective participation in the case shall be indicated.
Sec. 2. The body.
The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and
the date of the pleading.
(a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily
identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in all succeeding pleadings.
(b) Headings. - When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first
cause of action," of the second by "second cause of action," and so on for the others.
When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they
shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on;
and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by
words to that effect.
(c) Relief. - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as
may be deemed just or equitable.
(d) Date. - Every pleading shall be dated.
Sec. 3. Signature and address.

Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not
be a post office box.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied

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if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to
promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.
Sec. 4. Verification.
Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by
affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct
of his knowledge and belief.
A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge,
information and belief," or lacks a proper verification, shall be treated as an unsigned pleading.
Sec. 5. Certification against forum shopping.
The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or
in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
 Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his
counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice
and shall constitute direct contempt, as well as a cause for administrative sanctions.
 Which is more important, the body or prayer for relief? Body, bec relief may be granted even if not prayed for. But relief is also
important because it determines the upper limit of relief when defendant is in default
 Unless required, pleadings need not be under oath, verified, or accompanied by an affidavit. All pleadings in Revised Rule on
Summary Procedure should be verified.
CASE:
BUSINESS GUIDES v CHROMATIC COMMUNICATION ENT (1991)
Business Guides sued Chromatic for copyright infringement. Along with its lawyer, it signed the TRO application. It turned out later
that Chromatic had not infringed at all, and that Business Guides had failed to conduct a proper inquiry.
Held:
Rule 11 of Federal Rules of Civil Procedure provides that signature of an atty or party on a paper filed constitutes the signer’s
certification, based on a reasonable inquiry, that the paper is well grounded in fact. SC held that it applies to any party, even if the
signature is not required and is only voluntary.
The essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message to
the district court that this document is to be taken seriously.
7. Detail in pleading
a. Rule 8, Secs. 1-9; Rule 12 Rules of Court, RULE 8
Sec. 1. In general.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely
stated.
Sec. 2. Alternative causes of action or defenses.
A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements.
Sec. 3. Conditions precedent.
In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient.
Sec. 4. Capacity.
Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or
the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue
as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by
specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

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Sec. 5. Fraud, mistake, condition of the mind.

In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice,
intent, knowledge or other condition of the mind of a person may be averred generally.
Sec. 6. Judgment.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
Sec. 7. Action or defense based on document.
Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.
Sec. 8. How to contest such documents.
When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as
provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an
oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an
order for an inspection of the original instrument is refused.
Sec. 9. Official document or act.
In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in
compliance with law.
 Denial must be specific and verified when there is allegation of usury and when action is founded on actionable document
 Genuineness and due execution of actionable doc deemed admitted unless specifically denied under oath; but does not apply
when adverse party is not party to the doc or when compliance with an order for inspection of the original is refused. But
evidence on whether entered through fraud or no consideration are not matters of genuineness and due execution.
 Detailed specific denial with supporting particulars: for denial of legal capacity to sue.

Sec. 1. When applied for; purpose.
Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is
not averted with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are contained, and the details desired. (1a)
Sec. 2. Action by the court.
Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or
grant it outright, or allow the parties the opportunity to be heard.
Sec. 3. Compliance with order.
If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of
the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the
court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.
Sec. 4. Effect of non-compliance.
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading
or the portions thereof to which the order was directed or make such other order as it deems just.
Sec. 5. Stay of period to file responsive pleading.
After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party
may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be
less than five (5) days in any event.
Sec. 6. Bill a part of pleading.
A bill of particulars becomes part of the pleading for which it is intended.
CASES:
BACOLOD MURCIA MILLING v FIRST FARMERS MILLING CO (1981) 103 SCRA 436
Bacolod sued First Farmers and Sugar Admin for transferring a sugar quota allotment to First Farmers. After answers, Bacolod filed
amended complaint impleading PNB and NIDC as new defendants, for extending loans to First Farmers to assist in the illegal
creation of said mill.
Held:
Complaint must contain a concise statement of the ultimate constituting a cause of action. Ultimate facts are impt and
substantial facts which either directly form the basis of the plaintiff’s primary right and duty, or directly make up the wrongful acts or
omissions by the def.
Test of sufficiency of facts alleged: WON the Court could render a valid judgment as prayed for, accepting as true the
exclusive facts set forth in the complaint.

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Amended and Supplemental Complaint fails to meet the test. Assistance in illegal act was not supported by well-pleaded
averments of facts on how they had notice of its illegality or how the acts were done. Such bare statement if a mere conclusion of
law not sustained by declarations of fact. Amended Complaint dismissed, without prejudice to issues in main case.
NICHOLS v NICHOLS (1896)

Wife sued husband’s relatives for “wickedly and maliciously acting together, with malicious intent” to induce her husband to leave
her. Demurrer for not detailing the facts which caused the husband to leave her.
Held:
A statement of mere legal conclusions is not sufficient and on the other hand, a detailed statement of the evidence is not
required. Issuable facts = those upon which a material issue can be taken. Evidential or probative facts = shouldn’t be stated; upon
which a material issue cannot be taken, and from which issuable facts can be inferred.
The allegations must be those of the principal, determinate, constitutive facts, upon the existence of which, the entire
cause of action rests.
Ultimate fact which is constitutive of the cause of action in this case is that of wrongfully inducing husband. It is not a
conclusion of law, but a fact from which a legal conclusion is to be drawn. The methods adopted are mere matters of evidence, from
which the ultimate fact is proved, or may be inferred.
BUSH v SKIDIS (1948)

Complaint that Skidis negligently operated an automobile and hit a pedestrian, causing automobile with great force and violence to
strike and collide with plaintiff. Skidis moved to make the complaint more definite by specifying the negligence on which the plaintiff
relies.
Held
District courts have ruled that general charge of negligence was sufficient. New rules of civil procedure restrict the
pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the prep for trial.
However, since party making the charge of negligence could be required to set forth in answers to interrogatories or
requests for admission the specific acts of negligence relied on, why not let this info be set forth in pleadings? => will lead to
fairness. To force party charged with negligence to resort to discovery process or pretrial conference to learn the issues of the case
means delay and added expense.
MATTER OF HERLE (1935)

18 persons claimed right to estate of Herle, a wealthy recluse. A certain Carl Flickinger applied to compel all those who answered or
appeared to furnish bills of particulars relating to their claimed kinships to the decedent.
Held:
General underlying theory of this pleading is to particularize the issues in litigation by making the pleadings certain and
apprising the opponent of the nature of the proof he will have to meet, thus avoiding surprise. Purpose of Bill of Particulars: to aid
and assist parties and the court in arriving at a just result, transforming the trial from a mere game of wits into a determination on the
merits.
Since trial is merely a determination of the relative merits of the issues raised by the pleadings, the obj of bill of particulars
is not the facts as they may actually exist, but as they are claimed by the party from whom particularization is being sought.
Grant of addl particulars is in the discretion of the court.
Every pleading must contain a statement of facts upon which the pleader relies to establish his contentions. Mere
allegations of conclusions, whether of law or fact, are insufficient. When pleading contains conclusion and not facts, remedy is bill of
particulars.
Pleadings at fault bec they fail to allege the essential facts necessary to establish a right to share in the prop.
RASBERG v MUTUAL LIFE INSURANCE CO (1903)

Rasberg is beneficiary of life insurance. He furnished due proofs of death. Insurer required a death claim receipt to be signed by
Rasberg and Moses. Moses refused and asserted his own claim to the prop by an alleged assignment to him by the insured.
Rasberg answered that assignment was by force and fraud, and that if there was indeed an assignment, it was merely intended as
collateral for a loan which had already been fully paid. Demurrer to complaint on basis that averments were inconsistent.
Held:
Right of plaintiff to allege alternative grounds bec usually by fault of the defendant, the plaintiff does not know which of two
absolutely inconsistent grounds he may succeed in proving.
Alternative averments are not subj of demurrer. Remedy is to make the pleading more definite and certain.
8. Amended and supplemental pleadings

Rule 10.
Sec. 1. Amendments in general.
Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name
of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may
speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.
Sec. 2. Amendments as a matter of right.
A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a
reply, at any time within ten (l0) days after it is served.
Sec. 3. Amendments by leave of court.

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Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave
may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters
provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be
heard.
Sec. 4. Formal amendments.

A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the
court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.
Sec. 5. Amendment to conform to or authorize presentation of evidence.
When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but
failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if
the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a
continuance to enable the amendment to be made.
Sec. 6. Supplemental pleadings.

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading.
Sec. 7. Filing of amended pleadings.
When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by
appropriate marks, shall be filed.
Sec. 8. Effect of amended pleadings.
An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received
in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be
deemed waived.
 Remember, no new summons needed if complaint amended bec defendants still the same. New copy of entire
pleading to be filed.
 MTD after complaint instead of answer. MTD is not responsive pleading so can still amend as matter of right
CASES:
KERAMIK INDUSTRIES v GUERRERO (1974)
P Keramik obtain a P2.4 M loan from D GSIS secured by mortgage on real properties used in its ceramic business. P defaulted, D
foreclosed mortgage and was the highest bidder: debt P3.46 M, sale P5.13M. P filed action to nullify extrajudicial foreclosure due to
irregularities. In the alternative, P asks for the difference between the proceeds and the debt. GSIS answered. After 2 years, P files
motion to amend complaint: P insured with GSIS properties for P2.4M, which was an add’l security for the loan. P claims that it
inadvertently failed to mention that typhoon Yoling damaged the properties. Therefore, the proceeds should also be applied to the
debt. D opposed: the amendment altered P’s CoA by injecting “new, distinct, and foreign CoA”. CFI sustained D.
Issue: WON amendment should have been allowed. Yes
Held: P’s alternative coa is predicated on the premise that D should not enrich itself unjustly at P’s expense: the excess of the bid
price over the debt should be remitted to P. The allegation in the amended complaint did not change at all P’s theory of the case and
did not introduce a new coa. The 2 coas are identical verbatim at literatim. The new matter merely reinforced, amplified or enlarged
P’s alternative coa for the recovery of surplus. Otherwise, P would file a separate action repugnant to the policy of discouraging
multiplicity of suits; it would amount to splitting coa.
R&B Surety & Ins. Co., Inc. v. Savellano (1985)

P Investor’s Finance Corp. filed complaint for collection of payment of promissory notes worth P2.9M against D Rassagi and R&B
Surety. Complaint alleged: Rassagi obtained credit from Citiwide Motors, which assigned the promissory noted to P, with R&B as
surety. Rassagi’s answer: obtained direct loan from P intended for purchase of trucks from Citiwide. R&B submitted the same
defenses. However, R&B discovered that the trucks were not yet delivered to Rassagi. It filed amended answer: admit issuance of
surety bonds to citywide for the credit facilities evidenced by prom notes. But assignment to P was a charade since citiwide had no
rights over the bonds since no trucks were actually delivered-resolutory condition.
Issue: WON R&B’s amended answer should have been admitted and CFI should not have rendered summary judgment. Yes
Held: The amendment which alleges that the 14 trucks were not actually delivered to D Rassagi did not alter the theory of their
defense which is: THAT THEY ARE NOT LIABLE TO P. Justice and equity allows the amendment for if proven, they would negate
liability of D, a fact which may no longer be ventilated. The right of D to prove that they are not liable are more important than the
change in theory or delay in the proceedings which is only at the pre-trial stage. Courts should be liberal in admitting amendments to
avoid multiplicity of suits so that real controversies are presented (Sedeco v. CA). If purpose of amendment is to submit real matter
in dispute w/o intent to delay, court may allow amendment.

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Blair v. Durham(1943)
P Nelle Durham is stenographic clerk of US Court Building. While at work, she was struck and injured by a heavy piece of timber
which fell from a scaffold. D Algernon Blair is the contractor. Original complaint: Ds employees negligent in the use of scaffold.
Amended: negligent manner in which the scaffold was erected.
Issue: WON the amendment stated a new cause of action. No
Held: a coa is the unlawful violation of a right or the failure to discharge a duty. The variety of facts alleged does not establish more
than one coa so long as their result is a violation of one right by a single legal wrong. There’s no new coa in the amendment so long
as the coa alleged grows out of the same transaction and is basically the same or is identical in the essential elements upon which
right to sue is based upon, and upon which Ds duty to perform is alleged to have arisen. Test: won the proposed amendment is a
different matter or the same matter more fully or differently laid.
Elliott v. Mosgrove
P is the successor of D Thomas Mosgrove as trustee of the bequest of William Mosgrove. P filed complaint to collect or recover the
res of the trust: $5,300 deposits in Ds account. In her original complaint averred that D collected in full the notes receivable of the
trust and deposited it in the account. D answered that the account is not made up of the frund from the trust. P amended her
complaint by stating that D had plenty of opportunities to collect.
Issue: WON the amendment of Ps complaint substantially changed the coa in the original complaint. No
Held: The amendment did not aver facts showing that P was entitled to pursue 2 possible remedies but merely averred facts in
alternative form. There could only be one remedy depending upon which alternative was true. The amendment related to the same
transaction that constituted the subject matter of the complaint. Test: WON the amendment will facilitate the convenient, efficient
dispatch of the business before the court.
Cartwright v. Ruffin
P filed complaint for collection upon a note with D. The original defense was a general denial: under oath, it questioned the
execution and delivery of the note. The amended answer: P while acting in the fiduciary capacity as agents of D, induced D to
execute the note and act to D’s disadvantage and injury.
Held: Greater liberality exists in allowing amendments to answers than in amending complaints, to the point of allowing entirely diff
defenses. Plaintiff may always, in the absence of a counterclaim or cross-complaint, dismiss his action and begin anew. But if def
pleads an ineffective or insufficient defense, not allowing amendment may be drastic penalty for inadvertence or mistakecourt did
not rule on the issue but reversed on another ground; it however found the amendment unusual.
Southern Pacific Co. v. Conway

P Southern Pacific seeks to have case remanded to allow supplemental complaint setting forth subsequent occurrences. These
occurrences are: the institution of proceedings by D as Atty Gen against P- for violating Train limits law with respect to freight trains
and passenger trains.
Held: If P seeks for declaratory judgment beginning anew, the pendency of the suit would support the conclusion that a justiciable
controversy was present; but it does not follow that these occurrences subsequent to the judgment may properly be presented by a
supplemental complaint. P assumes that since these would have been admissible as evidence had they occurred before trial, they
are therefore appropriate facts for a supplemental complaint. but the office of a pleading is to state ultimate not evidentiary facts.
The office of a supplemental complaint is not to set forth newly discovered evidence justifying a new trial but to bring new facts
which will enlarge or change the kind of relief to which P is entitled.
Remington Industrial Sale Corp. v. CA (2002)

P Remington files action for breach of contract against Industrial Steels as principal D with Ferro Trading and British Steel as
alternative Ds. BS moved to dismiss: failure to state coa. Pending certiorari proceedings on mtd before the CA, P filed motion to
amend complaint.
Issue: WON dismissal for failure to state coa was proper despite Ps exercise of right to amend under R10.2. or WON complaint can
still be amended as a matter of right before answer has been filed even if there was a pending proceeding before the higher court.
YES
Held: D has not yet presented any defense that can be altered or affected by the amended complaint. D still retains the unqualified
opportunito to address the allegations against him. The right of P to amend complaint is not precluded by the filing of a mtd or any
other proceeding contesting its sufficiency. Otherwise, the right in R 10.2 would be rendered nugatory and ineffectual: all that D has
to do to foreclose this material right is to challenge the adequacy of the complaint before he files his answer.
Superclean Services Corp. v. CA(1996)

P Superclean filed a complaint against D HDMF for mandamus/certiorari with preliminary injunction for refusal of D without just
cause to award the janitorial contract for 1990 to P, the lowest bidder. Mandamus: to recognize P as the qualified bidder. D was
allowed to hire janitors on a month-to-month basis. In 1991, P moved for admission of supplemental complaint: since 1990 has
passed, case is moot and academic. Instead of pursuing mandamus, P sought for payment of damages.
Issue: WON motion should be admitted. Yes but not as supplemental pleading.
Held: under R 10.6 the transaction, occurrence, or event happening since the filing of pleading must be pleaded in aid of a party’s
right or defense. Here the supervening event is not invoked for that purpose but to justify the new relief sought. The supervening
event was cited not to reinforce original demand but to say that demand could no longer be enforced thus justifying P in changing
relief sought to damages. Thus, the remedy was not to supplement, but amend its complaint. The new relief sought is actually an
alternative remedy to which P is entitled from the start. The Supplemental Complaint should simply be treated as embodying
amendments. There was no change in the theory of the case, the cause of action is one and the same. No unfairness, not moot.

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9. Periods for pleadings
a. Rule 11; Rule 22

Sec. 1. Answer to the complaint.
The defendant shall file his answer to the complaint within fifteen (l5) days after service of summons, unless a different period is
fixed by the court.
Sec. 2. Answer of a defendant foreign private juridical entity.
Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by
law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity.
Sec. 3. Answer to amended complaint.
Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (l5) days
after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the
order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party
complaint, and amended complaint-in-intervention.
Sec. 4. Answer to counterclaim or cross-claim.
A counterclaim or cross-claim must be answered within ten (l0) days from service.
Sec. 5. Answer to third (fourth, etc.)- party complaint.
The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint.
Sec. 6. Reply.
A reply may be filed within ten (l0) days from service of the pleading responded to.
Sec. 7. Answer to supplemental complaint.
A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different
period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed.
Sec. 8. Existing counterclaim or cross-claim.
A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein.
Sec. 9. Counterclaim or cross-claim arising after answer.
A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment.
Sec. 10. Omitted counterclaim or cross-claim.
When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.

Section 1. How to compute time.
In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day
of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included.
If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits,
the time shall not run until the next working day.
Sec. 2. Effect of interruption.
Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start
to run on the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the computation of the period.
 MTD –If denied, file answer within balance of the period prescribed by the rule, but not less than 5 days in
any event, computed from receipt of the denial (R16, S5)
 Upon service of bill of particulars or of a more definite pleadings, or after denial, can file responsive
pleading within period to which he was entitled, which shall not be less than 5 days in any event (R12, S5)
10. Filing and service of pleadings & other papers

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Sec. 1. Coverage.
This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different
mode of service is prescribed.
Sec. 2. Filing and service, defined.
Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service
upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one
counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.
Sec. 3. Manner of filing.
The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the
original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first
case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of
motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of
the case.
Sec. 4. Papers required to be filed and served.
Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of
judgment or similar papers shall be filed with the court, and served upon the parties affected.
Sec. 5. Modes of service.
Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail.
Sec. 6. Personal service.
Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his
clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by
leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known,
with a person of sufficient age and discretion then residing therein.
Sec. 7. Service by mail.
Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or
his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of either
the sender or the addressee, service may be done by ordinary mail.
Sec. 8. Substituted service.
If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of
court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.
Sec. 9. Service of judgments, final orders or resolutions.
Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by
publication at the expense of the prevailing party.
Sec. 10. Completeness of service.

Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after
mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after
five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.
Sec. 11. Priorities in modes of service and filing.
Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers
emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not
done personally. A violation of this Rule may be cause to consider the paper as not filed.
Sec. 12. Proof of filing.
The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to
have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a
copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a
full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.
Sec. 13. Proof of service.
Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of
the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card
shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the addressee.

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Table 8: Third-Party Complaint v. Cross-claim

THIRD-PARTY COMPLAINT CROSS-CLAIM
* Seeks to recover form a non-litigant some relief in respect to * Claim by a party against a co-party.
the opposing party’s claim.
* Third party is not yet impleaded. * Cross-defendant is a co-party.
Table 9: Third-party Complaint v. Complaint in Intervention

THIRD-PARTY COMPLAINT COMPLAINT IN INTERVENTION
* Brings into the action a third person who was not originally a *Same
party.
* Initiative is with the person already a party to the action. * Initiative is with a non-party who seeks to join the action.
Amended Pleading v. Supplemental Pleading
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

1. Amendments of pleadings may be made once as a matter of right:
a. At any time before responsive pleading is served
b. In the case of a reply, anytime within 10 days after service.
 Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss, since the same is not a
“responsive pleading.”
2. Substantial amendments may be made only with leave of court, except as provided above.
3. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in
evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered)
Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived.
Table 10: Amended v. Supplemental Pleading

AMENDED PLEADING SUPPLEMENTAL PLEADING
* Refers to facts existing at the time of the commencement of * Refers to facts arising after the filing of the original pleading.
the action.
* Take the place of the original pleading * Taken together with the original pleading.
* Can be made as a matter of right as when no responsive * Always with leave of court
pleading has yet been filed
TIME TO PLEAD
A. In the following case, a party only has the balance of the period to file the necessary pleading:
 Appeal after denial of MNT/MR [Rule 40, 41]
B. In the following cases, a party is given the balance of the period, but not less than 5 days:
 Responsive pleading, after bill of particulars (Rule 12, Section 5)

 Answer, after denial of MTD (Rule 16, Section 4)
 Certiorari under Rule 65 for review of resolutions of COA/COMELEC, after denial of MNT/MR (Rule
64, Section 3)
 Answer, after denial of MTD in interpleader (Rule 63, Section 4)
C. In the following cases, a party is given a fresh period:
 Appeal after MNT/MR (15 days) [Rule 42, 43, 45]

 Certiorari (Rule 65) after denial of MNT/MR (60 days)
VI. MOTIONS
1. Rule 15; Rule 133, Sec. 7
Sec. 1. Motion defined.
A motion is an application for relief other than by a pleading.
Sec. 2. Motions must be in writing.
All motions shall be in writing except those made in open court or in the course of a hearing or trial.
Sec. 3. Contents.
A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or
necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers.

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Sec. 4. Hearing of motion.

Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set
for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the
hearing on shorter notice.
Sec. 5. Notice of hearing.
The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which
must not be later than ten (10) days after the filing of the motion.
Sec. 6. Proof of service necessary.
No written motion set for hearing shall be acted upon by the court without proof of service thereof.
Sec. 7. Motion day.
Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is
a non-working day, in the afternoon of the next working day.
Sec. 8. Omnibus motion.
Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included shall be deemed waived.
Sec. 9. Motion for leave.
A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.
Sec. 10. Form.
The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other
matters of form.
Sec. 7. Evidence on motion.
When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
2. BP 129, Sec. 16
BP 129, Sec. 16. Time and duration of sessions.
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court: Provided,
however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every Friday, unless it
falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding business day: Provided,
further, That the Supreme Court may, for good reasons, fix a different motion day in specified areas.
CASE:
CLEDERA v SARMIENTO (1971) 39 SCRA 552
Sarmiento et al were govt employees whose positions were abolished. They were allowed to present addl evidence after case
submitted for decision. Decision for Sarmiento. MR by Cledera (fiscal). Motion did not contain any notice setting the time, place and
date of hearing. MR allegedly defective because no notice of hearing filed by Cledera (petitioner).
Held:
If motion does not state time nor place of hearing, the court would have no way to determine whether that party agrees or
objects to the motion or to hear him on his objection. It is then a useless motion. Notice of motion to all parties is mandatory.
Since Fiscal failed to oppose MR of Sarmiento, he is already estopped from challenging the validity of said MR.
Since Fiscal’s MR did not contain notice of hearing, judgment for Sarmiento therefore became final and executory.
VII. OBJECTIONS TO PLEADINGS

1. Motion to dismiss
Sec 1. Grounds
Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be
made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;

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(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court: Provided,
however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every Friday, unless it
falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding business day: Provided,
further, That the Supreme Court may, for good reasons, fix a different motion day in specified areas.
 Note: Court can also dismiss motu propio for b, e, f. Defenses not pleaded are deemed waived except for b, e, f
101
 By defendant or by court motu propio (Rule 17, Sec 3)

1. PL fails to appear on date of presentation of evident
2. failure to prosecute for unreasonable length of time
3. Failure to comply with Rules or with any order of the court
a) Generally
CASE:
BORJE V CFI OF MISAMIS OCCIDENTAL (1979) 88 SCRA 576
P Atty. Dominador Borje, counsel for Ozamis water consumers who filed an action (1) against the water rates increase of D Misamis
Occidental Water District. P allegedly received “blank bills” from D, which he refused to pay. D cut his water service. For this act of
‘harassment” resulting in his “humiliation” P brought action (2) for damages with preliminary injunction before CFI Misamis
Occidental. D filed motion to dismiss: lack of jurisdiction because main complaint is within the field of special civil action or special
proceeding, and litis pendentia. CFI Judge Genato dismissed action (2) on the ground that there was no malice or bad faith in the
severance of water connection, and D already reconnected (moot and academic). P filed motion for recon, denied by the Jude
Ebarle.
Issue: WON CFI committed grave abuse of discretion in summarily dismissing action (2). Yes
Held: Dismissal of actions on grounds not alleged in the motion to dismiss is improper for the court, in so doing, dismisses an action
motu proprio without giving P a chance to argue the point and w/o receiving any arguments or evidence on the question. The real
cause for concern is the dismissal without affording P an opportunity to be heard despite the presence of factual issues that needed
to be proved. The issue won there is really failure to pay since he was sent a “blank bill”, is an issue of fact which requires
presentation of proof: if true, the demand did not contain requisite details – improper, even if demand sufficient, P still has 30 days to
pay.
Dismissal of an action upon a mtd constitutes denial of due process if from a consideration of the pleadings, it appears that there are
issues of facts which cannot be decided w/o a trial of the case on the merits.
 After filing of answer, can only file MTD if based on res judicata, insufficiency of allegations, and payment,
waiver, abandonment or extinguishment of complaint
 But remember that MTD is not responsive pleading, so can still have amendment of complaint after MTD
b) Want of jurisdiction
Rule 16, Sec. 1 (a) & (b) see above
c) Improper venue
Rule 16, Sec. 1 (c) see above
d) Want of legal capacity to sue
Rule 16, Sec. 1 (d)
 Plaintiff is not authorized to be party to a cause.

 If lack of standing to sue => failure to state cause of action
e) Litis pendentia (aka auter action pendant)
Rule 16, Sec. 1 (e)
101
Rule 9, Sec 1. Defenses and objections not pleaded in a MTD or in the answer are deemed waived. However, when it appears fr the pleadings or the evidence on record
that the court has no jurisdiction over the subj matter, that there is another action pending bet the same parties for the same cause, or that the action is barred by a prior
judgment or by the stature of limitations, the court shall dismiss the claim.

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 The other action must be in a court, not in an admin or quasi-judicial body

 Not required that the other pending action is filed first. Decide which case is more appropriate action.
CASES:
ARCEO v OLIVEROS (1985) 134 SCRA 308
P Pablo Arceo filed complaint before CFI Quezon against Ds Jose Oliveros and Rufina Cabangon alleging that P’s sister Sixta sold
to Ds her undivided interest in the inherited parcel of land, covered by a free patent title, for P2.5K without P’s consent, that being a
co-owner, he should be allowed to redeem property in accordance with Sec 119 of the Public Land Act. D moved to dismiss, denied.
D answered & reiterated grounds for dismissal by way of affirmative defense. CFI dismissed complaint on ground of lis pendens. It
appears that in another action filed by Ds to enforce the sale, P invoked as compulsory counterclaim in his answer the question of
redemption under S 119.
Issue: WON dismissal on the ground of lis pendens was in order. Yes.
Held: In the first case Ds impugn the extrajudicial settlement between Sixta and P, where Sixta renounced her right over the land,
and annul the TCT issued to P, basing their action on a Deed of Absolute Sale. In the 2 cases, the parties are litigating on the same
subject matter and on the same issues – validity of sale and right of compulsory redemption.
Lis pendens is usually interposed as a defense when another case upon the same cause of action between the same parties is
pending, but it may also be invoked even if the cause of action is set forth by way of counterclaim since a counterclaim partakes the
nature of a complaint by the D against a P.
To interpose a coa in a cc and again advance the same in a complaint against the same party would be violative of the rule against
splitting a cause of action (R2 S4).
P’s contention: if the first case does not prosper, and the sale is voided, the second case will be moot. But if the sale is upheld, then
the legal redemption sought in the 2nd case may lie. Untenable. Even if the sale upheld, the 2 nd case will still be useless because P
is not deprived from litigating against Ds the issue of redemption because he has set it up as a cc in that case.
Buan v. Lopez Jr. (1986)

Ps, 5 of the 130 vendors around Quiapo Church, filed a special civil action for prohibition to review order of the Manila Mayor for
revoking their license without due process of law, since Sec 171 of the Local Government Code authorizes revocation of license
only for violation of the law, ordinances, or conditions upon which they have been granted.
Issue: WON this petition should be dismissed for lis pendens. Yes
Held: It appears that there was filed in the RTC of Manila a special civil action for prohibition with prelim inj against Manila Mayor
filed by Samahang Kapatiran sa Hanapbuhay composed of 300 vendors, the President and PRO, as well as its members are the 5
Ps in the present suitt. The petition was grounded on the same facts. There exists identity of parties; there is also identity of rights
and relief prayed for, relief being founded on the same facts, such that any judgment rendered in the other action will amount to res
judicata. This is also condemnable as forum shopping and therefore warrants dismissal of both cases. The allegations of brainwash
by their counsel do not inspire belief. Furthermore, their licenses have expired thus Ps have no basis to postulate a right to ply their
trade. Case also moot, by the occurrence of acts sought to be inhibited.
f) Res judicata and statute of limitations
Rule 16, Sec. (1f); Rule 39, Sec. 47

Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may be as follows:
(a) IIn case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of
the person; however, the probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court:
Provided, however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every
Friday, unless it falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding
business day: Provided, further, That the Supreme Court may, for good reasons, fix a different motion day in specified
areas.
 The binding or preclusive effect of judgment

 Judgment must be on the merits and by a court with jurisdiction
 In rem or in personam
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any
other matter that could have been raised in relation thereto, conclusive between the parties and their
successors in interest by title subsequent to the commencement of the action or special proceeding,

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litigating for the same thing and under the same title and in the same capacity; and
 Aka bar by prior judgment- precludes matter directly adjudged or could have been raised
 Same parties, same cause of action

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to
have been adjudged in a former judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto.
 Aka Estoppel by judgment or conclusiveness of judgment- precludes specific issues litigated or necessarily included
therein
 Same parties, diff causes of action
CASES:
OROPEZA MKTG V ALLIED BANKING CORP (2002)
R Allied Bank extended a P780K loan to P Oropeza Maktg Corp and Rogaciano and Imelda Oropeza. Ps executed PN and
spouses executed a continuing guaranty agreement binding themselves solidarily with the corporation for P840K. As additional
security, they executed a rem over their properties. P defaulted, R filed collection suit with prelim attachment (case 1). Meanwhile,
Ps executed deed of absolute sale with assumption of mortgage in favor of Solid Gold covering most of Ps real properties. R then
filed a complaint for annulment of sale (case2), and a separate criminal complaint for fraudulent insolvency, Art 314 RPC (case 3).
RTC ruled in favor of Ps in case 2, Rs appealed to CA. CA sustained RTC. RTC dismissed case 1 for litis pendentia. R appealed
this to CA which reversed RTC. Hence Ps filed this petition for review.
Issue: WON the decision of case 2 is res judicata “by prior judgment” against case 1. No
Held: Although there is identity of parties in as much as the rule does not require absolute but only substantial identity of parties,
there is no identity between the causes of action in the 2 cases. While the subject matter is the same, it does not necessarily mean
that there is identity of the coa. A coa is an act or omission of one party in violation of the legal right of another that cause injury to
the latter. In case 1, the coa was failure to liquidate obligation while in case 2, the coa was the violation of the mortgage agreement.
The test to determine identity of coa is whether the same evidence would sustain both coas: in case 1 R must prove existence of
loan and failure to comply obligation by P, in case 2, R must prove: existence of loan, loan secured by PN and REM, Ps failed to
pay, Ps sold properties with intent to defraud R. There is only “conclusiveness of judgment” which includes: the PN was spurious,
and the loan has been paid. Res judicata founded on principle that parties ought not to be permitted to litigate the same issue more
than once.
Williamson v. Colombia Gas & Electric Corp.(1950)

P Williamson filed 2 complaints for recovery against D Columbia, action 1: violation of anti-trust laws (Sherman Act) by Columbia
Gas in conspiracy with other parties. Action 2: violation of anti-trust laws (Clayton Act) by Columbia alone. Allegations: D, seeking to
crush out a competitor, acquired the controlling shareholder interest of P and proceeded to manipulate its affairs to P’s
disadvantage. When P went into receivership, D named and controlled receiver, final result: P was forced into bankruptcy. Case 2
was dismissed: barred by statute of limitations. D moved to dismiss Case 1 because of its victory in case 2.
Issue: WON the 2 cases are substantially identical.
Held: The presence of conspiracy allegations in case 1 does not change the substance of 2 claims. That one suit is said to rest on
the Sherman act and the other on Clayton act carries no weight. The fact that different statutes are relied on does not render the
claims different coa for purposes of res judicata. Although the 2 acts prohibits various things, here, the injury resulted from same
acts. The purpose of the requirement of separate counts is to clarify the issues and simplify the trial, thus the considerations in
determining what are separate coas for that purpose are not the same as those when the question is res judicata. The determination
of the meaning of “cause of action” for purposes of deciding whether a person has slept on his rights is of little aid in deciding
whether a prior judgment is a bar to the present action.
The acts complained of and the demand for recovery are the same. The only thing different is the theory of recovery. The same
witnesses and documents will be necessary in the trial in both cases.
Norwood v. McDonald
P James Norwood filed action against Ds estate administrator and Thomas McDonald to establish P’s title to certain property as
surviving spouse of the deceased owner, Ada McDonald. P claims that he was the common-law husband of deceased and therefore
the sole heir. D’s defense, res judicata: that P filed a former action claiming title to the same property on the argument that the
deceased held property in trust for herself and P, having furnished the consideration for the purchase of the property. That action
was dismissed for P’s failure to establish his case with required degree of proof.
Issue: WON present action is barred by judgment in former action under one or both of the doctrines of res judicata. No

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Held: There must be identity not only of subject matter but also of the cause if action. If it is doubtful whether a second action is for
the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or
whether the same evidence would sustain both.
A point or fact actually or directly in issue in a former action and was there passed upon by competent court may not be drawn in
question in any future action between the same parties or their privies won the coa be the same. The answer of D McDonald in the
first action, that he is the sole heir at law of the decedent, did not state operative facts but mere conclusions, were not responsive to
any allegation, and were not made the basis of any answer or relief. D prayed for dismissal and filed no cross-petition to establish
his title, offered no evidence. The action was dismissed for failure of P to establish his case with degree of proof required by law.
There is therefore no res judicata that D was the sole heir at law of decedent. The determination of that issue was not necessary in
determining the validity of P’s coa.
P’s claims in the “trust action” and the “ejectment action” do not constitute a single but 2 distinct coa. The chief tests are: do the 2
suits involve the same claim or demand? Even though there be identity of subject matter, is there id of coa, i.e., id in the investitive
facts which create the right of action asserted in each suit? Is the same evidence necessary to sustain each coa? Did the claims or
rights of action vest or accrue at the same time? In each, the answer is in the negative. (Id of proof is the most accurate test.) P’s
right in the trust action accrued during Ada’s lifetime, while his right under the 2 nd action arose upon her death. The 1 st action is
conclusive as to the nonexistence of a trust but is not a bar to the existence of an inheritable right of P. The latter issue was not
made, was not under consideration, was not litigated and was not determined in the trust action.
Cromwell v. County of Sac.

P Charles Cromwell brought an action against the D Country of Sac, on 4 $1000 bonds, and their attached $100 interest coupons.
The bonds, totaling $10,000 for the erection of a courthouse, issued in 1860, were payable to bearer on 1868-1871. D’s defense:
estoppel of judgment rendered in favor of D in a prior action on the same bonds (as to the 25 of the interest coupons) by Samuel C.
Smith, allegedly brought in behalf of P as real party in interest. It appears in the original action of Smith, that the bonds were
delivered to Meserey, the contractor for the courthouse. Upon receipt, Meserey gave one bond as gratuity to the judge, but the
courthouse was never constructed. M acquired bonds before maturity, but no finding that he gave value for them.
Issue: WON P is estopped by the judgment in the prior action. No.
Held: There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon
the same claim or demand, and its effect as an estoppel in another action between the same parties upon a dif claim or coa. In the
former, the judgment is an absolute bar to a subsequent action: it is a finality not only as to every matter which was offered and
received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for the
purpose. In the latter: estoppel operates only as to those matters in issue or points controverted. But this does not preclude a party
in a subsequent suit, on a dif coa, from availing himself from a ground for recovery which he neglected to bring forward in the prior
action.
In the first suit, it was held that there was fraud and illegality in the inception of the bonds, that the bonds were void as against the
County as to those who did not acquire them before maturity and give value for them. These findings must be held to estop P from
averring to the contrary. But as the bonds were negotiable instruments, they would be held as valid obligations against the County in
the hands of a bona fide holder taking them for value before maturity. Therefore P should have been permitted to prove that fact.
There was nothing adjudged in the former action in the finding that Smith had not made such proof in that case which can preclude
P from making such proof here.
(But were there no identity of parties and coas in the 2 actions? No, the coa in the present case are the bonds themselves, which is
different from the coupons; the cllaim that P paid value before maturity was not exactly litigated in the first suit.)
Sawyer v. First City Financing Corp.

In May 1974, P Sawyer sold 32 acres of land to First City Financial Associates (FCFA), subsidiary of First City Financial Corp
(FCFC), for $1.18 M- $510K cash, $670K note secured by a deed of trust (subordinate; on the realty). FCFA committed to borrow
$1.8 M development loan from Toronto Development Bank (the Bank), guaranteed by FCFC, secured by a first deed of trust on the
realty. In 1975, FCFA discontinued payments asserting that it could not proceed developing the land as construction bids it received
were excessively high. It still owed $900K. The Bank commenced extrajudicial foreclosure, purchased at a bid of $650K but
ultimately transferred to Lexington Properties Inc. a corporation owned by Richard Ehrlich (RE), for $800K. RE obtained funds from
Lomitas Properties Inc., controlled and funded by FCFC. P’s view of the practical effects of these transactions: FCFA’s obligation is
wiped out, since the note is non-recourse, but FCFC is able to develop or sell the land, through a puppet corp through a secret
transaction w the bank, w/o having to pay the price therefor to P.
Sawyer 1 (July 1975): Ds – FCFA, FCFC, another FCFC subsidiary, the Bank. Several coas based on contractual theories: Land
Acquisition and Development Loan Agreement between FCFA and the Bank. P claims to be 3 rd party beneficiaries and damaged by
FCFA’s default. It was not simply a breach of contract but breach of “contractual duty of good faith and fair dealing.” Separate coa
asks for declaratory relief w respect to contractual commitments, and a final coa seeks judicial foreclosure of the note. The
judgment, which became final, found waiver by P of their right to deficiency judgment valid and effective and held in favor of Ds.
Sawyer 2 (January 1978): A “complaint for damages based upon conspiracy and fraud,” aside from the Ds in S1, RE,Lexington,
Lomitas, and a number of officers of the FCs and the Bank, were added as Ds. 3 of the coas are based upon the alleged
conspiracy: the default, the sham sale, and others. 4th coa: alleged interference with contractual relations. P’s counsel promptly
moved for consolidation with and continuance of S1 which was opposed by Ds arguing that the issues and coas of S2 were dif.
Court ruled against P’s motion. The Bank and its officers, in 1980, moved for summary judgment in S2 on the ground of res judicata
of S1 and upon written release executed for the Bank in S1. The Judge granted motion for the Bank only, not upon res judicata but
on the waiver. In May 1980, the FCs filed a separate motion for summary judgment on the ground that S1 was res judicata to the
issues in S2 – that P split their coa by attempting to relitigate the same issues in a second lawsuit. Bank officers joined motion. The
Judge ruled in Ds’ favor.

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Issue: WON S1 is res judicata on S2. No.

Held: A single coa cannot be split and made subject of separate suits. If a primary right is split, determination of issues in the first
suit will be res judicata to an attempt to relitigate them in the 2 nd suit. But where the P has several coas, even though they may arise
from the same factual setting, and even though they might have been joined in one suit under permissive joinder provisions, the P is
privileged to bring separate actions based upon each separate cause.
A “cause of action” is conceived as the remedial right in favor of a p for the violation of one “primary right.” That several remedies
are available for violation of one “primary right” does not create additional “causes of action.” A given set of facts may give rise to
the violation of more than one “primary right” thus the potential of 2 separate lawsuits against 1 D. for instance, the primary right to
be free from personal injury has been construed as to embrace all theories of tort which might have given rise to the injury. But the
right to be free from the particular unlawful conduct – the resultant (1) injury to person and (2) damage to property – has been
deemed creative of separate coas (coas may therefore be counted in terms of the number of separate injuries, not number of
remedies for 1 injury).
A failure to sustain the first action on contractual grounds is held to bar a subsequent action based upon fraud – suggesting that the
primary right, in this case, is to have the note validated and this gives rise to only one coa, whether it be framed in contract or tort.
This case is not one in which the same factual structure is characterized in one complaint as a breach of contract and in another as
tort (if the same factual structure is used, is there res judicata? I think so, the factual structure is the basis of the coa, e.g. based on
the same contract as in Steiner, though the basis for relief whether on contract or tort is different, or based on a single wrongful act
as in Rush).
S1 is solely on contract and is based upon the note, deed of trust, and loan and development agreement. At trial, the principal issue
was the effectiveness of the waiver of deficiency judgment and this issue was presented in the context of contractual theories. There
was no contention of fraud, misrepresentation, or tort. The basis of S2 is completely different and rests upon a completely separate
set of facts: it assumes that the waiver and subordination are valid and highlights conduct alleged to be tortuous i.e. the agreement
to conduct a sham foreclosure sale. Surely, one’s breach of contract by failing to pay a note violates a primary right which is
separate from the primary right not to have the note stolen.
Rush v. City of Maple Heights

P Lenore Rush filed an action to recover damages for personal injuries resulting from a fall while riding on a motorcycle over a street
in D City of Maple Heights. P alleges that D was negligent in failing to keep Shcreiber Road in good repair and free from nuisance,
in suffering large holes, bumps and dips to exist, and in failing to erect warning signs giving notice of the dangerous conditions of the
road. P alleges that she has filed prior action for damage to personal property arising out of the same incident, which was decided in
her favor ($100 damages). P claims res judicata on the issue of D’s negligence and filed motion for trial on the issue of damages
alone. The lower court ruled in P’s favor, hence D’s appeal arguing that P split her coa, claiming twice on the same single accident.
Issue: WON P split her coa. Yes.
Held: Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single coa
arises, the different injuries occasioned thereby being separate items of damage from such act. As Judge Coleridge put explains: it
would be a subtlety not warranted by law to hold that a man cannot bring 2 actions, if he is injured in his arm and in his leg, but can
bring 2, if besides his arm and leg, his trousers and his coatsleeve have been torned. Vasu case, except par 4, is still good law: an
insurer has the right to bring a separate action to recover in its own name; the insured does not lose his right of action to recover for
the injuries to his person by accepting from the insurance company the amount for which it is liable to him.
The Evergreen v. Nunan

The Evergreens, a cemetery company doing business by selling burial lots, files this petition to review order of Tax Court
redetermining assessment of D Internal Revenue Commissioner Joseph Nunan. The issue is the computation of its “gains”: as to
the basis of the amount to be deducted from “amount realized.” P sells fully and partially improved lots. As to the former, the Tax
Court allowed as basis $1.55 per square foot and held that D is estopped, as regards this basis, by a finding by the Bureau of Tax
Appeals in an earlier proceeding. But the Tax Court refused to use as basis for the latter by deducting from the basis of the fully
improved lots the cost of fully improving the partially improved lots.
P’s position: “gains” from pi lots = amt realized (sales) – basis of pi lots (cost of sales)
basis of pi lots = basis of fi lots – costs of improving pi lots (to make pi into fi)
Instead, the TC appraised the value of the pi lots from evidence taken in the proceedings. P contends that D is estopped by the
BTA’s findings: that the basis of fi lots is an indisputable premise to infer the value of the pi lots, and that the value of the pi lots was
used as a necessary step in finding the value of the fi lots.
Issue: WON D is estopped as regards the value of pi lots. No.
Held: There are 2 kinds of facts – ultimate facts are those upon whose occurrence the law raises the duty or the right in question; a
mediate datum is from whose existence may be rationally inferred the existence of ultimate facts. As there is a dearth of authority
upon the issue, we hold that, even assuming arguendo that “mediate data” in the first suit conclusively establish “ultimate” facts in
the second, no facts decided in the first suit, whether ultimate or mediate, conclusively establishes any “mediate datum” in the
second, except an “ultimate fact” in that suit, i.e. res judicata of prior judgment applies only to ultimate facts in a case. The basis for
fi lots cannot be used as res judicata since it is merely a mediate datum from which the basis of pi lots may be inferred. (The logic
for this is that a mediate data in a suit, though conclusively established by a prior judgment, cannot be res judicata to decide the
outcome of the suit, other evidence must be considered. Whereas, if an ultimate fact is established, the suit is already barred by
such finding).
Bernhard v. Bank of America

Clara Sather lived with Mr and Mrs Charles Cook. In October 1933, CS signed by mark an authorization to transfer from Security
First Nat’l Bank of LA the balance of her savings ($4,155) to the First National Bank of San Dimas, which CC withdrew and

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deposited in his conjugal account, first in San Dimas Bank, then in a LA Bank. Cook, as executor, filed an account before the
probate court with his resignation, which made no mention of the transfer. The beneficiaries under CS’ will objected to the account,
but the pc held that CS made a gift to CC. P Helen Bernhardt, administratrix of CS’s estate filed this action against D Bank of
America (formerly First National Bank of San Dimas) to recover deposits from withdrawals from the decedent’s account in Security
First Nat’l Bank of LA. D’s defense: transfer authorized, and res judicata. Trial court upheld D. P appeals: doctrine of res judicata
does not apply because D was not a party, nor privy, to the prior action, and there is no mutuality of estoppel.
Issue: WON D can invoke res judicata by prior judgment. Yes
Held: Res judicata is available against the same parties, or their privies, and there is mutuality of estoppel. A party is one who is
directly interested in the subject matter, and had the right to make a defense, control the proceeding, and to appeal the judgment. A
privy is one who, after judgment, acquired an interest in the subject matter affected by the judgment through or under one of the
parties, as by inheritance, succession, or purchase. There is mutuality of estoppel if one taking advantage of a prior adjudication
would have been bound by it had it gone against him.
Mutuality and privity are not necessary where the liability of D asserting res judicata is dependent upon or derived from the liability of
one exonerated in an earlier suit brought by the same plaintiff upon the same facts. Three requisites: there is identity of issues,
judgment on the merits, and the party against whom rj is asserted a party or in privity with a party to the prior adjudication. P, though
in a different capacity (from beneficiary to administratrix) was party to the former proceeding as she represents the very same
persons and interests that were represented in the prior proceeding.
Koehler v. Holt Manufacturing Co.

George Chapman ordered in writing D Holt Mfg. Corp. to pay P Koehler, out of the money due to GC, $25 per month to be applied
upon the purchase price of the land bought by Kate Chapman (GC’s wife) from P. D complied from Jan 1901-Jan 1902 when GC
revoked his order. P filed suit to recover $325, balance for May 1902-June 1903. D’s answer: P is barred by prior judgment in D’s
favor in an action bought by P for the Jan-April 1902 installments.
Issue: WON P is estopped by prior judgment. Yes.
Held: True, the prior judgment was not rendered on a suit to recover the same installments, and it is not technically a bar to the
present action. But D relied upon the same defense, the revocation of the order, which was held valid so as to abrogate D’s liability.
The case comes clearly within the principle (estoppel by judgment) that a judgment operates as an estoppel to preclude the parties
and privies from contending to that point or matter of fact which, having been distinctly put in issue by them, has been on such
issue, solemnly found against them.
Rew v. Independent School District

P Rew files this action to recovert amount due on 10 negotiable bonds issued by D district township of Sioux City (now Independent
School District) for $1K each, payable to the order of Ogilvie Tredway. D’s defense: though the bonds purport to refund valid
indebtedness of D, fact is, D’s debt is less than $1K, and that no proceeds were used to pay such debt. P’s reply: D is estopped
from averring the same defenses interposed in a prior action on certain interest coupons attached to the bonds where judgment was
held in P’s favor. D contends that there are 3 elements in this case which were not in the case on the coupons decided in the federal
court: notice to the purchaser, failure of consideration, and unconstitutionality of the statute under which the bonds were issued.
Issue: WON D is estopped from averring the same defenses. Yes.
Held: The decision of a court having jurisdiction of the parties and subject matter is conclusive in another court in an action between
the same parties, not only as to the same coa, but as to other coa involving the right or title asserted and the defenses interposed in
the court in which such decision was rendered. The binding effect of the previous adjudication limited to those matters which are
expressly determined in the final judgment, but it covers also matters collaterally involved, which are necessarily determined in
reaching the final judgment.
P, in this case, questions the constitutionality of issuing bonds the proceeds of which were not actually used to extinguish valid
indebtedness. But this question was presented in the action on the coupons, and was necessarily determined by it. The first 2
elements were also presented, wherein it was held that these were immaterial because D was estopped by the recital in the bonds
that they were issued in pursuance of the refunding statute, and that the a resolution was passed by the board of directors of D
which is referred to in the bonds declaring the existence of judgments against D for the payments of which the bonds were
authorized to be issued.
D contends that the conclusion of the fc as to the recital of the bonds was a mere conclusion of law, not as determination of a
question or fact, therefore not binding in a subsequent case. It is not the finding of facts which constitutes an adjudication, but it is
the conclusions of the court as to the effect of those facts determined as matter of law. It is the determination of the issues
presented which constitutes the adjudication. The dispute between the parties may be as to the fact, or as to the law, or both, but
the judgment is conclusive as to the entire matter involved. The fc decided that the recitals in the bonds estopped D from showing
by way of defense that there were no valid judgments to be extinguished by the proceeds of the bonds. It therefore determined that
the coupons constituted valid indebtedness notwithstanding the falsity of the recitals.
Womach v. City of St. Joseph

P William Womach sued D City of St. Joseph for $10K damages, in that he had been deprived of society, companionship, and
services of his wife Louisa, was compelled to spend large sums for the care and nursing of his wife, and medical attendance made
necessary by injuries. P alleges that D was negligent in constructing a sunken sidewalk which accumulated snow that did not melt
off, but transformed into slippery ice, by reason of the shade of the stonewall and steep construction. D’s defense: LW’s contributory
negligence, and res judicata of judgment in D’s favor in a prior suit brought by LW on the same incident.
Issue: WON judgment in wife’s suit bars P’s recovery for damages personal to him. No.
Held: It is manifest that there was no identity of the thing demanded, identity of the cause of the demand, and identity of parties, as
to meet the essential requisites of res judicata. It bhas been held (Thompson v Railroad) that when a marries woman is personally

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injured by the negligence of another, 2 coas arise; one for the wife, for the pain and suffering and the expenses she has herself paid,
and the other by the husband, in his favor, for what he has actually lost.
A ground for privity is property and not personal, relation. It means mutual or successive relationship to the same rights of property.
Privies may be of blood (e.g. heir to his ancestor), privies in representation (as executor or administrator to their deceased testator
or intestate), privies in estate (grantor and grantee, lessor and lessee, assignor and assignee), or privies in law (tenant by the
curtesy or in dower). Parties include all who are directly interested in the subject matter, and had a right to make a defense, or to
control the proceedings, and to appeal from the judgment, to adduce testimony, to cross-examine witnesses on the other side. It is
self evident that the parties are not the same, nor is P in privity with his wife. P sues in his own right, and he does not hold any title
to the damages in suit in subordination to the title of LW. He did not succeed to her position as regards the subject of the estoppel
for the estoppel worked as to her damages in her own case was applied to his damages in his case. Take natural justice: P did not
have opportunity to reciover damages in LW’s suit, appeal her case, nor was he heard, etc. Otherwise, P’s right to due process as
regards property would be violated; property includes “choses in action” defined as any right to damages, whether arising from tort,
omission of a duty, or breach of contract.
Brobston v. Burgess and Town Council of Darby Borough

P Joseph Brobston was injured while driving a car in the borough of Darby; he claims that the paving along the tracks of
Philadelphia Rapid Transit Company was in disrepair, as a result, the steering wheel of his car was wrenched from his hand
resulting in an accident. Suit was brought against PRTC and was decided in the latter’s favor. Later, P brought action against D
Burgess and Town Council of Darby based on the same coa.
Issue: WON the prior action against railroad company bars present action against town council. Yes.
Held: P may sue either borough or the one primarily liable for the defect and the former may recover from the negligent one, where
the loss was caused by him and not by some independent act of the municipality itself. But its liability is one secondary and not
primary and it cannot be joined in a suit with the abutting owner as a joint tortfeasor. Joint tort-feasorship can only be affirmed when
the parties charged have a community of interests in the object and purposes of the undertaking and an equal right to direct and
govern the movements and conduct of each other in respect thereto. The present action is barred by the former proceeding; if
recovery were now had, then D could compel by suit PRTC, where it has already been declared not responsible. P elected to sue
the one ultimately liable, and failed to recover; he cannot now be permitted to secure judgment against the borough for the identical
negligence.
Ordinarily, estoppel by judgment is applied where parties are the same or in privity with them, but an apparent exception has been
held to exist where the liability of D is dependent upon the culpability of one exonerated in a prior suit upon the same facts when
sued by the same P. Estoppel is justified by the injustice which would result in allowing a recovery against a D for the conduct of
another, when that other has been exonerated in a direct action.
Carandang v. Venturanza(1984)
Ps are surviving heirs of the late Protacio Carandang, who, with his spouse Iluminada, owned a parcel of land. Because of the
claims of his relatives as alleged co-heirs to hereditary shares of the land, an action was brought against the spouses. As they were
unlettered, they sought help from D Gregorio Venturanza (lawyer and MTC Judge) whose advice they heeded: execute deed of
absolute sale in favor of D spouses Pomposa Venturanza with the specific understanding that as soon as the adverse claims have
been settled, land title would be given back to PC. Action 1 was brought by relatives against the Venturanzas and PC to nullify the
doas, which case was decided in favor of the Ds in that case. However, Ds refused to return the land interposing the judgment in
action 1. Hence, Ps filed this complaint, Ds filed mtd on the ground of res judicata by action1.
Issue: WON action 1 was res judicata. No.
Held: There is no identity of parties. Estoppel is raised only between those who were adverse parties in the former suit, and the
judgment therein ordinarily settles nothing as to the relative rights or liabilities of the co-plaintiffs or co-defendants inter sese, unless
their hostile or conflicting claims were actually brought in issue (by cross-petition or separate and adverse answers). Ps’ present
claims have never been set forth in action 1, nor were they litigated therein.
There is also no identity of coas. Action 1 had for its purpose the annulment of the sale of the land under litigation and the recovery
of hereditary rights. This suit seeks the reconveyance of property or recovery of ownership on the basis of a trust agreement
between the parties (in relation to Art. 1453, CC). Thus, though the ownership of Ds by virtue of the doas executed in their favor may
have been established, the question of ownership on the basis of the trust agreement between the same parties was not
adjudicated by the court in action 1.
Meralco v. CA (1988)
In 1948, PHHC sold 3 parcels of land to P Pedro Velasco, under a deed of sale containing a restriction that the property shall be
used exclusively for residential purposes otherwise the vendor may rescind the sale and cancel the title of the vendee; which
provision shall bind the heirs, executors, successors, and assigns of either parties. In 1952, P sold 2 parcels to D Meralco which
established a sub-station. The severe noise of the ss became intolerable. In 1955, P filed complaint (nuisance case) praying that D
be ordered to remove and abate the nuisance with damages. The SC, on appeal, ordered either the transfer of the ss or the
reduction of the noise by 40-50 decibels. In 1957, P filed complaint for rescission of the sale.
Issue: WON the nuisance case estopped P from filing cancellation case. Yes.
Held: When Velasco instituted the nuisance case, he conceded, and is now estopped to deny, that Meralco had the right to establish
the sub-station without violation of the restriction for “residential purposes.” What he subsequently alleged was that the sub-station
had become a nuisance which should be abated. Although the propriety of the establishment of the sub-station was not controverted
in the nuisance case, it was a tacit admission on the part of P, which can form part of an estoppel in the nuisance case. Otherwise,
the procedurally wrong result would be that after the SC had decided that the ss can remain within the property with the reduction of

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the noise, the CA can subsequently nullify that decision and order the removal of the ss. There was no split coa, this is a case of
“collateral estoppel by judgment.”
The Court also held that only PHHC had the right of action, under the contract, to cancel title of vendee; that the residential
purposes restriction should be viewed from PHHC’s standpoint, under which the ss can be considered encompassed w/in residential
purposes since residences are expected to be furnished with electricity; that P is estopped when he did not object to the
construction of the ss, as non-residential, when D erected it.
Avisado v. Rumbaua (2001)

Rs1 Abelardo and Victoria Rumbaua, residents of Florida USA, own a parcel of land in Diliman, QC. Rs2 Rafael and Aurora
Consengco own the adjacent lot. Rs contend that in 1973, Ps Abelardo and Virginia Avisado occupied both parcels and refused to
vacate. In 1978, Rs1, represented by Rafael, under a special power of attorney, and Rs2 filed complaint1 before CFI QC for
recovery of possession of property. In 1980, they (Rs1 represented by Rafael) entered into a compromise agreement, approved by
the trial court, whereby Ps would pay Rs1 P70,000 for the latter to execute a doas, and Ps would have to remove portion of their
house on Rs2’s property. Rs filed motion for execution of judgment praying that Ps, having breached the agreement in their failure to
pay the P65K balance, be ordered to vacate the property. The court denied the motion, reasoning that the ca involved reciprocal
obligations – vendors failed to execute the doas. Ps filed motion to execute this judgment, which was granted.
In 1993, Rs1 through their new agent, filed complaint2 for recovery of real property with damages, alleging that the ca was invalid
for lack of authorization. TC dismissed, barred by prior judgment. CA reversed; held that the coa of the 2 cases are different, hence
this petition.
Issue: WON complaint 1 bars by res judicata complaint 2. Yes.
Held: All the elements of res judicata are present. The coas are the same. A coa has the ff elements: (1) the legal right of plaintiff; (2)
the correlative obligation of the defendant; (3) the act or omission of the defendant in violation of the legal right. In complaint 1, the
coa was the illegal occupation by Ps to the prejudice of Rs. In complaint 2, Rs1 likewise complained that’s Ps occupied their lot
through strategy and stealth w/o their knowledge and consent. Even if it is conceded that the coas in complaint 2 were different, i.e.
invalidity and breach of ca, still the issues were settled in complaint 1 (estoppel by judgment). The validity of the ca was upheld, as
not contrary to law, good morals, public policy. The ca was held not to have been breached as it involved reciprocal obligations. Rs1
were seeking the same relief in c2; they merely raised a different theory. Rs1 are also barred by laches.
(a) Law of the Case
CASE:
LITTON MILLS V GALLEON TRADER (1988)
Case 1: Litton Mills (creditor) got summary judgment in its favor after Galleon Trader (debtor) filed answer. CA and SC affirmed
jurisdiction of the court in rendering summary judgment.
Case 2: Appealed the summary judgment
Held: Main thrust of 2nd case is the propriety of the summary judgment. These issues have been fully threshed out and now
constitute the law of the case. Whatever has been irrevocably established as the controlling legal rule between the parties in the
case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision
was predicated continue to be the facts before the Court.
 Stare decisis- cases need not be related or have same parties or causes of action
g) Insufficient allegations
Rule 16, Sec. 1(g)
 Even conceding the truth of the factual allegations, plaintiff has not alleged all facts of the cause of the action
 Ground is failure to state cause of action, not of lack of cause of action
CASE:
MARCOPPER MINING V GARCIA (1986)
Marcopper filed action to quiet title to land vs Garcia, alleging that it acquired its interest from a person who had been in open
continuous and exclusive possession since about 1921. CFI dismissed action
Held:
In its complaint, Marcopper alleged that it is entitled to have its ownership of the land confirmed. This impliedly admitted
that land is public until such confirmation.
In dismissing case, CFI examined complaint, answer with counterclaim, answer to counterclaim and Marcopper’s answer
to request for admission. Court logically considered all these pleadings in determining if there was sufficient cause of action. Order
of dismissal was in nature of summary judgment.
Cf: Tan v Director of Forestry: MTD admits facts which are well pleaded, but not those which the court will take judicial
notice are not true, legally impossible facts, facts inadmissible in evidence, or facts which appear by record or document to be
unfounded.
h) Payment, waiver abandonment and extinction

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Rule 16, Sec. 1(h)
 Dismissal on this ground presupposes it can be established thru essentially summary evidentiary hearing. If not, it
will become advance trial on the merits.
i) Statute of frauds
Rule 16, Sec. 1(i)
j) Non-compliance with a condition precedent for filing
Rule 16, Sec. 1(j); Civil Code, Art. 222

Civil Code
Art 222: No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts
toward a compromise have been made, but that the same have failed, subj to the limitations in Art 2035.
CASE:
MENDOZA V CA (1967) 19 SCRA 756
Wife sued husband for maintenance. Husband filed answer with counterclaim and questioned validity of their marriage, and added
in MTD that there was failure to state cause of action since no earnest efforts made toward a compromise.
Held:
FC: No compromise valid on validity of marriage or legal separation, nor on future support. Hence, no need to show previous
efforts to compromise on these issues.
k) Lack of certification against forum shopping
Rule 7, Sec. 5
Sec 5. Certification against forum shopping.
The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a
sworn certification annexed thereto and simultaneously filed therewith: a) that he has not theretofore commenced any action or
filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and to the best of his knowledge, no such
other action or claim is pending therein; b) if there is such other pending action or claim, a complete statement of the present
status thereof; and c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall
report that fact within 5 days therefrom to the court wherein in his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, w/o prejudice to the corresponding admin and crim actions. If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal, with prejudice and shall
constitute direct contempt, as well as a cause for admin sanctions.
l) Procedure on MTD
Rule 16, Sec. 2-6

Sec 2. Hearing of motion
At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions
of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall
automatically be part of the evidence of the party presenting the same.
Sec 3. Resolution of motion
After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied on is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefore.
Sec 4. Time to plead
If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of the
denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from
service of the amended pleading, unless the court provides a longer period.
Sec 5. Effect of dismissal.
Subj to the right of appeal, an order granting a MTD based on Par (f), (h) and (i) of sec 1 hereof shall bar the refilling of the same
action or claim.
Sec 6. Pleading grounds as affirmative defenses.

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If no MTD has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in
the answer and, in the discretion of the court, a prelim hearing may be had thereon as if a MTD had been filed.
Table 11: Effect of Motion to dismiss and remedies

EFFECTS OF ACTION OF MTD REMEDY
1. ORDER GRANTING motion to dismiss is a final order 1. Appeal from the order of dismissal
2. ORDER DENYING the motion to dismiss is interlocutory 2. Certiorari and prohibition if there is grave abuse of discretion
amounting to lack or excess of jurisdiction
Table 12: Rule 16 v. Rule 33

MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to
evidence)
* Grounded on preliminary objections * Based on insufficiency of evidence.
* May be filed by any defending party against whom a claim is * May be filed only by the defendant against the complaint of the
asserted in the action. plaintiff.
* Should be filed within the time for but prior to the filing of the * May be filed only after the plaintiff has completed the
answer of the defending party to the pleading asserting the presentation of his evidence.
claim against him.
Table 13: Rule 17: Dismissal of Actions

SECTION 2 SECTION 3
1. Dismissal is at the instance of the plaintiff; 1. Dismissal is not procured by plaintiff though justified by
causes imputable to him;
2. Dismissal is a matter of procedure, without prejudice unless 2. Dismissal is a matter of evidence, an adjudication on the
otherwise stated in the order of the court or on plaintiff’s motion merits;
to dismiss his own complaint;
3. Dismissal is without prejudice to the right of the defendant to 3. Dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless 15 days prosecute his counterclaim on the same or separate action.
from notice of the motion he manifests his intention to have his
counterclaim resolved in the same action.
2. Motion to suspend proceedings
a) Need for prior arbitration
CASE:
BENGSON v CHUA(1977) 78 SCRA 113
© between Bengson and Chua where they agreed that all disputes be decided by arbitration. Bengson sued Chua for damages
without arbitration, which Chan now alleges as an additional affirmative defense that complaint states no cause of action.
Held:
Failure to state cause of action may be alleged in a later pleading => not waived when they failed to allege in MTD or in answer
Failure to resort to arbit does not warrant dismissal. Arbit Law: Court may direct that such arbit proceed, which shall stay the
action. Instead of dismissing the case, proceedings should be suspended. If no settlement finalized, hold pre trial.
b) Need for prior reference to brgy conciliation
SC ADMINISTRATIVE CIRCULAR NO. 14-93 (GUIDELINES ON KATARUNGANG PAMBARANGAY CONCILIATION

PROCEDURE
I. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial Court, Metropolitan Trial Court or
Municipal Trial Court shall be carefully read and scrutinized to determine if there has been compliance with prior Barangay
conciliation procedure under the Revised Katarungang Pambarangay Law and its Implementing Rules and Regulations, as a pre-
condition to judicial action, particularly whether the certification to file action attached to the records of the case comply with the
requirements hereinabove enumerated in par. II;
A case filed in court without compliance with prior Barangay conciliation which is a pre-condition for formal adjudication (Sec.
412[a] of the Revised Katarungang Pambarangay Law) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of
the court but for failure to state a cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA
289), or the court may suspend proceedings upon petition of any party under Sec. 1, Rule 21 of the Rules of Court; and refer the
case motu propio to the appropriate Barangay authority, applying by analogy Sec. 408[g], 2nd par., of the Revised Katarungang
Pambarangay Law which reads as follows: The Court in which non-criminal cases not falling within the authority of the Lupon

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under this Code are filed may at any time before trial, motu proprio refer the case to the Lupon concerned for amicable settlement.
c) Rule 30, Sec 8

Sec 8. Suspension of actions.
The suspension of actions shall be governed by the provisions of CC.
3. Motion for bill of particulars
Rule 12, Bill of Particulars

Section 1. When applied for; purpose.
Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not
averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a
reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the details desired.
Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant
it outright, or allow the parties the opportunity to be heard.
Sec. 3. Compliance with order.
If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of the
order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be
filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.
Sec. 4. Effect of non-compliance.
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the
portions thereof to which the order was directed or make such other order as it deems just.
Sec. 5. Stay of period to file responsive pleading.
After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file
his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five
(5) days in any event.
Sec. 6. Bill a part of pleading.
A bill of particulars becomes part of the pleading for which it is intended.
4. Motion to drop/add parties
Rule 3, Sec. 11

Sec 11. Misjoinder and non-joinder of parties
Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by the order of
the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against
a misjoined party may be severed and proceeded with separately.
5. Motion to sever cause of action
Rule 2, Sec 6.
Sec. 6. Misjoinder of causes of action
Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or
on the initiative of the court, be severed and proceeded with separately.
6. Motion to strike out
Rule 8, Sec. 12; Rule 7, Sec. 3; Rule 12, Sec. 4; Rule 29, Sec. 3(c)
Sec 12. Striking out of pleading or matter contained therein-
Upon motion by a party before responding to a pleading, or if no responsive pleading is permitted by these Rules, upon motion
made by a party within 20 days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court
may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be

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stricken out therefrom.

Sec 3. Signature and address
Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not
be a post office box.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge,
information and belief there is good ground to support it, and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied
if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an
unsigned pleading or signs a pleading in violation of this rule, or alleges scandalous or indecent matter therein, or fails to promptly
report to the court a change of his address, shall be subj to approp disciplinary action.
Sec 4. Effect of non-compliance
If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of a pleading or the
portions thereof to which the order was directed or make such other order as it deems just.
Sec 3. Other consequences.
If any party… refuses to obey an order… requiring him to answer designated questions, or .…to produce any document or other
thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon Iand or other prop, or an order…
requiring him to submit to a physical or mental examination, the court may make…
(c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party
Party or on the initiative of the court, be severed and proceeded with separately.
 Summary of Grounds for Striking out

1) pleading contains sham or false, redundant, immaterial, impertinent, or scandalous matter
2) pleading is unsigned
3) order for Bill of Particulars or to provide a more definite statement is not obeyed
4) party refuses to make or allow discovery
CASE:
NEEFUS v NEEFUS (1941)
Defendant sureties in their answer alleged that plaintiff and her agents procured their signatures through fraud. Plainitff in her
affidavit moved that the answer be stricken out for being sham and frivolous, because she and her attorney never dealt with them.
Held:
A sham or frivolous answer may be stricken on motion and judgment rendered notwithstanding the same as for want of an
answer. An answer is frivolous which appears from a bare inspection to be lacking in legal sufficiency and which in any view of the
facts presented does not present a defense. A sham answer is sufficient in its face but is false in fact.
The falsity of a pleading may be shown by affidavits.
7. Motion for judgment on the pleadings
Rule 34
Judgment on the pleadings
Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court
may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of
marriage or for legal separation, the material facts alleged in the complaint shall always be proved.
 There is only an issue of law and no evidentiary hearing is required

 Either party may move for judgment on the pleadings after filing of an answer and before trial
CASE:
PAGE v NORTH CAROLINA MUTUAL INSURANCE CO (1945)
Page filed claim as beneficiary. Insurance company answered that death was not accidental because insured was killed. Beneficiary
moved for judgment on pleadings. Insurer asked for leave to amend its answer to include the allegation that insured was the
aggressor.
Held:
Motion for judgment on the pleadings is in nature of a general demurrer. It is appropriate where the pleading is fatally
deficient in substance, that is, where the complaint fails to state a good cause of action or where the answer fails to state a defense
sufficient in law to the cause of action alleged. Being in the nature of a demurrer, a motion for judgment on the pleadings raises an
issue of law only.
Amendment which will remove the objections to the demurrer should have been allowed.

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8. Motion for summary judgment

Sec. 1. Summary judgment for claimant.
A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the
pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in
his favor upon all or any part thereof.
Sec. 2. Summary judgment for defending party.
A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with
supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.
Sec. 3. Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing
affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Sec. 4. Case not fully adjudicated on motion.
If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the
court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall
thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount
of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly.
Sec. 5. Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of
all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith.
Sec. 6. Affidavits in bad faith.
Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith,
or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount
of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing,
further adjudge the offending party or counsel guilty of contempt.
 No genuine issue on any material fact: no factual issue which will require a full-dress evidentiary hearing involving
witnesses
 Issue is only on damages
 Motion may be filed at any time, even by the defendant before he files his answer
CASES:
ARNSTEIN v PORTER (1946)
Arnstein sued Porter for infringement. Porter moved for summary judgment, attached depositions and records, and denied that he
had ever seen or heard any of the musical compositions.
Held:
Court found sufficient similarities, but absent any evidence of access, these similarities do not compel the conclusion or
permit the inference that Porter copied. Summary judgment was proper only if indubitably the defendant did not have access to
plaintiff’s compositions. But if credibility is a factor, plaintiff is entitled to a trial where the jury can observe the witnesses while
testifying.
In some cases, a trial may be farcical, like when a defendant pleads payment on a suit on a promissory note by setting
forth his cancelled check, while plaintiff merely states that no payment received and suggests no other proof. But if credibility
becomes impt, summary judgment is improper and a trial indispensable.
ESTRADA v CONSOLACION (1976) 71 SCRA 523

Estrada filed complaint for damages against Corazon Uy and Lucio Galaura, owner and driver, for death of his wife. Defendants
alleged that proximate cause of the accident was negligence of a 3 rd person, attached sketches showing the fault was with another
vehicle, and moved for summary judgment on the ground that there was no genuine issue except as to the amount of damages. CFI
granted summary judgment and damages in favor of defendants.
Held:
When defendant moves for summary judgment, must show that his defenses or denials are sufficient to defeat the
claimant’s claim. Affidavit should be made by persons having personal knowledge of the facts, and shall recite all material facts and
show there is no defense to the cause of action or that the cause of action has no merits. In hearing for summary judgment, court
should not pass on questions of credibility or weight of evidence.

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Test: Whether the pleadings, affidavits and exhibits in support of the motions are sufficient to overcome the opposing
papers and to justify a finding as a matter of law that there is no defense to the action or the claim is clearly meritorious.
The opposing party must establish a genuine issue of fact to defeat a motion for summary judgment. Facts must be
sufficient to require a trial of any issue of fact other than the amt of damages. Burden of proof is on plaintiff to prove cause of action
and to show that defense interposed solely for delay.
Since defendant has shown that accident due to caso fortuito, petitioner failed to rebut such proof.
However, order of the judge was mere interlocutory order directing a hearing to ascertain the amount of damages. If no
findings of fact or conclusions of law, order of the judge is not a judgment. Petitioner should move to set aside of the order by
showing a genuine issue of fact on the carrier’s liability.
 2 step procedure on motion for summary judgment:
1) Determination that case resolvable on summary judgment
2) Resolving the case on basis of affidavits, depositions and admissions on file
CELOTEX CORP v CATRETT (1986)

Cattrett sued Celotex Corp etc. alleging that her husband died due to exposure to products containing asbestos. Celotex filed for
summary judgment alleging that no evidence to show that any Celotex product was the proximate cause of the injuries alleged.
Cattrett then presented evidence to demonstrate a material factual dispute like deposition of the decedent, letter from an insurance
company etc.
Held:
If pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is proper. Summary
judgment is proper after adequate time for discovery against party who fails to make sufficient showing of an element of his case wrt
which she has the burden of proof.
Claimants and defendants may move for summary judgment with or without supporting affidavits.
Purpose of summary judgment rule: to isolate and dispose of factually unsupported claims or defenses.
CROSS v UNITED STATES (1964)

Ps Ephraim and Mary Cross filed income tax refund suit claiming that they were entitled to a deduction of $1300 on their joint return
for 1954 because of expenses incurred by EC in his summer travel to Mediterranean and European countries. EC taught French,
Spanish, and romance linguistics at City College in NY and Ps sailed from NY to Portugal, Morocco, Tangiers, Oran, Algiers, Naples,
and Genoa, and separated at Marseilles; MC continued touring while EC traveled to Paris. P asserted that the purpose of the trip
was to maintain and improve his skills. Though P did not engage in a formal course of study or in research, he visited schools,
courts, churches, book publishers, theaters, movies, restaurants, cafes, and other places of amusements, read newspapers, listen
to radio broadcasts, converse with students and teachers, and attend political meetings. D contends that P’s travel was a vacation
and thus a personal living expense not deductible, Sec 162, IRC, and challenges the amt claimed. They filed msj granted by DC. D
US Government opposed msj claiming right to cross-examine Ps and affiant professors (tending to indicate the desirability of foreign
travel for language profs) as to the nature of the expenses and the educational benefits allegedly sought.
Issue: WON summary judgment was properly granted. No.
Held: Summary judgment was improvidently granted and D is entitled to a trial. Rule 56 (c) FRCP permits sj only when there is no
genuine issue as to any material fact. Before traveling expenses can be allowed as deductible, there must be factual determination
of what parts, if any, are to be attributed to vacation or to education. Many of the facts remain largely within P’s knowledge and D
should have the opportunity to test his credibility on cross-examination. SJ is particularly inappropriate where the “inferences which
the parties seek to have drawn deal with questions of motives, intent, and subjective feelings and reactions.”
Table 14: Judgment on Pleadings v. Summary Judgment

JUDGMENT ON PLEADINGS SUMMARY JUDGMENT
Grounds Answer fails to tender an issue or No genuine issue as to any material
admits material allegations fact in the action
Who may ask Either party Either party
Basis Pleadings Pleadings, depositions, admissions
When invoked After filing answer and before trial Any time before judgment
Partial judgment allowed? R36, S4 and S5 R35, S4
Table 15: Summary Judgments, Judgment on the pleadings, & Judgment by default
SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS JUDGEMENT BY DEFAULT (Rule 9)
* Based on the pleadings, depositions, * Based solely on the pleadings * Based on the complaint and evidence, if
admissions and affidavits presentation is required
* Available to both plaintiff and defendant * Generally available only on the plaintiff, * Available to plaintiff
unless the defendant presents a
counterclaim.
* There is no genuine issue between the * There is no issue or there is an * No issues as no answer is filed by the
parties, i.e. there may be issues but these admission of the material allegations. defending party.
are irrelevant

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* 10-day notice required * 3-day notice required * 3-day notice rule applies
* May be interlocutory or on the merits * On the merits * On the merits
Table 16: Judgment on the Pleadings v. Summary Judgment

Judgment on the pleadings Summary judgment
Proper when there is no genuine issue between the parties Proper even if there is an issue as to the damages recoverable
Based exclusively on the pleadings without introduction of Based not only on pleadings but also on affidavits, depositions and
evidence admissions of the parties
Available in any action, except the 3 exceptions Proper only in actions to recover a debt, or for a liquidated sum of
money, or for declaratory relief
VIII. DISMISSALS AND DEFAULTS
1. Dismissals

Sec. 1. Dismissal upon notice by plaintiff.
A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion
for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed
by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)
Sec. 2. Dismissal upon motion of plaintiff.
Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the
court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to
the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be
without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days
from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court.
Sec. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may
be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for
summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing.
 Dismissal – by mere notice before defendant answers or moves for summary judgment. Hence, no need to furnish
copy to other party.
 After defendant answers or moves for summary judgment, needs prior leave of court
 Dismissal on notice or motion of plaintiff without prejudice EXCEPT:

1) where notice of dismissal so provides
2) 2 dismissal rule – plaintiff has previously dismissed the same case in a court of competent jurisdiction
(Prof. Antonio R. Bautista’s book)
Table 17: Comparison of Section 2 and Section 3

SECTION 2 SECTION 3
1. Dismissal is at the instance of the plaintiff; 1. Dismissal is not procured by plaintiff though justified by
causes imputable to him;
2. Dismissal is a matter of procedure, without prejudice unless 2. Dismissal is a matter of evidence, an adjudication on the
otherwise stated in the order of the court or on plaintiff’s motion merits;
to dismiss his own complaint;
3. Dismissal is without prejudice to the right of the defendant to 3. Dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless 15 days prosecute his counterclaim on the same or separate action.
from notice of the motion he manifests his intention to have his
counterclaim resolved in the same action.

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 Plaintiff may not unilaterally cause dismissal if court has already acted thereon like issued a TRO or replevin writ, or
if it’s class suit. (Prof. Antonio Bautista)
CASES:
REPUBLIC PLANTERS BANK v MOLINA (1988)

P Republic Planters Bank filed complaint 1 for the collection of a sum of money based on a PN of P100,000. Case was dismissed
for failure of P to prosecute its case within a reasonable length of time. P filed complaint 2, D Sarmiento companies filed MTD on the
ground of res judicata in case 1, they contend that it was an adjudication upon the merits. P opposed MTD because the summons
and complaint were never served upon Ds and TC never acquired jurisdiction. TC granted MTD, decision in case1 final. Motion for
recon denied, hence this petition for c.
Issue: WON res judicata applies. No.
Held: Jurisdiction is vitally essential for any order or adjudication to be binding. A judgment to be res judicata must be rendered by a
court of competent jurisdiction. There are no indications that P intentionally failed to prosecute the case. The delay could not be
attributed to its fault. P pursued the case with diligence but jurisdiction could not be acquired over Ds. The sheriff had not yet
submitted his return of the alias summons when the action was precipitately dismissed by the TC.
MELITON v CA (1992)
Respondent Nelia Ziga filed a complaint against Petitioner Lydia Meliton for a rescission of a contract of lease over a parcel of land
in Naga City, for failure to deposit one month rental and pay monthly rents; construction of a concrete wall and roof without lessor’s
consent; and unauthorized sublease. Meliton filed an answer denying material averments and set-up 3 counterclaims: value of
kitchenette, improvements, and furnitures and fixtures that were demolished by Ziga, plus damages. Ziga’s complaint, upon Ziga’s
motion, was dismissed by TC: moot and academic by the expiration of lease contract. P’s counterclaim was also dismissed for non-
payment of docket fees (lack of jurisdiction). P filed this complaint for recovery of the same amounts in the cc. R filed motion to
dismiss: barred by prior judgment of dismissal. TC denied motion. CA reversed and dismissed complaint. Hence this appeal by
certiorari.
Issue: WON CC are compulsory. YES
WON Ps are barred from asserting claims in another action (having failed to seek reconsideration or appeal from dismissal). NO
Held: 1. Test of compulsoriness: the logical relationship between the claim alleged in the complaint and that in the cc, i.e. where
conducting separate trials would entail a substantial duplication of effort and time, as where they involve many of the same factual &
legal issues. Here, both claims arose from the same contract of lease: their rights and obligations and their potential liability for
damages emanated from the same contractual relation.
2.A compulsory cc made the subject of a separate suit may be abated upon a plea of auter action pendant (litis pendentia) or res
judicata depending on the stage of the suit. Both cannot be invoked by R Ziga. Dismissal of complaint was made under Rule 17.2.
and dismissal thereunder is without prejudice except when stated in mtd or upon court’s order. Same rule applies to CC by parity of
rationale. CC was due to lack of jurisdiction for failure to pay docket fees: dismissal for lack of jurisdiction does not constitute res
judicata (not tried on merits).
The order of dismissal impliedly did not intend to prejudice the claims of P by barring subsequent judicial enforcement thereof.
Under R17.2. an action shall not be dismissed at p’s request after service of the answer except by order of the court upon such
terms and conditions the court deems proper. Therefore, the tc could not have BUT reserved Meliton’s right to maintain a separate
action for damages. (under new rule, motion to dismiss after cc filed, dismissal limited to complaint. at any rate, dismissal shall be
without prejudice to d’s right to prosecute cc in a separate action, unless d w/in 15 days from notice of mtd manifests preference to
have cc resolved in the same action R17.2).
Court also applied Manchester doctrine: failure to seek reconsideration because they were made to believe that their cc was merely
permissive should not prejudice them.
DISMISSALS THAT OPERATE AS ADJUDICATIONS ON THE MERITS

(or bar refiling of the same action)
 Rule 16, Section 1 (f)

- res judicata
- prescription
 Rule 16, Section 1 (h) – extinguishment
 Rule 16, Section 1 (i) – unenforceability
 Rule 17, Section 3
- failure to appear on date of presentation of evidence
in chief
- failure to prosecute
- failure to comply with the Rules or any order of the
Court
 Rule 18, Section 5 – failure of plaintiff to appear at pre-trial
 Rule 18, Section 6 – failure of plaintiff to file pre-trial brief
 Rule 17, Section 1 (2-dismissal rule) – Second dismissal upon notice of plaintiff

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 Rule 33, Section 1 – Order granting a demurrer to evidence

 Minute resolution of the SC dismissing a petition for review for lack of merit

2. Defaults
Sec. 3. Default; declaration of.
If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice
to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to
render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the
claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.
(a) EFFECT OF ORDER OF DEFAULT. - A party in default shall be entitled to notice of subsequent proceedings but not to take
part in the trial.
(b) RELIEF FROM ORDER OF DEFAULT. - A party declared in default may at any time after notice thereof and before judgment
file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud,
accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be
set aside on such terms and conditions as the judge may impose in the interest of justice.
(c) EFFECT OF PARTIAL DEFAULT. - When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers
thus filed and render judgment upon the evidence presented.
(d) EXTENT OF RELIEF TO BE AWARDED. - A judgment rendered against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated damages.
(e) WHERE NO DEFAULTS ALLOWED. - If the defending party in an action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence
submitted is not fabricated.
 Sole ground for default declaration: failure of defendant to answer the complaint within prescribed period
 Cf: Judgment by default for refusal to make discovery needs no prior order of default
 Default declaration: only upon motion of party not in default
CASES:
CO v ACOSTA (1985)
In 1979 Pepsi Cola Bottling Co. issued 3 purchase orders to CTC Appliance Center, with Petitioner Rufino Co as its proprietor,
12,000 units of refrigerators worth P35,322,900. P assigned his rights and interests to the 3 Pos to R Refrigerations Industries Inc.
Pepsi did not recognize the assignment. 10,000 units were delivered and paid. In 1981 Pepsi received the 1,000 units directly from
R, worth P2,907,535. R demanded payment from Pepsi but Pepsi replied that it is not bound by the assignment, and the value of
the units received were set-off against debts of P. R demanded from P, but latter refused and failed to pay. R filed case for sum of
money with attachment before CFI Rizal against Pepsi and P. R filed mtd against Pepsi in the light of the “joint release, waiver
and/or quitclaim” signed by both. CFI granted mtd. R filed a motion to declare P in default for having failed to file his answer. CFI
granted motion and allowed R to present evidence ex-parte. In 1983, CFI decided in favor of R. P filed petition for relief of judgment
and petition for issuance of restraining order while court issued writ of execution levying P’s real properties. Both petitions were
denied. Hence, this petition for certiorari.
Issue: WON P was in default. No.
Pepsi and P are indispensable parties to the case; they were sued under a common coa alleging that Pepsi received the
refrigerators w/o intent to pay but only to set-off the debts of P, while P refused to pay and whose debts were set-off by means not
coming from its own pockets; that both in concert with a view to victimize Rs made acts calculated to gain profit from their loss; that
both were guilty of conspiracy, connivance, unfair play, and foul tactics in employing fraud, bad faith, and deceit. Lim Tanhu v.
Ramolete is controlling: in all instances where a common coa is alleged against several Ds, some of whom answer and the others
do not, those in default acquire a vested right not only to own the defense interposed in the answer of the co-defendants not only in
default but also to expect a result of litigation totally common with them in kind and in amount won favorable. It does not matter that
the dismissal is upon the evidence presented by the P himself or upon his mere desistence, for, in both contingencies, the lack of
sufficient legal basis must be the cause. The integrity of the common coa and the indispensability of all Ds do not permit any
possibility of waiver only as to one or some of them, w/o including all of them, and so, as a rule, withdrawal must be deemed to be a
confession of weakness as to all. This would preclude the concomitant hazard that p might resort to a stratagem that results in
depriving ds every opportunity to defend themselves.
LINA v CA (1985)
On March 31, 1982 P Northern Motors Inc. filed a case for a sum of money before CFI Rizal against D Alex Lina. Summons were
served on April 22, 1982. On May 8, 1982, when no answer or mtd was filed, P filed motion to declare D in default. On May 19,
1982, D filed his opposition noting that he filed motion for extension of time to file answer on May 5, 1982. May 27, CFI declared D

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in default. May 28, D filed answer. CFI decided in favor of P. D’s motion to set aside decision was denied. CA denied petition for
certiorari.
Issue: WON D was properly declared in default. Yes.
Held: The granting of additional time within which to file an answer to a complaint is a matter largely addressed to the sound
decision of the tc. The remedies available to D in the CFI are:
(1) He may, at any time after discovery of default and before judgment, file a motion, under oath, to set aside the order of
default on the ground that his failure to answer was due to fraud, accident, mistake, or excusable neglect, and that he has
a meritorious defense; (R18 S3)
(2) If the judgment has already been rendered upon discovery but before the same has become final and executory, he may
file a motion for new trial under R37 S1(a);
(3) If D discovered the default after judgment has become final and executory, he may file a petition for relief under R38 S2;
and
(4) He may also appeal the judgment as contrary to evidence or to the law, even if no petition to set aside the order of default
has been presented by him (R41 S2).
Dissent by Melencio-Herrera: D’s motion for extension to file answer was already before the court when it declared D in default.
What is more, the answer had already been filed within the extended period requested when judgment by default was rendered.
Cases should be resolved by merits rather than technicalities; every litigant should be afforded the amplest opportunity for the
proper and just disposition of his cause.
BOTICANO v CHU (1987)

P Eliseo Boticano’s Bedford truck, while properly parked at the shoulder of a national highway, was hit and bumped at the rear by
another truck owned by D Manuel Chu Jr. and driven by Jaime Sigua, co-d. D acknowledged ownership of truck and agreed to pay
expenses for the repair. D failed to comply w agreement, P filed complaint at the CFI Nueva Ecija for damages. Summons as to JS
was unserved as he was no longer connected with San Pedro Sawmill while summons for MC was returned duly served thru wife
Veronica at their house. P filed mtd case against JS and motion to declare D MC in default for failure to file responsive pleadings
w/in reglementary period. Motion granted. TC decided in P’s favor. D filed notice of appeal and motion for extension of time to file
record on appeal, opposed by P, but granted. CA set aside TC’s judgment for lack of jurisdiction (improper service of summons).
Issue: (1) WON question of jurisdiction over person can be raised for the first time on appeal. No.
Failure to raise issue in the CFI at first opportunity is indicative of waiver of the defect. D also voluntarily submitted himself to the
court’s jurisdiction; under R14 S23, D’s voluntary appearance in the action shall be equivalent to service.
(2) WON D may appeal default judgment even if he has not asked RTC to set aside declaration of default. Yes.
If an appeal is made without first asking the RTC to set aside the declaration of default, and the appellate court sets aside
declaration, all he can get is a review of the RTC’s judgment of default w/o the opportunity of having the higher court consider
defense evidence for the simple reason that no evidence was adduced by him in the RTC (R41, s2, p3).
If D first asks the RTC to set aside the declaration of default and he prevails, the declaration will be set aside and he will now have
the opportunity to present his evidence in the RTC. Even if he loses in the RTC, his defense can be considered when appeal is
made to the CA. If his motion is denied, he will be entitled to all notices in the court proceedings and he can file any pleading he may
wish to file including notice of appeal (R13, s9).
DENSO v IAC (1987)

Nippondenso Bldg, owned by P Kayamanan Development Corp. and leased to Defendant and Respondent Denso Phil. Inc. was
razed by fire causing losses of P6.13M to R, P.682K to Nippondenso, and P1.75M to P. P filed action against D for recovery of
unpaid rentals from June 84 to March 85 of P471K, the cost of repair to the bldg, claiming that D was bound to bear cost under the
lease agreement. Summons was belatedly referred to D’s counsel prompting the latter to file a motion for extension of time to file
answer. Motion was denied on the ground that there was no proof of service that P received a copy. P then filed ex-parte motion to
declare D in default, which was granted. Evidence was received ex-parte and decision was rendered in P’s favor. D filed motion for
reconsideration of order and judgment. On Sept. 3, 1985, TC set aside order of default and decision, but hearing was only for
presentation of D’s evidence without right to cross-examine P. D orally asked the court to reconsider on Oct. 24 and formally filed
motion for reconsideration on Nov 4, 198, but was denied by the Court on Nov 8 and Nov 12 respectively. D did not receive Nov 12
order until Jan 9, 1986, the last day for the reception of evidence. Upon being shown the order, R asked for deferment of the hearing
so that it can elevate ruling to higher court. This was denied, and when D declared itself not ready to present evidence, the court
revived decision in favor of P. On petition for certiorari, IAC held that the right to cross-examine was deemed waived by R’s failure to
move for reconsideration until after 38 days, order sought already final, and D was guilty of laches.
Issues:
(1) WON the Sept. 3, 1985 order became final. No. WON D guilty of laches. No.
A final judgment is one that finally disposes a case; an order that does not is interlocutory. Unlike a final judgment which is
appealable, an interlocutory order may not be questioned on appeal except only as part of an appeal that may eventually be taken
from a final judgment. The order was interlocutory, in setting aside order of and judgment by default, it left the case open for further
proceedings before the TC, not the least was the reception of evidence. Therefore, it could not become final, not appeal would lie
except as part of an appeal from a subsequent final judgment on the merits, and a motion for recon is not subject to the limiting 15-
day period of appeal. 38 days is not an unreasonably long period to apply laches, it is founded on equity and may be invoked only
when they delay has worked a change in the conditions as would render unjust or inequitable the grant of the relief sought. No
perceivable prejudice would attach to P if D was allowed to cross-examine the witnesses presented.
(2) WON the issue of D’s default was moot. No.
What the IAC considered to be moot, the issue of CFI’s denial of motion for extension of time and declaring D in default lay precisely
at the heart of the matter before it. Both orders were premised on the failure to comply with service of notice of motions 3 days prior

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to hearing by D. But the rule on notice is not unqualifiedly applicable to all motions, and there are motions that may be heard ex-
parte, which include motions to file extension of time to plead. The reason is that they are non-contentious and do not involve the
substantial rights of the parties in the suit. D’s motion for extension was improperly denied since it has been seasonably filed and
there is no impediment to its being heard ex-parte. No pretense was made that it was filed for delay, which would be belied by the
fact that what was sought was the extension of the original reglementary period and there are prima facie meritorious reasons for
the extensions. The answer alleging defenses that could defeat P’s claim was filed w/in period of extension prayed for.
(3) WON Judge abused discretion in disallowing cross-examination. Yes.
 Remedies from Default Order

 Opposition to motion to declare in default
 Motion to set aside default order- must be due to fraud, accident, mistake and excusable negligence and
accompanied by Affidavit of Merits
 But affidavit required only if improvidently declared in default, but not if illegally declared in
default (Prof. ARBautista)
 If default order set aside, it is as if there was no default. Defaulting party can still cross-
examine
 Remedies from Default Judgment

 Motion for new trial or reconsideration – only if there has been judgment by default
 Appeal from Default Judgment– after judgment rendered. Even if did not file motion to set aside default order or
default judgment (R41 S2: appeal by certiorari) or motion for new trial (Matute v CA)
1. Petition for relief from judgment – R 38. Use this if period to appeal has lapsed without defendant’s fault or
negligence.
2. Petition for certiorari – Order is interlocutory, so certiorari under R65 (but requires no available plain,
speedy and adequate remedy. Motion to Set aside Order of Default must no longer be available )
 There must be lapse of time between Order of Default and Judgment by Default. (Tanchan v CA). Defendant should
have reasonable time to file motion to set aside default declaration
 Cannot grant judgment by default for annulment of marriage, judicial declaration of nullity and legal sep
IX. PROVISIONAL REMEDIES
 So that any judgment which plaintiff may recover will not become paper judgment or that defendant not take
advantage of pendency of litigation by significantly altering situation or parties
 Known as mesne process bec issued in interregnum between commencement of action and rendition of judgment
 Aka auxiliary remedies
1. NOTICE OF LIS PENDENS

Sec. 14. Notice of lis pendens
In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is
claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of
the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a
description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of
its pendency against the parties designated by their real names
The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to
be recorded.
 Since fxn is to keep prop within power of court until final judgment, notice cannot be cancelled or removed by filing of
bond (Fernandez v CA)
Art. 1381 (4), Civil Code

The following contracts are rescissible:
x x x
(4) Those which refer to things under litigation if they have been entered into by the defendant without the knowledge
and approval of the litigants or of competent judicial authority;

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CASE:
PO LAM v CA (2000)
This is a motion for reconsideration filed by spouses Roy Po Lam of the Court’s decision declaring them as transferees pendente lite
and not purchasers in good faith. Lim Kok Chong sold two lots to the Legazpi Avenue Hardware Company. LKC’s brother, Felix Lim,
filed a complaint to annul the deed of sale at the CFI Albay on the ground that it included his 3/14 pro-indiviso portion inherited. FL
filed with the Register of Deeds of Albay a notice of lis pendens on the 2 lots. TC dropped case against LKC and LAHCO declared
absolute owner. TC ordered cancellation of the notice of lis pendens. Only the notice inscribed on TCT 2580 was cancelled; that of
2581 remained uncancelled because the duplicate owner’s copy was with the Continental Bank, having been mortgaged by
LAHCO. FL appealed to the CA. Pending appeal, LAHCO sold the 2 lots to spouses Po Lam. They had notice on 2581 cancelled,
FL did not move for the reinstatement of the notices.
CA affirmed decision of TC. FL filed motion for extension of time to file MFR. Granted, but his MFR was denied. Without leave of
court, FL filed a second MFR. This was acted upon favorably by the CA, by declaring that FL could redeem the lots sold to LAHCO.
FL filed motion for annotation, issuance of writ of execution, and deed of conveyance. All denied by TC: Po Lam could not be bound
since they were not impleaded. FL filed a complaint for reconveyance and annulment of sale. RTC declared Po Lam as transferees
pendent elite and not purchasers in good faith. Po Lam filed certiorari but was denied by SC. Hence this MFR.
Issue: WON Po Lam spouses were purchasers pendent lite and in bad faith. No
Held: It must be pointed out that even if a notice of lis pendens was still subsisting at the time Ps bought the property from LAHCO,
there was also a court order ordering that the annotation be cancelled, as in fact, it was cancelled. Hence, Ps cannot be considered
as being aware of a flaw, since the alleged flaw, the notice of lis pendens, was already being ordered cancelled at the time of
purchase. The filing of the notice of lis pendens in effect (1) keeps the subject matter of the litigation within the power of the court
until the entry of the final judgment so as to prevent the defeat of the latter by successive alienations; and (2) binds a purchaser of
the land subject of the litigation to the judgment or decree that will be promulgated thereon won such purchaser is bona fide; but (3)
does not create a non-existent right or lien.
But it is not correct to speak of it as part of the doctrine of notice; the purchaser pendent lite is affected, not by notice, but because
the law does not allow litigating parties to give to others, pending the litigation, rights to the property in dispute as to prejudice the
opposite party. The doctrine rests upon public policy, not notice.
2. PRELIMINARY ATTACHMENT
a) Art. 1387, CC
Art. 1387, Civil Code

All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in
fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation.
Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been
issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party
seeking the rescission.
In addition to these presumptions, the design to defraud creditors may be proved in any other manner recognized by the law
of evidence.
RULE 57 PRELIMINARY ATTACHMENT
1. Preliminary Attachment
a. Available even if the recovery of personal property is only an incidental relief sought in the action;
b. May be resorted to even if the personal property is in the custody of a third person;
c. Extends to all kinds of property, real or personal or incorporeal;
d. To recover possession of personal property unjustly 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, AND with permission of the court
f. Overdraft account with bank also can’t be attached bec that would be compelling defendant to borrow money
g. But in action to foreclose REM, prop not covered by mortgage may be attached if shown that mortgaged prop insufficient
to cover debt (Prof. ARBautista)
2. Grounds
a. Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the
Phils with intent to defraud creditors;
b. Action for money or property embezzled or for willful violation of duty by public officers, officers of corporation, agent, or
fiduciary;

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c. Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or
disposed of to prevent is being found or taken;
d. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;
e. Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;
f. Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can
be made.
 Imminent insolvency or insolvency itself is not ground

 Ground (f) on non-resident party applies only to natural persons
 Attachment can issue for ©, quasi-delicts, fraud
PROCEDURE IN PRELIMINARY ATTACHMENT
(1) Party files a motion for preliminary attachment in the court in which the action is pending, or in the CA or SC. (Of
course it goes without saying that the adverse party must have notice of the motion.)
Who: Any party, including:
 A defendant on his counterclaim;

 A co-party on his cross-claim;
 3rd party plaintiff on his 3rd party claim
When: at the commencement of the action, or at any time before entry of judgment
(2) Applicant (or some other person who personally knows the facts) must submit an affidavit stating, among others that:
(a) His / her cause of action (which must be found to be existing and sufficient);
(b) The ground for the application is covered by the instances provided for in Rule 57, Sec. 1;
(c) There is no other sufficient security for the claim sought to be enforced by the action;
(d) The amount due to the applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all legal counterclaims.
(3) Applicant must then give a bond executed to the adverse party in the amount fixed by the court in its order.
Conditions of the bond: The applicant will pay all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment, if the court shall finally
adjudged that he (applicant) was not entitled to the writ.
(4) The court will proceed to hear the motion.
(5) The court will then decide on whether or not to grant the writ, and issue its order accordingly.
(6) If the court grants the writ, then the sheriff shall enforce the same without delay and with all reasonable diligence.
(6.1) Notes: The property attached should:
(1) Be located in the Philippines;

(2) Belong to the party against whom the writ is issued;
(3) Not be exempt from execution;
(4) Be sufficient to satisfy the applicant’s demand
(not excessive);
(6.2) Enforcement of the writ must be preceded or contemporaneously accompanied by the following:
(1) Service of summons;

(2) A copy of the complaint;
(3) A copy of the application for attachment;
(4) A copy of the applicant’s affidavit and bond; and
(5) The order and writ of attachment.
(6.3) The exceptions to contemporaneous service of summons are:
(1) Where personal or substituted service of summons could not be effected despite
diligent efforts;
(2) The defendant is a resident of the Philippines temporarily absent therefrom;

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(3) The defendant is a non-resident of the Philippines;

(4) The action is one in rem or quasi in rem
(7) After enforcing the writ, the sheriff must, without delay, make a return of the writ to the court which issued it.
The return must be accompanied by the following:
(a) Full statement of proceedings under the writ;

(b) Complete inventory of the property attached;
(c) Counter-bond, if any, given by the party against whom attachment was issued.
(8) AT THIS POINT, the party whose property was attached, or his agent, may move for the discharge of the
attachment wholly or in part on the security given.
If garnishee does not deliver funds to attaching creditor, attaching creditor may obtain writ of execution or file separate
action, but garnishee cannot be punished for contempt (Tee Bi & Co. v Chartered Bank of India)
(9) The sheriff may then cause the judgment to be satisfied out of the property attached as follows:
MODES OF ATTACHING PROPERTY
Real property, or standing crops thereon or any interest therein
By filing a copy of the order with the Register of Deeds, together with a description of the property attached, and a notice that it
is attached; and
Leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his
agent if found within the province.
Personal property capable of manual delivery
By taking and safely keeping it in his custody, and issuing the corresponding receipt therefor.
Stocks or shares of any corporation or company, or an interest therein
By leaving with the Pres. or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest is
attached in pursuance of the writ
Debts and credits and other personal property not capable of manual delivery
By leaving with the debtor, or person having possession or control of the credits or other personal property, or his agent a copy
of the writ, and the proper notice
Interest in property belonging to the estate of a decedent
By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice;
Filing a copy of the writ and notice with the clerk of the court in which the estate is being settled; and
Serving copies of the writ and notice upon the heir, legatee, or devisee concerned.
Property in custodia legis
By filing a copy of the writ with the proper court or quasi-judicial agency; and
Serving a notice of the attachment upon the custodian of the property.
ALL PROPERTIES EXEMPT FROM EXECUTION ARE THE PROPERTIES EXEMPT FROM ATTACHMENT. Even property in
custodia legis is allowed to be attached.
 2 Kinds of attachment
1) Attachment proper- actual physical custody for tangible things
2) Garnishment- when intangible prop not taken into custody but merely impounded
- essentially is notice of sequestration

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CONNECTICUT v DOEHR (1991)

Giovanni filed for attachment on Doehr’s house for a civil action for assault and battery. Under Connecticut law, prejudgment
attachment of real estate allowed without prior notice or prior hearing. Required to be verified under oath but bond not required. The
judge found probable cause in Giovanni’s cause of action and ordered attachment.
Held:
Attachment ordinarily clouds title, impairs the ability to sell or otherwise alienate the prop, taints any credit rating, reduces
the chance of obtaining a home equity loan or addl mortgage and can even place existing mortgage in technical default where there
is an insecurity clause. Hence, even temporary or partial impairments to prop rights are sufficient to merit DP protection.
Cannot have attachment merely because plaintiff believes defendant is liable, or there’s facially valid complaint bec claim
might fail to convince jury. Unlike determining existence of debt, issue does not concern ordinarily uncomplicated matters that lend
themselves to documentary proof. A later hearing might negate the presence of probable cause, but this does not cure temporary
deprivation.
Also, no allegation that Doehr was about to transfer or encumber real prop. A preattachment hearing without at least
requiring some exigent circumstance does not meet reqts of DP.
NORTH GEORGIA FINISHING v DI-CHEM (1975)

Plaintiffs in Georgia are entitled to process of garnishment. Requirements: affidavit before some officer authorized or the clerk of
court, reason to apprehend the loss, bond in 2x the amount sworn to be due. Dichem sued North Georgia, and filed for garnishment.
North Georgia filed bond to pay any final judgment, so the judge discharged the garnishment.
Precedents: Sniadach v Family Finance Corp: can’t garnish wages; Fuentes v Shevin: invalid seizure bec no notice or hearing or
judicial order
Held:
Invalid statute. Writ issued by clerk court without notice or opportunity for an early hearing and without participation of
judicial officer. Affidavit of creditor or his attorney need not have personal knowledge of the facts, as it needs only conclusory
allegations. Writ issuable by clerk of court, and does not need judge. Without bond, defendant cannot challenge the garnishment.
There’s still probability of irreparable injury despite double bond.
Rule 57. Preliminary Attachment
(a) When may be issued –
 Sec. 1. Grounds upon which attachment may issue.

At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of
the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of
action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an
officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other
person in a fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or
any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the
action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his
creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by
publication.
 Imminent insolvency or insolvency itself is not ground

 Ground (f) on non-resident party applies only to natural persons
 Attachment can issue for ©, quasi-delicts, fraud
(b) Who may issue
 Sec. 2. Issuance and contents of order.

An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is
pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property
in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's
demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order,
which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the
applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.

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(c) Requirements for Issuance
 Sec. 3. Affidavit and bond required.

An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who
personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that
there is no other sufficient security for the claim sought to be enforced by the action, and
that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the
sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding
section, must be duly filed with the court before the order issues.
 If claim for unliquidated damages, attachment may not issue because applicant cannot swear on amount
 Applicant’s bond, aka attachment bond
 Sec. 4. Condition of applicant's bond.

The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its
order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party
and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not
entitled there to.
(d) What may be attached
 Sec. 5. Manner of attaching property.

The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the
action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the court from which the writ is issued, or gives a counterbond executed to the applicant, in
an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of
costs.
No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons shall not apply
1) where the summons could not be served personally or by substituted service despite diligent efforts, or
2) the defendant is a resident of the Philippines temporarily absent therefrom, or
3) the defendant is a non-resident of the Philippines, or
4) the action is one in rem or quasi in rem.
 Prop subject of litigation or claimed by plaintiff cannot be attached bec such attachment would be pre-emptive of the
judgment.
EXCEPTION: interest of attachment defendant in property under judicial administration
 Overdraft account with bank also can’t be attached bec would be compelling defendant to borrow money
 But in action to foreclose REM, prop not covered by mortgage may be attached if shown that mortgaged prop
insufficient to cover debt
 NOTE: unlike execution debtor, attachment defendant cannot direct sheriff which prop should be attached
(e) How writ implemented
 Sec. 6. Sheriff's return.

After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, with a
full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond
given by the party against whom attachment is issued, and serve copies thereof on the applicant.
 Sec. 7. Attachment of real and personal property; recording thereof.

Real and personal property shall be attached by the sheriff executing the writ in the following manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province
in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the
party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in
the name of any other person, by FILING WITH THE REGISTRY OF DEEDS A COPY OF THE ORDER, together with a
description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by
or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the

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occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has
been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall
contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is
registered, and the registered owner or owners thereof.
The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire
area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to
be affected shall be included in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding
receipt therefor;
(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing
agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is
issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable
of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits
or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against
whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to
said party, are attached in pursuance of such writ;
(e) The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as
heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy
of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the
office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-
judicial agency, and notice of the attachment served upon the custodian of such property.
 2 Kinds of attachment
1) Attachment proper- actual physical custody for tangible things
2) Garnishment- when intangible prop not taken into custody but merely impounded
- essentially is notice of sequestration
 Sec. 8. Effect of attachment of debts, credits and all other similar personal property.
All persons having in their possession or under their control any credits or other similar personal property belonging to the party
against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment
and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other
similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is
delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment.
 Sec. 9. Effect of attachment of interest in property belonging to the estate of a decedent.

The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair
the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of
administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is
filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property
attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any
person claiming under him.
 If garnishee does not deliver funds to attaching creditor, attaching creditor may obtain writ of execution or file
separate action, but garnishee cannot be punished for contempt (Tee Bi & Co. v Chartered Bank of India)
 Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property;
delivery of property to sheriff.
Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other
personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a
commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may
also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court
may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person
so required to attend before the court, to be delivered to the clerk of the court or sheriff on such terms as may be just, having
reference to any lien thereon or claim against the same, to await the judgment in the action.

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 Sec. 11. When attached property may be sold after levy on attachment and before entry of judgment.
Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all the parties to the action will be will be subserved by the sale thereof, the
court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be
deposited in court to abide the judgment in the action.
 Sec. 15. Satisfaction of judgment out of property attached; return of sheriff.

If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out
of the property attached, if it be sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the
court, or so much as shall be necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if
enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court;
(c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter
at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the
action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with
copies thereof.
 Sec. 16. Balance due collected upon an execution; excess delivered to judgment obligor.
After realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to
the satisfaction of the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff
must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon
reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale
of the property attached not applied to the judgment.
 Sec. 17. Recovery upon the counter-bond.

When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule
to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon
demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and
summary hearing in the same action.
 Sec. 18. Disposition of money deposited.

Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied
under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the
judgment the balance shall be rendered to the depositor or his assignee. If the judgment is in favor of the party against whom
attachment was issued, the whole sum deposited must be refunded to him or his assignee.
 Sec. 19. Disposition of attached property where judgment is for party against whom attachment was issued.
If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under
the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against
whom attachment was issued, and the order of attachment discharged.
(f) Quashal of writ
 Sec. 12. Discharge of attachment upon giving counterbond.

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf,
may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing,
order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party
with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be
equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the
attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the
proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person
appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such
counterbond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-
bond, the attaching party may apply for a new order of attachment.
 Sec. 13. Discharge of attachment on other grounds.

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The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after
levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the
same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge
shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party
may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due
notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that
1) it was improperly or irregularly issued or enforced, or that
2) the bond is insufficient, or that
3) the attachment is excessive, and the defect is not cured forthwith.
 Discharge of attachment can’t be sought on ground that attaching plaintiff has no cause of action bec that would
advance trial on merits (Benitez v IAC)
CASE:
BRITISH ASSURANCE v IAC (1987)

Scywin sued Varian to collect money, attaching properties of Varian upon posting of bond. Counterbond posted by Varian with
Phil British Assurance as surety. Judgment v Varian. Pending appeal, IAC ordered execution. Since Varian failed to deliver
previously attached properties, IAC ordered Phil British to pay.
Held:
Counterbond can secure decision, even if pending appeal. R57 S5 and S12 says that counterbond to secure payment
of any judgment. S17: when execution be unsatisfied, it is only then that payment of the judgment shall be charged on such
counterbond.

Sec. 12. Discharge of attachment upon giving counterbond.
After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf,
may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing,
order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party
with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be
equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the
attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or
the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person
appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such
counterbond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of attachment.
Sec. 13. Discharge of attachment on other grounds.

The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after
levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the
same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge
shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party
may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due
notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is
not cured forthwith.
(g) Third-party claims

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Sec. 14. Proceedings where property claimed by third person.
If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has possession of the attached party, and a copy thereof upon the attaching
party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of
the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the
property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond
shall be filed.
Nothing herein contained such prevent such claimant or any third person from vindicating his claim to the property, or prevent the
attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or
a separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by
the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer
out of the funds to be appropriated for the purpose.
 Aka sheriff’s bond/ indemnity bond- filed by plaintiff

 Remedies of 3rd party claimant- cumulative
1) 3rd party claim or terceria
2) Intervene in main action – not available in execution
3) Reivindicatory action - separate action v sheriff and attaching creditor for recovery of attached prop.
Obtain prelim injunc to enjoin sheriff from attaching
4) If real prop covered by Torrens system, file petition under Prop Regn Decree to cancel annotation of
attachment on ground of error or mistake
5) Damages – recover against sheriff’s bond within 120 days from filing bond (Prof. ARBautista)
(h) Remedies in case of illegal attachment

Sec. 20. Claim for damages on account of improper, irregular or excessive attachment.
An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before
appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties,
setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper
hearing and shall be included in the judgment on the main case.
If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages
sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor
the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate
court may allow the application to be heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the
damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by
the latter be insufficient or fail to fully satisfy the award.
 Recoverable damages: actual and moral. Malice or BF are needed only if claiming moral damages.
 Unlike prelim injunction, can recover beyond amt of attachment bond
 General rule: Claim for damages in main action before final judgment.
EXCEPTION: If main action dismissed for lack of jurisdiction or improper venue
 This provision applies only for recovery against attachment bond. Therefore, can recover on counterbond even after
judgment is final and executory
CASES:
INTL CONTAINER TERMINAL SERVICES v CA (1992)

Sharp sued Phil Ports Authority and ITCSI for prelim injunction to stop the negotiation and awarding of a contract to ICTSI. CFI
granted prelim injunction upon posting by Sharp of bond issued by its bonding company. ICTSI filed compulsory counterclaim v
Sharp. Case dismissed on PPA’s and ICTSI’s motion. ICTSI gave notice to bonding company that it was claiming damages vs Sharp
for revoked injunction.
Held:
Court laid down the following principles:
 Damages from prelim attachment, injunction, appointment of receiver or seizure of personal prop, the payment of
which is secured by judicial bond, must be claimed and ascertained in same action with due notice to surety.

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If surety given due notice, he is bound by judgment that may be enforced against principal. Wit of execution may issue against
surety
 If no notice given to surety, judgment vs surety cannot be executed without giving surety an opportunity to be heard.
Hearing will be summary and limited to such new defense (ie. not previously set up by principal).
 Application for damages and notice must be anytime before judgment becomes final and executory.
3. PRELIMINARY INJUNCTION

Sec. 1. Preliminary injunction defined; classes.
A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a
party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a
particular act or acts, in which case it shall be known as a preliminary mandatory injunction. (1a)
The latter be insufficient or fail to fully satisfy the award.
Sec. 2. Who may grant preliminary injunction.
A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is
pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof.
Sec. 3. Grounds for issuance of preliminary injunction.
A preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission
or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited
period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably
work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some
act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual. (3a)
Sec. 4. Verified application and bond for preliminary injunction or temporary restraining order.
A preliminary injunction or temporary restraining order may be granted only when:
(a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed
to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or
person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally
decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be
issued.
(c) When an application for a writ of preliminary injunction 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 notice to and in the presence of the
adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
(d) However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse
party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(e) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary
hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are
received by the branch selected by raffle and to which the records shall be transmitted immediately.
Sec. 5. Preliminary injunction not granted without notice; exception.
No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined.
If it shall appear from facts shown by affidavits or by the verified application that GREAT OR IRREPARABLE INJURY would result
to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made,
may issue ex parte a TEMPORARY RESTRAINING ORDER to be effective only for a period of TWENTY (20) DAYS from service
on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order
said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the
same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.
However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer
GRAVE INJUSTICE AND IRREPARABLE INJURY, the executive judge of a multiple-sala court or the presiding judge of a single-
sala court may issue ex parte a temporary restraining order effective for only SEVENTY-TWO (72) HOURS from issuance but he
shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be
served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct
a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary
injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein.

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In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining
order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any
judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it
was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60)
days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member
thereof shall be effective until further orders.
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order.
The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining
order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or if granted, may be
dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the
issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person
enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a
bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the
denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction
or restraining order granted is too great, it may be modified. (6a)
Sec. 7. Service of copies of bonds; effect of disapproval of same.
The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party,
who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant’s bond is found to be insufficient
in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in
amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification
is not filed forthwith, the injunction shall be granted or restored, as the case may be
Sec. 8. Judgment to include damages against party and sureties.
At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed,
ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57.
Sec. 9. When final injunction granted.
If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the
court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the
act or acts or confirming the preliminary mandatory injunction.
US v COLD METAL PROCESS (1944)

US Govt wants to cancel 2 patents for cold rolling metals on the ground that they were obtained thru fraud. US asked for temporary
injunction to restrain corporation from receiving or distributing monies to its stockholders, which might place the monies beyond
reach.
Held: Trial court has discretion to grant temporary injunc. Essential conditions: complaint must allege fats which appear sufficient to
constitute cause of action for injunction; injunction is reasonably necessary to protect the legal rights of the plaintiff; where danger
threatened cannot easily be remedied if injunction is refused and there is no doubt that the act charged is contemplated.
If injury to movant is certain and irreparable, while injury to opposing party wil be inconsiderable and may be adequately
indemnified by a bond => injunc usually granted
Test: balancing of conflicting equities
That relief is doubtful should not be reason to deny injunction. It is doubt which causes litigation.
Impounding of funds by court will preserve them for defendants if defendants win, but if royalties allowed to be paid out to
stockholders, damage to US would be immediate, certain and irreparable.
KEAN v HURLEY (1950)

Injunction v Bailey not to enter the Joyce estate. Decree further stated that all persons who obtain knowledge are enjoined from
going into the land. Hurley et al trespassed on the land, but alleged they were not notified of the injunction, as they ere not
acquainted with defendants in the injunction.
Held: Injunction binding only upon parties, their officers, agents, servants, employees and attorneys or those in active consent or
participating with them. Injunction is usually in personam and binding only on parties and their privies. Suit’s objective was against
the person as distinguished from a judgment against the prop. Injunc can’t bind those not heard or represented or subject them to
penalties for contempt. If those not heard are punished, party is deprived of right to trial.
Can’t hold Hurley et al for contempt.
SILVERS v TRAVERSE (1891)

Injunction issued v Traverse (lessor) to stop unlawful sale of liquor on his premises. Silvers (lessee), who was not a party to the
injunction proceedings , used the premises to sell liquor. Silvers was charged with contempt.
Held:
Decree for abatement of nuisance operates upon prop as well as upon defendant. Decree was a restriction on use of the
prop. One who uses prop unlawfully violated injunction and may be punished for contempt even if he was not party. Otherwise,
defendant can perpetrate nuisance by leasing prop to one who had no notice.

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Grounds for Preliminary Injunction

a. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is
preliminary mandatory injunction);
b. The commission of acts or non-performance during pendency of litigation would probably work injustice to the
plaintiff;
c. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to
render judgment ineffectual.
Injunction may be refused or dissolved when:

a. Complaint is insufficient;
b. Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if
injunction granted or continued while plaintiff can be fully compensated;
c. Plaintiff’s bond is insufficient or defective
 No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing.
 TRO good for only 20 days from service; 60 days for CA; until further orders from SC.
 TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury.
Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond,
and hold summary hearing to determine whether TRO should be extended for 20 days. In no case can TRO be longer
than 20 days including 72 hours.
 No TRO, preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving
implementation of government infrastructure projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-99,
promulgated June 25,1999)
 Since it’s a provisional remedy, its lifetime cannot extend beyond that of litigation from whence it is issued
 Purpose: to preserve status quo (last actual peaceable uncontested status which preceded the pending controversy). It is
the status before the controversy, not before the litigation.
 As a rule, is in personam and binds only parties and their privies.
EXCEPTION: If it restricts use of prop which follows it as a burden (Kean v Hurley, US case)
 For FE and UD, Court is expressly authorized to issue prelim mandatory injunction to restore plaintiff in possession, if
defendant’s appeal is frivolous or dilatory, or appeal of plaintiff is prima facie meritorious
 Right to relief must refer to an existing right, not contingent or future
 If issued without a hearing and without bond, it’s a TRO

 Injunctions not allowed in labor disputes, cases involving govt concessions, licenses and permits, infrastructures and
natural resources devt projects and public utilities operated by govt, against mortgage foreclosures by GFI’s and against
collection of taxes; consummated acts, criminal prosecution, interference with coordinate courts and transfer of
possession
 Injunction operates only within territory of issuing court.
EXCEPTION: Can enjoin acts pursuant to illegal admin decisions of officials from outside the territory from being
committed within territory of issuing court
 Dissolve injunc where irreparable damage to person being enjoined while applicant can be fully compensated for
such damages => rule of relative or comparative inconvenience
 Injunc can be dissolved even ex parte (Farrales v Fuentecilla)
 If judgment of dismissal, and there is appeal, prelim injunc not dissolved unless court says so
 But if court grants permanent injunction in judgment, appeal does not reinstate injunc
 Injunc bond to answer for all damages. Malice or BF required only if suit for damages based on malicious
prosecution. Otherwise, if malice or BF required, filing bond is useless

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Table 18: Preliminary Attachment vs. Preliminary Injunction

PRELIMINARY ATTACHMENT PRELIMINARY INJUNCTION
PURPOSE To seize the property of the debtor in advance of ( Note : Granted at any stage of the
final judgment and to hold it for purposes of action prior to final judgment)
satisfying the said judgment; or
The rationale for preliminary
To enable the court to acquire jurisdiction over the injunction is to preserve the status quo. It is
action by the actual or constructive seizure of the important to preserve the status quo since
property in those instances where personal service otherwise, the judgment may be rendered
of summons on the creditor cannot be effected. academic. The status quo is the last, actual,
peaceable, uncontested status prior to the
controversy which gave rise to litigation
(Rodolfo v. Alfonso).
MAY IT BE ISSUED EX Yes Generally no
PARTE?
PRINCIPLE OF PRIOR * PRINCIPLE OF PRIOR OR CONTEMPORARY * PRINCIPLE OF PRIOR OR
OR CONTEMPORARY JURISDICITON (Preliminary Attachment) CONTEMPORARY JURISDICTION:
JURISDICTION
- Enforcement of writ of preliminary attachment When an application for a writ of preliminary
must be made preceded by or simultaneously injunction or a temporary restraining order is
accompanied by service of summons, copy of included in a complaint or any initiatory
complaint, application and affidavits for the pleading, the case, if filed in a multiple-sala
attachment and the bond upon the adverse party; court, shall be raffled only after NOTICE to
and IN THE PRESENCE of the adverse
BUT the requirement of prior or contemporaneous party or the person to be enjoined.
service of summons shall not apply where the
summons could not be served despite diligent In any event, such notice shall be preceded,
efforts, or the defendant is a resident of the Phils or contemporaneously accompanied by
temporarily absent therefrom, or the defendant is a service of summons, together with a copy of
non-resident of the Phils or the action is in rem or the complaint and the applicant’s affidavit and
quasi in rem. bond, upon the adverse party in the Phils;
BUT the requirement 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 Phils temporarily
absent therefrom, or the defendant is a non-
resdent of the Phils.
* Difference with principle in preliminary

attachment – in attachment, the principle
applies only in the implementation of the writ,
while in applications for injunction or TRO, this
principle applies before the raffle and
issuance of the writs or TRO.
GROUNDS
a) Recovery of specified amount of money and a) Plaintiff is entitled to relief sought which
damages, except moral or exemplary, where party consists in restraining or requiring the
is about to depart from the Phils with the intent to performance of acts (latter is preliminary
defraud creditors; mandatory injunction);
b) Action for money or property embezzled or for b) The commission of acts or non-performance
willful violation of duty by public officers, officers of during pendency of litigation would probably
corp, agent or fiduciary; work injustice to the plainitiff;
c) Recovery of possession of property (both real c) Defendant is doing or about to do an act

and personal) unjustly detained, when the property violating plaintiff’s rights respecting the subject
is concealed or disposed of to prevent is being of the action and tending to render judgment
found or taken; ineffectual.
d) Action against party guilty of fraud in contracting

the debt or incurring the obligation or in the
performance thereof;

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e) Action against party who is concealing or

disposing of property, or is about to do so, with
intent to defraud creditors;
f) Action against party who is not a resident of the

Phils and cannot be found therein upon who service
by publication can be made.
WHEN DISCHARGED/ * When preliminary attachment is discharged * Injunction may be refused or dissolved
DISSOLVED? a) Debtor posts a counterbond or makes requisite when:
cash deposit – if attachment to be discharged is a) Complaint is insufficient;
with respect to particular property, counterbond or
deposit shall be equal to the value of the property b) Defendant is permitted to post a
as determined by the court; in all other cases, counterbond it appearing that he would sustain
amount of counterbond should be equal to the great and irreparable injury if injunction
amount fixed in the order of attachment. granted or continued while plaintiff can be fully
compensated;
* CASH DEPOSIT OF COUNTERBOND SHALL
SECURE THE PAYMENT OF ANY JUDGMENT c) Plaintiff’s bond is insufficient or defective.
THAT ATTACHING PARTY MAY RECOVER
* No preliminary injunction or TRO may be
b) Applicant’s bond is insufficient or sureties fail to issued without posting of bond and notice to
justify; adverse party and hearing.
c) Attachment was improperly or irregularly issued;

Ways of Dissolving an Injunction
d) Property attached is exempt from execution;
1. no ground
e) Judgment is rendered against attaching party; 2. bond insufficient
3. comparative or relative damage
f) Attachment is excessive – discharge is with The defendant will suffer more
respect to the excess damage if the injunction is
issued
* Application 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.
MOTION TO SET ASIDE / DISCHARGE ATTACHMENT:

Who files: party whose property has been
ordered attached
When: While the action is pending,
before or after levy, or even
After the release of the attached
property
Grounds: (1) The debtor has posted a
counter-bond or has made the
requisite cash deposit;
(2) The writ of attachment was
improperly or irregularly issued;
E.g., no ground for attachment;
affidavit filed is defective or
Insufficient
(3) The writ of attachment was
improperly or irregularly enforced;
or
(4) The bond is insufficient;
(5) The attachment is excessive
(Note: the discharge shall be
limited to
the excess);
(6) The property attached is
exempt from execution and
preliminary attachment;
(7) The judgment is rendered
against the attaching creditor;

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BOND 3 Kinds of Bonds Applicant’s BOND
(1) Applicants Bond (Attachment Bond) Amount: Fixed by court

Amount: is based on the amount due or the Condition: that the applicant will pay to
value of the property. such party or person all
Conditioned: that the applicant will pay all the damages which he may
costs which may be adjudged to sustain by reason of the
the adverse party and all injunction or temporary
damages which he may sustain restraining order if the court
by reason of the attachment , if should finally decide the
the court finally adjudge that the applicant was not entitled
applicant was not entitled thereto.
thereto. Counter bond
 For the adverse party to collect actual Who pays: Party enjoined
damages, good faith is irrelevant. For the  To dissolve injunction because it
adverse party to collect moral damages, the may cause irreparable damage to
party must allege bad faith. the party enjoined and the applicant
 Recovery against the attachment bond must can be compensated
be filed (sec. 20, Rule 57)
a) Before trial  Amount fixed by court
b) Before appeal is perfected  Conditioned that He will pay all
c) Before judgment becomes executory damages which the applicant may
 The time is limited because the issue is suffer by the denial or dissolution of
whether or not the adverse party or creditor is the injunction or restraining order
entitled to the attachment.
(2) Counterbond
 The amount is based on the value of the
property.
 The value of the property is determined by
affidavits. It is not conclusive. So, in case of
disagreement as to the value, it will be decided
by the court.
 The counterbond is liable if judgment is
rendered in favor of the attaching creditor and
the judgment cannot be satisfied.
 The general rule is that the plaintiff-creditor
must file a claim against the counterbond in
the same action. There is an exception – if the
main action is dismissed for lack of jurisdiction
or improper venue. 102
(3) Sheriff’s Bond (Indemnity Bond)

 The sheriff’s bond is filed by the plaintiff.
 The amount is based on the value of the
property.
 The value of the property is determined by
affidavits. It is not conclusive. So, in case of
disagreement as to the value, it will be decided
by the court.
 The bond answers for damages which 3rd
parties may suffer when the sheriff does not
re-deliver the property to them103
102
Problem: Plaintiff attaches and levies property. The counterbond is filed. Trial ensues. At the end, judgment is rendered in favor of the plaintiff. Plaintiff-creditor recovers
against the counterbond even if the judgment is final and executory. Defendant-debtor argues that the plaintiff-creditor cannot recover against the counterbond since the
judgment is now final and executory, relying on Sec. 20, Rule 57. Rule.
Answer: The plaintiff-creditor can recover against the counterbond even if it is final and executory. Sec. 20, Rule 57 refers to recovery against the attachment bond and not
against the counterbond.
Problem: After trial the judgment is rendered in favor of the plaintiff. The defendant files a notice of appeal. Can the plaintiff recover on the counterbond pending appeal.
Answer: Yes, since the rules don’t distinguish if appealing is pending or not for as long as the judgment is unsatisfied.

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4. RECEIVERSHIP

Sec. 1. Appointment of receiver.
Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the
court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the
following cases:
(a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the
appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and
that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted
or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that
the parties have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to
aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and
decided by the court of origin and the receiver appointed to be subject to the control of said court. (1a)
Sec. 2. Bond on appointment of receiver.
Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against
whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all
damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such
appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional
bond as further security for such damages
Sec. 3. Denial of application or discharge of receiver.
The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an
amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts,
omissions, or other matters specified in the application as ground for such appointment. The receiver may also be discharged if it
is shown that his appointment was obtained without sufficient cause
Sec. 4. Oath and bond of receiver.
Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such
person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding
and obey the orders of the court
Sec. 5. Service of copies of bonds; effect of disapproval of same.
The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested
party, who may except to its sufficiency or of the surety or sureties thereon. If either the applicant’s or the receiver’s bond is found
to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be.
If the bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re-
appointed, as the case may be.
Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to bring and
defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to
collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to
compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that
shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the
court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent
of all the parties to the action.
No action may be filed by or against a receiver without leave of the court which appointed him.
Sec. 7. Liability for refusal or neglect to deliver property to receiver.
103
Problem: RTC Q.C. rules in favor of the plaintiff. A writ of execution is issued. The sheriff sees that the defendant has property in Pasig. The defendant gets an injunction
from RTC Pasig to prevent the sheriff from levying on the property. Is this allowed?
Answer: Yes, this is allowed. This is not interference by RTC Pasig. RTC Pasig is merely telling the sheriff not to levy on that property in Pasig,. It is not interfering with the
judgment of RTC Q.C. itself (Manila Herald Publishing v. Ramos)

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A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property, money, books, deeds,
notes, bills, documents and papers within his power or control, subject of or involved in the action or proceeding, or in
case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to
the receiver for the money or the value of the property and other things so refused or neglected to be surrendered,
together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of
such refusal or neglect. (n)
Sec. 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it
shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and
other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from
further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant,
to be taxed as costs against the defeated party, or apportioned, as justice requires.
Sec. 9. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be
claimed, ascertained, and granted under the same procedure prescribed in section 20 of Rule 57.
MAXWELL v ENTERPRISE WALL PAPER MFG (1942)

Maxwell, a minority shareholder, asked for appointment of a receiver. Trial court ordered appointment of receiver without notice to
defendants.
Held:
Granting of receivership is an extraordinary and drastic remedy. It is not to be resorted if milder measures will suffice. It
may be granted without notice or hearing to defendant only if there is actual emergency, when the right of plaintiff is undoubted, and
when protection an be given in no other way.
Company is not in danger of insolvency. Alleged employment of relatives, destruction of records, and sale
to certain corporations to favor defendants are not continuing acts, or nothing can be done about them anymore.
Remedy is accounting or injunction, but no immediate emergency to receivership.
1. When receiver may be appointed:

a. Party has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or
materially injured;
b. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured
and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the
contract of mortgage;
c. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in execution
when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy
judgment, or to carry out the judgment.
d. When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property
in litigation.
2. When receivership may be denied/lifted

a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
c. Applicant or receiver’s bond is insufficient.
3. Subject of receivership
 Generally, receivership is only for prop subj of litigation
EXCEPT: where a receiver is appointed for the property of the judgment obligor to implement writ of execution
(R59 S1 and R39 S41)
 Generally, prop in custodia legis cannot be placed under receivership.
EXCEPT: property subj of foreclosure
4. Both the applicant for the receivership and the receiver appointed must file separate bonds.
4. In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57,
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 action).
5. REPLEVIN

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Sec. 1. Application.
A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided
Sec. 2. Affidavit and bond.
The applicant must show by his own affidavit or that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of
his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in DOUBLE THE VALUE OF THE PROPERTY as stated in the
affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the
adverse party of such sum as he may recover from the applicant in the action.
Sec. 3. Order.
Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin
describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his
custody.
Sec. 4. Duty of the sheriff.
Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application,
affidavit, and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in
his custody.
If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken open and take the property into his possession.
After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be
responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the
same.
Sec. 5. Return of property.
If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately
require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the
applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double
the value of the property as stated in the applicant’s affidavit for the delivery thereof to the applicant, if such delivery be adjudged,
and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on
the applicant.
Sec. 6. Disposition of property by sheriff.
If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond,
or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or
approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient
and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to the adverse party.
Sec. 7. Proceedings where property claimed by third person.
If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent,
and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefore, and serves
such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall
not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said
sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same.
No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefore is
filed within one hundred twenty (120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond
shall be filed.
Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefore, the actual damages adjudged by the court shall be paid by the National Treasurer out
of the funds to be appropriated for the purpose.
Sec. 8. Return of papers.
The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property
mentioned therein

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Sec. 9. Judgment.
After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render
judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be
made, and also for such damages as either party may prove, with costs.
Sec. 10. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be
claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.
 Prop under replevin can be used. If damaged, recover on his bond (Prof. ARBautista)
FUENTES v SHEDVIN (1972)

Fuentes purchased under a conditional sales contract a gas stove and phonograph. Under the ©, she is entitled to possession until
she defaults in the installment payments. She had only $200 remaining to be paid when Firestone applied ex parte with the clerk for
replevin.
Under Florida statute, can gave replevin on bare assertion of party and on bond 2x the value of the prop. No previous notice to
defendant. The same moment that defendant receives complaint is the same moment that prop is seized. Only after prop seized can
he file for repossession within 3 days. But if he does not file bond within these 3 days, prop transferred to person seeking writ.
Held:
Unconsti bec no notice and hearing before seizure. Purpose of such requirement is to protect use and possession of prop
from arbitrary enroachment. Notice and hearing serve full purpose when deprivation can still be prevented. Exception: extraordinary
situations where valid govt interest at stake. No extraordinary situation in this case bec only private gain at stake.
Bond is not a substitute for an informed evaluation by a neutral official or for a prior hearing.
Temporary deprivation of prop is still deprivation which violated due process.
Even if appellants still lack full ownership, protection of property interest includes interest in possession and use.
6. ALIMONY PENDENTE LITE

Section 1. Application.
At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application
for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in support thereof.
Sec. 2. Comment.
A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to
comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic documents in support thereof.
Sec. 3. Hearing.
After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than
three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions.
Sec. 4. Order.
The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having
due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse
party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and
decided as early as possible.
Sec. 5. Enforcement of order.
If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue
an order of execution against him, without prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the
applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement
against the person ordered to provide such support.
Sec. 6. Support in criminal cases.
In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect
thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite
to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the
offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in

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accordance with the procedure established under this Rule.

Sec. 7. Restitution.
When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable
therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of
actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally
obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided the same may likewise
seek reimbursement thereof in a separate action from the person legally obliged to give such support.
 Alimony pendente lite applies to actions for support, legal separation, annulment
 Unlike replevin, alimony not granted ex parte
 Generally, money judgments are enforced thru execution and not thru contempt
EXCEPT: 1) Support pendente lite
2) R39 S40 where judgment obligor can pay in installments
Table 19: SUMMARY OF BONDS APPLICANT’S BOND

Preliminary Attachment Preliminary Injunction Receivership Replevin
Who pays/ files Applicant Applicant Applicant Applicant
For whom Executed to the adverse Executed to the party or Executed to the party Executed to the
party person enjoined against whom the adverse party
application is presented
Filed with the court Filed with the court
Amount Amount fixed by Court Amount fixed by the Amount fixed by court DOUBLE the value of
Court the property as stated
in the affidavit
Condition Conditioned that the : that the applicant Applicant will pay such For the return of the
latter will pay all the will pay to such party or party all damages he property to the adverse
costs which may be person all damages may sustain by reason party if such return be
adjudged to the adverse which he may sustain of the appointment of adjudged
party by reason of the such receiver in case
injunction or temporary the applicant shall have And for the payment to
And all damages which restraining order if the procured such the adverse party of
he may sustain by court should finally appointment without such sum as he may
reason of the decide the applicant sufficient cause recover from the
attachment was not entitled thereto. applicant in the action.
Table 20: COUNTERBOND

Who pays Party whose property Party or Person enjoined Adverse party
has been attached,
Or the person appearing

on his behalf
For Whom Executed to the Executed to the applicant Executed to the
attaching party of the injunction applicant
Filed with the clerk of Filed with Court Filed with the Court
court
Intention To move for the To dissolve injunction Require the return of the
discharge of the because it may cause property

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attachment wholly or in irreparable damage to

part on the security given the party enjoined and
the applicant can be
compensated
Amount GR: Equal to the amount Amount fixed by court DOUBLE the value of
fixed by the court in the the property as stated in
order of attachment, the applicant’s affidavit
exclusive of costs
BUT: if the attachment is

sought to be discharged
with respect to a
particular property, the
counterbond shall be
equal to the value of that
property as determined
by the court.
Condition Shall secure the He will pay all damages For the delivery thereof
payment of any which the applicant may to the applicant, if such
judgment that the suffer by the denial or delivery be adjudged,
attaching party may dissolution of the and for the payment of
recover in action injunction or restraining such sum to him as may
order be recovered against
the adverse party
Table 21: OTHER BONDS:

Preliminary Attachment: Preliminary Injunction: Receivership: Replevin:
SHERIFF’S BOND or Not Applicable RECIEVER’S BOND SHERIFF’S BOND or

INDEMNITY BOND INDEMNITY BOND
Who pays Applicant/Attaching party N/A Receiver Applicant
For Whom Third party claimant N/A Executed to such

person
Amount Sum not less than the N/A in such sum as the Sum not less than the
value of the property court may direct value of the property
levied upon based on the
applicant’s affidavit.
But in case of
disagreement as to the
value, the Court shall
determine the value
Condition The Sheriff shall not be N/A That he will faithfully To indemnify third party
liable for damages for the discharge his duties in claimant
taking or keeping of such the action or
property, to any such third- proceeding and obey
party claimant, if such the orders of the court
bond shall be filed.
To indemnify third party

claimant. The bond
answers for damages
which 3rd parties may
suffer when the sheriff
does not re-deliver the
property to them
Table 22: Distinguish between replevin and preliminary attachment.

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REPLEVIN PRELIMINARY
ATTACHMENT
When applied for At commencement of action or at any time At commencement of action or at any time
before answer before entry of judgment
Personal property of owner, or to whose Real or personal property in the Philippines

Property involved
possession claimant is entitled belonging to the debtor
Recovery of possession of such property Attachment of sufficient property to satisfy

Prayer
the applicant’s demand
Yes Yes
Affidavit and bond?
Applicant’s bond: 2x Applicant’s bond: amount fixed in Order
Bonds involved
Counterbond: amount equal to that fixed in
Counterbond: 2x Order
Indemnity: ≥x
Indemnity bond: ≥x
The sheriff takes possession of the The sheriff takes the property and keeps it in
What is done with the property?
property and retains it in his custody. If his custody.
(personal property) within 5 days from the taking of the
adverse party does not avail of any of the
remedies available to him, the sheriff shall
deliver the property to the applicant.
Property must not be: Property must not be exempt from execution.
Limitations
(1) exempt from execution;
(2) seized under:
- writ of execution;
- preliminary attachment
(3) taken for a tax assessment or a fine
pursuant to law
Table 23: Preliminary Injunction v. Prohibition

Preliminary Injunction Prohibition
Generally directed against party to the action but may be Directed against a court, tribunal, or person exercising judicial
against any person powers
Does NOT involve the jurisdiction of the court May be on the ground that the court against whom the writ is sought
acted without or in excess of jurisdiction;
May be main action itself or just a provisional remedy in the Always a main action
main action
Table 24: Summary of Provisional Remedies104
Notice of lis Preliminary Preliminary Receivership Replevin Support ‘pendente

pendens attachment injunction lite’
When it may be -at the -at any stage of -during proceeding -at the -at the
applied for commencement of action/proceeding -after judgment commencement of commencement of
the action prior to the judgment -during pendency of the action the proper
-at any time before or final order an appeal -any time before action/proceeding
entry of judgment answer -at any time prior to
the judgment or final
order
-pending appeal from
a final judgment
(ramos v. ca, 45
SCRA 604)
Actions involved/ -actions affecting the 1)action for recovery It must be established 1)when it appears Affidavit of applicant -action for legal
Grounds for issuance title or the right of of a specified amount that: that the party or some other person separation
possession of real of money or applying has an who personally knows -acknowledgement of
property damages, other than 1)applicant is entitled interest in the the facts should state natural children
moral & exemplary on to the relief property/fund w/c is the ff: -support
104
Toie Biruar

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a COA arising from demanded, & the the subject of the -in criminal cases
L,C,QC,D or QD whole or part of such action or proceeding 1)that applicant is the where civil liability
against a party who is relief consists in & that such is in owner of the prop includes support for
about to depart from restraining the danger of being lost, claimed, particularly the offspring as a
the Phils w/ intent to commission or removed or materially describing it, or is consequence of the
defraud creditors. continuance of the injured unless a entitled to the crime & the civil
act/s complained of, receiver be appointed possession thereof; aspect thereof has
2)action for money or or in requiring the to administer or not been waived,
property embezzled performance of act/s, preserve it. 2)that the prop is reserved or instituted
or fraudulently either for a limited wrongfully detained prior to its filing.
misapplied or period or perpetually. 2)in an action for by the adverse party,
converted to his own foreclosure of a alleging the cause of
use by: -public officer 2)the commission, mortgage, when it detention thereof
-officer of a corp., continuance or non- appears that the accdg to the best of
-an atty, factor, performance of the property is in danger his knowledge, info &
broker, agent or clerk act/s would probably of being wasted/ belief;
in the course of his work injustice to the dissipated/ materially
employment as such applicant. injured & that its 3)that the prop has
or value is probably not been distrained or
-by any other person 3)a party, court, insufficient to taken for a tax
in a fiduciary capacity, agency or a person is discharge the assessment or a fine
or for a willful doing, threatening, or mortgage debt, or pursuant to law, or
violation of duty. is attempting to do, or that the parties have seized under a writ of
is procuring or so stipulated in the execution or prelim
3)action to recover suffering to be done, contract. attachment, or
the possession of some act/s probably otherwise placed
property unjustly or in violation of the 3)after judgment: under custodia legis
fraudulently taken, rights or the applicant -to preserve the prop or if so seized, that it
detained or re: subject of the during appeal exempt from such
converted, when the action or proceeding, -to dispose of it accdg seizure or custody;
property, or any part & tending to render to the judgment and
thereof, has been the judgment -to aid execution
concealed, removed, ineffectual. when the execution 4)the actual market
or disposed of to has been returned value of the prop.
prevent its being *In forcible entry & unsatisfied or the
found or taken by the unlawful detainer judgment obligor
applicant or an cases, court is refuses to apply his
authorized person. expressly authorized prop in satisfaction of
to issue a writ of the judgment
4)action against a prelim mandatory -otherwise to carry
party who has been injunction to restore the judgment into
guilty of a fraud in plaintiff in his effect
contracting the debt possession (rule 70,
or incurring the sec.15) or where the 4)whenever in other
obligation upon w/c court is satisfied that cases, it appears that
the action is brought, defendant’s appeal is the appointment of a
or in the performance frivolous or dilatory or receiver is the most
thereof. that appeal of the convenient & feasible
plaintiff of prima facie means of preserving,
5)action against a meritorious administering or
party who has disposing of the prop
remover or disposed in litigation.
of his property, or is
about to do so,
w/intent to defraud
creditors.
6)action against a
party who does not
reside & is not found
in the Phils., or on
whom summons may
be served by
publication.
Notice & hearing -either ex parte or -no prelim injunction -receiver may be -writ issued merely -hearing required, not
upon motion w/ notice shall be granted w/out appointed ex parte upon the filing of an more than 3 days
& hearing hearing & prior notice affidavit & replevin after filing of comment
to the party sough to bond or expiration of filing
-no levy on be enjoined period
attachment shall be -where the injunction
enforced unless is issued w/out
preceded or hearing & w/out bond
contemporaneously it is generally known
accompanied by the as a temporary
service of summons restraining order or a
together with copy of TRO
complaint,
application,
applicant’s affidavit &
bond, & on the order
& writ of attachment,
on the defendant
within the Phils.
*This shall not apply:

-where the summons
could not be served
personally or by

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substituted service
despite diligent
efforts;
-if defendant is a
citizen of the Phils.
temporarily absent
therefrom;
-the defendant is a
non-resident of the
Phils., or
-the action is one in
rem or quasi in rem.
Who may ask for -plaintiff or the -plaintiff or any proper -party praying for the -any party
relief defendant when party so that property recovery of
affirmative relief is of adverse party may possession of
claimed in his answer. be attached personal property
Who may grant -court in w/c action is -court where action is -court in w/c action is -court where the
pending, or by CA or pending pending or by the CA action is pending
SC -if pending in CA or or SC, or a member
SC, it may be issued thereof
by said court or any -during pendency of
member thereof appeal, appellate
court may allow
application to be filed
in & decided by the
court of origin & the
receiver to be
appointed to be
subject to control of
said court
Require- -affidavit of -verified application -verified application -affidavit -verified application
ments for issuance attachment -applicant’s bond -applicant’s bond, and -applicant’s bond w/c for support pendente
-applicant’s -summary hearing, additional bond at the is double the value of lite stating the
bond/attachment except in emergency discretion of the court the prop as stated in grounds for the claim
bond cases the affidavit & the financial
conditions of both
parties &
accompanied by
affidavits, depositions
or other authentic
documents
-verified comment of
adverse party within 5
days after service of
application unless
court fixes diff period
-hearing 3 days after
comment is filed
Procedure -party may record in 1)REAL PROPERTY -receiver shall be -sheriff must serve a -if granted, court shall
/Enforce- the office of the or growing crops sworn to perform his copy of the order to fix the amount of
ment registry of deeds of thereon or any duties and file a bond. the adverse party, money to be
the province in w/c interest therein with copy of provisionally paid or
the property is -attachment is by application, affidavit & such other forms of
situated a notice of filing of the notice of bond. support, & the terms
the pendency of the attachment w/ the -sheriff takes actual of payment or mode
action. Notice shall appropriate registry of physical custody of for providing the
contain the names of deed, w/ description the prop & retains it support.
the parties & the of the prop for 5 days after w/c
object of the action or attached,& notice that he may either turn it
defense, & a such prop is attached. over to plaintiff or
description of the - a copy of such order, return it to defendant
prop affected thereby. description & notice
must be left with the
occupant of the prop,
if any, or with such
other person or agent
if found within the
province.
-notice shall contain a
reference to the # of
the certificate of title,
volume & page in the
registration book, &
the registered
owner/s thereof if the
prop is brought under
the Land Registration
Act/ Property
Registration.
2)PERSONAL PROP
capable of manual
delivery – sheriff shall
attach it by taking &
keeping it in his
custody after issuing
corresponding
receipt.

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3)GARNISHMENT of
INTANGIBLE PROP
- stocks/shares or
interest in such of any
corp or company, by
leaving w/ the pres or
managing agent
thereof, a copy of the
writ & notice of
attachment.
-debts & credits, by
leaving w/ the person
owing such debts, or
having in his
possession or under
his control, such
credits or other
personal prop, or w/
his agent, a copy of
the writ & notice of
attachment.
-interest of the party
against whom
attachment is issued
in prop belonging to
estate of decedent,
as heir, legatee or
devisee, by serving
the executor/
administrator/ other
personal rep of the
decedent w/ a copy of
the writ & notice of
attachment. Such
documents shall also
be filed in the office of
the clerk of court in
w/c estate is being
settled & served upon
heir/ legatee/ devisee
concerned.
4)prop in CUSTODIA
LEGIS
-a copy of the writ
shall be filed w/ the
proper court or quasi-
judicial agency &
notice of the
attachment served
upon custodian of the
prop.
*sheriff must make a

return to issuing court
w/ full statement of
proceedings &
complete inventory of
the prop attached,
together w/ any
counter-bond given
by defendant & serve
applicant w/ copies
thereof.
*For satisfaction of
judgment out of prop
attached, see Sec15,
Rule 57.
Property involved -both real & personal -there is 1 instance -only personal -money or other forms
-only property in the when receiver may be property of support
Phils. of the adverse appointed for prop not
party w/c is not subject of litigation –
exempt from where receiver is
execution & only such appointed for prop of
w/c is sufficient to judgment obligor as a
satisfy demand means of
-property w/c is implementing writ of
subject of the execution
litigation cannot be -generally, prop in
attachment (except in custodia legis cannot
an action to foreclose be placed under
an REM is property is receivership except in
insufficient to cover mortgage
debt) foreclosures.
-property in custodia
legis in limited

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instances only
Remedies Improper/ irregular/ If wrongfully issued Improper or irregular -3rd party claimant can -when judgment or
excessive attachment -party enjoined may appointment of a vindicate his claim to final order finds that
-defendant should file recover his damages receiver the property. the person providing
claim for damages in against the injunction -damages shall be -applicant may claim support is not liable
the issuing court bond by filing claim in claimed or damages against a 3rd therefore, recipient
before trial or before same case before ascertained in the party claimant who shall be ordered to
appeal is perfected, final judgment with same action and only filed a frivolous or return amounts
or before judgment notice to the in that action plainly spurious claim. already paid with
becomes executory surety/sureties. legal interest from the
w/ due notice to the actual payment.
surety/sureties. *Proof of malice or BF Recipient may claim
Damages may only is required only if the reimbursement from
be awarded after suit against the bond person legally obliged
proper hearing & shall were for damages to give support.
be included in the founded on malicious
judgment. prosecution.
-if judgment of *Enjoined person
appellate court be cannot recover
favorable to damages beyond the
defendant, the latter bond.
must claim damages
by filing application w/
the appellate court w/
notice to the attaching
party or his
surety/sureties before
the judgment of
appellate court
becomes executory.
Appellate court may
allow application to
be heard & decided
by the trial court.
*Exception: claim for

damages may be filed
in separate action if
the main action in w/c
attachment was
issued was dismissed
for lack of jurisdiction
or for improper
venue.
*No need to prove
malice or BF in actual
damages, only in
moral damages.
*Defendant can
recover damages
beyond the amount of
the attachment bond.
Discharge & quashal -upon a showing that -where it is shown at Denial of application
of writ writ had been the hearing that such or discharge of
improperly or issuance or receiver
irregularly issued or continuance thereof -where adverse party
enforced. would cause files a bond to the
-if attachment is irreparable damage to effect that such party
excessive, discharge the party enjoined will pay applicant all
shall be limited to the while the applicant damages he may
excess. can be fully suffer by reason of
compensated for the acts specified in
*defendant must file damages he may the application.
motion order to set suffer & the adverse -if it shown that
aside or discharge party files a bond in appointment id w/out
writ where the action an amount fixed by sufficient cause
is pending before or the court to answer -if either the
after the levy or even for the damages (rule applicant’s or
after release of the of relative or receiver’s bond is
prop. comparative found to be
*No cause of action is inconvenience). insufficient in amount,
not a valid ground for -if extent is too great, or if the
discharge of an it may be modified surety/sureties fail to
attachment. -rule: if the judgment justify, and a bond
of dismissal is silent sufficient & approved
-sheriff should not on the matter, the after justification is
proceed when prelim injunction is not filed forthwith.
defendant makes a not ipso facto
deposit w/ issuing dissolved in case of
court or gives a an appeal.
counter-bond to the
applicant.
-if already enforced,
defendant may move
for its discharge
wholly or in part upon
filing of a cash
deposit or counter-

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bond equal to
attachment bond. If
respect to a particular
prop only, then the
value of that prop.
When writ cannot be -against a non- -labor disputes,
issued resident corporation government
concessions, licenses
& other permits,
cases involving
infrastructures &
projects operated by
the gov’t, mortgage
foreclosures by gov’t
financial institutions &
collection of taxes
-consummated acts,
criminal prosecution,
interference with
coordinate courts &
transfer of possession
Territorial reach -operates only within
the region of the
issuing RTC judge,
except if the sole
issue is the legality of
the decision of
administrative
officials. It is not
confined to the place
where the official is.
Punishment for non- -where garnishee -a person who -court shall, motu
compliance does not deliver the refuses or neglects to proprio or upon
garnished funds to deliver prop to motion, issue an
the attachment receiver, upon order of execution
creditor, the creditor reasonable demand, against him, w/out
may obtain a writ of may be punished for prejudice to his
execution or file contempt & shall be liability for contempt.
separate action liable to the receiver
against him but he for the money or
cannot proceed value of the prop
against garnishee for
contempt.
Termination -may be cancelled -whenever the court
only upon order of the motu proprio or on
court, after proper motion of either party
showing that the shall determine that
notice is the necessity no
-for the purpose of longer exists
molesting the adverse
party; or
-that it is not
necessary to protect
the rights of the party
who caused it to be
recorded.
Return of property -defendant must -adverse party may,
make a cash deposit at any time before
or file a counter-bond delivery of the
in an amount equal to property to the
that fixed by the applicant require the
court, exclusive of return thereof, by
costs, so as to effect filing a bond in double
discharge of the value of the prop
attachment.
Third party claims -third party must -third party must
make an affidavit of make an affidavit of
his title thereto, his title thereto,
stating the grounds stating the grounds
for such title & serve for such title & serve
such upon the sheriff such upon the sheriff
while the latter has while the latter has
possession of prop & possession of prop &
a copy to the a copy to the
attaching party. applicant.
-sheriff shall not be -sheriff shall not be
bound to keep prop bound to keep prop
under attachment under replevin or
unless attaching party deliver it to applicant
files a bond approved unless applicant or
by the court to his agent files a bond
indemnify the 3rd party approved by the court
claimant in a sum not to indemnify the 3rd
less than the value of party claimant in a
the prop. sum not less than the
-any action against value of the prop.
the bond for the -any action against
taking or keeping of the bond for the

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the prop must be filed taking or keeping of

within 120 days from the prop must be filed
the date of the filing within 120 days from
of the bond. the date of the filing
of the bond.
X. DISCOVERY
1. GENERALLY
 Goals: to find out how strong the case is, to anticipate opponent’s actions, to get evidence to support one’s case
REPUBLIC v SANDIGANBAYAN (1991)

Tantoco and Santiago were charged by PCGG. They filed for motion for leave to file interrogatories seeking to know which
commissioners approved their inclusion as defendants. They also sought to know what specific properties does the PCGG claim as
ill-gotten. They also prayed for production and inspection of documents. Sandiganbayan allowed interrogatories and inspection of
documents.
Held: It is the duty of each contending party to lay before the court the facts in issue fully and fairly. However, only ultimate facts are
set forth in the pleadings (R8 S1: Every pleadings shall contain… a plain, concise and direct statement of the ultimate facts…) If
ultimate facts alleged are too general, remedy is Bill of Particulars. But this only seeks to make the ultimate facts more definite. It is
important to know evidentiary matters before trial. It eliminates unessential issues and increases possibility of settlement.
Depositions and interrogatories extend to all facts which are relevant, except those which are privileged. Deposition-discovery
simply advances stage at which disclosure can be compelled to reduce the possibility of surprise. Thus, modes of discovery may be
availed of without leave of court and generally without court intervention. Leave of court needed only if answer not filed yet because
issues not yet joined. Liberty to make discovery is unrestricted if matters inquired into are relevant, not privileged, and inquiry is in
GF and within the bounds of law. PCGG should have objected to specific items of the interrogatories.
2. DEPOSITIONS
 Trial-like examination of a witness (called deponent)

 Deposition officer presides over proceeding but with limited authority to rule on admissibility of evidence
 May or may not be introduced in court bec deposition could have been for purely discovery purposes
 May be taken on oral exam or upon written interrogatories
 Pending action- de bene esse
Before action or pending appeal – in perpetuam rei
Rule 23. Depositions Pending Action

Sec. 2. Scope of examination.
Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any
matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other
party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of relevant facts.
Sec. 3. Examination and cross-examination.
Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132.
Sec. 4. Use of depositions.
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had
due notice thereof, in accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a
witness;
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of
a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the
witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party
offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and
notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any other parts.
Sec. 5. Effect of substitution of parties.

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Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and
another action involving the same subject is afterward brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
Sec. 6. Objections to admissibility.
Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and
testifying
Sec. 7. Effect of taking depositions.
A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.
Sec. 8. Effect of using depositions.
The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse
party of a deposition as described in paragraph (b) of section 4 of this Rule.
Sec. 9. Rebutting deposition.
At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any
other party.
Sec. 10. Persons before whom depositions may be taken within the Philippines.
Within the Philippines, depositions may be taken before any judge, notary public or the person referred to in section 14 hereof.
Sec. 11. Persons before whom depositions may be taken in foreign countries.
In a foreign state or country, depositions may be taken on notice before a secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the Philippines; before such person or officer as may be appointed by commission
or under letters rogatory; or the person referred to in section 14 hereof.
Sec. 12. Commission or letters rogatory.
A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms
and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country
Sec. 13. Disqualification by interest.
No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or
counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially
interested in the action.
Sec. 14. Stipulations regarding taking of depositions.
If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or
place, in accordance with these Rules, and when so taken may be used like other depositions.
Sec. 15. Deposition upon oral examination; notice; time and place.
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to
be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group
to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten
the time.
Sec. 16. Orders for the protection of parties and deponents.
After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to
be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not
be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on
written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no
one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened
only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall
simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the
court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or
oppression.
Sec. 17. Record of examination; oath; objections.
The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting
under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless
the parties agree otherwise.
All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by
the officer upon the deposition.
Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with
notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record
the answers verbatim.
Sec. 18. Motion to terminate or limit examination.
At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may
order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of
the taking of the deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is

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pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary
to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable
Sec. 19. Submission to witness; changes; signing.
When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by
him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which
the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or
the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and
state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with
the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress
under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in
whole or in part.
Sec. 20. Certification and filing by officer.
The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the
testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and
marked "Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the action is pending or
send it by registered mail to the clerk thereof for filing
Sec. 21. Notice of filing.
The officer taking the deposition shall give prompt notice of its filing to all the parties.
Sec. 22. Furnishing copies.
Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
Sec. 23. Failure to attend of party giving notice.
If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by
counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees.
Sec. 24. Failure of party giving notice to serve subpoena.
If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because
of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that
witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees.
Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories.
A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a
notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the
officer before whom the deposition is to be taken.
Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition.
Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross- interrogatories.
Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party
proposing to take the deposition.
Sec. 26. Officers to take responses and prepare record.
A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to take the
testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto
the copy of the notice and the interrogatories received by him.
Sec. 27. Notice of filing and furnishing copies.
When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may
furnish copies to them or to the deponent upon payment of reasonable charges therefor.
Sec. 28. Orders for the protection of parties and deponents.
After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is
pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer
designated in the notice or that it shall not be taken except upon oral examination.
Sec. 29. Effects of errors and irregularities in depositions.
(a) AS TO NOTICE.- All errors and irregularities in the notice for taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(b) AS TO DISQUALIFICATION OF OFFICER.- Objection to taking a deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable diligence.
(c) AS TO COMPETENCY OR RELEVANCY OF EVIDENCE.- Objections to the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(d) AS TO ORAL EXAMINATION AND OTHER PARTICULARS.- Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the
parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless
reasonable objection thereto is made at the taking of the deposition.

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(e) AS TO FORM OF WRITTEN INTERROGATORIES.- Objections to the form of written interrogatories submitted under sections
25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized.
(f) AS TO MANNER OF PREPARATION.- Errors and irregularities in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made
with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
 Examples of privileged matters: work product rule, right to privacy, trade secrets
 Any deposition may be used by any party for contradicting or impeaching the testimony of deponent as witness
 If deposition of a party, use for any purpose
 If witness is dead, or is 100 km away, etc => can be used by any party for any purpose (Prof. ARBautista)
Table 25: Commission v. Letter Rogatory

COMMISSION LETTERS ROGATORY
* Issued to a non-judicial foreign officer who will directly take * Issued to the appropriate judicial officer of the foreign country
the testimony who will direct somebody in said foreign country to take down
testimony
* Applicable rules of procedure are those of the requesting * Applicable rules of procedure are those of foreign court
court requested to act
* Resorted to IF permission of the foreign country is given * Resorted to IF the execution of the commission is refused in
the foreign country
* Leave of court is not necessary * Leave of court is necessary
 Deposition officer cannot rule on admissibility of evidence. In contrast, commissioner can rule on this unless
otherwise provided in order of reference (R32 S3)
 For depositions, there can be more than 1 set
 But for written interrogatories under R25, only 1 set. No re-direct or re-cross interrogatories (Prof ARBautista)
Rule 24. Depositions Before Action or Pending Appeal

Section 1. Depositions before action; petition.
A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in
any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party.
Sec. 2. Contents of petition.
The petition shall be entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it
to be brought;
(b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and
(e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from
each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.
Sec. 3. Notice and service.
The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of
the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the
petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for service of summons.
Sec. 4. Order and examination.
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order
designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and
whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in
accordance with Rule 23 before the hearing.

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Sec. 5. Reference to court.

For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the
action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
Sec. 6. Use of deposition.
If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it
may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4
and 5 of Rule 23.
Sec. 7. Depositions pending appeal.
If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an
appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who
desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be
examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their
testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an
order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under
the same conditions as are prescribed in these Rules for depositions taken in pending actions.
Table 26: Deposition v. Affidavits

DEPOSITIONS AFFIDAVITS
Written testimony of witness in course of judicial proceedings, Mere sworn written statements
in advance of trial and hearing
Opportunity for cross-examination No cross-examination
Can be competent testimonial evidence Little probative value (hearsay)
Table 27: Depositions

DEPOSITION OF MAY BE USED BY PURPOSE
A witness Any party To contradict or impeach the deponent’s testimony as a witness
Any party, or anyone who at the time An adverse party For any purpose
of taking the deposition was an
officer, director, or managing agent
of a public or private corporation
Of any witness, whether a party or Any party For any purpose, IF court finds that:
not a) Witness is dead;
b) Witness resides at a distance more than 100
km from place of trial, UNLESS absence procured by
party offering the deposition
c) Witness is unable to testify because of age,
sickness, infirmity, or imprisonment;
d) Party offering the deposition has been
unable to procure the attendance of the witness by
subpoena; OR
e) Other exceptional circumstances make it
desirable to allow deposition to be used.
3. INTERROGATORIES TO PARTIES
Rule 25. Interrogatories to Parties

Section 1. Interrogatories to parties; service thereof.
Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any
adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served
is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.
Sec. 2. Answer to interrogatories.
The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon
whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories
within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time.
Sec. 3. Objections to interrogatories.
Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of
a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable.
Sec. 4. Number of interrogatories.
No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

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Sec. 5. Scope and use of interrogatories.

Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for
the same purposes provided in section 4 of the same Rule.
Sec. 6. Effect of failure to serve written interrogatories.
Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.
HICKMAN v TAYLOR (1945)

A tug capsized, killing 5 seamen. One of the administrators filed 39 interrogatories against the owners of the tug. It asked the
owners to attach the statements taken of the crew. There was also a request for the production of memoranda.
Held:
Privilege used in the Rules include confidential statements by client to his lawyer. But this lawyer-client privilege does not
include statements from 3rd parties.
However, the material being asked for is still privileged as work product of the lawyer. Memoranda and impressions gotten
by a lawyer in the course of preparing for litigation cannot be inquired into via the discovery process without showing absolute
necessity to avoid hardship or injuries. Ratio: protect the profession so lawyers do not work with wits borrowed from their brother
lawyers who would otherwise be discouraged from performing their personal best.
COCA-COLA v DIXI-COLA LABORATORIES (1939)

Dixi Cola served 112 interrogatories on Coca-Cola, totaling 255 questions in all. 40 were unanswered.
Held:
Extensive examination of the adverse party by interrogatories is cumbersome and likely to prove inefficient. No need to
resort to interrogatories where extensive examination desired.
Interrogatories inferior to oral examination. They give adverse party more time to study their effect, which gives
opportunity to frame protective answers.
Only when the facts are few, formal and isolated that interrogatories can be satisfactorily employed. If will involve vital and
controversial phases of the case, oral exam or deposition needed. If facts sought are unduly numerous, they become burdensome,
oppressive and vexatious.
BOLDT v SANDERS (1961)

Boldt sued Sanders for injuries she sustained when her car collided with Sanders’ car. Deposition of Boldt taken by Sanders where
she testified that she had no previous accident. Interrogatories also served by Boldt on Sanders asking him to reveal if he had any
information on Boldt’s prior injuries. Sanders declined to answer on ground that info known to plaintiff.
Held:
Examination on matters within knowledge of party seeking discovery is not necessarily improper, even if its is
impeaching evidence.
Table 28: Depositions v. Written Interrogatories

R23 (DEPOSITIONS) R25 (WRITTEN INTERROG)
As to whom addressed To a party or non-party Addressed only to adverse party
Procedure Oral or written or sent to deposition officer Served on adverse party himself
Need for cross interrog Serve within 10 days fr receipt of notice and No cross-interrog
written interrog
Sanctions for refusal to Judgment by default
answer Dismissal of action or proceeding or
part
Strike out all or part of pleading
Payment of expenses of other party
Contempt
Pay expenses of other party
Contempt, after refusal of order to answer
On whom answers are Any party who was present or was Only on the party served
binding represented or who had due notice or had
opportunity to serve cross-interrogatories
Time to answer No fixed time Within 15 days after service, unless
extended or reduced by the court
4. REQUEST FOR ADMISSION

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Rule 26. Admission by adverse party

Sec. 1. Request for admission.
At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by
the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of
any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless
copies have already been furnished
Sec. 2. Implied admission.
Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the
request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on
motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the
filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such
objections are resolved, which resolution shall be made as early as practicable
Sec. 3. Effect of admission.
Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an
admission by him for any other purpose nor may the same be used against him in any other proceeding.
interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.
Sec. 4. Withdrawal.
The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon
such terms as may be just.
Sec. 5. Effect of failure to file and serve request for admission.
Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a
request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal
knowledge of the latter, shall not be permitted to present evidence on such facts.
DUQUE v CA (2002)
Complaint by Duque vs Bonficaio alleging that Bonifacio’s checks dishonored. Respondents denied that they personally negotiated
with Duque and that they do not owe that much.
Duque filed a Request for Admission requesting that Bonifacio admit negotiation, signing the PN’s and receiving the
demand letters.
RTC said that respondents’ failure to deny was an implied admission.
Held:
Negotiation of checks already denied in answer. Request to deny signing PN’s was defective because no copies of PN’s
attached. Receipt of demand letters already denied when respondents said they made arrangements to pay.
Generally, all notices must be on counsel, not on party. But since law on admission by adverse party expressly provides
that notice must be on party, it should have been served on the party. Hence, requests for admission not validly served and
respondents cannot be deemed to have made admissions.
5. PRODUCTION AND INSPECTION OF DOCUMENTS
Rule 27. Production and Inspection of Documents or Things

Section 1. Motion for production or inspection; order.
Upon motion of any party showing good cause therefor, the court in which an action is pending may
(a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of
any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or
control; or
(b) order any party to permit 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 object or operation thereon. The
order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may
prescribe such terms and conditions as are just.
SAXTON v W.S. ASKEW (1941)
Saxton et al filed to recover wages. They moved for production of records and documents like time slips of employees, sales
records of the employer, etc. Employer refused and said that facts well known to employees.

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Held:
Purpose of law: to do away with trial by surprise
Documents and info peculiarly within the knowledge of the defendant who knows the exact number of hours worked and
compensation paid. However, motion is too broad. It would become a fishing expedition, so the court should permit inspection and
making of copies under terms and conditions as are just. Inspection should be restricted to records pertaining solely to plaintiffs.
MACKERER v NEW YORK CENTRAL (1940)

Employee killed while operating crane. Widow seeks production of papers and records showing repairs made after the accident.
Held:
Evidence on repairs after accidents is inadmissible in evidence bec defendant might hesitate to make such repairs.
However, to procure inspection, it is not necessary to prove admissibility of the testimony or document. It suffices that the
inquiry be made to matters generally bearing on or relevant to the issue or there is reasonable probability that doc contains material
evidence. Since widow not present during accident, she is dependent on info from others and is entitled to aid. Repairs after
accident can disclose defects in crane before the accident.
Table 29: Prod’n and Inspection v. Subpoena Duces Tecum
PRODN AND INSPECTION SUBPOENA DUCES TECUM

Nature a) Order to produce or permit Process requiring a person to bring with him any
inspection and copying or books, documents, or other things under his control or
photographing, by or on behalf of possession
the moving party, of any
designated documents, papers,
books, etc
b) Order a party to permit entry upon
designated land or other prop in
his possession or ctrl for
inspecting, measuring, surveying
or photographing prop or any
designated relevant obj or
operation thereon
Good cause? Needs to show good cause No need to show good cause
When it may be asked Before and/or during trial Only during trial
When issued Must be issued upon motion Upon request
Grounds for quashal No good cause shown Specified grounds for quashing
1. unreasonable and oppressive
2. relevancy of books,
documents etc
does not appear
3. person fails to advance
reasonable cost of prodn
To whom directed Directed only to a party May be directed to non-party
Sanctions Sanctions aside from contempt Failure to obey = contempt of court
(See Rule 29)
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Rule 28. Physical and Mental Examination of Persons

Section 1. When examination may be ordered.
In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination by a physician.
Sec. 2. Order for examination.
The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to
all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by
whom it is to be made.
Sec. 3. Report of findings.
If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written
report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the
examination to be made shall be entitled upon request to receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the
court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to

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make such a report the court may exclude his testimony if offered at the trial.
Sec. 4. Waiver of privilege.
By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined
waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine him in respect of the same mental or physical examination.
VINSON v SUPERIOR COURT (1987)

Vinson filed complaint for sexual harassment and infliction of severe emotional distress. She claims damages for emotional distress
and humiliation caused. Defendant moved for an order for her medical and psychological examination, which she objected to.
Held:
Before examination can be compelled, mental or physical condition must be in controversy. She placed her mental and
emotional distress in controversy by alleging mental and emotional distress. She implicitly claimed that her distress was not caused
by any pre-existing mental condition.
Normally, simple sexual harassment case doesn’t create controversy on mental state of alleged victim, but only when
alleged mental or emotional distress is ongoing.
Mental or physical exam requires showing of good cause, i.e specific facts justifying discovery and that the inquiry be
relevant to the subj matter of the action or reasonably calculated to lead to the discover of admissible evidence.=> Good cause
shown by defendant to justify mental exam
However she did not implicitly waive her right to privacy wrt sexual history as this area is not directly relevant to her claim.
* Meaningful mental exam cannot be made with attorney present because it would cause distraction.
7. SANCTIONS FOR REFUSAL TO MAKE DISCOVERY
Rule 29. Refusal to comply with Modes of Discovery

Section 1. Refusal to answer.
If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other
matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the
place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party
or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it
also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining
the order, including attorney’s fees.
If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent
or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the
reasonable expenses incurred in opposing the application, including attorney’s fees.
Sec. 2. Contempt of court.
If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal may be considered a contempt of that court.
Sec. 3. Other consequences.
If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to
answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or
photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring
him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among
others the following:
(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the
contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or
mental condition;
(c) An order
1) striking out pleadings or parts thereof, or
2) staying further proceedings until the order is obeyed, or

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3) dismissing the action or proceeding or any part thereof, or

4) rendering a judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a physical or mental examination.
Sec. 4. Expenses on refusal to admit.
If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of
fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document
or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable
expenses incurred in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the
denial or that admissions sought were of no substantial importance, such order shall be issued.
Sec. 5. Failure of party to attend or serve answers.
If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after
being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney’s fees.
Sec. 6. Expenses against the Republic of the Philippines.
Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule.
XI. PRE-TRIAL
RULE 18. Pre-Trial

Section 1. When conducted.
After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set
for pre-trial.
Sec. 2. Nature and purpose.
The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action.
Sec. 3. Notice of pre-trial.
The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is
charged with the duty of notifying the party represented by him.
Sec. 4. Appearance of parties.
It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if
a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of
documents.
Sec. 5. Effect of failure to appear.
The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the
action. The dismissal shall be with prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof.
Sec. 6. Pre-trial brief.
The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least
three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the
desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to

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commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
 Can schedule pre-trial even if plaintiff has not filed answer to defendant’s compulsory counterclaim since no
answer required from plaintiff
 Pretrial can cover legal and factual issues. According to Sir, pre-trial not mandatory if issue is purely legal.
 Remedies: 1) Plaintiff can appeal from order of dismissal, if it is a final order

2) Defendant can file MR (without affidavit of merits) on ground of Fraud, accident, mistake or excusable negligence.
If denied, file certiorari bec it is an interlocutory order
BURTON v WEYERHAUSER TIMBER (1941)

Burton’s hand was burned by muriatic acid while handling acid carby that had been returned presumably empty. Defendant
demonstrated at the trial that muriatic acid cannot cause such burns. This demo however, was not mentioned at pre-trial.
Held:
Surprise not to be tolerated. If Burton had known, Burton would have called attending physician or would have
demonstrated that acid used at the trial was not of same strength as that which burned him.
Parties are expected to disclose all legal and fact issues which they intend to raise at trial, except issues involving
privileged or impeaching matter. Even then, privileged or impeaching matter should be disclosed to the judge, but of course not to
opposing counsel.
Test if to be disclosed to opponent:: Whether disclosure will best promote the ends of justice
Also, pre trial order submitted after jury sworn in when it should have been presented at a reasonable time before trial.
New trial ordered.
BERGER v BRANNAN (1949)

Suit instituted by Sec of Agric v Berger for overpricing rice. Govt obtained by subpoena duces tecum Berger’s books. In his answer,
Berger alleged that the Govt’s exhibit was incomplete. At pre-trial, allegations of complaint admitted except correctness of Govt’s
compilation. Court ordered defendant to add the missing items to the Govt’s exhibit, but Berger filed them out of time.
Held:
Court has power to compel parties to agree as to all facts over which there can be no real issue.
Purpose of pre-trial: to simplify issues, amend pleadings where necessary and avoid unnecessary proof of facts at the
trial.
Court had power to require Berger to specify what items were omitted. But since Berger failed to do so, court properly
gave summary judgment for the Govt.
XII. TRIAL
1. CALENDAR AND ASSIGNMENT OF CASES

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Section 1. Calendar of cases.
The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials
were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus
cases, election cases, special civil actions, and those so required by law. (1a, R22)
Section 2. Assignment of cases.
The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in
open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present.
(7a, R22)

Section 1. Courts always open; justice to be promptly and impartially administered.
Courts of justice shall always be open, except on legal holidays, for the filing of any pleadings, motion or other papers, for the trial
of cases, hearing of motions, and for the issuance of orders or rendition of judgments. Justice shall be impartially administered
without unnecessary delay.
BP 129
Sec. 16. Time and duration of sessions.
The time and duration or daily sessions of the Regional Trial Courts shall be determined by the Supreme Court:
Provided, however, That all motions, except those requiring immediate action, shall be heard in the afternoon of every Friday,
unless it falls on a holiday, in which case, the hearing shall be held on the afternoon of the next succeeding business day:
Provided, further, That the Supreme Court may, for good reasons, fix a different motion day in specified areas.
2. TRIAL

Section 1. Notice of trial.
Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his
receipt of that notice at least five (5) days before such date.
 A party is entitled as part of procedural due process to reasonable notice of the date of trial. This rule now fixes at least a five-
day notice rule. 105
 If the court discovers that either of the parties to the action has not been notified of the trial, he may, on his own motion, grant a
new trial.106

Sec. 2. Adjournments and postponements.
A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may
require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three
months in all, except when authorized in writing by the Court Administrator, Supreme Court.
 This section is merely directory; a violation thereof will not nullify a judicial proceeding. 107
 However, a willful disregard or reckless violation thereof may subject the judge to administrative action. 108

Sec. 3. Requisites of motion to postpone trial for absence of evidence.
A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or
relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be
given in evidence, even if he objects or reserves the right to their admissibility, the trial shall not be postponed.
 Requisites:
An affidavit showing –
(1) That the evidence expected to be obtained is material, and
(2) That due diligence has been used to procure it109
105
J. Feria, Civil Procedure Annotated (2001), p. 563
106
Muerteguy & ABoitiz v, Delgado, 22 Phil. 109 (1912) cited in Lavitoria v. Judge of First Instance of Tayabas, 32 Phil. 204, 208 (1915). See also Insular Bank of Asia and
America v. Borromeo, 81 SCRA 167 (1978).
107
Feria, p. 564
108
See Barrueco v. Abeto, 71, Phil. 7 (1940)
109
Feria, p. 565

104 of 201
 The trial should not be postponed if the adverse party “admits the facts to be given in evidence, even if he objects or reserves
the right to object to their admissibility.” Rule 30, Sec.3)
 An admission to avoid a continuance must be an admission of the facts to be given in evidence and not merely an admission
“that such evidence would be given.” The distinction is material because the first admits the truth of the proposed testimony,
whereas the second merely admits the tenor thereof.110
 However, under this section, the adverse party may object or reserve the right to object to the admissibility of the facts
admitted.111

Sec. 4. Requisites of motion to postpone trial for illness of party or counsel.
A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn
certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to
render his non-attendance excusable.
 Requisites:
An affidavit showing –
(1) that the presence of the party or counsel at the trial is indispensable, and
(2) that the character of his illness is such as to render non-attendance excusable.112
 The illness of a party (or counsel) is not ipso facto a cause for continuance of the cause; but where a party’s (or counsel’s)
presence at the trial is indispensable and the character of his illness is such as to render his presence at the trial impossible, a
continuance should be granted if it appears that he has been guilty of no negligence.113
 The fact of illness must be established by some satisfactory sworn statement, either in the shape of an affidavit or the
certificate of a physician that satisfies the court of the inability of the party to be present. 114
 From the very nature of the relief asked the decision of the question must necessarily rest almost entirely within the discretion
of the trial court, and such discretion will not be interfered with unless the same has been abused to the extent of prejudicing the
applicant’s right to a fair trial of the cause.115
 If the postponement would manifestly prejudice some of the parties, or, if the motion for postponement had been presented
too late to prevent them from notifying their witness not to appear, thus causing them considerable trouble and expense, it is the
duty of the courts to deny it.116
 Note that in one case 117, inasmuch at it did not appear that the motion for postponement was due to any deliberate desire on
the part of the plaintiffs and intervenor to delay the proceedings, or that the action was frivolous, and inasmuch, moreover, as
defendant’s attorney had expressly agreed to plaintiff’s motion, the Supreme Court held that the interest of justice and of the court
could have been served with a dismissal of the case without prejudice.
 Although not expressly provided for, the engagement of party’s attorney in another trial may be ground for granting a
continuance. If without the previous knowledge and consent of an attorney, two cases handled by him are set for trial in different
courts on the same date, he may as for the postponement of one of them.118
 Motion for continuance should be filed in accordance with Section 4, Rule 15 which requires at least three days’ notice except
for good cause. An example of good cause would be if the illness of the party or occurs a day or two before the trial. In such case,
the motion should be filed and notice given the adverse party as soon as practicable.119
 Motion for continuance on the ground of pending amicable settlement should be granted. 120

Sec. 5. Order of trial.
Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited
to the issues stated in the pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
110
Feria, p. 565
111
Ibid.
112
Feria, p.566
113
Natividad v. Marquez, 38 Phil. 608
114
Feria, 567
115
Natividad v. Marquez, 38 Phil. 608
116
Linis v. Rovira, 61 Phil. 137, 139 (1935). See also Bautista v. Municipal Council of Mandaluyong, et al., 98 Phil. 409 (1956)
117
Torrefiel v. Toriano, et al., 91 Phil. 209, 211 (1952)
118
Feria, p. 569
119
Feria, p. 570
120
See Phil. National Bank v. De la Cruz, 103 Phil. 341 (1958)

105 of 201
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their
defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance
of justice, permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall
determine the relative order of presentation of their evidence.
 Implies that there can be a reverse trial. Apply R119, S11 where accused admits act or omission but interposes a
lawful defense.121
 Pursuant to par. (g), oral argument is no longer a matter of right after the admission of the evidence. The court has
discretion to direct the parties to argue orally or to submit memoranda.
 After the plaintiff has completed the presentation of his evidence, the defendant may file a motion to dismiss on the
ground of insufficiency of evidence or demurrer to evidence. 122
 After parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only. But it has
been held that the court, for good reasons in the furtherance of justice, may permit them to offer evidence upon their original case,
and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. 123
 Additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or
mistake, or where the purpose of the evidence is to correct evidence previously offered. 124

Sec. 6. Agreed statement of facts.
The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the
facts agreed upon, without the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall
prescribe.
 Note that if all facts are stipulated upon so that only questions of law are submitted for decision, the case may run the risk of no
longer presenting an actual controversy or as bordering on a request for an advisory opinion merely.125
 Findings of facts by commissioners designated by parties for the purpose is tantamount to a stipulation of facts.126
 In cases where no evidence is presented and the case is submitted for decision on an agreement of the parties, the court, if it
finds no objection to the agreement, should render judgment strictly in accordance with said agreement. 127

Sec. 7. Statement of judge.
During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties,
witnesses or counsel, shall be made of record in the stenographic notes.
Sec. 8. Suspension of actions.
The suspension of actions shall be governed by the provisions of the Civil Code.
Sec. 9. Judge to receive evidence; delegation to clerk of court.
The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However,
in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of
evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any
question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the hearing.
 The second part is a new provision. It abandons the ruling in Lim Tanhu v. Ramolete wherein a division of the Court declared
as wrong and without any basis in any rule the practice of trial judges of delegating to their clerks of court the reception of the
plaintiff’s evidence when the defendant is in default. It adopts the previous ruling of another division in Laluan v. Malpaya which
authorized the delegation of the reception of evidence – the taking down of testimony of the witnesses and the marking of the pieces
of documentary evidence, if any, adduced by the party present – in ex parte hearings to the clerk of court.128
121
Prof. Bautista’s lecture
122
See Rule 33
123
Feria, p. 574
124
Lopez v. Liboro, 81 Phil. 429, 434 (1948)
125
A. Bautista, Basic Civil Procedure, p. 143
126
See Siping v. Cacob, 10 Phil. 717 (1908). See also Rule 32, §12
127
Feria, p.575
128
Feria, p. 576. See also Lim Tanhu v. Ramolete, 66 SCRA 425 (1975) and Laluan v. Malpaya, 65 SCRA 494 (1975).

106 of 201
 The clerk of court must be a member of the bar but, like an officer before whom a deposition is taken under Sec.17, Rule 23,
has no power to rule on objections.

Section 1. Consolidation.
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of
any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
The suspension of actions shall be governed by the provisions of the Civil Code.
 Consolidation v. permissive joinder of parties

- Consolidation is proper when several actions which involve a common question of law or fact do not arise out of the
same transaction or series of transactions so as to permit permissive joinder of parties under Section 6, Rule 3. 129
 When is consolidation proper?
- While consolidation of several cases involving the same parties and subject matter is a matter addressed to the
discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same
judge, or even if filed with the different branches of the same court of first instance, provided one of such cases has
not been partially tried.130
- However, The fact that one case was already partly tried should not justify the refusal of the trial judge to
consolidate the same with the other case if the evidence already submitted to the said judge in the first case
could be submitted as part of the evidence in the second case without further need of re-taking the testimonies of
the witnesses, if both cases involve the same parties, the same subject matter and the same issues.131
 In one instance, the Court ordered the consolidation of two cases even if they were instituted in different courts. Both cases
were consolidated in order to prevent confusion, avoid multiplicity of suits, and to save unnecessary cost and expenses. 132

Sec. 2. Separate trials.
The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-
party complaints or issues.
 In view of the liberal provisions of the Rules of Court regarding joinder of causes of action (Sec.5, Rule 2) and permissive
joinder of parties (Sec. 6, Rule 3), a single action may involve several actions, some of which affect only certain parties thereto. In
such case, separate trials may be held for those not affected.133
 Similarly, under the new rules, a counterclaim need not be in favor of all substantial defendants against all the substantial
plaintiffs. A counterclaim may be in favor of one of the defendants against one of the plaintiffs. In such case, a separate trial may be
held for said counterclaim in order that the other parties may not be put to unnecessary trouble and expense in connection with a
proceeding in which they have no interest.134
 Consolidation v. Severance
- Consolidation involves several actions having a common question of law or fact which may be jointly tried; while
severance contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or
issues which may be separately tried.135
Rules of Court, RULE135

Sec. 2. Publicity of proceedings and records.
The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the evidence to be
adduced is of such nature as to require their exclusion in the interest of morality or decency. The records of every court of justice
shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the
supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in
the interest of morality or decency.
Sec. 7. Trial and hearings; orders in chambers.
All trial upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or
proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials.
129
Feria, p. 579
130
See Phil. Air Lines, Inc. and Far Eastern Air Transport v. Teodoro, etc. and Capitol Subdivision, Inc., 97 Phil. 461 (1955).
131
See Raymundo v. Felipe, 42 SCRA 615 (1971)
132
See Vallacar Transit Inc. v. Yap, 126 SCRA 500 (1983).
133
Feria, p. 581
134
Ibid.
135
Ibid, p. 582

107 of 201
Rules of Court, RULE136

Sec. 6. Clerk shall receive papers and prepare minutes.
The clerk of each superior court shall receive and file all pleadings and other papers properly presented, endorsing on each such
paper the time when it was filed, and shall attend all of the sessions of the court and enter its proceedings for each day in a minute
book to be kept by him.
Sec. 17. Stenographer
It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to
the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the
record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk
of court shall stamp the date on which notes are received by him. When such notes are transcribed, the transcript shall be
delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.
Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case
being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of
record in the stenographic notes.proceedings may be done or conducted by a judge in chambers, without the attendance of the
clerk or other court officials.
3. TRIAL BY COMMISSIONER

Section 1. Reference by consent.
By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be
agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a
referee, an auditor and an examiner.
 An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be
remedied, either before the parties proceed with the hearing or before the court hands down its ruling. It is a procedural point that
can be waived by consent of the parties, express or implied.136
 However, if the errors in the procedure for the appointment of the commissioner are not prejudicial to the parties because there
is no proof that the commissioner committed any mistake or abuse in the performance of the task entrusted to him, the holding of a
new trial by reason thereof alone is not justified.137
 Special civil actions in which commissioners are appointed:
(1) Eminent domain (Rule 67, §5)
(2) Partition of Real Estate (Rule 69, §3)
 Special proceeding in which a commissioner is appointed: Trial of contested cases (Rule 86, §12)

Sec. 2. Reference ordered on motion.
When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a
commissioner in the following cases:
(a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner
may be directed to hear and report upon the whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or
order into effect;
(c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith furnish the
commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may
direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and
may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and
limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the
order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of
reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it
would if held before the court.
 Unlike an officer before whom a deposition is taken, a commissioner “may issue subpoenas and subpoenas duces tecum
… and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence”. 138
136
Feria, p. 583
137
See CCC Insurance Corporation v. Court of Appeals, 31 SCRA 264 (1970)
138
Feria, p. 587

108 of 201

Sec. 4. Oath of commissioner.
Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof.
Sec. 5. Proceedings before commissioner.
Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and
place for the first meeting of the parties or their counsel to be held within ten (l0) days after the date of the order of reference
and shall notify the parties or their counsel.
Sec. 6. Failure of parties to appear before commissioner.

If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn
the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment.
Sec. 7. Refusal of witness.
The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a
contempt of the court which appointed the commissioner.
Sec. 8. Commissioner shall avoid delays.
It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his
report.
Sec. 9. Report of commissioner.
Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in
writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set
forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers
and the transcript, if any, of the testimonial evidence presented before him.
Sec. 10. Notice to parties of the filing of report. Upon the filing of the report, the parties shall be notified by the clerk, and
they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire.
Objections to the report based upon grounds which were available to the parties during the proceedings before the
commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court
unless they were made before the commissioner.
Sec. 11. Hearing upon report.
Upon the expiration of the period of ten (l0) days referred to in the preceding section, the report shall be set for hearing, after
which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with
instructions, or requiring the parties to present further evidence before the commissioner or the court.
 Weight of commissioner’s findings of fact

- When the referee has examined the evidence and reached his conclusions of fact and law, those conclusions have a
presumption in their favor, both of law and of reason… However, his conclusions… should be set aside if upon a
careful review, it appears to be at variance with the substantial preponderance of evidence.139
 If a party fails to file opportunely his objections to the report of the commissioner or referee, such that the record does not
disclose the objections thereto, questions relating to the report cannot be reviewed and he cannot dispute the findings in the
report or escape the legal consequences flowing therefrom.140
 The trial judge retains discretion to accept the report of the referee in part and set it aside in part or reverse it entirely even
where no exceptions to the referee’s report are taken.141

Sec. 12. Stipulations as to findings.
When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be
considered.
Sec. 13. Compensation of commissioner.
The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed
as costs against the defeated party, or apportioned, as justice requires.
4. SUBPOENA

Section 1. Subpoena and subpoena duces tecum.
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at
any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him
any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.
 Subpoena to testify – subpoena ad testificandum

139
Kriedt v. E.C. McCullough & Co., 37 Phil. 474, 481 (1918)
140
See De la Rama Steamship Co. v. National Development Co., 35 SCRA 567 (1970)
141
See Baltazar and Limpin v. Limpin and Director of Lands, 49 Phil. 39 (1926)

109 of 201
 This process may require the witness to attend and to testify and bring books or documents at any of the following
circumstances:
(1) Hearing or trial of an action
(2) Any investigation conducted by competent authority
(3) Taking of a deposition142

Sec. 2. By whom issued. The subpoena may be issued by:
(a) the court before whom the witness is required to attend;
(b) the court of the place where the deposition is to be taken;
(c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or
(d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application
to determine whether the same is made for a valid purpose.
No prisoner sentenced unless authorized by the Supreme Court.
 Note that only the Supreme Court may authorize a prisoner sentenced to death, reclusion perpetua or life imprisonment
and who is confined in any penal institution to be brought outside the penal institution for appearance or attendance in any
court.

Sec. 3. Form and contents.
A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books,
documents or things demanded which must appear to the court prima facie relevant.
 The subpoena is signed by the Clerk of Court.143

 As stated by the Supreme Court in Liebenow v. Philippine Vegetable Oil, 39 Phil. 60
- The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum, with the exception that it
concludes with an injuction that the witness shall bring with him and produce at the examination the books, documents or
things described in the subpoena.
- The subpoena duces tecum is issued in the manner as the ordinary subpoena, and is procurable from the clerk as of
course without application to the court.
- While the person to whom the subpoena to testify is directed is bound absolutely and without qualification to appear in
response to the subpoena, the person to whom the subpoena duces tecum is directed is bound only insofar as he is
required by law to produce the documents in evidence.
 Where a subpoena duces tecum is improperly issued tp enforce the production of documents which the witness is not
bound to produce, a proper remedy is by motion to vacate or set aside the subpoena.

Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein
1) if it is unreasonable and oppressive, or
2) the relevancy of the books, documents or things
does not appear, or
3) if the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
the production thereof.
The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the
subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered
when the subpoena was served.
 Note: It is expressly required that the relevance of the things to be produced must appear and that the person asking for
the subpoena shall advance the reasonable cost of the production thereof.
142
Feria, p. 491
143
See Rule 136, §4

110 of 201

Sec. 5. Subpoena for depositions.
Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which
the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order
of the court.
 A party to an action need not be served with a subpoena for the purpose of taking his deposition. It is sufficient to serve
him notice of the taking of his deposition. 144 However, if no subpoena is served on him, the party cannot be punished for
contempt under Section 9 of Rule 29.
Table 30: Subpoena v. Summons

SUBPOENA SUMMONS
* An order to appear and testify or to produce books and * Order to answer complaint
documents
* May be served to a non-party * Served on the defendant
* Needs tender of kilometrage, attendance fee and reasonable * Does not need tender of kilometrage and other fees
cost of production fee

Sec. 6. Service.
Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be
exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and
the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of attendance.
If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be
tendered.
Sec. 7. Personal appearance in court.
A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued
by such court or officer.
Sec. 8. Compelling attendance.
In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the
failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before
the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse.
Sec. 9. Contempt.
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court
from which the subpoena is issued.
If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule.
Sec. 10. Exceptions.
The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers
from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of
the court in which his case is pending was obtained.

Sec. 5 (e). Inherent powers of courts.
Every court shall have power:
x x x
(e) To compel the attendance of persons to testify in a case pending therein

Sec. 13. Witness fees. –
(c) Witnesses in the Supreme Court, in the Court of Appeals and in the Regional Trial Courts, either in actions or special
proceedings, shall be entitled to one hundred (P100.00)pesos per day-inclusive of travel time;
(d) Witnesses before courts of the first level shall be allowed fifty (P50.00) pesos per day;
Fees to which witnesses may be entitled in a civil action shall be allowed, on the certification of the clerk of court or judge of his
appearance in the case. A witness shall not be allowed compensation for his attendance in more than one case or more than one
side of the same case at the same time, but may elect in which of several cases or on which side of a case, when he is
144
See Rule 29, §5

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summoned by both sides, to claim his attendance. A person who is compelled to attend court on other business shall not be paid
as witness.
BP 129
Sec. 38. Judgments and processes. –
(1) All judgments determining the merits of cases shall be in writing, stating clearly the facts and the law on which they were
based, signed by the Judge and filed with the Clerk of Court. Such judgment shall be appealable to the Regional Trial Courts in
accordance with the procedure now prescribed by law for appeals to the Court of First Instance, by the provisions of this Act,
and by such rules as the Supreme Court may hereafter prescribe.
(2) All processes issued by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in cases falling
within their jurisdiction, may be served anywhere in the Philippines without the necessity of certification by the Judge of the
Regional Trial Court.
 Thus, a subpoena may be served anywhere in the Philippines
5. DEMURRER TO EVIDENCE
 Options of defendant after plaintiff has presented his case:
1) Present his evidence
2) Waive presentation of evidence and submit case based on plaintiff’s evidence alone
3) File demurrer to evidence145

Section 1. Demurrer to evidence.
After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief.
If his motion is denied, he shall have the right to present evidence.
If the motion is granted, but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to
present evidence.
 Compare this rule with the rule on demurrer to evidence in criminal cases under Section 23 of Rule 119.
 If the motion for dismissal on the ground of insufficiency of evidence is denied by the trial court, the defendant should be
allowed to present his evidence.
 Where the case is dismissed on demurrer to evidence and the trial court is reversed on appeal, the defendant loses the right
to present evidence on his behalf.
 The order granting the demurrer to evidence should contain the facts and the law on which it is based.146
 An order denying a motion for judgment on demurrer to evidence is interlocutory and is not appealable. Neither can it be the
subject of a petition for certiorari. From such denial, appeal in due time is the proper remedy, not certiorari, unless there is grave
abuse of discretion or excess of jurisdiction or an oppressive exercise of judicial authority. 147
 For an exceptional when certiorari lies to review an order denying a demurrer to evidence, see Commission on Elections v.
Court of Appeals, 229 SCRA 501 (1994)
Table 31: Demurrer to Evidence v. Motion to Dismiss

DEMURRER TO EVIDENCE MOTION TO DISMISS
* It is presented after the plaintiff has rested his case * Presented before a responsive pleading (answer) is made by
the defendant
* The ground is based on insufficiency of evidence * It may be based on any of those enumerated in Rule 16
Table 32: TWO KINDS OF DEMURRER TO EVIDENCE

CIVIL CASES CRIMINAL CASES
1. Defendant need not ask for leave of court 1. Leave of court is necessary so that the accused could present
his evidence if the demurrer is denied.
2. if the court finds the plaintiffs evidence insufficient, it will grant 2. if the court finds the prosecutions evidence insufficient, it will
the demurrer by dismissing the complaint. The judgment of grant the demurrer by rendering judgment acquitting the
dismissal is appealable by the plaintiff. If the plaintiff appeals and accused. Judgment of acquittal is not appeallable; double
145
Prof. Bautista’s reviewer, p.94
146
Nicos Industrial Corporation v. Court of Appeals, 206 SCRA 127, 133 (1992)
147
Feria, p. 597

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judgment is reversed by the appellate court, it will decide the jeopardy sets in.
case on the basis of the plaintiff’s evidence with the consequence
that the defendant already loses his right to present evidence. No
res judicata in dismissal due to demurrer.
3. If court denies demurrer, defendant will present his evidence. 3. If court denies the demurrer
(a) If demurrer was with leave of court, accused may present his
evidence;
(b) If demurrer was without leave of court, accused can no
longer present his evidence and submits the case for decision
based on the prosecution’s evidence.
XIII. JUDGMENTS
1. JUDGMENTS ON THE MERITS

Section 1. Rendition of judgments and final orders.
A judgment or final order determining the merits of the case shall be in writing, personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.
 3 parts of judgment:
 Body or opinion
 Decretal or dispositive portion- prevails if conflicts with body
 Signature of judge
 In case of conflict between the opinion and the dispositive portion, the dispositive portion shall prevail.
 The only portion of the decision which will become the subject of execution is what is ordained and decreed in such dispositive
part. The reasons or conclusions of the court may only serve as guide or enlightenment to determine the ratio decidendi.148
 Note that it is the filing of the decision, judgment or final order with the clerk of court, not the signing thereof, that constitutes
rendition or promulgation

Sec. 2. Entry of judgments and final orders.
If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final
order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final
order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and
shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory.
 The date of finality of the judgment or final order shall be deemed to be the date of its entry. Therefore, any delay in
physically effecting the entry, say, because service of judgment may have been made by registered mail and receipt of return card is
delayed, shall not affect the date of finality of the judgment.149
 The date of entry is the starting point of:
1) the six-month period for filing a petition of relief (Rule 38, Section 3),
2) the five-year period for filing a motion for execution
3) and the ten-year period of prescription of judgments (Rule 39, Section 6) 150
 Some judgments are immediately final and executory
 judgment by compromise
 judgment for accounting
 judgment for partition
 judgment for support
 judgment in UD

Sec. 3. Judgment for or against one or more of several parties.
Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.
When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves
and determine their ultimate rights and obligations.
Sec. 4. Several judgments.
In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or
148
J. Feria, Civil Procedure Annotated, Vol. I (2001), p. 618.
149
A. Bautista, Basic Civil Procedure (2003), p.152. According to Prof. Bautista, this provision could be misunderstood to mean that the date of entry is the date of finality.
150
J. Feria, Civil Procedure Annotated, Vol. I (2001), p. 618

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more of them, leaving the action to proceed against the others.
 If the defendants have separate or severable interest, a final order or judgment may be entered as to them leaving the
action to proceed against the others. But if the defendants have common interest, an order or judgment of dismissal as to some
of them is not final and, therefore, not appealable, for it is a well-known rule that the whole controversy or all the issues involved
in a case and as to all defendants must be disposed of or settled before any final judgment may be entered. 151
 Example:
Debtors solidarily liable have common interest, while debtors jointly liable have separate or severable interest.
In an action against 2 or more solidary debtors, no final order or judgment (appealable) may properly be rendered as to
some of the joint debtors and leaving the case to proceed against the others, for the reason that the action should have to be
finally decided as to all defendants since a final order or judgment in favor or against one of the solidary debtors will necessarily
affect the others. But in an action against 2 or more defendants jointly liable, a final order or judgment may be properly rendered
as to some defendants, leaving the case to proceed against the others, because they have a severable interest. 152

Sec. 5. Separate judgments.
When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the
court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such
conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.
 No appeal may be taken from a separate judgment unless the court allows it. (Rule 41, §1 (g)).

Sec. 6. Judgment against entity without juridical personality.
When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set
out their individual or proper names, if known.
Sec. 9. Signing judgments out of province.
Whenever a judge appointed or assigned in any province or branch of a Regional Trial Court in a province shall leave the province
by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary assignment, without having
decided a case totally heard by him and which was argued or an opportunity given for argument to the parties or their counsel, it
shall be lawful for him to prepare and sign his decision in said case anywhere within the Philippines. He shall send the same by
registered mail to the clerk of the court where the case was heard or argued to be filed therein as of the date when the same was
received by the clerk, in the same manner as if he had been present in court to direct the filing of the judgment. If a case has been
heard only in part, the Supreme Court, upon petition of any of the parties to the case and the recommendation of respective district
judge, may also authorize the judge who has partly heard the case, if no other judge had heard the case in part, to continue
hearing and to decide said case notwithstanding his transfer or appointment to another court of equal jurisdiction.
Sec. 9. Judgment and entries book. –
The clerk shall keep a judgment book containing a copy of each judgment rendered by the court in order of its date, and a book of
entries of judgments containing at length in chronological order entries of all final judgments or orders of the court.
WHAT A DECISION MUST CONTAIN:
Art. VIII, Sec, 14 (1987 Constitution)

No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is
based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating
the legal basis therefor.
Sec. 38 (1), BP 129
Judgments and processes.
All judgments determining the merits of cases shall be in writing, stating clearly the facts and the law on which they were based,
signed by the Judge and filed with the Clerk of Court. Such judgment shall be appealable to the Regional Trial Courts in
accordance with the procedure now prescribed by law for appeals to the Court of First Instance, by the provisions of this Act, and
by such rules as the Supreme Court may hereafter prescribe.
Sec. 40, BP 129
Form of decision in appealed cases.
Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the
151
Ibid, p. 619
152
Ibid, p. 620

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conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference
from those set forth in the decision, order, or resolution appealed from.
entries of judgments containing at length in chronological order entries of all final judgments or orders of the court.
 Art. VII, Sec. 14 of the 1987 Constitution requires every court to express in its decision, clearly and distinctly, the facts and the
law on which it is based. Such requirement applies only to decisions, as distinguished from orders or resolutions. 153
 A judgment which contains the dispositive portion only and reserves the making of findings in a subsequent judgment is a sin
perjuicio judgment and is not allowed. It shall have no effect. 154
 However, RTC judgment on appeal from MTC case may state findings of fact and conclusions of law, or adopt by reference
from those in decision, order or resolution appealed from (BP 129, S40)
2. JUDGMENTS BY COMPROMISE AND UPON CONFESSION
Judgment by compromise
 A judgment by compromise is immediately final and executory because there is necessarily implied by the
compromise a waiver by the parties of their right to appeal. 155 However, if the compromise is attended by fraud, mistake or duress, a
motion to set aside the compromise may be made, and in the event of denial, an appeal may be taken therefrom. 156 Under Section
1, Rule 41, however, certiorari may be taken from the order denying the said motion.
 Two alternative remedies against the compromise approved by the court:
1) Petition for relief under Rule 38
2) A new action to annul the compromise agreement under Rule 47 within the period established by law 157
 A compromise agreement between the parties to a case on which the decision of the court was based has upon the
parties the effect and authority of res judicata, and the judgment rendered thereon has the authority of res judicata from the moment
it was rendered.158
 Even if the compromise between the parties had not been submitted to the court, it still would have the same
authority as res judicata.159 However, such an extrajudicial compromise may not be enforced by execution. 160
Judgment by Confession
 Judgment upon confession is one which is rendered against a party upon his petition ro consent. It usually happens
when the defendant appears in court and confesses the right of the plaintiff to judgment or files a pleading expressly agreeing to the
plaintiff’s demand.161
 A cognovit judgment is one rendered upon confession pursuant to a cognovit clause in a promissory note or a
contract authorizing the holder or other party upon default to confess judgment as the maker’s or party’s attorney-in-fact upon the
note or contract. Such kind of a judgment is considered void in our jurisdiction for denying a party his right to a day in court and his
right to file counterclaims. 162
OVERMYER v FRICK (1972)

Overmyer contracted with Frick to install a ref system. Overmyer failed to pay stipulated payments. It succeeded in getting Frick
to continue the work upon payment of installments. 2 nd agreement: contained confession of judgment clause. Overmyer
authorized any attorney of Frick to appear in court and confess judgment against Overmyer in case of default. Without prior
notice to Overmyer, Frick got judgment v it.
Held:
Cognovit is an ancient legal device to holder’s obtaining judgment without notice or hearing, and even with
appearance on debtor’s behalf of an attorney designated by the holder.
DP rights to notice and hearing prior to civil judgment are subj to waiver. Cognovit clause constitutional and serves
useful purpose in commercial world.
In this case, it was not a © of adhesion bec there was equal bargaining power, and Overmyer received valuable
consideration in exchange for the clause.
153
See Novino v. Court of Appeals, 8 SCRA 279 (1963); Mendoza v. Court of First Instance of Quezon, 51 SCRA 369 (1973); Amargo v. Court of Appeals, 53 SCRA 64 (1973)
154
A. Bautista, Basic Civil Procedure (2003), p. 151
155
Ibid, p. 153.
156
See Piano v. Cayanong, 7 SCRA 397 (1963)
157
See Saminiada v. Mata et al., 92 Phil. 426 (1953)
158
See Piano v. Cayanong, 7 SCRA 397 (1963)
159
See Meneses v. De la Rosa, 77 Phil. 34 (1946)
160
Civil Code of the Philippines, Republic Act No. 386, Art. 2037 (1950)
161
See Manufacturer’s Bank and Trust Co. v. Woodworks, Inc., 36 SCRA 562 (1970)
162
See Philippine National Bank v. Manila Oil Refining & By-Products Co., Inc., G.R. No 18103, June 8, 1922.

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 As per PNB v Manila Oil Refining and By-Products, cognovit clause is void in the Phils bec it denies day in court
and right to file counterclaims
3. NUNC PRO TUNC JUDGMENTS
 a judgment entered “now for then”

 There are two classes of cases in which it was originally held proper to enter a judgment nunc pro tunc:
1) those cases in which the suitors have done all in their power to place the cause in a condition to be decided in a court but
in which owing to the delay of the court, no final judgment has been entered.
2) Those cases in which judgment though pronounced by the court, have, from accident or mistake of the officers of the
court, never been entered on the records of the court163
In our jurisdiction, only the second class would be appropriate for the rendition of a nunc pro tunc judgment.
 To justify a nunc pro tunc entry of an order, the record must present some visible data of the order.164
COX v HAGAN (1919)

1917: Judgment v Cox.
1918: Hagan moved for nunc pro tunc order to give judgment against Cox. Lower court granted order “which should have been
entered in 1917.”
Held:
2 classes of orders where it is proper to enter judgments and orders nunc pro tunc:
1) suitor did all in his power to place the cause in a condition to be decided by the court, but owing to delay of the
court, no final judgment has been entered
2) Judgment, though pronounced by court, has, from accident or mistake of the officers of the court, never been
entered on the records
Court entered “now for then” such order or decree as it finds from such record the party moving for the nunc pro tunc
order was then entitled to.
Normally, if delay to render judgment was imputable to negligence or misapprehension of parties, cannot enter such
judgments. Nunc pro tunc allowed only in cases where one of the parties died, or when statute repealed without a saving
clause.
However, courts now can only enter judgments in 2 nd class. Office of nunc pro tunc judgment is to record some act of
the court at a former time which was not then carried into the record, and the power of the court to make such entries is
restricted to placing upon the record evidence of judicial action which has actually been taken. Court cannot render judgment
that it might or should have rendered.
Exercise of power to render judgment presupposes actual rendition of judgment and a mere right to a judgment will
not furnish the basis for such entry.
New trial granted.
LICHAUCO v TAN PHO (1923)

Tan Pho asked for nunc pro tunc order as of Dec 1913 approving a © of lease. Petition impliedly granted in decision in another
case finding © valid.
Records show that guardian asked Court to allow him to employ attorney and to approve © of lease. CFI Judge gave affidavit
that he approved the lease. However, according to deputy clerk at that time, there was no entry of any approval.
Held:
Office of judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried
into the record, and the power of the court to make such entries is restricted to placing upon the record evidence of judicial
action which has actually been taken. It may be used to make the record speak the truth, but not to make it speak what it did not
speak but ought to have spoken.
If court did not render judgment that it might or should have rendered, or if it has rendered an imperfect or improper
judgment, it cannot remedy these errors or omissions by entering a nunc pro tunc judgment. In entering such judgment, court
has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered.
Exercise of this power presupposes actual rendition of a judgment, and mere right to judgment will not furnish basis for such an
entry.
Except as to the rights of 3rd parties, judgment nunc pro tunc is retrospective, and has same force and effect as if it
had been entered at the time judgment was originally rendered. Record entries nunc pro tunc can properly be made only when
based on some writing in a cause which directly or by fair inference indicates the purpose of the entry, or on the personal
knowledge and recollection of the court.
Nunc pro tunc invalid because entered without sufficient legal basis.
163
Cox v. Hagan, 125 Va. 656, 100 S.E. 666 (1919)
164
Lichauco v. Tan Pho, 51 Phil. 862 (1923)

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4. JUDGMENTS FOR COSTS

Section 1. Costs ordinarily follow results of suit. – Unless otherwise provided in these rules, costs shall be allowed to the
prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge that either party shall pay the
costs of an action, or that the same be divided, as may be equitable.
No costs shall be allowed against the Republic of the Philippines, unless otherwise provided by law.
 If no promulgation as to costs, each to bear his own costs165

Sec. 2. When action or appeal dismissed. –
If an action or appeal is dismissed for want of jurisdiction or otherwise, the court nevertheless shall have the power to render
judgment for costs, as justice may require.
Sec. 3. Costs when appeal frivolous. – Where an action or an appeal is found to be frivolous, double, or treble costs may be
imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the court.
Sec. 4. False allegations. –
An averment in a pleading made without reasonable cause and found untrue shall subject the offending party to the payment of
such reasonable expenses as may have been necessarily incurred by the other party by reason of such untrue pleading. The
amount of expenses so payable shall be fixed by the judge in the trial, and taxed as costs.
Sec. 5. No costs of irrelevant matters. –When the record contains any unnecessary, irrelevant, or immaterial matter, the party at
whose instance the same was inserted or at whose instance the same was printed, shall not be allowed as costs any disbursement
of preparing, certifying, or printing such matter.
Sec. 6. Attorney's fees as cost. –
No attorney's fees shall be taxed as costs against the adverse party, except as provided by the rules of civil law. But this section
shall have no relation to the fees to be charged by an attorney as against his client.
Sec. 7. Restriction of costs. –
If the plaintiff in any action shall recover a sum not exceeding ten pesos as debt or damages, he shall recover no more costs than
debt or damages, unless the court shall certify that the action involved a substantial and important right to the plaintiff in which
case full costs may be allowed.
Sec. 8. Costs, how taxed. –
In inferior courts, the costs shall be taxed by the municipal or city judge and included in the judgment.
In superior courts, costs shall be taxed by the clerk of the corresponding court on five day's written notice given by the prevailing
party to the adverse party. With this notice shall be served a statement of the items of costs claimed by the prevailing party, verified
by his oath or that of his attorney. Objections to the taxation shall be made in writing, specifying the items objected to. Either party
may appeal to the court from the clerk's taxation. The costs shall be inserted in the judgment if taxed before its entry, and payment
thereof shall be enforced by execution.
Sec. 9. Costs in municipal or city courts. –
In an action or proceeding pending before a municipal or city judge, the prevailing party may recover the following costs, and no
other:
a) For the complaint or answer, two pesos;
b) For the attendance of himself, or his counsel, or both, on the day of trial, five pesos;
c) For each additional day's attendance required in the actual trial of the case, one peso;
d) For each witness produced by him, for each day's necessary attendance at the trial, one peso, and his lawful traveling
fees;
e) For each deposition lawfully taken by him and produced in evidence, five pesos;
f) For original documents, deeds, or papers of any kind produced by him, nothing;
g) For official copies of such documents, deeds or papers, the lawful fees necessarily paid for obtaining such copies;
h) The lawful fees paid by him for service of the summons and other process in the action;
i) The lawful fees charged against him by the judge of the court in entering and docketing and trying the action or
proceeding.
Sec. 10. Costs in Courts of First Instance. –
In an action or proceeding pending in a Court of First Instance, the prevailing party may recover the following costs, and no other:
a) For the complaint or answer, fifteen pesos;
b) For his own attendance, and that of his attorney, down to and including final judgment, twenty pesos;
c) For each witness necessarily produced by him, for each day's necessary attendance of such witness at the trial, two
pesos, and his lawful traveling fees;
d) For each deposition lawfully taken by him, and produced in evidence, five pesos;
e) For original documents, deeds, or papers of any kind produced by him, nothing;
165
Prof. Bautista’s Reviewer, p. 96

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f) For official copies of such documents, deeds, or papers, the lawful fees necessarily paid for obtaining such copies;
g) The lawful fees paid by him in entering and docketing the action or recording the proceedings, for the service of any
process in action, and all lawful clerk's fees paid by him.
Sec. 11. Costs in Court of Appeals and in Supreme Court. –
In an action or proceeding pending in the Court of Appeals or in the Supreme Court, the prevailing party may recover the following
costs, and no other:
a) For his own attendance, and that of his attorney, down to and including final judgment, thirty pesos in the Court of
Appeals and fifty pesos in the Supreme Court;
b) For official copies of record on appeal and the printing thereof, and all other copies required by the rules of court, the
sum actually paid for the same;
c) All lawful fees charged against him by the clerk of the Court of Appeals or of the Supreme Court, in entering and
docketing the action and recording the proceedings and judgment therein and for the issuing of all process;
d) No allowance shall be made to the prevailing party in the Supreme Court or Court of Appeals for the brief or written or
printed arguments of his attorney, or copies thereof, aside from the thirty or fifty pesos above stated;
e) If testimony is received in the Supreme Court or Court of Appeals not taken in another court and transmitted thereto, the
prevailing party shall be allowed the same costs for witness fees, depositions, and process and service thereof as he would
have been allowed for such items had the testimony been introduced in a Court of First Instance;
f) The lawful fees of a commissioner in an action may also be taxed against the defeated party, or apportioned as justice
requires.
Sec. 12. Costs when witness fails to appear. –
If a witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of
arrest and of the arrest of the witness shall be paid by the witness if the court shall determine that his failure to answer the
subpoena was willful or without just excuse.
Sec. 13. Costs when person cited for examination in probate proceedings. –
When a person is cited, on motion of another, to appear before the court to be examined in probate proceedings, the court may, in
its discretion, tax costs for the person so cited and issue execution therefor, allowing the same fees as for witnesses in Courts of
First Instance.
5. DECLARATORY JUDGMENTS

Section 1. Who may file petition.
Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive
order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or
duties thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this Rule.
 The special civil action of declaratory relief falls under the exclusive original jurisdiction of the Regional Trial Courts. 166
 A declaratory judgment stands by itself; no executory process follows as of course. Such a judgment does not involve
executory or coercive relief.167
 While a declaratory judgment should normally not decree the doing of any act, it was held in one case that the court in such an
action may order the refund of payments made under an ordinance which was declared to be null and void. Else, a separate suit
would still be required for the recovery of these payments, and this would result in multiplicity of suits. 168
 A declaratory judgment is different from an advisory opinion because it is actually determinative of the rights of the party to a
case and it is based on an actual controversy.169 Also, it is res judicata and binding upon the parties and those in privity with them. 170
Table 33: Declaratory Judgment v. Advisory Opinion

DECLARATORY JUDGMENT ADVISORY OPINION
Proceeding determinative of the rights of the parties to the case Rendered at request of exec or legislative dept
Quieting effect, but no coercive effect To guide action only
Coercive relief may be in separate judgment
Requires ripening seed of controversy Situation can be vague and hypothetical
166
See the Judiciary Reorganization Act of 1980, Batas Pambansa Blg. 129, §19(1) (1980).
167
Feria, Civil Procedure Annotated, Vol. II (2001), p. 434
168
Matalin Coconut Co., Inc. v. Municipal Council of Malabang, Lanao del Sur, G.R. No. 28138, August 13, 1986, 143 SCRA 404 (1986)
169
A. Bautista, Basic Civil Procedure (2003), p. 155.
170
16 Am. Jur. Declaratory Judgments, §3.

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Discretionary
 A declaratory judgment is different from decisions of abstract or moot questions since they must involve a real controversy. 171
 The power to grant declaratory relief does not imply the power to decide a moot case because the power can only be exercised
in a case which, although not presenting an actual controversy, does already present the ripening seeds of a controversy. 172
 Requisites for declaratory relief:
1) there must be a justiciable controversy;
2) the controversy must be between persons whose interests are adverse;
3) the party seeking declaratory relief must have a legal interest in the controversy; and
4) the issue involved must be ripe for judicial determination173
 The subject matter must refer to a deed, will, contract, or other written instrument, or to a statute or ordinance.
 An action for declaratory relief will not lie in the following cases174:
1) where the action is to obtain judicial declaration of citizenship175
2) where the action is to establish illegitimate filiation and hereditary rights 176
3) where a court decision is the subject of action177
4) where the action is to resolve a political question or issue178
5) where the action is to try or determine issues179
6) where the terms of the assailed ordinance are not ambiguous or of doubtful meaning180
7) where the contract or statute on which the action is based has been breached181
8) where the action is merely to seek an advisory opinion from the court on a moot question 182

Sec. 2. Parties.
All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration
shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action.
 Non-joinder of necessary parties is not a jurisdictional defect but may be ground for dismissal under Section 5 of this Rule. 183

Sec. 3. Notice on Solicitor General.
In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the
Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question.
Sec. 4. Local government ordinances.
In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional,
the Solicitor General shall also be notified and entitled to be heard.
Sec. 5. Court action discretionary.
Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse
to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the
uncertainty or controversy which gave rise to the action, or in any case
 Generally, declaratory judgment is discretionary.
171
Ibid.
172
New York Foreign Trade Zone Operators, Inc. v. State Liquor Authority, 285 N.Y. 272, 34 N.E. 2d 316 (1941).
173
Tolentino v. Board of Accountancy, 90 Phil. 83, 88 (1951); See also Caltex (Philippines), Inc. v. Palomar, 18 SCRA 247 (1966)l Mirando v. Wellington Ty & Bros., Inc. 81
SCRA 506 (1978).
174
For discussion on this, see Feri, Civil Procedure Annotated, Vol. II (2001), pp. 437-441.
175
See Obiles v. Republic of the Philippines, 92 Phil. 864 (1953). See also Azajar v. Ardales and Bureau of Lands, 97 Phil.851 (1955); SIngson v. Republic, 22 SCRA 353
(1968); Lim. V. Republic, 37 SCRA 783 (1971).
176
See Edades v. Edades, et al., 99 Phil. 675 (1956)
177
See Tanda v. Aldaya, 98 Phil. 244 (1956). See also Bascos v. Court of Appeals, 98 Phil. 994 (1956).
178
See De la Llana v. Commission on Elections, 80 SCRA 525 (1977)
179
See Kawasaki Port Service Corporation v. AMores, 199 SCRA 230 (1991); See also Dy Poco, v. Commissioner of Immigration, et al., 16 SCRA 615 (1966)
180
See Santos v. Aquino, et al.94 Phil. 65 (1953)
181
See De Borja v. Villadolid, 85 Phil. 36 (1949); Samson v. Andal, 89 Phil. 627 (1951); Velasco v. Villegas 120 SCRA 568 (1983)
182
See GSIS Employees Association v. Alvendia, 108 Phil. 505 (1980).
183
Baguio Citizens Action, Inc. v. Municipal Council of Malabang, Lanao del Sur, G.R. No. 28138, August 13, 1986, 143 SCRA 404 (1986)

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EXCEPTIONS:
 action to reform instrument,
 to quiet title or to remove clouds, or
 to consolidate ownership on pacto de retro sales under 1607, CC

Sec. 6. Conversion into ordinary action.
If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action,
and the parties shall be allowed to file such pleadings as may be necessary or proper.
REPORT, COMMITTEE ON THE JUDICIARY OF US SENATE184

Declaratory judgment is same as other judgments, except that it is not followed by decree for damages, injunction, specific
performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a
contested issue. It enables parties in dispute over their rights over a contract, deed, lease, will, or any other written instrument to sue
for a declaration of rights without breach of the contract.
Employed mainly for determination of status in marital or domestic relations, determination of contested rights of prop, real or
personal, and for declaration of rights under a statute or municipal ordinance.
=> Avoids necessity of acting at one’s peril, or to act on one’s own interpretation of his rights or abandon one’s right for fear of
incurring damages
Proceeding must be adversary, all interested parties must be cited, the issue must be real, the problem is practical and not
academic, and the decision must finally settle and determine the controversy. Better to adjudicate dispute before status quo has
been destroyed.
AMERICAN MACHINE AND METALS v DE BOTHEZAT (1948)

De Bothezat conveyed certain patents to American Machine. As long as © in force, American to pay a percentage of its net sales
even if patents already expired or product not covered by patent.
American soon asked that the © be terminated and asked for declaration of rights to avoid accrual of damages. However, it did not
yet give notice of termination.
Held:
Had notice been given, there would be an actual controversy. Where there is actual controversy over contingent rights, a
declaratory judgment may be granted. Purpose is to prevent accrual of avoidable damages.
INTL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION v BOYD (1954)

Union has 3000 members who work in Alaska, with some of them aliens. Act was passed treating aliens domiciled in US returning
from temporary work in Alaska as if they were entering the US for the first time. They are seeking assurance that the act would not
apply to them if such contingency would arise in the future.
Held: Determination of scope and constitutionality of the statute is too remote and abstract. No controversy appropriate for special
adjudication. Action seeks no more than assurance that statute does not govern hypothetical situations.
BAGUIO CITIZENS ACTION v CITY COUNCIL (1983)

Ordinance passed by Baguio City Council considering squatters as bona fide occupants.
Declaratory relief by citizens to declare ordinance as invalid. CFI dismissed petition on ground that ordinance already declared
valid in crim case, squatters not made parties and declaration not necessary and proper.
Held: In crim case, CFI only declared that Council can modify or repeal its own laws, but not that whole ordinance is valid.
RoC does not state that non-joinder of persons who have or claim any interest would be defect in jurisdiction. It only
states that those not made parties shall not be prejudiced. If at all, case should be dismissed because decision would not
terminate uncertainty for failure to include necessary parties.
Although declaration would affect squatters, they are not necessary parties. Issue is power of Council to enact
ordinance. Even if not impleaded, judgment would be binding on squatters.
NEW YORK FOREIGN TRADE OPERATORS v STATE LIQUOR ASSOC (1941)

Plaintiff operates in foreign trade zone where foreign merchandise can be manipulated without being subj to customs law. It
adds pure water to foreign distilled spirits without distiller’s license from State Liquor Authority. Plaintiff seeks declaratory relief
because Authority is threatening them with injunction unless they get license.
Held:
Controversy must involve rights and other legal relations. Power to render declaratory judgment does not include
power to decide a moot case. Although no actual controversy, there should be ripening seeds of controversy.
This remedy is available where consti question involved or legality or meaning of statute is in question and no
question of fact involved. There is only question of law, and other forms of actions are not reasonably adequate (ex. it can wait
for a suit to be filed against it, but this would expose them to risk of facing crim prosecution).
Necessity of license may be subj of declaratory judgment. To refuse to consider the question will leave an unstable
jural relation, which will impose hardships and may affect foreign commerce.
184
Digest of Report of the Committee on the Judiciary of the U.S., taken from the Reviewer of Gme Tomboc

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MATALIN COCONUT v MUNICIPAL COUNCIL OF MALABANG, LANAO (1986)

Council imposed a police inspection fee of 30 centavos per sack of cassava starch. Matalin Coconut challenged validity of
ordinance in petition for declaratory relief. Trial court ordered refund of taxes paid under protest.
Council claims that it cannot order refund in declaratory judgment bec ordinary action needed.
Held:
Action for declaratory relief may be converted into ordinary action if breach or violation of ordinance occurs.
Declaratory action can still proper because there is still an issue about future transactions, although matter can be settled in
ordinary suit for recovery of taxes paid. Multiplicity of suits discouraged. Also, Council did not object to prayer for refund.
*Tax is unjust and unreasonable because inspection useless and would practically take away profit of Matalin.
 Normally, declaratory judgment cannot decree doing of an act. In this case, refund was ordered to avoid
multiplicity of suits.
6. FOREIGN JUDGMENTS

Sec. 48. Effect of foreign judgments and final orders.
The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order
is as follows:
a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to
the thing; and
b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right
as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
 In view of the provisions of Articles 15 and 17 of the Civil Code of the Philippines, foreign divorces granted to citizens of the
Philippines will not be recognized in this jurisdiction except if ranted for a cause and under conditions for which the courts of the
Philippines would grant a divorce.185
 A foreign judgment or the law affecting the same may not be recognized if it is contrary to the law or fundamental policy of the
state of the forum.186
 In order to enforce a foreign judgment in the Philippines, it is necessary to file an action based on said judgment. 187
 A defendant in a Philippine court may invoke a foreign judgment as res judicata in his defense. It is not necessary to institute a
separate action or proceeding for recognition of the foreign judgment, as long as the parties opposed to the judgment on the
grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of fact, have the opportunity to
challenge the foreign judgment, in order for the court to properly determine its efficacy. 188
 Note though that a foreign judgment cannot be enforced by execution in the Phils. It only creates a right of action. Suit must
first be brought upon the foreign judgment in our local courts.
XIV. REVIEW AND CORRECTION OF TRIAL COURT ERRORS
1. REVIEW AND CORRECTION BY TRIAL COURT OF ITS OWN PROCEEDINGS
b) MOTION FOR RECONSIDERATION OR FOR NEW TRIAL

 Before judgment becomes final and executory

Section 1. Grounds of and period for filing motion for new trial or reconsideration.
Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and
grant A NEW TRIAL for one or more of the following causes materially affecting the substantial rights of said party:
a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason
of which such aggrieved party has probably been impaired in his rights; or
185
See Van Dorn v. ROmillo, Jr., 139 SCRA 139 (1985); Pilapil v. Ibay-Somera, 174 SCRA 653 (1989); Quita v. Court of Appeals, 300 SCRA 406 (1998).
186
See Arca et al. v. Javier, 95 Phil. 579 (1954).
187
Feria, Civil Procedure Annotated, Vol. I (2001), p.140. See also Northwest Orient Airlines, Inc. v. Court of Appeals, 241 SRCA 192 (1995).
188
See Perkins v. Benguet Consolidated Mining Co., et al., 93 Phil. 1034 (1953); Philsec Investment Corporation v. Court of Appeals, 274 SCRA 102 (1997).

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b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and
which if presented would probably alter the result;
Within the same period, the aggrieved party may also move for RECONSIDERATION upon the grounds that the damages
awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is
contrary to law.
 The period for filing either motion is within the period for taking (not perfecting) an appeal. 189
 A motion for extension of time to file a motion for new trial or reconsideration may be filed only in connection with cases
pending before the Supreme Court, which may in its sound discretion either grant or deny the extension requested, No such motion
may be filed before any lower courts.190
 Note that this is substantially similar to the petition for relief on the same grounds under section 2 of Rule 38. The only
difference is that the petition is called a motion for new trial if filed before the judgment or order has become final and the petitioner
has not been declared in defaulty, and a petition for relief if filed within sixty days after the petitioner learns of the judgment and not
more than six months after that judgment or order complained of was entered.191
 FRAUD
- Not every kind of fraud is sufficient ground to set aside a judgment. Only extrinsic or collateral fraud, as distinguished from
intrinsic fraud, is a ground for annulling a judgment
- Extrinsic fraud refers to any fraudulent act of the successful party in a litigation which is committed outside the trial of the
case against the defeated party, or his agents, attorney or witnesses, whereby said defeated party is prevented from
presenting fully and fairly his side of the case.
- Intrinsic fraud refers to acts of a party in a litigation during the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case, but did prevent a fair and just determination of the case. 192
 Under Rule 15, Section 8, a motion attacking a pleading or proceeding shall include all objections then available, and all
objections not so included shall be deemed waived. Hence, grounds existing and available at the time a motion to set aside a
judgment was filed cannot be raised in a petition for relief under Rule 38.
 NEWLY DISCOVERED EVIDENCE
- requisites for evidence to be considered as newly discovered:
1) Discovered after the trial
2) Could not with reasonable diligence have been discovered and produced at the trial
3) Would probably alter the result
- A judgment should not be vacated in order to permit a a party to avail himself of newly discovered evidence unless it
is made to appear that:
(1) The failure of the party to present the evidence at the original hearing was an excusable neglect
(2) That the new evidence is so controlling in its effect that it would if not met, probably induce a different conclusion from
that reached at the original hearing;
(3) That the party desiring to use the evidence should apply to the court for relief with reasonable diligence after
discovering the same

Sec. 2. Contents of motion for new trial or reconsideration and notice thereof.
The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant
on the adverse party.
A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph
(a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause
mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by
duly authenticated documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not
supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to
the provisions of law alleged to be contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.
 Pro-forma MNT or MR
1) Fails to point out findings and conclusions of judgment
2) Does not contain notice of hearing
189
See Rule 40, §2 and Rule 41, §3
190
See Habaluyas Enterprises, Inc. v. Japson, 142 SCRA 208 (1986).
191
See Santos v. Rustia, 90 Phil. 358 (1951). See also Clorox Co. v. Director of Patents, 20 SCRA 965 (1967); Pan-Asiatic Travel Corp. v. Court of Appeals, 164 SCRA 623
(1988).
192
Palanca v. American Food Mfg. Co., 24 SCRA 819, 826 (1968). See also Magno v. Court of Appeals, 107 SCRA 285 (1981).

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3) Raises grounds already considered by court in its decision193

 Where a motion for new trial on the ground of fraud etc. is unaccompanied by the required affidavit(s), or where a motion for
new trial on the ground of newly discovered evidence is unaccompanied by an affidavit of the efforts exerted in discovering the
new evidence as well as the nature thereof, the motion is pro forma a scrap of paper, and will not interrupt the running of the
period of appeal.194

Sec. 3. Action upon motion for new trial or reconsideration.
The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the
motion.
If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law,
it may amend such judgment or final order accordingly.
Sec. 4. Resolution of motion.
A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution.
Sec. 5. Second motion for new trial.
A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion
for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein
provided excluding the time during which the first motion had been pending.
No party shall be allowed a second motion for reconsideration of a judgment or final order.
 A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed witin
the time provided excluding the time during which the first motion had been pending. But a second motion for reconsideration
of a judgment or final order is not allowed.
 The second motion for new trial may be filed within the remaining period after deducting the time during which the first motion
was pending.
 A second motion for new trial based on the same grounds as the first does not suspend the period for perfecting the appeal. 195
 The provision that no party shall be allowed a second motion for reconsideration of a judgment or final order is applicable to all
courts lower than the Supreme Court.196

Sec. 6. Effect of granting of motion for new trial.
If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the
action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and
competent to establish the issues, shall be used at the new trial without retaking the same.
 After a new trial has been held, the court shall render a new judgment which is appealable.197
 If the order granting a new trial is set aside, the original judgment is deemed repromulgated.
 When MR denied, file within the remaining time. Although R41 S3 says that if you file your MR on the last day for
filing appeal, there’s 1 whole day after receiving notice of denial to perfect appeal (this provision is not in the RoC anymore, but the
basis can still be R22 which excludes the day on which notice received)

Sec.7. Partial new trial or reconsideration.
If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or final order upon the rest.
 The court can limit the issues to be discussed at the new trial and the parties to intervene in it, as well as the evidence to be
presented.198
193
Reviewer for the Remedial Law Class under Prof. Antonio Bautista, Compiled by Remedial Law Class 2001, p. 100.
194
See Philippine Commercial and Industrial Bank v. Ortiz, 150 SCRA 380 (1987); Heirs of Montinola-Sanson v. Court of Appeals, 158 SCRA 247 (1988); Yap v. Tanada, 163
SCRA 464 (1988).
195
See Medran v. Court of Appeals, 83 Phil. 164 (1949). See also Rule 15, §8.
196
Feria, Civil Procedure Annotated, Volume I (2001), p. 639.
197
See Vda. De Haberer v. Martinez, 62 SCRA 162 (1975).
198

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Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the
enforcement of such judgment or final order until after the new trial.
Sec. 9. Remedy against order denying a motion for new trial or reconsideration.
An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final
order.
 In addition to the appeal from the judgment or final order, the denial of the motion for new trial or reconsideration may be
questioned by certiorari under Rule 65.
c) PETITION FOR RELIEF

 After period for filing MNT or MR or appeal has lapsed

Section 1. Petition for relief from judgment, order, or other proceedings.
When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud,
accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment,
order or proceeding be set aside.
 This rule applies to Municipal or Metropolitan Trial Courts as well as to Regional Trial Courts. 199
 The rule is applicable to a proceeding taken after the entry of the judgment or order, such as an order of execution. 200 The rule
is also applicable in special civil actions and special proceedings.201
 A party who has filed a timely motion for new trial cannot file a petition for relief after his motion has been denied. These two
remedies are exclusive of each other. He should appeal from the judgment and question such denial.202
 A petition for relief will not prosper where the petitioner had lost his right to appeal therefrom through his own fault or
negligence.203

Sec. 2. Petition for relief from denial of appeal.
When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable
negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the
appeal be given due course.
 This rule is applicable to the denial of an appeal or the failure to appeal on time due to fraud, accident, mistake or excusable
negligence. However, unlike the relief sought in the previous section, the prayer is that the appeal be given due course. 204
 Where an appeal has been dismissed for failure of the appellant to perfect the appeal on time, where the delay may be caused
by accident, mistake or excusable negligence, a petition for relief under Rule 38 may be filed, but it should be directed against the
order preventing the perfection of the appeal, and not against the judgment on the merits. 205

Sec. 3. Time for filing petition; contents and verification.
A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner
learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or
final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident,
199
Ibid, p. 643.
200
See Cayetano v. Ceguerra, 13 SCRA 73 (1965).
201
See Section 3(a) of Rule 1 and Section 2 of Rule 72.
202
See Francisco v. Puno, 108 SCRA 427 (1981).
203
Spouses Mesina v. Meer, 145 SCRA 139 (1986).
204
Feria, Civil Procedure Annotated, Volume I (2001), p. 653
205
See Bracamonte and Calderon v. Court of Appeals, et al., 92 Phil. 186 (1952). See also Rafanan v. Rafanan, 98 Phil. 162 (1955).

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mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or
defense, as the case may be.
 The petition, which must be verified, must be filed within sixty (60) days after the petitioner learns of the judgment, order, or
other proceeding to be set aside, and not more than six (6) months after such judgment or order was entered, or such proceeding
taken. It must be file within both periods; otherwise, no relief may be granted.
 In such a case where no relief may be granted, the only remedies available are:
(1) An action to annul the judgment on the ground of fraud, which must be brought within four (4) yrs. After discovery of
the fraud, and
(2) A direct or collateral attack at any time against the judgment if it is void ab initio for lack of jurisdiction.206
 A motion to dismiss may be filed on the ground that the court has no jurisdiction to entertain the petition because it was filed
beyond the reglementary period.207

Sec. 4. Order to file an answer.
If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the
adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as
the court may direct, together with copies of the petition and the accompanying affidavits.
Sec. 5. Preliminary injunction pending proceedings.
The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights
of the parties, upon the filing by the petitioner of a bond in favor of the adverse party all damages and costs that may be awarded
to him by reason of issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate
to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner.
 The injunction shall not extinguish any lien, such as a levy on attachment or execution.

Sec. 6. Proceedings after answer is filed.
After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it
finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set
aside the judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter the case shall
stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed
to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it.
Sec. 7. Procedure where the denial of an appeal is set aside.
Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the
record of the appealed case as if a timely and proper appeal had been made.
Table 34: Motions for New Trial, Reconsideration, and Petition for Relief
206
207
See Pacific Importing v. Tinio, 85 Phil. 239 (1949).

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Motion for New Trial Motion for Reconsideration Petition for Relief
Grounds FAME 1) excessive damages 1) Judgment entered or party
Newly-discovered evidence 2) insufficient evidence prevented from appealing
3) contrary to law thru FAME
3)
Form Affid of merits (if due to FAME) or Point out findings and Must be verified (unlike MNT
affid of witnesses (if newly conclusions and MR which require in writing
discovered evidence) only)
Affid of merits
R38 S3: facts constituting

*Note: R9 S3: AM is that he has a petitioner’s good and substantial
meritorious defense cause of action or defense
: R38 S3: facts constituting
petitioner’s good and substantial
cause of action or defense
Notice of Hearing same same same

Effect If granted, orig judgment vacated; If granted, judgment amended Court can grant prelim injunc
trial de novo upon filing of bond for damages
sustained, not for satisfaction of
judgment
If granted, treat as if MNT or MR
timely filed
Filing Within period for perfecting same as MNT Within 60 days after learning of
appeal (15 or 30 days fr notice to judgment but not more than 6
party) months after judgment entered
No. of motions 2 1 only
allowed
Table 35: New trial/ MFR v. Relief from Judgment

NEW TRIAL/RECONSIDERATION RELIEF FROM JUDGMENT
* Must be filed within the appeal period. Judgment not * Judgment is final within 60 days after petitioner learns of the
yet final. judgment to be set aside and within 6 months after such
judgment is entered.
* A legal right. * More on equity (Discretionary)
* FAME * FAME only
* Judgment on final order * Relief from judgment/order on other proceeding.
SERVICE SPECIALISTS v SHERIFF OF MANILA (1986)

Service Specialists sued Diaz for replevin and damages. Diaz declared in default and judgment rendered for Service. Aug
9 decision became final and executory, so motion for execution granted. On Dec 24, Diaz filed for relief from judgment in a
different court, though presided by same judge.
Held: Petition for relief should be filed in same court and in the same case where judgment rendered. Petition for relief is
not like petition for certiorari where judge is alleged to have acted without or in excess of his jurisdiction. To stay
execution, preliminary injunc is needed. Secure prelim injunc to suspend or stay the execution of the judgment because
judgment already final and executory, unlike when appeal perfected where trial court loses jurisdiction.
Denying relief : final and unappealable. But order granting relief is interlocutory.
60 day period for filing petition for relief runs from the date petitioner’s lawyer is notified of decision.
Auction sale ordered to proceed.
2. REVIEW AND CORRECTION BY ANOTHER COURT IN AN INDEPENDENT ACTION
 Where judgment already final and executory
a) DIRECT ATTACK – ANNULMENT
BP 129, Sec. 9 (2)

Jurisdiction. - The Intermediate Appellate Court shall exercise:
(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and
xxx
 Exclusive original jurisdiction of the Court of Appeals

Section 1. Coverage.
This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of
Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no
longer available THROUGH NO FAULT OF THE PETITIONER.
 The Court of Appeals has exclusive original jurisdiction over actions for annulment of judgments of the Regional Trial
Courts208
 Annulment is a last remedy; it cannot be resorted to if the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are still available, or are not available anymore through the fault of the petitioner 209
 Can be filed by non-party if he can prove he would be adversely affected

Sec. 2. Grounds for annulment.
The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for
relief.
 If the ground for annulment is lack of jurisdiction, another remedy is certiorari under Rule 65, in which case, the Court
of Appeals does not have exclusive jurisdiction since the Supreme Court also has such jurisdiction
 Extrinsic fraud is also a ground of
1) a motion for new trial under Section 1 of Rule 37, and
2) of a petition for relief under Section 1 of Rule 38.
Hence, if the petitioner had already availed of said remedies, or did not avail of them through his fault, he may no
longer avail of the remedy of annulment.
 Where the fact that the judgment or order is issued without jurisdiction does not appear on the face of the judgment
or order, its voidness may be raised only on a direct action to annul this judgment and that is either on a Rule 47 action to
annul the judgment or a Rule 38 petition for relief (as against a collateral attack).210

Sec. 3. Period for filing action.
If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction,
before it is barred by laches or estoppel.
Sec. 4. Filing and contents of petition.
The action shall be commenced by filing a verified petition alleging therein with particularity the facts and the law relied upon for
annulment, as well as those supporting the petitioner’s good and substantial cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies corresponding to the number of
respondents. A certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition
intended for the court and indicated as such by the petitioner.
The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of action or
defense and a sworn certification that he has not theretofore commenced any other action involving the same issues in the
Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same, and if he should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom.
Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons for such
dismissal.
Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the
respondent.
Sec. 6. Procedure.
The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the reception of the evidence may be referred
to a member of the court or a judge of a Regional Trial Court.
 A restraining order and preliminary injunction may be granted to prevent the execution of the judgment if it has not
yet been executed. A motion to dismiss may be filed as in ordinary civil cases.211
208
See The Judiciary Reorganization Act of 1980, Batas Pambansa Blg. 129, §9(2)
209
Feria, Civil Procedure Annotated, Volume II (2001), p. 219
210
Bautista, Basic Civil Procedure (2003), p. 167-168
211
Feria, Civil Procedure Annotated, Volume II (2001), p. 222.
Acosta, Biruar, Cabilao, Quimson, Tan, Tomboc, Veloso, & Veloso
127 of 202
Sec. 7. Effect of judgment.
A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void,
without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is
set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new
trial had been granted therein.
Sec. 8. Suspension of prescriptive period.
The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of such original
action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the original action.
 The nullification of the judgment on the ground of lack of jurisdiction is without prejudice to the refiling of the case in
the proper court which has jurisdiction over the same. In such case, the period of prescription is deemed suspended from
the date of filing of the original action until the finality of the judgment of annulment.
 If the ground for annulment is extrinsic fraud, the Court of Appeals may grant the motion of the plaintiff, who is not
guilty of the extrinsic fraud, to order the trial court to hear and determine the case as if a timely motion for new trial had
been granted therein.
However, if the plaintiff is guilty of the extrinsic fraud, the Court of Appeals may deny his motion. In such case, the
plaintiff’s remedy is to refile the original action if his action has not prescribed, inasmuch as there was no interruption of
the period of prescription.212

Sec. 9. Relief available.
The judgment of annulment may include the award of damages, attorney’s fees and other relief.
If the questioned judgment or final order or resolution had already been executed, the court may issue such orders of restitution or
other relief as justice and equity may warrant under the circumstances.
Sec. 10. Annulment of judgments or final orders of Municipal Trial Courts.
An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction
over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto
b) DIRECT ATTACK: CERTIORARI, PROHIBITION AND MANDAMUS
 Rule 65 (see discussion below)
c) COLLATERAL ATTACK
 If the judgment or final order was issued without jurisdiction and this appears on the face of the judgment,
the judgment may be attacked as being null and void for this reason in the same action where this judgment is relied upon
or invoked.213
 Elements:
1) Judgment is null and void, and this appears on the face of the judgment
2) Judgment is relied upon in a case as a party’s claim or defense
 But if lack of jurisdiction does not appear on the face of the judgment or order, its voidness can be raised
only on a direct action either through a Rule 38 petition for relief or on a Rule 47 action to annul the judgment.
3. APPELLATE PROCEEDINGS; REVIEW AND CORRECTION BY ANOTHER COURT ON APPEAL

 Only a judgment or final order that completely disposes of a case or particular matter therein may be appealed.214
 But the Rules of Court expressly prohibit an appeal from certain orders or judgments 215, in which case the aggrieved
party may file a petition for certiorari, prohibition and mandamus under Rule 65.
a) Appeal from Inferior Courts To RTC

RULE 40
APPEALS FROM MTC’S TO RTC’S
Section 1. Where to appeal.
212
Ibid, p. 223.
213
Bautista, Basic Civil Procedure (2003), p. 167
214
Rule 41, Sec.1
215
Id.
128 of 202
An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but
the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee.
 All judgments or final orders of a Municipal Trial Court (whether in the exercise of its exclusive jurisdiction or its
concurrent jurisdiction with the RTC) are appealable to the Regional Trial Courts only.
Sec. 2. When to appeal.
An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30)
days after notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be allowed.
 Notice of the denial of the motion for new trial or for reconsideration is the starting point from which the interrupted
time for appeal begins to run again.216
Sec. 3. How to appeal.
The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The
notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and
state the material dates showing the timeliness of the appeal.
A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party.
 The contents of the notice of appeal are the same as those required in the Regional Trial Court (Rule 41, Section 5)
Sec. 4. Perfection of appeal; effect thereof.
The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41.
C.f. R41, Sec. 9. Perfection of appeal; effect thereof.
A party’s appeal BY NOTICE OF APPEAL is deemed perfected as to him UPON THE FILING OF THE NOTICE
OF APPEAL in due time.
A party’s appeal by RECORD ON APPEAL is deemed perfected as to him with respect to the subject matter
thereof upon the APPROVAL OF THE RECORD ON APPEAL filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed
in due time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the
approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties.
216
See Carbonel v. Padilla, 75 Phil. 95 (1945)
129 of 202
In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders
for the protection and preservation of the rights of the parties which do not involve any matter litigated by the
appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow withdrawal of the appeal.
 The procedure for approval of the record on appeal is found in Rule 41, Section 7
Sec. 5. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final
order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be
transmitted to the appellate court together with the original record or the record on appeal, as the case may be.
 The non-payment of appellate court docket and other lawful fees within the reglementary period is ground for
dismissal of the appeal217
Sec. 6. Duty of the clerk of court.
Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court
shall transmit the original record or the record on appeal, together with the transcripts and exhibits, which he shall certify
as complete, to the proper Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall
be furnished the parties.
 The fifteen-day period is counted from the date the court loses jurisdiction in accordance with Rule 41, Section 9.
Sec. 7. Procedure in the Regional Trial Court.
(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify
the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party.
Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his memorandum. Failure
of the appellant to file a memorandum shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be
considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of
the proceedings had in the court of origin and such memoranda as are filed.
 Note that failure of the appellant to file a memorandum is a ground for the dismissal of the appeal.
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction.
If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case may be.
In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if
it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further proceedings.
217
Rule 41, §13, as amended by A.M. No. 00-2-10-SC.
130 of 202
If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the
preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of
justice.
 If the MTC grants a motion to dismiss on a ground other than lack of jurisdiction over the subject matter, the RTC, on
appeal, may affirm or reverse the order of dismissal. In case of reversal, the case shall be remanded for further
proceedings. In case of affirmation, an appeal may be taken to the CA or the SC. 218
 If the ground of dismissal by the MTC is lack of jurisdiction over the subject matter, the RTC on appeal has the duty
to try the case on the merits if it has original jurisdiction thereof. 219
 If the case is tried on the merits by the MTC without jurisdiction over the subject matter, the RTC on appeal shall not
dismiss the case if it has original jurisdiction thereof. It shall no longer try the case on the merits, but shall decide the case
on the basis of the evidence presented in the lower court, without prejudice to the admission of amended pleadings and
additional evidence in the interest of justice.220
Sec. 9. Applicability of Rule 41.
The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may
serve to supplement the provisions of this Rule.
BP 129, Sec. 22
Appellate jurisdiction. - Regional Trial Courts shall exercise appellate jurisdiction OVER ALL CASES decided by
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial
jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had in the court of origin
and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The
decision of the Regional Trial Courts in such cases shall be appealable by petition for review to the Intermediate Appellate
Court which may give it due course only when the petition shows prima facie that the lower court has committed an error
of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.
BP 129, Sec. 39
Appeals. - The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases
shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed
from:
Provided however, THAT IN HABEAS CORPUS CASES, THE PERIOD FOR APPEAL SHALL BE FORTY-EIGHT (48)
HOURS from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu thereof, the entire record shall be transmitted with all the
pages prominently numbered consecutively, together with as index of the contents thereof.
This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals are allowed
under applicable provisions of the Rules of Court.
Sec. 22 (c), Revised Rules on Summary Procedure

Applicability of the regular rules. — The regular procedure prescribed in the Rules of Court shall apply to the special
cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.
b) Appeal from RTC to CA
RULE 41
APPEAL FROM THE RTC’S
 Deals with appeals from RTC exercising original jurisdiction
218
Feria, Civil Procedure Annotated, Volume II (2001), p.147
219
Ibid.
220
Id.
131 of 202
Section 1. Subject of appeal.
An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter
therein when declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-
claims and third-party complaints, while the main case is pending, UNLESS THE COURT ALLOWS AN APPEAL
THEREFROM; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65.
 In all these cases which are not appealable, the remedy is a special civil action of certiorari or prohibition if there is
lack or excess of jurisdiction or grave abuse of discretion, or mandamus if there is non-performance of a legal duty.
 Order denying motion for new trial or reconsideration
- The ordinary remedy is an appeal from the judgment or order that disposes of the case. If no appeal is
taken, the judgment or order becomes final and executory.
- However, if the order of denial is issued without or in excess of jurisdiction or with grave abuse of
discretion, the extraordinary remedy of certiorari is proper, without prejudice to the appeal.221
 Interlocutory order
- An interlocutory order is not appealable. An order is interlocutory when it still leaves something to be done on
the matter by the trial court which issued the order. 222 The ban against appeals from interlocutory orders is
designed to avoid the evils of piecemeal or fragmentary review.223
- An order of default is interlocutory224
 Order disallowing or dismissing an appeal
- Mandamus is a remedy available against an erroneuous disallowance or dismissal of an appeal
- But if a party has been prevented from taking an appeal by fraud, accident, mistake or excusable negligence,
the remedy is a petition for relief under Rule 38, Section 2
 Order of execution
- An order of execution is not appealable except in 2 instances:
1) where the order of execution varies the terms of the judgment225
2) where the terms of the judgment are ambiguous and the aggrieved party believes that the order of execution
gives it the wrong interpretation226
 Separate judgment
- Note that a separate judgment would seem to be appealable independently of the main case. (See Rule 36,
Sec. 5). However, the Rules also provide that a severable judgment is not appealable while the main case is
pending unless the court allows an appeal therefrom. (See Rule 36, Sec. 5). Prof. Bautista points out that this is a
confounding self-contradiction.
 An appeal by one party does not inure to the benefit of his co-party unless the obligation of the non-appealing party
is dependent on that of the appealing party as in the case of solidary debtors.227
 An appeal by the third-party defendant does not of course inure to the benefit of the non-appealing defendant. 228
Sec. 2. Modes of appeal.
221
See Rule 37, §9
222
Bautista, Basic Civil Procedure (2003), p. 169.
223
Republic Natural Gas Co. v. Oklahoma et al., 334 U.S. 62, 92 L. Ed. 1212, 68 S. Ct. 972 (1948)
224
See Sitchon v. Sheriff of Occidental Negros, 80 Phil. 397, 398 (1948)
225
Paulino v. Court of Appeals, 230 SCRA 475 (1994)
226
Reas v. Bonife, 190 SCRA 493 (1990)
227
Universal Motors Corp. v. Court of Appeals, 205 SCRA 448 (1992).
228
Firestone Tire & Rubber Co. v. Tempongko, 27 SCRA 418 (1969)
132 of 202
(a) Ordinary appeal.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of
its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise
of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari.- In all cases where only questions of law are raised or involved, the appeal shall be to the
Supreme Court by petition for review on certiorari in accordance with Rule 45.
 Ordinary appeal – mode prescribed for appeals from judgments or final orders of the Municipal Trial Court to the
Regional Trial Court229 and from the judgments of the Regional Trial Court in the exercise of its original jurisdiction to the
Court of Appeals230
 If the issues to be raised on appeal from an RTC decision are factual and legal, the appeal is properly taken to the
Court of Appeals by Petition for Review. But if the issues to be raised are only legal, the appeal should be taken to the
Supreme Court by a petitioner for review on certiorari.231
 Ordinary appeal - aka appeal by writ of error because it must contain assignment of errors
 2 ways by which an ordinary appeal may be taken:
(1) notice of appeal
(2) record on appeal
 Appeal by record on appeal is the prescribed mode of appeal in special proceedings and in cases of multiple or
separate appeals. In all other cases, an ordinary appeal is by notice of appeal.
 The prescription that appeal in special proceedings and in cases of multiple or separate appeals should be by record
on appeal is based on practical considerations. Otherwise, if the appeal were by notice of appeal, the entire records would
have to be elevated and transmitted to the appellate court and thereby embarrassing the continuation of the proceedings
in the trial court in respect to the matters not involved on the appeal simply because there are no more records left with
it.232
 Aside from appeals in special proceedings and judgments on separate claims under Section 1(g) above, other
possible multiple or separate appeals where a record on appeal is required are:
(1) An appeal from an order of expropriation in an action of eminent domain233
(2) An appeal from an order of partition in an action of partition234
(3) A judgment for recovery of property with accounting235
(4) A judgment for or against one or more of several defendants, leaving the action to proceed against the others 236
Sec. 3. Period of ordinary appeal.
The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from
notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be allowed.
 Appeal from habeas corpus cases is 48 hrs from notice of judgment (BP 129 S39)
 The perfection of an appeal within the reglementary period is jurisdictional and the lapse of the appeal period
deprives the courts of jurisdiction to alter the final judgment237
 The Court may extend the period for filing a record on appeal provided that the motion for extension is filed before
expiration of the reglementary period.
229
Rule 40, Sec. 3.
230
Rule 41, Sec. 2(a).
231
Rule 41, Sec.2(c)
232
Bautista, Basic Civil Procedure (2003), p. 170-171
233
Rule 67, §4.
234
Rule 69, §2.
235
See Miranda v. Court of Appeals, 71 SCRA 295 (1976); De Guzman v. Court of Appeals, 74 SCRA 222 (1976).
236
See Rule 36, §4. See also Municipality of Binan v. Garcia, 180 SCRA 576 (1989).
237
See Galima et al. v. Court of Appeals et al., 16 SCRA 140 (1966)
133 of 202
 In an ordinary appeal by notice of appeal, where the only requirement to perfect the appeal is to file the notice of
appeal within the prescribed period, no extension of time to file such a notice of appeal is needed, much less allowed. 238
 No motion for extension of time to file a motion for new trial or reconsideration may be filed with the MTC, the RTC
and the CA. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested.239
 Remember: any motion for new trial or reconsideration which fails to satisfy the requirement of Rule 37 is pro forma;
hence, it does not interrupt the reglementary period of appeal.240
Sec. 4. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together with the original record or the record on appeal.
Sec. 5. Notice of appeal.
The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed
from, specify the court to which the appeal is being taken, and state the material dates showing the timeliness of the
appeal.
 Approval of trial court not required for notice of appeal, unlike in a record on appeal 241
 Under Interim Rules, an appeal bond is no longer required
 The filing of the record on appeal is equivalent to the filing of notice of appeal because the act of taking or perfecting
an appeal is more expressive of the intention to appeal than the filing of the notice to do so. 242
Sec. 6. Record on appeal; form and contents thereof.

The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and it shall
include the judgment or final order from which the appeal is taken and, in chronological order, copies of only such
pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the
proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time. If
an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and
documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit
numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the
names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a
statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding twenty (20) pages must contain a subject index.
 Record on appeal must comply with material data rule: it must contain the full name of all parties, and it must include
the judgment or final order from which the appeal is being taken, related pleadings, petitions, motions and interlocutory
orders.
 It is mandatory and jurisdictional that the record on appeal show that the appeal was perfected on time. Failure to
show on its face that the appeal was perfected within the reglementary period is a ground for the dismissal of the
appeal.243
Sec. 7. Approval of record on appeal.
Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from
receipt of a copy thereof, the trial court may approve it as presented or upon its own motion or at the instance of the
238
See Lacsamana v. Second Special Cases Division of the Intermediate Appellate Court, 143 SCRA 643 (1986)
239
Habaluyas Enterprises, Inc. v. Japson, 142 SCRA 208, 212 (1986).
240
See Rule 37, §2.
241
See Rule 41, §9.
242
See Lopez v. Lopez, 77 Phil. 133 (1946); Peralta v. Solon, 77 Phil. 610 (1946).
243
Rule 50, §1(a).
134 of 202
appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the
determination of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the record, the
appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the
order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological
sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the
redrafted record for approval, upon notice to the appellee, in like manner as the original draft.
 The record on appeal is not set for hearing. The appellee is merely given 5 days from receipt of a copy thereof to
make his objections.
Sec. 8. Joint record on appeal.

Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this Rule, or
that fixed by the court.
A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the time to appeal of the other parties.
In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal.
 In an appeal by notice of appeal, the court loses jurisdiction over the whole case upon the perfection of the appeals
taken by the parties who have appealed and the expiration of the time to appeal of the other parties. In an appeal by
record of appeal, the court loses jurisdiction over the subject matter thereof upon the approval of all the records on appeal
filed by the parties who have appealed and the expiration of the time to appeal of the other parties, and retains jurisdiction
over the remaining subject matter not covered by the appeal.
o NOTE: Perfection of appeal as to appellant ≠ loss of jurisdiction of TC
 BUT even after TC loses jurisdiction over case or subject matter, it still retains residual jurisdiction. Prior to the
transmittal of the original record or the record on appeal, the court may:
1) issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated
by the appeal,
2) approve compromises,
3) permit appeals of indigent litigants,
4) order execution pending appeal in accordance with section 2 of Rule 39, and
5) allow withdrawal of the appeal.
 Power to order discretionary execution- accdg to R39 S2, after TC loses jurisdiction, motion for execution pending
appeal should be filed with appellate court
Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal.
Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of
the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and to make a
certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be required to complete the records, availing of the
authority that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.

135 of 202
(e) If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not
included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps
taken or that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court.
 Sec. 11. Transcript.
Upon the perfection of the appeal, the clerk shall immediately direct the stenographers concerned to attach to the record
of the case five (5) copies of the transcripts of the testimonial evidence referred to in the record on appeal. The
stenographers concerned shall transcribe such testimonial evidence and shall prepare and affix to their transcripts an
index containing the names of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits
and the pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same in the order in which
the witnesses testified at the trial, and shall cause the pages to be numbered consecutively.
Sec. 12. Transmittal.

The clerk of the trial court shall transmit to the appellate court the original record or the approved record on appeal within
thirty (30) days from the perfection of the appeal, together with the proof of payment of the appellate court docket and
other lawful fees, a certified true copy of the minutes of the proceedings, the order of approval, the certificate of
correctness, the original documentary evidence referred to therein, and the original and three (3) copies of the transcripts.
Copies of the transcripts and certified true copies of the documentary evidence shall remain in the lower court for the
examination of the parties.
Sec. 13. Dismissal of appeal.
Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu proprio
or on motion dismiss the appeal for having been taken out of time.
 After the transmittal of the records, the dismissal may be made by the appellate court.244
GROUNDS FOR DISMISSAL OF AN APPEAL:
 Failure of appellant to file memorandum of appeal (Rule 40, Section 7b)

 Appeal filed out of time
 Non-payment of docket or other lawful fees within the reglementary period
 Unauthorized alteration, omission or addition in the approved record on appeal (Rule 44, Section 4)
 Non-compliance with requirements involving:
 Payment of docket and other lawful fees, deposit for costs (Rule 42, 43, 45);
 Proof of service of petition (Rule 42, 43, 45);
 Contents of and documents which should accompany petition (Rule 42, 43, 45)
RULE 42
PETITION FOR REVIEW FROM THE RTC’S TO THE CA
 Appeals to CA from RTC exercising appellate jurisdiction
Section 1. How appeal taken; time for filing.
A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction
may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the
corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial
Court and the adverse party with a copy of the petition.
244
Rule 50, §1.
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The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the
denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the
payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed
fifteen (15) days.
 The petitioner is given a new period of 15 days from notice of the denial of a motion for new trial or reconsideration
within which to file the petition.
 The lower courts or judges who rendered the decision appealed from are not impleaded in the petitioner for review.
The only parties in an appeal are the appellant as petitioner and the appellee as respondent.
 The petition for review may raise questions of fact or law or both questions of fact and law, similar to the petitioner for
review under Rule 43.
Sec. 2. Form and contents.
The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such
by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges
thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c)
set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the
appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both
lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof
and of the pleadings and other material portions of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced
any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or
any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within five (5) days therefrom.
Sec. 3. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and
other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for the dismissal thereof.
Sec. 4. Action on the petition.
The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10)
days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or
that the questions raised therein are too unsubstantial to require consideration.
Sec. 5. Contents of comment.
The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such
material portions of the record referred to therein together with other supporting papers and shall (a) state whether or not
he accepts the statement of matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he
believes exist in petitioner’s statement of matters involved but without repetition; and (c) state the reasons why the petition
should not be given due course. A copy thereof shall be served on the petitioner.
Sec. 6. Due course.
If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the
period for the filing thereof without such comment or pleading having been submitted, the Court of Appeals finds prima
facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed
decision, it may accordingly give due course to the petition.
Sec. 7. Elevation of record.
Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate
the original record of the case including the oral and documentary evidence within fifteen (15) days from notice.

a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner.
b) The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
c) However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for
the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of the appeal.
d) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final
order unless the Court of Appeals, the law, or these Rules shall provide otherwise.

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 General rule: Perfected appeal stays challenged judgment or order
EXCEPTIONS:
1) Judgments in forcible entry/ unlawful detainer cases, which are immediately executory (R70
S21, formerly in Rule on Summary Procedure)
2) Judgments in actions for injunction, receivership, accounting and support, and such other
judgments unless otherwise ordered by the trial court. (R39 S4)
3) Appeal to CA from CTA and quasi-judicial agencies, when the CA provides otherwise (R43 S12)
Sec. 9. Submission for decision.

If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit
memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the
filing of the last pleading or memorandum required by these Rules or by the court itself.
BP 129, Secs. 3 to 12
Sec. 3. Organization. - There is hereby created an Intermediate Appellate Court which shall consist of a Presiding
Appellate Justice and forty-nine Associate Appellate Justices who shall be appointed by the President of the Philippines.
The Presiding Appellate Justice shall be so designated in his appointment, and the Associate Appellate Justices shall
have precedence according to the dates of their respective appointments, or when the appointments of two or more of
them shall bear the same date, according to the order in which their appointments were issued by the President. Any
member who is reappointed to the Court after rendering service in any other position in the government shall retain the
precedence to which he was entitled under his original appointment, and his service in the Court shall, to all intents and
purposes, be considered as continuous and uninterrupted.
Sec. 4. Exercise of powers and functions. –
The Intermediate Appellate Court shall exercise its powers, functions, and duties, through ten (10) divisions, each
composed of five members. The court may sit en banc only for the purpose of exercising administrative, ceremonial, or
other non-adjudicatory functions.
Sec. 5. Succession to Office of Presiding Appellate Justice. –
In case of a vacancy in the Office of the Presiding Appellate Justice or in the event of his absence or inability to perform
the powers, functions, and duties of his office, the Associate Appellate Justice who is first in precedence shall perform his
powers, functions, and duties until such disability is removed, or another Presiding Appellate Justice is appointed and has
qualified.
Sec. 6. Who presides over sessions of a division. –
If the Presiding Appellate Justice is present in any session of a division of the Court, he shall preside.
In his absence, the Associate Appellate Justice attending such session who has precedence shall preside.
Sec. 7. Qualifications. –
The Presiding Appellate Justice and the Associate Appellate Justices shall have the same qualifications as those provided
in the Constitution for Justices of the Supreme Court.
Sec. 8. Grouping of divisions. –
Of the ten (10) divisions of the Court, four (4) divisions, to be known as Civil Cases Divisions, shall take cognizance of
appeals in civil cases originating from the Regional Trial Courts; two (2) divisions, to be known as Criminal Cases
Divisions, of appeals in criminal cases originating from the Regional Trial Courts; and four (4) divisions, to be known as
Special Cases Divisions, of original actions or petitions, petitions for review, and appeals in all other cases, including
those from administrative agencies, except as provided in Section 9 hereof.
Except with respect to the Presiding Appellate Justice, the appointment of a member of the Court shall specifically indicate
whether it is for the Civil Cases Divisions, the Criminal Cases Divisions, or the Special Cases Divisions of the Court. No
member of the Court appointed to any of three classes of divisions shall be assigned to any of the other classes of
divisions, except when authorized by the Supreme Court, upon recommendation of the Intermediate Appellate Court en
banc, if the exigencies of the service so require, but such transfer shall in no case be for more than six (6) months:
Provided, however, That this prohibition shall not apply if the transfer occurs by reason of a permanent vacancy in the
chairmanship of any division, in which case the Associate Appellate Justice who is next in precedence shall assume the
chairmanship.
There shall be no seniority or precedence in rank among the divisions of the Court.
Sec. 9. Jurisdiction. –
The Intermediate Appellate Court shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;
(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional
Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate
jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1)
of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.
The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform
any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction,
including the power to grant and conduct new trials or further proceedings.
These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and
by the Central Board of Assessment Appeals.

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Sec. 10. Place of holding sessions. –
The Intermediate Appellate Court shall have its permanent station in the City of Manila. Whenever demanded by public
interest, the Supreme Court, upon its own initiative or upon recommendation of the Presiding Appellate Justice, may
authorize a division of the Court to hold sessions outside Manila, periodically, or for such periods and at such places as
the Supreme Court may determine, for the purpose of hearing and deciding cases.
Sec. 11. Quorum. –
A majority of the actual members of the Court shall constitute a quorum for its session en banc. Three members shall
constitute a quorum for the sessions of a division. The affirmative votes of the majority of the members present shall be
necessary to pass a resolution of the Court en banc. The affirmative votes of three members of a division shall be
necessary for the pronouncement of a decision, or final resolution, which shall be reached in consultation before the
writing of the opinion by any member of the division.
A motion for reconsideration of its decision or final resolution shall be resolved by the Court within ninety (90) days from
the time it is submitted for resolution, and no second motion for reconsideration shall be entertained, unless the action
upon the first motion for reconsideration shall have resulted in a reversal or substantial modification of the original
decision or final resolution. The second motion for reconsideration shall be resolved by the Court within forty-five (45)
days from the time it is submitted for resolution.
Sec. 12. Internal Rules. –
The Court en banc is authorized to promulgate rules or orders governing the constitution of the divisions and the
assignment of Appellate Justices thereto, the distribution of cases, and other matters pertaining to the operations of the
Court or its divisions. Copies of such rules and orders shall be furnished the Supreme Court, which rules and orders shall
be effective fifteen (15) days after receipt thereof, unless directed otherwise by the Supreme Court.
CASES:
MAYOR V IAC (1988)

Ejectment suit filed vs Mayor. MeTC rendered decision in favor of defendant Mayor. Pending an MR by plaintiffs, they
died.
On appeal to RTC, MeTC was reversed. Mayor ordered to vacate lot. Decision received by Mayor on Aug 29,
1985.
Sept 13: Mayor filed MR. He received copy of denial of MR on Sept 30
Oct 1: Filed with IAC for extension to file petition for review. He was granted 15 days.
Oct 16: Mayor filed petition for review. IAC said 1 day too late and denied MR.
Held:
Mode of appeal to IAC is by petition for review because RTC acted in appellate jurisdiction. Or it can be by
petition for review on certiorari if to be filed with SC. If MR filed and denied by RTC, movant only has remaining period to
file petition for review. Hence, it’s necessary to file for extension.
Since MR filed on the 15 th day, he had until Oct 1 to perfect the appeal. When he asked for 15 days, this new
period does not include Oct 1. Hence, expiry date is Oct 16 and petition for review was filed on time.
MERINO v CA (1983)
Merino sued Alarcon to eject him. Merino (lessor) lost, so he appealed to the CFI, which upheld lessor. Lessee filed record
on appeal. Acoording to CFI, it inadvertently approved the record of appeal even if decision already became final and
executory so CFI took back its approval and ordered execution.
CA later set aside CFI’s disapproval. CA ruled in favor of lessee.
Held:
In cases falling under the exclusive original jurisdiction of municipal and city courts which are appealable to CFI,
the decision of CFI’s are final, provided that supported by substantial evidence. This applies to decisions, whether of
affirmance, reversal, or modification. Appeal by record on appeal fr CFI which was originally from MeTc or City Court not
allowed by RA 6031.
If case from MeTC or city court, should be petition for review to CA to discourage dilatory appeal.
 RA 6031 is now Rule 42 on petition for review fr RTC to Ca
DE LA CRUZ v PARAS (1976)

San Miguel (predecessor of de la Cruz) filed for partition before CFI for lot 4543. It was dismissed for lack of interest. 11
yrs later, he filed again for partition of lots 4543 and 3269. CFI dismissed case wrt 4543 for res judicata but ordered
partition of 3269.
De la Cruz appealed to CA and filed notice of appeal, appeal bond, and record on appeal. CFI approved record on appeal
but only wrt 3269. CA elevated petition to SC since involves only questions of law.
Held:
Only final judgments or orders are subj to appeal.
Test: Does it leave something to be done wrt merits of case or does it put an end to the particular matter
resolved?
Final judgment or order: Disposes of, adjudicates, or determines the rights, or some right or rights of the parties,
either on the entire controversy or on some definite and separate branch
Order of dismissal is final and appealable. It decided controversy wrt 4543. de la Cruz correct in bringing
appeal.
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It was also dismissal on the merits bec no indication that without prejudice or that it was because of lack of
jurisdiction.
REPUBLIC NATURAL GAS v STATE OF OKLAHOMA (1948)

Oklahoma regulates the extraction of natural gas. Peerless Oil claims that Republic Gas is draining away Peerless’ gas.
Corporate Commission ordered Republic to connect its oil wells with that of Peerless, under terms and conditions yet to
be specified, or to shut down its wells.
Held:
SC can review only after court renders final judgment or decree. There is no finality yet even if major issues
already decided but amount of damages not yet adjudicated.
But if only a ministerial act remains to be done, like entry of judgment, decree is regarded as concluding the
case and is immediately reviewable.
Exceptions: Court can review if losing party would be irreparably injured if review not granted.
Determination of terms of connection not yet final and is not a ministerial act as it requires the exercise of
discretion. There is no immediate threat of irreparable damage either. Since only one branch of the case has been
disposed of, order is not yet ripe for review. Appeal dismissed.
SWIFT & CO. PACKERS v COMPANIA COLOMBIANA DEL CARIBE (1950)

Compania sued for negligence as carrier. Vessel attached.
District Court vacated attachment.
Held:
Order vacating attachment was reviewable. Even if litigation not yet thru, can determine claims of rights
separable from, and collateral to rights asserted in the action which are too important to be denied review and too
independent of the cause to be deferred. Claim is fairly severable from larger litigious process. In this situation, rights of all
parties can be adequately protected while litigation on main claim proceeds.
FIRESTONE TIRE AND RUBBER CO. v TEMPONGKO (1969)

Tempongko, defendant, filed 3rd party complaint against Luna. Tempongko ordered to pay Firestone, and Luna ordered to
pay Tempongko. However, only Luna appealed. CFI granted new trial for Luna.
Held:
3rd party complaint is a device where a 3rd party, who is neither a party nor privy to the act or deed complained of
by the plaintiff, may be brought into the case with leave of court by defendant who acts as 3 rd party plaintiff. It is actually
independent and distinct from plaintiff’s complaint, but is permitted to avoid circuitry of action and unnecessary
proliferation of lawsuits.
Court in effect renders 2 judgments in the same case. Appeal vacates decision but only wrt the one appealing. If
one party did not appeal, decision as to him became final and executory. Therefore, appeal by one party does not benefit
the other.
UNIVERSAL MOTORS v CA (1992)

Universal sued Verendia and Galicia for not paying the balance on 2 trucks. Judgment rendered ex parte v defendants,
who both did not appear. Re-hearing granted on motion of Verendia. Court ordered all respondents to pay solidarily.
Appeal to CA, which held all defendants not liable.
Held:
Only questions of law can be raised on petition for review on certiorari.
Since it was solidary obligation, decision should apply to non-appealing defendant as well. Obligation of other
solidary debtors is dependent on that of co-debtor, and his release applies to non-appellants, provided that grounds not
personal to those who appealed.
ROMAN CATHOLIC ARCHBISHOP OF MANILA v CA (1996)

Lessee sued lessor (Archbishop) for adjustment of rentals and for Archbishop to sell land to lessee pursuant to his right of
pre-emption based on adjusted area of land. RTC dismissed 2 nd cause of action but allowed action on adjustment of
rentals. RTC then gave partial judgment and ordered lessee to pay rentals in arrears.
Lessees filed notice of appeal to CA. Archbishop says CA has no jurisdiction bec only questions of law involved.
Archbishop filed petition for review with SC.
Held:
Suit does not require multiple appeals because same cause of action as it arises from same lease ©.
Decisions of RTC may be reviewed directly by SC on petition for review only if pure questions of law are raised.
CA should dismiss appeal form RTC if it involves purely questions of law.
Question of law: where there is no need for examination of probative value of evidence
Since there were factual issues like if there was perfected © of sale, CA acted correctly in taking cognizance of
appeal.
C) APPEALS FROM SPECIALIZED TRIBUNALS / AGENCIES
RULE 43
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APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO THE CA
Section 1. Scope.
This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities
and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry
Arbitration Commission, and voluntary arbitrators authorized by law.
Sec. 2. Cases not covered.

This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines.
 Basis: last par. of BP 129, Section 9 as amended by RA No. 7902

 Judgments and final orders issued under the Labor Code may only be brought to the Supreme Court or to the
Court of Appeals. Under Circular A.M. No. 99-2-01-SC, they should be brought to the Court of Appeals.
 Other tribunals from which appeals can be taken directly to SC: COA and Comelec
Sec. 3. Where to appeal.

An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided,
whether the appeal involves questions of fact, of law, or mixed questions of fact and law.
Sec. 4. Period of appeal.
The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from
the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for
new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1)
motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee
before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15)
days only within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days.
Sec. 5. How appeal taken.
Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with
proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the
petition intended for the Court of Appeals shall be indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and
other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees
and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of the denial.
Sec. 6. Contents of the petition.
The petition for review shall (a) state the full names of the parties to the case, without impleading the court or agencies
either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved and the grounds
relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of the
award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of
the record referred to therein and other supporting papers; and (d) contain a sworn certification against forum shopping
as provided in the last paragraph of section 2, Rule 42. The petition shall state the specific material dates showing that
it was filed within the period fixed herein.
Sec. 7. Effect of failure to comply with requirements.
other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for the dismissal thereof.
Sec. 8. Action on the petition.
The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten
(10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to require consideration.
Sec. 9. Contents of comment.
The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly
legible certified true copies of such material portions of the record referred to therein together with other supporting
papers. The comment shall (a) point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and
(b) state the reasons why the petition should be denied or dismissed. A copy thereof shall be served on the petitioner,
and proof of such service shall be filed with the Court of Appeals.

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Sec. 10. Due course.
If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of
Appeals or upon the expiration of the period for the filing thereof, and on the basis of the petition or the records the
Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would
warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due
course to the petition; otherwise, it shall dismiss the same.
The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the
Court of Appeals.
 This is similar to Section 6 of Rule 42, except that the findings of fact of the lower court, commission, board, office
or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals.
Sec. 11. Transmittal of record.

Within fifteen (15) days from notice that the petition has been given due course, the Court of Appeals may require the
court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding
under review. The record to be transmitted may be abridged by agreement of all parties to the proceeding. The Court of
Appeals may require or permit subsequent correction of or addition to the record.
Sec. 12. Effect of appeal.
The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it may deem just.
Sec. 13. Submission for decision.
If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to
submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals.
RA 5434
AN ACT TO PROVIDE A UNIFORM PROCEDURE FOR APPEALS FROM THE COURT OF AGRARIAN RELATIONS,
THE SECRETARY OF LABOR UNDER SECTION 7 OF REPUBLIC ACT NUMBERED SIX HUNDRED TWO, ALSO
KNOWN AS "THE MINIMUM WAGE LAW", THE DEPARTMENT OF LABOR UNDER SECTION 23 OF REPUBLIC ACT
NUMBERED EIGHT HUNDRED SEVENTY-FIVE, ALSO KNOWN AS "THE INDUSTRIAL PEACE ACT", THE LAND
REGISTRATION COMMISSION, THE SECURITIES AND EXCHANGE COMMISSION, THE SOCIAL SECURITY
COMMISSION, THE CIVIL AERONAUTICS BOARD, THE PATENT OFFICE, AND THE AGRICULTURAL INVENTIONS
BOARD, AND FOR OTHER PURPOSES.
Sec. 1. Appeals from specified agencies. - Any provision of existing law or Rule of Court to the contrary
notwithstanding, parties aggrieved by a final ruling, award, order, decision, or judgment of the Court of Agrarian
Relations; the Secretary of Labor under Section 7 of Republic Act Numbered Six hundred and two, also known as the
"Minimum Wage Law"; the Department of Labor under Section 23 of Republic Act Numbered Eight hundred seventy-
five, also known as the "Industrial Peace Act"; the Land Registration Commission; the Securities and Exchange
Commission; the Social Security Commission; the Civil Aeronautics Board, the Patent Office and the Agricultural
Inventions Board, may appeal therefrom to the Court of Appeals, within the period and in the manner herein provided,
whether the appeal involves questions of fact, mixed questions of fact and law, or questions of law, or all three kinds of
questions. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to
the Supreme Court as provided in Rule 45 of the Rules of Court.
Sec. 2. Appeals to Court of Appeals. - Appeals to the Court of Appeals shall be filed within fifteen (15) days from
notice of the ruling, award, order, decision of judgment or from the date of its last publication, if publication is required
by law for its effectivity; or in case a motion for reconsideration is filed within that period of fifteen (15) days, then within
ten (10) days from notice or publication, when required by law, of the resolution denying the motion for reconsideration.
No more than one motion for reconsideration shall be allowed any party. If no appeal is filed within the periods here
fixed, the ruling, award, order, decision or judgment shall become final and may be executed as provided by existing
law. Sec. 3. How appeals taken. - Appeals shall be taken by filing a notice of appeal with the Court of Appeals
and with the court, officer, board, award, order, decision or judgment appealed from, serving a copy thereof on all other
interested parties. The notice of appeal shall state, under oath, the material dates to show that it was filed within the
period fixed in this Act.
Sec. 4. Docketing fee and deposits for costs. - Upon filing of the notice of appeal, the appellant shall pay to the
Clerk of the Court of Appeals the docketing fee fixed in Rule 141, Section 2 (a) of the Rules of Court and deposit the
sum of fifty pesos (P50.00) for costs, or in case the appellant be a laborer, employee, agricultural lessee, or tenant, a
motion setting forth said fact under oath, and praying that he be exempted from payment of docketing fee and the
deposit for costs. Copy of the motion shall be served on all interested parties. Should the court find said motion to be
well founded it shall grant the same; but if the Court denies the motion, the appellant shall pay the docketing fee and
make the deposit for costs within fifteen (15) days from notice of the denial. Failure to pay the docketing fee and make
the deposit for costs within the period here fixed shall be a ground to dismiss the appeal.
Sec. 5. Effect of appeal. - Appeal shall not stay the award, order, ruling, decision or judgment unless the officer or
body rendering the same or the court, on motion, after hearing, and on such terms as it may deem just, should provide
otherwise. The propriety of a stay granted by the officer or body rendering the award, order, ruling decision or judgment
may be raised only by motion in the main case.
Sec. 6. Elevation of Record. - Within five (5) days from the payment of the docket fee and deposit for costs, the
Clerk of the Court of Appeals shall notify the clerk of court, commission, board, or office concerned to forward the
142 of 202
record of the case. Within five (5) days from receipt of such notice, the latter shall comply by forwarding the whole
original record of the case or a certified true copy of the whole record to the Court of Appeals. Failure to elevate the
record within the period here fixed shall be dealt with as for contempt of Court.
Sec. 7. Appellate procedure; Briefs. - Until the Supreme Court shall provide otherwise by Rule of Court, appeals
shall proceed as provided by Rules 46 to 55 of the Rules of Court, insofar as applicable, with the following
modifications;
(a) The appellant's brief shall be served and filed within thirty (30) days from the date that he is notified that the
record has been received by the Court of Appeals, within the period above fixed, and shall contain, as an appendix, the
ruling, order, award, decision or judgment appealed from; the appellee's brief shall be served and filed within thirty (30)
days from receipt of the appellant's brief; and the appellant's reply brief, within fifteen (15) days from receipt of the
appellee's brief.
(b) The Court of Appeals may extend the periods above fixed only for good cause; and the total extension
granted any party shall not, except in meritorious cases, be greater than the original period above fixed.
(c) Where the appellant has been exempted from paying the docket fee or making the deposit for costs, or when
the appellee is an employee, laborer or tenant, he shall be allowed to file his briefs in typewritten or mimeographed
form.
Sec. 8. Repealing clause. - Section twelve of Republic Act Numbered One thousand two hundred and sixty-seven
as amended; Section seven of Republic Act Numbered Six hundred two, as amended; Section twenty-three of Republic
Act Numbered Eight hundred and seventy-five; Section thirty-six of Commonwealth Act Numbered Eighty-three, as
amended; Section five of Republic Act Numbered One thousand one hundred and sixty-one, as amended, Section four
of Republic Act Numbered One thousand one hundred fifty-one; Sections forty-eight and forty-nine of Republic Act
Numbered Seven hundred and seventy-six; Sections sixty-three, sixty-four and sixty-five of Republic Act Numbered
One hundred and sixty-five, as amended; Section two of Republic Act Numbered One thousand two hundred and
eighty-seven, Section thirty-three of Republic Act Numbered One hundred sixty-six, and all other portions of said Acts,
and all other laws, rules and regulations, or Rules of Court, or parts thereof, that are inconsistent with the provisions of
this Act, are hereby amended, repealed or modified to conform herewith.
Sec. 9. Effectivity. - This Act shall take effect upon its approval.
Table 35: Checklist of Appeals to Agencies245

NATIONAL TELECOMMUNICATIONS COMMISSION (NTC): MOTIONS FOR RECONSIDERATION AND REVIVAL OR
REOPENING OF CASES (REVISED RULES OF PRACTICE AND PROCEDURE BEFORE THE NATIONAL
TELECOMMUNICATIONS COMMISSION, January 5, 1993)
A. MOTION FOR REVIVAL OR REOPENING OF A CASE246
____ 1. File a motion to revive or reopen a case dismissed without prejudice in quintuplicate with the
Commission247
____ 2. The motion shall set forth the ruling or relief and state the grounds therefore248
____ 3. Be accompanied by affidavits or merit and such other documents, if any, as would substantially establish
the truth of the factual allegations contained therein249
____ 4. Contain the VERIFICATION prescribed in Section 4, Rule 7 of the 1997 Rules on Civil Procedure that: “the
affiant has read the pleading and that the allegations therein are true and correct of his personal
knowledge or based on authentic records”250
____ a. If appellant is a corporation, to be accompanied by proof of authority to sign for the
corporation, i.e. Board Resolution or By-Laws, or SEC certification
____ 5. Contain proof of service of copies of the motion and notice of hearing on all parties on record at least three
(3) days before the hearing thereof251
____ a. When service of notice is made by mail, registry receipts together with the affidavit of
mailing shall be submitted252
____ 6. The motion must be filed within ten (10) calendar days from receipt of the order dismissing the case 253
B. MOTION FOR RECONSIDERATION254
____ 1. File a motion for reconsideration in quintuplicate with the Commission 255
245
By Joane Trinidad of 4E
246
A motion for reopening of the proceeding may also be filed at any time after the presentation of evidence has been completed but before the presentation of
evidence has been completed but before promulgation of a decision, order or resolution, if during the period there should occur or arise transactions, events or
matters, whether factual or legal resulting in a changed situation of the parties. (Section 1, Rule 16, Revised Rules of Practice and Procedure before the NTC)
247
Section 13, Rule 14 and Section 1, Rule 3, Revised Rules of Practice and Procedure before the NTC
248
Section 1, Rule 4, Revised Rules of Practice and Procedure before the NTC
249
250
251
252
When service of notice is made by mail, the addressee is deemed to have received the notice within ten (10) days from date of mailing if the addressee resides
in Luzon, fifteen (15) days if the addressee resides in Visayas and Mindanao (Section 4, Rule 4, Revised Rules of Practice and Procedure before the NTC)
253
254
No more than one motion for reconsideration by each party shall be entertained, unless otherwise permitted by the Commission (Section 2, Rule 16, Revised
Rules of Practice and Procedure before the NTC)
143 of 202
____ 2. The motion shall set forth the ruling or relief and state the grounds therefore256
____ 3. Be accompanied by affidavits or merit and such other documents, if any, as would substantially establish
the truth of the factual allegations contained therein257
____ 5. Contain proof of service of copies of the motion and notice of hearing on all parties on record at least three
(3) days before the hearing thereof259
____ a. When service of notice is made by mail, registry receipts together with the affidavit of
mailing shall be submitted260
____ 6. The motion must be filed within fifteen (15) days from receipt of a copy of the decision, order or resolution
Any aggrieved party may appeal the order, decision or ruling of the Commission to the Court of
Appeals under Rule 43 of the 1997 Rules of Civil Procedure
SANDIGANBAYAN: APPEAL FROM FINAL JUDGMENTS, RESOLUTIONS OR ORDERS OF THE REGIONAL TRIAL
COURTS IN CASES ORIGINALLY DECIDED261 (REVISED RULES OF THE SANDIGANBAYAN)
A. NOTICE OF APPEAL262
____ 1. File a notice of appeal with the Clerk of the Regional Trial Court which rendered the decision
____ 2. The notice shall contain the names of the parties to the appeal, the title of the case shall be further referred
to as the appellant and the adverse party as the appellee
____ 3. Contain the specific judgment or final order or part thereof appealed from;
____ 4. Contain the material dates showing the timeliness of the appeal, i.e. when the notice of judgment or final
notice thereof was received; orwhen a motion for new trial or reconsideration was filed, if any, and when
the notice of the denial thereof was received.
____ 5. Accompanied with proof of service of a copy on the prosecutor and on the Regional Trial Court in
accordance with Section 13, Rule 13 of the 1997 Rules of Civil Procedure
____ a. A resort to other modes other than personal service must be accompanied by a written
explanation why service was not done personally in accordance with Section 11, Rule 13
____ 6. The appeal must be taken within fifteen (15) days from notice of decision, decision sought to be reviewed,
or denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment
B. RECORD ON APPEAL263
____ 1. File a record on appeal with the Office of the Clerk of Court of the Sandiganbayan 264
____ 2. The record shall include the entire original record with all the pages prominently numbered consecutively 265
____ 3. The index of the contents thereof266
____ 4. Certified copy of the minutes of the proceedings267
____ 5. Certified copy of the decision of the trial court268
____ 6. Legible copies of the transcripts of the oral evidence prepared and arranged in accordance with Section 12
of Rule 41269 (now Section 11, Rule 41) of the Rules of Court duly certified by the stenographer concerned
and initialed by him on each and every page thereof270
____ 7. The list of documentary or real evidence arranged in alphabetical or numerical order, classified as to
whether presented as evidence in chief, in rebuttal, or surrebuttal, with the said evidence attached thereto
or a specific indication of where the same may be found in the record271
255
Section 2, Rule 16 and Section 1, Rule 3, Revised Rules of Practice and Procedure before the NTC
256
257
258
259
260
When service of notice is made by mail, the addressee is deemed to have received the notice within ten (10) days from date of mailing if the addressee resides
in Luzon, fifteen (15) days if the addressee resides in Visayas and Mindanao (Section 4, Rule 4, Revised Rules of Practice and Procedure before the NTC)
261
Section 4, PD No. 1606 as amended by R.A. 8249. The procedure prescribed in BP 129, as well as the implementing rules that the Supreme Court may
promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions or review filed with the Sandiganbayan.
Section 7, PD No. 1606 as amended by R.A. 8249. Decisions and final orders of other courts shall be appealable to the Sandiganbayan in the manner provided by
Rule 122 of the Rules of Court
262
Rule 41, 1997 Rules of Civil Procedure
263
Section 2(a), Rule 41, 1997 Rules of Civil Procedure. No record on appeal shall be required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so required.
264
Section 2(a), Rule IX, Revised Rules of the Sandiganbayan
265
266
267
268
269
It shall be arranged in the order in which the witnesses testified at the trial (Section 11, Rule 41, 1997 Revised Rules of Civil Procedure)
270
144 of 202
____ 9. The appeal must be taken within thirty (30) days from notice of decision, decision sought to be reviewed,
or denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment272
C. MOTION FOR NEW TRIAL OR RECONSIDERATION 273
____ 1. File a motion for new trial or reconsideration with the Clerk of Court of the Sandiganbayan
____ 2. The motion shall state the grounds on which it is based274
____ 3. If based on a newly-discovered evidence, the motion shall be supported by affidavits of witnesses by
whom such evidence is expected to be given or by duly authenticated copies of the documents which are
proposed to be introduced in evidence
____ 4. Contain proof of service of notice of the motion on the prosecutor and on the Regional Trial Court in
____ 5. The motion must be filed within fifteen (15) days from the promulgation or notice of a judgment or final
order
Any aggrieved party may appeal the final order, decision or ruling of the Sandiganbayan to the Supreme Court under
Rule 45 of the 1997 Rules of Civil Procedure
SANDIGANBAYAN: PETITION FOR REVIEW FROM THE FINAL JUDGMENTS, RESOLUTIONS OR ORDERS OF THE
REGIONAL TRIAL COURT TO THE SANDIGANBAYAN 275 (REVISED RULES OF SANDIGANBAYAN)
A. PETITION276
____ 1. File a verified petition for review in six (6) copies with the Clerk of Court of the Sandiganbayan
____ 2. The petition shall contain a concise statement of the matters involved
____ 3. Contain the grounds and arguments relied upon, specifically pointing out why the decision in question is
not supported by substantial evidence and/or is clearly against he law and jurisprudence
____ 4. Accompanied by a certified true copy of decision or judgment sought to be reviewed
____ 5. Contain the VERIFICATION prescribed in Section 4, Rule 7 that: “the affiant has read the pleading and that
the allegations therein are true and correct of his personal knowledge or based on authentic records”
____ a. If petitioner is a corporation, to be accompanied by proof of authority to sign for the
____ 6. Accompanied by copies of such material portions of the record as would support the allegations of the
petition
____ 8. The petition must be filed within fifteen (15) days from notice of the decision sought to be reviewed, or
denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment
B. MOTION FOR NEW TRIAL OR RECONSIDERATION 277
____ 1. File a motion for new trial or reconsideration with the Clerk of Court of the Sandiganbayan
____ 2. The motion shall state the grounds on which it is based278
____ 3. If based on a newly-discovered evidence, the motion shall be supported by affidavits of witnesses by
whom such evidence is expected to be given or by duly authenticated copies of the documents which are
proposed to be introduced in evidence
____ 4. Contain proof of service of notice of the motion on the prosecutor and on the Regional Trial Court in
271
272
as per Sandiganbayan phone inquiry
273
It shall be filed upon the ground, in the form and subject to the requirements, for motions for new trial in criminal cases under Rule 121 of the Rules of Court
(Rule VIII, Revised Rules of the Sandiganbayan
274
Section 2, Rule 121, Rules of Court. The court shall grant a new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial
(b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the
trial and which if introduced and admitted would probably change the judgment
Section 4, Rule 121. The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings.
275
Section 4, PD No. 1606 as amended by R.A. 8249. The procedure prescribed in BP 129, as well as the implementing rules that the Supreme Court may
promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions or review filed with the Sandiganbayan.
Section 7, PD No. 1606 as amended by R.A. 8249. Decisions and final orders of other courts shall be reviewable by the Sandiganbayan in the manner provided by
Rule 122 of the Rules of Court
276
Section 2(b), Rule 9, Revised Rules of the Sandiganbayan
277
It shall be filed upon the ground, in the form and subject to the requirements, for motions for new trial in criminal cases under Rule 121 of the Rules of Court
(Rule VIII, Revised Rules of the Sandiganbayan
278
Section 2, Rule 121, Rules of Court. The court shall grant a new trial on any of the following grounds:
(c) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial
(d) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the
trial and which if introduced and admitted would probably change the judgment
Section 4, Rule 121. The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings.
145 of 202
____ 5. The motion must be filed within fifteen (15) days from the promulgation or notice of a judgment or final
order
NATIONAL LABOR RELATIONS COMMISSION: APPEALS FROM DECISIONS, RESOLUTIONS OR ORDERS OF

THE LABOR ARBITER OR THE REGIONAL DIRECTOR TO THE NATIONAL LABOR RELATIONS COMMISSION 279
(RULES OF PROCEDURE OF THE NATIONAL LABOR RELATIONS COMMISSION, as amended by Resolution No.
01-02, Series of 2002)
C. APPEAL280
____ 7. File a verified notice of appeal with the respective Regional Arbitration Branch or the Regional Office where
the case was heard and decided281
knowledge or based on authentic records” to be signed by the appellant himself282
____ 9. Accompanied by a memorandum of appeal in three (3) legibly typewritten copies. The memorandum shall
state283:
____ a. The grounds relied upon and the arguments in support thereof
____ b. The relief prayed for
____ c. A statement of the date when the appellant received the appealed decision, resolution or
order
____ 10. Accompanied by the official receipt of payment of the appeal fee of P150.00 paid to the Regional
Arbitration Branch or Regional Office284
____ 11. Accompanied by proof of posting a cash or surety bond in an amount equivalent to the monetary award,
exclusive of damages and attorney’s fees in case the decision appealed from involves a monetary award 285
In case of surety bond, it shall be issued by a reputable bonding company duly accredited by the
Commission or the Supreme Court
____ a. Accompanied by the SEC registration of the bonding company286
____ b. Accompanied by the latest financial statement of the bonding company287
____ c. Accompanied by a joint declaration under oath by the employer, his counsel, and the
bonding company, attesting that the bond posted is genuine, and shall be in effect until final
disposition of the cases
____ d. Accompanied by a copy of the indemnity agreement between the employer-appellant and
bonding company
____ e. Accompanied by a copy of the security deposit or collateral securing the bond
____ f. A certified true copy of the bond shall be furnished by the appellant to the appellee who
shall verify the regularity and genuineness thereof and immediately report to the
Commission any irregularity288
____ g. A motion to reduce bond shall be entertained on meritorious grounds and upon posting of a
bond in a reasonable amount in relation to the monetary award
____ 12. Contain a certificate of non-forum shopping 289
279
The same requirement applies for appeals from decisions or orders of the other officers or agencies appealable to the Commission according to law (Secion
12, Rule VI, NLRC Rules of Procedure)
280
The appeal may be entertained only on any of the following grounds:
a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director,
b) If the decision, resolution or order was secured through fraud or coercion, including graft and corruption,
c) If made purely on questions of law, and/or
d) If serious errors in the findings of facts are raise which, if not corrected, would cause grave or irreparable damage or injury to the appellant (Section
2, Rule VI, NLRC Rules of Procedure)
281
Section 4(a), Rule VI, NLRC Rules of Procedure
282
283
284
Section 5, Rule VI, NLRC Rules of Procedure
285
Section 6, Rule VI, NLRC Rules of Procedure
286
as per inquiry from NLRC office
287
as per inquiry from NLRC office
288
The Commission shall cause the immediate dismissal of the appeal upon verification that the bond is irregular or not genuine
289
Section 4 (a), Rule VI, NLRC Rules of Procedure
146 of 202
____ a.
If appellant is a corporation, to be accompanied by proof of authority to sign for the
corporation, i.e. Board Resolution or By-Laws
____ 13. Contain proof of service of a copy of the appeal on the other party in accordance with Section 7, Rule III of
the NLRC Rules of Procedure290
____ 14. The petition must be filed within ten (10) calendar days from receipt of the decision, resolution, or order of
the Labor Arbiter or within five (5) calendar days in case of a decision of the Regional Director 291
D. MOTION FOR RECONSIDERATION292
____ 1. The motion for reconsideration must be filed within a period of ten (10) calendar days from receipt of the
decision/resolution/order293
knowledge or based on authentic records” to be signed by the appellant himself294
____ 3. Contain proof of service of a copy of the motion on the adverse party in accordance with Section 7, Rule III
of the NLRC Rules of Procedure295
Any aggrieved party may appeal the order, decision or ruling of the Commission to the Court of
Appeals under Rule 65 of the 1997 Rules of Civil Procedure296
APPEAL TO THE BUREAU OF LABOR RELATIONS OR THE OFFICE OF THE SECRETARY FROM A DECISION OF
THE REGIONAL OFFICE OF THE DEPARTMENT OF LABOR AND EMPLOYMENT OR OF THE BUREAU OF
LABOR RELATIONS (DEPARTMENT ORDER NO. 40-03)
D. APPEAL
____ 7. File a verified memorandum of appeal with the office that issued the order
____ a. From an order denying the application for registration of labor organizations, or an order
returning the notice of change of name, affiliation, merger or consolidation, the
memorandum shall be filed with the Regional Office to be appealed to the Bureau of Labor
Relations (Bureau) or with the Bureau to be appealed to the Office of the Secretary in
accordance with Section 7, Rule IV of Department Order No. 40-03
____ b. From an order granting, dismissing or denying the petition for certification election in an
ORGANIZED establishment, the memorandum shall be filed with the Regional office where
the petition was originated to be appealed to the Office of the Secretary in accordance with
Sections 17 and 18, Rule VIII of Department Order No. 40-03
____ c. From a decision involving intra/inter-union disputes, election of officers of labor unions and
workers associations, and conduct of audit of labor organizations, the memorandum shall
be filed with the Regional Office to be appealed to the Bureau or with the Bureau to be
appealed to the Office of the Secretary, as the case may be, in accordance with Sections
16 and 17, Rule XI of Department Order No. 40-03
____ d. From an order denying the registration of collective bargaining agreement, the
memorandum shall be filed with the Regional Office to be appealed to the Bureau or with
the Bureau to be appealed to the Office of the Secretary, as the case may be, in
accordance with Section 5, Rule XVII of Department Order No. 40-03
____ 8. The memorandum shall specifically state the grounds relied upon with the supporting arguments and
evidence
____ 9. Accompanied by the VERIFICATION in Section 4, Rule 7 of the 1997 Rules of Civil Procedure that: “the
knowledge or based on authentic records”
____ a. If appellant is a legitimate labor organization, to be accompanied by proof of authority to
sign for the organization, i.e. Board Resolution or By-Laws
____ 10. Contain proof of service of the copy of the memorandum of appeal upon the opposing party, i.e. the
contending unions and/or the employer, as the case may be297
290
Section 4 (a), Rule VI, NLRC Rules of Procedure
291
If the 10th or the 5th day falls on a Saturday, Sunday or a holiday, the last day to perfect the appeal shall be the next working day (Section 1, Rule VI, NLRC
Rules of Procedure)
NOTE: No motion or request for extension of the period within which to perfect an appeal shall be allowed (Section 7, Rule VI, NLRC Rules of Procedure)
292
Motion for reconsideration of any decision/resolution/order of the Commission shall not be entertained except when based on palpable or patent errors. Only
one such motion from the same party shall be entertained. (Section 15, Rule VII, NLRC Rules of Procedure)
293
Section 15, Rule VII, NLRC Rules of Procedure
294
295
296
St. Martin Funeral Homes vs. NLRC, 295 SCRA 494 (1998)
297
No proof of service is required for appeals from an order denying the application for registration of a labor organization, an order returning the notice of change
of name, affiliation, merger or consolidation and an order denying the registration of a collective bargaining agreement
147 of 202
The appeal must be taken within ten (10) days from notice of the order.
DEPARTMENT OF AGRARIAN REFORM ADJUDICATION BOARD (DARAB): APPEAL FROM A RESOLUTION,

DECISION OR FINAL ORDER OF THE ADJUDICATOR TO THE DARAB (DARAB 2003 RULES OF PROCEDURE
C. APPEAL298
____ 1. File a notice of appeal in three (3) legible copies with the Adjudicator who rendered the decision or final
order appealed from299
____ 2. The notice of appeal shall indicate the parties to the appeal300
____ 3. Specify the judgment or final order appealed from301
____ 4. State the material dates showing the timeliness of the appeal 302, i.e. when resolution/decision/final order
was received, when a motion for reconsideration, if any, was filed, and when notice of the denial thereof
was received
____ 5. Accompanied by a certification and verification on related cases (certification against forum shopping) in
accordance with Section 2, Rule IV of DARAB 2003 Rules of Procedure303
corporation, i.e. Board Resolution or By-Laws or SEC certification
____ 6. Contain proof of service of the notice of appeal to the affected parties and to the Board in accordance with
Rule VI of the DARAB 2003 Rules of Procedure304
____ 7. Payment of appeal fee of P700.00 to the DAR Cashier where the Office of the Adjudicator is situated or
through postal money order, payable to the DAR Cashier where the Office of the Adjudicator is situated, at
the option of the appellant305
____ 8. The notice of appeal must be filed within fifteen (15) days from receipt of the resolution/decision/final order
appealed from or of the denial of the movant’s motion for reconsideration306
____ 1. The motion for reconsideration must be field within fifteen (15) days from receipt of a copy of the
decision/resolution/order of the Board308
____ 2. The motion shall state the relief sought and the grounds upon which it is based309
____ 3. Accompanied by supporting affidavits and documents, if necessary310
____ 4. Accompanied by proof of service of the motion together with copies of supporting affidavits or documents
to the adverse parties in accordance with Rule VI of the DARAB 2003 Rules of Procedure 311
298
Grounds for appeal:
a. That errors in the findings of fact or conclusions of law were committed which if not corrected, would cause grave and irreparable damage or injury to
the appellant; or
b. That the order, resolution or decision was obtained through fraud or coercion
299
Section 3.1, Rule XIV, DARAB 2003 Rules of Procedure
300
301
302
303
304
305
NOTE: Payment of appeal fee is not required if appellant is a pauper litigant as provided for in Section 2, Rule V of DARAB 2003 Rules of Procedure
306
Section 1, Rule XIV, DARAB 2003 Rules of Procedure
NOTE: A motion for extension of time to file an appeal, motion for reconsideration or memorandum is one of the motions not allowed in the NLRC (Section 7.3,
Rule XI, DARAB 2003 Rules of Procedure)
307
Only one motion for reconsideration by either party shall be allowed and entertained (Section 14, Rule XIV, DARAB 2003 Rules of Procedure)
308
Section 12, Rule X, DARAB 2003 Rules of Procedure
309
Section 3, Rule XI, DARAB 2003 Rules of Procedure
310
311
148 of 202
Any aggrieved party may appeal the final order, decision or ruling of the Board to the Court of Appeals
under Rule 43 of the 1997 Rules of Civil Procedure
AGRARIAN REFORM ADJUDICATORS: PETITION FOR RELIEF FROM A DECISION, RESOLUTION OR FINAL
ORDER OF THE ADJUDICATOR TO THE ADJUDICATOR WHO RENDERED THE DECISION (DARAB 2003 RULES
OF PROCEDURE)
A. PETITION FOR RELIEF312
____ 1. File a verified petition for relief with the Adjudicator who rendered the decision or final order 313
____ 2. Indicate the decision/resolution/ final order to be set aside314
____ 3. Accompanied by affidavits and supporting documents showing the fraud, accident, mistake or excusable
negligence and relied upon315
____ 5. Accompanied by proof of service of the petition with its annexes and supporting affidavits, if any, to the
adverse parties in accordance with Rule VI of the DARAB 2003 Rules of Procedure 317
____ 5. The petition must be filed within sixty (60) days from the time the fraud, accident, mistake or excusable
negligence was discovered and within six (6) months after the decision/resolution/final order was
rendered318
Any aggrieved party may appeal the denial of the petition for relief to the Department of Agrarian
Reform Adjudication Board319
COURT OF TAX APPEALS: PETITION FOR REVIEW FROM THE COLLECTOR OF INTERNAL REVENUE,
COMMISSIONER OF CUSTOMS, OR THE PROVINCIAL OR CITY BOARD OF ASSESSMENT OF APPEALS TO THE
COURT OF TAX APPEALS (RULES OF THE COURT OF TAX APPEALS, September 10, 1955)
A. PETITION FOR REVIEW
____ 1. File a petition for review with the Court of Tax Appeals, with six (6) signed and confirmed copies in addition
to the signed original petition320
____ 2. The aggrieved party shall be called the “Petitioner” and the Collector of Internal Revenue, the
Commissioner of Customs, or the provincial or city Board of Assessment Appeals shall be called the
“Respondent”321
____ 3. The petition shall contain allegations showing jurisdiction of the Court322
____ 4. Contain a concise statement of the ultimate facts 323
____ 5. Contain a summary statement of the issue involved in the case324
____ 6. Contain the reasons relied upon for the reversal of the respondent’s decision 325
____ 7. Accompanied by a copy of the decision appealed from326
____ 8. Accompanied by proof of payment of the docketing fees327
____ 9. The petition must be filed within thirty (30) days from receipt of the decision or ruling 328
312
When a decision/resolution/final order is rendered by the Adjudicator against any party, through fraud, accident, mistake and excusable negligence and such
party has no other adequate remedy available to him in the ordinary course of law
313
Section 1, Rule XVI, DARAB 2003 Rules of Procedure
314
315
316
317
318
NOTE: A motion for extension of time to file an appeal, motion for reconsideration or memorandum is one of the motions not allowed in the NLRC (Section 7.3,
Rule XI, DARAB 2003 Rules of Procedure)
319
The Board shall give due course to the appeal as if a timely and proper appeal has been made from the questioned order (Section 4, Rule XVI, DARAB 2003
Rules of Procedure)
320
Section 5, Rule 4 and Section 1, Rule 5, Rules of the Court of Tax Appeals
321
Section 1, Rule 5, Rules of the Court of Tax Appeals
322
323
324
325
326
327
Section 2, Rule 5, Rules of the Court of Tax Appeals. Refer to Section 1, Rule 16, Rules of the Court of Tax Appeals for the appropriate docket fees
NOTE: Attachment of the Proof of Service is not required because the Clerk of the Court of Tax Appeals shall issue the necessary Summons to the respondent
(Section 3, Rule 5, Rules of the Court of Tax Appeals
328
Section 11, R.A. No. 1125
149 of 202
B. MOTION FOR EXTENSION329
____ 1. The motion for extension of time to file petition for review must be filed before the expiration of the
reglementary period330
____ 2. File the motion with the Court of Tax Appeals, with six (6) signed and confirmed copies in addition to the
signed original motion331
____ 3. Accompanied by pertinent supporting papers332
____ 4. Service of a copy of the motion on all parties concerned at least three (3) days before the hearing
thereof333
C. MOTION FOR SUSPENSION OF COLLECTION OF TAX334
____ 1. File a motion for suspension of the collection of the tax together with the Petition for Review, or in a
separate motion at any stage of the proceeding, with the Court of Tax Appeals335
____ 2. The motion shall state clearly and distinctly the facts and the grounds relied upon by the movant in support
of the suspension336
____ 4. Service of a copy of the motion on all parties concerned at least three (3) days before the hearing thereof,
if motion for suspension is filed in a separate motion338
____ 1. File a motion for reconsideration with the Court of Tax Appeals within fifteen (15) days from receipt of
notice of order or resolution340
____ 2. The motion shall embody all the arguments in support thereof341
____ 3. Service of a copy of the motion on all parties concerned at least three (3) days before the hearing
thereof342
Any aggrieved party may appeal the order, decision or ruling of the Court of Tax Appeals under Rule
43 of the 1997 Rules of Civil Procedure
(d) APPEALS TO THE SUPREME COURT
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
Section 1. Filing of petition with Supreme Court.
A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court
a verified petition for review on certiorari.
The petition shall raise only questions of law which must be distinctly set forth.
 Remember: appeal from RTC by certiorari to SC presupposes RTC acted in its original jurisdiction.
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Motions for extension of time to file pleadings will not be granted unless for good cause duly shown (Section 1, Rule 9, Rules of the Court of Tax Appeals)
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Where, pursuant to the provisions of Section 11 of R.A. No. 1125, the collection by the Bureau of Internal Revenue or the Commissioner of Customs of the
amount of taxpayer’s liability – whether such collection be sought by means of a demand for payment or by levy, distraint and/or sale of any property of the
taxpayer, as provided by existing law – may jeopardize the interest of the Government and/or the taxpayer (Section 1, Rule 12, Rules of the Court of Tax Appeals)
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Motion for new trial shall be governed by Rule 37 of the 1997 Rules of Civil Procedure (Section 5, Rule 13, Rules of the Court of Tax Appeals)
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 If RTC acted in its in appellate jurisdiction under R42 and R43, the remedy is a petition for review to the CA, even if
only questions of law are involved
 In appeals by certiorari, the Supreme Court takes cognizance only of questions of law. However, when the Supreme
Court believes that there are factual issues which must be resolved in an appeal by certiorari from the RTC, it may, in the
exercise of its discretion and considering attendant circumstances, either itself take cognizance of and decide such issues
or refer them to the CA for determination343
 Certiorari as a mode of appeal (Rule 45) vs. Certiorari as a special civil action (Rule 65)344:
- In certiorari as a mode of appeal (Rule 45), the appellate or superior court can only review questions or errors of
law decided or committed by the lower court. The parties are the same, the appellant being the petitioner and the
appellee, the respondent.
- In certiorari as a special civil action (Rule 65), the superior court can only review the acts of the inferior court, boar
or officer exercising judicial functions when the respondent acted without or in excess of its or his jurisdiction or with grave
abuse of discretion, in order to annul or modify the acts complained of. Errors committed by the respondent court cannot
be reviewed and corrected. The court cannot reverse the inferior court’s decision and render a contrary one, but can only
annul or modify the act complained of and all the proceedings flowing therefrom.
 Questions of law vs. Questions of fact
- There is a question of law when the doubt or difference of opinion arises as to what is the law on a certain state of
facts.
There is a question of fact when the doubt or difference arises as to the truth or the falsehood of the alleged facts.
 Where the issue is the construction or interpretation to be placed by the Court of Appeals upon documentary
evidence, or where a case is submitted upon an agreed statement of facts, or where all the facts are stated in the
judgment, and the issue is the correctness of the conclusion drawn therefrom, the question is one of law which may be
reviewed by the Supreme Court.345
Sec. 2. Time for filing; extension.
The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or
of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. On
motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the
expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days
only within which to file the petition.
Sec. 3. Docket and other lawful fees; proof of service of petition.
Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of
court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of
service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the
petition.
Sec. 4. Contents of petition.
The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by
the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as
respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the
material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a
motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth
concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d)
be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution
certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material
portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42.
Sec. 5. Dismissal or denial of petition.

other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.
 The subsequent compliance with the foregoing requirements will not warrant reconsideration of the order of
dismissal unless it be shown that such noncompliance was due to compelling reasons.346
 The dismissal of the petition for review on certiorari under this rule renders the judgment or final order appealed from
final and executory.
Sec. 6. Review discretionary.
343
See Circular 2-90, 4(b) (1990); Rule 56§6.
344
Feria, Civil Procedure Annotated, Volume II (2001), p.204.
345
Ny Young v. Villa et al., 93 Phil. 21, 25-26 (1953).
346
Circular No. 1-81 as amended. See Revised Circular No. 1-88 (1991).
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A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and
important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the
character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or
has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.
Sec. 7. Pleadings and documents that may be required; sanctions.
For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or
where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such
pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as
it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such
pleadings and documents or non-compliance with the conditions therefor.
Sec. 8. Due course; elevation of records.
If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or
specified parts thereof within fifteen (15) days from notice.
Sec. 9. Rule applicable to both civil and criminal cases.
The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases
where the penalty imposed is death, reclusion perpetua or life imprisonment.
 In criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, the mode of appeal to
the Supreme Court from the RTC is by filing a notice of appeal. The appeal may raise both questions of fact and law.
- This mode of appeal is also applicable to criminal cases where a lesser penalty is imposed but involving
offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious
offense.347
RA 5440, Sec. 3
The Supreme Court shall provide by rule for the procedure governing petitions for writs of CERTIORARI TO REVIEW
JUDGMENTS mentioned in Section seventeen of Republic Act Numbered Two hundred ninety-six, as amended by this
Act and the effect of the filing thereof on the judgment of or decree sought to be reviewed. Until the Supreme Court
provides otherwise, said petitions shall be filed within the period fixed in the rules of court for appeals in criminal or civil
cases or special civil actions or special proceedings, depending upon the nature of the case in which the judgment or
decree sought to be reviewed, was rendered; the filing of said petition shall stay the execution of the judgment sought to
be reviewed; and the aforesaid petitions shall be filed and served in the form required for petitions for review by certiorari
of decisions of the Court of Appeals.
Art. VIII, 1987 Constitution
The Supreme Court shall have the following powers:
x x x
Sec. 5 (2), Review, revise, modify, or affirm on appeal on certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(e) All cases in which only an error or question of law is involved.
GAMIAO v PLAN (1982)

Gamiao filed complaint for reconveyance. CFI dismissed case motu propio without a pre-trial. Gamiao filed with SC for
petition for certiorari to review order. Respondents filed for dismissal of petition with SC on ground that dismissal was error
of judgment, which should be reviewed by appeal only.
Held:
Petition was pursuant to RA 5440, and filed within reglementary 30 days. Relief granted because pre-trial
mandatory. Judge ordered to conduct pre-trial.
CEBU STEVEDORING v RAMOLETE (1981)

If appeal from CFI to SC on pure question of law, no need to file record on appeal with CFI, because it will in
due course be elevated to SC. Governing law is RA 5440 where filing petition for review on certiorari is same as appeal
from CA to SC under R45. Under R45. file petition for review on certiorari with SC.
Filing record on appeal with CFI is good only for regular appeals from CFI to CA, and is governed by R41.
b.) Procedure in the CA and in the Supreme Court

*NOTE: Rules 44 to 55 are under “Procedure in the CA”
RULE 44
ORDINARY APPEALED CASES
347
See Rule 122, §3(c).
152 of 202
Section 1. Title of cases.
In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of
origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee.
Sec. 2. Counsel and guardians.
The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel
and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served
immediately on the adverse party and filed with the court.
Sec. 3. Order of transmittal of record.
If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the
perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of
such record or record on appeal.
 The appeal may no longer be dismissed for failure of the appellant to prosecute his appeal under this rule. This
ground for dismissal of appeal has been deleted from Rule 50, Section 1.348
Sec. 4. Docketing of case.
Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by
the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of
Appeals shall docket the case and notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of
court seven (7) clearly legible copies of the approved record on appeal, together with the proof of service of two (2) copies
thereof upon the appellee.
Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for dismissal of the
appeal.
Sec. 5. Completion of record.
Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform said court
and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate
action towards the completion of the record within the shortest possible time.
Sec. 6. Dispensing with complete record.
Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to
insuperable or extremely difficult causes, the court, on its own motion or on motion of any of the parties, may declare that
the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the reasons for such declaration.
Sec. 7. Appellant’s brief.
It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk
that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee.
 The appeal may be dismissed for failure of appellant to serve and file the required number of copies of his brief
within the required period.
 The period consumed during the pendency of a motion to dismiss the appeal should be excluded from the 45-day
period given to the appellant to submit his brief. The reason is that if the motion to dismiss the appeal is granted, there will
be no need for the appellant to submit his brief.349
Sec. 8. Appellee’s brief.
Within forty-five (45) days from receipt of the appellant’s brief, the appellee SHALL FILE with the court seven (7) copies of
his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant.
Sec. 9. Appellant’s reply brief.
Within twenty (20) days from receipt of the appellee’s brief, the appellant MAY FILE A REPLY BRIEF answering points in
the appellee’s brief not covered in his main brief.
Sec. 10. Time for filing memoranda in special cases.
In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their
respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that
all the evidence, oral and documentary, is already attached to the record.
The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal.
 The appeal may be dismissed for failure of appellant to serve and file the required number of copies of his
memorandum within the required period.350
Sec. 11. Several appellants or appellees or several counsel for each party.
Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be
served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief
may be served upon any of them.
Sec. 12. Extension of time for filing briefs.
Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for
extension is filed before the expiration of the time sought to be extended.
348
349
See Alonzo et al. v. Rosario et al., 105 Phil. 654 (1959).
350
Rule 50, §1(e).
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Sec. 13. Contents of appellant’s brief.
The appellant’s brief shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated
without repetition and numbered consecutively;
(c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of
the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters
necessary to an understanding of the nature of the controversy, with page references to the record;
(d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by
both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to
make it clearly intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment;
(f) Under the heading "Argument," the appellant’s arguments on each assignment of error with page references to the
record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of
the report on which the citation is found;
(g) Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the
judgment or final order appealed from.
 The absence of specific assignment of errors in appellant’s brief is ground for dismissal of the appeal.351
Sec. 14. Contents of appellee’s brief.
The appellee’s brief shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;
(b) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the
appellant’s brief, or under the heading "Counter-Statement of Facts," he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in
support thereof, but without repetition of matters in the appellant’s statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error
with page references to the record. The authorities relied on shall be cited by the page of the report at which the case
begins and the page of the report on which the citation is found.
 It is not incumbent on appellee, who occupies a purely defensive position, and is seeking no affirmative relief, to
make assignments of error. However, it is incumbent upon him to point out in his brief any errors against himself into
which the court may be supposed to have fallen.352
 Appellee may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may
not do so if his purpose is to have the judgment modified or reversed, for in such case, he must appeal.353
Sec. 15. Questions that may be raised on appeal.
Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors
any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.
 In order that the question may be raised on appeal, it is essential that it be within the issue made by the parties in
their pleadings. Consequently, when a party adopts a certain theory and the case is tried and decided upon that theory in
the lower court, he will not be permitted to change his theory on appeal because to permit him to do so will be unfair to the
adverse party.354
 BUT a party may change his legal theory on appeal when the factual bases thereof would not require presentation of
any further evidence by the adverse party in order to enable him to properly meet the issue raised in the new theory. 355
RULE 45
APPEAL BY CERTIORARI TO THE SC (Supra, under appeals to the sc)
RULE 46
ORIGINAL CASES
Section 1. Title of cases.
In all cases originally filed in the Court of Appeals, the party instituting the action shall be called the petitioner and the
opposing party the respondent.
Sec. 2. To what actions applicable.
This Rule shall apply to original actions for certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65, and for quo warranto by Rule 66.
351
See Rule 50, §1(f).
352
Relativo v. Castro, et al., 76 Phil. 563, 567-568 (1946).
353
See Bunge Corp. and Universal Comm. Agencies v. Elena Camenforte & Company, 91 Phil. 861 (1952).
354
See Lianga Lumber Company v. Lianga Timber Co., Inc., 76 SCRA 197 (1977).
355
Ibid.
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Sec. 3. Contents and filing of petition; effect of non-compliance with requirements.
The petition shall contain the full names and actual addresses of all the petitioners and respondents, a concise statement
of the matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for.
It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original
copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate
original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the
record as are referred to therein, and other documents relevant or pertinent thereto. The certification shall be
accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court,
tribunal, agency or office involved or by his duly authorized representative. The other requisite number of copies of the
petition shall be accompanied by clearly legible plain copies of all documents attached to the original.
The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any
other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and deposit the amount of
P500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of
the petition.
 This being an original action, the petitioner should join the adverse party as private respondent and the court or
judge concerned as public respondent.356
Sec. 4. Jurisdiction over person of respondent, how acquired.
The court shall acquire jurisdiction over the person of the respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary submission to such jurisdiction.
 While petitioner is required to serve copy on respondent, jurisdiction acquired only upon service of court order
indicating action on the petition.
The court may dismiss the petition outright with specific reasons for such dismissal or require the respondent to file a
comment on the same within ten (10) days from notice. Only pleadings required by the court shall be allowed. All other
pleadings and papers may be filed only with leave of court.
Sec. 6. Determination of factual issues.
Whenever necessary to resolve factual issues, the court itself may conduct hearings thereon or delegate the reception of
the evidence on such issues to any of its members or to an appropriate court, agency or office.
Sec. 7. Effect of failure to file comment.
When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without
prejudice to any disciplinary action which the court may take against the disobedient party.
 Failure to file required comment does not result in sanction similar to defaults in TC
 Appellate court can only impose disciplinary action like indirect contempt
RULE 48
PRELIMINARY CONFERENCE
Section 1. Preliminary conference.
At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be
compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be
presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a
motion for new trial is granted on the ground of newly discovered evidence; and
(d) To take up such other matters which may aid the court in the prompt disposition of the case.
Sec. 2. Record of the conference.
The proceedings at such conference shall be recorded and, upon the conclusion thereof, a resolution shall be issued
embodying all the actions taken therein, the stipulations and admissions made, and the issues defined.
Sec. 3. Binding effect of the results of the conference.
Subject to such modifications which may be made to prevent manifest injustice, the resolution in the preceding section
shall control the subsequent proceedings in the case unless, within five (5) days from notice thereof, any party shall
satisfactorily show valid cause why the same should not be followed.
356
See Rule 65, §5
155 of 202
RULE 49
ORAL ARGUMENT
Section 1. When allowed.
At its own instance or upon motion of a party, the court may hear the parties in oral argument on the merits of a case, or
on any material incident in connection therewith.
The oral argument shall be limited to such matters as the court may specify in its order or resolution.
Sec. 2. Conduct of oral argument.
Unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence
of the argumentation, and all other related matters shall be as directed by the court.
Sec. 3. No hearing or oral argument for motions.
Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed
in support thereof. The adverse party may file objections to the motion within five (5) days from service, upon the
expiration of which such motion shall be deemed submitted for resolution.
 Unlike motions in lower courts, motions in the SC and CA do not contain notices of hearing bec no oral
arguments normally heard
RULE 50
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of appeal.
An appeal MAY BE DISMISSED by the Court of Appeals, on its own motion or on that of the appellee, on the following
grounds:
(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule
44;
(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time
provided by these Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in
section 13, paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or
directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable.
 The provisions of Section 1, Rule 50 are merely directory and not mandatory. The Court of Appeals has discretion to
dismiss or not to dismiss the appeal and the exercise of such direction mustbe in accordance with the tenets of justice and
fair play, having in mind the circumstances obtaining in each case. 357
 Other grounds for dismissal: amicable settlement, appealed case has become moot and academic, appeal is
frivolous
357
See Maqui v. Court of Appeals, 69 SCRA 368 (1976); Obut v. Court of Appeals, 70 SCRA 546 (1976); Oyao v. People, 75 SCRA 424 (1977); Banaad v. Court of
Appeals, 11 SCRA 321 (1982).
156 of 202
Sec. 2. Dismissal of improper appeal to the Court of Appeals.
An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be
dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by
petition for review from the appellate judgment of a Regional Trial Court shall be dismissed.
An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be
dismissed outright.
 Former rule: CA to certify case to proper court if erroneous appeal => superseded!
 Appeal to CA on pure question of law, if under R 41 where RTC in exercise of its original jurisdiction, should be
dismissed
 But appeals on pure questions of law, under R42 (RTC in exercise of appellate jurisdiction and R43 (from quasi-
judicial agencies) are cognizable by CA
- Normally, all questions of law should be with SC. But Consti says: SC has power to review, revise, reverse,
modify or affirm on appeals or certiorari as the law or the RoC may provide. R42 and R43 are exceptions.
- Same with pure questions of law from MTC’s, which are taken to RTC (R 40 S1, BP 129 S 22)
Sec. 3. Withdrawal of appeal.
An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief. Thereafter, the withdrawal may
be allowed in the discretion of the court.
 Prof. Bautista mentioned that there is a new SC decision where an appeal can be withdrawn as matter of right even
after reply brief filed358
RULE 51 JUDGMENT
Section 1. When case deemed submitted for judgment.
A case shall be deemed submitted for judgment:
A. In ordinary appeals.-
1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum
required by the Rules or by the court itself, or the expiration of the period for its filing.
2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be
required or permitted to be filed by the court, or the expiration of the period for its filing.
B. In original actions and petitions for review.-

1) Where no comment is filed, upon the expiration of the period to comment.
2) Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the
expiration of the period for its filing.
3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing.
Sec. 2. By whom rendered.
The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case
before its assignment to a member for the writing of the decision.
Sec. 3. Quorum and voting in the court.
The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the
three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do not reach
358
Gme Tomboc’s Reviewer
157 of 202
a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the
division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two
Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special
division of five Justices. The participation of all the five members of the special division shall be necessary for the
deliberation required in section 2 of this Rule and the concurrence of a majority of such division shall be required for the
pronouncement of a judgment or final resolution.
Sec. 4. Disposition of a case.
The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order
appealed from, and may direct a new trial or further proceedings to be had.
Sec. 5. Form of decision.
Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the findings of fact and
the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted
from those set forth in the decision, order, or resolution appealed from.
Sec. 6. Harmless error.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything
done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying,
or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the
substantial rights of the parties.
Sec. 7. Judgment where there are several parties.
In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and reversed as to
others, and the case shall thereafter be proceeded with, so far as necessary, as if separate actions had been begun and
prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such
cases, as the court shall deem proper.
Sec. 8. Questions that may be decided.
No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the
proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an
assigned error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors.
 Rule: Only errors specifically assigned in brief will be considered

EXCEPT:
1) closely related or dependent on assigned error, therefore necessary for a complete adjudication of the rights
and obligations of the parties
2) in order to arrive at a just decision of the case359
Sec. 9. Promulgation and notice of judgment.
After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part,
they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies
thereof to be served upon the parties or their counsel
Sec. 10. Entry of judgments and final resolutions.
359
See Saura Import & Export Co. Inc. v. Philippine International Surety Co., Inc., 8 SCRA 143 (1963) and cases cited therein.
158 of 202
If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final
resolution shall forthwith be entered by the clerk in the book of entries of judgments. The date when the judgment or final
resolution becomes executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by the clerk, with a certificate that such judgment or final resolution has
become final and executory.
Sec. 11. Execution of judgment.
Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the
motion for its execution may only be filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified true copy of the entry of
judgment or final resolution and addressed to any appropriate officer for its enforcement.
In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a time that it is in
possession of the original record or the record on appeal, the resolution granting such motion shall be transmitted to the
lower court from which the case originated, together with a certified true copy of the judgment or final order to be
executed, with a directive for such court of origin to issue the proper writ for its enforcement.
RULE 52
MOTION FOR RECONSIDERATION
Section 1. Period for filing.
A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15) days from notice thereof,
with proof of service on the adverse party.
Sec. 2. Second motion for reconsideration.
No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
In the Court of Appeals, a motion for reconsideration shall be resolved within ninety (90) days from the date when the
court declares it submitted for resolution.
Sec. 4. Stay of execution.
The pendency of a motion for reconsideration filed on time and by the proper party shall stay the execution of the
judgment or final resolution sought to be reconsidered unless the court, for good reasons, shall otherwise direct.
RULE 53
NEW TRIAL
Section 1. Period for filing; ground.
At any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction
over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which could not have
been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as
would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the
grounds therefor and the newly discovered evidence.
 A party may file a motion for a new trial on the ground of newly discovered evidence may be filed with the Court of
Appeals before it loses jurisdiction over the case. This is, however, without prejudice to the authority of the Supreme Court
in exceptional cases to take cognizance of factual issues in an appeal by certiorari.

159 of 202
Sec. 2. Hearing and order.
The Court of Appeals shall consider the new evidence together with that adduced at the trial below, and may grant or
refuse a new trial, or may make such order, with notice to both parties, as to the taking of further testimony, either orally in
court, or by depositions, or render such other judgment as ought to be rendered upon such terms as it may deem just.
In the Court of Appeals, a motion for new trial shall be resolved within ninety (90) days from the date when the court
declares it submitted for resolution.
Sec. 4. Procedure in new trial.
Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by a Regional Trial
Court.
SPECIAL RULES IN CA FOR MR AND MNT360:

 File MR within 15 days from notice of judgment or final resolution of CA
 File MNT anytime after perfection of appeal fr RTC and before CA loses jurisdiction (ie. 15 days from service of copy
of judgment of CA)
 Petition for review on certiorari from CA to SC: 15 days from notice of judgment or notice of CA, unless either party
files MR or MNT
 If MR or MNT denied, can still appeal by certiorari to SC within 15 days from notice of denial
RULE 54 INTERNAL BUSINESS

Section 1. Distribution of cases among divisions.
All the cases of the Court of Appeals shall be allotted among the different divisions thereof for hearing and decision. The
Court of Appeals, sitting en banc, shall make proper orders or rules to govern the allotment of cases among the different
divisions, the constitution of such divisions, the regular rotation of Justices among them, the filling of vacancies occurring
therein, and other matters relating to the business of the court; and such rules shall continue in force until repealed or
altered by it or by the Supreme Court.
Sec. 2. Quorum of the Court.
A majority of the actual members of the court shall constitute a quorum for its session en banc. Three members shall
constitute a quorum for its sessions of a division. The affirmative votes of the majority of the members present shall be
necessary to pass a resolution of the court en banc. The affirmative votes of three members of a division shall be
necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the
writing of the opinion by any member of the division.
RULE 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTION

Section 1. Publication.
The judgments and final resolutions of the court shall be published in the Official Gazette and in the Reports officially
authorized by the court in the language in which they have been originally written, together with the syllabi therefor
prepared by the reporter in consultation with the writers thereof. Memoranda of all other judgments and final resolutions
not so published shall be made by the reporter and published in the Official Gazette and the authorized reports.
Sec. 2. Preparation of opinions for publication.
The reporter shall prepare and publish with each reported judgment and final resolution a concise synopsis of the facts
necessary for a clear understanding of the case, the names of counsel, the material and controverted points involved, the
authorities cited therein, and a syllabus which shall be confined to points of law.
Sec. 3. General make-up of volumes.
The published decisions and final resolutions of the Supreme Court shall be called "Philippine Reports," while those of the
Court of Appeals shall be known as the "Court of Appeals Reports." Each volume thereof shall contain a table of the cases
reported and the cases cited in the opinions, with a complete alphabetical index of the subject matters of the volume. It
shall consist of not less than seven hundred pages printed upon good paper, well bound and numbered consecutively in
the order of the volume published.
Note: Rule 56 is under “Procedure in the SC”

RULE 56 A. ORIGINAL CASES
Section 1. Original cases cognizable.
360
Gme Tomboc’s Reviewer
160 of 202
Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceeding against
members of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls may be filed
originally in the Supreme Court.
Sec. 2. Rules applicable.
The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in
accordance with the applicable provisions of the Constitution, laws, and Rules 46 (Original cases), 48 (Preliminary
Conference), 49 (Oral argument), 51 (Judgment), 52 (MR) and this Rule, subject to the following provisions:
(a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court;
(b) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the Court of Appeals
shall not be applicable; and
(c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules
prescribed therefor, and those against attorneys by Rule 139-B, as amended.
 R53 on MNT does not apply to SC bec MNT only deals with questions of fact and SC is not a trier of facts
B – APPEALED CASES
Sec. 3. Mode of appeal.

An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where
the penalty imposed is death, reclusion perpetua or life imprisonment.
Sec. 4. Procedure.
The appeal shall be governed by and disposed of in accordance with the applicable provisions of the constitution, laws,
Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule.
Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should
accompany the petition;
(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court.
Sec. 6. Disposition of improper appeal.
Except as provided in Section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred
to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not
issues of fact are involved shall be final.
Sec. 7. Procedure if opinion is equally divided.
Where the Court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be
deliberated on, and if after such deliberation no decision is reached, the original action commenced in the Court shall be
dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the
petition or motion shall be denied
 CONSTI. Art VIII, Secs. 4, 13 & 15

Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within
ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, which shall be heard by
the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc,
including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without
the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided
en banc; Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division
may be modified or reversed except by the court sitting en banc.
Section 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division
shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A
certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case
161 of 202
and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must
state the reason therefor. The same requirements shall be observed by all lower collegiate courts.
Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or
resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme
Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pending, brief,
or memorandum required by the Rules of Court or by the court itself.
(3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the
presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon
the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period.
(4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as
may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for
determination, without further delay.
 Judiciary Act of 1948
Sec. 9. The Supreme Court; quorum of the Court; designation of Justices of the Court of Appeals and District
Judges to sit in the Supreme Court; number of Justices necessary to reach a decision. - The Supreme Court of the
Philippines shall consist of a Chief Justice and ten Associate Justices, which shall sit in banc in the hearing and
determination of all cases within its jurisdiction. The presence of six Justices shall be necessary to constitute a quorum
except when the judgment of the lower court imposes the death penalty, in which case the presence of eight Justices shall
be necessary to constitute a quorum. In the absence of a quorum, the Court shall stand ipso facto adjourned until such
time as the requisite number shall be present, and a memorandum showing this fact shall be inserted by the clerk in the
minutes of the court.
If on account of illness, absence, or incapacity upon any of the grounds mentioned in section one, Rule One hundred and
twenty-six of the Rules of Court, of any of the Justices of the Supreme Court, or whenever, by reason of temporary
disability of any Justice thereof or vacancies occurring therein the requisite number of Justices necessary to constitute a
quorum or to render a judgment in any given case, as heretofore provided, is not present, the President of the Philippines,
upon the recommendation of the Chief Justice, may designate such number of Justices of the Court of Appeals or District
Judges as may be necessary, to sit temporarily as Justices of the Supreme Court, in order to form a quorum, or until a
judgment in said case is reached: Provided, however, That no Justice of the Court of Appeals or District Judge may be
designated to act in any case in the decision of which he has taken part.
The concurrence of at least six Justices of the Court shall be necessary for the pronouncement of a judgment. However,
for the purpose of declaring a law or a treaty unconstitutional, at least eight Justices must occur. When the necessary
majority, as herein provided, to declare a law or a treaty unconstitutional cannot be had, the Court shall so declare, and in
such case the validity or constitutionality of the act or treaty involved shall be deemed upheld.
Whenever the judgment of the lower court imposes the death penalty, the case shall be determined by eight Justices of
the Court. When eight Justices fail to reach a decision as herein provided, the penalty next lower in degree than the death
shall be imposed.
Sec. 10. Place of holding sessions. - The Supreme Court shall hold its sessions in the City of Manila. Whenever the
public interest so requires, it may hold its sessions in any other place within the Philippines.
Sec. 18. Regular terms of Supreme Court. - The Supreme Court shall hold at Manila two regular terms for the hearing
of causes, the first commencing on the second Monday of January and the second on the last Monday of June. Each
regular term shall continue to and include the day before the opening of the next regular term. The Office of the Clerk of
the Supreme Court shall always be open for the transaction of business, except upon lawful holidays, and the Court shall
always be open for the transaction of such interlocutory business as may be done by a single member thereof.
The sessions of the Court for the hearing of cases shall be held on such days in the week, and for such length of time, as
the Court by its rules may order.
Sec. 23. General make-up of volumes. - Each volume of the decisions of the Supreme Court shall contain a table of
the cases reported and of the cases cited in the opinions and a full and alphabetical index of the subject matters of the
volume prepared by the Reporter, shall contain not less than seven hundred and fifty pages of printed matter, shall be well
printed, upon good paper, and well bound in the best law sheep substantially in the manner of the reports of the decisions
of the Supreme Court of the United States, and shall be styled "Philippine Reports," and numbered consecutively, in the
order of the volumes published.
Sec. 31. Transfer of cases from Supreme Court and Court of Appeals to proper court. - All cases which may be
erroneously brought to the Supreme Court or to the Court of Appeals shall be sent to the proper court, which shall hear
the same, as if it had originally been brought before it.
 BP 129, Sec. 40
Form of decision in appealed cases. - Every decision of final resolution of a court in appealed cases shall clearly and
distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the decision
or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from.
162 of 202
4. EXTRAORDINARY REMEDIES (Certiorari, Prohibition and Mandamus as Modes of Review)
RULE 65. CERTIORARI, PROHIBITION AND MANDAMUS
Section 1. Petition for certiorari.
When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
Table 36: Rule 65 v. Rule 45 Certiorari
R65 CERTIORARI R45 CERTIORARI

Orig and independent action by way of appeal in another and higher Mode of Appeal
court
Generally, needs to file MR first in trial court MR not required
EXCEPTIONS
1) Act of lower court is patent nullity or rendered without DP
2) If MR serves no useful purpose
3) Relief is extremely urgent or public interest involved
4) Question of law only
Issue is WON there was grave abuse of discretion Raises questions of law
Can be directed against interlocutory order prior to appeal fr Review of judgment or final order on the merits
judgment
File not later than 60 days from notice Must be made within period for appeal
Does not stay proceeding unless prelim injunc or TRO issued Stays the judgment, award or order
Lower court or quasi-judicial agency becomes party also Petitioner and respondent are original parties
Exercise of original jurisdiction under power of control and Exercise of appellate jurisdiction and power of review
supervision over lower courts
Court reviews record of trial court only.
New evidence not allowed
 Requisites for issuance of writ:

1) Tribunal, board or officer exercises judicial or quasi-judicial functions;
2) Tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion
3) There is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law
 “Grave abuse of discretion”
- When the law does not provide a rule or norm for the court to follow in deciding a question submitted to it, but
leaves it to the court to determine it in one way or another at his discretion, the judge is not absolutely free to act at
his pleasure or will or arbitrarily. He must decide the question, not in accordance with law for there is none but in
conformity with justice, reason and equity, in view of the circumstances of the case. Otherwise, the court or judge
would abuse his discretion.361
 Special civil action for certiorari is not and cannot be made a substitute for appeal
 Certiorari is available when a motion for new trial is wrongly denied 362
 The filing of a petition for certiorari cannot be construed as an abandonment of the appeal filed. There can be an
abandonment only if there is incompatibility between the two remedies, i.e., between the appeal and the petition for
certiorari. There is no incompatibility when the appeal is from the decision in the main case, and the certiorari petition is
directed against the order denying the motion for new trial.363
361
Araneta Inc. v. Rodas, 81 Phil. 506, 508 (1948).
362
See St. Peter Memorial Park, Inc. v. Campos, Jr, 63 SCRA 180 (1975).
363
Ibid.
163 of 202
 General Rule: A previous motion for reconsideration in court of original proceeding is necessary before invoking
jurisdiction of higher court (to give the respondent a chance to correct the error imputed to him)
Exceptions: When previous motion for reconsideration is unnecessary

1) Where the issue raised is one purely of law;
2) Where public interest is involved
3) in case of urgency
4) where question of jurisdiction was squarely raised, submitted to and met and decided by lower court; and
5) where the order is a patent nullity
Sec. 2. Petition for prohibition.
When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46.
 Normally not issued if acts of trial court already completed.

 If the thing be already done, the writ of prohibition cannot undo it for that would require an affirmative actl and the
only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibition
direction.364
 Prohibition v. Injunction
- An injunction against proceedings at law is directed only to the parties litigant, without in any manner interfering with
the court, while a prohibition is directed to the court itself, commanding it to cease form the exercise of a jurisdiction
to which it has no legal claim.
 Limitations on scope of prohibition365:
1) legislative or political functions
2) Cannot correct errors of judgment
3) Not intended to provide a remedy for act already accomplished
Sec. 3. Petition for mandamus.
When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to
be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3,
Rule 46.
 In the performance of an official duty or act involving discretion, the corresponding official can only be directed by
mandamus to act, but not to act one way or the other. However, this rule admits of exception, such as in cases where
there is gross abuse of discretion, manifest injustice or palpable excess of authority. 366
 Mandamus does not lie in the absence of showing of a clear legal right
* NOTE: For certiorari, mandamus and prohibition, it is not enough to show that no other remedies are available. These
other remedies must not also have been lost by neglect.
364
Cabanero and Mangornong v. Torres, 61 Phil. 522, 524-525 (1935).
365
366
See Angchangco Jr. v. Ombudsman, 268 SCRA 301, 306 (1997)
164 of 202
Sec. 4. Where petition filed.
The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be
assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or
person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may
also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan
if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided
by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling reasons and in no case exceeding 15 days.
 Inasmuch as the CA has exclusive appellate jurisdiction over quasi-judicial agencies under Rule 43, petitions for
writs of certiorari, prohibition or mandamus against them should now be filed only with the CA, unless otherwise provided
by law or these Rules.367
 To perfect an appeal from a complaint for certiorari and mandamus, all that is required is to file a notice of appeal. 368
Sec. 5. Respondents and costs in certain cases.
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or
respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such
private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or
respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be
against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person impleaded as public respondent or respondents.
Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear
in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either
party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed
by the court, they shall not appear or participate in the proceedings therein.
 The non-inclusion of the person interested in sustaining the proceedings renders the petition defective. 369
Sec. 6. Order to comment.
If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the
respondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order
shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any
annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be
observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other
pleadings as it may deem necessary and proper.
367
368
See Philippine Merchant Marine Academy v. Court of Appeals, 69 SCRA 493 (1976).
369
See Republic of the Philippines v. Hon. Zurbano, etc., 105 Phil 409.
165 of 202
 If the petition is not sufficient in form and substance, the court may dismiss it outright. 370
Sec. 7. Expediting proceedings; injunctive relief.
The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary
restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ
of preliminary injunction has been issued against the public respondent from further proceeding in the case.
Sec. 8. Proceedings after comment is filed.
After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court
may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda or the
expiration of the period for the filing thereof the court finds that the allegations of the petition are true, it shall render
judgment for the relief prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to require consideration.
Sec. 9. Service and enforcement of order or judgment.
A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court,
quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct,
and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39
 The judgment in these special actions is executed in the same manner as in the execution of special judgments
under Section 11 of Rule 39. The judgment for damages that may be awarded in mandamus is executed in accordance
with Sections 1 and 9 of Rule 39.
CASES:
ST PETER MEMORIAL PARK V CAMPOS (1975)

Cleofas sued St Peter to be declared owner of Lot 719. CFI adjudged Cleofas as owner, and then denied St Peter and
Banco de Oro’s motion for new trial. St Peter and BDO filed its notice of appeal from judgment. Subsequently, St Peter
also filed in SC for certiorari and prohib against CFI to annul order of trial court denying motion for new trial.
Later, CFI dismissed appeal of St Peter and BDO. BDO later filed petition for certiorari and mandamus to annul CFI’s
dismissal of appeal.
Held:
Appeal was against judgment. Certiorari was against order denying MNT. Both MNT and appeal may be
pursued at the same time.
Normally, certiorari not granted when ordinary appeal available. But in this case, appeal would be slow,
inadequate, and insufficient. To avoid future litigation and adverse effects to many memorial lot buyers, court allowed
certiorari. New trial order and judgment vacated.
*New trial granted because there was newly discovered evidence.
MERCADO v CA (1988)
Bulaong group rebuilt market stalls after they were destroyed by fire and then subleased them to Mercado Group. It later
sued Mercado Group to recover the stalls. Mercado group filed for summary judgment, opposed by Bulaong.
Eventually, summary judgment for Bulaong, holding Bulaongs to be builders in GF.After Mercado’s MR was denied, it filed
notice of appeal with CFI. CFI said its decision already final and executory.
Mercado filed certiorari and prohib to annul summary judgment. CA however affirmed sum judgment.
Mercado then filed certiorari in SC.
Held:
CFI acquired jurisdiction over persons and subj matter. Once acquired, it is not lost by error in exercise of
jurisdiction.
Any error in judgment, which is in exercise of its jurisdiction, is reviewable only by appeal, not by certiorari or
prohib.
Error of trial court in holding that Bulaongs were builders in GF bec lessees can’t be so.
Judgment is erroneous but not void. If it becomes final and execuorty, it is binding as any valid judgment.
370
See Rule 46, Section 5
166 of 202
*But appeal from summary judgment not perfected within 30 days. They filed MR 11 days after receiving
summary judgment. When MR denied, they filed notice of appeal 20 days after receiving the denial. Notice of appeal filed
1 day late.
CITY OF LOS ANGELES v YOUNG

McCombs sued City and got judgment by default. No appeal filed within 30 days. City said that no notice given to them so
Superior Court gave writ of review and annulled judgment. At hearing, Superior Court allowed evidence to be shown that
notice left with office of City’s attorney.
Held:
Certiorari – to review record of an inferior court, board or tribunal, to determine if lower court exceeded its
jurisdiction. Inquiry must be limited to evidence on record, ie. evidence before tribunal being reviewed. Superior court
found no service of service of notice, but this evidence should have been inadmissible.
CROCKER v JUSTICE OF SUPERIOR COURT (1911)

Crocker indicted for felony. He moved to have proceeding transferred to another county due to local prejudice. Court
refused to hear case in any other country.
Petition for mandamus by Crocker.
Held:
Mandamus is extraordinary remedy granted usually when there is no other adequate relief. One of its ancient
fxns was to compel action by tribunals on matters properly before them within their jurisdiction. Purpose: To compel
performance of duty, to set forth in motion judicial activities to reach a decision, but not to any direction as to what that
decision should be.
Court should hear case. Writ issued.
HAVEMEYER v SUPERIOR COURT (1890)

Prohibition is preventive rather than corrective. If anything remains to be done, prohib prevents that, but also
gives complete relief by undoing what has been done. It can arrest proceedings, and annul prior proceedings to make
remedy complete. Party should not be compelled to institute more than one proceeding to redress 1 injury.
Commission of receiver held void. Court should have ordered restoration of prop to Havemeyer, for otherwise,
prohib would be worse than no remedy at all. If Havemeyer had bowed to order of court to give everything to receiver, and
then sued receiver for ejectment or FE, this would not be speedy nor adequate remedy.
Court exceeded jurisdiction in appointing receiver. Writ of prohib, a remedy for summary correction, is proper so
that he need not resist order of court.
Even if order appointing receiver was appealable, this does not mean prohib can’t be issued. Appeal doesn’t
afford complete and adequate remedy.
BA FINANCE CORP v PINEDA (1982)
Sy held liable to BA Finance. Sy sued BA Finance and the company’s lawyer. BA’s MTD denied, with 4 days left to file
answer. MR against this denial of MTD, which was denied for being filed out of time.
BA failed to file answer within time remaining, so it was declared in default. According to judge, MR against order of judge
denying MTD was pro-forma since it was the same to BA’s opposition to motion to declare BA in default. Hence, according
to judge, it did not toll time to file answer.
*Note: New rule is that it should be filed within the remaining period but not less than 5 days.
Held:
If MR vs final order, can’t repeat arguments. If so, it is pro-forma and can be characterized as being only for
delay.
But if interlocutory being sought to be annulled, it is required that MR be filed first (this reqt is absent in appeal
from final judgment or order). Hence, MR against order would necessarily repeat grounds alleged.
Prohib against pro-forma MR’s applies only to final orders and judgments.
*Period for filing responsive pleading commences all over again from notice of denial of MTD.
Table 37: Appeals

A vs. B Mode of Appeal Appellate Court Period of Appeal Questions Raised
1. MTC (Rule 40) Notice of Appeal RTC (No trial denovo) Within 15 days from 1. QF
within the MTC notice of judgment and 2. OL
on proper case within 30 3. OF&L
days. Where the case in
inferior court involves a
special proceeding or
one which involves
multiple appeal is 30
days a record on appeal
being required.

167 of 202
2. RTC Exercise Notice of Appeal CA (15/30) N.B. When there is a
of: Filed with the same motion for
a) Original j. A vs. RTC that rendered reconsideration of the
B for specific judgment (question judgment of RTC, the
performance (A of law and question appeal period is counted
won: B appeal) of fact or question or from the receipt of the
issues raised on fact only.) appellant of same (15 or
appeal 30 days) the order
denying the motion for
reconsideration.
Petition for Review SC Same (15 or 30 days)
on Certiorari (Rule
Issue raised on 45) (question law
appeal only)
b) Appellate
Jurisdiction Ex. A CA: Petition for CA (Regardless of the Same (15 or 30 days)
vs. B MTC; Review nature of the question
Judgment was raised)
Appealed to RTC
Table 38: Ordinary Appeal v. Petition for Review

ORDINARY APPEAL PETITION FOR REVIEW
* Matter of right * Discretionary
* All the records are elevated from the court of origin * No records are elevated unless the court decrees it
* Notice of record on appeal is filed with the record of origin * Filed with the CA
Table 39: Ordinary Appeal, Petition for Review, and Review on Certorari
Ordinary Appeal (appeal by writ of Petition for review Petition for review on certiorari
error) (Rule 42) Rule 45
* Case is decided by the RTC in its * Case is decided by the MTC. * The case raises only a question of
original jurisdiction Appealed to the CA Appealed to the RTC. Petition for law.
review with the CA.
* File a notice of appeal or a record on * File a verified petition for review with * File a verified petition for review on
appeal with the court of origin (RTC) the CA / Pay the docket and lawful certiorari with the SC (R45) / Pay
and give a copy to the adverse party. fees, and P500 as deposits for costs docket and lawful fees and P500 for
with the CA / Furnish RTC and costs / Submit proof of service of a
adverse party copy of such (R42). copy to the lower court and adverse
party.
* Within 15 days from the notice of the Within 15 days from notice of the * Within 15 days from notice of the
judgment for notice of appeal and decision to be reviewed or form the judgment or order of denial of the MR
within 30 days for records on appeal / denial of a MR or new trial. or new trial.
The period for filing is interrupted by a
timely motion for reconsideration or
new trial.
Table 40: Modes of Correction and Review of Court Errors

NOTICE OF APPEAL RECORD ON APPEAL
When perfected Upon filing of notice of appeal in due time Approval of record on appeal in due time
When court loses Over the case: upon perfection of the appeal Over the subject matter: upon approval of the
jurisdiction filed in due time and the expiration of the time records on appeal filed in due time and the
to appeal of the other parties expiration of the time to appeal of the other parties
Period for filing 15 days 30 days

Contents a. Names of the parties to the appeal; a. Full names of all parties to the
b. Specify judgment or final order or proceedings shall be stated in the caption;
part thereof appealed from; b. Include judgment or final order from which
c. Court to which the appeal is being appeal is taken;
taken; c. In chronological order, copies of only such

168 of 202
Material dates showing timeliness of appeal pleadings, petitions, etc. and all
interlocutory orders as are related to the
appealed judgment;
d. Data showing that appeal perfected in time
- material data rule;
e. If an issue of fact is to be raised, include
by reference all the evidence, oral or
documentary, taken upon the issues
involved.
Table 41: Questions of Law v. Questions of Fact

QUESTIONS OF LAW QUESTIONS OF FACT
* doubt or controversy as to what the law is on certain facts * doubt or difference arises as to the truth or falsehood of facts, or
as to probative value of the evidence presented
* if the appellate court can determine the issue raised without * the determination involves evaluation or review of evidence
reviewing or evaluating the evidence
* can involve questions of interpretation of the law with respect * qeury invites the calibration of the whole evidence considering
to the certain set of facts mainly the credibility of witnesses, existence and relevancy of
specific surrounding circumstances and relation to each other
and the whole probabilities of the situation
Table 42: Rule 45 v. Rule 65

CERTIORARI UNDER RULE 45 CERTIORARI UNDER RULE 65
* Petition is based on questions of law * Petition raises the issue as to whether the lower court acted
without jurisdiction or in excess of jurisdiction or with grave abuse
of discretion
It is a mode of appeal Special civil action
* Involves the review of the judgment award or final order on the * Directed against an interlocutory order of the court or where
merits there is no appeal or any other plain, speedy or adequate remedy
* Must be made within the reglementary period * Filed not later than 60 days from notice of judgment, order of
resolution appealed from
* Stays the judgment or order appealed from * Unless a writ of preliminary injunction or temporary restraining
order is issued does not stay the challenged proceeding
* The petitioner and the respondent are the original parties to * The parties are the aggrieved party against the lower court or
the action, and the lower court or quasi-judicial agency is not quasi-judicial agency and the prevailing parties
impleaded
* Motion for reconsideration is not required * Motion for reconsideration or for new trial is required
* File a motion for reconsideration or new trial is filed, the period
shall not only be interrupted but another 60 days shall be given
to the petitioner (SC Admin. Matter 002-03)
* The court is in the exercise of its appellate jurisdiction and the * Court exercises original jurisdiction
power of review
Table 43: Certiorari, Prohibition, Mandamus

CERTIORARI PROHIBITION MANDAMUS
Purpose of the writ. *Intended as a corrective Prevent the commission or Intended to compel performance of
remedy carrying out of an act an act desired
*Annul and modify a
proceeding
Act sought to be Discretionary act Discretionary and ministerial Ministerial act
controlled. act
With respect the Exercising judicial and quasi- Judicial/or non-judicial Judicial and/or non-judicial function
respondent. judicial function function
Table 44: Quo Warranto v. Mandamus

QUO WARRANTO MANDAMUS
Designed to try the right or title to the office, the right to the Applicable only in cases where the right to the office is NOT in
office itself is disputed dispute
Table 45: Quo Warranto v. Electoral Proceeding

169 of 202
Electoral Proceeding Quo Warranto
- To contest the right of an electoral public officer to hold - prerogative writ by w/c the govt. can call upon any person to show
public office. by what title he holds a public office or exercises a public franchise
- an electoral proceeding under the Omnibus Elections Code - three grounds: usurpation, forfeiture, or illegal association
for the exclusive purpose of impugning the election of a public
officer on the ground of ineligibility or disqualification to hold
the office
- petition must be filed within 10 days from the proclamation - presupposes that the respondent is already actually holding office
of the candidate and action must be commenced within one year from cause of
ouster or right of petitioner to hold office arose
- may be filed by any registered candidate for the same office - the petitioner must be the government or the person entitled to the
and, who, even if the petition prospers, would not be entitled office and who would assume the same if his action succeeds.
for that office.
XV. ENFORCEMENT OF JUDGMENTS
1. WHEN EXECUTION PROPER
a) Upon Final Judgments or Orders
Rule 39, Sec. 1

Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding
UPON THE EXPIRATION OF THE PERIOD TO APPEAL THEREFROM IF NO APPEAL HAS BEEN DULY PERFECTED.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin,
on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or
orders sought to be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to
issue the writ of execution.
 Execute only dispositive part of judgment.

 Order granting writ is not appealable (R41 S1)
Court can refuse to issue writ of execution where:
1) Conditional or incomplete judgment
2) Judgments that prescribed already
3) Judgment novated by subsequent order
4) Supervening fact which make execution unjust or impossible
5) Petition for relief filed
 Remedy if court denies issuance of writ: appeal
Rule 39, Sec. 46

When principal bound by judgment against surety.
When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that
he has notice of the action or proceeding, and an opportunity at the surety’s request to join in the defense.
Rule 39, Sec. 47. Effect of judgments or final orders.

The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration
of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular
person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter
that could have been raised in relation thereto, conclusive between the parties and their successors in interest by
title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the
same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was
actually and necessarily included therein or necessary thereto.
b) Pending Appeal
Rule 39, Sec. 2

Discretionary execution.
170 of 202
(a) Execution of a judgment or final order pending appeal.— On motion of the prevailing party will notice to the adverse
party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or
the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion,
order execution of a judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments.— A several separate or partial judgment may be executed under
the same terms and conditions as execution of a judgment or final order pending appeal.
Rule 39, Sec. 5

Effect of reversal of executed judgment.
Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the
circumstances.
 Generally therefore, execution issues only upon expiration of period to appeal if no appeal duly perfected
EXCEPT as matter of discretion pending appeal upon good reasons after due hearing. Urgency must outweigh
injury or damages if losing party secures reversal.
Examples of good reasons: insolvency of debtor, lapse of time would make judgment ineffective, appeal is
clearly dilatory, but not death nor falling value of peso
ONG v CA (1991)
Mere filing of notice of appeal does not divest TC of jurisdiction over case. Appeal not perfected when notice of
appeal filed but on expiration of last day to appeal.
When motion for execution filed, appeal not yet perfected.
Execution pending appeal is granted only in exceptional cases for good reasons. Urgency must outweigh injury
the losing party should suffer if there is reversal of judgment. Mere filing by judgment creditor of bond is not enough good
reason to justify immediate execution; otherwise, execution will become routinary.
If reason is that appeal is frivolous and dilatory, execution pending appeal cannot be justified. Trial court cannot
determine if appeal is dilatory and frivolous, otherwise, violation of DP.
c) Stay of Execution
Rule 39, Sec. 3

Stay of discretionary execution.
Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a
sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may
be proceeded against on motion with notice to the surety.
Rule 39, Sec. 4

Judgments not stayed by appeal.
Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or
award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or
protection of the rights of the adverse party.
Summary of judgments not stayed by appeal:

1) Injunction
2) Receivership
3) accounting and support
4) judgment on compromise
5) judgment in Forcible Entry and Unlawful Detainer (R70 S19)
6) judgment in direct contempt (R71 S2)
7) Appeal to CA from CTA and other quasi-judicial agencies (R43 S12)
Final and executory judgment can still be stayed where

1) prelim injunc granted (under R38 petition for relief)
2) prelim injunc
3) lack of jurisdiction
4) equitable grounds (De Sayman v CA)
171 of 202
d) Methods of Suing Out Execution
Rule 39, Sec. 6

A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After
the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action
before it is barred by the statute of limitations.
Art 1144, CC
The ff actions must be brought within 10 years from the time the right of action accrues:
xxx
3) Upon a judgment
 Action to revive judgment- file in RTC since it’s incapable of pecuniary estimation.
 It’s also a personal action, not quasi in rem
 After revival, enforceable for 10 years more. By motion within 5 years from entry, then another 5 yrs by action.
 Writ must be issued and levy made within 5 years. Sale should be within 10 yr period.
If no levy within 5 yrs, writ may no longer be enforced even if issued within 5 yrs.
IF WRIT HAS BEEN ISSUED…

 Quashal of writ of execution. Grounds:
1) improvidently issued
2) defective in substance
3) issued against wrong party
4) judgment already satisfied
5) change in situation makes execution inequitable
6) writ varies term of judgment
7) sought to be enforced against prop exempt from execution
 These defects may also be challenged on appeal, certiorari, prohib or
mandamus
e) Execution in case of death of party
Rule 39, Sec. 7

In case of the death of party, execution may issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the
judgment be for the recovery of real or personal property, or the enforcement of the lien thereon;
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may
be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the
corresponding executor or administrator for any surplus in his hands.
2. FORM AND CONTENTS OF EXECUTION WRIT
Rule 39, Sec. 8

The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the
motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order;
and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the
manner hereinafter provided:
(a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real
or personal property of such judgment obligor;
(b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants,
or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such properties;
(c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in
conformity with the judgment, the material parts of which shall be recited in the writ of execution;
(d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same,
describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the
judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property
cannot be found, then out of the real property; and
172 of 202
(e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits
due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this
purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant.
 After judgment becomes executory, it cannot be amended EXCEPT

1) To correct clerical errors of by amendment nunc pro tunc
2) To clarify ambiguity
3) In judgments for support, which can always be amended in light of circumstances of the parties
3. EXECUTION OF JUDGMENTS FOR SPECIFIC ACT
Rule 39, Sec. 10

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a party to execute a
conveyance of land or personal property, or to deliver deeds or other documents, or to perform any other specific act
in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be
done at the cost of the disobedient party by some other person appointed by the court and the act when so done
shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in
lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall
have the force and effect of a conveyance executed in due form of law.
(b) Sale of real or personal property.— If the judgment be for the sale of real or personal property, to sell such property,
describing it, and apply the proceeds in conformity with the judgment.
(c) Delivery or restitution of real property.- The officer shall demand of the person against whom the judgment for the
delivery or restitution of real property is rendered and all person claiming rights under him to peaceably vacate the
property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer
shall oust and such persons therefrom with the assistance, if necessary of appropriate peace officers, and employing
such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of
such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner
as a judgment for money.
(d) Removal of improvements on property subject of execution.- When the property subject of the execution contains
improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or
remove said improvements except upon special order of the court (Note: this is called order of demolition) issued
upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a
reasonable time fixed by the court.
(e) Delivery of personal property.- In judgments for the delivery of personal property, the officer shall take possession of
the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.
 If persons refuse to peaceably vacate property, cannot cite them for contempt. Since order directed to
sheriff to oust them, it is sheriff who should be cited for contempt (Lipana vs. Tutaan)
4. EXECUTION OF SPECIAL JUDGMENTS
Rule 39, Sec. 11

When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a
certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party
against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such
party or person may be punished for contempt if he disobeys such judgment.
5. EXECUTION OF MONEY JUDGMENTS
Rule 39, Sec. 9

(a) IMMEDIATE PAYMENT ON DEMAND. - The officer shall enforce an execution of a judgment for money by
demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all
lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee or his
authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to
the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that
issued the writ.
If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall
deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his
possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable,
deposit said amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of
the locality.

173 of 202
The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the
writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The
excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court
for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made
payable to him.
(b) SATISFACTION BY LEVY. - If the judgment obligor cannot pay all or part of the obligation in cash, certified bank
check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the
judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt
from execution giving the latter the option to immediately choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been
levied upon.
When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he
must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal
property, may be levied upon in like manner and with like effect as under a writ of attachment.
(c) GARNISHMENT OF DEBTS AND CREDITS. - The officer may levy on debts due the judgment obligor and other
credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable
of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person
owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The
garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment
stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If
not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished
amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of notice on said garnishing requiring such delivery,
except the lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to
deliver the amount due; otherwise, the choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to
the judgment obligee.
 Levy: by taking object, garnishment, or annotation on title.

Defined as the act by which an officer sets apart or appropriates a part or the whole of the propery of
the judgment debtor for purposes of the prospective execution sale
 Right of redemption can be levied upon because it’s real property

EXCEPT: cannot levy on same right of execution
Case in point: Writ of execution for 1M. Sold at auction for only 0.5 M. Writ of execution
cannot be issued on the other 0.5 M bec that would defeat right of redemption
 In execution, debtor can choose which properties to levy upon.
As compared to attachment, where debtor has no such choice
There are only 2 cases where money judgments can be enforced by contempt

support pendente lite
order to pay in installments
6. RETURN OF WRIT OF EXECUTION
Rule 39, Sec. 14

The writ of execution shall be returnable to the court issuing it immediately after the judgment has bemeen satisfied in part
or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report
to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment
may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken
thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.
7. PROPERTY EXEMPT FROM EXECUTION
Rule 39, Sec. 13

Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution:

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(a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily
used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and
his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months
preceding the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the
Government;
(m) Properties specially exempt by law.
But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a mortgage thereon.
RA 4917 (Approved: June 17, 1967)

Sec. 1. Any provision of law to the contrary notwithstanding, the retirement benefits received by officials and employees
of private firms, whether individual or corporate, in accordance with a reasonable private benefit plan maintained by the
employer shall be exempt from all taxes and shall not be liable to attachment, garnishment, levy or seizure by or under
any legal or equitable process whatsoever except to pay a debt of the official or employee concerned to the private benefit
plan or that arising from liability imposed in a criminal action: Provided, That the retiring official or employee has been in
the service of the same employer for at least ten (10) years and is not less than fifty years of age at the time of his
retirement: Provided, further, That the benefits granted under this Act shall be availed of by an official or employee only
once: Provided, finally, That in case of separation of an official or employee from the service of the employer due to death,
sickness or other physical disability or for any cause beyond the control of the said official or employee, any amount
received by him or by his heirs from the employer as a consequence of such separation shall likewise be exempt as
hereinabove provided.
As used in this Act, the term "reasonable private benefit plan" means a pension, gratuity, stock bonus or profit sharing
plan maintained by an employer for the benefit of some or all of his officials and employees, wherein contributions are
made by such employer or officials and employees, or both, for the purpose of distributing to such officials and employees
the earnings and principal of the fund thus accumulated, and wherein it is provided in said plan that at no time shall any
part of the corpus or income of the fund be used for, or be diverted to, any purpose other than for the exclusive benefit of
the said officials and employees.
8. EFFECT OF LEVY ON EXECUTION
Rule 39, Sec. 12

The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment
obligor in such property at the time of the levy, subject to liens and encumbrances then existing.
 Levy: property becomes subject to satisfaction of judgment
9. THIRD PARTY CLAIMS

Rule 39, Sec. 16
If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an
affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the
property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value,
the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of
the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days
from the date of the filing of the bond.

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The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond
is filed.
Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-
party claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing
of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he
shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be
paid by the National Treasurer out of such funds as may be appropriated for the purpose.
 Remedy of 3rd parties

1) 3rd party claim (terceria)– give affidavit to officer making levy
2) Reivindicatory action – to recover title. Ask for injunction
3) Damages – to be recovered against indemnity or sheriff’s bond within 120 days fr filing of bond
4) Cancel annotation if levied thru error or mistake under Prop Regn Decree
 These remedies are cumulative, but 3rd party claimant can’t recover twice.
BAYER PHILS v AGANA (1975)

When 3rd party complaint filed, sheriff is not bound to keep the property levied upon, unless the creditor insists
that it should be continued but only if creditor files a bond sufficient to indemnify the sheriff for whatever damages. Power
of court in execution of judgments extends only over properties unquestionably belonging to judgment debtor.
Intervention to protect 3rd party claim is not exclusive but cumulative and suppletory to right to bring new action.
But this intervention applies only to preliminary attachment, since a third party cannot intervene if case already terminated
by final judgment.
3rd party complaint therefore in levied properties should be in separate action. Court where reivindicatory action
filed, and not court which issued writ of execution, is empowered exclusively to adjudicate an issue of tile or ownership bet
3rd party claimant and execution debtor.
NORTHERN MOTORS v COQUIA (1975)

Mortgagee should not be required to vindicate claim in separate action. Mortgagee has superior right to
possess the peoperty. Sheriff could only have levied on the right or equity of redemption.
Levying on prop ≠ levying on debtor’s interest in prop.
Right of judgment creditor is subordinate to lien of mortgagee.
MR: (1988)
Mortgagee need not file independent action as that would nullify his lien.
Action for damages properly filed within 120 days from filing of bond.
ONG v TATING (1987)

Posting of bond by judgment creditor does not divest Court of jurisdiction over 3 rd party complaint. TC has
plenary jurisdiction over proceedings for the enforcement of its judgment. It can act on motions for execution, issue and
quash writs, determine if prop exempt from execution, or fix value of prop being claimed by 3 rd persons so that bond equal
in value maybe posted by judgment creditor to indemnify sheriff against liabilities, resolve questions re: redemption,
examine the judgment debtor and his debtors, and otherwise perform such other acts as maybe necessary or incidental to
carry out its decisions.
Money judgments are enforceable only against property unquestionably belonging to judgment debtor.
Remedy of intervention can’t be availed of since judgment already executory. Recourse is terceria in R39, S17.
This is distinct from action for damages against officer within 120 days from day of filing bond in same rule. Separate
action is needed because 3rd party not party to the action.
Since court denied application of third party for relief, remedy was separate action.
Summary of 3 types of judgments

1. Judgment for specific acts
a) Conveyance, delivery of deeds, or other specific act; vesting of title
b) Sale of real or personal prop
c) Delivery or restitution of real prop
d) Removal of improvements on prop subj of execution
e) Delivery of personal prop
2. Special Judgments
- to do specific acts ex. to build fence

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- punishment: contempt
3. Money Judgments
PROCEDURE
1. Motion for execution
1. Order of execution – not appealable
2. Writ of execution – lifetime corresponds to period where judgment can be
enforced by motion
3. Levy – by taking physical possession or by garnishment
4. Execution Sale- If notice requirements not met, sale is voidable at instance of
judgment debtor
5. Notice
ii. Written notice in 3 public places preferably in conspicuous areas of the municipal or city
hall, post office and public market.
iii. Duration of notice will depend on the type of property.
iv. Notice by publication is also necessary in case the sale involves real property if such real
property exceeds P50,000. The notice must be once a week for 2 consecutive weeks in
a newspaper selected by raffle, whether in English, Filipino or any major regional
language.
v. The notice requirement is for the benefit of the judgment debtor. The notice informs
potential bidders of the sale. This facilitates debt rehabilitation.
vi. If these notice requirements are not complied with, the sale is voidable at the instance of
the judgment debtor unless the judgment debtor was in connivance with the sheriff.
Sec. 17, Rule 39 provides the penalty for selling without notice, removing or defacing notice.
1. Auction- The highest bidder shall get the object being sold. The highest bidder must
always pay cash. Even if the judgment creditor is the highest bidder, he must pay cash
when there’s a 3rd party claim,
2. Certicate of deed of sale
3. Return of writ
4. Redemption
10. EXECUTION SALE
Rule 39
Sec. 15. Notice of sale of property on execution.
Before the sale of property on execution, notice thereof must be given as follows:
a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public
places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the
municipality or city where the sale is to take place, for such time as may be reasonable, considering the
character and condition of the property;
b) In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned
for not less than five (5) days;
c) In case of real property, by posting for twenty (20) days in the three (3) public places above-mentioned a
similar notice particularly describing the property and stating where the property is to be sold, and if the
assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice
once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino,
or any major regional language published, edited and circulated or, in the absence thereof, having general
circulation in the province or city;
d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the
sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in
the same manner as personal service of pleadings and other papers as provided by Section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o’clock in the
morning and not later than two o’clock in the afternoon. The place of the sale may be agreed upon by the parties.
In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be
held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which
was designated by the appellate court.
In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is
located.
Sec. 17. Penalty for selling without notice, or removing or defacing notice.
An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the
amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages, both to be
recovered by motion in the same action; and

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a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment
if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.000) pesos to any person injured by reason
thereof, in addition to his actual damages, to be recovered by motion in the same action.
Sec. 18. No sale if judgment and costs paid.

At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount
required by the execution and the costs that have been incurred therein.
Sec. 19. How property sold on execution; who may direct manner and order of sale.
All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed
in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess
property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative,
unless otherwise directed by the judgment or order of the court.
When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of
such real property is claimed by a third person, he may require it to be sold separately.
When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same
and in such parcels as are likely to bring the highest price.
The judgment obligor, if present at the sale, may direct the order in which property, real or personal, shall be sold, when
such property consists of several known lots or parcels which can be sold to advantage separately.
Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or
indirectly in any purchase at such sale.
 Others who cannot purchase: guardians, agents, executors and administrators, public officers, justices,
attorneys etc under 1491, CC
 But judgment creditor can purchase
Sec. 20. Refusal of purchaser to pay.

If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer
may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the
court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for
contempt if he disobeys the order.
The amt of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the
execution has been fully satisfied, in w/c event such proceeds shall be for the benefit of the judgment obligor. The officer
may thereafter reject any subsequent bid of such purchaser who refuses to pay.
Sec. 21. Judgment obligee as purchaser.

When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the
bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess.
Sec. 22. Adjournment of sale.

By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn
the sale to any date and time agreed upon by them.
Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to
complete the sale on the day fixed in the notice or the day to which it was adjourned.
Sec. 23. Conveyance to purchaser of personal property capable of manual delivery.

When the purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer making the
sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale
conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on
execution or preliminary attachment.
Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery.
When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer making
the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the
rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment.
Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds.
Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing:
a) A particular description of the real property sold;
b) The price paid for each distinct lot or parcel;

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c) The whole price paid by him;
d) A statement that the right of redemption expires one (1) year from the date of the registration of the
certificate of sale.
Such certificate must be registered in the registry of deeds of the place where the property is situated.
 Important: This certificate is merely conditional certif. of sale, not deed of sale
Sec. 26. Certificate of sale where property claimed by third person.

When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be
issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such
third-party claim.
Sec. 34. Recovery of price if sale not effective; revival of judgment.

If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or
is evicted therefrom, in consequence of
irregularities in the proceedings concerning the sale, or
because the judgment has been reversed or set aside, or
because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property,
he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with
interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on motion, have the original
judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment
obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date
of the revival and no more.
Sec. 35. Right to contribution or reimbursement.

When property liable to an execution against several persons is sold thereon, and more than a due proportion of the
judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale,
more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of
one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or
before sale, he may compel repayment from the principal.
COMETA v IAC (1987)

Possession of property sold at execution sale conferred on purchaser unless 3rd person holding prop adversely.
If no redemption within 12 months after the sale, purchaser entitled to conveyance and possession.
If the validity of levy and sale of property was directly put in issue, it should be resolved first before possession
can be granted.
11. REDEMPTION FROM EXECUTION SALE

 No redemption if personal property
Rule 39, Secs. 27-33

Sec. 27. Who may redeem real property so sold.
Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the
manner hereinafter provided, by the following persons:
1) The judgment obligor, or his successor in interest in the whole or any part of the property;
2) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part
thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a
redemptioner.
 Redemptioner must have lien SUBSEQUENT to lien which was basis of execution sale. If lien is prior to
judgment, he cannot redeem because his interests in lien are already fully protected (Remember,
purchaser at public auction takes prop subj to prior liens)
Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed.
The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from
the date of the registration of the certificate of sale, by paying the purchaser
b) the amount of his purchase, with
c) one per centum per month interest thereon in addition, up to the time of redemption, together with
d) the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and
e) interest on such last named amount at the same rate; and
f) if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under
which such purchase was made, the amount of such other lien, with interest.

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Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the
b) sum paid on the last redemption, with
c) two per centum thereon in addition, and the
d) amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by
him, with interest on such last-named amount, and in addition,
e) the amount of any liens held by said last redemptioner prior to his own, with interest.
The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner
within sixty (60) days after the last redemption, on paying
b) the sum paid on the last previous redemption, with
c) two per centum thereon in addition, and
d) the amounts of any assessments or taxes which the last previous redemptioner paid
after the redemption thereon, with interest thereon, and
e) the amount of any liens held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of
deeds of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other
than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with
the registry of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes,
or liens.
 Judgment debtor and 1st redemptioner have 1 yr to redeem. Subsequent redemptioners have 60 days.
 Redemption periods may not be extended, unless parties agree (conventional redemption)
 Piece-meal redemption is allowed. In redemption bec amt payable is no longer the judgment debt but the
purchase price (Dulay v Carriaga)
EXCEPTION: If mortgagee is bank, redemptioner pays amounts due
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to
whom payments on redemption made.
If the judgment obligor redeems, he must make the same payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom
the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a
notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must
be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must
note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last
preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale.
Sec. 30. Proof required of redemptioner.
A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the
officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court
wherein the judgment or final order is entered;
or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds;
or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his
agent, showing the amount then actually due on the lien.
Table 46: Judgment Obligor v. Redemptioner

JUDGMENT OBLIGOR REDEMPTIONER
Successive redemption? No more redemption after he redeems Can have successive redemptions
Period of redemption 1 yr fr registration 60 days from day of last redemption
BUT if he is 1st redemptioner, 1 yr also
Payment required Purchase price Sum paid on last redemption + liens of last
redemptioner
Proof required copy of the judgment or final order memorandum of the record or an original or
certified copy of assignment necessary to
establish his claim; and an affidavit showing
the amount then actually due on the lien
Sec. 31. Manner of using premises pending redemption; waste restrained.

Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of
waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but
it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards,
during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to
use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the
property.
Sec. 32. Rents, earnings and income of property pending redemption.

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The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on
execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents,
earnings and income derived from the property pending redemption shall belong to the judgment obligor until the
expiration of his period of redemption.
Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given.
If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is
entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and
no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last
redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire
period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by
the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the
officer making the sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the
rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the
property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding
the property adversely to the judgment obligor.
CASES:
CENAS v SANTOS (1991)

Real prop may be redeemed by
1) judgment debtor or successor
2) Creditor having lien by attachment subsequent to judgment (redemptioner)
If purchaser is also creditor having prior lien to that of redemptioner, redemptioner also has to pay such prior
lien.
Redemption did not extinguish mortgage. Redemptioner as successor of debtor is bound by same conditions
relative to redemption.
HI YIELD REALTY v CA (2002)

Right of redemption should be exercised within 1 yr from registration of certif. of sale (not date of public action).
Redemptioner should also make actual tender in GF of full amount of purchase price.
Redemptioner may however preserve his right of redemption through judicial action (as in this case when the
redemptioner asked the court to fix the price) which must be filed though within 1 yr redemption period. Filing of court
action to enforce redemption is equivalent to formal offer to redeem and would freeze 1 yr period.
However, when the redemptioner asked for further extension, even after the price has been settled, such was
deemed merely to stretch the redemptive period. Financial hardship is not a ground to extend this period. Purchaser
should not be penalized since pendency of redemption decrease market value of property.
12. PROCEEDINGS SUPPLEMENTARY TO EXECUTION
Sec. 36. Examination of judgment obligor when judgment unsatisfied.

When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the
same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after
such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such
judgment obligor to appear and be examined concerning his property and income before such court or before a
commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of
the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be
so required to appear before a court or commissioner outside the province or city in which such obligor resides or is
found.
Sec. 37. Examination of obligor of judgment obligor.

When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains
unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person,
corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an
order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the
court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is
found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and
all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical
entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the
action in such manner as it may deem proper.
Sec. 38. Enforcement of attendance and conduct of examination.

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A party or other person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify
as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to answer
as a witness or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be
unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the examination is
before a commissioner, he must take it in writing and certify it to the court. All examinations and answers before a court or
commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an
authorized officer or agent thereof.
Sec. 39. Obligor may pay execution against obligee.

After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the
sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the
judgment, in the manner prescribed in section 9 of this Rule, and the sheriff’s receipt shall be a sufficient discharge for the
amount so paid or directed to be credited by the judgment obligee on the execution.
Sec. 40. Order for application of property and income to satisfaction of judgment.
The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of
either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the
judgment, subject to any prior rights over such property.
If, upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of his family, the court may order that he pay the judgment in
fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish
him for indirect contempt.
Sec. 41. Appointment of receiver.

The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other
disposition of, or any interference with, the property of the judgment obligor not exempt from execution.
Sec. 42. Sale of ascertainable interest of judgment obligor in real estate.

If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as
mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may
be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all
respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall
be approved by the court before the execution of the deed.
Sec. 43. Proceedings when indebtedness denied or another person claims the property.
If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims
an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the
judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid
a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and
may punish disobedience of such order as for contempt.
Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is
brought, upon such terms as may be just.
 4 PROCEEDINGS IN AID OF EXECUTION

1) Examination of judgment debtor
2) Examination of debtors of debtor
3) Installment
4) Receivers
THE ECONOMIC INS v TORRES (1977)

RoC authorizes action to be instituted against a 3 rd person, but not to make finding of that person’s liability. The court is
not authorized to make a finding that the third person has money/property belonging to the judgment obligor and to oreder
said thrid person to pay said amount to the judgment creditor.
REEVES v CROWNSHIELD (1937)

Imprisonment for failure to obey an order of a court to make payment out of income, when such order is made
with due regard to needs of debtor and his family, does not violate DP.
Protection against imprisonment for debt applies only to honest debtor who is poor and unable to pay in GF, but
not to those who avoid paying by concealing their efforts. Imprisonment is not for debt, but for neglect and refusal to
perform moral and legal duty.
8. SATISFACTION OF JUDGMENT

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Sec. 44. Entry of satisfaction of judgment by clerk of court.

Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the
return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to the
satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the
judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such
admission by the judgment obligee or his counsel on the face of the record of the judgment.
Sec. 45. Entry of satisfaction with or without admission.

Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the
judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided
in the last preceding section, and after notice and upon motion the court may order either the judgment obligee or his
counsel to do so, or may order the entry of satisfaction to be made without such admission.
XVII. SPECIAL CIVIL ACTIONS
 Some cases cannot be adjudicated thru regular procedure for ordinary actions
 Shortened periods for pleading and summary hearing
1. QUO WARRANTO
 Literally means “by what warrant”
Rule 66
Section 1. Action by Government against individuals.

An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in
the name of the Republic of the Philippines against:
1) A person who usurps,
intrudes into, or unlawfully holds or exercises a public office, position or franchise;
2) A public officer who does or
suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or
3) An association which acts
as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.
Sec. 2. When Solicitor General or public prosecutor must commence action.

The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case specified in the preceding section can be established by proof,
must commence such action.
Sec. 3. When Solicitor General or public prosecutor may commence action with permission of court.
The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced,
bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may
first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the
court by the person at whose request and upon whose relation the same is brought.
Sec. 4. When hearing had on application for permission to commence action.

Upon application for permission to commence such action in accordance with the next preceding section, the court shall
direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted,
the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall
then be filed within the period ordered by the court.
Sec. 5. When an individual may commence such an action.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring
an action therefor in his own name.
Sec. 6. Parties and contents of petition against usurpation.

When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name
of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is
unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be
made parties, and their respective rights to such public office, position or franchise determined, in the same action.

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Sec. 7. Venue.
An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the
Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents
resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of
Manila, in the Court of Appeals, or in the Supreme Court.
Sec. 8. Period for pleadings and proceedings may be reduced; action given precedence.
The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in
order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties.
Such action may be given precedence over any other civil matter pending in the court.
Sec. 9. Judgment where usurpation found.

When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position
or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of all the parties to the action as justice requires.
Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages.
If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after
taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and
may immediately thereafter demand of the respondent all the books and papers in the respondent’s custody or control
appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper
pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person
adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such
person by reason of the usurpation.
Sec. 11. Limitations.

Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster
from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner
to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the next
preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the
petitioner’s right to the office in question.
Sec. 12. Judgment for costs.

In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against either
the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the
costs, as justice requires.
PD 902-A, Secs. 5-6

Sec. 5.
In addition to the regulatory and adjudicative functions of the Securities and Exchange Commission over corporations,
partnerships and other forms of associations registered with it as expressly granted under existing laws and decrees, it
shall have original and exclusive jurisdiction to hear and decide cases involving.
(a) Devices or schemes employed by or any acts, of the board of directors, business associates, its officers or
partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or
of the stockholder, partners, members of associations or organizations registered with the Commission.
(b) Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members, or
associates; between any or all of them and the corporation, partnership or association of which they are
stockholders, members or associates, respectively; and between such corporation, partnership or association and
the state insofar as it concerns their individual franchise or right to exist as such entity;
(c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations,
partnerships or associations.
Sec. 6
In order to effectively exercise such jurisdiction, the Commission shall possess the following powers:
(a) To issue preliminary or permanent injunctions, whether prohibitory or mandatory, in all cases in which it has
jurisdiction, and in which cases the pertinent provisions of the Rules of Court shall apply;
(b) To punish for contempt of the Commission, both direct and indirect, in accordance with the pertinent provisions of,
and penalties prescribed by, the Rules of Court;
(c) To compel the officers of any corporation or association registered by it to call meetings of stockholders or members
thereof under its supervision;
(d) To pass upon the validity of the issuance and use of proxies and voting trust agreements for absent stockholders or
members;

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(e) To issue subpoena duces tecum and summon witnesses to appear in any proceedings of the Commission and in
appropriate cases order search and seizure or cause the search and seizure of all documents, papers, files and
records as well as books of accounts of any entity or person under investigation as may be necessary for the proper
disposition of the cases before it;
(f) To impose fines and/or penalties for violation of this Decree or any other laws being implemented by the
Commission, the pertinent rules and regulations, its orders, decisions and/or rulings;
(g) To authorize the establishment and operation of stock exchanges, commodity exchanges and such other similar
organization and to supervise and regulate the same; including the authority to determine their number, size and
location, in the light of national or regional requirements for such activities with the view to promote, conserve or
rationalize investment;
(h) To pass upon, refuse or deny, after consultation with the Board of Investments, Department of Industry, National
Economic and Development Authority or any other appropriate government agency, the application for registration of
any corporation, partnership or association or any form of organization falling within its jurisdiction, if their
establishment, organization or operation will not be consistent with the declared national economic policies.
(i) To suspend, or revoke, after proper notice and hearing, the franchise or certificate of registration of corporations,
partnerships or associations, upon any of the grounds provided by law, including the following:
1) Fraud in procuring its certificate of registration;
2) Serious misrepresentation as to what the corporation can do or is doing to the great prejudice of or damage to
the general public;
3) Refusal to comply or defiance of any lawful order of the Commission restraining commission of acts which
would amount to a grave violation of its franchise;
4) Continuous inoperation for a period of at least five (5) years;
5) Failure to file by-laws within the required period;
6) Failure to file required reports in appropriate forms as determined by the Commission within the prescribed
period;
j) To exercise such other powers as implied, necessary or incidental to the carrying out the express powers granted to
the Commission or to achieve the objectives and purposes of this Decree.
In the exercise of the foregoing authority and jurisdiction of the Commission, hearings shall be conducted by the
Commission or by a Commissioner or by such other bodies, boards, committees and/or any officer as may be created or
designated by the Commission for the purpose. The decision, ruling or order of any such Commissioner, bodies, boards,
committees and/or officer may be appealed to the Commission sitting en banc within thirty (30) days after receipt by the
appellant of notice of such decision, ruling or order. The Commission shall promulgate rules of procedures to govern the
proceedings, hearings and appeals of cases falling within its jurisdiction.
The aggrieved party may appeal the order, decision or ruling of the Commission sitting en banc to the Supreme Court by
petition for petition for review in accordance with the pertinent provisions of the Rules of Court.
 In quo warranto, respondent claims office for himself

 In mandamus, respondent does not claim any right to office but merely excludes petitioner
Table 47: Quo Warranto v. Election Contest

QUO WARRANTO ELECTION CONTEST
Basis: ineligibility or disloyalty of person Basis: Irregularities in conduct of elections
Respondent ousted but petitioner does not necessarily Successful protestant assumes office if he obtained
assume office plurality of valid votes
Table 48: Quo Warranto v. Mandamus

QUO WARRANTO MANDAMUS
Designed to try the right or title to the office, the right to the Applicable only in cases where the right to the office is NOT
office itself is disputed in dispute
2. EXPROPRIATION
Rule 67
Section 1. The complaint.

The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right
and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all
persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the
separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of
the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff
cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint.
Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary.

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Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the
right to take or enter upon the possession of the real property involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank
subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of
a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized
government depositary.
If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be
promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in
possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties.
Sec. 3. Defenses and objections.

If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of
appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be
interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the
same.
If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking
of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate
or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and
adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint
shall be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit
amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the
issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence
as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award.
Sec. 4. Order of expropriation.

If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no
party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff
has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the
complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such
appeal, however, shall not prevent the court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on
such terms as the court deems just and equitable.
Sec. 5. Ascertainment of compensation.

Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought
to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by
the commissioners and specify the time within which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be
filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the
commissioners shall have received copies of the objections.
Sec. 6. Proceedings by commissioners.

Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will
faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case.
Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings
before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to
attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after
which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential
damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived
by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the
carrying on of the business of the corporation or person taking the property. But in no case shall the consequential
benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his
property so taken.
Sec. 7. Report by commissioners and judgment thereupon.

The court may order the commissioners to report when any particular portion of the real estate shall have been passed
upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their
work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such
proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance
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with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty
(60) days from the date the commissioners were notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested
parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so
desire.
Sec. 8. Action upon commissioners’ report.

Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of
such period but after all the interested parties have filed their objections to the report or their statement of agreement
therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause
shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and
appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render
such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the
defendant just compensation for the property so taken.
Sec. 9. Uncertain ownership; conflicting claims.

If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order
any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged
in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to
either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if
entry has already been made.
Sec. 10. Rights of plaintiff after judgment and payment.

Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from
the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the
plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose
defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section
2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered,
the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof
to the defendant or the person ultimately adjudged entitled thereto.
Sec. 11. Entry not delayed by appeal; effect of reversal.

The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose
shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of
expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to determine the damages which the defendant sustained and may
recover by reason of the possession taken by the plaintiff.
Sec. 12. Costs, by whom paid.

The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival
claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and
the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner.
Sec. 13. Recording judgment, and its effect.

The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular
property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When
real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in
which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such
public use or purpose.
Sec. 14. Power of guardian in such proceedings.

The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of
the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public
use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or
person judicially declared to be incompetent could do in such proceedings if he were of age or competent.
Art. VIII, Sec. 9 (1987 Constitution)

Private property shall not be taken for public use without just compensation.
Sec. 19, RA 7160

Eminent Domain. –
A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just
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compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of
eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such
offer was not accepted:
Provided, further, That the local government unit may immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of the property to be expropriated:
Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based
on the fair market value at the time of the taking of the property.
ZABALLERO v NATIONAL HOUSING AUTHORITY (1987)

Landowner can collect deposit on provisional payment of expropriated lots. This deposit serves as prepayment
on value of property, and indemnity against damage if expropriation not consummated.
If landowners have allowed amount of deposit to be determined, they have conceded authority of NHA to
expropriate
However, the deposit cannot answer for unpaid and current rentals.
Export Processing Zone Authority v Dulay: determination of just compensation is a judicial function.
MUNICIPALITY OF BINAN v GARCIA (1989)

There are 2 stages in every action of exprop.
1) Determination of authority of plaintiff to exercise ED. Either there’s an order of condemnation, or dismissal.
Both orders are final since it would dispose of action.
2) Determination by court of just compensation. Done with assistance of not more than 3 commissioners.
Similar 2-phase feature in partition and accounting.
Since determination of authority to expropriate is already final, as with determination of just compensation, 2
appeals are allowed. Period for appeal from order of condemnation is 30 days fr notice of order, and not usual15 days.
(BP 129, S39 where multiple appeals allowed)
In appeal from separate judgment, original record should not be sent to appellate court. So transmit record on
appeal instead.
3. FORECLOSURE OF REAL ESTATE MORTGAGE
Rule 68. Foreclosure of REM
Section 1. Complaint in action for foreclosure.

In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the
date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of
the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all
persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of
whom shall be made defendants in the action.
Sec. 2. Judgment on foreclosure for payment or sale.

If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the
amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the
court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to
the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from
the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the
judgment.
Sec. 3. Sale of mortgaged property; effect.

When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the
judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and
under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not
affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an
order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and
to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the
purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third
party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure
a writ of possession, upon motion, from the court which ordered the foreclosure.
Sec. 4. Disposition of proceeds of sale.

The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be
paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the

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court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor
or his duly authorized agent, or to the person entitled to it.
Sec. 5. How sale to proceed in case the debt is not all due.
If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a
sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and
afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion,
order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such rebate is proper.
Sec. 6. Deficiency judgment.

If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after
applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such
balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to
execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall
be stated in the judgment.
Sec. 7. Registration.
A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of
redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the
name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the
registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said
certificate of title.
If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure
sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser.
Sec. 8. Applicability of other provisions.

The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages
under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter.
Rule 39:
Sec. 31. Manner of using premises pending redemption; waste restrained.
Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the
commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with
or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to
possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it
was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings
thereon while he occupies the property.
Sec. 32. Rents, earnings and income of property pending redemption.

The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold
on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All
rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until
the expiration of his period of redemption.
Sec. 34. Recovery of price if sale not effective; revival of judgment.

If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession
thereof, or is evicted the property sold was exempt from execution, or because a third person has vindicated his
claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee
the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on
motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has
been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original
judgment would have as of the date of the revival and no more.
Sec. 25, PNB Charter

Right of redemption of foreclosed property –

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Right of possession during redemption period. –
Within one year from the registration of the foreclosure sale of real estate, the mortgagor shall have the right to redeem
the property by paying all claims of the Bank against him on the date of the sale including all the costs and other
expenses incurred by reason of the foreclosure sale and custody of the property, as well as charges and accrued
interests.
The Bank may take possession of the foreclosed property during the redemption period. When the Bank takes possession
during such period, it shall be entitled to the fruits of the property with no obligation to account for them, the same being
considered compensation for the interest that would otherwise accrue on the account. Neither shall the Bank be obliged to
post a bond for the purpose of such possession.
Sec. 47, RA 8791 (General Banking Law)

Foreclosure of Real Estate Mortgage. — In the event of foreclosure, whether judicially or extrajudicially, of any
mortgage on real estate which is security for any loan or other credit accommodation granted, the mortgagor or debtor
whose real property has been sold for the full or partial payment of his obligation shall have the right within one year after
the sale of the real estate, to redeem the property by paying the amount due under the mortgage deed, with interest
thereon at the rate specified in the mortgage, and all the costs and expenses incurred by the bank or institution from the
sale and custody of said property less the income derived therefrom. However, the purchaser at the auction sale
concerned whether in a judicial or extrajudicial foreclosure shall have the right to enter upon and take possession of such
property immediately after the date of the confirmation of the auction sale and administer the same in accordance with
law. Any petition in court to enjoin or restrain the conduct of foreclosure proceedings instituted pursuant to this provision
shall be given due course only upon the filing by the petitioner of a bond in an amount fixed by the court conditioned that
he will pay all the damages which the bank may suffer by the enjoining or the restraint of the foreclosure proceeding.
Notwithstanding Act 3135, juridical persons whose property is being sold pursuant to an extrajudicial foreclosure, shall
have the right to redeem the property in accordance with this provision until, but not after, the registration of the certificate
of foreclosure sale with the applicable Register of Deeds which in no case shall be more than three (3) months after
foreclosure, whichever is earlier. Owners of property that has been sold in a foreclosure sale prior to the effectivity of this
Act shall retain their redemption rights until their expiration. (78a)
UNION BANK v CA (2001)

Under Gen Banking Act, mortgagor whose property was sold judicially or extrajudicially can redeem within 1 yr
after sale, or more specifically, registration of sale. This period is not tolled by action to assail the mortgage, or else there
would be frivolous actions to extend redemption period.
Gen Banking Act amends Sec 6 of 3135 when mortgagee is bank, Act applies. Under Banking Act, redemption
price is amount due under mortgage deed.
SC AM No. 99-10-05-0 (Procedure in extrajudicial foreclosure of mortgage)

In line with the responsibility of an Executive Judge under Administrative Order No. 6, dated June 30, 1975, for the
management of courts within his administrative area, included in which is the task of supervising directly the work of the
Clerk of Court, who is also the Ex-Officio Sheriff, and his staff, and the issuance of commissions to notaries public and
enforcement of their duties under the law, the following procedures are hereby prescribed in extrajudicial foreclosure of
mortgages:
1. All applications for extra judicial foreclosure of mortgage whether under the direction of the sheriff or a notary public,
pursuant to Act 3135 as amended by Act 4118, and Act 1508, as amended, shall be filed with the Executive Judge
through the Clerk of Court who is also the Ex-Officio Sheriff.
2. Upon receipt of an application for extra-judicial foreclosure of mortgage, it shall be the duty of the Clerk of Court to:
a) receive and docket said application and to stamp thereon the corresponding file number, date and time of filing;
b) collect the filing fees therefor and issue the corresponding official receipt;
c) examine, in case of real estate mortgage foreclosure, whether the applicant has complied with all the
requirements before the public auction is conducted under the direction of the sheriff or a notary public,
pursuant to Sec. 4 of Act 3135, as amended;
d) sign and issue the certificate of sale, subject to the approval of the Executive Judge, or in his absence, the Vice-
Executive Judge; and
e) after the certificate of sale has been issued to the highest bidder, keep the complete records, while awaiting any
redemption within a period of one (1) year from date of registration of the certificate of sale with the Register of
Deeds concerned, after which the records shall be archived.
Where the application concerns the extrajudicial foreclosure of mortgages of real estates and/or chattels in different
locations covering one indebtedness, only one filing fee corresponding to such indebtedness shall be collected. The
collecting Clerk of Court shall, apart from; the official receipt of the fees, issue a certificate of payment indicating the
amount of indebtedness, the filing fees collected, the mortgages sought to be foreclosed, the real estates and/or chattels
mortgaged and their respective locations, which certificate shall serve the purpose of having the application docketed with
the Clerks of Court of the places where the other properties are located and of allowing the extrajudicial foreclosures to
proceed thereat.
3. The notices of auction sale in extrajudicial foreclosure for publication by the sheriff or by a notary public shall be
published in a newspaper of general circulation pursuant to Section 1, Presidential Decree No. 1079, dated January
26, 1977, and non-compliance therewith shall constitute a violation of Section 6 thereof.

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4. The Executive Judge shall, with the assistance of the Clerk of Court, raffle applications for extrajudicial foreclosure of
mortgage under the direction of the sheriff among all sheriffs, including those assigned to the Office of the Clerk of
Court a Sheriffs IV assigned in the branches.
5. No auction sale shall be held unless there are at least two (2) participating bidders, otherwise the sale shall be
postponed to another date. If on the new date set for the sale there shall not be at least two bidders, the sale shall
then proceed. The names of the bidders shall be reported by the sheriff or the notary public who conducted the sale
to the Clerk of Court before the issuance of the certificate of sale.
This Resolution amends or modifies accordingly Administrative Order No. 3 issued by then Chief Justice Enrique M.
Fernando on 19 October 1984 and Administrative Circular No. 3-98 issued by the Chief Justice Andres R. Narvasa on 5
February 1998.
The Court Administrator may issue the necessary guidelines for the effective enforcement of this Resolution.
The Clerk of Court shall cause the publication of this Resolution in a newspaper of general circulation not later than 27
December 1999 and finish copies thereof to the Integrated Bar of the Philippines.
This Resolution shall take effect on the fifteenth day of January of the year 2000.
Art. 2112, Civil Code

The creditor to whom the credit has not been satisfied in due time, may proceed before a Notary Public to the sale of the
thing pledged. This sale shall be made at a public auction, and with notification to the debtor and the owner of the thing
pledged in a proper case, stating the amount for which the public sale is to be held. If at the first auction the thing is not
sold, a second one with the same formalities shall be held; and if at the second auction there is no sale either, the creditor
may appropriate the thing pledged. In this case he shall be obliged to give an acquittance for his entire claim.
Table 49: Judicial v. Extrajudicial Foreclosure

JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE
Requires court intervention No court intervention necessary
There is only an equity of redemption Right of redemption exists
Alternative remedy to personal action for the amount due to Proper only when provided for in the contract
satisfy mortgage debt
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
- Right of the defendant mortgagor to extinguish the - Right of the debtor, his successor in interest or any
mortgage and retain ownership of the property by paying judicial creditor or judgment creditor of said debtor or any
the debt w/in 90-120 days after the entry of the judgment or person having alien on the property subsequent to the
even after the foreclosure sale but prior to confirmation mortgage or deed of trust under which the property is sold
to redeem the property w/in one year from the registration
of the Sheriff’s certificate of foreclosure sale
- Governed by Rule 68 - Governed by Secs. 29-31 of Rule 39
Table 50: Distinguish between execution and judicial foreclosure of mortgage.

EXECUTION JUDICIAL FORECLOSURE OF MORTGAGE
Confirmation Sale need not be confirmed Sale must be confirmed by court in order to
divest the rights in the property of all the
parties to the action and to vest their rights in
the purchaser.
Right of redemption Yes. No right of redemption.

Exception: When the mortgagee is a bank
Equity of redemption: 90-120 days from entry

of judgment, before confirmation of sale
When purchaser acquires After expiration of redemption period, Upon confirmation and registration of the
title when the final deed of conveyance is foreclosure sale
executed
Table 51: Distinguish between execution and attachment.

ATTACHMENT
EXECUTION
Lifetime of writ 5 years from date of entry of judgment No lifetime
Who exercises option to choose Judgment obligor Defendant

property to be levied upon/attached

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Third-party claimant Must vindicate his claim to the May vindicate his claim to the property
property in a separate action (kasi in the same action (by intervention) or
tapos na yung main action, so he in a separate action
can’t intervene)
Priority of levy/attachment Personal property first, then real No specific priority
property
4. PARTITION
Rule 69
Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his
complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded
and joining as defendants all other persons interested in the property.
Sec. 2. Order for partition, and partition by agreement thereunder.

If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all
the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in
which the property is situated.
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.
 Partition by agreement is appealable!
Sec. 3. Commissioners to make partition when parties fail to agree.

If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each
party in interest such part and proportion of the property as the court shall direct.
Sec. 4. Oath and duties of commissioners.

Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their
duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition,
the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and
examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the
comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and
equitable, having due regard to the improvements, situation and quality of the different parts thereof.
Sec. 5. Assignment or sale of real estate by commissioners.

When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without
prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested
parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners
to sell the real estate at public sale under such conditions and within such time as the court may determine.
Sec. 6. Report of commissioners; proceedings not binding until confirmed.

The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the
assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court
shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners
shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners
and rendered judgment thereon.
Sec. 7. Action of the court upon commissioners’ report.

Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of
such period but after the interested parties have filed their objections to the report or their statement of agreement
therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith; or, for cause
shown, recommit the same to the commissioners for further report of facts; or set aside the report and appoint new
commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as
shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between
the several owners thereof.

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Sec. 8. Accounting for rent and profits in action for partition.
In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits
received by such other party from the real estate in question, and the judgment shall include an allowance for such rents
and profits.
Sec. 9. Power of guardian in such proceedings.

The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the
court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which
the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent.
Sec. 10. Costs and expenses to be taxed and collected.

The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the
action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may
issue therefor as in other cases.
Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds.
If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description,
the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party
to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the
parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such
payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be
to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties
to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the
purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of
the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from
the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the
registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as
part of the costs of the action.
Sec. 12. Neither paramount rights nor amicable partition affected by this Rule.
Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person
claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among
whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common
from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an
action.
Sec. 13. Partition of personal property.

The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal
property, in so far as the same may be applicable.
May a court approve an extrajudicial partition among the co-heirs of a deceased who died intestate and without
debts, without the court first requiring the partitioning heirs to put up any bond at all?
Yes. There is no need for a bond if only realty is partitioned and no personalty is distributed. (Rule 74, Sec. 1 and 3)
Table 52: Partition
JUDGMENT CONTENTS OF JUDGMENT EFFECT OF JUDGMENT
If actual partition of property is made The judgment shall state definitely: To vest in each party to the act, in
(1) By metes and bounds and severally the portion of the estate
adequate description, assigned to him.
(2) The particular portion of the estate
assigned to each party
If the whole property is assigned to The judgment shall state: To vest in the party making the
one of the parties upon his paying to 1. The fact of such payment, and payment the whole of the real estate
the others the sum or sums ordered 2. The assignment of the real estate to free from any interest on the part of
by the court the party making the payment the other parties to the action
If the property is sold and the sale is The judgment shall state: To vest the real estate in the

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confirmed by the court 1. The name of the purchaser(s), and purchaser(s) making the payment(s),
2. A definite description of the parcels free from the claims of the parties to
of the real estate sold to each the action.
purchaser
5. FORCIBLE ENTRY AND DETAINER

 If not specially treated, would be ordinary action for rescission or specific performance
Rule 70. FE and UD
Section 1. Who may institute proceedings, and when.

Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession
of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of
any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other
person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action
in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any
person or persons claiming under them, for the restitution of such possession, together with damages and costs.
 Anyone of co-owners can bring action for ejectment (CC 487)

 If more than 1 yr has elapsed, file plenary action known as accion publiciana to recover
possession
Sec. 2. Lessor to proceed against lessee only after demand.

Unless otherwise stipulated, such action by the lessor shall be commenced only after
demand to pay or comply with the conditions of the lease
AND to vacate
is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by
posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen
(15) days in the case of land or five (5) days in the case of buildings.
 Action can be maintained only against party in actual possession at time action is filed (Co
Tiac v Natividad)
 If pending UD, defendant leaves => Court cannot be ousted of jurisdiction. Once acquired,
it is retained.
Sec. 3. Summary procedure.

Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for
forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall
be governed by the summary procedure hereunder provided.
Sec. 4. Pleadings allowed.

The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer,
and the answers thereto. All pleadings shall be verified.
Sec. 5. Action on complaint.

The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto,
dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground
for dismissal is found, it shall forthwith issue summons.
Sec. 6. Answer.
Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of
jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from
service of the answer in which they are pleaded.
Sec. 7. Effect of failure to answer.

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Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion
of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein. The court may in its discretion reduce the amount of damages and attorney’s fees claimed for being
excessive or otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9 if there are two or
more defendants.
Sec. 8. Preliminary conference; appearance of parties.

Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule
18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The
defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with
the next preceding section. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next
preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of
action who had pleaded a common defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without
prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant.
Sec. 9. Record of preliminary conference.

Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters
taken up therein, including but not limited to:
1) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2) The stipulations or admissions entered into by the parties;
3) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30)
days from issuance of the order;
4) A clear specification of material facts which remain controverted; and
5) Such other matters intended to expedite the disposition of the case.
Sec. 10. Submission of affidavits and position papers.

Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position
papers setting forth the law and the facts relied upon by them.
Sec. 11. Period for rendition of judgment.

Within thirty (30) days after receipt of the affidavits and position papers, or the expiration of the period for filing the same,
the court shall render judgment.
However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters
within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the
last affidavit or the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment.
Sec. 12. Referral for conciliation.

Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only after that requirement shall have been complied with.
Sec. 13. Prohibited pleadings and motions.

The following petitions, motions, or pleadings shall not be allowed:
1) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to
comply with section 12;
2) Motion for a bill of particulars;
3) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4) Petition for relief from judgment;
5) Motion for extension of time to file pleadings, affidavits or any other paper;
6) Memoranda;
7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
8) Motion to declare the defendant in default;
9) Dilatory motions for postponement;
10) Reply;
11) Third-party complaints;
12) Interventions.

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Sec. 14. Affidavits.
The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants
which are admissible in evidence, and shall show their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall
be cause to expunge the inadmissible affidavit or portion thereof from the record.
Sec. 15. Preliminary injunction.

The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant
from committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing
of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days
from the filing thereof.
Sec. 16. Resolving defense of ownership.

When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession.
 Repeat: Pronouncements on ownership not conclusive even bet the same parties
Sec. 17. Judgment.

If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for
the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and
occupation of the premises, attorney’s fees and costs. If it finds that said allegations are not true, it shall render judgment
for the defendant to recover his costs. If a counterclaim is established, the court shall render judgment for the sum found
in arrears from either party and award costs as justice requires.
 Plaintiff in FE or UD can only recover damages sustained as possessor, specifically, only fruits and rentals.
 Ratio: He may not be the owner. Thus, he cannot recover damages to the land bec these are recoverable
only by owner (Mitshiener v Barrios) nor unrealized profits or rentals he had to pay to lease other premises
(Vasquez v Garcia). Also, cannot claim moral or exemplary damages => should be in ordinary action
Sec. 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership.
The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession only
and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action
between the same parties respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same on the
basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be
submitted by the parties or required by the Regional Trial Court.
 Take note though: If court cannot resolve possession without first resolving rescissibility of underlying
contract of sale, UD becomes action for rescission. Hence, not capable of pecuniary estimation and should now
be with RTC (Nera v Vacante)
Sec. 19. Immediate execution of judgment; how to stay same.

If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been
perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court
and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment
appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent
due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the
absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the
premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the
tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court,
with the other papers, to the clerk of the Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank,
and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or
in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree
otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the
appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the
judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal
taking its course until the final disposition thereof on the merits.

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After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the
stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any
case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the
appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession
and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the
appeal.
Sec. 20. Preliminary mandatory injunction in case of appeal.

Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court, the latter
may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the
defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious.
Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.

The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a
further appeal that may be taken therefrom.
DE LAUREANO v ADIL (1976)

Defendant (lessee) may stay execution by perfecting an appeal and filing supersedeas bond, and paying rents
from time to time. Function of bond: to secure payment of rents and damages in appealed judgment, but not for rents
during pendency of appeal.
If bond not filed and rents not deposited, execution is mandatory, except if FAME prevented posting of bond or
making monthly deposit, or there was supervening event which materially changed situation and would make execution
inequitable.
If preliminary mandatory injunction granted, lessee’s possession would cease but supersedeas bond and
deposits already made would subsist as security for the accrued liability.
( Note: Therefore, bond applies only if there are rentals in arrears.)
Mandatory injunc refers to 1 st aspect of ejectment- possession. Supersedeas bond and rentals refer to 2 nd
aspect- rentals or reasonable value of the use or occupation of the premises. Hence, mandatory injunction and
supersedeas bond are not incongruent.
SC gave lessee 30 days to file correct bond and make deposits. Prelim mandatory injunc also ordered requiring
lessee to vacate.
LESACA v CUEVAS (1983)

RoC: landlord to proceed only after demand. Refusal to pay increased rentals deemed to terminate monthly
lease.
Settled rule that owner can terminate lease and demand a new rate. Lessee should accept new rate or vacate.
There was therefore no need for a more definite demand because there was no legal right anymore to remain in the
premises.
Demand must be definite and must be a demand to vacate.
 Demand to pay rentals or to vacate is not definite demand because there’s implied lease or
tacita reconducta where lessee can stay on premises although with rental arrearages (Chua v CA)
CITY OF MANILA v CA (1987)

Stallowners refused to pay increased rates so City filed UD. City Court fixed new rates. City unsatisfied with increase so it
appealed to CFI. Without filing supersedeas bond, it also asked for immediate execution pending appeal.
Held:
Lessee must still file bond even if it’s lessor who appeals. Reinstate writ of execution.
BARBA v CA (2002)
While in FE and UD, jurisdiction is determined by nature of action as pleaded in complaint, simple allegation
that defendant is withholding possession from plaintiff suffices. In UD, defendant’s possession was lawful at first but his
right to possess later expired. In UD therefore, prior possession by plaintiff not required, unlike in FE.
Inferior court can resolve ownership, but only for the purpose of resolving possession.
Filing claim for reconveyance or annulment of deed of sale over land does not divest MTC of jurisdiction to try
UD. Ejectment suit is summary in nature and cannot be circumvented by simple expedient of asseting ownership over the
prop.
PALATTAO v CA (2002)
Injunction and specific performance suits do not preclude or abate ejectment case. UD and FE are summary
proceedings to determine physical possession, without prejudice to opposing claims of juridical possession in other
proceedings. Issue is pure physical or de facto possession.

197 of 202
Exception: where equity warrants abatement of ejectment action as where execution of decision would mean
demolition of premises
Table 53: Accion Interdictal, Accion Publiciana, and Accion Reinvindicatoria

ACCION INTERDICTAL ACCION PUBLICIANA ACCION REINDIVICATORIA
*Summary action for the recovery of physical *A plenary action for the *An action for the recovery of
possession where the dispossession has not recovery of the real right of ownership w/c necessarily includes
lasted for more than one year. possession has lasted for more the recovery of possession.
*Ejectment proceeding under Rule 70, either than one year.
forcible entry or unlawful detainer
*All cases of forcible entry and unlawful *RTC has jurisdiction if the *RTC has jurisdiction if the value of
detainer irrespective of the amount of damages value of the property exceeds the property exceeds P20,000
or unpaid rentals sought to be recovered P20,000 outside Metro Manila; outside Metro Manila; P50,000
should be brought to the MTC. P50,000 within Metro Manila. within Metro Manila,
*MTC has jurisdiction if the *MTC has jurisdiction if the value
value of the property does not of the property does not exceed
exceed P20,000 – outside P20,000 – outside Metro Manila;
Metro Manila; P50,000 within P50,000 within Metro Manila
Metro Manila
Table 54: Foricble Entry v. Unlawful Detainer

FORCIBLE ENTRY UNLAWFUL DETAINER
*Possession of the land by the defendant is unlawful from *Possession is inceptively lawful but it becomes illegal by
the beginning as he acquires possession by Force, reason of the termination of his right to the possession of
Intimidation, Strategy, Threat or Stealth (FISTS) the property under his contract w/ the plaintiff
*No previous demand for the defendant to vacate the *Demand is jurisdictional if the ground is:
premises is necessary 1. Non-payment of rentals, or
2. Failure to comply with lease of contract
*The plaintiff must prove that he was in prior physical *The plaintiff need not have been in prior physical
possession of the premises until he was deprived thereof possession
by the defendant
*The 1 year period is generally counted from the date of *Period is counted from the date of last demand or last
actual entry on the land letter of demand
When prior demand in unlawful detainer actions not required;

a. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental
or to comply with terms of lease contract;
b. Purpose of suit is not for ejectment but for enforcement of terms of contract;
c. When defendant is not a tenant but a pure intruder
 In all other cases, there must be a demand:
i. To pay or to comply with the conditions of the lease; AND
ii. To 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; ORAL demand is not
permitted.
If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules
6. CONTEMPT
Rule 71
Section 1. Direct contempt punished summarily.
A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the
same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as
a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in
contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten
(10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two
hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.
Sec. 2. Remedy therefrom.

The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of
certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided
such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform
the judgment should the petition be decided against him.
Sec. 3. Indirect contempt to be punished after charge and hearing.

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After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such
period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may
be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person
who, after being dispossessed or ejected from any real property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose
of executing acts of ownership or possession, or in any manner disturbs the possession given to the person
adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct
contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process
of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into
court, or from holding him in custody pending such proceedings.
 Indirect contempt - aka constructive contempt

Sec. 4. How proceedings commenced.
Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed
by an order or any other formal charge requiring the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and
certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing
initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed,
heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision.
Sec. 5. Where charge to be filed.

Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or
higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been
committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower
court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court
of such place in the same manner as provided in section 2 of this Rule.
Sec. 6. Hearing; release on bail.

If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an
amount fixed by the court, for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed
to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer.
Sec. 7. Punishment for indirect contempt.

If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent
or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6)
months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not
exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the
violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete
restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the
court otherwise provides.
Sec. 8. Imprisonment until order obeyed.

When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform,
he may be imprisoned by order of the court concerned until he performs it.
Sec. 9. Proceeding when party released on bail fails to answer.

When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order of
arrest or may order the bond for his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded
against, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of
the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall

199 of 202
be for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal
cases.
Sec. 10. Court may release respondent.

The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it
appears that public interest will not be prejudiced by his release.
Sec. 11. Review of judgment or final order; bond for stay.

The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court as in criminal
cases. But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in
contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided
against him he will abide by and perform the judgment or final order.
Sec.12. Contempt against quasi-judicial entities.

Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or
agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the
contempt has been committed shall have jurisdiction over such charges as may be filed therefor.
LIPANA v TUTAAN (1983)

If judgment debtor disobeys writ of execution, it is not contempt of court. It was sheriff’s duty to enforce the writ. Sheriff did
not perform duty under R39 S8, where writ of execution is directed at sheriff to deliver possession of the real or personal
prop to person entitled to it.
Power to cite for contempt is to preserve power of the court and not to vindicate. Only if clear and contumacious refusal to
obey should power be exercised.
Table 55: Direct v. Indirect Contempt

DIRECT CONTEMPT INDIRECT CONTEMPT
Summary in nature Punished after being charged and hearing
GROUNDS: GROUNDS:
a) Misbehavior in the presence of or near a court as to a) Misbehavior of an officer of a court in the performance of
obstruct or interrupt the proceedings his official duties or in his official transactions.
b) Disrespect towards the court b) Disobedience of or resistance to a lawful writ, process,
c) Offensive personalities towards others. order, or judgment. Unauthorized intrusion to any real
d) Refusal to be shown or to answer as witness or to property after being ejected;
subscribe an affidavit or deposition. c) Any abuse or any unlawful interference w/ the
proceedings not constituting direct contempt
d) Any improper conduct tending to degrade the
administration of justice.
e) Assuming to be an attorney or an officer of the court w/o
authority.
f) failure to obey a subpoena
g) Rescue, or attempted rescue, of a person or property in
the custody of an officer.
If committed against: If committed against:
a. RTC – fine not exceeding P2,000 or imprisonment not a. RTC – fine not exceeding P30,000 or imprisonment not
exceeding (10) days or both exceeding 6 months or both.
b. MTC – fine not exceeding P200 or imprisonment not b. MTC – fine not exceeding P5,000 or imprisonment not
exceeding one (1) day, or both. exceeding (1) month or both

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CIVIL PROCEDURE GRAND REVIEWER

2004 remedial law team (100% bar-ops)

Constitution, Art. VIII

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

DECANO v. EDU (1980)

TIJAM v. SIBONGHANOY (1968)

NATIONAL STEEL CORP v. CA (1999)

CHUNG FU INDUSTRIES v. CA (1992)

LACKS v. LACKS (U.S. 1976)

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

2. Subject-matter jurisdiction/ Jurisdiction of the different levels of courts in civil cases

 Jurisdiction over the subject matter is conferred by law9.

Const., Art VIII.

Const., art. VIII

A. Original and Exclusive

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

B. Original and Concurrent with the Court of Appeals

D. Original and Concurrent with the Regional Trial Court

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

(h) Final judgments or orders of the Commission on Elections.34

BP 129, Sec 9. The Court of Appeals shall exercise:

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

(b) Judgments or final orders of the Court of Tax Appeals, and

c) REGIONAL TRIAL COURTS

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

(5) Actions involving the contract of marriage and marital relations62.

 These are now under the jurisdiction of the Family Courts.63

B. Original and Concurrent with the Supreme Court

(2) Actions affecting ambassadors, other public ministers and consuls.71

C. Original and Concurrent with the Court of Appeals

D. Original and Concurrent with the Insurance Commission

The RTC shall exercise appellate jurisdiction over:

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

(5) Exclusive original jurisdiction in cases of inclusion and exclusion of voters. 80

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

Ortigas and Co v. Herrera (1983)

Ortigas and Co. v. CA (1981)

Nera v. Vacante (1961)

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

court or any government offices, except in the following disputes:

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

AGBAYANI v BELEN (1986)

Rules of Court, RULE 4

SEC. 18, BP 129

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

CLARIDADES V MERCADER (1966)

SWEET LINES INC v TEVES (1978)

VILLANUEVA v MOSQUEDA (1982)

EASTERN ASSURANCE & SURETY CORP v CUI (1981)

DAVAO ABACA PLANTATION v DOLE PHILS (2000)

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

Table 1: Venue v. Jurisdiction91

Uniform rule on venue in RTC and MTC92

4. Action against non-resident not found in the Philippines

5. Rules on Venue shall NOT apply:

ACOSTA, BIRUAR, CABILAO, QUIMSON, TAN, TOMBOC, VELOSO, & VELOSO

1. CAPACITY TO SUE AND BE SUED

 Sec. 1 Who may be parties; plaintiff and defendant.

 Sec. 4. Spouses as Parties.

 Sec. 5. Minor or incompetent persons.

 Sec. 15. Entity without juridical personality as defendant.

 A person can become a party if he sues, intervenes or is impleaded.

PHHC v JEREMIAS (1976)