Remedial Law Review 2015-2016 CIVIL PROCEDURE
NOVEMBER 6, 2015 2. Uniform for all courts of the same grade; and
Remedial law
branch of law that deals with the study of the methods
/ procedures of obtaining ones right or redress of a
wrong.
-It is a procedural law because it provides a procedure to
enforce a right. As distinguished from a procedural law, a
substantive law is a law that creates a right. For example:
Family code provides for rights. In order to enforce these
rights, you need to know the remedial law.
-It has retroactive effect but only to pending
actions/cases.
-Most of the remedial laws are found in the Rules of
Court.
The Rules of Court is divided into:
Civil Procedure (Rule 2-71) includes Ordinary Civil
Action, Provisional Remedies, & Special Civil Actions
Special Proceedings (Rule 72-109)
Criminal Procedure (Rule 110-127)
Evidence (Rule 128-Rule 134)
Legal Ethics (Rule 135- Rule 144)
The Rules of Court was promulgated by the Supreme Court
pursuant to its rule making power:
1987 Constitution. Art VIII. SECTION 5. The Supreme Court
shall have the following powers:
(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.
Limitations of the Rule Making Power of SC: (Art VIII.
Section 5)
1. It must provide a simplified and inexpensive
procedure for the speedy disposition of cases;
Based on the discussion by Dean Alex Monteclar
3. Shall not diminish, increase or modify substantive
rights
What is a COURT?
-a COURT Is an entity/body vested with a portion of
judicial power.
ART VII. SECTION 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
-This means that not only the SC has judicial power.
Judicial power is also shared by other courts.
CLASSIFICATION OF COURTS:
1. Superior Court vs Inferior Court
-It depends on how it stands in relation to the other
courts. RTC is a superior court compared to MTC and
an inferior court compared to CA. MTC is always an
inferior court. SC is definitely a superior court
2. Original Court vs Appellate Court
-Original court means that a case is filed as an
original action in that particular court. For example:
MTC has jurisdiction over original action for
ejectment cases. On the other hand, appellate court
is the court that entertains/reviews the appeal from
an original action in the original court.
3. Courts of General Jurisdiction vs Courts of Limited
Jurisdiction
-RTC-general jurisdiction while MTC- limited
jurisdiction
4. Constitutional Court vs Statutory Court
-SC is the only constitutional court which means it
cannot be abolished by the Congress but only
through amendment of the Constitution. All other
courts (MTC to CA and special courts) are statutory
courts which means they are created by law.
Sandiganbayan is a constitutionally mandated court
but it is created and defined by a statute, thus, it is
still a statutory court.
5. Courts of Law vs Courts of Equity
-In our jurisdiction, the courts are both courts of law
and equity. Courts of law are courts that decide
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purely on the basis of law. Courts of equity are
courts that apply equity, what is fair and reasonable.
In the Civil Code, we have the principle on equity
follows the law; we apply equity only in the absence
of a law.
JURISDICTON
- the power of the court to hear and decide a case.
-from the Latin term, JURIS (law) and DICO (to speak).
I speak under the authority of law
ERROR OF JURISDICTION vs ERROR IN THE EXERCISE OF
JURISDICTION
-There is an error of jurisdiction when the court assumes
jurisdiction even if it has no jurisdiction granted by law.
For example, you file a case for forcible entry/unlawful
detainer in the RTC. Clearly, the law does not grant
jurisdiction to the RTC in this subject matter. The proper
court is MTC. But the judge insists RTC has jurisdiction
and decide the case.
-As to remedy, when there is error of jurisdiction, the
remedy is to file a certiorari under Rule 65. When there is
error of EXERCISE of jurisdiction, the remedy is to file an
appeal.
-When the court does not have jurisdiction to try the
case, the entire proceeding conducted by the court is null
and void. But when the court has jurisdiction to try the
case and the court committed an error in the exercise of
that jurisdiction, the error committed by the court does
not render the entire proceeding as null and void. The
remedy of that party is to appeal that decision to the
higher court.
Error of Jurisdiction the court entertain the case despite
the fact that it does not have jurisdiction to try the case.
Error of Judgment the court has the jurisdiction to try the
case and it tried the case but it committed an error along the
way; like it misappreciated the evidence presented by the
parties. The judge made a mistake.
Why important to make the distinction?
To know what remedy to apply.
Error of Jurisdiction question it by way of certiorari (petition
Based on the discussion by Dean Alex Monteclar
of certiorari under rule 65) on grounds of grave abuse of
discretion amounting to lack or excess of jurisdiction
Error of Judgment aggrieved party can file an ordinary
appeal (rule 45)
What are the different types of jurisdiction?
1. General or Limited/Special
RTC is one court that exercise general
jurisdiction
MTC are courts with very limited jurisdiction
2. Original or Appellate
Original court is vested with authority by
law to hear and decide the case. When this
court decide and its against your interest
then you can appeal it to the higher court
(appellate court)
Appellate RTC to CA; MTC to RTC
3. Exclusive or Concurrent
Exclusive that particular case should be filed
only in that particular court and not in any
other court. That court has the exclusive
jurisdiction over the case.
Example: ejectment cases (unlawful detainer
or forcible entry cases) falls under exclusive
jurisdiction of the MTC, regardless of the
amount involved
Annulment of the decision of the RTC falls
under the exclusive jurisdiction of the CA.
Meaning only this court can hear and try this
case to the exclusion of the other courts
Concurrent - can be tried in any court (in
court A, B or C)
Ex. special civil action for Habeas Corpus,
Mandamus, prohibition, quo warranto or
certiorari
You can file these in the RTC, CA or SC as an
original action
N.B. Observe the principle of hierarchy of
courts
4. Delegated
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The power belongs to a particular court but How acquired? By virtue of the conferment of the
the power is delegated by law to another jurisdiction by law. The law determines whether the
court but only in exceptional circumstances. court has jurisdiction over the subject matter.
Like cadastral cases. They belong to RTC but Generally, the jurisdiction of the court is determined
under BP 129, it can be delegated to MTC by the allegations in the complaint. On the basis of
when it is uncontested; or even when the allegations in the complaint, you will know
contested when the amount does not exceed whether the court has jurisdiction vis--vis what the
P100,000. law provides. The law granting jurisdiction to this
particular court. The jurisdiction over the subject
matter is conferred by law and NEVER acquired by
JURISDICTION vs. VENUE agreement or consent of the parties unlike venue. As
Jurisdiction Venue a rule, jurisdiction cannot be conferred by silence
just because the other party did not object to the
refers to the AUTHORITY refers to the PLACE complaint.
of the court to hear and where the case is to be
If the court does not have jurisdiction, then it does
decide a case tried
not have the jurisdiction to proceed with the trial of
a matter of a substantive a matter of procedural the case. Jurisdiction as a rule cannot be waived. The
law law court can even motu proprio dismiss the case if it
finds that it does not have jurisdiction. When the
Fixed by law can be fixed by the court does not have jurisdiction, the issue can even
agreement of the parties be raised even for the first time during appeal.
Meaning that if the defendant fails to question the
establishes the relation- establishes the relation-
jurisdiction of the court, it can still question the
ship between the court ship between the parties
jurisdiction even for the first time on appeal. Except
and the subject matter
in one case where the principle of estoppel by
Vested and conferred by Just a place laches was applied.
law
GR: when the court does not have jurisdiction to try
the case, the entire proceeding in the court is null
Example. and void. And the defendant can question
jurisdiction at any time during the trial of the case.
You want to file a case. You file a case for collection of sum of Even if the case has already been terminated.
money for the amount of P1M. Assuming that you and the Because lack of jurisdiction is a defense that cannot
defendant are residents of Cebu. Which court has be waived.
jurisdiction? RTC has jurisdiction where the amount exceeds
P300k or P400k if in Metro Manila. EXC: Estoppel by Laches. If the defendant did not
question the jurisdiction of the court for an
There are many RTCs all over the Philippines. Can you file it in UNREASONABLE LENGTH OF TIME, such that he
the RTC in Davao? Ilocos? Tawi-tawi? would be considered to have been sleeping on the
time, then he loses the right to question the
No. Where to file it is now a matter of venue. The place
jurisdiction of the court
where the case will have to be tried. Considering that both
parties are from Cebu, the case will have to be filed in Cebu.
You cant file it in a RTC outside Cebu. TIJAM vs SIBONGHANOY G.R. No. L-21450 (April 15, 1968)
(estoppel by laches in jurisdiction)
Jurisdiction is conferred and fixed by law. Venue
however can be changed by the agreement of the The plaintiff filed a case in the wrong court, one which
parties to a contract. (Rule 4) does not have jurisdiction. It was a collection case for a sum
of money for the amount of P1,900. It was wrongfully filed in
the CFI (RTC now). It should have been filed in the MTC.
Elements of Jurisdiction (Requisites)
The defendant did not question the jurisdiction of the
1. Jurisdiction Over the Subject Matter CFI. The defendant and his lawyer participated in the trial of
the case in the CFI. The defendant lost the case. He filed a

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Based on the discussion by Dean Alex Monteclar
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motion for reconsideration which was denied by the CFI.
Defendant filed an appeal to the CA.
The case stayed in the CA for many years until the CA
finally decided in favor of the plaintiff. The defendant filed a
motion for reconsideration. Imagine how many years have
lapsed from the time the original case was filed. Pending the
motion for reconsideration, it was only then the lawyer of the
defendant realized that the original court has no jurisdiction.
It was only then the lawyer of the defendant raised the
question of jurisdiction while the case has already been
decided by the CA and it was then already pending there by a
motion for reconsideration.
The SC said that it will not allow this stale claim. The
defendant was apparently sleeping on his right. He is guilty of
laches (half-brother of prescription- with specific period of
time)
Laches was applied in relation to the issue of jurisdiction.
He was estopped to question the jurisdiction of the court
because of laches. You were sleeping on your right. Laches is
failure to bring the issue for an unreasonable amount of time.
This does not mean that if the defendant failed to
question the jurisdiction in the trial court, the defendant in
not noticing it, or not questioning the jurisdiction, does not
mean that he cant question the jurisdiction by the time he
filed the case in the CA. But by the time he appeals, he
immediately noticed that the RTC does not have jurisdiction.
He can still raise the issue of jurisdiction for the first time on
appeal.
WARNING NOTE: The Tijam case is only an exception to the
general rule. An unreasonable length of time had already
passed in that case. This was the factor for the application of
the exception.
General rule still stands: Lack of jurisdiction is not waived by
your silence and therefore you can still raise the issue of lack
of jurisdiction of the court below to the appellate court for
the first time provided there is no unreasonable delay yet.
Example: Walay jurisdiction and RTC wa nimu mabantayi
pag decide sa RTC wa man diay ni jurisdiction. You can raise
that for the first time in the CA ang issue of lack of
jurisdiction. Lahi man gud ning Tijam vs Sibonghanoy kay ni
abot nas CA niabot nas SC una pa siya mi ingon ai wala diay
jurisdiction so SC said we have to punish you. This is to
prevent a stale claim. Dugay na kaayo na nimong wala gi
raise so mahimo ng stale imong claim. But this is an
exception to the general rule.
Based on the discussion by Dean Alex Monteclar
Another important rule to determine in the case of
jurisdiction over the subject matter.
Jurisdiction of the court over the subject matter is also
determined by the allegations in the complaint.
Earlier I said it is the law that determines who has
jurisdiction. But when you asked does this court have
jurisdiction over the subject matter pursuant to the provision
of the law? The only basis as a general rule for determining
whether the court has jurisdiction over the subject matter is
the allegation in the complaint.
Rule: The first thing the Judge will do is read the complaint
and then ask: Do the allegations in the compliant contain the
elements of jurisdiction? If yes, whether its true or not, that
is beside the point. Whether the allegation is true or not, that
could be determined during the trial of the case.
General Rule: Jurisdiction over the subject matter is based on
the allegations in the complaint.
Exception: Jurisdiction over the subject matter can also be
determined by the ANSWER of the defendant that raised the
real issue.
The court may take into consideration the ANSWER of the
DEFENDANT. Like in the following cases:
Ignacio vs CFI of Bulacan.
The case was for ejectment and we all know that ejectment
falls within the jurisdiction of the MTC. Now here the plaintiff
filed an ejectment case against the defendant. If in his
complaint he alleged that he is the owner of the land; that
the defendant has been renting his land and has already
violated the contract of lease and he wanted to eject the
defendant. So based on the allegation, simple kaayo na
ejectment case. Land owner-lessor ko, ikaw lessee wa naka ka
bayad ni violate kas contract pahawa. So diin man niya gi file?
MTC.
Q: Does the MTC has jurisdiction to hear this case? This is an
ejectment case. Obviously, MTC has jurisdiction. But when
the defendant filed his answer, the defendant raised an issue
that he is not an ordinary lessee as he is an agricultural
lessee. And under the law, if the relationship of the lessor and
the lessee is based on agricultural leasehold, the one that has
jurisdiction is not the municipal court. It is the Department of
Agrarian Reform Adjudication Board (DARAB). So if i-base
lang sa court sa allegation sa complaint, there is no doubt the
MTC where the case was filed has jurisdiction. Pero if
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basahon ang answer and you are convinced that there is
enough evidence to show that there exists an agricultural
leasehold between the two then walay jurisdiction ang MTC.
It should be tried before the Court of Agrarian Relation
(DARAB now).
In the same way in another case.
Mindanao Rapid vs Omandam, GR No. L-23058, November
27, 1971
Where the action turns out to be an Unfair Labor Practice,
the RTC has no jurisdiction.
Plaintiff filed a case against the defendant for a simple civil
action for breach of contract. Diin man gi file? RTC. But when
the defendant filed his answer he raised the issue that this
agreement between him and the plaintiff is actually based on
an ER-EE relationship. Dili diay ni ordinary agreement that is
to be tried in the RTC. Naa naman ni ER-EE relationship ilang
gi-awayan this should be tried in the NLRC. So imu lang
basihan ang complaint, walay problema, RTC ang naai
jurisdiction pero if tanawon ang answer and then you
determine because when a motion to dismiss is filed, i-
hearing gyud nas court. The defendant filed the motion to
dismiss, lack of jurisdiction. So you have to set it for hearing
before you dismiss the case. You asked the defendant to
present evidence. The defendant was able to present
sufficient evidence nga naa gyud diay ER-EE relationship so
walay jurisdiction ang RTC. Adto mo pagaway sa NLRC. So this
is an exception to the general rule.
Again,
GR: Jurisdiction over the subject matter is determined by the
allegations in the complaint.
EXC: When the real issue will come out in the answer of the
defendant and the court may take into consideration the
answer and other pleadings filed to determine what the real
issue is.
2. Jurisdiction over the person of the parties
- Upon plaintiff by the filing of the complaint
- Upon defendant 1.) service of summons
2.) voluntary appearance or
submission to the courts jurisdiction
Example: Plaintiff filed a case against the defendant.
Summons was not yet served to the defendant. So the court
has not yet acquired jurisdiction. But when the defendant
learned about the case, he voluntarily submitted himself to
the jurisdiction of the court by entering into a compromise
Based on the discussion by Dean Alex Monteclar
agreement to the plaintiff. Niduol dayon si defendant sa
plaintiff nganong nikiha paman ka nako nga wala man nai
problema. Im willing to pay. Galing lang wala pa koi kwarta.
Pwede ba i-installment. And the plaintiff said okay. Pirmahay
tag compromise agreement that you will pay me in 6 monthly
installments. Pirma sad ang defendant. They submitted it to
the court. Bisag wala pa kadawat and defendant sa summons,
the court now acquires jurisdiction over the defendant
because by signing the compromise agreement and
submitting it to the court, the defendant is now deemed to
have submitted himself to the jurisdiction of the court.
3. Jurisdiction over the issues of the case
is determined by the pleadings (complaint, answer,
etc.).
When we say pleadings it refers to the complaint, answer,
reply, counterclaim, cross-claim, etc. with all the necessary
pleadings filed in court the issues are now joined. The court
may now proceed with pre-trial and by then the court will
already know what the issues to be tried in this case are and
whether it has jurisdiction to try the issue in this case.
4. Jurisdiction over the res
is acquired by the actual or constructive seizure by
the court of the thing in question, thus, placing it in
custodia legis, as in attachment or garnishment. If
the court acquires jurisdiction over the res it can
acquire jurisdiction even if the defendant has not
received the summons.
Res here means the thing that is the object of the
controversy/litigation. The subject matter of the case.
Example: Kung ang inyong gi awayan yuta; kinsai tagiya sa
yuta ikaw ba or ako, the res is the property/land. Now in
Family Law cases, like when a child files a case against his
father to compel to recognize him as his illegitimate child, the
subject matter there is paternity and that is the res. But in
ordinary civil action involving property, the res is that
ownership of the property which you have litigated, and the
court acquires jurisdiction over the res when it succeeds in
attaching the property and placing the property under
custodia legis once the property is now in the custody of the
court, the court has now acquired jurisdiction over the res. It
is important for us to know whether the court has acquired
jurisdiction over the res because jurisdiction over the res may
substitute for jurisdiction over the person of the defendant
and therefore, even if the court has not yet acquired
jurisdiction over the defendant because the summons was
not yet served on the defendant, nilarga abroad, pero ang
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atong giawayan if Im the plaintiff, properties, of course the 3. Sharia Court

court has acquired jurisdiction over the res by attaching the
property of the defendant by placing the property of the 4. Family Court
defendant under custodia legis, the court may now proceed
to hear the case even if it has not yet acquired jurisdiction Jurisdiction of the Supreme Court
over the person of the defendant because it has already
acquired jurisdiction over the res. The only constitutional court

The powers, jurisdiction and composition are all

Important: Before the court will proceed to hear the case it
must have acquired jurisdiction. Jurisdiction over the subject
matter, or jurisdiction over the person or defendant, or
jurisdiction over the issue or jurisdiction over the res. So
these are the elements of jurisdiction.
provided for under the constitution specifically
Article 8 of the 1987 Constitution.
Types of the powers of the SC:
1. Judicial the power to decide cases

2. Administrative the power to supervise and

Specific Jurisdiction of the Different Courts administer all other courts
Classification of courts:

1. Regional Courts Judicial Power of the Supreme Court:

2. Special Courts The power to hear and decide cases by the SC are
classified into original and appellate jurisdiction.

Regional Courts: 1. Original Jurisdiction cases you can file directly in

the SC as an original action.
1. Supreme Court
a. Cases involving ambassadors, consuls and other
2. Court of Appeals public ministers;
3. Regional Trial Courts b. Cases over special civil actions involving
petitions for certiorari (Rule 65), prohibition,
4. Municipal Trial Courts
mandamus, quo warranto, habeas corpus and
others.
Under BP 129, there are four kinds of Municipal Courts (First
2. Appellate Jurisdiction the power to review, revise,
Level Courts):
reverse, modify, alter or affirm on appeal or by
1. Metropolitan Trial Courts (MeTC) these are the city certiorari as the law or the rules of court may
courts in Metropolitan Manila provide, final judgments and orders emanating from
the lower courts in:
2. Municipal Trial Courts in Cities (MTCC) these are
the city courts in the other cities in the Philippines a. All cases involving the constitutionality or
validity of the law, treaty, ordinance,
3. Municipal Trial Courts (MTC) these are the courts presidential orders or regulations are in
for the municipalities question;
4. Municipal Circuit Trial Courts (MCTC) these are the b. All cases involving the legality of any tax
courts for the smaller municipalities usually imposed, assessments or polls any penalty
consisting of 2 or more municipalities for one court imposed in relation thereof;

c. All cases in which the jurisdiction of any lower

Special courts: court is in issue;
1. Court of Tax Appeals d. All criminal cases in which the penalty imposed
is reclusion perpetua or higher;
2. Sandiganbayan

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e. In all cases where an error or question of law is
involved;
Only cases involving question of law should be elevated
to the SC (this is the general rule);
There is only one way of appeal to the SC and that is by
way of Certiorari under Rule 45;
Certiorari under Rule 45 is very different from Petition
for Certiorari under Rule 65 since the latter is an original
action where you ask the higher court to overrule the
lower court since the lower court committed grave abuse
of discretion amounting to lack or in excess of
jurisdiction.
As a rule, the SC will only entertain pure questions of law
and not of fact. The SC is not a trier of facts.
Question of fact - Involves the calibration of evidence
presented by the parties during the trial in order to merit
out the truth; to determine who is telling the truth.
Question of law - Presupposes that the question of fact
is already settled; what the court is asked to decide is
what law to be applied to these set of facts. These are
the kinds of questions you could elevate to the SC.
The SC shall have the power to review decisions of the 3
Constitutional Commissions (COA, CSC and COMELEC).
- The 3 constitutional commissions are vested with
quasi-judicial power they can hear and decide
cases falling under its jurisdiction.
- You can appeal the decisions of the COA and
COMLEC directly to the Supreme Court. You dont
have to go to the CA or RTC.
- Decisions from the CSC, however, were singled out.
THEY ARE NO LONGER APPEALABLE DIRECTLY TO
THE SC. YOU GO FIRST TO THE CA. This is by virtue
of RA 7902 which provides that decisions of the CSC
shall be appealed first to the CA. After the CA, you
can appeal it to the SC by way of Certiorari under
Rule 45.
Aside from the CSC, decisions of the Central Board of
Assessment Appeals (CBAA) are now appealable to the
CA.
The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may
promulgate its rules for the purpose. (Article VII Section
4, 1987 Constitution)
Based on the discussion by Dean Alex Monteclar
- In other words, the SC en banc sits as the
Presidential Electoral Tribunal (PET).
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus
or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing. (Article
VII Section 18, 1987 Constitution)
The powers of the SC that has by far been discussed are
called the JUDICIAL POWERS the power to HEAR a case
and DECIDE a case.
ADMINISTRATIVE POWERS of the SC
Being the head of the Judicial Branch, the SC:
1. Exercises administrative supervision over ALL
COURTS and the personnel thereof.
2. May assign temporarily judges of lower courts to
other stations as public interest may require.
3. May order a change of venue or place of trial to
avoid a miscarriage of justice.
4. 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 under-privileged. (Part of the Rule-
making Power)
5. Appoints all officials (Except JUDGES*) and
employees of the Judiciary in accordance with the
Civil Service Law.
*It is the President who appoints Judges or Justices through
the recommendation of the Judicial and Bar Council (JBC)
6. Has the power to discipline not only judges but also
lawyers. The IBP may only investigate recommend
the action to be taken and cannot anymore dismiss
the case outrightly.
Constitutional Limitations on the other Branches relating to
the SC:
1. Article VIII Section 2, 1987 Constitution
The Congress shall have the power to define, prescribe, and
apportion the jurisdiction of the various courts but may not
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deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
- This is because the SC is a creation of the Constitution
and therefore, Congress cannot touch that power of
the SC over those cases.
2. Article VI Section 30, 1987 Constitution
No law shall be passed increasing the appellate jurisdiction of
the Supreme Court as provided in this Constitution without
its advice and concurrence.
- Congress cannot thus pass a law increasing the
jurisdiction of the SC without asking its advice and
concurrence. This was illustrated in the case of Fabian
vs Desierto (G.R. No. 129742; September 16, 1998)
which involved the Ombudsman Act.
o The law provided that decisions of the Ombudsman
would be appealable directly to the SC. This
provision was struck down as unconstitutional. The
reason being that the Ombudsman Act is a creation
of Congress and therefore, before it can increase the
appellate jurisdiction of the SC it must first ask
permission from the SC. The Congress failed to do
so.
o A similar provision in the Omnibus Investments Code
relating to the appeal from the Board of Investments
to the SC was struck down by the SC.
Jurisdiction of the Court of Appeals
History
The CA was first created by the Judiciary Reorganization
Act of 1948, modified by the Revised Rules of Court of
1964, then further modified by B.P. Blg. 129 (Judiciary
Reorganization Act of 1980, took effect in 1981)
B.P. Blg. 129 abolished the CA and established the
Intermediate Appellate Court (IAC) as its replacement.
Composed of 50 members (49 Associate Justices and 1
Presiding Justice) and divided into 10 divisions with 5
members per Division.
The IAC was reorganized by E.O. No. 33 in 1986 during
the Cory administration. It abolished the IAC and
replaced it with the CA.
E.O. No. 33 changed the composition to 51 Justices and
17 Divisions with 3 Justices per Division.
In 1997, R.A. 8246 amended E.O. No. 33 by increasing the
membership to 69 and increasing the Divisions to 23. 3 of
Based on the discussion by Dean Alex Monteclar
the new Divisions (18, 19 & 20) will be based in Cebu City
handling all the appeals of the Visayas Area. The other 3
new Divisions (21, 22 & 23) will be based in Cagayan de
Oro City handling all the appeals of the Mindanao Area.
This law was only implemented sometime in 2004
because of lack of budget.
Powers
Unlike the SC, the CA only exercises Judicial Power.
Administrative supervision only to the extent over
the employees within the CA unlike the SC.
Cases Handled
1. Original Jurisdiction
Issue Writ of Mandamus, Certiorari, Habeas Corpus
& Quo Warranto (Concurrent with the SC and RTC)
Annulment of Judgment of the RTC Decision, Rule 47
(the only EXCLUSIVE and ORIGINAL Jurisdiction it
has)
2. Appellate Jurisdiction
EXCLUSIVE appellate jurisdiction over all FINAL
judgments, resolutions, orders or awards of the RTC
and Quasi-Judicial Agencies, Instrumentalities,
Boards or Commissions including the SEC, SSC, ECC,
CSC
Not included are those covered by the SC and the
Labor Code*
*Labor Code cases involving decisions of the SOLE or the
NLRC are appealable directly to the SC however this was
changed in the ruling of St. Martin Funeral Homes vs NLRC
wherein the SC said that the proper recourse is through the
CA first by way of petition for certiorari in observance of the
Principle of Hierarchy of Courts.
NOVEMBER 11, 2015
Jurisdiction of the Regional Trial Court
Work horse of the judiciary.
The Court before was called the Court of First
Instance, which had jurisdiction over the entire
province where it was located.
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It was changed by BP 29, as amended. It is now
called the Regional Trial Court, which has jurisdiction
over specific cities and municipalities.
I. EXCLUSIVE ORIGINAL JURISDICTION
Cases which shall only be filed exclusively in the RTC.
a. Incapable of Pecuniary Estimation
(1) In all civil actions in which the subject of
the litigation is incapable of pecuniary
estimation;
Refers to claims which are not convertible to monetary
value, like specific performance for failure to comply with
a specific promise in a contract.
b. Real action
(2) In all civil actions which involve the title to, or
possession of, real property, or any interest
therein, where the assessed value of the property
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 buildings,
original jurisdiction over which is conferred upon
the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts;
Examples of Real Action: Accion Publiciana, Accion
Reivindicatoria
If it is exceeds 20, 000, or 50, 000 for Metro Manila,
jurisdiction is with the RTC.
If it is 20, 000 or less, or 50, 000 or less for Metro Manila,
jurisdiction is with the MTC
However, for Accion Interdictal or Ejectment Case, which
involves Recovery of Possession of Real Property, it still
falls within the jurisdiction of the MTC regardless of the
value of the property to be recovered, as well as the
damages and unpaid rentals.
o Example: Forcible entry
For Quieting of Title, the same is in the nature of
recovering a property, as it is an assertion of ownership
as against the claim of the defendant. It is no longer an
action that is incapable of pecuniary estimation.
Based on the discussion by Dean Alex Monteclar
The value of the real property determines the
jurisdiction. The amount shall be based on the assessed
value of the property, not the fair market value. The
assessed value is found in the tax declaration as
determined by the city or municipal assessor.
c. Admiralty and Marine Jurisdiction
(3) In all actions in admiralty and maritime
jurisdiction where the demand or claim exceeds
One hundred thousand pesos (P100,000.00) NOW:
P 300,000 or, in Metro Manila, where such
demand or claim exceeds Two hundred thousand
pesos (P200,000.00) NOW: P 400,000;
This was changed by RA 7691, which was passed in 1995.
It expanded the jurisdiction of the Municipal Trial Courts.
It provides that the jurisdiction of MTC will be increased
from P 100, 000 to P200, 000 or LESS beginning 2000.
After five years, which was on 2005, the jurisdiction of
MTC was further increased to P 200,000 to P 300, 000 OR
LESS.
So, if the claim is more than P 300, 000, or more than P
400, 000 for Metro Manila, jurisdiction belongs to the
RTC.
Involves cases like shipment by the sea where there is
damage to goods.
d. Matters of Probate
(4) In all matters of probate, both testate and
intestate, where the gross value of the estate
exceeds One hundred thousand pesos
(P100,000.00) or, in probate matters in Metro
Manila, where such gross value exceeds Two
Hundred thousand pesos (P200,000.00);
Paragraph 3 (Admiralty) and Paragraph 4 (Probate) used
to belong to CFI exclusively, but under BP 129, these
cases can now be tried in the MTC, its vested with
Jurisdiction in these cases for as long as the value does
not exceed the value of 300,000.
e. Contract of Marriage and Marital Relations
(5) In all actions involving the contract of marriage
and marital relations;
Cases of annulment of marriage, declaration of nullity of
marriage, legal separation, etc; these are strictly RTC.
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(NB: theres no distinction in value, because these cases have
no value)
f. General Jurisdiction
(6) In all cases not within the exclusive jurisdiction
of any court, tribunal, person or body exercising
jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions;
This provision is what made the RTC a court of general
jurisdiction. RTC is the catcher of all other cases that
doesnt belong to any court.
g. Previous specialized courts
(7) In all civil actions and special proceedings
falling within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of the
Court of Agrarian Relations as now provided by
law; and
Before BP 129, we used to have many specialized courts.
But when the law was passed, these courts were
abolished and transferred to the RTC.
Now we already have a family court, which is still an RTC
court, but designated by the SC to handle family cases.
So the jurisdiction of the RTC is transferred of the family
court, when it comes to family law cases.
Under The Comprehensive Agrarian Reform Law (CARL)
the Department of Agrarian Reform Adjudication Board
(DARAB) which is vested with quasi-judicial power, has
jurisdiction now to entertain agrarian cases.
h. Personal property
(8) In all 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
Three hundred thousand pesos (P300,000.00) or,
in such other cases in Metro Manila, where the
demand exclusive of the abovementioned items
exceeds Four Hundred thousand pesos
(P400,000.00).
Dont confuse this with Paragraph 2, where the
jurisdictional amount is 20,000. The property involved in
paragraph 2 pertains to Real property.
Based on the discussion by Dean Alex Monteclar
Cases for recovery of Personal property like Replevin, or
collection of sum of money, the jurisdiction is with the
RTC, provide the claim or value of the property exceeds
300,000.
DARAB and the RTC
Pursuant to RA 6657 or the CARL, the jurisdiction of
the RTC to entertain agrarian cases has been
transferred to the DARAB, but there are still some
Agrarian issues wherein the RTC retains jurisdiction.
Payment of just compensation and prosecution of
criminal offenses under the CARL still lie with the RTC.
Under Section 16 of RA 6657, the DAR has summary
administrative power to initially determine the Just
Compensation, but it is the RTC that is charged with
the final determination of just compensation. After the
DARAB you can go to the RTC. You may even go
straight to the RTC.
Estacion vs. Secretary of Department of Agriculture. March
12, 2014
Facts:
The petitioner filed the petition for determination of Just
Compensation with the RTC. A motion to dismiss was filed by
respondent because according to them, the Petitioner did not
ask the DAR first to fix the just compensation, so they failed
to exhaust administrative remedies.
Held:
The RTC acting as a Special Agrarian Court or (SAC) shall have
exclusive and original jurisdiction over all petitions for the
determination of just compensation. Thus it is wrong to say
that petitioner failed to exhaust administrative remedies
when it filed the case of just compensation directly with RTC
acting as a SAC instead of going through the DARS summary
administrative proceeding as provided for under sec 16 of RA
6657. Although the CARL provides that the DAR shall
determine the amount of Just Compensation; that is only a
preliminary determination. The one who eventually decides
on that is the RTC. It is the RTC who has exclusive and original
jurisdiction over such matter.
Inclusion of Interest, Damages and etc in determination of
Jurisdiction
In the determination of jurisdiction, whether it exceeds
the 300k threshold for the RTC to take jurisdiction, you
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dont include the amount of the claim for interest,
damages of whatever kind, attorneys fees, litigation
expenses, and cost of suit.
However these are necessary in determining the
amount of filing fee; failure to allege this can be a
ground for denial of your complaint.
Ex: Case for Collection of Sum of money where the
principal amount of loan is only 250k Jurisdiction is
with the MTC, even if the amount for interest damages
and attorneys fees and interest will bring the total to
500K
Exception:
If your claim for damages is merely INCIDENTAL
to the main action, you exclude the amount in
determining jurisdiction, but if it is the MAIN
case is for damages, then the amount of the
claim will be the basis now for determining
jurisdiction. (SC Circular 09-94)
Ortigas & Company vs. Herrera. January 21, 1983
SC clarified that the jurisdiction is determined not by the title
of the complaint, but by its allegation in the pleading. Thus if
the title is for Collection of Sum of Money, but if you actually
read the complaint the amount of the money claimed is not
the main issue, but the performance of an obligation under
the contract, then the case is really that of specific
performance. An action for specific performance is one not
capable of pecuniary estimation, therefore it should be filed
in the RTC, even if the value or amount of money involved is
less than 300k, because the true nature of the action is
Specific Performance.
Decisions of Quasi-Judicial Body:
Decisions of quasi- judicial body in the exercise of its
quasi-judicial function are appealable to the Court Of
Appeals.
While its decisions in the exercise of administrative
power are appealable in the RTC.
o This was the ruling in the case of Lupangco vs CA:
Decisions of the PRC not on the exercise its
quasi-judicial function is appealable to the RTC
not to the Court of Appeals.
In order to invoke the exclusive appellate
jurisdiction of the Court of Appeals as provided
for in Section 9, paragraph 3 of B.P. Blg. 129,
Based on the discussion by Dean Alex Monteclar
there has to be a final order or ruling which
resulted from proceedings wherein the
administrative body involved exercised its quasi-
judicial functions. To expound thereon, quasi-
judicial adjudication would mean a
determination of rights, privileges and duties
resulting in a decision or order which applies to
a specific situation. This does not cover rules
and regulations of general applicability issued by
the administrative body to implement its purely
administrative policies and functions like
Resolution No. 105 which was adopted by the
respondent PRC as a measure to preserve the
integrity of licensure examinations.
Concurrent Original Jurisdiction of the RTC.
Concurrent as it can be filed in another court
Cases under this category:
o With the Supreme Court and the Court of Appeals:
All cases involving the issuance of writ of
certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction
These cases especially injunction can only be
enforced in any part of the respective region of
the RTC.
Although this cases fall under with the RTC, CA
and SC, as a matter of policy you should still file
these cases in the lower court in observance of
the rule of hierarchy of courts. But you can file
directly in the SC if you have valid reasons. (Sir
did not discuss what grounds could it be.)
o With the Supreme Court:
Cases affecting ambassadors, other public
ministers and consuls.
Appellate Jurisdiction of the RTC
All cases decided by Metropolitan, Municipal, Municipal
Circuit trial Courts in their respective territorial
jurisdiction.
No more hearing in the RTC, the court will decide on the
basis of the entire records submitted by the lower court
including the memoranda of both parties.
Jurisdiction of the MTC
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B.P. Blg. 129 was amended by RA 7691 which amended the
jurisdiction of the MTC as follows:
Sec. 33. 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:
(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
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;
(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; and
(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
Twenty thousand pesos (P20,000.00) or, in civil
actions in Metro Manila, where such assessed value
does not exceed Fifty thousand pesos (P50,000.00)
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.
Based on the discussion by Dean Alex Monteclar
Exclusive Original Jurisdiction:
1. Over all civil actions and probate proceedings,
testate and intestate, maritime and admiralty
proceedings where the value of the claim does not
exceed P300,00.00
2. Ejectment cases, forcible entry and unlawful
detainer, regardless of the value of the property.
*interests, damages of whatever kind, attorneys fees,
litigation expenses and costs of suit shall not be included in
the determination of the jurisdiction but it is very important
for the determination of the filing fee. Provided further, if
there are several claims or causes of action between the
same or different parties embodied in the same complaint,
the amount or demand shall be the totality of the claim.
(Totality Rule)
*Where the issue of ownership is raised by the Defendant,
the MTC may pass upon the issue of ownership but only for
the purpose of determining possession. It is not binding
because in Ejectment cases, the issue is only possession.
3. In all civil actions which involve title to or possession
of real property where the value of the property
does not exceed P20,000.00.
*Value shall be determined by the assessed value of the
adjacent lot if it cannot be determined from the Tax
Declaration.
Sec. 34. Delegated Jurisdiction in Cadastral and Land
Registration Cases. Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
may be assigned by the Supreme Court to hear and
determine 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.
Delegated Jurisdiction of the MTC
Jurisdiction to hear and try these cases actually belongs to
the RTC but in some instances, these may be tried in the MTC
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because this is delegated to them by the Supreme Court
through BP 129.
1. Cases involving Cadastral and Land Registration
-only when there is no oppositor; OR
-there is an Oppositor but the value does not exceed
P100,000.00.
*the value shall 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.
*Appeal should be directly to the Court of Appeals because it
decision is already equivalent to that of a decision made by
RTC.
Section 35. Special jurisdiction in certain cases. In the
absence of all the Regional Trial Judges in a province or
city, any Metropolitan Trial Judge, Municipal Trial Judge,
Municipal Circuit Trial 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 Regional Trial Judges sit. (BP 129)
Special Jurisdiction of the MTC
1. To hear, habeas corpus cases and Petitions for bail,
IN THE ABSENCE OF AN RTC JUDGE.
*These cases are supposed to be heard by the RTC.
*These cases are urgent cases that need to be
decided with dispatch.
*Only in cases of absence or unavailability of RTC
judges.
TOTALITY RULE
if there are different causes of action filed against the
same defendant, you join all the causes of action in one
claim and the total amount of all claims will determine
jurisdiction.
E.G.: Defendant issued five promissory notes in favor of
plaintiff. Upon the due of the first promissory note,
plaintiff can already file with regard that note, and
therefore may file 5 different cases for collection of sum
of money. However, if plaintiff chose to file a case only
after all the promissory notes are due and demandable,
he should join the 5 causes of action in one claim and the
total amount will be the basis to determine jurisdiction
Based on the discussion by Dean Alex Monteclar
HISTORY
American origin, the first rules in civil procedure was in
1901. This was contained in a law that was passed by our
legislative body at that time, called Act 190.
We crafted our own rules of court in July 1 1940, for the
first time.
REVISED in January 1 1964 known as the Revised Rules of
court
Further revision was made with regards the rules on civil
procedure in 1997. Renamed the New Rules in civil
procedure which took effect on July 1, 1997
This was promulgated by the Supreme Court pursuant to
its rule making power under the 1987 Constitution
particularly Art. 8, Sec. 5, par. 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 under-privileged.
The Constitution also provides for exceptions.
(exceptions:) 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.
RULE 1
GENERAL PROVISION
Section 1. Title of the Rules. These Rule shall be known
and cited as the Rules of Court.
Section 2. In what courts applicable. These Rules shall
apply in all the courts, except as otherwise provided by
the Supreme Court.
All courts means judicial courts, SC, CA, RTC, MTC.
Statutes creating special courts also provide for the
conduct in these courts. Their own rules and regulations
shall govern; the Rules of Court only apply suppletorily.
Section 3. Cases governed. These Rules shall govern
the procedure to be observed in actions, civil or criminal
and special proceedings.
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(a) A civil action is one by which a party sues another for
the enforcement or protection of a right, or the
prevention or redress of a wrong,
A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject to
the specific rules prescribed for a special civil action.
(b) A criminal action is one by which the State prosecutes
a person for an act or omission punishable by law.
(c) A special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact.
Civil action one by which a party sues another for the
enforcement or protection of his right or prevention or
redress of a wrong. This may either be a ordinary civil
action or a special civil action.
CLASSIFICATIONS
ORDINARY Rule 1 56
SPECIAL 62 -71
The rules apply to both ordinary and special civil actions.
However, there are certain rules that only apply to the
special civil action but not applicable to ordinary civil
action, but the rules in ordinary civil action can be
applied to the special civil action.
Amberti vs. Court of Appeals. (G.R. No. 79981; April 2, 1991)
The Supreme Court applied the rules of ordinary civil action
to a special civil action.
Facts: Petitioner filed a case of a special civil action for
certiorari under rule 65. But the petitioner later on decided to
withdraw the petition for certiorari. Subsequently however,
he again changed his mind and wanted to file it again.
Issue: Can he refile it?
Ruling: Under rule 65, it is silent as to the refiling of a
certiorari after it was withdrawn. The SC said, since there is
no specific rule under Rule 65 with regard refiling of
petition of certiorari after it was withdrawn, but we have a
rule under ordinary civil action. Certiorari is in a nature similar
to an appeal, even if it is an original action because the higher
court will look into the actuation of the lower court. Supreme
Court applied the rules on appeal, that when an appeal is
withdrawn, the decision will become final and executory after
the lapse of the reglementary period, but can be refiled
within the said reglementary period.
REAL ACTION recover possession or title to of a real
Based on the discussion by Dean Alex Monteclar
property or any interest therein.
o e.g.: quieting of title, accion interdictal, accion
reivindicatoria, accion publiciana, foreclosure of
real estate mortgage, partition, etcetera.
PERSONAL ACTION founded on the privity of
contract.
o e.g. when the plaintiff wanted to enforce a right
under the contract; collection of sum of money,
replevin, recovery of personal property,
damages, quasi-delict
MIXED ACTION combination of real and personal in
one case
o e.g. an action to recover a real property with
prayer for damages.
As to the PLACE OF FILING
where do we file it. The venue of the trial
1. Local Action
- if that civil action can only be filed in a particular place, the
basis is where the property is located.
- so a real action is a good example of a local action. When
you file a case to recover a real property, possession or
ownership of a real property, you file in the place where the
property is located.
2. Transitory Action
-it is true to a personal action; when it is a personal action,
you file it in the place of the plaintiff or in the place of the
defendant at the option of the plaintiff, its under Rule 4,
Venue.
- it is an action that follows the residence of the parties such
as a personal action.
As to its OBJECT
1. Action in personam
- action where the judgment of the court binds only the
parties and their privies and successors in interest.
- ex. Action to recover a property
- whether its a real or personal property, when you file a
case to recover a property, thats a personal action and
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the decision of the court generally binds you and the
defendant including your heirs and successors in interest.
2. Action in rem
- any action where judgment of the court binds not only the
parties but the whole world.
- in other words, the difference between an action in
personam and action in rem is the effect of the judgment. Is
that judgment binding only between parties and their heirs or
is that judgment binding to everyone? If it is binding to
everyone then it is an action in rem.
- ex. Action for Annulment of Marriage
- when it involves a status, it binds other people. When
the marriage is annulled by the court, everyone is
supposed to recognize that judgment and it binds
everyone.
3. Action quasi in rem
- it could be both an action in rem and an action in personam
- ex. An action quasi in rem is an action that is actually
directed only against a particular person but the purpose of
the proceeding is to subject his property to the obligation or
lien over the thing like foreclosure of mortgage.
- when a mortgage is foreclosed, it is both action in rem
and action in personam, it is actually a quasi in rem
action.
ACTION IN REM IS DIFFERENT FROM REAL ACTION
ACTION IN PERSONAM IS DIFFERENT FROM PERSONAL
ACTION
We must not confuse ourselves with action in rem and a real
action and action in personam and a personal action.
They are not the same. In fact there are many real actions
that are in personam and there are many personal action that
are in rem.
- ex. Action to recover a real property
- it is a real action at the same time it is an action in
personam. It binds only the plaintiff and the defendant.
- ex. Action to Annul the marriage
- it is actually a personal action but it is action in rem. The
effect is that it binds the whole world. It is a personal
Based on the discussion by Dean Alex Monteclar
action between the plaintiff and the defendant but the
effect of the judgment binds the whole world.
CIVIL ACTION VS SPECIAL PROCEEDING
In a Civil Action, one sues another for the enforcement or
protection of a right or the prevention or redress of a wrong.
In a Special Proceeding, a party seeks to establish a status,
right or a particular fact.
Examples of Special Proceeding Cases
1. settlement of an estate of a deceased person
2. wills and succession
3. testate and intestate proceedings
4. probate of a will
- you seek to establish your right as an heir and youre
are entitled to inherit. You seek to establish your
share to the inheritance.
5. adoption
6. action for recognition as an illegitimate child of
another person
- you seek to establish a status
In a Civil Action, there are generally two parties, the plaintiff
and the defendant, the plaintiff files a case against the
defendant in order to enforce or protect a right while in a
Special Proceeding, there is no defendant and first party, no
defendant because you just want to establish your right.
- ex. Of a special proceeding: kanang mga kaso
entitled IN RE: PETITION FOR bla bla, petitioner Juan
Dela Cruz. Usa ray party dira, Juan Dela Cruz, the
petitioner.
In a Civil Action, the period to appeal is generally 15 days,
while in a Special Proceeding, the period to appeal is 30 days
and the record to appeal is required.
The Rules of Court applies to all:
- Civil actions
- Criminal Actions
- Special Proceedings
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Some cases where the Rules of Court do not apply:
- ELECTION cases
- LAND REGISTRATION cases
- NATURALIZATION
- INSOLVENCY
- OTHER CASES not herein provided except by
analogy or suppletorily
The procedures to be observed in these cases are not
governed by the Rules of Court but by their own procedure.
Like in election cases, the procedure to be observed in
election cases is governed by the provisions of the election
code. As well as in land registration cases, they have their
own procedure; we follow the procedures there when we file
these cases.
But if the procedures of these cases are inadequate or
wanting, then we may apply the Rules of Court suppletorily.
We can apply it by analogy or suppletorily.
When is a Civil Action commenced?
GR: it is commenced by the filing of the original complaint in
court
How?
A complaint may be filed in court either:
1. Personally
- you go to the clerk of court, you deliver your
complaint, that is personal filing.
2. Registered mail
- ex. If the case falls within the jurisdiction of Davao,
the RTC of Davao City, and you dont have money for
fare to go to Davao, you may mail your complaint
addressed to the Clerk of Court of the RTC of Davao
City.
- any pleading, the official mode of mailing is by
registered mail.
But then, when you file your complaint personally or by
registered mail, it is not actually the act of delivering the
complaint that commences the action, it is actually the
payment of the docket fee.
Based on the discussion by Dean Alex Monteclar
It is not considered filed until you pay the docket fee or the
filing fee. Inig file nimu, compute-tan dayun kag filing fee.
Once you pay the filing fee, then thats the very moment that
your complaint is deemed filed, that is also the
commencement of the civil action,
If ang pagfile nimu is by registered mail, kinahanglan ipa-
taban na nimu daan ang payment of docket fee. Sa ato pa,
imu na daang ipa compute unya imung i-attach ang postal
money order in the amount corresponding to the amount of
the filing fee so that the clerk of court will accept your
complaint and thats the time that you are considered to
have commenced the civil action.
The payment of the docket fee is very important because that
is the commencement of the civil action; that is the start of
the civil action. And because of that, the Supreme Court has
become very very strict in the payment of docket fees that if
you will not pay the correct amount of docket fee, it is as if
you have not filed the complaint, the complaint did not
commence.
Manchester Devl Corp. vs Court of Appeals
The Supreme Court was very strict when it said that if filed a
complaint and you did not pay the correct amount of filing
fee, its a ground for the dismissal of your case.
Sirs discussion as to what was the practice before:
This was actually the result of the unscrupulous practice of
some lawyers in not specifying the amount of damages that
they ask when they file the case. Ngano man? Kay dili man
sad i-grant sa korte. Baws-baws rasad ni. I remember when I
was still a young lawyer, mo file gali kag civil case, normally
mo file man sad kag damages against the defendant. Ex. 1M
for moral damages. But dili na i.grant sa korte, ang mga
huwes, jealous sad kay na sila. Kamo ray madato? Kadagko ba
ninyug gipangayo nga damages. Now, when you file a case,
and you ask for damages, mubayad baya kag filing fee for the
damages that you pray. Kay ang total claim nimu shall be the
basis for filing fee. Its not necessary to determine jurisdiction
but its necessary for the determination of how much filing
fee you will have to pay. So mangayu kag daku nga damages,
be prepared to pay daku pud nga filing fee. Now muadto ka
sa korte, manga kag 1M, ang i-grant sa korte 50k ra, alkansi
ka kay nakabayad naka ug daku nga filing fee, diba? So naka-
imbento ang uban mga abogado, ang ilang buhaton, they file
a case, they ask for damages, but dili nila i-specify ang
amount, so dili makabaw ang clerk of court kung pila iyang i-
assess nga filing fee. Ibutang ra didto Plaintiff asks for
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damages in the amount left to the sound discretion of the
court. So that has been the practice for many years until the
Supreme Court noticed this.
Then the Supreme Court suddenly came to a ruling in the
case of Manchester vs Court of Appeals when it says that
when you ask for damages, you have to specify the amount of
damages you are asking otherwise your case will be dismissed
because you evade paying filing fee.
So in this case, that payment of the correct amount of filing
fee, because you did not specify the correct amount of
damages you are asking, could be a ground to dismiss your
complaint.
BUT LATER ON, THE SUPREME COURT HAD A CHANGE OF
MIND
(Kay gisaway man ug maayu ang Supreme Court aning ruling-
nga, ana sila Ah sharo man sad aning Supreme Court perting
strictoha)
Recap of Principles
o Nonpayment of the correct amount of the filing fee
because you did not specify the correct amount of
damages you are asking is a ground to dismiss the
complaint. (Manchester Case)
o The ruling in the case of Manchester has already been
relaxed. The court will not anymore dismiss the case if
the amount of damages being asked is not specified.
Instead, the court will give the plaintiff the chance to
amend his complaint (except if the prescriptive period
has already prescribed), to specify the amount of
damages and to pay the corresponding docket fee. (Sun
Insurance Office vs. CA)
o If the court has acquired jurisdiction over the principal
action because the plaintiff has paid the corresponding
docket fee, the nonpayment of filing fee for the damages
claimed should not be a ground to dismiss the case. The
plaintiff will be given the chance to amend his complaint
and specify the amount of damages he is asking and pay
the correct amount of the filing fee. (Takay vs RTC of
Tagum City)
- Takay case involved an accion publiciana where
RTC has jurisdiction. The filing fee is for the accion
publiciana. But he did not pay filing fee for the
damages claimed because he did not specify it.
Citing the case of Manchester, the defendant filed a
motion to dismiss. However, the court did not
dismiss it because anyway it already acquired
jurisdiction on the principal action.
Based on the discussion by Dean Alex Monteclar
o The SC in Sun Insurance case said that when the court
awards damages and the corresponding filing fee for
those damages was not yet paid, then the amount of the
filing fee will be a lien on the amount of damages
awarded.
- Later on clarified by SC in the case of Ayala Corp
vs. Judge Madayag. The court can only award
damages which are not specified in the complaint if
these damages arose only AFTER the filing of the
complaint. If the damages are already determinable
at the time of the filing of the complaint, they must
be specified and alleged in the complaint, otherwise
they are DEEMED WAIVED. The court cannot
anymore award damages that are not specified in
the complaint because these damages already
existed at the time of the filing. But if the amount of
damages is not yet existing or determinable at the
time of the filing of the complaint, the court may
award these damages as proven and then the filing
fee for these damages will be a LIEN for the amount
awarded.
RULE OF LIBERAL CONSTRUCTION OF THE ROC
o Gen. Rule: The provisions of the Rules of Court shall be
liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of
every action and proceeding.
Exception: The court will not interpret the rules
liberally when it comes to reglementary period to
file pleadings or appeals. The court is very strict in
the observance of the period because these are
necessary for the speedy disposition of the cases.
RULE 2
Cause of Action
Section 1. Ordinary civil actions, basis of. Every ordinary
civil action must be based on a cause of action. (n)
o Cause of Action act or omission by which a party
violates the right of another person.
Elements:
1. There must be a right pertaining to the plaintiff;
2. There must be a corresponding obligation on the part of
the defendant to respect the right of the plaintiff;
3. There must be a violation of plaintiffs right by the
defendant;
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4. That there must be damage. o The cause of the dismissal could either be litis pendentia
or res judicata.
o Right of Action a consequence of cause of action. This
is the right of the plaintiff to bring an action and to o The singleness of a cause of action is determined by the
prosecute that action until the final judgment. singleness of the delict or wrong committed by the
defendant and not by the number of remedies that the
Elements: law grants to the injured party. It is possible that the law
grants you several remedies from a single act committed
1. Plaintiff must have a good cause of action against the by the defendant but it does not mean that you can avail
defendant; of all these remedies at the same time.
2. Plaintiff must have performed all the conditions precedent
to the filing of the action (ex. certification to file action from o Rules:
the barangay, earnest effort to settle the matter amicably if
the litigants are family members). 1. Even if a contract contains several stipulations, there is
only cause of action (only one act violative of several
CAUSE OF ACTION RIGHT OF ACTION stipulations in the contract);
1. The delict or the wrong 1. The right of the plaintiff to 2. A contract containing several stipulations to be
committed by the defendant; file an action in court performed at different times gives rise to as many causes
because of the cause of of action as there are violations.
action;
- But when all the obligations are already due at the
2. Created by substantive 2. Regulated by procedural time you decided to file a case, then you should only
law; law; file one case (Joinder of Causes of Action).
3. Cannot be lost by 3. Can be lost by - When it is already clear that your failure to comply
prescription. prescription. with one of the several stipulations in a continuing
contract, it constitutes total breach and a single
Section 2. Cause of action, defined. A cause of action is the cause of action for damages.
act or omission by which a party violates a right of another.
(n) Section 5. Joinder of causes of action. A party may in one
pleading assert, in the alternative or otherwise, as many
Section 3. One suit for a single cause of action. A party may causes of action as he may have against an opposing party,
not institute more than one suit for a single cause of action. subject to the following conditions:
(3a)
(a) The party joining the causes of action shall comply
o Rule: When there is only one cause of action, there must with the rules on joinder of parties;
be only one case to be filed. You cannot file two or more
cases arising from a single cause of action because that o Joinder of parties will occur when the parties are joined
would be splitting of a single cause of action which is together because the incident arises out of the same
prohibited. transaction or series of transaction and there is a
common questions of fact and law involved.
- Ex. A borrowed money from B. On due date, A did
not pay so B filed a case. Here, B has only one cause -Ex. Vehicular accident because of the negligence of
of action. However, he filed an action for the the driver and several passengers were injured. So
collection of the principal amount, another one for each of these passengers has a cause of action but
the interest and another one for damages. This is they may join together and file only one case.
prohibited.
(b) The joinder shall not include special civil actions or
Section 4. Splitting a single cause of action; effect of. If two actions governed by special rules;
or more suits are instituted on the basis of the same cause of
(c) Where the causes of action are between the same
action, the filing of one or a judgment upon the merits in any
parties but pertain to different venues or jurisdictions,
one is available as a ground for the dismissal of the others.
the joinder may be allowed in the Regional Trial Court
(4a)
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and

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Based on the discussion by Dean Alex Monteclar
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o You can join a case cognizable by the MTC and case
cognizable by RTC and the joinder should be in the higher
court i.e., RTC.
(d) Where the claims in all the causes action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (5a)
o This is the Totality Rule
Section 6. Misjoinder of causes of action. Misjoinder of
causes of action is not a ground for dismissal of an action. A
misjoined cause of action may, on motion of a party or on the
initiative of the court, be severed and proceeded with
separately. (n)
o There is misjoinder causes of action when two or more
causes of action are joined in one complaint when they
are ought not to be joined. (Ex. Joining accion publiciana
case and a forcible entry case which is a special civil
action)
NOVEMBER 13, 2015
RULE 3
PARTIES TO CIVIL ACTION
ENTITIES AUTHORIZED BY LAW
Rule 03, Section 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.
These are the entities are not juridical persons nor natural
persons, but they are allowed by law to file a case before the
court.
Ex. Estate of the deceased. Labor Union even if not
registered. Political Party. Roman Catholic Church.
PARTIES TO A CIVIL ACTION
Generally, two parties. The plaintiff and the defendant. Civil
action must be brought, prosecuted or defended, by a real
party in interest.
REAL PARTY IN INTEREST
Based on the discussion by Dean Alex Monteclar
Rule 03, Section 2. Parties in Interest.- a real party in
interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party
entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must
be prosecuted or defended in the name of the real
party in interest.
DIFFERENT KINDS OF PARTIES IN INTEREST
INDISPENSABLE PARTY- without whom no final
determination can be had of an action. Who must be
included. Inclusion is mandatory.
Rule 03, Section 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.
NECESSARY PARTY- who are not indispensable but ought to
be party for complete determination of the case.
Rule 03, Section8. 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.
REPRESENTATIVE PARTY- who prosecute or defend for and In
behalf of real party in interest. He is not actually a real party
in interest, but represents a real party in interest.
Rule 03, Section 3. Representative as parties.-where
the action is allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the real
party in interest. A representative may be a trustee
of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be
sued without joining the principal except when the
contract involves things belonging to the principal.
PRO FORMA PARTY- those who are required to be co-parties
in a suit as provided for by law. Example: Husband and wife
as parties.
Rule 03, Section 4. Spouses as parties. Husband
and wife shall sue or be sued jointly, except as
provided by law.
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Normally, when you file a case against a wife, you have to
implead the husband. Exception in the Family Code is when
the property involved is the exclusive property of the wife;
then the husband need not be impleaded as a party. Minors
or incompetent persons must be represented by their parents
or guardians. They can be parties in a civil action, but they
cant be parties alone, they have to be assisted by their
guardians/parents.
PERMISSIVE JOINDER OF PARTIES
Rule 03, Section 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 form being embarrassed or
put to expense in connection with any proceeding in
which he may have no interest.
If there are several persons, as plaintiffs or defendants, and
they have their respective causes of action but they can be
joined because they have a common question of fact or law.
When one or two persons may join in one complaint provided
that the following conditions are present (PERMISSIVE
JOINDER OF PARTIES):
1. There is a right to relief in favor of or against the
parties joined in respect to or arising out of same
transaction or series or transaction.
2. There is a question of law or fact common to the
parties joined in the action
Each party has a cause of action but joined together to file
one case.
Example: vehicular accident. A bus met an accident because
of the negligence of the driver. Several passengers were
injured. Each of these passengers has a cause of action
against the operator and may file individual case against the
operator, but they may be joined to file one complaint. When
there is a Joinder of Parties, there is also Joinder of Causes of
Action although it is due to each of the passengers. As to the
elements, they are bound by their right to relief arises out of
the same transaction, there is one incident/ accident. There is
common question of law or fact, the issue is the same.
Based on the discussion by Dean Alex Monteclar
Indispensable Party as already mentioned is one who must be
included in the suit, for without him there can be no final
determination of the case. Joinder of indispensable party is
mandatory. This is what we call COMPULSORY JOINDER OF
INDISPENSABLE PARTY. (Rule 03, Section 7)
Necessary Party need not be joined, he is not indispensable
but ought to be joined if you want complete relief or
complete determination of settlement of claim.
Example 1. Collection of Sum of Money. When the debtor
borrowed money, there is a guarantor who also signed the
promissory note. Here, if you file the case against the debtor,
the guarantor is not an indispensable party, but a necessary
party and so need not be impleaded as party to the case. But
if you want complete relief, you should implead both debtor
and guarantor.
Example 2. Recovery of Parcel of Land. The person occupying
the land occupies the same not under the concept or claim of
ownership. The person occupying is a lessee with Mr. X as
lessor. Mr. X is an indispensable party, who claims ownership
over the land. If you file the case against the tenant, it will not
finally dispose the case because the lessee is not claiming to
be the owner of the property. The tenant is only a necessary
party.
NOT IMPLEADING NEC. PARTY; EFFECT
You may or may not include a necessary party to a case but
according to the rules, but you decide not to include him, you
must make an explanation in your complaint, because if you
do not implead a necessary party the court may ask you to
implead him, and if you do not follow the order of the court
to implead him, you will lose your right to recover from that
necessary party.
An explanation you could give as to why the necessary party
not impleaded is, for example, impleading the necessary
party would delay the case as when the necessary party can
no longer be found in the country.
Example. Collection of Sum of Money. You file a case against
the debtor. You may not implead the guarantor. But if you
want a complete relief, it is better to implead the principal
debtor and his guarantor.
Guarantor is a person who pays if the principal debtor cannot
pay. Surety, on the other hand, is a person solidarily liable;
jointly and severally liable with the principal debtor. Surety is
not an indispensable party. You can sue the principal debtor
or you may sue only the surety. If you sue only the surety,
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you must explain to the court why principal debtor is not
impleaded.
o In a suit against the surety, the principal debtor is only a
necessary party. If you only sue the surety (considering
that he is solidary liable and thus can be compelled to
pay the whole obligation of P1million), you have to
explain to the court why you did not include the principal
debtor. Maybe you can say that I did not include the
principal debtor because I cannot find him anymore. Its
hard to serve the summons on him and it would only
delay the proceedings.
o In a suit against the principal debtor, a surety is not an
indispensable party but only a necessary party.
o If there is a person who ought to be made a party to the
case and he was not impleaded, what is the effect of
that? First, you ask yourself, is he an indispensable party
or a necessary party? If he is an indispensable party, he
must be joined. But if he is a necessary party, he may or
may not be included.
Non-joinder of necessary party; effects
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 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.
What is the rule against an unwilling co-plaintiff?
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 therefore shall be
stated in the complaint.
o When a person ought to become a plaintiff but he is not
willing to cooperate, he does not want to file the case
with you, then you include him as one of the defendant,
but you have to state unwilling co-plaintiff.
Based on the discussion by Dean Alex Monteclar
o Example: A parcel of land is co-owned by three persons
two brothers and a sister. They inherited the land from
their parents but the land was claimed by another
person. So the eldest brother says We will have to file a
case against that person who is now claiming the land.
All three siblings are indispensable parties. All co-owners
must be impleaded as plaintiff. If one of them will not
join, the case will not prosper. If one of the indispensable
parties is not willing to cooperate, then the only way is to
implead him as a defendant. He will be included as an
unwilling co-plaintiff.
What is the effect of a misjoinder or non-joinder of parties?
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.
o What do you mean by misjoined? It means that he is not
supposed to be there. He is not supposed to be included
in the case. So theres a misjoinder of a party-plaintiff or
a party-defendant. What will be the effect of that? Is that
a ground for dismissal? No. He will just be removed from
the list of plaintiffs or defendants.
o If there is non-joinder of parties; meaning, a party who
should be included there but he was not joined, an
amendment can be had on the complaint. Its not a
ground for the dismissal of the case.
Class Suit
Sec. 12. Class suit. When the subject matter of the
controversy is one of common or general interest to many
persons so numerous that it is impracticable to join all as
parties, a number of them which the court finds to be
sufficiently numerous and representative as to fully protect
the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to
intervene to protect his individual interest.
o In a class suit, there are several parties. They are so
numerous that it becomes impracticable to join all of
them.
Example of a class suit: taxpayers suit
o When the government imposes a tax affecting a group of
individuals, this group may question the validity or
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constitutionality of the tax imposed by the government.
But its not necessary that all of them will be made as
party-plaintiff. For example, a tax imposed on sugar
planters for whatever production they made. There are
hundreds of sugar planters, hacienderos, all over the
country. If they are affected by that particular legislation,
they may decide that law but its not necessary that all
sugar planters will sign the complaint. They can be
represented by a group of them. Generally, their officers.
They have an organization of sugar planters. The officers
may file a case questioning the validity of the law. That is
a good example of a class suit.
Class suit vs. Joinder of parties
o In a class suit, there is actually only one cause of action
that is common to all who belong to that particular class
or group.
o In joinder of parties, each of the parties joined have a
cause of action against the defendant. They are bound
together by a common transaction or series of
transactions and there is a common question of law or
fact involved. But each one of them has a cause of action
separate and distinct from the others.
Requisites of a class suit:
1. The subject matter of the controversy is one of
common or general interest to many persons;
o They are bound by a common cause of action
against the same defendant
o If they have separate causes of action against
the defendant, it is no longer a class suit but a
joinder of parties
2. The parties are so numerous that it is impracticable
to join all as parties;
3. A number of them sufficiently numerous and
representative as to fully protect the interests of all
concerned, sues or defends for the benefit of all.
Some jurisprudence
Sulo ng Bayan vs. Araneta 72 SCRA 247 (1976)
FACTS: This concerns the big property of the Aranetas in
Quezon City. It has been the subject matter of litigation for
the past years three or four decades. It is a big track of land
in Quezon City occupied by so many squatters who
subdivided the land. They now question the title of the
Aranetas. Sulo ng Bayan, the association of squatters, filed a
Based on the discussion by Dean Alex Monteclar
case against the Aranetas to annul the title of the latter. They
filed the action as a class suit.
ISSUE: Whether or not the action was properly pleaded as a
class suit.
SC: No. In a class suit, the subject matter is of common
interest to all. Each squatter has an interest different from
that of the other squatters. The interest of one occupant is
only on the land he occupies. Each one of them has a cause of
action separate and distinct from his neighbors. This is not a
class suit but of a joinder of parties. There is a common
question of fact or law but each one of us has a separate
cause of action against the same defendant.
The same ruling was applied in the case of
Bulig-Bulig Kita Kamag-anak Association vs. Sulpicio Lines
Inc.
Re: Doa Paz Tragedy
FACTS: This is a case of a passenger vessel which sunk off the
coast of Leyte. On the way from Tacloban, Leyte to Manila,
the vessel collided with a tanker. It exploded and almost all
passengers died. Relatives of the deceased passengers
formed an association and filed a case against Sulpicio Lines.
There was an attempt to file a class suit in behalf of everyone
who were drowned including those who were not identified.
SC: This is not a class suit. Each relative has a cause of action
against the shipping company separate and distinct from that
of the others. The survivors have no interest in the death of
the other passengers. This is a case of joinder of parties, not a
class suit.
Oposa vs. Factoran 224 SCRA 12 (1993)
Minors represented by their parents filed a case against then
DENR Secretary Factoran. The prayer in the case is to order
the DENR to cancel all existing Timber License Agreements
(TLAs), to cease and desist from proceeding, accepting,
processing and renewing TLAs. In effect, it prays for a total
log ban in the country to preserve the remaining forests all
over the Philippines. Plaintiffs were suing in their behalf and
in behalf of the citizens who stand to suffer if the
environment will be deteriorated. They say that they
represent their generation and generations yet unborn.
Supreme Court considered the suit as a class suit. There was a
common cause of action. The personality of the minors to
sure for the succeeding generations is based on the concept
of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Every
generation has a responsibility to preserve the ecology. The
minors right to a healthful environment constitutes at the
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same time the performance of the obligation to ensure the
protection of the rights of the generations to come.
Alternative defendants
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.
o Example: You ship goods by sea from Manila to Cebu
through Southern Gothong Shipping Lines. Once the
goods reached the port of Cebu, the same were
damaged. You seek to hold the carrier liable but the
latter denied liability saying that it was actually the
arrastre operator which caused the damage to the
goods. But the arrastre operator also denied liability
saying that the goods were already damaged when they
arrived on port. So you are not sure who to hold liable
for the damages to your goods. In this case, you can sue
both the carrier and the arrastre operator in the
alternative. Thats what we call alternative defendants.
Suing an unknown defendant
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.
o You can even sue persons who are not registered as a
corporation or any other business entity.
o Example: XYZ Enterprises (not a corporation) supplies
construction materials. You entered into a transaction
with it but the latter defaulted in its obligation as
supplier. You learned that its owned by two or three
persons but you do not know their names. You can sue
them in the name of their business (i.e. as XYZ
Enterprises). If later on, the name of the owners surface,
you can amend your complaint to now include the real
owners or proprietors of that business.
o Okay, thats also true with this one entity without
juridical personality.
Lets go to the effect of death. What is the effect of death on
a pending case? What happens if during the pendency of a
civil action? A party dies? Will the case continue?
Based on the discussion by Dean Alex Monteclar
Well, the first question you should answer is this: Is it an
action that survives, or an action that does not survive?
DEATH OF A PARTY DURING THE PENDANCY OF A CASE
Whether the case should be dismissed or not, it depends on
the kind of action that was filed.
2 kinds of Civil Action: Survives and does not Survive
SURVIVES Most of the actions under our law are
actions that survive.
o Substitution of a party may take place. It is the duty
of the lawyer to immediately the court of the ff:
the death of his client within 30 days
who are the heirs or the representative of the
deceased party for the substitution of the
parties.
If the lawyer fails to inform the court, it would produce a fatal
effect because the entire proceeding will be null and void.
The lawyer of that party seizes to represent the deceased
party. Any judgment which will be rendered against the
deceased party, it will not bind the heirs of the latter because
the proceeding is not valid.
If the lawyer fails to inform the court, the latter may even
impose punitive penalties to the former because he is causing
delay to the proceeding.
The lawyer cannot also presume that the heirs of the
deceased party will continue to hire him.
Who will substitute the deceased party?
Under the Rule, preference is given to the
executor or the administrator of the estate of
the deceased. Between the
executor/administrator and the wife and
children, the executor is preferred to take the
place of the deceased party.
If no executor or administrator, the heirs will
be the one to substitute the deceased party.
o If the lawyer informs the court that his client is dead,
but he fails to inform the court who will substitute
the deceased party, the other party may be allowed
by the court to appoint the substitute to represent
the deceased party in the case as an administrator of
the estate.
o Examples of action that survives:
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Collection of Sum of Money
breach of contract
recovery of personal property
DOES NOT SURVIVE actions that are very personal. The
action dies with the party.
o Ex: Annulment of Marriage, Legal Separation
DEATH OF THE PLAINTIFF/DEFENDANT IN A MONEY CLAIM
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.
If it is the plaintiff who died, the executor/ administrator/
heirs of the plaintiff may substitute.
If the defendant who died, substitution of parties will also
take place.
Old Rule: (not anymore applicable) the case is dismissed and
the plaintiff is asked to re-file his case for the settlement of
the estate of the defendant.
The New Rule now allows the case to continue until the entry
of final judgment.
How to execute?
You cannot ask for a writ of execution until the
judgment becomes final and an entry of judgment is
rendered, you must now present your claim in the settlement
of the estate of the defendant. You will be presenting it as an
ordinary claim but you need not present evidence to support
your claim because it was already decided by a court. What
you do is to give (the judgment) to the
executor/administrator of the estate of the defendant.
Based on the discussion by Dean Alex Monteclar
If the defendant dies after there is already a judgment
rendered by the court, and the judgment is already final. In
fact, a writ of execution was already issued by the court and
the sheriff already levied some properties of the defendant at
the time of the death of the defendant. Can the execution
proceed? Yes, because there is already a levy. The sheriff can
sell the property levied. In other words, the properties levied
will no longer be included in the estate of the defendant to
be settled by the executor. (if there is excess from the sale of
the auction sale, it will be given to the executor/administrator
to be added to the estate of the defendant)
If the defendant dies before the levy of the execution,
special levy before judgment, the court will proceed with the
judgment, and once there is already a judgment that is final,
no more writ of execution, just present the final judgment in
the settlement of the estate of the deceased defendant.
DEATH OF A PARTY WHO IS A PUBLIC OFFICER
Depending on whether you want to go on with the policy
started by the deceased public officer.
INCOMPETENCY OR INCAPACITY OF A PARTY
If during the pendency of the case the party becomes
incompetent, then the case can still continue. That party will
be substituted by his legal guardian as appointed by the
court.
TRANSFER OF INTEREST
During the pendency of the case, the defendant transferred
his interest over the property which is the subject matter of
the case, can the case go on? Yes, in the name of the original
defendant or at the option or discretion of the court, it can
order the substitution of the transferee in lieu of the
defendant. If there is no substitution, the defendant will still
be the defendant because, anyway, the transferee is bound
by the decision of the court against the defendant.
INDIGENT PARTY/LITIGANT
He will be exempted from the payment of the docket fee. But
the amount of the docket and other lawful fees which the
indigent was exempted from paying shall be considered a lien
on any judgment rendered in the case favorable to the
indigent party, unless the court orders otherwise.
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QUESTIONING THE VALIDITY OR CONSTITUTIONALITY OF
ANY LAW/ TREATY/ ORDINANCE/ EXECUTIVE AGREEMENTS
Notice to the Solicitor General is necessary.
Why? The SolGen is the lawyer of the government.
RULE 4
VENUE
VENUE the place where the action must be instituted/tried.
Depends on the kind of action.
Kinds of action: Real or personal
Real Actions those that affect title to or position of a real
property or real interest therein. It must be filed in the proper
court which has jurisdiction over the area where the real
property involved (or a portion thereof) is situated/located.
MTC Assessed value of the real property is P20K
and below
RTC over P20K
Forcible Entry and Unlawful detainer actions shall be tried in
the MTC of where the real property thereof is
situated/located.
Personal Action All other actions maybe commenced and
tried where the plaintiff or any of the plaintiff resides, or
where the defendant or any of the principal defendants
reside, or in case of a non-resident defendant, where he may
be found at the election of the plaintiff.
In short, it is the residence of the plaintiff or
defendant at the option of the plaintiff.
Residence here refers to the actual residence where
you actually reside.
Venue of action against non-resident defendant.
Section 3. Venue of actions against nonresidents.
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.
When can you sue a non-resident defendant?
2 instances (Sec 3. Rule 4)
Actions that may be filed against a non-resident defendant
who does no reside and is not found in the Philippines:
Based on the discussion by Dean Alex Monteclar
1. Actions that affects the personal status of the plaintiff; or
Annulment of Marriage it affects the status, How
will the court gain jurisdiction when the plaintiffs
whereabouts were unknown? The court gain
jurisdiction by giving public summons.
Recognition of Illegitimate Child.
2. Actions that affects the property, or any portion thereof,
of said defendant located here in the Philippines.
Real Action.
When Rule on Venue Not Applicable (Sec. 4 Rule 4)
(a) In those cases where a specific rule or law provides
otherwise;
Libel. RPC specifically provides for that it is to be
filed to the place where first published or the
place of the plaintiff.
Article VIII, Sec. 5(4), 1987 Constitution the SC
may order a change of venue or place of trial to
avoid a miscarriage of justice.
(b) Where the parties have validly agreed in writing before
the filing of the action on the exclusive venue thereof.
Ex: When the contract provides that in case of
breach, the action shall be filed ONLY in Metro
Manila regardless of the residence of the parties.
The important thing is that the venue must be
EXCLUSIVE by using RESTRICTIVE word (one and
only venue)(Polytrade vs Blanco)
Polytrade vs Blanco: When the parties stipulated
on the venue of the action, other than those found
in the Rule of Court, the stipulated venue is
considered only as an ADDITIONALVENUE in
addition to where the parties reside. Unless the
stipulation contains RESTRICTIVE words which
shows the intention of parties to limit the place
stipulated as the exclusive venue
If it does not provide QUALIFYING WORDS That
means the venue stipulated is JUST AN
ADDITIONAL VENUE. Ex: It shall be filed in Manila.
There is no restrictive word.
o EXCEPTION to (b): Sweet Lines vs Teves :
CONTRACT OF ADHESION
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People from Cagayan de Oro bought a ticket to have a
trip to Cebu, and from Cebu another boat to carry them to
Tagbilaran. They were not allowed to board because there is
no more space. When they went back to Cagayan, they filed
case in CAGAYAN. Sweet Lines moved to dismiss the case
alleging that the contract (the ticket) it is stipulated that all
actions that may arise from the contract MUST BE FILED ONLY
IN CEBU.
SC held that the case should not be dismissed because of
improper venue BECAUSE THE CONTRACT IS A CONTRACT OF
ADHESION. Contract of Adhesion is a contract prepared by
one party and that the other party is made to adhere to it.
They are forced to adhere to the contract, no choice but to
agree in order to avail the contract of carriage.
If the contract contains qualifying words as to the
exclusivity of the venue, that contract is void if it is a contract
of adhesion.
EXCEPTION to the EXCEPTION: Arquero vs
Flojo/ Filipino vs Tecson
This involves a Telegram. A Mayor from Ilocos sent a telegram
to Congressman in Manila at the back of the telegram is the
contract (the same as to the ticket). When he visited the
congressman to follow up his request payment was
collected from the congressman. He was embarrassed, etc.
He went back to Ilocos, filed a case. Telegram company said
that it should be filed in Manila. Mayor invoked SWEET
LINES.
SC held that the contract is valid and the case must be
dismissed. This case is different with Sweet Lines. The Mayor
is also a Lawyer, it is presumed that he should read every
document he sign. Unlike Sweet Line were the plaintiffs are
only ordinary people.
Pilipino Telephone Communication vs Tecson
This involves 6 subscription contracts for cellular
telephones each covered by a mobile line service agreement,
the subscriber challenged the provisions in said agreements
providing that the venue for all suits arising therefrom shall
be in the proper court of Makati, with the subscriber waiving
any other venue. The SC sustained the validity of that venue
stipulation, considering that the subscriber has sufficient
opportunity to go over such stipulation during each time he
signed those agreements, as well as in the subsequent
subscriptions he acquired while remaining as subscriber for
some time.
Based on the discussion by Dean Alex Monteclar
RULE 5
Uniform Procedure In Trial Courts
Section 1. Uniform procedure. The procedure in the
Municipal Trial Courts shall be the same as in the Regional
Trial Courts, except (a) where a particular provision expressly
or impliedly applies only to either of said courts, or (b) in civil
cases governed by the Rule on Summary Procedure. (n)
Section 2. Meaning of terms. The term "Municipal
Trial Courts" as used in these Rules shall include Metropolitan
Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts, and Municipal Circuit Trial Courts. (1a)
A. Uniform procedure:
The procedure in the MTC shall be the same as in the
RTC except:
1. Where a particular provision expressly or
impliedly applies only to either of said courts; or
2. In civil cases governed by the Rule on Summary
Procedure.
100k below* summary proceeding
Over 100k ordinary civil action
*Starting Feb. 1, 2016, Small Claims Jurisdictional value has
been raised to 200k
In Summary procedures, the court may just dispense of
the trial. It will just ask the parties to file memorandums and
decide right away.
Procedure In Regional Trial Courts
RULE 6
Kinds Of Pleadings
Section 1. Pleadings defined. Pleadings are the written
statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment. (1a)
Section 2. Pleadings allowed. The claims of a party are
asserted in a complaint, counterclaim, cross-claim, third
(fourth, etc.)-party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him.
An answer may be responded to by a reply. (n)
Pleadings allowed in Court:
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1. Complaint fraud, statute of limitations, release, payment, illegality,

statute of frauds, estoppel, former recovery, discharge in
2. Answer bankruptcy, and any other matter by way of confession and
3. Counterclaim avoidance. (5a)

4. Cross-claim
2 Kinds of Defenses:
5. Reply
1. Negative defense defenses denying the material
6. Third party complaint (fourth, Fifth, etc.) averments in the complaint. HOW TO DENY? There
must be SPECIFIC DENIAL.
*You can classify them into two: Initiatory Pleading &
Responsive Pleading Every paragraph must be specifically
denied.
2 Kinds of Pleading: Example: (Specific Denial) I am denying
paragraph 1. The truth of the matter is etc.
1. Initiatory Pleading sets into motion a particular
action in court 2. Affirmative Defenses a defense of confession and
avoidance because while the defendant may admit
2. Responsive Pleading your answer to the pleading the material averments in the complaint, however,
filed by the other party he will plead a new matter which will prevent
recovery by the plaintiff.
Section 3. Complaint. The complaint is the pleading Example: (Prescription) I admit that I
alleging the plaintiff's cause or causes of action. The names borrowed money from you and I have not
and residences of the plaintiff and defendant must be stated paid. But you cannot anymore collect
in the complaint. (3a) because your action has already prescribed.
It is also known as the initiatory pleading Example: (Statute of Frauds) We may
The allegations in the complaint must contain the 4 have entered into a contract but it is not
elements of causes of action: enforceable in court because it is not in
writing.
a) The right
Example: (Illegality) You cannot claim
b) The obligation from me because the contract is illegal.

c) Delict or wrong committed in violation of Example: Estoppel

your right
Section 6. Counterclaim. A counterclaim is any claim which
d) Damage a defending party may have against an opposing party. (6a)

Section 7. Compulsory counterclaim. A compulsory

Section 4. Answer. An answer is a pleading in which a
defending party sets forth his defenses. (4a)
Section 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
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 counter-claim may be
considered compulsory regardless of the amount. (n)
Which claim may arise out of the same transaction
which is the subject matter of the complaint or it
may arise out of a different transaction.

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Based on the discussion by Dean Alex Monteclar
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Example:
You ask damages from me as your contractor. I
filed a counterclaim against you saying that on the
contrary, you are the one who is negligent and I
ask damages from you.
The counterclaim is set up in the answer, I will
include whatever claims I have against you. This
claim might arise out of the same transaction or of
the same transaction.
2 Kinds of Counterclaim
1) Compulsory Counterclaim arises out of the SAME
contract
Ex: Breach of Contract A filed against B for
breach of contract. B counterclaimed that it is
not him who is negligent but A for not
complying with the terms of the contract.
2) Permissive Counterclaim counterclaim against you
which is the subject matter of ANOTHER Contract
but may nevertheless set up against your complaint
Ex: A promised to pay B, but A did not pay. But A
counterclaimed that B also is indebted to him
for a long time.
Elements of a compulsory counterclaim
a.) A compulsory counterclaim is a counterclaim that is
cognizable by a regular court of justice.
You cannot put up a counterclaim that is cognizable
by a quasi-judicial body by a court that is not a
regular court.
b.) It arises out or is connected with the transaction or
occurrences constituting the subject matter of the
opposing parties.
c.) It does not require for its adjudication the presence
of third parties whom the court cannot acquire
jurisdiction.
In other words, you cannot set up a counterclaim if it
will involve another person which the court cannot
acquire jurisdiction because it will cause delay.
d.) It must be within the jurisdiction of the court both as
to the amount and the nature thereof except that in
the original action before the RTC, the counterclaim
maybe considered compulsory regardless of the
amount.
Based on the discussion by Dean Alex Monteclar
e.) The defending party has a counterclaim at the time
he files his answer.
Q: Can you file a counterclaim in a criminal case? When a
criminal case is filed, the civil aspect is deemed instituted in
the criminal case. If I file a criminal case against you, I include
in that criminal case my claim for damages against you. The
civil aspect is deemed impliedly instituted to the criminal case
that I filed. That is also true if would hire a private lawyer to
prosecute the criminal case.
Q: Can you file a counterclaim against me in a criminal case
that I filed? That was answered by the SC in this case. First in
the case of Javier vs IAC, 171 SCRA 605(ABANDONED), the SC
said that when the civil action is deemed impliedly instituted
in a criminal action, the accused may set up a compulsory
counterclaim against the complainant in the criminal case.
That ruling has already been abandoned in the case of
Cabaero vs Campos.
Cabaero vs Campos 271 SCRA 392, en banc
Facts:
Between Sept 1987 to October 1987, Cabaero induced
Epifanio Ceralde to advance 1,550,000 to be paid to MC
Castro Construction Co. as payment for 6 parcels of land in
Pangasinan. Accused promised to pay back Ceralde as soon as
the loan applied by their biz venture, Aqualand Ventures and
management, would be released by SOLIDBANK.
Perez falsely pretended that shes given the authority to
receive the check and induced the cashier to release the
same. Ceralde never received his money back. Upon
arraignment, petitioners entered plea of not guilty and later
filed an Answer with Counterclaim alleging that the money
loaned was duly applied to the purchase of lands and that the
filing of said info was unjustified and malicious. During initial
hearing, prosecution moved that the answer with
counterclaim be expunged from records on 2 grounds:
a.) TC had no jurisdiction over the answer with
counterclaim for non-payment of the prescribed
docket fees.
b.) Compulsory counterclaim against complainant is
barred for failure to file it before arraignment.
Judge granted motion and denied petitioners motion for
reconsideration.
Issue: WON answer with counterclaim is proper.
Ruling:
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RULE FROM JAVIER CASE:
A civil case for malicious prosecution should be filed as a
compulsory counterclaim in the criminal action. The filing of a
separate civil action for malicious prosecution would have
resulted in the presentation of the same evidence involving
similar issues in 2 proceedings: the civil action impliedly
instituted with the criminal action and the separate civil
action for damages for malicious prosecution.
Source of problem:
a.) ROC does not provide the procedure for
counterclaims in cases where there is the implied
institution of a civil action in a criminal case.
b.) Judgment in a criminal action is not required to
provide for the award of counterclaim:
Sec 2, Rule 120: Only civil liability or damages caused by the
wrongful act to be recovered from the accused by the
offended party, if there is any, unless the enforcement of the
civil liability by a separate action has been reserved or
waived.
1 . Allowing counterclaims will complicate disposition of
case: includes application of rules of civil actions.
2 . Counterclaim may be filed only after initial hearing
because private complainant may still reserve his
civil action at any time before evidence is presented.
VALID COUNTERCLAIM but cannot be tried together with
criminal case.
In a case, the SC said that a counterclaim of the accused
cannot be tried together with the criminal case because it will
unnecessarily complicate and confuse the criminal
proceeding.
Controlling Rule: No counterclaim for damages can be filed
in a criminal proceeding. If you have a counterclaim you treat
it as a separate civil action because in a criminal case it will
only confuse the criminal proceeding.
Section 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.
Based on the discussion by Dean Alex Monteclar
The cross-claim presupposes that there are 2 or more
defendants. And one defendant passed on the claim to
another defendant.
Example: A filed a case against X and Y. X filed his answer and
X said this is not my fault. This is the fault of Y. Pero kaming
duha ang gikiha. So X will say if the court will find me liable I
would pass on this liability to Y because he is really the one
responsible for this. This is a cross-claim. That is a claim filed
by a co-party. Duha man sila kabuok defendant that he
passed on to the other defendant.
Distinguish a COUNTERCLAIM from a CROSS-CLAIM.
1. A COUNTERCLAIM is a complaint by the defendant
against the plaintiff, whereas, a CROSS-CLAIM is a
claim by a defendant against a co-defendant;
2. The life of the CROSS-CLAIM depends on the life of
the main action. A cross-claim is merely a
consequence of the case filed by the plaintiff against
the defendants. No main action, no cross-claim.
Whereas, in a COUNTERCLAIM, you can kill the main
action, still the counterclaim survives;
3. A COUNTERCLAIM may be asserted whether or not it
arises out of the same transaction or occurrence that
is the subject matter of the action, whereas, a
CROSS-CLAIM must always arise out of the same
transaction or occurrence that is the subject matter
of the action.
Section 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.
Q: What is a reply?
Ans: A reply is an answer of the plaintiff to the answer of the
defendant. Ug ako plaintiff, I filed a complaint against you.
You filed your answer now, sa imong answer duna kai mga
allegations nga angay nakong tubagon, then I will have to file
a reply. A reply is an answer to the answer of the defendant.
Rule: If the plaintiff did not file a reply to the answer of the
defendant, it does not mean that the plaintiff admits the
material averments of the answer. If there are new matters
raised by the defendant in his answer which requires the
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plaintiff to file a reply but the plaintiff did not file a reply,
then it is deemed controverted by the plaintiff. Meaning the
plaintiff did not admit to it.
When reply mandatory.
1. Where the answer alleges a defense of usury. That is the
case of Liam Law vs Olympic Sawmill, et al.(no longer good as
there is no usury law) But was already clarified by the SC that
where the answer alleges defense of usury kinahanglan
imong tubagon otherwise you are deemed to have admitted
the usury. But the SC said NO that one applies only if the
claim for usury is not in the answer but in the complaint. Not
in the answer but in the complaint.
2. When the answer of the defendant contains actionable
document. When the answer contains actionable document
you have to deny it under oath by way of a reply.
Q: What is an actionable document?
Ans: These are documents that support the claim of the
defendant.
Example: I filed a case to recover a parcel of land from the
defendant. I said in my complaint I am the owner of that land
and the defendant is occupying it now and claiming it to be
the owner despite the fact that the defendant does not have
a right to it. Now, the defendant filed an answer and said I am
the owner of the property I bought it from so and so. I have
here the deed of absolute sale. So sa ato pa duna siyay
document that will serve as the basis of his claim of
ownership. That document is an actionable document. And if
there is an actionable document attached to the answer, it is
necessary for the plaintiff to answer the answer by way of a
reply. Otherwise, ug dili mu file ug reply or denial under oath
ang plaintiff, he is deemed to have admitted the actionable
document.
Distinctions between Reply and Answer to Counterclaim
1. A REPLY is a response to the defenses interposed by
the defendant in his answer, whereas an ANSWER
TO A COUNTERCLAIM is a response to a cause of
action by the defendant against the plaintiff;
2. The filing of a REPLY is generally optional, whereas
an ANSWER TO A COUNTERCLAIM is generally
mandatory under Rule 11 because if the plaintiff fails
to file an answer to the counterclaim, he will be
declared in default on the counterclaim.
Based on the discussion by Dean Alex Monteclar
Section 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.
In the case of a third party complaint, I pass on the blame to
another person who is an outsider to the case.
Example: Plaintiff files a case against me. I said dili akoi sad-
an ani katos Pulano ai. But Pulano is not included in the case.
Hes not one of the def. So I want to drag a third person into
the case to answer for whatever liability I may be ordered to
pay by the court. If you are the defendant and you want to
file 3rd part complaint, you have to file a motion for leave of
court to file a 3rd party complaint.
Q: What about 4th part complaint, 5th party complaint?
Ans: 4th party complaint of course when the third party
defendant would like to drag another person into the case
nga siya moi tinuod sad-an. So the third party defendant will
be the one to file a 4th party complaint against another
person. And that 4th party defendant can drag in another
person, mao nai 5th party complaint. But in all of these, there
must be prior permission from the court. 3rd party comp
must be with leave of court.
REMEDY of the party is APPEAL, when the court denies a
motion to file 3rd party complaint. You appeal the ruling of
the court denying your right to file a 3rd party com. Where the
trial court has jurisdiction over the main case, it also has
jurisdiction over the 3rd party complaint regardless of the
amount involved because a 3rd party complaint is merely
ancillary to and is a continuation of the main action. The
purpose of a third party compliant is to get contribution,
indemnity, subrogation or any other relief in respect of the
opponents claim. So you are asking another person to
indemnify, contribute, and subrogate you. Its the claim of
the plaintiff on you.
What are the tests to determine propriety of 3rd party
complaint?
1. Whether it arises out of the same transaction on
which the plain claim is based.
2. Whether the third-partys complaint, although
arising out of another transaction, is connected with
the plaintiffs claim.
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3. Whether the defendant will be liable to the original
plaintiffs claim.
4. Whether the third-party defendant may assert any
defense which the third-party plaintiff has or may
have against the plaintiffs claim.
Q: Can you file a third-party complaint in a criminal case? The
ruling in Shafer vs Judge of RTC of Olongapo City, 167 SCRA
386, which allowed third-party complaint in criminal cases
has also been abandoned in the case of Cabaero vs
Cantos(Please refer to Section 7 for the digest).
Note: The ruling in the case of Cabaero is now incorporated in
the last paragraph of Section 1, paragraph (a), Rule 111 of the
2000 Revised Criminal Procedure:
No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case, but any
cause of action which could have been the subject
thereof may be litigated in a separate civil action.
NOVEMBER 18, 2015
2 Kinds of Counterclaim
1. Compulsory is a claim of the defendant against the
plaintiff arising out of the same transaction, which is
the subject matter of plaintiffs claim.
2. Permissive- a claim against the plaintiff which did
not arise out of the same transaction which is the
subject matter of plaintiffs claim.
Distinctions between Compulsory and Permissive
When the counterclaim is compulsory, it must be
alleged and incorporated in the Answer, and failure
to do so would deem the counterclaim waived.
It should be Answer with Counterclaim.
In the case of a permissive counterclaim, you may or
may not raise this up. You can treat it as a separate
action.
For compulsory counterclaim, there is no need for
verification and certification of non-forum shopping.
For permissive counterclaim, there is a need for this
certification and verification.
Elements of Compulsory Counterclaim:
Based on the discussion by Dean Alex Monteclar
1. That the Compulsory Counterclaim is cognizable by a
regular court of justice.
If not cognizable by the court, you cannot set it up as
counterclaim as it maybe cognizable by another
court or a quasi-judicial body
Ex: Collection case was filed against A in RTC. In his
answer, he set up a permissive counterclaim that in
the past B employed his services and he was not
paid of his fees.
It is not cognizable by the same court because it
arises out of EE-ER relationship cognizable in NLRC
2. It arises out of or is connected with a transaction or
occurrence constituting a subject matter of the opposing
partys (plaintiffs) claim.
Ex: A filed a civil case against B. B claims that the suit
is baseless, he ask for damages because of the
sleepless nights and wounded feelings due to the
filing of the case against him.
3. It does not require for its adjudication, the presence of
third parties whom the court cannot acquire jurisdiction.
A counterclaim should not involve another person
whom the court cannot acquire jurisdiction, like a
third person who is no longer found in the
Philippines. This will only result to an unnecessary
delay of the case.
4. It 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 RTC, the counterclaim may be considered
compulsory regardless of the amount.
If A files a case against B 50k in the MTC, and B files a
counterclaim for 500k. Can MTC decide the
counterclaim? NO jurisdiction of MTC is only 300k
& below.
But if A files a case against B for 500K in the RTC and
B setups a counterclaim of 50K. Can RTC decide the
case? YES the 50k may be an amount cognizable by
the MTC but RTC can take cognizance because of the
phrase: except that in an original action before the
RTC, the counterclaim may be considered compulsory
regardless of the amount
5. The defending party has a counterclaim at the time he files
his answer.
Counterclaim in Criminal Case
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The counter-claim of the accused cannot be tried together
with the criminal case because it will unnecessarily and
confuse the criminal proceeding. (Cabaero vs Cantos)
Cross Claim
Any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of
the original action or of a counterclaim therein.
Ex: A filed a case against B and C. B counterclaimed that
it is not his fault but of C. That counterclaim is the cross-
claim; a claim filed by one defendant against a fellow
defendant.
Reply
Is a pleading, the office or function of which is to deny, or
allege facts in denial or avoidance of new matter alleged by
way of defense in the answer and thereby join or make issue
as to such new matters. If the party does not file such reply,
all new matters alleged in the answer are deemed
controverted.
It is basically the Answer to the Defendants Answer
when the Defendant alleges new matters. A reply is
different from an Answer to a Counterclaim.
Sequence: COMPLAINT ANSWER REPLY
A Reply is not mandatory. If no Reply those claims
by the other party are deemed DENIED by the
plaintiff.
If the plaintiff files a reply, supposedly, the
defendant cant file an answer to the reply because
the reply should be the last pleading filed. However,
the court may allow a rejoinder to the reply.
When is reply mandatory?
1. Where the answer alleges the defense of usury (Not
Applicable anymore)
Liam Law vs Olympic Sawmill
If you file a complaint against the defendant and the
defendant sets up the defense of usury (interest is
usurious), under the OLD RULES, you must reply
under oath - IF YOU ARE ACCUSED OF USURIOUS
CONTRACT. In the NEW RULES, that mandatory reply
is needed only if the usury is contained in the
ANSWER, NO NEED TO DENY IT UNDER OATH. If in
Complaint, It must be answered under oath.
Based on the discussion by Dean Alex Monteclar
Again this is now irrelevant because the Usury Law is
NO LONGER APPLICABLE.
2. When the answer is contains an actionable document.
When there is actionable document attached you
must file a reply and you deny it under oath.
Reply vs Answer to Counterclaim
A Reply is a response to the defense set up by the
defendant in his answer, whereas
the Answer to a counterclaim is a response of the
plaintiff to the counterclaim of the defendant.
The filing of a reply is generally optional while but
the filing of an answer to counter claim is
mandatory.
o The effect of not filing an answer to a
counterclaim would result to you being
declared in default; you will not be allowed
anymore to controvert the counterclaim.
(NB: The counterclaim is in the nature of an
independent action against the plaintiff; its
akin to a complaint by the defendant
against the plaintiff)
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, fifth, etc) party defendant, for contribution,
indemnity, subrogation, or any other relief, in respect of his
opponents claim
A pleading filed by the defendant against a person
who is not a party to the case. The defendant drags
an outsider (called a third-party defendant) to the
case and passes on liability to him.
The purpose of 3rd Party Complaint:
o Contribution
o Indemnity
o Subrogation
o Any other relief in respect to opponents
claim
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Leave of Court is required when you file a third-party
complaint, because you are bringing a new party
who is not originally part of the case.
Unlike in cross-claim where leave of court is not
necessary because the defendant is already an
original party defendant.
Filing a Third-party Complaint
You must first file a motion with leave of court to file
a third-party complaint against someone.
Then attach a copy of the third-party complaint
together with the motion; for the approval of the
court.
Fourth-party Defendant
This is when the third-party defendant passes on the
liability to another person in which he now becomes
the third party complainant and he files a fourth-
party complaint against the 4th party defendant.
The fourth-party defendant can also become a
fourth-party complainant and the same rule applies
for to the 5th, 6th, and so on.
Remedy if Denied
In case your motion to file a third-party complaint is denied
by the court, the proper remedy is appeal and not certiorari,
because this is already tantamount to depriving you of your
right to file a case in court against a third person.
In the nature of an independent action you have
against a 3rd person.
Jurisdiction for third-party complaints
The same court as the main case, regardless of the
amount involved.
The third party complaint is merely ancillary and is a
continuation of the main action.
Purpose of the Third-party Complaint
For the 3rd party plaintiff to be able to recover from
the 3rd party defendant whatever liability he may be
held liable in the original complaint. He is asking
from the third-party defendant:
Based on the discussion by Dean Alex Monteclar
o Contribution
o Indemnity
o Subrogation
o Any other relief with respect to opponents
claim
Four tests to determine the Propriety of the Third-Party
Complaint.
1. Whether it arises out of the same transaction on
which the plaintiffs claim is based.
2. Whether the third-partys complaint although arising
out of another transaction, is connected with the
plaintiffs claim.
o Ex: You were involved in a vehicular
accident with another car, and he sued you
for damages. Your car was insured with the
Visayan Surety Company. You can bring in
the insurance company to indemnify you if
you will be found guilty by the court.
-even if your transaction with the insurance
company is a different transaction from
what transpired, but because it is related to
the claim of the plaintiff it is a valid third-
party complaint
3. Whether third-party defendant would be liable to
the original plaintiffs claim. Although the third party
defendants liability arises out of another
transaction.
o Ex: A enters into a contract of lease with B.
B subleases the property to another person;
which means B is answerable to the owner
of the property if the sublessee commits a
violation of the terms and conditions of the
contract.
-Incase A files a case against B for damages
on the property caused by the sublessee, B
may bring in the latter as a third-party
defendant, despite the fact the contract of
lease is different from that of the contract
of sublease.
4. Whether the third party defendant may assert any
defense, which the third-party plaintiff has or may
have against plaintiffs claim.
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o In a 3rd party complaint, the 3rd party
defendant must be allowed to setup a
defense directly against the original
plaintiff.
Ex: A sold a car to B. The registration was
not transferred in the name of B. When the
car was involved in an accident, the plaintiff
sued A being the registered owner on
record. A can make B the third-party
defendant, being the true owner of the car.
B, just like A, can interpose a defense that
the plaintiff was being negligent; he can
setup this defense directly against the
original complainant.
Third Party Complaint in Criminal Cases NOT AVAILABLE
ANYMORE
The ruling in Shafer vs judge of RTC of Olongapo City,
which allow third party complaint in criminal case has already
been ABANDONED by the Cabaero case. In fact, it is now
incorporated in Sec. 1 (a) of Rule 111 of the 2000 Revised
rules on Criminal Procedure that No counterclaim, cross-
claim or third-party complaint may be filed by the accused in
a criminal case. The same may be litigated in a separate civil
action.
So in Criminal Case NO COUNTERCLAIM, NO THIRD PARTY
COMPLAINT, NO CROSS-CLAIM
RULE 7
PARTS OF A PLEADING
CAPTION:
Sets forth the name of the court. The title of the action, and
the docket number if assigned.
Title of the action - indicates the names of the
parties. If there are several, name them all. But this
is true only for the initiatory pleading. For
subsequent pleadings, you can put the 1st name and
add the word et al.
Sample:
Republic of the Philippines
7th Judicial Region
REGIONAL TRIAL COURT OF CEBU
Branch 24
Based on the discussion by Dean Alex Monteclar
JUAN DE LA CRUZ,
PLAINTIFF, CIVIL CASE NO. 12345
- versus - FOR: RECISSION OF
CONTRACT WITH DAMAGES
PEDRO DE LOS REYES,
DEFENDANT.
------------------------------/
Body The body of the pleading sets forth its designation,
the allegations of the partys claims or defenses, the relief
prayed for, and the date of the pleading. (sec. 2)
In the case of the complaint: You have to state your cause or
causes of action. The elements of a cause of action are the
material allegations you must state in the body of the
complaint.
right of the plaintiff
obligation of the defendant
violation of rights of the plaintiff
damage caused to the plaintiff
In the case of an Answer: It sets forth the defenses of the
defendant.
Presentation of Allegations in Pleadings
Should be by paragraph for easy reference.
Body of A simple Complaint:
1st and 2nd Paragraph of complaint Introduction of
the Complaint and the parties. Circumstances of the
plaintiff and defendant. You state plaintiff is of legal
age, married, resident etc. You state Plaintiffs
capacity to sue. these may be small matters but
are important because the defendant can file a
motion to dismiss solely on your introductory
paragraph if you fail to establish plaintiffs capacity to
sue.
3rd Paragraph Start narrating the cause of action.
o Ex: In a simple collection case. You allege
that defendant borrowed money and
promised to pay on a certain date, as
evidenced by a promissory note. In the
subsequent paragraphs you then narrate
that defendant failed to pay upon maturity
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as provided for in the promissory note.
Then you allege that despite repeated
demands, defendant has not paid the
plaintiff, and because of that, plaintiff has
suffered damages. (make sure all elements
are present: right, obligation, violation,
damage)
For Complaints with several causes of action that are
joined together, there must be headings; you
segregate them one from the other.
Ex: First Cause of Action or Allegations in
Support of the First Cause of Action
After having stated all your allegations, you now
state the Relief/s prayed for.
Ex:
WHEREFORE, premises considered, it is most
respectfully prayed of this Honorable Court to
render judgment as follows:
1. To order defendant to pay his loan obligation
in the amount of xxx
2. To pay interest
3. To pay for damages
4. To pay Attorneys Fees
Xxx xxx xxx
plaintiff prays for such other reliefs and remedies
consistent with law and equity
usually inserted by lawyers as a catch-all
statement in case he may have left
something out; youll find this in almost
all pleadings.
Sec. 3. Signature and Address
Signature is the warranty of the lawyer that he
prepared the pleadings based on the facts disclosed
to him by the client
This means an implied certification in genuineness
of the pleading
*Bar Matter No. 287 (Sept. 26, 2000)
Based on the discussion by Dean Alex Monteclar
Counsel should indicate PTR & IBP Official Receipt No. or
Lifetime member number
*Bar Matter No. 1132 (April, 2003)
Counsel should indicate his Roll of Attorneys number
Sec. 4. Verification
Verification in the pleading refers to that portion of
the pleading where the pleader certifies that he
caused the preparation of the pleading and that all
allegations therein are true and correct of his own
knowledge and belief.
The pleaders affirmation of the truth and
correctness of his allegations in the pleading must be
based not only on his knowledge and belief BUT on
his personal knowledge or based on authentic
records.
The relevance of verification: the pleader can be
liable for perjury if he/she states untruthful
statements in the pleading as it is a sworn statement
notarized by a lawyer.
As a general rule, pleadings need not be verified. It is
only required when the law so provides as in the following:
Complaint
Answer (if there is an actionable document)
Petition for Relief from judgment
Petition for Review under rule 42
Petition for Review under Rule 43
Appeal by Certiorari under Rule 45
Petition for annulment of judgment of RTC
Petition for Certiorari, Prohibition, Mandamus, etc
If the pleading required by law to be verified is not
verified, it would be a ground for the dismissal or
denial of the pleading.
Sec. 5. Certification of Non-Forum Shopping
This is a certification made by the pleader stating
that he/she did not file any case similar to the case
and now pending in another court. This is to avoid
litis pendentia.
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Certification is required only in INITIATORY
PLEADING
o Complaint
o Counterclaim
o Cross-Claim
Certification of Non-Forum Shopping applies ONLY
TO PERMISSIVE COUNTERCLAIM and not to
compulsory counterclaim (Sto Tomas University
Hospital vs Surla)
It is mandatory that the certification be
executed/signed by the petitioner himself, and not
by counsel (Far Eastern Shipping Co. vs CA)
Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADING
Sec. 1. (What a pleading must contain)
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 maybe, omitting the statement
of mere evidentiary facts.
Two kinds of Facts in a pleading
o Ultimate Facts are those facts that supports your
claim or defenses in the pleading or allegation in the
pleading that will establish your cause of action. That
will refer the rights of the plaintiff that was violated by
the defendant and damage suffered as a result.
o Evidentiary Facts are facts that will support the
ultimate facts. Should be presented ONLY IN THE
TRIAL OF THE CASE.
EX: Recovery of Land It is enough that you claim there in
your complaint that you are the owner of that land and you
were dispossessed by the defendant from the land. You have
the right to the land and the defendant committed an act
that violated your right and it causes damage to you.
-Now as to how you acquired the rights over that
land, you dont have to state that your pleadings. THAT IS
ALREADY EVIDENTIARY MATTERS.
-As to how you are dispossessed you may not state
that in detail because these are evidentiary matters. Do that
in the trial proper in determining the issues to support the
ultimate facts in your complaint.
Based on the discussion by Dean Alex Monteclar
ONLY ULTIMATE FACTS SHALL BE STATED IN THE
PLEADINGS.
B. Alternative Causes of Action or Defenses:
Section 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. (2)
In the pleading, the pleader may set up an
alternative defense. This is my cause of action and this is my
alternative defense.
EX:
You hired a carrier to ship goods, goods are lost. You
filed a case against the carrier. The carrier said that they are
not liable but the arrastre. So file complaint against the
carrier and the arrastre company as an alternative.
C. How allegation in a pleading are made:
There are allegations in a pleading that you have to state
with particularity wherein you have to be specific while there
are also allegations that could be made with general
averments.
Generally:
Section 3. Conditions precedent. In any pleading a general
averment of the performance or occurrence of all conditions
precedent shall be sufficient. (3)
Condition precedent enough that you state in your
pleading that you have availed of the condition
precedent and of no avail
o Barangay Conciliation, Amicable
Settlement, Administrative Exhaustion
o Enough that it be alleged generally. No
need to give the particulars. = 1 SENTENCE
IS ENOUGH
Section 6. Judgment. In pleading a judgment or decision of
a domestic or foreign court, judicial or quasi-judicial tribunal,
or of a board or officer, it is sufficient to aver the judgment or
decision without setting forth matter showing jurisdiction to
render it. (6)
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Allegation of Judgment always presumed that the
court that rendered judgment has the authority and
jurisdiction to render such judgment
Section 5. Fraud, mistake, condition of the mind. In all
averments of fraud or mistake the circumstances constituting
fraud or mistake must be stated with particularity. Malice,
intent, knowledge, or other condition of the mind of a person
may be averred generally. (5a)
Conditions of the mind malice (no need to explain
why the act is malicious)
Section 9. Official document or act. In pleading an official
document or official act, it is sufficient to aver that the
document was issued or the act done in compliance with law.
(9)
Official documents or acts
Specific or with particularity:
Section 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 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)
Capacity to Sue or be Sued
o State from what capacity e.g that plaintiff is
of legal age, married, a resident of such
place, etc.
Section 5. Fraud, mistake, condition of the mind. In all
averments of fraud or mistake the circumstances constituting
fraud or mistake must be stated with particularity. Malice,
intent, knowledge, or other condition of the mind of a person
may be averred generally.(5a)
Allegation of Fraud or Mistake
o Describe everything: how it is committed.
What acts constitute or show fraud.
D. Actionable Document supports your cause of action or
your defenses; the basis for your complain.
Section 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
Based on the discussion by Dean Alex Monteclar
document shall be set forth in the pleading, and the original
or a copy thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the pleading,
or said copy may with like effect be set forth in the pleading.
(7)
e.g. In an accion reivindicatoria, when you brought
land and your title/ownership over the property is being
questioned, the Deed of Absolute Sale in your favor is the
actionable document. It evidences the fact that you bought it
from the previous owner.
In a case of collection of money, the contract of loan
or promissory note is a good example of actionable
document.
How do you plead?
YOU MAY JUST CITE THE PERTINENT PORTION OF
THAT DOCUMENT and ATTACH A COPY OF THAT
ACTIONABLE DOCUMENT.
OR YOU MAY COPY IT IN VERBATIM IF YOU WANT.
*BUT: BETTER IF YOU WILL JUST QUOTE THE PORTION
e.g. Your defense is based on an actionable
document found in one of its paragraphs like in a contract (an
actionable document). Just quote that portion in your
pleading and attach the entire document as your Annex A.
Promissory note for collection of sum of money, it is
the basis of your claim. Present it by copying it word for word
because it is merely one sentence or at most one paragraph.
If I then quote it verbatim, I need not attach the actionable
document itself. If I cannot quote it entirely, then I have to
attach the actionable document.
How to contest such document? The other party must have
to deny it UNDER OATH - SPECIFICALLY = THE ANSWER
MUST BE VERIFIED and NOTARIZED BY A LAWYER.
Section 8. How to contest such documents. When an action
or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse
party, under oath specifically denies them, and sets forth
what he claims to be the facts, but the requirement of an
oath does not apply when the adverse party does not appear
to be a party to the instrument or when compliance with an
order for an inspection of the original instrument is refused.
(8a)
What if the actionable document is attached to the
ANSWER?
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EX: A filed a case against B to recover parcel of land.
Bs defense is that he is the owner of the land, bought it from
the previous owner he attached the deed of sale. The deed
of sale is an actionable document.
If B attached that document in his answer then A
MUST FILE A REPLY DENYING THE ACTIONABLE DOCUMENT.
E. EFFECT: If the denial is not verified/ not under oath the
genuineness and due execution of the document is deemed
admitted.
The document is not fake, the signature is not forged
you cannot present any evidence to question the
document.
BUT: The law only said that ONLY THE
GENUINENESS AND DUE EXECUTION THAT IS
DEEMED ADMITTED
o NOT THE CONTENTS they are still
rebuttable.
o Can still raise defenses such as payment,
prescription, does not reflect the true
agreement between the parties (e.g. not a
contract of loan but of pacto de retro)
Exceptions:
When the adverse party is not a party to the
document;
EX: Siblings filed case against A that the land is own by their
parents. Now A claim that the land is sold by their parent to A
presented the Deed of Sale. The sibling did not deny the
documents under oath.
Sibling can still question the genuineness and due
execution BECAUSE THEY ARE NOT A PARTY OF THAT DEED
OF SALE. IT IS THERE PARENTS WHO ARE PARTIES THERETO.
When the order for the inspection of the document
was not complied with (Rule 27)
EX: A filed a case against B for recovery of land. B said that A
already sold it to him, he holds the deed of sale. But what he
attached to his answer is just the copy (hanap pa jd). A filed
motion to the court to order B to show him the original
document for him to verify.
When the court grant that motion and it is not
complied with, then the plaintiff can always question the
genuineness and due execution of the document. He is not
deemed to have admitted it despite no denial under oath on
his part.
Based on the discussion by Dean Alex Monteclar
Two kinds of Defenses:
1. Denial
2. Admission with defenses set up like affirmative
defense
How to make Denial?
F. SPECIFIC DENIAL:
Section 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)
Two ways to make a specific denial:
By specifically denying the averment and, whenever
possible, setting forth the substance of the matters
relied upon for such denial; e.g. paragraph 3 is
specifically denied for the truth of the matter is
______________; or
By an allegation of lack of knowledge or
information sufficient to form a belief as to the truth
of the averment in the opposing partys
e.g. paragraph 3 is denied for lack of knowledge or
information sufficient to form a belief as to the truth
or falsity thereof.
There is one case wherein the Supreme Court stated that if
you are going to deny facts for lack of knowledge, then it
should be done in good faith. Otherwise, it shall be deemed
an admission.
Negative Pregnant if you deny and quote verbatim the
complaint that is vague denial.
It is considered as an admission instead of a denial.
EX: PLAINTIFF: The defendant committed the following act:
blah blah blah
Then the defendant in his denial said, I specifically deny that
I blah blah blah (COPY PASTE RA NIMO ANG GIINGON SA
PLAINTIFF)
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When you deny, you must deny the allegations in good
faith.
When you deny the existence of document which is
obviously in your possession, with sufficient evidence
(receipt, hidden cameras, picture). Denial in Bad Faith
TREATED AS ADMISSION
G. GR: Allegations that are not specifically denied deemed
admitted.
Section 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)
Exceptions:
Allegations as to amount of damages,
Allegations which are immaterial to the cause of
action
Allegation in the complaint where no answer has
been filed by the defendant.
Specific denial is not sufficient if not under oath in the
following instances:
1. Allegations as to USURY in the complaint.
If the usury is in the answer, you do not have to deny that
under oath. But if its in the complaint, you have to
specifically deny it under oath.
If you borrow money from the plaintiff and the interest is very
usurious. When you learn that the plaintiff is about to file a
case, gi unhan nimog file ang kaso praying to nullify the
contract for being usurious. The borrower is the one who filed
the complaint and the allegations of usury is in the complaint.
The defendant would have to answer and specifically deny
the allegations of usury under oath. However, WALA NA
USURY LAW KARON. Although there is no usury law, the court
has the discretion to lessen the interest, or disregard the
interest altogether for being unconscionable, revolting to the
conscience.
2. Authenticity and due execution of actionable
document properly pleaded where the opposing party
is a party thereto
Based on the discussion by Dean Alex Monteclar
RULE 9
Effect of Failure to Plead
Section 1. Defenses and objections not pleaded. Defenses
and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. However, when it appears
from the pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the
same cause, or that the action is barred by a prior judgment
or by statute of limitations, the court shall dismiss the claim.
(2a)
General Rule : All defenses available must be set up
a. as an affirmative defense in the answer, or
b. by way of a motion to dismiss.
Exception: Case may be even dismissed by the court motu
proprio
Defenses that are not considered waived even if not raised in
the answer or motion to dismiss:
1. Lack of jurisdiction over the subject matter
2. Prescription
3. Res Judicata
4. Litis Pendentia
Section 2. Compulsory counterclaim, or cross-claim, not set up
barred. A compulsory counterclaim, or a cross-claim, not
set up shall be barred.
The same rules apply to compulsory counterclaim or
cross-claims.
Section 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.
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(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.
What happens if you FAIL to answer the complaint within the
reglementary period? You are given 15 days to file your
answer, starting from the time you receive the summons.
* After the lapse of 15 days and there is no answer,
plaintiff MAY ask the court to declare defendant in default.
This cannot be done motu proprio. This can only be done at
the instance of the plaintiff by motion to declare defendant in
default.
Do you have to notify the defendant that you are filing a
motion to declare defendant in default? YES in the new rules.
This is not so under the old rules.
So, when a motion to declare a motion to declare in default
has been filed, the court may declare the defendant in default
and although the defendant is notified, if the court decides to
let the present evidence ex-parte, the defendant may go
there and appear but he cannot object.
When defendant is declared in default, in its discretion may:
Based on the discussion by Dean Alex Monteclar
a. Right away decide the case based on the pleadings
filed, when the case is a very simple one like an
ordinary case for a collection of sum of money, or
b. The court will require the plaintiff to present evidence
ex-parte
If the case is a little bit complicated, dili nasad na maayu nga
right away, decision-nan sa korte. If the court wants to play
safe, the court will ask the plaintiff okay, you present your
evidence; I want to see your evidence and hear the testimony
of your witnesses.
Remember that even if the defendant is already declared in
default, it does not necessarily mean that the plaintiff will
right away win the case. The plaintiff will have to prove his
case first. Except if the case is so simple that the court finds it
unnecessary for the plaintiff to present evidence, mu diritsu
nalang ug decide ang korte.
Now, ig presenta nimu og ebidensya, wala ma-convince ang
korte, possible nga mapildi ka. They said nga ang default
proceeding, when the defendant is already declared in
default, then the plaintiff will present his evidence ex parte,
mura ra na siyag nagboxing nga way kontra ba. Mura bag
gasumbag lang siya sa punching bag, dili ka baws. Ang kapait
ani, wala na gali siyay kontra, napildi pa jud siya. Na unay sa
iyang kaugalingong kumo (haha!). Na dismiss gyud noun iyang
complaint.
That is very possible in the case of default. The point there is
that even if the defendant is already declared in default, it
does not necessarily mean nga sigurado na nga mudaog ang
plaintiff. Dakug chance ang plaintiff mudaog, mga 90% kay
wala gud siyay kontra. But sometimes, makapuno man sad
nang 10%, kana kung dili gyud ka ka prove sa imung cause of
action.
What is the remedy of the defendant who was already
declared in default?
The remedy is to file a MOTION TO LIFT THE ORDER OF
DEFAULT.
Once the defendant is declared in default, he loses his
standing in court. And the only way for him to regain his
standing in court is to file a motion to lift the order of default.
On what ground? (what is your basis for your motion?)
You have to state that the reason why you were not able to
file your answer was because of F.A.M.E.
F fraud
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A accident
M mistake
E excusable negligence
Because of FAME, you were not able to answer.
Is that enough for the court to lift the order of default?
No. your motion to lift the order of default on the ground of
FAME must be accompanied by an AFFIDAVIT OF MERIT.
What is an AFFIDAVIT OF MERIT?
It is an affidavit stating that the defendant who is asking the
court to lift the order of default has a very meritorious
defense.
Its just like telling the court Your Honor please tagae intawn
ko ug chance maka-answer, lift the order of default. Pa
answer-ra lang tawn ko. Kay kung imu lang kong pa-answer-
run, I can prove to you that I have a good defense.
The affidavit of merit is very necessary because that will be
the basis of court to grant your motion to lift the order of
default. Kay if the court finds that your defense is not
meritorious, why will the court allow you to answer? Nag
langan-langan lang ka. Nangayo kag chance to answer unya
you dont have a good answer.
So in the affidavit of merit nga imung i-attach sa imung
motion to lift the order of default, you convince the judge
that you have a good defense. Kay kung wala kay good
defense, mu-ingon noun ang judge nga ah defaulted naka
unya ang imung tubag walay klaro? Wala man kay good
defense so I might as well deny.
WHEN can you file a motion to lift the order of default? Is
there a prescriptive period for you to file that motion to lift
the order of default?
Naa. You can only file that motion to lift the order of default
AFTER YOU RECEIVE THE ORDER OF DEFAULT BUT BEFORE
THE COURT HAS RENDERED JUDGMENT BY DEFAULT.
What happens if there is already judgment by default?
Dili naka makafile of motion to lift the order of default kay
nana may judgment.
What is your REMEDY?
MOTION FOR NEW TRIAL under Rule 37. Ang ground kay
FAME lang ghapun.
Based on the discussion by Dean Alex Monteclar
From the moment you receive the judgment by default, diba
naa kay 15 days to appeal? Remember that even a person
declared in default can appeal. You have 15 days to appeal,
unsa may remedy nimu within the 15 day period to appeal?
Either file a motion for new trial or motion for
reconsideration. Motion for new trial based also on FAME.
The ground of FAME is used three times in the rules. You can
use it in:
- motion to lift the order of default (after you have
been declared in default but before the court has
rendered a judgment by default)
- motion for new trial (once theres already a
judgment by default)
- petition for relief from judgment under rule 38
(after the judgment becomes final)
Summary
Your remedy if you are declared in default is to FILE A
MOTION TO LIFT THE ORDER OF DEFAULT. You can do that
from the time you are declared in default, from the time the
court issued an order of default, you can do that motion until
the court have decided and rendered a judgment by default.
Kutob ra diha. Kay after the judgment by default, nana sad
kay laing remedy which is NEW TRIAL. And if the judgment is
already final, nana pud kay lain remedy which is PETITION
FROM RELIEF FROM JUDGMENT.
Can the court render PARTIAL DEFAULT?
Yes. If there are several defendants and some of the
defendants answered and the other defendants did not
answer, then that can be partial default on the defendants
who did not answer and the court will proceed to hear as
regards those who filed their answer.
BUT if the defendants are bound together by a common issue
of fact or law, they are joined together, there is a joinder of
parties, joinder of defendants, the answer of those
defendants who filed their answer may benefit those who did
not answer. So kung makadaog tong defendants nga nitubag,
it may also benefit those who did not answer. That is the
EFFECT of partial default.
What is the extent of the relief to be awarded by the court?
In a default judgment, the court can only award those alleged
in the complaint. The court cannot award more than what is
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alleged in the complaint. And also, the court cannot award
unliquidated damages in a judgment by default.
What are UNLIQUIDATED DAMAGES?
Those that are still to be proven, like moral damages.
So if the defendant is declared in default, dili maka awad og
moral damages ang korte in favor of the plaintiff kay
unliquidated damages man nah. Ang ma-award sa korte are
only those stated in the complaint and are proven by
evidence. Like for example liquidated damages like damages
arising out of a contract like penal clause for example, theres
a penal clause that if you violate this contract, youre liable to
pay the other party a penalty worth this much, kana pwede
na ma award. But all other claims that are still unliquidated, it
cannot be awarded by the court.
Are there cases where default is not allowed?
Yes. In the Family Code, you know that annulment of
marriage, declaration of nullity of marriage, legal separation;
wala na dihay default.
So if the defendant did not answer, the court will have to
proceed with the trial of the case. So there will now be an ex
parte presentation of evidence.
So the following are the RULES to remember:
1. The court cannot declare the defendant in default
motu proprio
2. The grant or denial of default is discretionary on the
court
3. Answer may still be filed if there is yet no declaration
of default
- bisan pag nilapas na ang 15 days to answer, file
lang ghapun ug answer basta wala pa ka ma
declare in default. Thats why its necessary for
the plaintiff to follow up para maka file dayun
kag motion to declare defendant in default
4. A motion to lift the order of default should be under
oath or verified and it must be accompanied of an
affidavit of merit
- an affidavit of merit is an affidavit that will state
the meritorious defense of the defendant in
order that he will be allowed to answer kay mag
depende na sa imung meritorious defense
Based on the discussion by Dean Alex Monteclar
5. An order of default is not appealable as it is an
interlocutory order
- so what is your remedy? If you are the
defendant, wala ka ka-answer, gi declare ka in
default, mo appelar ka? No, that is an
interlocutory order. The order of default is an
interlocutory order. It is the judgment by default
that is appealable
- order of default is different from judgment by
default. When you fail to answer within 15 days
unya ni file ang plaintiff og motion to declare
the defendant in default, what the court will do
first is to issue an order called Order of Default,
defendant is now declared in default. Then
court may say plaintiff, present your evidence
ex parte. After the plaintiff will present the
evidence ex parte, walay kontra, the court will
now decide. And if the court decides to grant
what the plaintiff is saying, that is what we call
Judgment by Default. Kana moy mahimong i-
appealar nimu kay judgment naman nah, not
the order of default.
- An order of default is an interlocutory order and
it is not appealable, it is the judgment by default
which is appealable
- once the court will render judgment by default,
pwede ka mu appelar or pwede sad ka mo file
og motion for new trial based on FAME or file a
motion for reconsideration (its the option of
the defendant, these are the remedies available
to him)
The presentation of evidence ex parte as a result of order of
default is different from the presentation of evidence ex
parte as a result on the non-appearance of the defendant
during the trial of the case.
If it is the presentation of evidence ex parte as a result of a
default order, the court cannot award damages that are
unliquidated while in an ex parte hearing as a result of non-
appearance; here there is an answer already of the
defendant, so the court can award more than what is alleged
in the complaint. In default, dili man maka award ang court
og damages beyond what is stated in the complaint but in an
ex parte hearing as a result of non-appearance of the
defendant, the court can award damages beyond what is
alleged in the complaint if it is proven by the plaintiff during
the presentation of evidence.
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Rule 10
Amended and Supplemental Pleadings
A. AMENDMENT, HOW MADE:
o Formal Amendments you can do that anytime
o Substantial Amendments comply with the rules
here in Rule 10
B. TYPES OF AMENDMENT
1. Amendment as a matter of right you can amend your
pleading without asking permission of the court if there is no
responsive pleading filed yet by the other party.
Ex: If you are a plaintiff, before the defendant has filed
his answer before you receive the answer you may
amend your complaint WITHOUT NEED OF LEAVE OF
COURT. (You can amend whether it is Substantial or
Formal Amendment)
o Amendment as a matter of right can be avail only
ONCE. The next amendment will need a leave of
court even if there is no responsive pleading yet.
THERE MUST BE A LEAVE OF COURT IT WILL BE A
MATTER OF RIGHT.
How about the answer of the defendant? Can he also amend
his answer? YES, as a matter of right, if the plaintiff has not
yet filed his reply or the period to file a reply has not yet
prescribed. Reply is not mandatory. The plaintiff has to file a
reply within 10 days. Within that 10 days, I can amend my
answer. But if the plaintiff already has an answer, leave of
court is necessary.
How about Reply? Can you amend? YES, within 10 days from
the time of the filing of my reply.
2. Amendment as matter of judicial discretion when the
defendant has already filed a responsive pleading. So when
there is an answer, you must have a leave of court.
C. WHEN AMENDMENT MUST DENIED:
The court is liberal in allowing amendment of pleadings
in order for the party to have the opportunity to present all
the issues to be resolved by the court and not be prevented
by technicalities. In case of doubt whether the court should
allow amendment or not, the policy is for the court to be
liberal in allowing amendment. But not all the time. There are
instances where the court will not be liberal.
o When the amendment is to delay the action
Based on the discussion by Dean Alex Monteclar
o When the amendment is for the purpose of making the
complaint confer jurisdiction upon the court
o In other words, klaru kaau sa complaint nga way
jurisdiction ang court. You just amend so that the
court will have a jurisdiction.
Ex: A case of sum of money in RTC. In his allegations
in complaint, the principal amount nga iyang
gipangayo is 250k ra (MTC unta). Before the
defendant filed a reply, he realize that his case is
dismissible because of want of jurisdiction. He wants
to amend the pleading increasing 250k to 350k. So
obviously the amendment is intended to confer
jurisdiction upon the court.
o When the amendment is for the purpose of curing a
pre-mature or non-existing cause of action.
Ex: Before the defendants answer was filed,
complainant found out that he does not have cause
of action. He amended his complaint in order to put
cause of action that did not exist in the original
complaint filed
D. EXCEPTIONS TO THE RULE THAT DEFENSES NO RAISED
DEEMED WAIVED:
When issues not raised in 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. Amendment may be necessary to conform to
evidence.
Ex: A claim that B owes him certain amount of
money and the latter did not pay. Bs defense is that
he has no obligation to A. But in the course of trial,
Bs defense changed that he has obligation but
already paid. B wants to prove that he has paid. The
issue in the first case is whether or not there is an
obligation while in the second Case whether or not
he has paid the obligation. Here, Bs amendment
should not be allowed if only A is vigilant of his right.
A should have objected that it is not part of the
issue.
o GR: HOWEVER, according to the rules, if there
are issues which were not raised in the
pleadings but presented in the court WITHOUT
OBJECTION FROM THE OTHER PARTY, then that
issue may now be entertained by the court. Kay
wa man ka ni object, the court will now order
the amendment of the complaint.
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E. SUPPLEMENTAL PLEADING:
Supplemental pleading will set forth transactions,
occurrences or events which have happened since the date of
the pleading sought to be supplemented. It must be done
upon motion of the party, with reasonable notice to the other
party. Once approved by the court, the adverse party may
plead thereto within 10 days from notice of the order
admitting the supplemental pleading.
What you are presenting are transactions that
transpire AFTER you have filed the pleading. These were not
yet in existence when you filed the pleading.
What is the effect of amendment?
o The amended complaint will substitute the original
complaint. The Original Complaint is deemed
WITHDRAWN. When there is an amendment, that
responding party is given another fresh period of 15
days to file an answer to that amended complaint.
DANGER TO THIS RULE: P filed case against D. D receives the
complaint and within 15 days he should answer. 15 days
lapsed, D did not answer. D could have been declared in
default. P can now file motion to declare D in default. But P
discovered that there is something wrong in his complaint, he
filed for amendment as a right. When he filed for an
amendment, the 15 days starts to run again when D receives
the amended complaint.
F. EFFECT OF AMENDED PLEADING:
Admission 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
The reason why a superseded pleading may still be received
as evidence against the pleader is because such is in the
nature of a judicial admission. Despite its being superseded
and withdrawn, the admissions therein are still considered
extrajudicial admissions and may be proved by the party
relying thereon by formal offer in evidence of such original
pleading.
When you amend your complaint, the original complaint is
deemed withdrawn. Question: If you are the defendant Can
you still use that original complaint as an evidence to rebut or
to destroy the case of the plaintiff? YES, because even if it is
deemed withdrawn, it can still be used as an evidence against
the plaintiff. The original complaint is amount to EXTRA
JUDICIAL CONFESSION.
Based on the discussion by Dean Alex Monteclar
DISTINCTION BETWEEN AMENDED AND SUPPLEMENTAL
PLEADING
1. Amended pleading refers to facts existing at the time of the
commencement of the action while supplemental pleading
refers to facts arising after the filing of the original pleading.
2. An amended pleading results in the withdrawal of the
original pleading while a supplemental pleading is merely in
addition to, but it doesnt result in the withdrawal of the
original pleading.
3. An amended pleading can be made as of right as when to
responsive pleading has yet been filed while supplemental
pleading are always with leave of court.
November 20, 2015
Rule 11
When to File Responsive Pleadings
Responsive Pleadings pleading filed in answer to the
pleading filed by the other party; the answer to complaint,
counter claim, cross claim, third party complaint (fourth,
fifth), reply.
The responsive pleading of a Complaint of the plaintiff is the
Answer of the defendant. The answer of the defendant can
also be responded by the plaintiff, through a Reply.
In answer of a defendant may also include a Counterclaim
(compulsory or permissive), the plaintiff will then Answer the
Counterclaim.
IF COMPULSORY COUNTERCLAIM no need for the plaintiff
to answer the counterclaim if the counterclaim is related to
the main allegations in the complaint. Ex. If the counterclaim
asks for Damages for the filing of a baseless and malicious
suit.
IF PERMISSIVE COUNTERCLAIM have to file an answer
because counterclaim is in the nature of an independent
action.
Rule11. Section 1. Answer to the
complaint. The defendant shall file his
answer to the complaint within fifteen (15)
days after service of summons, unless a
different period is fixed by the court.
A. Answer to the Complaint:
When to file
o 15 days from the receipt of the summons
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Rule: Exclude the first day include the last (Article 13
NCC)
o Exclude the day that you receive the
complaint and summons, then you start
counting tomorrow. Include the last day
which is the 15th day.
How to compete time
Effect of interruption the period to answer is
deemed interrupted upon filing of certain motions
(Motion to Dismiss, Motion for Bill of Particulars)
o (Rule 22) the day the interruption occurs
(filing of said motions) shall be excluded
o The receipt of the order of the court,
whether granting or denying the motion
that interrupts, shall be excluded.
o Example. Complaint filed on March 1, you
dont include March 1 in the running of
prescriptive period, so defendant has until
March 16 to file an Answer. If on March 10
a Motion to Dismiss is filed, this will
interrupt the period to Answer. Counting
from March 2 to 9 (exclude March 1, as the
first day, and exclude March 10, as the day
interruption occurs/filed), used up so far of
only 8 days, with 7 days left to file an
Answer after denial of the Motion.
o So if the Motion to Dismiss is denied and
the denial was received on March 20, the
Answer can be filed until March 27,
excluding March 20 from the count of the 7
days left because the receipt of courts
order granting or denying the motion shall
be excluded.
B. Period to answer for defendant foreign corporation:
Rule 11, Section 2. Answer of a defendant
foreign private juridical entity. When 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.
BUT there are periods to answer that are more than 15
days.
Based on the discussion by Dean Alex Monteclar
Note: If that foreign corporation does not have transaction in
the Philippines, It cannot be sued. The court cannot acquire
jurisdiction.
Defendant Corporation doing business in the Philippines but
not resident in the Philippines.
If that foreign corporation doing business in the Philippines
but not resident in the Philippines. YOU MUST QUALIFY IF
HE HAS A REPRESENTATIVE OR NONE:
If with resident agent summons must be served to
that agent - 15 days from receipt of summons by
agent
If without resident agent summons must be
served to the government entity authorized - 30
days to answer the complaint.
Secretary of the DTI, Central Bank Governor
(if engaged in banking business), Insurance
Commissioner (if engaged in insurance
business)
If Summons by Publication the period to answer is
60 days.
C. Answer to the amended Complaint:
Rule 11, Section 3. Answer to amended
complaint. Where the plaintiff files an
amended complaint as a matter of right, the
defendant shall answer the same within
fifteen (15) days after being served with a
copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended
complaint within ten (10) days from notice
of the order admitting the same. An answer
earlier filed may serve as the answer to the
amended complaint if no new answer is
filed.
This rule apply to the answer to an
amended counterclaim, mended cross-
claim, amended third (fourth, etc.)-party
complaint, and amended complaint-in-
intervention.
if filed as a matter of right (when there is yet no
Answer from defendant, per Rule 10) when there is
no responsive pleading is filed - 15 days from the
time of receipt of the amended complaint
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o no need for leave of court, filing of
Amended Complaint right away.
o counting of the 15 days starts a new from
receipt of amended complaint
Rationale: Amendment supersedes the original complaint.
The amendment is like a new complaint.
So even if the period to answer the original
complaint has already expired, IT DOES NOT MATTER. What
is important is the time you received the amended complaint.
If filed not a matter of right/ judicial discretion a
motion to admit to the court the amended
complaint (leave of court) is required to amend the
complaint
o Motion for Leave of Court with the copy of
the amended complaint attached to the
motion
o The moment you receive the decision of the
court granting the motion, you only have
10 DAYS TO FILE AN ANSWER. It is lesser
because defendant has enough time to
prepare. The defendant already received
the amended complaint, although not
answered right away because the court
must first grant the leave of court to amend
the complaint so while the court decides
whether to grant the leave of court to
amend the complaint, the defendant can
use such time to prepare the Answer to the
amended complaint.
o So the 10-day period starts to run from the time the
defendant receives the order from the court
granting the amended complaint.
o Do you have to answer an amended complaint?
o Not necessarily. If there are no new matters
raised in the amended complaint as when the
amendment is only a formal amendment or
where there are no new causes of action or
matters that need to be answered, then you
need not answer the amended complaint.
Section 3. Answer to amended complaint. xxxx An answer
earlier filed may serve as the answer to the amended
complaint if no new answer is filed. xxxxx
Answer to counterclaim or cross-claim
Based on the discussion by Dean Alex Monteclar
Section 4. Answer to counterclaim or cross-claim. A
counterclaim or cross-claim must be answered within ten
(10) days from service. (4)
o Who will answer the counterclaim? The plaintiff. The
counterclaim is incorporated in the answer of the
defendant. He has 10 days to file his answer to the
counterclaim.
o Review: Cross-claim a claim of a defendant against
a co-defendant.
o A co-defendant also has 10 days to file his answer to
the cross-claim.
o Why only 10 days and not 15 days? They are already
parties to the case. They already know the matters
to be litigated beforehand. So they have enough
time to prepare.
Answer to third (fourth, etc.)-party complaint
Section 5. Answer to third (fourth, etc.)-party complaint.
The time to answer a third (fourth, etc.)party complaint
shall be governed by the same rule as the answer to the
complaint. (5a)
o The period to answer a third (fourth, etc.)-party
complaint is 15 days. Why not 10 days?
o Here, you are bringing in an outsider to the case. In
fact, if you are the defendant here, you need leave
of court. You have to file a motion for leave of court
to file a third-party complaint. Once the court
approves, summons will be issued. So the third-party
defendant will be served with summons. Thats the
time the third-party defendant will file his answer
i.e. within 15 days from receipt of the summons.
o Remember that a third-party complaint is in the
nature of an independent action filed by the
defendant against another person who is not a party
to the case.
Reply
Section 6. Reply. A reply may be filed within ten (10) days
from service of the pleading responded to. (6)
o A reply is a responsive pleading to the answer of the
defendant and you have 10 days to file your reply
reckoned from receipt of a copy of the answer.
o Is there a need for the defendant to answer the
reply of the plaintiff?
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o No more. If the defendant wants to Can you ask for extension of time to file answer?
comment on the reply, he should file a
REJOINDER. Reply is supposed to be the last o Yes you can ask for extension of time to answer
pleading but the court may allow a which is another 15 days. You will have to file a
rejoinder to the reply of the plaintiff. What motion for extension of time to file answer. The
is the period to file a rejoinder? The Rules is court is very lenient to this.
silent but it is submitted that it should be
Section 11. Extension of time to plead. Upon motion and
the same period to file a reply which is 10
on such terms as may be just, the court may extend the time
days.
to plead provided in these Rules.
Answer to supplemental complaint
SUMMARY
Section 7. Answer to supplemental complaint. A
Pleading Period to File Reckoning
supplemental complaint may be answered within ten (10)
Point
days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the 1. Answer 15 days unless From service
complaint shall serve as the answer to the supplemental a different of summons
complaint if no new or supplemental answer is filed. (n) period is fixed
by the court
o When there is a supplemental complaint filed, you
answer it within 10 days upon notice of the order 2. Answer of private
admitting the same. There has to be leave of court. foreign corporation
Because of that, the answering defendant has doing business in the
enough time to answer the supplemental complaint. Philippines
Can you file an amendment to your counterclaim? i. With resident agent 15 days From service
o Yes, if there are matters which you have failed to of summons
include in your counterclaim. These are matters that to resident
already existed at the time you filed your agent
counterclaim but you failed to include them by ii. To the government From receipt
reason of negligence or inadvertence. You can still 30 days
agency designated of summons
include them by way of amendment. You can also by law by the home
file an amended cross-claim. office of the
Section 10. Omitted counterclaim or cross-claim. When a foreign
pleader fails to set up a counterclaim or a cross-claim through private entity
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. (3, R9) 3. Answer to an
amended complaint
Supplemental counterclaim and supplemental cross-claim From service
i. If as a matter of of the
Section 9. Counterclaim or cross-claim arising after answer. right 15 days amended
A counterclaim or a cross-claim which either matured or complaint
was acquired by a party after serving his pleading may, with
the permission of the court, be presented as a counterclaim ii. If as a matter of 10 days
or a cross-claim by supplemental pleading before judgment. From notice
judicial discretion of the order
(9, R6)
admitting the
o If there are matters which occurred after you have amended
already filed your counterclaim or cross-claim, you complaint
can still introduce them by way of supplemental
pleading. So theres also what we call supplemental 4. Answer to 10 days From service
counterclaim or supplemental cross-claim. counterclaim or cross- of the

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Based on the discussion by Dean Alex Monteclar
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claim counterclaim Rule 8, Sec. 1

or cross-
claim Section 1. In general. Every pleading shall contain in a
methodical and logical form, a plain, concise and direct
5. Answer to third 15 days From service statement of the ultimate facts on which the party pleading
(fourth, etc.)- party of the third- relies for his claim or defense, as the case may be, omitting
complaint party the statement of mere evidentiary facts. (1)
complaint
o What are ultimate facts? These are the facts that will
6. Reply 10 days From service support your cause or causes of action. As to details
of the thereof, you need not divulge that in your complaint.
pleading You reserve that during the trial of the case and
responded to these are supported by evidence. These are now
evidentiary matters.
7. Answer to 10 days From notice
Supplemental of the order o When a complaint is filed, the defendant cannot use
Complaint admitting the this bill of particulars as a mode to divulge
supplemental evidentiary matters. There is another remedy for
complaint that which is Modes of Discovery.

When a motion for a bill of particulars is filed by the

RULE 12
Bill of Particulars
A bill of particulars is a pleading that you file before you make
a responsive pleading on the ground that the pleading you
are supposed to reply to is vague or not quite clear. Where a
complaint is filed against you and you found out that when
you read the complaint, there are some allegations there that
are not clearly presented that you do not know what the
plaintiff means, how will you make an intelligent answer to
such complaint? The remedy provided for by the Rules is a Bill
of Particulars. You will have to file a motion.
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 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)
o In a bill of particulars, you are asking for a more
definite statement any matter which is not averred
with sufficient particularity in the pleading so as to
enable to the adverse party to prepare for his
responsive pleading. It should not be used to divulge
evidentiary matters.
o When you make a complaint, you are supposed to
state only the ultimate facts. You are not supposed
to state evidentiary matters.
defendant, what will the court do?
Section 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.
(n)
o The grant or denial of a motion for a bill of
particulars is left to the sound discretion of the
court. There are some motions for a bill of
particulars filed by lawyers which are baseless and
intended only for delay to give them time to file an
answer. The motion still has to be set for hearing by
the court.
Section 3. Compliance with order. If the motion is granted,
either in whole or in part, the compliance therewith must be
effected within ten (10) 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. (n)
o When a bill of particular is granted by the court, the
plaintiff will have to submit his compliance to the
order of the court within 10 days from notice of the
order unless a different period is fixed.
o How do you comply with a bill of particulars?
1. By amending your complaint; or
2. By submitting it to the court as a separate
pleading

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Based on the discussion by Dean Alex Monteclar
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o When a defendant says Plaintiff will you please
clarify what you meant when you stated in
paragraph (no.) xxxx and the court grants the bill of
particulars ordering the plaintiff to clarify the
matter, the latter can submit an amended
complaint. He will have to clarify what is meant by
the contested paragraph in his complaint. Or he
need not amend his complaint but rather submit a
separate pleading explaining what he meant by that
portion of the complaint.
Section 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. (1[b]a)
o The filing of a bill of particular stops or tolls the
running of the period to file an answer. This is the
same as a motion to dismiss. Both are filed before
making a responsive pleading. And so the period to
file a responsive pleading is interrupted.
o If your bill of particular is denied, then you have to
file your answer. Within what period? You have to
file within the balance of the period to file an
answer. But in no case shall it be less than five (5)
days.
o So for example, you file the bill of particulars on the
13th day of the 15 day period to answer, the court
denied it for being baseless. So you have to answer
now. How many days are there for you to answer?
Supposedly 2 days nalang unta, but then the law
says the rules provide you have at least 5 days. At
least 5 days, if di na kaabot ug 5 days ang remaining
period, you are still given the five days to file your
response. Okay? Now, any questions?
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS
AND OTHER PAPERS
Section 1. Coverage
This rule shall govern the filing of all pleadings and other
papers, as well as the service thereof, accept those for which
a different mode of service is prescribed.
Section 2. Filing and service, defined.
Filing is the act of presenting the pleading or other paper to
Based on the discussion by Dean Alex Monteclar
the clerk of court.
Service is the act of providing a party with a copy of the
pleading or the 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.
o Lets go to the filing and service of pleadings. Filing and
service of pleadings and other papers. Unsa maning and
other papers? Well this includes motions or any papers
that you file in court. Now, pleadings are to be filed in
court and the rule is that before you file that in court,
you must have to give a copy of the pleading to the other
party. That is what we call SERVICE.
o So when we say filing and service of pleadings, filing
refers to the act of delivering your pleading to the court
while service means the act of giving a copy of your
pleading to the other party. When are you going to serve
a copy of your pleading to the other party? You should
do it before you file the pleading. Because in fact, the
court will not accept your pleading if there is no proof
that you have served a copy of the pleading to the other
party. Thats rule 1 in the filing and service of pleadings.
Section 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 and deposits, as shown by the
post office staff 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.
Section 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 partys or
counsels residence, if known, with a person of sufficient age
and discretion then residing therein.
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o Okay. How do you file your pleadings in court? Pleadings
may be filed either personally or by registered mail.
Where the pleading is filed by ordinary mail or by private
messengerial service, it is deemed filed on the day it is
actually received by the court, not on the day it was
mailed or delivered to the private messengerial service.
Thats the case of Industrial Timber Corporation vs. NLRC
INDUSTRIAL TIMBER CORP. VS. NLRC (233 SCRA 597)
HELD: Where a pleading is filed by ordinary mail or by
private messengerial service, it is deemed filed on the day it is
actually received by the court, not on the day it was mailed or
delivered to the messengerial service.
o When you serve a copy of your pleading to the other
party, or even when you file your pleading by mail, the
preferred mode of mailing is always registered mail. Dili
ordinary mail What is this registered mail?
Section 7. Service by mail
Service by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly addressed to
the party or his counsel at his office, if known, otherwise at
his residence, if known, with postage fully pre-paid, and with
instructions to the postmaster to return the mail to the
sender after ten (10) days if undelivered. If no registry service
is available in the locality of either the sender or the
addressee, service may be done by ordinary mail. (as
amended by En Banc Resolution, Feb. 17, 1998)
o When registered mail gani, you have to go to the post
office. Is the post office still relevant? Naa na tanan sa
internet. Wala nay love letter sa post office ron, naa ra sa
facebook. Anyway, the post office nabuhi nalang na ron
tungod sa court, because of the pleadings that are filed.
When you serve a copy of your pleading to the other
party or you filed in court, registered mail jud ang
preferred mode. Registered mail gani, you deliver the
envelope in the post office, then the post office will issue
a receipt for that. In your envelope, you must attach a
registry return card. Tanang law office, they have printed
registry return cards. The card contains the addressee
and the name of the sender and there is a directive to
the post office to deliver this message or envelope to the
addressee, and if not delivered, to return it to the
sender. If it is delivered, the registry return card will have
to be signed by the addressee and the postman will
remove it and send it back to the sender. That is the
proof that the addressee has already received it.
Based on the discussion by Dean Alex Monteclar
o In the meantime, after you deliver that letter to the post
office, you are given a small receipt, a registry receipt.
That is the one that you will attach to your pleading to
prove to the court that you have already mailed a copy of
the pleading to the other party. Thats how you do it.
Section 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.
o I send a copy of my pleading to the other party before I
file it in court. The court will not receive it without proof
of service. And what is the proof? You attach to the last
page, the registry receipt. State there, Copy of this
pleading was sent by registered mail as evidenced by
registry receipt no. blank. You copy the registry receipt
number. Aside from stating the registry receipt number,
attach or staple the registry receipt at the last of your
pleading. In fact, that is not enough. According to the
Supreme Court, the best way to prove service is the
affidavit of the server. So ang messenger sa law office,
pahimua daan ug affidavit stating the following facts: 1.)
He is the messenger and 2.) that he was the one who
mailed this pleading to the other party, and 3.) it was by
registered mail, and 4.) that the registered receipt is
attached. So its all about the fact of service. That is how
you prove service of the pleading so the court will accept
your pleading.
Manner of filing of Pleadings
Personally
Registered Mail
Modes of service of pleadings
Personal Service
Registered Mail
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Substituted Service of Pleading (to the Clerk of
Court)
PERSONAL SERVICE
Personal Service by delivering personally a copy of the
pleading to the other party, his counsel, or by leaving a copy
in his office with his clerk or with the person having charge
thereof. If no person is found thereof, by leaving a copy
thereof between 8am and 6pm.
REGISTERED MAIL
Mail through registered mail or ordinary mail (only when the
registry service is not available)
There is a big difference. If you serve through registered mail,
date of mailing is considered the date of filing. If you do it
through ordinary mailing, it is the date of receipt (not the
date of mailing). When the pleading is considered filed.
SUBSTITUTED SERVICE OF PLEADINGS
If service cannot be made personally, or by mail, the office
and place of residence of the counsel, the service may be
made by delivering the copy to the clerk of court.
This must be distinguished from service of SUMMONS, this is
a different thing. Here we are talking about substituted
service of PLEADINGS.
This happens when the address of the counsel of the party or
the party himself is unknown; the service of pleadings will be
done by delivering the copy of the pleading to the clerk of
court. This is considered substituted service of pleadings.
SERVICE OF COURT ORDERS/RESOLUTIONS
This is from the point of view of the court, the decision of the
court as well as the orders/resolutions of the court, must also
be served on the parties. How is it served?
Personal Service
Registered Mail
Publication
As much as possible, this must be served personally to the
parties. Anyway, the court always has a process server (one
of the employees of the court; ang trabaho niya kada-adlaw
magsige ra og suroy from one office to another delivering the
copies of the orders/resolutions of the court)
Based on the discussion by Dean Alex Monteclar
If personal service cannot be made by the process server, like
the place is far from the court (from another province), it
shall be done by registered mail.
The third mode is exceptional, publication. This can only be
done if the summons was served through publication the
judgment of the court must also be served by publication
(thats the requirement).
PREFERENCE UNDER THE NEW RULES Personal Service
Among the three modes of service, the preferred service by
the new rules is personal service. The new rules provide,
whenever practicable, the service of pleadings and other
papers shall be done PERSONALLY. If you do it by mailing,
you must have an explanation why the service was done
through mailing and not through personal service. In fact the
Supreme Court and the CA are very strict on this rule. (Note:
lack of secretary, lack of servers or man power because the
lawyer is poor, is a valid reason.)
HOW DO YOU PROVE SERVICE? Sec. 13 Rule 13 Proof of
Service
1. PERSONAL 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.
2. ORDINARY MAIL- 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.
3. REGISTERED MAIL- 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.
NOTICE OF LIS PENDENS
Section 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 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.
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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
rights of the party who caused it to be recorded
A protection to a party in a case if the property,
which is subject of the case, is transferred. Anyone
who buys after the filing/recording is not a buyer in
good faith.
RULE 14
SUMMONS
Summons is a writ by which the defendant is notified of the
action brought against him. It is a direction that the
defendant answers the complaint within the period fixed by
the Rules and that unless he so answers, plaintiff will take
judgment by default and may be granted the relief applied
for.
WHO ISSUES? Sec 1 provides the CLERK OF COURT shall issue
the summons.
CONTENTS Section 2
The summons shall be directed to the defendant, signed by
the clerk of court under seal and contain:
(a) the name of the court and the names of the parties to
the action
(b) a direction that the defendant answer within the time
fixed by these Rules;
(c) a notice that unless the defendant so answers plaintiff
will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem if any, shall be attached to the original and
each copy of the summons
WHO WILL SERVE THE SUMMONS? Section 3
1. The sheriff,
2. his deputy, or
3. other proper court officer, or
Based on the discussion by Dean Alex Monteclar
4. for justifiable reasons by any suitable person
authorized by the court issuing the summons.
A military man/policeman/brgy tanod is not one of
them UNLESS he is authorized by the court (4)
Service of summons is a ministerial act. Thus, it may
be made ANYTIME including holidays and
ANYWHERE (i.e. buwangan)
MODES OF SERVICE OF SUMMONS (no registered mail!!!)
1. PERSONAL SERVICE Section 6. Service in person
on defendant. Whenever practicable, the
summons shall be served by handling a copy thereof
to the defendant in person, or, if he refuses to
receive and sign for it, by tendering it to him.
2. SUBSTITUTED SERVICE Section 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.
3. SERVICE OF SUMMONS BY PUBLICATION
Section 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.
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Section 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
SERVICE IN PERSON is the first and preferred
mode of service. Only after several failed
attempts of personal service, that SUBSTITUTED
SERVICE will be used as a mode of service and
Sherriff must explain the circumstances
(MANDATORY)
SUBSTITUTED SERVICE OF SUMMONS is
different from SUBSTITTUTED SERVICE OF
PLEADINGS. Take note in SUMMONS, you serve
the summons to a person of suitable age and
discretion at the residence or competent person
in charge in the defendants office while in
PLEADING, you serve the pleading to the branch
CLERK OF COURT.
Service of Summons by Publication (Sec. 14, 15 & 16) can
only be resorted to when the defendant can no longer be
located and the substituted summons cannot be had.
- way residence, way asawa, way anak, wa tanan.
When allowed:
1. 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
(sec 14)
- here leave of court is required for service of
summons by publication (file a motion for leave of court)
Pantaleon v Asuncion
If the action is an action in personam, as in the case
of collection of sum of money, summons by publication is not
sufficient as the law requires personal service on the
defendant.
Service of summons by publication applies only to
action en rem or quasi en rem. However, there is a remedy
by converting the action in personam to action in rem or
quasi in rem and this is by attaching the property of
defendant in the Philippines. By attaching the property under
Rule 57, the court has now acquired a lien (Citizens Insurance
Surety vs Melencio-Herera).
Based on the discussion by Dean Alex Monteclar
PANTALEON vs ASUNCION IS NOW ABOLISHED FORGET
ABOUT IT.
PRESENT RULE:
PEDRO SANTOS Jr. vs PNOC EXPLORATION
HOWEVER, if the defendant court could not be
personally served with summons despite diligent efforts to
locate his whereabouts, summons by publication may be
resorted to even if it is an action in personam. The in rem/ in
personam distinction was significant under the OLD RULE
because it was silent as to the kind of action to which the rule
was applicable. Because of this silence, the court limited the
application of the old rule to in rem action only. This has been
changed now. The present rule expressly states that it applies
IN ANY ACTION WHERE THE DEFENDANT IS DESIGNATED AS
AN UNKNOWN OWNER ETC. (SEC 14). Thus, it now applies to
any action whether in personam, in rem or quasi-in-rem.
This Rule however applies only when the defendant
is WITHIN the Philippines but cannot be found
because when the defendant is outside the country,
the rule that will govern is the extra-territorial
service f summons
2. 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, or the property of the defendant has been
attached within the Philippines. (THE EXTRA TERRITORYAL
SERVICE OF SUMMONS because defendant is already
outside of the Philippines)
- Here the defendant is residing in the foreign
country
Instances where Extra-Territorial service of summons under
Sec 15 is allowed
1. Action affects the personal status of the plaintiff
2. When the subject matter involves a property in the
Philippines which the defendant has a claim or lien; is
attached
3. When the relief demanded consists in excluding the
defendant from any interest therein
4. When defendants property is attached
Modes of Extra-Territorial Service of Summons
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1. Personal Service resorted to if the resident in foreign
country is KNOWN
EX: Kabaw ka nga naa sa Los Angeles with the street
and house number aw pwede kaau ipadala ang
sheriff ngadto. Kung dato kaau ang plaintiff aw sya
plite sa sheriff ngadto!
2. By publication more practical way of service.
3. In any other manner the court may deem sufficient
CARRIAGA vs MALAYA
In this case, they had it by registered mail. What
happened in this case is that the child filed a case against
his father for recognition as an illegitimate child
demanding for support. The father is already residing in
the US.
Wa lage sya kwarta, wa pd sya ika bayad sa filing fee
so the court allowed him to file a case a an indigent
litigant para ma exempted. Now the problem is the
service of summons, luckily he knows the address
through his mother. The court resorted to mailing the
summons to the said address. Nadawat man gyud sa
defendant ang summons and he hired a lawyer in the
Philippines QUESTIONING THE SERVICE OF SUMMONS.
His contention is that it is not allowed by the rules of
court kay gi-mail ra man.
SC held that it falls under the exception IN ANY
OTHER MANNER.
But Extra-Territorial Service is NORMALLY DONE IN
PUBLICATION.
HOWEVER, the summons must FIRST BE SENT
(normally it is be mailed) TO HIS LAST KNOWN ADDRESS.
3. Any action 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 by publication (Sec. 16)
Purpose: Substantial compliance with the due process clause
of the Constitution. For formality.
Dean Monteclar: For me, it would be useless, kahibaw na gud
kang walai mudawat. Wala na gud ang defendant didto sa last
known address. Kinsa pa may mudawat ana? 99% mubalik sa
court. But the court said maayo nalang na aron naa tai proof
Based on the discussion by Dean Alex Monteclar
that we attempted to serve it and it complies with the
requirement of due process.
Now, if the defendant is a resident of but is temporarily out
of the country, how is summons served?
Ans: Summons may, by leave of court, be effected by:
1. Personal service
2. Publication
3. Substituted service of summons
PABLO C. MONTALBAN, ET AL. vs. GERARDO MAXIMO (G.R.
No. L-22997) March 15, 1968
Facts: Montalban, et al. commenced a suit against Fr. Maximo
which sprang from a motor vehicle accident. On the same
day, the complaint was filed and summons was served at the
parish church of Concepcion, Malabon, Rizal through Fr.
Bautista, a priest in the same parish church. Fr. Bautista,
however, wrote the court informing them that Fr. Maximo
left for Europe. Upon default, the hearing proceeded and
judgment was rendered against Fr. Maximo.
Issue: Whether summons in a suit in personam against a
resident of the Philippines temporarily absent therefrom may
be validly effected by substituted service under Section 8,
Rule 14, (formerly Section 8, Rule 7) of the Rules of Court.
Held: YES. The court considered the origin of Section 8, Rule
14 of the Rules of Court American Legal System. The word
defendant in that provision is to be construed as
including any resident of this country. By comparative
construction, Section 8 is to be applied to all resident
defendants without distinction as to whether he is
physically present in this country or not.
N.B.: Under the rules, a plaintiff, in the initial stage of suit, is
merely required to know the defendants dwelling house or
residence or his office or regular place of business and
no more. He is not asked to investigate where a resident
defendant actually is at the precise moment of filing suit.
Section 18 applicability: Not applicable in this case.
The word may in the statement in Section 8 that
service may, by leave of court, be effected out of the
Philippines, as under Section 17 will not support the
deduction, without more, that Section 18 is the only provision
controlling in this case. On the contrary, the phraseology of
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the rule is a recognition of the fact that substituted service
out of the Philippines under Section 17 is but one of the
modes of effective service to bring a defendant in court. And
upon the basic concepts under which our rules governing
processes operate, the normal method of service of summons
on one temporarily absent is by substituted service set forth
in Section 8. And this, because personal service outside the
country and service by publication are not ordinary means of
summoning defendants.
In practical terms, we perceive that in suits in personam
the more circuitous procedure delineated in Sections 17 and
18 is resorted to by a plaintiff if defendants dwelling house
or residence or place of business in this country is not known;
or, if known, service upon him cannot be had thereat upon
the terms of Section 8. Here, since personal service is
impossible, resort to substituted service becomes a necessity.
Dean Monteclar: The Supreme Court used substituted service
to a defendant who is outside the country. Diba wala man
unta nai apil sa extra-territorial service of summons? But then
here, this is a defendant who is just temporarily out of the
country. So resident gyud siya sa Philippines but is out of the
country temporarily. So pwede i-substituted. Unsa mai
substituted? Pwede ihatag ngadto sa iyang residence. Ibilin
ngadto sa maid. Any person of suitable age and discretion
residing therein in the residence.
SPECIAL MODES OF SERVING SUMMONS
1. SERVICE OF SUMMONS UPON AN ENTITY WITHOUT
JURIDICAL PERSONALITY.
Section 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.
Example: Theres a business for example that is not
registered with the SEC. Its not a corporation; its not a
partnership, no juridical personality. Pero kana nga
business let us call it ABC Enterprises, hardware store. Its
a partnership pero wala ma rehistro. No juridical
personality. There are 3 owners namely A, B & C. Now,
you dont know the names of the owners.
Based on the discussion by Dean Alex Monteclar
Q: How will you serve summons?
A: Summons can be served on anyone of them whom
you believe is the owner or it can even be served on the
manager of the establishment because anyway later on
the names of the true owners who are the real parties in
interest would come out and the corresponding
amendment to the complaint may be done.
2. SERVICE OF SUMMONS UPON SOMEBODY WHO IS A
PRISONER
Section 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.
Service of summons upon prisoners it should be given to
the warden. The jail warden is automatically considered
as deputized to serve it to the prisoner.
3. SERVICE OF SUMMONS UPON MINORS AND
INCOMPETENTS
Section 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 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.
How do you serve summons to the minors and
incompetent ? It should be given to the minor OR
incompetent and their guardians AND parents. Di
mahimo ug sila ra.
4. SERVICE OF SUMMONS ON DOMESTIC PRIVATE
JURIDICAL ENTITY
Section 11. Service upon domestic private juridical entity.
When the defendant is a corporation, partnership or
association organized under the laws of the Philippines
with a juridical personality, service may be made on the
president, managing partner, general manager,
corporate secretary, treasurer, or in-house counsel.
The one who are authorized to receive summons:
1. President
2. Managing partner
3. Gen manager
4. Corporate secretary
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5. Treasurer
6. In-house counsel
OLD RULES: Agent is included. Pero gi remove na. So
specified na gyud. Kaniadto if you serve summons on the
external counsel of the corporation that is considered
valid because he is considered agent of the corporation.
If you serve summons to the branch manager, valid lang
gihapon na kay AGENT man kuno ng branch manager. If
you serve summons to any of the officer of the
corporation like director, valid lang gihapon na kay mu
apply ang word na agent. Pero under the new rules gi
tang2 naning word na AGENT. Sa ato pa dili na bisag
kinsa lang ang makadwat sa summons for and in behalf a
valid corporation. Kinahanglan sila ra gyud 6. So if you
serve the summons to a private corporation through any
of the officer not mentioned here, the summons is not
validly served. No valid service of summons.
5. SERVICE OF SUMMONS UPON FOREIGN PRIVATE
JURIDICAL ENTITY
Section 12. Service upon foreign private juridical entities.
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.
Rule: A foreign corporation not doing business here in
the Philippines cannot be sued here. Doing business does
not refer to only one isolated transaction but of a series
of transaction.
A foreign corporation here can be sued thru its:
1. Agent
2. Government official designated by law to
receive it.
A foreign corporation who has an agent can be served
thereto.
Period to answer: 15 days.
If no agent: Serve it thru the appropriate government
agency or official authorized to receive for and in behalf
like the Central Bank Governor.
Period to answer: 30 days.
Based on the discussion by Dean Alex Monteclar
If the address of the domestic corporation is unknown, it is
wrong to immediately serve summons thru publication. The
sheriff must first exert diligent effort to locate its officers and
serve summons on them. If it fails after several attempts then
thats the time they can serve summons by publication.
Q: How do you prove service of summons?
A: Section 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.
Section 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.
Q: If the service of summons was done by publication in the
newspaper how do you prove it?
A: The best evidence to prove it is the affidavit of the
publisher. You get the affidavit of publication from the
publisher. The affidavit of the printer, his foreman or
principal clerk, or the editor to which affidavit a copy of the
publication shall be attached. So you have the affidavit then
you attach the newspaper clipping. The page of the
newspaper where the publication appears imu i-attach sa
affidavit and usually if ang publication is three times once a
week for three consecutive weeks. So 3 ka newspaper imu i-
attach. You will have it marked as exhibit say exhibit D, D-1,
D-2, D-3. Exhibit nimu ang affidavit of publication. You prove
the proper service of summons BEFORE the start of the case
because you have to establish the jurisdictional facts. And
one of the jurisdictional facts is the acquisition by the court of
jurisdiction over the defendant and that is summons by
publication.
NEW RULE
Section 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
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other grounds aside from lack of jurisdiction over the person b. Contents. (Section 3)
of the defendant shall not be deemed a voluntary
appearance. c. It must be set for hearing. (Section 4)

d. Notice of hearing. (Section 5)

Rule 14 Section 20. Voluntary and special appearance shall no
longer be considered appearance to question the jurisdiction
of the court. The inclusion in a motion to dismiss of other
grounds other than jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. The
rule before was when summons was not properly served on
you, if you are the defendant and you were not properly
served with summons that means the court has not acquired
jurisdiction over your person. Lack of jurisdiction over the
person of the defendant that is one of the grounds for a
motion to dismiss. So you can file a motion to dismiss based
on this ground that the court has no jurisdiction over you
because you were not properly served with summons.
e. Proof of service. (Section6)
1. It must be in writing. (Section 2)
Section 2. Motions must be in writings. All motions shall be
in writing except those made in open court or in the course of
a hearing or trial.
Rule 1: A motion must be in writing.
Exception: Motions filed in open court in the course of the
trial. Dili na na kinahanglan in writing pwede ra na verbally.

Example: You can ask for continuance in open court without

OLD RULE
The SC said when you file a motion to dismiss it should be by
way of special appearance. Purposely to question the
jurisdiction of the court and you should not include other
grounds for a motion to dismiss there. Kana ra jud imu
ground. Lack of jurisdiction over the person of the defendant.
Kung imu kuno sagolan ug lain ground for a motion to
dismiss, you are already considered deemed to have
voluntarily submitted yourself to the jurisdiction of the court.
Mao nai rule kaniadto. But was changed and this is now
incorporated in Sec 20 of Rule 14. When Rule 14 says 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.
RULE 15
MOTIONS
putting your motion in writing. You are asking the court to
stop the trial. Continue later it could be this afternoon or next
month. Pero kasagaran gyud if you want something from the
court, it should be reduced in writing.
2. Contents. (Section 3)
Section 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.
What does your motion contain? Your motion contains the
relief that you are asking from the court. Because you are
asking relief from the court, you state that you are asking
from the court and the grounds relied upon by you in your
motion.

Q: What is a motion?
3. It must be set for hearing. (Section 4)
A: Section 1. Motion defined. A motion is an application for
Section 4. Hearing of motion. Except for motions which the
relief other than by a pleading.
court may act upon without prejudicing the rights of the
In other words its not a pleading. Its not a complaint. Kay adverse party, every written motion shall be set for hearing
diba ato naman gi enumerate unsai pleadings. What are by the applicant.
pleadings? Complaint, answer, counterclaim, cross-claim,
Every written motion required to be heard and the notice of
third party complaint, reply, other than that motions na na
the hearing thereof shall be served in such a manner as to
imong i-file sa court where you ask something from the court,
ensure its receipt by the other party at least three (3) days
you apply for a relief but it is not one of the pleadings
before the date of hearing, unless the court for good cause
enumerated in Rule 7.
sets the hearing on shorter notice.
Requisites for a valid motion:

a. It must be set for hearing. (Section 2)

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Based on the discussion by Dean Alex Monteclar
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General Rule: When you file a motion, it must be set for
hearing and you have to furnish a copy of your written
motion to the other party at least 3 days before the hearing.
3-day notice rule.
Take Note: Not all motions must be set for hearing. You have
to distinguish.
Non-litigable motions need not set it for hearing. You can
ask the court to resolve that motion ex-parte. What do you
mean by non-litigable? Kana bang dili lalisunon. Not
controversial.
Example: Motion to postpone. You can file a motion for
postponement of hearing or motion for resetting. Ipa reset
nimu kay imu witness naa sa hospital. Its not litigable.
Litigable motions- must be set for hearing. Where surely the
other party will contest, then you have to set it for hearing.
And when you set it for hearing, it should be not more than
10 days from the time you filed the motion.
Example:
Day you filed your motion: November 20, 2015, you ask the
court to set it for hearing on a particular date not more than
10 days from today.
Set it for hearing: Not beyond Nov 30, 2015.
Exception: If it is urgent.
Usually, when you ask the court to set it for hearing, the
motion day is on a Friday. So itunong gyud ug Fri kay ang
uban courts di mu schedule ug motion basta Mon-Thur.
Friday is the day reserved by the court for hearing of motions.
But you may violate the 3-day notice rule if the motion is very
urgent. It defeats the urgency if youll wait for three days but
GR ra na ha. There should be 3 days prior notice. In fact,
there were instances where the court said the GR is that if
you violate the 3-day notice rule, your motion will be
considered as a mere scrap of paper. The court will not act on
it or will not grant it. But if you can show to the court that it
is a very urgent motion that needs to be acted upon or if both
parties have mutually agreed that the motion will be heard
on a particular day within the 3-day period, then the court
can act on that motion.
4. Notice of hearing. (Section 5)
The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the
Based on the discussion by Dean Alex Monteclar
hearing which must not be later than ten (10) days after
the filing of the motion.
A motion must contain a Notice of Hearing when it is a
litigable motion.
- Under the new rules, the movant must suggest the
date of hearing. Your motion will be treated as a
mere scrap of paper if you fail to set a date for
hearing. You do not anymore leave it to the
discretion of the court unlike in the old practice.
5. Proof of service. (Section6)
Sec. 6. Proof of service necessary.
No written motion set for hearing shall be acted
upon by the court without proof of service thereof.
A motion must have proof of service.
- When you file your motion in court you must make
sure that the opposing party receives a copy of the
motion at least three days before the scheduled
hearing.
Pro forma Motion
Remember that these three are essential to the validity
of the motion. If you fail to observe these three
requirements your motion becomes a pro forma motion.
A pro forma motion is null and void and is considered a
mere scrap of paper.
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.
The motion day shall be every Friday afternoon.
If Friday is a non-working day, then on 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.
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Omnibus Motion Rule - when you file a motion, such as a
motion to dismiss, you have to put all the grounds in one
motion. All grounds not included in the said motion shall
be deemed waived. That is the general rule.
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.
If you fail to attach the said pleading the court will not
act on your motion.
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.
A motion is not a pleading since it not among those
1. That the court has no jurisdiction over the person of the
mentioned under Rule 7. It is an application for relief
defending party
and not a pleading but if you talk about form, it is the
same as a pleading.
NOVEMBER 25, 2015
RULE 16
Motion to Dismiss
A motion to dismiss is something you file before you file
a responsive pleading. Hence, the period to file a motion
to dismiss is within the period for you to file your
responsive pleading.
As we all know, from the time you receive a copy of the
complaint together with the summons you have fifteen
(15) days within which to file your answer. Within that
period you are allowed to file a motion to dismiss.
GROUNDS FOR A MOTION TO DISMISS
Section 1. Grounds. Within the time for but before filing
the answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following
grounds:
(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;
Based on the discussion by Dean Alex Monteclar
(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;
(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
enforceable under the provisions of the statute of frauds;
and
(j) That a condition precedent for filing the claim has not
been complied with. (1a)
The first two grounds deals with lack of jurisdiction. As
regards the defendant, the court acquires jurisdiction
over his person upon proper service of summons. If
summons are not served or improperly served, then that
is a ground for a motion to dismiss. However, there are
exceptions to that rule on service of summons. There are
other modes of acquiring jurisdiction over the defendant.
The following are:
o Waiver the defendant did not object to the
improper service of summons, instead he filed his
answer and actively participated in the proceedings.
That constitutes waiver.
o Voluntary Appearance when you voluntarily
appear in court. Like for example, prior to the
service of summons, the defendant together with
the plaintiff signed a compromise agreement and
they submitted it to the court. That already
constitutes voluntary appearance and the court has
already acquired jurisdiction over the defendant.
o Issuance of Alias Summons
The first ground is actually the weakest because it is
easily cured. Like in the case of Linger & Fisher vs. IAC
where the defendant argued that the summons were not
served or was improperly served upon his person hence
the court has no jurisdiction over the defendant. The
court then just ordered the sheriff to serve the summons
and the defect is now cured. The court issued an alias
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summons to cure the defect. In this case, the Supreme
Court said that the plaintiff should not suffer just
because of the incompetence of the sheriff.
The doctrinal rule before is that when the summons was
improperly served to the defendant, the defendant may
question the proceedings by way of filing a motion to
dismiss in a special appearance. He then tells the court
that he is questioning only on the ground of improper
service of summons and none other. He should not
include other grounds or else his right to question the
jurisdiction of the court over his person will be deemed
waived because that will amount to voluntarily
subjecting himself to the jurisdiction of the court. But
this doctrine has already been abandoned because of the
Omnibus Motion Rule.
Under the Omnibus Motion Rule, when you file a motion
to dismiss you must state all the grounds available to
you. Otherwise, those not stated are deemed
abandoned or waived. So, if in your motion to dismiss
you raised other grounds aside from lack of jurisdiction
over the person of the defendant you shall not be
deemed to have waived such first ground. This is the
doctrine laid down under the case of La Naval Drug Corp
and has been incorporated under Sec. 20 of Rule 14.
2. That the court has no jurisdiction over the subject matter
of the claim
This is one of the grounds for a motion to dismiss that
you can raise for the first time on appeal. This is not
considered waived. In fact, this can be used by the court
to dismiss your case motu proprio. This is among the
grounds that are not deemed waived even if not included
in your motion to dismiss or in your answer. Such
grounds are:
o Lack of jurisdiction over the subject matter;
o Litis Pendentia;
o Res Judicata;
o Prescription;
But remember, we have the case of Tijam vs.
Sibonghanoy where the Supreme Court invented that
Estoppel By Laches. The Supreme Court said that, if you
are guilty of undue and unnecessary delay in raising that
issue on lack of jurisdiction over the subject matter you
will lose that ground. But this ruling is the exception. It
is only to be applied in exceptional cases. The general
rule still is that you can still raise the issue on lack of
jurisdiction over the subject matter even for the first
Based on the discussion by Dean Alex Monteclar
time on appeal for as long as you are not guilty of undue
and unnecessary delay.
If this ground is raised in a motion to dismiss, the only
basis of the court to resolve the issue is the allegations in
the complaint. You will know the subject matter of the
case from the allegations in the complaint.
3. That venue is improperly laid
Improper venue means that the case was filed in the
wrong place. For example, a case for accion
reivindicatoria was filed in the regional trial court of Cebu
City. But it turned out later on that the property is
located in Mandaue City. Does the RTC have jurisdiction?
Yes. This is not a question on jurisdiction. The venue was
improper for it should have been filed in the RTC of
Mandaue City and not in Cebu City.
This ground is waivable. You cannot raise this issue for
the first time on appeal.
4. Lack of legal capacity to sue
1. Plaintiff does not possess the necessary qualification
such as being a minor or an insane person.
A minor must be assisted by his guardian or
parents.
If you claim to be a guardian, you have to attach a
copy of the court granting you as the guardian.
2. Representative party
Represents a real party in interest. It is necessary
to mention the name of the principal, and below,
place the name of the representative. Such as,
represented by X as his attorney.
If authorized by the plaintiff but without a Special
Power of Attorney, the case can be dismissed.
It is incumbent to show to the court in the
pleading or complaint the representatives
authority by proofs such as an SPA duly notarized.
5. Litis Pendencia
Elements:
a) Identity of parties
b) Identity of rights asserted
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c) Identity of Relief prayed for which must be founded
on the same facts
d) Identity must be such that any judgment rendered in
either case, regardless of the successful party,
results in res judicata
Teodoro vs. Mirasol: It does not necessarily follow that
the second case will be dismissed. It can be first case. If it
cited in the first case that another case is recently filed,
the court handling the first case may dismiss it. It does
not matter which is dismissed, but one has to be
dismissed.
6. Res judicata and Prescription
1. Res Judicata: Barred by prior judgment.
There is a case filed before and the case is exactly
the same. Same parties, same issues, same cause
of action and the first case has already been
decided. Unlike in Litis Pendencia where both
cases are still pending, in Res judicata, one must
have already been decided.
2. Prescription: Statute of limitation
Lapse of time bars you from filing the case.
7. Failure to state a Cause of Action
Just like lack of jurisdiction on the subject matter, it
must also be based on the complaint itself. When
you file a motion to dismiss the case on the ground
of lack of cause of action, the court will base its
ruling only on the complaint. There is a presumption
that all the allegations in the complaint are true,
thus basis for lack of cause of action is based on the
complaint itself. Defendant may prove falsity of the
allegation only during the trial of the case.
Elements of a Cause of Action:
a) Right of the plaintiff
b) Obligation by the defendant
c) Violation of the plaintiffs right by the defendant
d) There is damage
If one is absent, then there is no cause of action.
Based on the discussion by Dean Alex Monteclar
8. Plaintiffs claim has been waived, paid or otherwise
extinguished
9. Plaintiffs claim is unenforceable under the Statute of
Fraud
Certain contracts must be in writing; otherwise, the
same cannot be proved in court.
1. By its term, it cannot be performed in one year
2. Contract of lease for more than one year
3. Sale of chattel or personal property the value is
more than 500 pesos
4. Forthcoming marriage, other than promise to
marry
If not in writing, they become unenforceable for
being a violation of the Statute of Fraud.
10. Failure to comply with the condition precedent
1. Katarungang Pambarangay Law
For residents of the same barangay, before one
can file a case in court, they must first pass
through the Lupong Tagapamayapa for a
conciliation proceeding. If it cannot be settled, a
certification to file an action will be issued, and
only upon such time will the parties be allowed
to file a case. Compliance with the Katarungang
Pambarangay Law must be alleged in the
complaint.
2. Members of the same family
There must be an earnest effort to settle the
matter amicably. Failure to state in the
complaint results in dismissal.
3. Exhaustion of administrative remedies
Must be availed of, as provided by law,
otherwise case will be dismissed
4. Construction contracts
Usually have arbitration clause such as any act
arising in the contract must first pass through
arbitration in the specialized court called CIAC
(Construction Industry Arbitration Commission).
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Lack of jurisdiction can also be raised because

only CIAC has jurisdiction according to the new Remedy incase a Motion to Dismiss is GRANTED (case is
law. dismissed)

Any of these grounds may be used for the dismissal of The Plaintiff (the party prejudiced by the dismissal) may
the case. Within the 15 days to file an answer, a party appeal.
may choose to answer or to file a motion to dismiss.
The dismissal of the complaint is considered to be
If you file a motion to dismiss, no need to file an answer. judgment on the merits of the case.
Wait for the motion to be denied, and only upon such
time may you file an answer.
If the Motion to dismiss is DENIED
If you file an answer right away, you may incorporate any
of the grounds for a motion to dismiss in your answer by The defendant cannot appeal the denial of the motion;
way of Special Affirmative Defense. it is an Interlocutory order.

A motion to dismiss is a litigable motion. As such, it must The proper course of action is to file the Answer.
be set for hearing.
But the defendant is not precluded from filing for
EXC: 1.) Lack of jurisdiction Certiorari or Prohibition if he feels there was grave
abuse of discretion (But the usual practice is to just file
2.) Lack of Cause of Action. an Answer).
These two grounds can be based solely on the Answer must within the balance of the period
allegations of the complaint. prescribed by Rule 11, but not less than 5 days in any
event (similar to Motion for Bill of Particulars).
Resolution of Motion to Dismiss: o Same computation of period: Exclude the first
day, the day of the interruption and the day you
After hearing the court has 3 options, and may either:
received the order of court ruling on the
1. Grant the motion to dismiss motion. Include the last day.

2. Deny NB: An order DENYING a Motion to Dismiss is

INTERLOCUTORY and NOT APPEALABLE; an order GRANTING
3. Order amendment of the pleading a motion to dismiss is FINAL & APPEALABLE.
The old rules allow the judge to defer the resolution of
the Motion to Dismiss if the grounds are not clear or A case dismissed on the following grounds CANNOT be
doubtful and may decide on the Motion after a full- refilled:
blown trial.
1. Res Judicata (par. f)
UNDER THE NEW RULES THIS IS NO LONGER ALLOWED,
the court has to rule on the motion. 2. Prescription (par. f)

3. Obligation has already been paid, waived, or

Effect of Motion to Dismiss abandoned (par. h)

Your motion to dismiss, suspends the period to answer. 4. Statute of Frauds (par. i)
But a Motion to Dismiss is not a responsive pleading,
Only these 3 grounds, paragraph f, h, and i preclude a
thus the plaintiff can amend his complaint as a matter of
refilling of the case.
right.
If dismissal is based on the other grounds of Sec. 1 of
o One of the disadvantages of a Motion to Dismiss
Rule 16, the case can be refilled.
(instead of an Answer): the Plaintiff has the
opportunity to amend his Complaint to make the Ex: lack of jurisdiction over the person, improper
necessary corrections, and does not need the venue, and lack of cause of action -> can be refilled.
permission of the court (a matter of right).

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Based on the discussion by Dean Alex Monteclar
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Pleading Grounds as Affirmative Defenses
Grounds for a motion to dismiss can also be incorporated in
the Answer, and it has its advantages.
1st advantage: It prevents the plaintiff from immediately
amending his complaint, because it no longer becomes a
matter of right.
o Plaintiff would have to file a motion for leave of
court to amend his complaint, and defendant
may be able to oppose.
2nd Advantage: Plaintiff may ask the court for a
preliminary hearing for his special affirmative defenses.
Plaintiff can thus prove the special affirmative defenses
in court, and if proved, there would be no need for a full-
blown trial.
o Hearing for special affirmative defenses and
hearing for motion to dismiss are similar in
nature, and thus provide the same effect.
o Although its discretionary for courts to allow
preliminary hearing of the special affirmative
defenses; in practice, courts often prefer to hear
on the affirmative defenses first in the hope of
shortening proceedings.
RULE 17
DISMISSAL OF ACTIONS
Rule 16 vs. Rule 17
Rule 16: Dismissal is at the instance of the answering
Defendant
Rule 17: Dismissal is at the instance of the Plaintiff.
2 ways for a Dismissal of an action at the instance of the
Plaintiff
1. Matter of right (Sec. 1)
2. Matter of judicial discretion (Sec. 2)
Section 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
Based on the discussion by Dean Alex Monteclar
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.
Dismissal is a matter of right when there is yet no Answer
or Summary judgment of the case
The plaintiff just has to notify the court through a Notice
of Dismissal. The court cannot deny this and must issue
an order allowing the dismissal.
Dismissal is WITHOUT prejudice (it can be re-filed) -
meaning, the plaintiff can always re-file the case.
o EXCEPT when the order of dismissal provides
otherwise OR under the Two Dismissal Rule.
TWO DISMISSAL RULE on the 2nd Dismissal it is now with
prejudice
EX: I filed a case against you, before you can answer
I filed motion to withdraw the complaint. Later on, I
decided to re-file the same case again I withdraw again as
you ask for another chance. I cannot anymore re-file it on the
THIRD time as the two dismissal rule is applicable.
Sec. 2
Dismissal upon MOTION of the plaintiff word used is
MOTION no longer a matter of right there is already an
answer filed by the defendant
Leave of court is required because there is already an
answer filed by the defendant
Q: If there is a counterclaim, does the dismissal include
such counterclaim?
o A: It depends on the defendant.
When the plaintiff dismiss the case with leave of
court, the defendant is given 15 days to inform the
court whether or not he would like his counterclaim
to be treated on the same case or he will file it
separately (given that the said counterclaim is a
permissive counterclaim not compulsory).
Dismissal is without prejudice unless otherwise
specified.
o He can still re-file the case later on he wants to,
unless in the dismissal the court states that it is with
prejudice.
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Sec. 3
Dismissal DUE TO THE FAULT of the plaintiff
3 Grounds for dismissal due to the fault of plaintiff
1. When plaintiff fails to appear on the date of the
presentation of his evidence in chief;
2. When plaintiff fails to prosecute his case for
unreasonable length of time
Ex:
a. The summons cannot be sent to the
defendant because the address stated in the
complaint is not the right address. And even if
the court requested the amendment of the
complaint for the plaintiff to provide the
correct address but he did not do anything.
Then the court can dismiss it.
b. it must be the plaintiff / his counsel to file
motion for hearing of pre-trial (new rules)
Failure to file the said motion for a long time
then it is a ground to dismiss the case due to
the failure to prosecute for unreasonable
length of time.
3. When plaintiff fails to comply with the Rules of
Court or any order of the court for no justifiable
reason or cause.
o The order of the court should be justifiable and
lawful
Difference between Rule 16 and 17
Rule 16: 10 grounds, the dismissal is at the instance of the
defendant or of the court
Rule 17: dismissal is at the instance of the plaintiff or due to
the fault of the plaintiff
Rule 18
PRE-TRIAL
Pre-Trial it is here where the court will lay down the rules of
the game in order to simplify the issues
When conducted:
o Shall be conducted after all the issues are joined.
- Issues are joined after the last pleading is filed.
Based on the discussion by Dean Alex Monteclar
*IT IS THE DUTY OF THE PLAINTIFF TO MOVE FOR THE
SETTING OF PRE-TRIAL (HOWEVER, Riano mentioned that
the SC issued A.M. No. 03-1-09-SC, July 13, 2004, that if the
Plaintiff fails to do so, it is the duty of the Branch Clerk of
Court to give notice to the parties for the setting of Pre-
Trial)
B. Nature and Purpose:
Section 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. (1a, R20)
The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution
The simplification of the issues
The necessity or desirability of amendments to the
pleadings;
The possibility of obtaining stipulations or admission of
facts and of documents to avoid unnecessary proof;
o Both parties shall agree on the facts, if they
agree there is no need to present evidence to
establish such fact.
The limitations of the numbers of witnesses
The advisability of a preliminary reference of issues to a
commissioner;
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o Only resort to this if there are matters that the
judge cannot resolve because he needs an
expert opinion. Eg. Boundaries sa yuta
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;
The advisability or necessity of suspending the
proceedings; and
o This is in the case were amicable settlement
cannot be had yet, parties needed more
sufficient time to settle the matter.
Such other matter as my aid in the prompt disposition of
the action.
Section 3. Notice of pre-trial. The notice of pre-trial shall
be served on counsel, or on the party who has no counsel.
The counsel served with such notice is charged with the duty
of notifying the party represented by him. (n)
Before pre-trial, there must be NOTICE provided for by the
clerk of court.
NOTICE OF THE PRE-TRIAL: sent to the lawyer, unless
otherwise required by the Court.
GR: NOTICE TO THE LAWYER IS NOTICE TO THE CLIENT
EXCEPT: If there is GROSS NEGLIGENCE IN THE PART
OF THE LAWYER THAT DEPRIVED THE RIGHT OF THE
CLIENT TO DUE PROCESS.
GR: NOTICE MUST BE IN WRITING
EXC: Not all notices of Pre-trial, not all the time it must be
required to be in writing, such as:
Notice in open court in the presence of the parties
when the court sets the case for Pre-Trial and they are made
to sign the expedience (record of the case); then that is
already sufficient notice. (Arcilla v Arcilla)
ARCILLA vs. ARCILLA
138 SCRA 560
FACTS: There was a pre-trial conference on July 29, where all
the parties are notified through their lawyers pursuant to
Section 3. They appeared but somehow the pre-trial was
terminated on July 29. The court decided to reset the pre-
trial on Oct. 2. The parties agreed. Normally, the procedure
is, when that happens, there will be another written notice.
Based on the discussion by Dean Alex Monteclar
There should be another written notice sent to the lawyers
and parties.
In this case, no such written notice was issued. On Oct.
2, the defendant did not appear. With that, he was declared
to have lost his rights to present his side. He was considered
in default. He questioned the order on the ground that he
did not receive any notice on the Oct. 2 pre-trial conference.
Therefore, all subsequent proceedings, including the
judgment rendered against the defendant were void. Is he
correct?
HELD: At first blush, petitioners aforesaid contention
appears very tenable, for indeed it is settled that a
declaration of default, in the absence of a notice of pre-trial
constitutes denial of due process. But a deeper examination
of the pleadings and the record of the case would show that
petitioner was present during the pre-trial conference on
July 29, 1975 when the lower court re-set the pre-trial to
October 2, 1975. On the said date, however, although
notified, both petitioner and his counsel did not appear,
hence, the declaration of default.
B. Appearance of parties:
Section 4. Appearance of parties. It shall be the duty of the
parties and their counsel to appear at the pre-trial. The non-
appearance of a party may be excused only if a valid cause is
shown therefor or if a representative shall appear in his
behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of
facts and of documents. (n)
MANDATORY
EXCEPT - When appearance may be excused:
There is a valid or justifiable reason for his absence (eg.
SICKNESS, accompanied by medical certificate)
He authorized somebody to appear for him
o SPA is NOT enough, must be written authority to
settle the case amicably
o If a party to the case is a corporation, person
representing the party must be authorized by a
BOARD RESOLUTION
o The person authorized must be clothed with
proper authority to enter into settlement and
stipulation of facts.
o IT MUST BE FULL AUTHORITY in:
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settlement of facts
admission of facts
enter into settlement agreement
o If the authority is invalid IT IS AS IF HE DID NOT
ATTEND THE PRE-TRIAL
C. Effects of failure to appear:
Section 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 other-wise
ordered by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the
basis thereof. (2a, R20)
Plaintiff Dismissal with prejudice
Defendant as in default (term not actually used now).
o Court will order the Plaintiff to present his
evidence EX-PARTE. Remedy is to file a motion for
reconsideration and not a motion to lift default.
Remedy of the Defendant if party is ordered to present
evidence ex-parte file motion for reconsideration
N.B. If the court grants the motion, there is no need to set
for another pre-trial. UNLESS THE PARTIES AGREE TO GO
BACK TO PRE-TRIAL.
If the plaintiff has already presented his evidence ex-parte
and the court grants the motion for reconsideration filed by
the defendant, the defendant will now be allowed to cross
examine the witnesses presented by the plaintiff ex-parte.
Before the pre-trial under the new rules, the parties MUST
submit their pre-trial brief and is mandatory.
PRE-TRIAL BRIEF: The policy is to avoid unnecessary surprises,
and the brief contains:
1. Statement of the parties to enter into amicable
settlement or alternative mode of dispute resolutions
2. summary of admitted facts
3. proposed stipulation of facts
4. state the evidences to be presented and its purpose
PURPOSE OF PRE-TRIAL
Based on the discussion by Dean Alex Monteclar
Make a manifestation whether you have or will avail
of modes of discovery or amenable to referral to a
commissioner or how many witnesses you are going to
present.
Pre-trial brief must be submitted 3 days before the pre-trial,
thats a mandatory requirement. Failure to file your brief
before the day of pre-trial shall have the same effect as failure
to appear at the pre-trial.
PRE-TRIAL
The stenographer shall record everything, and the judge shall
issue the pre-trial order. The order is important because it
controls the proceeding after the pre-trial. Only the issues in
the pre-trial will be heard in the trial. If a party will bring up
an issue not tackled during the pre-trial, the other party can
object.
RULE 19
Intervention
Section 1. Who may intervene. A person who has a legal
interest in the matter in litigation, or in the success of either
of the parties, or an interest against both, or is so situated as
to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the
action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the
intervenor's rights may be fully protected in a separate
proceeding.
A person not a party to the civil action may intervene when
he has an interest on the outcome of the cause, regardless of
whether the plaintiff or defendant will prevail.
It requires leave of court. To allow intervention is not a
matter of right, it is within the sound discretion of the
court.
GROUNDS:
1. Show to the court that you have a legal interest on the
matter under litigation.
2. Legal interest in the success of either or both of the
parties.
3. Intervenor is so situated as to be adversely affected by a
distribution or other disposition of the property in the
custody of the court.
File a motion for leave of court to intervene.
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Attach a copy of the pleading in intervention to the
motion
Intervention is allowed only if the party was able to prove his
interest in the pending case. The court will take into
consideration the following questions in resolve the motion to
intervene:
1. WON the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties
2. WON the intervenor's right may be fully protected in a
separate proceeding
if YES, INTERVENTION SHOULD NOT BE
ALLOWED
WHEN MOTION MAY BE FILED?
Section 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.
may be filed ANYTIME before rendition of
judgment
WHAT IS THE EFFECT OF THE DISMISSAL OF THE MAIN
ACTION ON INTERVENTION:
SIR: Before, the rule1 is the intervention being an
ancillary action should be dismissed together with the main
action however, subsequently,2 the dismissal of the main case
does not necessarily resolve to the dismissal of the
intervention.
*So actually, the answer is it depends whether the
intervention can stand alone without the main case. If yes,
allowed to go on, if not, then intervention should be
dismissed together with the main case.
REMEDY:
Normally, MANDAMUS cannot be availed because
this is discretionary, but if there is GRAVE ABUSE OF
DISCRETION, then MANDAMUS together with CERTIORARI
may lie.
Section 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-
1
Big Country Ranch case
2
Metropotilan Trust Company case
Based on the discussion by Dean Alex Monteclar
intervention if he unites with the defending party in resisting
a claim against the latter.
Section 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.
RULE 20
Calendar of Cases
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.
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.
When a case is filed in a multiple sala court, it should be filed
in the office of the clerk of court, central office not the branch
clerk of court. The assignments to the branches are done by
raffle in the presence of 3 judges.
NOVEMBER 27, 2015
RULE 21
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.
a. Subpoena: a written order from a court directing a
person to appear and testify in connection to the case
pending before it.
b. Subpoena Ad Testificandum: requires a persons
appearance to testify
c. Subpoena Duces Tecum: requires a person to bring
before the court some documents or papers to be
presented as evidence in court.
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d. Subpoena Duces Tecum Ad Testificandum: requires the
persons testimony and presentation of evidence
By whom issued:
a. Issued by the court before which the witness is required
to attend. The case is pending in the said court.
b. Issued by the court of the place where deposition is to be
taken. The court, which issued the subpoena, is not the
one handling case. The court where witness will testify
by way of deposition has the authority to issue the
subpoena only for the purpose of requiring the witness
to testify.
c. Officers or Body authorized by law in connection to the
investigation being conducted
Fiscal, City prosecutor, NBI, Ombudsman in
connection to their power to conduct investigation
d. Any justice of the Supreme Court or Court of Appeals in
any case or investigation pending within the Philippines
Contents:
a. Caption of the case (name of court, title of case, docket
no.)
b. Below it is a directive from the court, body or agency
requiring the person to appear before it in connection to
a case pending before the said court.
Grounds to quash Subpoena Duces Tecum:
a. When the subpoena is unreasonable or oppressive
Bringing of documents from 2010 to 2015
b. Relevancy of books or documents does not appear
c. Person requesting said documents fails to advance
reasonable cause for their production
Deposit amount of money to answer for the cost
of the production (photocopy and transportation)
Ground to quash Subpoena Ad Testicandum:
a. Viatory right: the person requested is not bound because
he resides more than 100 km away from the court.
People vs. Montejo: Viatory right of witness can
only be invoked in civil cases. In criminal cases,
accused has the right to compulsory process, to
Based on the discussion by Dean Alex Monteclar
secure the attendance of witness and the
production of documents for his behalf.
Even if requesting party pays for the cost, viatory
right may still be invoked. If he does not want to,
he cannot be compelled. The remedy is Deposition
Taking
Deposition: the advance taking of the testimony of the
witness. It is taken where the witness resides.
If beyond 100km, witness cannot be compelled
due to viatory right. The remedy of the requesting
party is for the testimony to be taken in the
witness place by way of deposition by a judge,
lawyer, or clerk or court in the said place.
If a judge is requested to take deposition, the
judge can issue subpoena even if the case is
pending in another city.
Ex. The case is pending in Cebu City while the
deposition is to be taken in Cotabato City. The
judge in Cotabato may issue subpoena.
Service of subpoena:
It shall be served like the service of summons.
Served personally by the process server of the
court. If not possible or impractical, it can be
served through substituted service. It is either left
at the residence of the witness, with a person of
suitable age or discretion; or left at the office of
the witness, with the person in charge.
A person cannot be compelled to testify if not
served with a subpoena.
EXC: if person to testify is inside the court room
It is not possible now under new rules due to the
requirement of judicial affidavit.
Effects of failure to appear:
The court will issue warrant for your arrest
Cite in contempt
RULE 22
COMPUTATION OF TIME
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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. (a)
as already discussed: excluded the first day, include
the last day.
Section 2. Effect of interruption. Should an act be done
which effectively interrupts the running of the period, the
allowable period after such interruption shall start to run on
the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be
excluded in the computation of the period. (n)
If a motion, like a Motion to Dismiss or Motion for Bill of
Particulars, interrupts the period, and such is eventually
denied, you have the balance of the period. The day of
the interruption shall be excluded in the counting of the
period
o Ex: If you received the summons on Nov. 30, 2015,
the last day of the 15-day period is Dec. 15. On
Dec. 3 you filed a motion, and you received the
order denying the motion on December 10, you
have until December 23, or 13 days to file your
Answer.
Only 2 days (Dec. 1 & 2) has been consumed since
you exclude Dec. 3.
MODES OF DISCOVERY
Modes of Discovery are ways to know what are the aces on
the sleeves of your opponent. This is one way of forcing the
other party to lay all his cards on the table and avoid
surprises.
The Supreme Court encourages this, and in fact it has to
be stated in your pre-trial brief whether or not you have
availed of the modes of discovery.
The issues of the case can be simplified, surprises
avoided, and can shorten proceedings because you can
already determine whether you have a winnable case or
not.
1. Deposition Taking (Rule 23 & Rule 24)
2. Written Interrogatories to Parties (Rule 25)
Based on the discussion by Dean Alex Monteclar
3. Request for Admission of Adverse Parties (Rule 26)
4. Production or Inspection of Documents and Things (Rule
27)
5. Physical and Mental Examination of Persons (Rule 28)
2 Kinds of Deposition:
Pending Action De Benne Esse (Rule 23) deposition
wherein a case is filed and pending in court.
Before Action In Perpetuam Rei Memoriam (Rule 24)
deposition taking before or in anticipation of an action to
be filed soon, or a deposition pending appeal
RULE 23
DEPOSITIONS PENDING ACTION
Section 1. Depositions pending action, when may be taken.
By leave of court after jurisdiction has been obtained over
any defendant or over property which is the subject of the
action, or without such leave after an answer has been
served, the testimony of any person, whether a party or not,
may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories. The
attendance of witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions shall be taken
only in accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave of court
on such terms as the court prescribes. (1a, R24)
With Leave of Court when the court has acquired
jurisdiction of the defendant but the defendant has not
filed his answer
o When? It is the moment the defendant receives
the summons, the court acquires jurisdiction. He
has 15 days to file an answer. Within that 15-day
period or before he has file an answer, the
plaintiff may take the deposition of any person -
prospective witness of either of the parties.
Without Leave of Court when there is already an
answer filed by the defendant. He just hast to notify the
court that he will be taking the deposition of a certain
person.
Deposition taking is taking the testimony of a person in
advance, preserving it for future use.
Ex. 1: taking the testimony of your witness who is
dying, and you anticipate he will die during the
pendency of the case.
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Ex. 2: taking the testimony of a witness of the opposing Sec. 4

party to contradict the witness testimony before the
court. Use of deposition

1. To contradict or impeach the testimony of

2 modes of Deposition taking deponent as witness

1. Oral Examination you ask questions to the deponent -as mentioned above
(the one giving his testimony) directly orally. 2. Deposition of a party or an officer of the
This is the same as direct & cross examination in corporation may be used by the adverse party for
court except that the one who will listen to the any purpose
testimony is not the judge BUT ANY PERSON WHO 3. Deposition of a witness, whether or not a party,
MAY QUALIFY AS DEPOSITION OFFICER; and it shall may be used by any party for any purpose in the
not be done in the Court where the case is pending. court finds:
2. Written Interrogatories a. The witness is dead;
When you take deposition of any person, you are not b. The witness resides more than 100 kilometers
compelled to use the person as a witness. You are from the court;
preserving their testimony for future use. If favorable,
then you use him. If not, I can always refuse to use him in c. The witness cannot testify because of age,
the case. sickness, or infirmity;

d. The witness did not appear despite subpoena

Use of Deposition: issued

To contradict or impeach the testimony of the deponent

as a witness if what he states in court is different from
Deposition cannot be used as a substitute if the
his statement during the deposition.
deponent is present or available
EX: At the start of the trial, I know that you are going to use
-it can only be used if the witness can no longer
this person as a witness. The good thing about this is that that
testify in court
person that you are going to use in the deposition has not
been coached by the lawyer of the other party yet. The
tendency is that they are too honest to answer your question. Sec 5
Now if the other party used him as a witness and Effect of the Substitution of Parties
during the trial he says contradictory statements, you can
always use the deposition you have taken from him to rebut -deposition taken before substitution can still be used
his statement.
DECEMBER 2, 2015
Sec. 2

Scope of Deposition: Who can be A Deposition Officer:

What are the questions that can be asked on the
deponent?
o May be examined on any matter, provided, it is not
privileged which is relevant to the subject of the
pending action.
Section 10. Persons before whom depositions may be taken
within the Philippines. Within the Philippines depositions
may be taken before any judge, notary public, or the person
referred to in section 14 hereof. (10a, R24)
*If deposition is taken in the Philippines

o Privileged Communication: Ex. Communications Judge

between lawyer and client; Doctor-patient
- Should not be the judge of the case; a judge in
relationship
the place where the witness resides

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Based on the discussion by Dean Alex Monteclar
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Notary Public
Persons authorized to administer oath under Sec. 14
Section 15. Deposition upon oral examination; notice; time
and place. A party desiring to take the deposition of any
person upon oral examination shall give reasonable notice in
writing, to every other party to the action. The notice shall
state the time and place for taking the deposition and the
name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient
to identify him or the particular class or group to which he
belongs. On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or shorten the
time. (15, R24)
*Send notice to the parties that you will be having
the witness deposition taking done by deposition officer so
and so which will act as a judge or listen to the testimony of
the witness; Deposition officer shall be paid along with
stenographer hired by such officer; indicate name of
deposition officer, what kind of deposition, date, time and
place of deposition
Section 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 talking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the
objections. In lieu of participating in the oral examination,
parties served with notice of taking a deposition may transmit
written interrogatories to the officers, who shall propound
them to the witness and record the answers verbatim. (17,
R24)
Deposition Officer CANNOT RULE on the objections during
the Deposition. He shall only note and record such
objections. THE JUDGE OF CASE WILL BE THE ONE TO RULE
ON THE OBJECTIONS UPON SUBMISSION TO HIM OF THE
RECORDS OF SUCH DEPOSITION.
Section 11. Persons before whom depositions may be taken in
foreign countries. In a foreign state or country, depositions
may be taken (a) on notice before a secretary of embassy or
legation, consul general, consul, vice-consul, or consular
Based on the discussion by Dean Alex Monteclar
agent of the Republic of the Philippines, (b) before such
person or officer as may be appointed by commission or
under letters rogatory; or (c) the person referred to in section
14 hereof. (11a, R24)
*If deposition is taken outside the country
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 thereof
Deposition taken outside the country
By oral examination or written interrogatory. But
oral examination is expensive because you have to bring your
team to the foreign country. Written interrogatory is more
practical but this time it is different on certain matters.
Who will be the deposition officer? It could be the
Secretary of Philippine Embassy, Consul General, Vice Consul
or Consular Agent of the Philippines in that State.
This time the consuls will just invite the witness to
their office and the written question will be just read to the
witness. His answers will just be recorded.
Written Interrogatories - the requesting party who wants to
take the depositions will write all his questions on a piece of
paper sent to the deposition officer who will also send it to
the lawyer of the other party who will write all the answers.
*Lawyer of the other party may also prepare cross-
examination questions which shall be submitted to the
Deposition Officer who will ask the party to come to him and
answer the cross-examination questions.
Section 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. (2, R24)
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*What are the Questions asked? ANY QUESTIONS provided
it is relevant and material, and it is not privileged
information.
Privileged Information confidential matters
EX: confession to the priest, lawyer-client relationship,
doctor-patient relationship, husband and wife conversations
*When can we use Deposition? Even before the trial starts.
*When you take deposition of any person, you are not
compelled to use the person as a witness. If favorable, then
you use him. If not, I can always refuse to use him in the case.
You are just fishing for evidence.
Note: You can take the Deposition of the other party but
you are not compelled to use the deposition during trial.
Section 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
Based on the discussion by Dean Alex Monteclar
(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.
PURPOSES OF DEPOSITION TAKING:
1. Impeach the testimony of witness.
If you will be presented in court as a witness and asked to
testify, remember that I have taken your deposition and
you have testimony on the matter given before you sit in
the witness stand. Your deposition can be used to
impeach your testimony in the stand.
2. Memorialize/Preserve the witness' testimony.
Can be used if the witness is no longer available to testify
in open court. This is the most common reason why a
deposition can be taken on a person. If the witness has
stage 4 cancer, you get the witness testimony through
deposition.
3. The witness did not appear despite issuance of
subpoena.
RULES ON DEPOSITION TAKING:
Section 5. Effect of substitution of parties. Substitution of
parties does not affect the right to use depositions previously
taken; and, when an action has been dismissed and another
action involving the same subject is afterward brought
between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if
originally taken therefor.
Section 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.
Section 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.
1. Remember that a deposition cannot be used as a
substitute to the personal appearance and testimony of
the deponent. If I take your deposition, I preserve your
testimony; I cannot use this in court if you are available
to testify in court.
2. If the party dies, and there is substitution of parties, the
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deposition taken before the substitution can still be used.
(sec. 5)
3. The deposition officer cannot rule on any objection
during the deposition taking. It has to be noted for the
Judge to rule on the objections. (sec. 6)
WHO CAN BE A DEPOSTION OFFICER:
Section 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.
Section 11. Persons before whom depositions may be taken in
foreign countries. In a foreign state or country, depositions
may be taken (a) on notice before a secretary of embassy or
legation, consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines, (b) before such
person or officer as may be appointed by commission or
under letters rogatory; or (c) the person referred to in section
14 hereof.
Section 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
If you are the proponent or the one who requested that a
deposition will be taken, you are the one who will decide
who the deposition officer and how much the fee will be.
The judge here does not refer to the judge handling the
case. He is the judge in the place where the deponent
resides.
There are government officials that can administer oath,
like clerks of court, even fiscals can administer oath. Since
they have the power to administer oath, they can also be
a deposition officer.
If the deposition is taken outside the country, the following
can be a deposition officer:
1. the secretary of embassy or legation
2. consul general
3. vice-consul
4. consular agent of the R.P
5. any person or officer as may be appointed by the letter
commission or letters rogatory
Based on the discussion by Dean Alex Monteclar
6. Persons referred to in Sec. 14., which means any person
who can administer oath in that foreign country and
need not be a lawyer.
However, the deposition officer who conducts the deposition
taking residing abroad must be appointed by our court here
where the case is pending. The appointment may be by letter
commission or letters rogatory.
Section 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.
If the client is rich, then you can take the deposition upon oral
examination and go to U.S.
Section 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.
However, the opposing party may object saying they cant
afford. So, ayaw nalang oral examination, written
interrogatories nalang. It is upon the discretion of the court to
approve deposition upon oral examination and may deny the
motion if the court finds that deposition upon oral
examination is not practical.
Section 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-
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interrogatories upon the party proposing to take the
deposition.
After the proponent has sent a letter requesting a person
to be deposition officer, he will send a notice to the other
parties stating that Mr. Juan dela Cruz deposition will be
taken before the consul of .L.A. taken at this date an hour.
Since this is not taken by oral examination, I will also
attach the written interrogatories and it is the person
who is designated as deposition officer who will read this
to Juan dela Cruz.
The other party will also send its cross-examination
question and the deposition officer will also read it
before Juan de la Cruz.
It is the court who will give the letter commission to
anyone allowed under the rules to act as deposition
officer
A letter commission is basically an appointment by the
court where the case is pending, appointing someone
abroad to act as deposition officer.
When the Court here appoints a deposition officer, the
deposition officer now has authority to issue subpoena
to the person.
Letter Commission appointment from the court where the
case is pending
- its an order of the court appointing someone
residing abroad to act as a deposition officer
So that deposition officer appointed by the court through a
letter commission may now subpoena the witness to come to
his office.
If our court here issues a letter commission appointing a
consul in Los Angeles California to conduct the deposition
taking of Mr. Juan Dela Cruz who is a resident of that place
then the consul has the authority to issue subpoena to that
person. So the consul will send a subpoena to Mr. Juan Dela
Cruz You are hereby invited to come to my office to answer
some of the prepared question from Atty. so and so of the
Philippines. So a deposition taking will be conducted at his
office.
What happens if the witness will not go to the office of the
Phil. Consul? Does the Phil. Consul have the coercive power
to compel that witness to come to his office?
Based on the discussion by Dean Alex Monteclar
- OF COURSE WALA! The consul is not a judge. He was
only requested to act as a deposition officer, he may
have the authority to issue subpoena but if the
witness will not obey his invitation called subpoena
(called subpoena but actually only invitation kay
wala may coercive power), he cannot do anything.
He cannot cite that person in contempt of court. He
cannot send that deponent to jail.
So what will be your REMEDY?
- Your remedy now is to avail of the second mode
LETTERS ROGATORY. You now request the court in
the Phils. who is handling the case to issue letters
rogatory.
- LETTERS ROGATORY it is a letter from our court
here addressed to the court in Los Angeles
California, to his counterpart, a judge of a court in
LA, to be the one to conduct the deposition taking of
Mr. Juan Dela Cruz there.
- And we have that principle of reciprocity diba? We
extend our, shall we say, judicial facilities to other
countries. So our court can request a judge in the US
to act as a deposition officer in the same way that a
judge from US may request a phil. Judge to act as a
deposition officer.
- So our court now will request a judge from LA to
conduct the deposition taking. So this is now a court
to court request.
Letters Rogatory can only be resorted to if Letter Commission
failed. This is the LAST RECOURSE. If the letter commission
fails, then you can now resort to letters rogatory. This time, it
is now the judge from LA who will invite Mr. Juan Dela Cruz to
come to his court to answer questions and Mr. Juan will not
obey the subpoena issued by the judge in LA, then the judge
in LA has the right to arrest him. Kung ang korte na gali sa
America ang mu invite nimu and dili ka mutuo, thats a
disrespect to the judge in their court and that judge has
punitive power. Mao na ang letters rogatory is very effective
kay ma compel man ang witness to go to the judge in LA and
to answer the questions prepared by way of written
interrogatories.
o A deposition officer is disqualified if he is related to the
parties or the lawyers up to the sixth civil degree.
DEPOSTION UPON ORAL EXAMINATION
o First there must first be notice to take deposition
which shall be prepared by the proponent. When the
deposition is to be taken upon oral examination or
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upon written interrogatories the proponent or the
party requesting for the deposition should arrange
with the deposition officer. After he gets the
commitment of the deposition officer that he is willing
to act as a deposition officer for a certain
consideration, then that is the time that he will send
out notice to the other party and copy furnished to the
court where the case is pending.
o The notice must contain the date, time, place and the
person who will conduct the deposition taking. The
deposition taking whether it is by oral examination or
oral interrogatories is always under the control and
supervision of the court where the case is pending. If
the other party feels that the request for the
deposition taking is intended to harass, to annoy or to
vex him, then he may go to court where the case is
pending and ask that the deposition should not push
through because the deposition is merely intended to
harass or embarrass the deponent. It does not have
any relevance in the case pending before the court.
o If the court sees that truly the request for deposition is
intended to harass or embarrass or annoy the
deponent then the court may issue an order for the
protection of the parties and the deponent. The
protection order may include the limitation of the
scope of the examination, the kind of deposition to be
conducted. It is the court where the case is pending
who has the power to control the conduct of
deposition taking in order to protect the interest and
the right of the parties and the deponent.
How deposition upon oral examination is conducted?
o Questions are asked directly on the witness in front of
the deposition officer and it will be recorded by a
stenographer. After the questions on direct
examination are asked, the lawyer of the other party
may ask cross examination question. When there are
objections, the deposition officer cannot rule on that.
He will just note it down that there is an objection.
When is the objection going to be ruled? Since the
deposition officer does have the power to rule on
objection over the question asked, the ruling of the
objection will be made by the judge where the case is
pending and that will be done that when the
deposition is already offered to the court as part of the
records of the case.
Ex. A deposition was taken on a witness residing
on Davao. All the questions including cross are
recorded by the deposition officer. The deposition
officer will then allow the witness/deponent to
Based on the discussion by Dean Alex Monteclar
read the transcript and the deposition officer will
ask, Do you want to correct it? Is this accurate?
If the deponent says everything is in order, the
deposition officer will now certify the TSN. The
transcript will then be placed in a brown envelope
and will then be sealed. The deposition officer will
send it to the court where the case is pending by
personal service or by registered mail addressed
to the clerk of court.
o When the trial of the case resumes, the proponent or
party who requested the deposition taking will now
offer the deposition as evidence.
Q: What if a privileged question is asked and there is no
objection on the other party. Can the deposition officer say
that he cannot accept the question because it is privileged
communication even if there is no objection?
Atty: That can be waived. If the other party does not object
and the deponent voluntarily answers then it is deemed
waived. But if there is an objection then he may not answer.
The deposition officer will note it then the matter will be
brought to the judge handling the case when the deposition
is offered as evidence. The judge will then rule whether or
not the question asked is privilege.
o When the requesting party who set notice to take
deposition but he did not appear and because of the
notice the other party appeared, then he should
refund the other party for all expenses made in going
to the place of deposition. The refund includes the
attorneys fee and appearance fee of the lawyer.
Deposition upon written interrogatories
Conducted by an appointed Deposition Officer.
Only the Deposition Officer and the Deponent will be
present. The lawyers and the parties need not
anymore appear because the questions to be asked to
the Deponent will already be done in writing. The
Deposition Officer will simply read the questions to the
Deponent and record the answer of the Deponent.
Written interrogatories shall be served upon every
party with notice,
The notice shall state the name and address of the
person to answer it,
The name, title and address of the position officer,
The other party has 10 days may serve cross-
interrogatories to the Deponent.
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Deposition officer shall give notice of its filing in court
(Sec. 27)
Rule 24
Deposition Before Action or Pending Appeal (Deposition
Perpetua In Memoriam)
Deposition taken on a witness or potential witness even if
there is no case yet filed, but a case is anticipated to be filed.
Before Action done before the case
EX: You anticipate that a person is going to file a case against
you as he already threatens to sue you. You have a
prospective witness which can help you but that prospective
witness is about to go abroad.
Pending Appeal you have lost the case in lower court and
you appealed
good only when there are evidences newly discovered
which is not taken into account by the lower court
EX: Pending appeal you discovered evidence that could strip
up your case in your favor. But the evidence involves
testimony of a witness himatyon na sd.
If the CA grant your appeal and it will return back the
case to the lawyer court at least you have already preserved
your evidence.
Petition to take deposition before action:
Must be done with leave of court
File the petition to take deposition before action
which shall be treated as an independent action.
Filed in the court of the place where the expected
adverse party resides. If the witness resides in
Bohol, you file the Petition to take deposition before
action to the RTC of Bohol and state the reason the
deposition is to be taken.
The petition is subject to the approval of the court to
allow the deposition of the deponent.
Contents of the Petition:
1. 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 caused it to be bought
2. The subject matter of the expected action and his
interest therein;
Based on the discussion by Dean Alex Monteclar
3. The facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it
(ex. The deponent is going abroad, or is about to die
etc. and cannot testify once the case anticipated is
filed);
4. The names or a description of the persons he expects
will be adverse parties and their addresses so far as
known; and
5. 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. 2)
- 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.
- The court will decide whether the position shall be by oral
examination or by written interrogatories.
Deposition pending appeal:
--where there is already a case filed, a decision has been
rendered, and an appeal has already been filed by the losing
party. It is because there are instances where the appellate
court accepts/allows presenting of witness/es.
When taken:
During the pendency of an appeal
Even before appeal is filed, but, the period to appeal
has not yet expired.
Rule 25
Interrogatories to Parties
Necessity of Leave of Court- same conditions as that stated in
Section 1 in Rule 23, as follows:
With Leave of Court - when the court has acquired
jurisdiction of the defendant but the defendant has not
filed his answer
o When? It is the moment the defendant receives
the summons, the court acquires jurisdiction. He
has 15 days to file an answer. Within that 15-
day period or before he has file an answer, the
plaintiff may take the deposition of any person -
prospective witness.
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Without Leave of Court when there is already an
answer filed by the defendant.
o If the defendant already files an answer, the
deposition becomes a matter of right.
Difference of Interrogatories to Parties and Written
Interrogatories in Rule 23
Interrogatories to Parties is addressed only to the party. In
Rule 23, it is address to the prospective witness (Deponent).
Written Interrogatories- questions material to the case asked
by one party to the other party before trial. The
answers/statements may be used in trial against the party
being subject to deposition.
Answer to Interrogatories:
Within fifteen (15) days after service thereof, unless
the courts, on motion and for good cause shown, extends or
shortens the period.
Objection to Interrogatories (by party being subjected to
deposition)
Within ten (10) days after service thereof, with
notice as in case of a motion;
Number of Interrogatories:
Not more than one, without leave of court.
Scope of Interrogatories:
Anything so long as not privileged and is relevant to
the case.
Effect of failure to serve written interrogatories:
A party not served with written interrogatories may
not be compelled by the adverse party to give the testimony
in open court, or to give a disposition pending appeal (Sec. 6)
- Intended by the rules to compel the lawyer to use the
mode of discovery
- You cannot utilize the other party as witness if you do not
use written interrogatories.
RULE 26
Admission by Adverse Party
Based on the discussion by Dean Alex Monteclar
Here, you are asking your opponent in the case to make
admissions which we call request for admission.
Section 1. Request for admission. At any time after issues
have been joined, a party may file and serve upon any other
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. (1a)
o Leave of court is not necessary. This is because there is
already an answer filed.
o Here, you ask the other party, Will you admit the
genuineness of this document? This is one way of
shortening the proceedings because if the other party
will admit the genuineness of the document, there is
no need any more to prove the genuineness thereof.
This is in fact encouraged by our present Rules.
o During the pre-trial, the pre-trial order shall contain a
notice that parties are hereby enjoined to avail of any
of the modes of discovery. You also have to state in
your pre-trial brief whether you have availed of the
different modes of discovery. The policy of our
Supreme Court now is to encourage the lawyers to
avail of such devices in order to expedite the
proceedings. The parties would be able to know where
they stand even before the start of trial because they
would be able to elicit information from the other
party and compel the latter to divulge his evidences. It
would also work to the advantage of the proponent. In
deposition taking for example, the witnesses would be
bound to their deposition that during trial, they cannot
testify contrary thereto. You can impeach their
credibility through deposition. By utilizing the different
modes of discovery, you would be able to know the
move of the other party.
In request for admission under Rule 26, when the adverse
party did not answer your request, what is the effect?
o The effect is that it is an implied admission. If the party
requested fails to answer within 15 days from service
of the request, the matters set forth therein are
deemed admitted.
Section 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
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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. (2a)
o However, where the matter is already effectively
denied in the pleading as in the case of an actionable
document attached to the complaint which is
specifically denied in the answer, there is no need any
more to ask it again under Rule 26. If requested and
not denied, there is no admission.
o You can use such request to your advantage. For
example, you sent a request for admission to the other
party but the latter did not answer. Later on, during
the trial of the case, if the adverse party will prove that
the document is not genuine, then you can object. You
can bring to the attention of the court that the other
party did not answer your request for admission thus
he could no longer assail the genuineness of the
actionable document.
Can you withdraw your admission? Yes
Section 4. Withdrawal. The court may allow the party
making an admission under the Rule, whether express or
implied, to withdraw or amend it upon such terms as may be
just. (4)
What is the effect of failure to file a request for admission?
Section 5. Effect of failure to file and serve request for
admission. Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice a party who
fails to file and serve a request for admission on the adverse
party of material and relevant facts at issue which are, or
ought to be, within the personal knowledge of the latter,
shall not be permitted to present evidence on such facts. (n)
GR: A party who fails to file and serve a request for admission
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.
EXC: Unless otherwise allowed by the court for good cause
shown and to prevent a failure of justice.
Based on the discussion by Dean Alex Monteclar
A request for admission must be addressed to whom?
o It must be addressed to the party and not to his
lawyer. If the request is sent to the lawyer of the
adverse party and the latter did not answer, the failure
to answer will not matter as the request is not valid.
However, if the request for admission was sent to the
adverse party and the latter requested his lawyer to
answer it, the answer is valid. Under the Rules, a client
can always act through his lawyer and he is bound by
the actuations of the latter (PSCFC Financing
Corporation vs. Court of Appeals).
RULE 27
Production or 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. (1a)
o One of your rights as a party to the action is to ask for
the examination of the documents in the possession of
the other party especially actionable documents.
Usually, only photocopies of documents are attached
to the pleadings. Under Rule 27, you can ask for the
production of documents in court in order to enable
you to examine the original of the document. You file a
motion in court requesting that the other party will
produce the thing or document which is the subject
matter of litigation.
Requisites:
1. File a motion for leave of court;
2. The motion must show good cause therefor;
3. A notice of motion must be furnished to all parties;
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4. The motion must sufficiently describe the documents
or things to be produced or examined;
5. Such documents or things must
contain evidence material to the action;
not be privileged; and
in the possession of the adverse party or at least in
his control.
o You can also ask for ocular inspection of property in
the possession or control of the adverse party
especially where the subject matter of the action is
real property. For example, the object of litigation is a
building and you want to inspect the condition thereof.
Then you can ask for an ocular inspection under Rule
27.
Requisites:
1. File a motion for leave of court;
2. The motion must show good cause therefor;
3. A notice of motion must be furnished to all parties;
4. The motion must ask for permission to enter upon
designated land or other property in the possession or
control of the adverse party;
5. For the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant
object or operation thereon.
RULE 28
Physical and Mental Examination of Persons
o This mode of discovery can be availed of when the
physical or mental condition of a person is the subject
matter of the case or is at least relevant to the
controversy.
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. (1)
Section 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,
Based on the discussion by Dean Alex Monteclar
conditions and scope of the examination and the person or
persons by whom it is to be made. (2)
o When a person is examined by a physician because his
physical or mental condition, for example, is involved
in the controversy, that person who has been
examined, may request for the result of the
examination of the physician. If requested, then the
party causing the examination shall deliver to him a
detailed report of the examining physician setting out
his findings and conclusions.
Section 3. Report of findings. If requested by the party
examined, the party causing the examination to be made
shall deliver to him a copy of a detailed written report of the
examining physician setting out his findings and conclusions.
After such request and delivery, the party causing the
examination to be made shall be entitled upon request to
receive from the party examined a like report of any
examination, previously or thereafter made, of the same
mental or physical condition. If the party examined refuses
to deliver such report, the court on motion and notice may
make an order requiring delivery on such terms as are just,
and if a physician fails or refuses to make such a report the
court may exclude his testimony if offered at the trial. (3a)
Section 4. Waiver of privilege. By requesting and obtaining
a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any
privilege he may have in that action or any other involving
the same controversy, regarding the testimony of every
other person who has examined or may thereafter examine
him in respect of the same mental or physical examination.
(4)
o If for example, the plaintiff requested the court that
the defendant be made to undergo physical or mental
examination and such examination is conducted; then
the defendant asks for a copy of the report of the
examining physician. If he asks for the copy of such
report then the plaintiff is duty bound to furnish a copy
thereof. But once he is given a copy upon his request,
he cannot also deny the plaintiff if the latter asks for a
copy of the report on any previous or subsequent
examination that has been or may be conducted on
him by another physician. He cannot any more invoke
the physician-patient privilege communication rule.
RULE 29
Refusal to Comply with Modes of Discovery
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Rule 29 is all about the effects of refusal to avail of the modes
of discovery. It would seem that under the new Rules,
availment of the modes of discovery is now mandatory
because there are consequences or effects for failure to avail
such discovery devices.
Caveat: Atty. Monteclar just went over the provisions of Rule
29. For a summary of the consequences of refusal to comply
with the modes of discovery, see notes below.
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. (1a)
Section 2. Contempt of court. If a party or other witness
refuses to be sworn or refuses to answer any question after
being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a
contempt of that court. (2a)
Section 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:
Based on the discussion by Dean Alex Monteclar
(a) An order that the matters regarding which the questions
were asked, or the character or description of the thing or
land, or the contents of the paper, or the physical or mental
condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses or
prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from
introducing evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient
party; and
(d) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or agent of
a party for disobeying any of such orders except an order to
submit to a physical or mental examination. (3a)
Section 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. (4a)
Section 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. (5)
Section 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. (6)
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Summary of Rule 29 (per Notes of Justice Ingles):
A. Refusal to answer any question upon oral examination
under Rule 23 and refusal to answer interrogatories
under Rule 23 and Rule 25:
1. The court may, upon proper application, compel a
refusing deponent to answer (Sec. 1);
a. If granted and refusal is without substantial
justification, the court may require the refusing
party to pay the proponent the amount of the
reasonable expenses incurred obtaining the order,
including attorneys fees;
b. If denied and filed without substantial justification,
the court may require the proponent to pay the
refusing party the amount of the reasonable
expenses incurred in obtaining the order, including
attorneys fees.
2. Refusal to answer after being directed to do so may be
considered as contempt of court (Sec.2)
B. Refusal to be sworn cite the deponent in contempt of
court;
C. Refusal to answer *designated questions (Sec.1, Rule
29) or refusal to produce documents (Rule 27 or to
submit to physical examination (Rule 28) the court
may make the following orders (Sec.3):
1. Prohibit the disobedient party from introducing
evidence of physical or mental condition;
2. Refuse to allow the disobedient party to support or
oppose claims or defenses;
3. Strike out pleadings or parts thereof;
4. Stay further proceedings;
5. Dismiss the action or proceeding or any part thereof;
6. Render a judgment by default against disobedient
party;
7. Direct the arrest of any party or agent of a party
disobeying any of such orders except an order to
submit to a physical or mental examination;
D. Refusal to admit under Rule 26 (Sec. 4) the court, upon
proper application, may issue an order requiring the
other party to pay him reasonable expenses incurred,
including attorneys fees;
E. Failure of party to attend deposition-taking or serve
answers to (the whole set of) *written interrogatories
Based on the discussion by Dean Alex Monteclar
under Rule 25 (Sec.5) the court, on motion and notice,
may:
1. Strike out all or any part of the pleading of the
disobedient party;
2. Dismiss the action or proceeding or any part
thereof;
3. Enter a judgment by default against the
disobedient party;
4. Order payment of reasonable expenses incurred
by the other party.
*If a party refuses to answer the whole written
interrogatories, Sec. 5 of Rule 29 applies. If a party refuses to
answer only designated questions in the interrogatories, Sec.
3, Rule 29 applies.
DECEMBER 9, 2015
Rule 30
Trial
We begin with the procedures in the conduct of a trial in civil
cases. Once the pre-trial is terminated, the next thing to
happen will be the trial proper.
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 days before such date.
It is the duty of the clerk of court to send out notice of trial to
all the parties and their respective counsels. It must reach the
parties at least 5 days before the scheduled trial, but in actual
practice, parties have already been notified long before that
because during the pre-trial conference, the parties will
already agree on the dates of trial. Usually the pre-trial
conference will occur at least 1 month before the initial trial.
The initial trial means the first trial where the plaintiff will
present or start presenting his evidence. So the start of the
trial will be at least about a month from the termination of
the pre-trial conference, because after the conference the
court will still issue a pre-trial order. A pre-trial order is very
important because it governs the conduct of the entire trial.
In fact, it defines the issues to be resolved during the trial.
Is there a difference between trial and hearing of the case?
Trial refers to the presentation of evidence. The hearing of
the case involves hearing of even matters involving motions.
There is obviously a difference between a hearing and a trial.
Joke: A case that I attended as a very young lawyer. I went to
a court in Mindanao and the judge and lawyer were shouting
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at each other. They were both very old. The judge cannot
hear, and the lawyer also cant hear. We have to shout. We
only have trial; we dont have hearing. ;)
Section 2. Adjournments and postponements. A court may
adjourn a trial from day to day, and to any stated time, as the
expeditions 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.
Once the trial commences, the trial may be adjourned from
day to day. It can be postponed from one day to the next day.
You cant really finish in one sitting, the trial of the case.
Sometimes, it can take several settings before the trial can be
terminated.
One good reason to postpone the trial is lack of material
time. For example, your case was already called at 10 in the
morning, and at 12 youre still not done presenting your first
witness. So you have to adjourn. One of the lawyers may
request the court, your honor please, for lack of material
time, I move for the continuance of the case. Continuance
means we stop here and continue later. Usually, the
continuance would take place a month after. The general rule
is that if there is a postponement of the trial of the case, the
postponement should not exceed one month, and it should
not exceed 3 consecutive postponements, or more than 3
months without the permission of the clerk of court, or court
administrator of the Supreme Court. This is actually one
provision in the Rules of Court that is usually violated rather
than observed. I dont know if there is a court here that can
finish a trial in 90 days. We have the ninety day trial rule, but
nobody can follow it. As you may observe later on when you
practice, there are cases that reach many years. There are
even cases that reach 7 years, pre-trial stage ra gihapon. That
only shows how langayan the judge and the lawyers are. We
have a rule and the rule is very nice, that when you start the
trial now, you cannot postpone more to than one month
after. The next setting should be within one month. Usually,
our courts here will reset it to 2 or 3 months after because
they have so many cases. If one sala has one thousand
pending cases, how many cases can you handle in one day?
We only have 20 working days in a month. Divide the 1000 to
20. If the judge really follows the 30 day rule, it would mean
he must call 15 cases in one day. How could he do that? Plus
youre only supposed to have hearings from 8:30 to 12 in the
morning. There is an obstacle there and that is the clogging of
court dockets.
Trial may be postponed to another date if there are valid
reasons for postponement. There are 2 grounds.
Based on the discussion by Dean Alex Monteclar
One is absence of evidence, and the other is illness of a party
or his counsel. These are usually the 2 grounds that you use
for postponement of the trial.
This is different from an ongoing trial conducted and there is
lack or material time. Although, some would use
postponement, the correct term is CONTINUANCE, which
means you have started and you want to stop and continue
next time. Postponement is used when the trial has not yet
started and you would want the scheduled trial to be
deferred to another date.
Section 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.
If the ground for the postponement is absence of evidence
(this means you cannot present your witness on that
scheduled trial because of whatever reason, or you have a
witness but you cannot present the documentary evidence
that he is supposed to identify on that trial), you can ask for
postponement. Now, a party can use the ground of absence
of evidence only when the trial is scheduled for the
presentation of his evidence in chief. For example, its the
turn of the defendant to present evidence. On that scheduled
trial, if the plaintiff cannot attend for whatever reason, like
hes going to the US for a conference, he cannot postpone
trial because his presence is not needed. Hes already
through with the presentation of his evidence. The presence
of the plaintiff is not required, its enough that his lawyer will
appear.
If the ground is absence of evidence, you have to support
your motion for postponement with an affidavit. It must be
verified and notarized, stating the materiality and relevance
of the evidence you are going to present. If you cannot show
materiality or relevancy, the court will not grant the motion
to postpone. There is one instance, where even if the
evidence is material and relevant, and you cannot present on
a scheduled trial, the court will not grant. If the other party
will admit the existence of that document or that evidence
without necessarily waiving his right to object to its
admissibility during the appropriate time when it is offered as
evidence, then the court will not allow the postponement of
the trial.
For example, its the turn of the defendant to present
evidence and the defendant asks before the date arrives, for
postponement on the ground that the witness he wishes to
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present is not available. The court would then ask him what
the witness is going to testify about, and what evidence he is
presenting. If the other party will admit, then there is no
need to postpone the trial. The other party will say okay, I will
admit that the witness will testify on that matter. Or the
plaintiff admits the existence of the documentary exhibit.
There is no more reason to. But, this is without prejudice to
the right of the other party to object to its admissibility
during the time that you offer it as evidence. After you
present all your documentary exhibits, you will now make a
formal offer of your exhibits or evidences that you mark. The
other party has a right to object to its admissibility. There is
no inconsistency with the admission of its existence or the
genuineness of the document with its admissibility under the
rules of evidence. So, postponement is not allowed. Court will
say, okay no need to present that witness. What he is going
to testify in court is already admitted by the other party.
Present your next witness on the scheduled hearing. I will not
allow the cancellation of the schedule because of that
ground.
you simply call the court, that my witness that Im supposed
to present in this mornings hearing is not available and has
been taken to the hospital. Now, you cannot right away
produce a medical certificate. Usually, the court will grant the
postponement subject to the presentation of the medical
certificate.
Instances when Medical Certificate maybe dispensed with.
You cannot right away produce a medical certificate. Thats
okay. The court here will grant the postponement subject to
the presentation of the medical certificate. This is allowable
in cases of urgent situations like an accident while the lawyer
is on his way to the court. Formal motion with medical
certificate is not necessary.
This medical certificate applies to illness of a party or his
counsel. Illness of a carabao (as the only means of
transportation) does not apply.

Section 4. Requisites of motion to postpone trial for illness of ORDER OF TRIAL

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 1. Plaintiff to present evidence;
upon affidavit or sworn certification that the presence of such a. Here present all evidence by formal offer of
party or counsel at the trial is indispensable and that the exhibit; normally the court wants it in writing and
character of his illness is such as to render his non- the purpose must be stated.
attendance excusable.
b. Then defendant will comment on the formal offer
Another ground is illness of a party or counsel. When a party of exhibit.
who is supposed to testify in court is sick, then there is a valid
reason for his lawyer to ask for the postponement of the trial. c. And the court will rule on the formal offer of
But if the party has already testified and what the lawyer is exhibit
going to present next hearing is another witness, then that is
d. *only after the court will rule on the formal offer
not a ground for the postponement. For example, the
of exhibit that the defendants can adduce
defendant was first to testify. After him, during the second
evidence
hearing, another witness is to be presented but the
defendant got sick. That is not a ground for postponement, 2. Defendant shall then adduce evidence;
because the presence of the defendant in every stage of the
proceedings is not required. a. THE SAME STEPS TO NO. 1

It could also be that the lawyer is sick. If this is the ground 3. The third party defendant, if any, shall adduce
you use for the postponement of the trial of the case, it must evidence;
also be supported by an affidavit. A sworn statement verified
a. He will present his evidence in chief, then his
and notarized by lawyer stating: (a) the indispensability of the
counter claim.
testimony of the party and also, you have to (b) state the
nature of the illness; that it really prevents him from b. Then the plaintiff will present an answer to the
testifying. In this case, the law requires that your motion for counter claim.
postponement must be accompanied by a (c) medical
certificate. Thats the general rule. But of course, not all 4. The fourth party defendant, and so forth, if any
motions for postponement on the ground of illness must be
5. The parties against whom any counterclaim or cross-
accompanied by a med certificate. If it is urgent; for example
claim has been pleaded, shall adduce evidence in
the trial is today. That very morning, the witness gets sick and
cant rise. Or perhaps the lawyer cannot rise. Its allowed that

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support of their defense, in the order to be prescribed
by the court
6. The parties may then adduce rebutting evidence;
a. Rebuttal Evidence that evidence that the
plaintiff is allowed to present in order to rebut the
evidences presented by the defendant.
i. here, the plaintiff is not allowed to present
evidence that is already part of the evidence
in chief
ii. EXCEPT: if there are newly discovered
evidence / or forgotten evidences that is
essential and not presented in the evidence in
chief.
iii. The defendant is also allowed to present a
rebuttal The Sur-Rebuttal
iv. Kutob ra sa Sur-Rebuttal after ana wla na
decision na.
7. Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda.
Review:
1. Plaintiff
2. Defendant
3. Plaintiff Rebuttal evidence
4. Defendant Sur-rebuttal Evidence.
The case shall be deemed submitted for decision unless the
court will ask the parties to argue or to submit their
respective memoranda.
Contents of the memoranda or memorandum:
Statement of the case
Statement of the Facts
What are the issues:
Discussion and arguments of each issues involved
You will state decisions of the Supreme Court that will
support your argument why you should win the case. This is
Based on the discussion by Dean Alex Monteclar
the best part where you should place jurisprudence. Not on
the complaint and the pleadings.
Memorandum is not mandatory or compulsory. But it is
always better to submit a memorandum. It is one way of
helping the judge decide because some judges will only copy
the memorandum of the parties for the decision.
REVERSE TRIAL
In the order of trial, it is always the plaintiff who will present
the evidence first. Same with criminal cases, it is the
prosecution that will go first. However, in criminal cases,
there is what we call Reverse Trial like for example Self-
Defense is invoked in a murder or homicide case. Here the
prosecution need not present evidence. It is the defense that
will present evidence for self-defense.
This is also true in civil cases. In the case of Yu vs Magpayo,
the claim of the plaintiff was not controverted by the
respondent and in fact was admitted. The defendant sets up
an affirmative defense like payment, then the court may ask
the defendant to present evidence first.
Example: a simple collection case
The plaintiff claims that the defendant borrowed money from
him in the amount of P100. The defendant admits that he
borrowed money but I have already paid the amount. Then
the defendant will present evidence first to prove that he has
paid. This is what we call Reverse Trial.
Stipulations of facts (one of the purpose of pre-trial)
In order to shorten the proceeding, the court may ask the
parties, what are the facts that both of you will agree. Facts
that are uncontroverted and what are those controverted.
The hearing will only be for the controverted facts. As regards
to the uncontroverted facts, there is no need any more for a
hearing.
The purpose of the hearing is only to settle the controverted
facts, and find out the true facts of the case. If question of
law is whats left, then there is no need for a trial anymore.
The statements of the judge during the trial of the case must
always be recorded. What is practiced by judges before is not
anymore allowed. (Off-the-record, the judge will make
prejudicial statements showing that he is biased to one party
of the case.) Now, all statements must be recorded under the
new rules. Making off-the-record statements are not
anymore allowed.
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The purpose of recording all the statements made by
the judge is that during appeal, the appellant can point out
that the judges biases to the case even during the start of
the trial.
SUSPENSION OF ACTION?
Sec. 8. Suspension of actions.
The suspension of actions shall be governed by the provisions
of the Civil Code.
It is allowed by the CIVIL CODE
Art. 2030. Every civil action or proceeding shall be suspended:
(1) If willingness to discuss a possible compromise is
expressed by one or both parties; or
(2) If it appears that one of the parties, before the
commencement of the action or proceeding, offered to
discuss a possible compromise but the other party refused
the offer.
The duration and terms of the suspension of the civil action
or proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall
promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.
Sir: The policy is to encourage settlements.
WHO SHALL RECEIVE THE EVIDENCE? RULE 30 SEC 9
GR: Judge shall personally receive
EXC: Clerk of Court who is a member of the BAR only in case
of default of defendant or ex parte hearings but no power to
rule on objections, admissibility, or admission of exhibits, in
this case, the court shall resolve it. MTC Clerk of Court cannot
receive evidence because he is not a lawyer.
RULE 31
CONSOLIDATION OR SEVERANCE
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.
SIR: it must before the same court not branch
Based on the discussion by Dean Alex Monteclar
Example: You are a passenger in a ROUGH RIDER bus coming
from Bogo to Cebu. True to its name, the driver was rough.
The bus met an accident. You were injured along with the
other passengers. If you file a case for damages and you
reside in Cebu City, you file it with the court in Cebu City. And
other passengers also reside in Cebu City, all these cases can
be consolidated and assigned in one court. There is a
common question of fact.
WHICH BRANCH shall it be consolidated? The branch which
is holding the lowest docket no.
Severance- opposite of Consolidation 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.
Is CONSOLIDATION of criminal case and civil case allowed?
YES as enunciated in Canos vs Peralta but the burden of proof
differs.
B. Separate Trial:
In furtherance of convenience or to avoid prejudice,
the court my order a separate trial of any claim, cross claim,
courter-claim or third party complaint. only if the court
believes that there is reason to do so.
Rule 32
Trial by Commissioner
This is only when there are issues or matters that are beyond
the expertise of the judge.
Section 1. Reference by consent. By written consent of
both parties, the court may order any or all of the issues in a
case to be referred to a commissioner to be agreed upon by
the parties or to be appointed by the court. As used in these
Rules, the word "commissioner" includes a referee, an
auditor and an examiner. (1a, R33)
Section 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
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question involved therein;
(b) When the taking of an account is necessary for
the information of the court before judgment, or for
carrying a judgment or order into effect.
(c) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order
into effect. (2a, R33)
Section 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 other
specifications and limitations stated in the order, the
commissioner has and shall exercise the power to regulate
the proceedings in every hearing before him and to do all acts
and take all measures necessary or proper for the efficient
performance of his duties under the order. He may issue
subpoenas and subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of reference, he may
rule upon the admissibility of evidence. The trial or hearing
before him shall proceed in all respects as it would if held
before the court. (3a, R33)
A. Reference to a Commissioner:
reference by consent of the parties
o plaintiff asked for it, defendant asked for it, or
they both agree
o the parties will be required by the court to submit
names of their preferred commissioners and the
court will be the one to choose who among the
submitted names will be the commissioner.
reference ordered on motion Reference Order
o Court itself order the referral of the case
o even if both the parties did not request for it, the
court will issue an order appointing a the factual issues of the case because it is a matter
commissioner if there is a need to
Order of Reference / Reference Order issued by the court
to refer the case to a commissioner. Once the commissioner
is appointed, he shall assume his functions within 10 days.
EX1: Dispute on boundaries of the land; Partition of Land
Appoint a Commissioner - Geodetic Engineer.
Based on the discussion by Dean Alex Monteclar
EX2: Expropriation determining the fair market value Land
Appraiser
Section 4. Oath of commissioner. Before entering upon his
duties the commissioner shall be sworn to a faithful and
honest performance thereof. (14, R33)
Powers of the Commissioner
1. To regulate the proceedings and hearing before him
2. To do all acts and take all measures necessary or
proper and efficient performance of his duties under
the order
3. To issue subpoenas and subpoenas duces tecum
4. Swear the witnesses
5. Unless otherwise provided in the order of reference,
he may rule upon the admissibility of evidence.
Commissioner is considered as ALTER EGO of the judge.
He has the power to conduct proceedings before him. He
can also rule on the admissibility of evidence. He has
actually the power to issue a subpoena.
o But he does NOT have the power to order an
arrest of the witness.
o It is not the commissioner who can cite the person
in contempt. He can only suggest it to the judge.
If the party did not obey the subpoena, he can ask
the help of the judge to order the arrest.
Section 5. Proceedings before commissioner. Upon receipt
of the order of reference and unless otherwise provided
therein, the commissioner shall forthwith set a time and
place for the first meeting of the parties or their counsel to be
held within ten (10) days after the date of the order of
reference and shall notify the parties or their counsel. (5a,
R33)
The commissioner MUST conduct a hearing. The
requirement for him to conduct a hearing cannot be
dispensed with precisely because this is the essence of
due process. Precisely you are appointed to determine
outside the expertise of the judge. The legal issues are
left to the judge.
ALJEMS CORP vs CA (reiterated in the case of JACA)
The commissioner must conduct a hearing. The
requirement for him to hold a hearing cannot be dispensed
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with as this is the essence of due process. If the commissioner
did not conduct a hearing, it is error for the trial court to issue
an order approving the said commissioners report over the
objection of the aggrieved party.
There will be no basis of his report if he will not conduct
a hearing.
Section 6. Failure of parties to appear before commissioner.
If a party fails to appear at the time and place appointed,
the commissioner may proceed ex parte or, in his discretion,
adjourn the proceedings to a future day, giving notice to the
absent party or his counsel of the adjournment. (6a, R33)
Section 7. Refusal of witness. The refusal of a witness to
obey a subpoena issued by the commissioner or to give
evidence before him, shall be deemed a contempt of the
court which appointed the commissioner. (7a R33)
Section 8. Commissioner shall avoid delays. It is the duty of
the commissioner to proceed with all reasonable diligence.
Either party, on notice to the parties and commissioner, may
apply to the court for an order requiring the commissioner to
expedite the proceedings and to make his report. (8a, R33)
Section 9. Report of commissioner. Upon the completion of
the trial or hearing or proceeding before the commissioner,
he shall file with the court his report in writing upon the
matters submitted to him by the order of reference. When
his powers are not specified or limited, he shall set forth his
findings of fact and conclusions of law in his report. He shall
attach thereto all exhibits, affidavits, depositions, papers and
the transcript, if any, of the testimonial evidence presented
before him. (9a, R33)
Section 10. Notice to parties of the filing of report. Upon
the filing of the report, the parties shall be notified by the
clerk, and they shall be allowed ten (10) days within which to
signify grounds of objections to the findings of the report, if
they so desire. Objections to the report based upon grounds
which were available to the parties during the proceedings
before the commissioner, other than objections to the
findings and conclusions therein, set forth, shall not be
considered by the court unless they were made before the
commissioner. (10, R33)
Section 11. Hearing upon report. Upon the expiration of
the period of ten (10) days referred to in the preceding
section, the report shall be set for hearing, after which the
court shall issue an order adopting, modifying, or rejecting
the report in whole or in part, or recommitting it with
instructions, or requiring the parties to present further
evidence before the commissioner or the court. (11a, R33)
Section 12. Stipulations as to findings. When the parties
Based on the discussion by Dean Alex Monteclar
stipulate that a commissioner's findings of fact shall be final,
only questions of law shall thereafter be considered. (12a,
R33)
Commissioners Report:
Upon completion of hearing, the commissioner must file
his report in court stating his findings of facts and
conclusion of law.
The clerk shall notify the parties of the filing of the report
and they are given ten days to file their comment.
After ten days, the court will set the report for hearing
and thereafter issue an order adopting, modifying or
rejecting it.
The parties may stipulate that the commissioners
finding of fact shall be final. Thus, only questions of law
shall thereafter be considered. (Sec 12)
Section 13. Compensation of commissioner. The court shall
allow the commissioner such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs
against the defeated party, or apportioned, as justice
requires. (13, R33)
At the instance of BOTH parties share the costs (50/50)
If only one party requested or at the instance of the
court charged to the losing party
RULE 33
DEMURRER TO EVIDENCE
Section 1. Demurrer to evidence. After the plaintiff has
completed the presentation of his evidence, the defendant
may move for the 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.
Definition
It is a motion to dismiss filed by the defendant after
the plaintiff finished presenting his evidence on the ground of
insufficiency of evidence.
Different in a motion to dismiss found in Rule 16
Motion to Dismiss in Rule 16 is based on 10 grounds.
It is a preliminary objection. You objected without
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even filing an answer. Instead of filing an answer,
the defendant filed a motion to dismiss. So if your
motion to dismiss is denied, you file your answer.
Demurrer to Evidence in Rule 33 is filed only after
the plaintiff rested his case in court. After he
presented all his evidence that is the time you can
file demurrer to evidence. This means that in
demurrer, plaintiff has already filed his evidence.
Pre-trial is already done. The trial has started. Right
after the plaintiff has rested his case that is the time
that you can file your demurrer.
Only Ground for Demurrer to Evidence: Insufficiency of
evidence
If the defendant believes that the plaintiff did not prove his
cause of action against him, why should he present his
evidence?
Effects and Remedies of the Grant or Denial of Demurrer to
Evidence
If granted, which means the defendant won the case
because the court will dismiss the case.
Remedy of plaintiff: Appeal. The dismissal of the case is
tantamount to adjudication on the merits.
RTC dismissed the case. If the other party appealed and
the CA reversed the decision of the RTC (as when the CA
said that there is actually sufficient evidence), YOU
CANNOT PRESENT EVIDENCE ANYMORE. You lose your
right to present evidence. The CA will decide the case
based on the evidence presented by the plaintiff only.
If denied, then you (defendant) present your
evidence. The order of denial is merely interlocutory
and appeal is not the remedy.
Remedy of defendant: Certiorari (Rule 65) may be availed
if there is grave abuse of discretion on the court.
As distinguished from Demurrer to Evidence in Criminal
Cases (Rule 119)
It is also a motion to dismiss on the ground of
insufficiency of evidence. But in criminal case, the burden of
proof lies in the hands of the prosecution. The quantum of
evidence required is proof of guilt beyond reasonable doubt.
In case of doubt, acquit the accused.
Demurrer in Criminal Cases (Rule 119) file with
leave of court
Based on the discussion by Dean Alex Monteclar
If you filed demurrer to evidence without leave of court, you
lose your right to present evidence. But if you first asked
permission from the court and the court did not allow you
(did not grant your demurrer), you can present evidence.
Demurrer in Civil Cases (Rule 33) no need to file
leave of court
JANUARY 6, 2016
Rule 34 and Rule 35
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENTS
Judgment on the Pleadings remedy available to the plaintiff
if the answer of the defendant fails to tender an issue or it
otherwise admits the material allegation in the partys
pleading or in the complaint
Example:
If I file a case against you, a case of collection of sum of
money, I claimed that you borrowed money from me, P1 M
and you did not pay me until now despite the fact that it is
long overdue. And then in you answer youll say Its true; I
did not pay you because I dont have money, because of
financial reverses. Thats not a valid defense. Does you
answer tender a valid issue? There is no issue here. You
practically admitted that you borrowed money but the only
reason why you cannot pay is because you dont have money
yet and thats not an issue.
Remedy of plaintiff:
Ask for JUDGMENT ON THE PLEADINGS.
- This is one of the purposes of pre-trial. During the
pre-trial, the court will try to see the answer
whether the court can right way decide the case
based on the pleading. The propriety of the
judgment on the pleading.
When plaintiff files a motion for judgment on the pleading,
he is deemed to have admitted all the relevant allegations of
fact in the defendants answer. However there are
statements in the answer which are not deemed admitted.
These exceptions are:
a. plaintiff is not deemed to have admitted irrelevant
allegations in the defendants answer
b. defendant also not deemed to have admitted the
allegations of damages in the complaint
How is motion for judgment on the pleading done?
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1. file a motion in court (at the instance of plaintiff)
2. motu proprio if the court finds the same to be
proper (at the instance of court during pre-trial)
Judgment on the pleadings (and summary judgments) NOT
allowed in some cases like:
1. declaration of nullity of marriage
2. annulment of marriage
3. legal separation
Summary Judgment vs. Judgment on the pleadings
In Judgment on the pleading, the pleading filed fails to tender
an issue or it otherwise admits the material averments in the
complaint.
In Summary Judgment, the pleading filed as in the case of an
answer to the complaint, the answer tenders an issue. There
is an issue raised, but the problem is the issue raised is not
genuine. It was raised as an issue only to delay the
proceeding.
Summary Judgment for the claimant/plaintiff happens
when the answer of the defendant tenders an issue but the
issue is not genuine or real, it is a sham.
Summary judgment for the defendant if the defendant finds
that the complaint filed by the plaintiff also raises an issue
that is not genuine or real.
Motion for summary judgment must be accompanied by an
Affidavit, deposition or admission.
Example:
I filed a collection case against you; your answer is that you
already paid, so theres an issue. Was there already payment?
But I know very well that you only raised that issue of
payment to delay because in reality, you have not yet paid
me. Naghimo2x rakag issue, its not genuine or real. Now if I
am very sure that the issue is not real, I will challenge you by
way of a summary judgment. I will file a motion of summary
judgment and I will attach in my motion an affidavit in
support of the motion stating that you have not really paid
me. Thats the real truth.
To counter a motion for summary judgment which is
supported by an affidavit or a sworn statement, it is
Based on the discussion by Dean Alex Monteclar
incumbent upon the defendant to counter it with an affidavit
or sworn statement.
If you are the defendant nagbutang2x nga nakabayad naka
para madugay ang kaso kay duna kay gipaabot nga kwarta
later on unya makig settle nalang dayun ka. The plaintiff will
now challenge you that you have not yet paid. I will support
my motion for summary judgment with an affidavit or sworn
statement or deposition; you have to answer that also with
an affidavit or sworn statement. If you will not, then that
means youre the one telling a lie. Now you will be afraid also
to counter my affidavit or sworn statement if it is not really
true that you have paid because you might land in jail for
perjury.
Summary Judgment proper only when there is clearly no
genuine issue. There is an issue raised but the issue is not
genuine or real, it is a sham.
HOW DONE:
File a motion for summary judgment with affidavits, sworn
statements or deposition or admission and the motion must
be filed at least 10 days before the time specified in the
hearing.
Before, we discussed that when you file your motion, the
motion must be received by the other party at least 3 days.
This is what we call as three-day notice rule.
But in the case of a motion for summary judgment, the rules
provide it must be at least 10 days. This is an exception to
the three day notice rule.
Can you file a partial motion for summary judgment?
Yes you can file a partial motion for summary judgment.
Rule 36
JUDGMENTS, FINAL ORDERS AND ENTRY
Judgment decision rendered by the court on the merits of
the case. After the hearing, the court will now decide.
Decision is rendered by the court after the evidences filed by
both parties are already presented and offered to the court.
After all evidences are offered to the court, the court may
require all parties to submit a memorandum or a position
paper and after that, the court will render judgment. With or
without the memorandum, the court will decide within 30
days.
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Decision vs Judgment
Decision refers to the entire document where the court
discusses the facts and the law and the conclusions made by
the court.
Judgment refers to the dispositive portion or the fallo of the
decision. You find it in the last part kanang nay WHEREFORE
premises considered, the court finds for the plaintiff and
hereby renders judgment as follows.
Final judgment connotes two things
1. final in the sense that it is already the decision of the
court on the merits of the case
2. final because the other party can no longer appeal
When a court renders a decision on the merits and the court
already discussed all the issues in that case and made its own
findings of facts and law and resolved the controversy or
dispute between the parties, that judgment is called final. But
actually, its not yet final for purposes of enforcement or
execution because the losing party may still appeal that
judgment which is called final judgment.
If no appeal is filed within the period of 15 days, that
judgment now becomes final and executory. And that is now
the subject of execution.
A final judgment on the merits of the case must be:
1. In writing
2. Personally and directly prepared by the judge
3. Stating clearly and distinctly the facts and the law which it
is based
4. It must be signed by the judge
5. Filed with the clerk of court
RENDITION OF JUDGMENT
When is there rendition of judgment?
In appellate court it is called promulgation of judgment.
Promulgation in criminal cases means that the decision of the
court will have to be read in open court. The accused will be
asked to stand up and the bailiff or court interpreter will read
the ENTIRE decision to the accused. If taas kaayo, okay ra ang
Based on the discussion by Dean Alex Monteclar
important portion lang, the findings of facts and law, but
katung narration of facts, pwede nato iskip pag basa.
In civil cases, the rendition of judgment simply consists of the
signing of the decision by the judge and handling it over to
the clerk of court for filing.
In appellate court, in the CA and SC, you will see in their
decision on the upper right hand corner, gibutang gyud na
dra date of promulgation. The rendition of judgment here
refers to the signing of the decision by the three justices and
delivering it, the moment they deliver it to the Clerk of court
for filing that is the date of promulgation of judgment.
*15 day period to appeal does not start from the
promulgation of judgment but it starts from the time you
received the judgment.
In civil cases, the judgment of the court will be sent to the
parties through their respective lawyers. Either delivered
personally by the court sheriff or mailed by registered mail to
the parties or their lawyers.
Court must explain the basis of its decision, how it arrived in
that decision. It must discuss the evidences presented by the
plaintiff, by the defendant and the courts findings of facts
(kay usually dili magkajive ang plaintiff and defendants
version of the story)
Based on the evidences presented by the parties, the court
will have its own findings of facts. Afterwards, the court will
now discuss the law involved and its own conclusion. It must
be supported by laws or jurisprudence.
But there is one court that is exempted from that
requirement THE SUPREME COURT.
On the SC who can decide in one sentence and we call that
minute resolution.
When you file a petition on certiorari under rule 45 from the
decision of the court of appeals to the SC, the SC can dismiss
your petition in just one sentence. Ex. For lack of merit,
petition denied.
So many lawyers complained, oh ingon ang decision
kailangan i-discuss gyud? Nganu man ang SC dili man?
Because the SC is the Supreme Court. Haha
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o When SC dismisses a petition for certiorari in just one
sentence (minute resolution), it means that it finds no
reversible error committed by the CA and it concurs with
the decision. So there is no need to discuss thoroughly
the case.
RULE 36
Judgments, Final Orders and Entry Thereof
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. (1a)
Section 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, within a certificate that
such judgment or final order has become final and executory.
(2a, 10, R51)
o Entry of judgment or final order takes place when the
decision becomes final and executory when the 15 day
period to appeal for the losing party has expired and no
appeal was filed. The decision will now be entered into
the book of entries of judgment by the clerk of court.
Only the dispositive portion will be copied.
o Under the old rules, the entry of judgment refers to the
very day the clerk of court enters the judgment in the
book of entries of judgment. But under the new rules,
the date the judgment becomes final is also considered
to be date of the entry of judgment. Because there were
instances in the past where the date the judgment
becomes final is not the date of the entry of judgment.
That is unfair to one party because there are certain
remedies provided by the rules that are based in the
entry of judgment and not on the finality of judgment.
Ex. Petition for relief from judgment within 60 days
from the knowledge of the decision but not more
than six (6) months from entry of judgment
o In order to correct this defect, the rule now considers the
date of finality of judgment as the date of the entry of
judgment even if the mechanical act of writing down the
final judgment in the book of entries of judgment by the
clerk of court happened many days after.
Based on the discussion by Dean Alex Monteclar
TYPES OF JUDGMENT
Section 3. Judgment for or against one or more of several
parties (Partial Judgment). 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.
Section 4. Several judgments. In an action against several
defendants, the court may, when a several judgment is
proper, render judgment against one or more of them,
leaving the action to proceed against the others.
Section 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.
Section 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.
o Judgment Nunc Pro Tunc a judgment rendered by the
court many years ago but it was not recorded. Its
function is to record some act of the court done at a
former time which was then carried into the record. Its
not actually a new judgment but an old judgment but
only recorded now.
o Judgment Upon Compromise immediately executory
and cannot be appealed because it is a judgment borne
out by the compromise agreement of the parties.
However if one party claims that he was misled in signing
the compromise agreement, the party may complain but
you cannot appeal the judgment upon compromise. Your
remedy is to file a motion to set aside the judgment upon
compromise agreement and to ask the court to nullify
the compromise agreement because of the fraud or
deceit committed by the adverse party.
o Judgment Upon Confession
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o Clarificatory Judgment
RULE 37
New Trial or Reconsiderations
o Once a judgment is rendered by a court, the losing
partys remedy is to appeal the judgment within 15 days
counted from the time you received the decision of the
judgment to the higher court. Within the 15 period to
appeal, the ROC also provides for other remedies
available found on rule 37.
Section 1. Grounds of and period for filing motion for new
trial or reconsideration. Within the period for taking an
appeal, the aggrieved party may move the trial court to set
aside the judgment or final order and grant a new trial for
one or more of the following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence
which ordinary prudence could not have guarded
against and by reason of which such aggrieved party
has probably been impaired in his rights; or
o This means that you were not able to participate in the
case and because of that you lose the case, a judgment is
rendered against you because of FAME.
These is a continuation of RULE 9 on default in which the
grounds to set aside/lift the order of default is also
FAME. This motion is available only before judgment.
Once there is already a judgment by default, the remedy
now is either appeal or file a motion for new trial.
o The fraud here must be an extrinsic fraud or such kind of
fraud that prevents a party from presenting his case on
court. Intrinsic fraud refers to fraud committed during
the trial. (ex. documents are not genuine or fake
witnesses)
o A motion for new trial based on FAME must be
accompanied by an affidavit of merit otherwise it will be
considered as a pro forma motion, a mere scrap of paper
which will not toll the running of the period to appeal.
(b) Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented would
probably alter the result.
Within the same period, the aggrieved party may also move
for reconsideration upon the grounds that the damages
awarded are excessive, that the evidence is insufficient to
justify the decision or final order, or that the decision or final
order is contrary to law. (1a)
Based on the discussion by Dean Alex Monteclar
Section 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 motion. 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 a specifically the
findings or conclusions of the judgment or final order which
are not supported by the evidence or which are contrary to
law making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to
be contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not
toll the reglementary period of appeal. (2a)
Section 3. Action upon motion for new trial or
reconsideration. The trial court may set aside the judgment
or final order and grant a new trial, upon such terms as may
be just, or may deny the motion. If the court finds that
excessive damages have been awarded or that the judgment
or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly. (3a)
Section 4. Resolution of motion. A motion for new trial or
reconsideration shall be resolved within thirty (30) days from
the time it is submitted for resolution. (n)
Section 5. Second motion for new trial. A motion for new
trial shall include all grounds then available and those not so
included shall be deemed waived. A second motion for new
trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein
provided excluding the time during which the first motion
had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order (4a, 4, IRG)
Section 6. Effect of granting of motion for new trial. If a
new trial is granted in accordance with the provisions of this
Rules 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, insofar as the same is
material and competent to establish the issues, shall be used
at the new trial without retaking the same. (5a)
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Section 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 an of the
matter in controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or grant
reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
(6a)
Section 8. Effect of order for partial new trial. When less
than all of the issues are ordered retried, the court may
either enter a judgment or final order as to the rest, or stay
the enforcement of such judgment or final order until after
the new trial. (7a)
Section 9. Remedy against order denying a motion for new
trial or reconsideration. An order denying a motion for new
trial or reconsideration is not appealed, the remedy being an
appeal from the judgment or final order. (n)
If Motion for New Trial filed without Affidavit of Merits
- Such motion is a pro forma motion (mere scrap of paper)
- If so, some lawyers will just wait out for the 15 days
(period to appeal) to prescribe then file a Motion to
Dismiss the said motion for new trial. Here, the
respondent who filed the Motion for New Trial without
Affidavit of Merit cannot appeal, because the period to
appeal already prescribed and the Motion for New Trial
that he filed did not toll the period to appeal since its a
mere scrap of paper.
Same principle applies to Motion for Reconsideration
- If you do not comply with the requisites, your motion will
be deemed a mere scrap of paper.
New trial is different from Reopening trial.
In Motion for New Trial, there is already a decision of
the court after trial
o Trial is done, Decision has been rendered
o Here, the decision is rendered without the party
presenting his side of the case (when such party was
not able to file an Answer due to FAME), or such
party was able to present his side but after trial you
discovered new evidence.
Reopening of trial there is yet no decision and you want
to introduce additional evidence which you forgot to
present.
Based on the discussion by Dean Alex Monteclar
o Here trial is done, no decision yet
o Then you found out that there are new or additional
evidence that may turn the case to your favor, so
you ask the court to reopen the trial so that you can
present evidence
o The court will be lenient on this since anyway it has
not rendered a decision yet.
Ground for New Trial
2. Newly discovered evidence
Elements of Newly Discovered Evidence
1. The evidence was discovered only after the trial
2. It could not have been discovered despite due
diligence
3. It will alter the result of the case.
*Newly discovered evidence does NOT refer to FORGOTTEN
evidence. The evidence is not yet existent at the time of
duration of the trial. One could not have discovered the
evidence during the trial and it came out only after the trial
and the decision is already rendered.
DESPITE DUE DILIGENCE you must be the one to
prove to the court that during the trial you exerted due
diligence to get the evidence but of no avail.
o Forgotten Evidence evidence that could have been
discovered in exercise of due diligence
o Example 1: Collection of sum of money. The
respondent poses the defense of payment but the
receipt could not be found. Such receipt was
therefore not presented and such respondent lost
the case. Later on after the court rendered
judgment, it was only then that the receipt was
found in one of the respondents drawers.
respondent cannot file for Motion for New
Trial based on Newly Discovered Evidence
because it was not a newly discovered
evidence but a forgotten evidence
there was absence of due diligence to find
that receipt.
o Example 2: Collection for sum of money. The
person who witnessed (who took a video of) the
payment could not be found and learned to be
outside of the country.
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If appeared after trial and rendition of
judgment, this could be a Newly Discovered
Evidence, because the person is not around
during trial despite due diligence.
MOTION FOR RECONSIDERATION
Grounds for Motion for Reconsideration
1. The damages awarded are excessive;
- not questioning the decision of the court (as to which is
the losing party) but only as to the amount of damages
2. The evidence is insufficient to justify the decision or final
order;
3. That the decision or final order is contrary to law;
- or against the decided cases of the Supreme Court,
because jurisprudence has the force and effect of law.
Content of Motion for Reconsideration:
- you must be able to point out which SPECIFIC portion of
the decision is not supported by evidence or contrary to
law
- If you cannot point out your motion is a PRO FORMA
MOTION
- A pro forma motion for new trial or reconsideration
shall not toll the running of the reglementary period of
appeal.
- The affidavit of merit (Motion for New Trial based on
FAME) must not only allege that movant has a
meritorious defense, he must recite and describe the
facts constituting FAME. When there is no affidavit of
merit your motion is a pro forma motion mere scrap
of paper.
In one case:
SC held that if your motion for reconsideration
contains mere reiteration of what you have already argued in
you memorandum that was submitted to the court and in
fact the court has already discussed that extensively YOUR
MOTION SERVES NO OTHER PURPOSE BUT TO DELAY THE
RESOLUTION OF THE CASE.
This kind of motion is still considered PRO FORMA MOTION.
Effects when motion is granted:
Based on the discussion by Dean Alex Monteclar
If a new trial is granted, the original judgment or final
order shall be vacated, and the action shall stand for
trial de novo;
o You can now file an answer and present your new
evidence
o The evidence presented before shall remain as it is
If a motion for reconsideration is granted, the effect
depends on the ground: NO TRIAL DE NOVO Ground:
o Excessive damages have been awarded; it may
amend such judgment or final order accordingly.
o The judgment or final order is contrary to the
evidence or law, , it may amend such judgment or
final order accordingly.
o Change of the decision only, like decreasing the
amount of damages, conforming the judgment to
the rules
If DENIED, appeal the judgment within 15 days from the
receipt of the order denying his motion and not just for
the balance of the period.
o OLD Rule: if motion denied, only have the balance of
the reglementary period to appeal (as interrupted by
the filing of the Motion for New Trial or
Reconsideration)
o NEW Rule: Neypes vs CA Fresh Period Rule. Where
the 15 day period to appeal is renewed from the day
of receipt of the order denying motion for new trial
or reconsideration.
Resolution of Motion
A motion for new trial or reconsideration must be
resolved within 30 Days from the time it is submitted for
resolution (Sec. 4).
What if it will fail to resolve in 30 days? Can the court still
resolve the motion? YES, the only consequence is that the
judge may be penalized by the SC.
The motion will still be valid even if it will go beyond
30 days.
Second Motion for new trial: Allowed so long as the ground
for the second motion for new trial not existing at the time of
filing of the first motion for new trial.
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Second Motion for Reconsideration: NOT allowed. Except:
Supreme Court
Just like in League of Cities naabot 5 ka motion for
reconsideration. (only the SC can violate their rules)
How about in NEW TRIAL? Can you file second motion? YES,
IF THE GROUND FOR THE SECOND MOTION IS NOT THE
SAME AS THAT OF THE FIRST ONE.
Partial new trial or reconsideration:
Can you have a partial motion only for reconsideration or
new trial? YES
Remedy against order denying motion for new trial or
reconsideration:
Under Sec 9, an order DENYING a motion for new
trial or reconsideration is NOT APPEALABLE (Rule 41, Sec. 1).
*The remedy being an appeal from the JUDGMENT or final
order. Certiorari under Rule 65 is now a remedy pursuant to
AM No. 07-7-12, dated Dec. 27, 2007.
RULE 38
Relief from Judgments, Orders, or Other Proceedings
There are two kinds of petition for relief from judgment:
1. Petition for relief from judgment, order or other
proceedings (Sec. 1, Rule 38).
2. Petition for relief from denial of appeal (Sec.2, Rule
38)
Section 1 refers to a petition for relief on judgment on the
ground of fraud, accident, mistake or excusable negligence
Section 1. Petition for relief from judgment, order, or other
proceedings. When a judgment or final order is entered, or
any other proceeding is thereafter taken against a party in
any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the
same case praying that the judgment, order or proceeding be
set aside. (2a)
Remedies of defending party declared in default:
Suppose you lost the case because you were not able to
answer on the ground of FAME; as a consequence of which,
you were declared in default. What then are your remedies?
Based on the discussion by Dean Alex Monteclar
1. Remedy after notice of order of default and before
judgment Motion under oath to set aside the
order of default (1) on the ground of FAME and
provided that (2) defendant has a meritorious
defense i.e. the motion must be accompanied by an
affidavit of merit (Rule 9, Sec. 3(b));
2. Remedy after judgment of default but before
judgment becomes final and executory (1) Motion
for new trial under Rule 37 or (2) appeal from the
judgment;
3. Remedy after judgment becomes final and executory
Petition for relief from judgment under Rule 38;
4. Where the court acted with grave abuse of discretion
in declaring the defendant in default special civil
action for certiorari under Rule 65.
Section 2. Petition for relief from denial of appeal. When a
judgment or final order is rendered by any court in a case,
and a party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from taking an
appeal, he may file a petition in such court and in the same
case praying that the appeal be given due course. (1a)
o In Section 2, you were able to answer unlike in Section 1.
In other words, in Section 1, you were not able to
participate in the trial of the case because you were
declared in default. In Section 2, you were able to
answer, present evidence, and participate in the trial of
the case until the time the court rendered the decision.
But you did not know that the court rendered the
decision. In other words, you were not able to receive a
copy of the decision because also of FAME. Thus you
were not able to appeal. You lost in the case but you did
not have knowledge thereof.
o For example: Fraud The process server went to the
office of the losing partys counsel. However, the lawyer
was not there. It was the secretary who received the
copy of the decision. The winning party connived with
the secretary such that the latter did not gave the copy
of the decision to counsel of the losing party; as a
consequence of which, counsel was not able to appeal
within the 15-day period. He was only able to know of
the adverse decision only after notice of a motion for
execution of judgment was served. What is the remedy
of the losing party? He can avail of petition for relief from
judgment under Rule 38 i.e. he was not able to appeal
because of fraud.
Time of filing of petition
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Section 3. Time for filing petition; contents and verification.
A petition provided for in either of the preceding sections
of this Rule must be verified, filed within sixty (60) days after
the petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6)
months after such judgment or final order was entered, or
such proceeding was taken, and must be accompanied with
affidavits showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or defense,
as the case may be. (3)
Time within which to file motion:
1. Within 60 days from knowledge of the judgment or
final order; AND
2. Not more than 6 months from entry of judgment or
final order.
Form and contents of the petition:
1. The petition must be verified;
2. It must be accompanied by affidavits showing the
FAME relied upon; and
3. The facts constituting petitioners good and
substantial cause of action or defense.
o Such affidavit is no longer required for judgment which is
null and void for want of jurisdiction of the court which
rendered the judgment. If there is lack of jurisdiction,
there is no need for such affidavit.
Once a petition for relief from judgment is filed, the court will
require the other party (the prevailing party) to file his
answer
Section 4. Order to file an answer. If the petition is
sufficient in form and substance to justify relief, the court in
which it is filed, shall issue an order requiring the adverse
parties to answer the same within fifteen (15) days from the
receipt thereof. The order shall be served in such manner as
the court may direct, together with copies of the petition and
the accompanying affidavits. (4a)
o The court will conduct a hearing before granting the
petition for relief from judgment. The court may even
grant preliminary injunction pending the proceedings
Section 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
Based on the discussion by Dean Alex Monteclar
the petitioner of a bond in favor of the adverse party,
conditioned that if the petition is dismissed or the petitioner
fails on the trial of the case upon its merits, he will pay the
adverse party all damages and costs that may be awarded to
him by reason of the issuance of such injunction or the other
proceedings following the petition, but such injunction shall
not operate to discharge or extinguish any lien which the
adverse party may have acquired upon, the property, of the
petitioner. (5a)
o This is especially true if there is already a writ of
execution. Remember that there is already a final and
executor judgment here. Since the period to appeal has
already lapsed, the decision is already final and executor.
Suppose the prevailing party filed a motion for execution
of judgment and the losing party filed a petition for relief
from judgment. He has 60 days from knowledge of the
decision but not more than 6 months from entry of
judgment. So that if there is already a writ of execution
issued by the court, the petitioner must at the same task
ask for a TRO or a writ of preliminary injunction to stop
the sheriff from enforcing the decision. Here, the TRO or
preliminary injunction is issued by the same court which
issued the writ of execution. So if Im the judge who
issued the writ of execution, I will also be the one
enjoining the sheriff from proceeding with the execution.
o When you file a petition for relief from judgment asking
at the same time for an issuance of a preliminary
injunction, you have to file an injunctive bond. What is
the bond for? It is to answer for whatever damage the
other party would suffer because of the injunction
issued.
Section 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
proceeding complained of upon such terms as may be just.
Thereafter the case shall stand as if such judgment, final
order or other proceeding had never been rendered, issued
or taken. The court shall then proceed to hear and
determine the case as if a timely motion for a new trial or
reconsideration had been granted by it. (6a)
o Here, there are actually two hearings to be conducted by
the court: One is to determine whether the petition will
be granted and the other will be on the merits of the
case if the petition is granted.
o The court will have to conduct a hearing to determine
whether your petition for relief is meritorious or not.
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Then the court will decided whether to grant such
petition or deny the same.
o When the court grants your petition, then you will now
be allowed to present your evidence. There will now be
another hearing. This time, it will now be a hearing on
the merits of the case. When the court grants your
petition for relief from judgment, it does not mean that
you have one in the main case. It simply means that you
are now allowed to present your evidence on the merits
of the case.
o Again, the first hearing will decide on the propriety of the
petition. Is it true that defendant was not able to file an
answer on the ground of FAME? If the court allows the
petition, then you can now proceed to present your
evidence. That will now be a hearing on the merits.
Section 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. (7a)
o This one is in relation to Section 2, petition for relief from
denial of appeal. Unlike in Section 1 where you were not
able to file an answer; in Section 2, you were able to
answer and participate in the trial but unable to file an
appeal from an adverse decision on the ground of FAME.
So what you are asking from the court is to allow you to
appeal.
o If the court is convinced by your petition, then it will now
set aside its order denying your appeal and it will now
issue an order allowing you to appeal. You can now file
your notice on appeal and the lower court will now
elevate the record of the appealed case as if a time and
proper appeal had been made.
o Where will the records be elevated? To the appellate
court. To the CA if the decision was rendered by the RTC.
RULE 39
Execution, Satisfaction and Effect of Judgments
o Execution is that point where the party litigant who
prevailed in the case to reap the fruits of his labor. After
litigating for many years, the court has finally decided in
your favor. And the decision is now final as the adverse
party failed or did not appeal.
o A judgment is already final and executory when it cannot
anymore be appealed as the time for filing thereof has
expired without the losing party having perfected an
Based on the discussion by Dean Alex Monteclar
appeal. The prevailing party now moves for execution of
the judgment.
Kinds of Execution
As to its nature
1. Execution as a matter of right (Sec. 1, Rule 39);
2. Execution as a matter of discretion (Sec. 2, Rule 39);
As to its enforcement
1. Execution by mere motion (Section 6, Rule 39);
2. Execution by independent action (Section 6, Rule
39);
Execution becomes a matter of right when the judgment
becomes final and executory.
Section 1. Execution upon judgments or final orders.
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.
When is an execution a matter of right? When the decision
becomes final and executory, the enforcement and execution
of that decision becomes a matter of right. It becomes a
ministerial duty of the court to issue the writ of execution.
Where will you file the motion for execution? You file it at the
very same court that renders that decision. If the case was
filed in the RTC of Cebu, Branch 5 for example, then it is that
very same court that will execute.
When you file that motion in that court, do you have to notify
the other party? No. You need not notify. He already knows
about the case. He knows he was beaten and that he was
unable to appeal, so he doesnt need to be told of the
motion. You can file your motion for execution of judgment
ex parte, and the court will surely grant it. However, if the
judgment of the RTC is appealed to the CA and the CA has
rendered a decision affirming the decision of the RTC, where
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do you file the motion for execution of judgment? You file it
in the court of origin, or the RTC. This time however, you
must inform the other party. That is the difference between
execution as a matter of right or execution of an original
decision, and execution of an appealed decision. If the
decision that you want to be executed is an appealed
decision, and you want the RTC to issue the writ of execution,
you need to notify the other party. You need to notify
because there might be supervening facts that occurred from
the time the RTC rendered a decision to the time the CA
rendered its decision.
The procedure before was that, when it is an appealed
decision, you file your motion for execution at the court of
origin. Its like now, except you have to wait for the records of
the case to be returned to the court of origin. From the CA,
the records are returned to the RTC. Upon return, the RTC
will inform you, and thats the time you file your motion. We
all know that from the time the CA renders a decision to the
time the records are returned, it will take months, or even a
year. Especially before, where the CA was located only in
Manila. In the meantime, the one beaten slowly hides his
properties. The decision has become final, so he sells his
properties fictitiously and hides them. By the time the record
reaches Cebu, there is nothing to be found.
The new rules changed that. Under the new rules, when the
CA decides, you dont have to wait for the return of the
records. You can file a motion for execution in the court of
origin by attaching only a certified true copy of the decision
of the Court of Appeals, and the entry of judgment. Thats
whats important, the entry of judgment. It means the
decision of the CA has become final and executory because
no appeal has been made to the SC. From the time the CA
renders its decision, both parties are given copies. The losing
party has 15 days to appeal to the SC under Rule 45. If he
doesnt appeal within that period, the decision becomes final
and the CA issues an entry of judgment.
Can you not file the motion for execution in the CA? Yes, but
only if the lower court is dill dallying the issuance of the writ
of execution. If mag langan-langan ang RTC, you can file your
motion with the CA. But then the CA is not the one who will
issue the writ of execution. What the CA will do will be to
order the RTC to issue the writ. That is how to enforce a
judgment.
As I have said, when the judgment is already final and
executory it becomes a ministerial duty of the court to issue
the writ of execution. The court cant do anything as its
ministerial. However, there are instances where the court
may refuse to issue the writ despite the finality of the
judgment. They are exceptions to the rule that once the
judgment becomes final, its a matter right for the prevailing
Based on the discussion by Dean Alex Monteclar
party to ask for execution and the court cannot deny it. What
are these?
When there are subsequent facts or circumstances, or
there are supervening events, that transpire, that render
such execution unjust or impossible. The supervening
event must have transpired after the judgment becomes
final, not before the judgment. One good example is that
case where the land owner filed an ejectment case
against the defendant who was occupying his land. The
defendant lost the case. The court ordered the
defendant to vacate, but in the meantime, the very same
land was mortgaged by the plaintiff landowner to the
bank. He failed to pay the bank and because of that, the
bank foreclosed the mortgage and sold it in a public
auction. The person who bought was the defendant who
was beaten in the ejectment case. Can you now eject the
defendant who has now become the owner of the lot?
This happened after the court has rendered the decision.
It becomes unjust or impossible to enforce that
judgment.
Another is when the judgment has been novated by the
parties. Here, there is already a judgment. Like for
example, there is a simple case for a sum of money. The
plaintiff sought to recover money he loaned to the
defendant. The defendant lost the case and a decision
was issued, directing the defendant to pay, that became
final and executory. After that, the defendant went to
the plaintiff and pleaded because he has no money. The
plaintiff says, I feel sorry for you. You may pay the 1
million in ten installments of 100,000 pesos each month.
During the third and fourth month, the defendant was
unable to pay. Can the plaintiff still enforce the
judgment? No more, because the judgment has been
novated by the subsequent agreement. In obligations
and contracts, novation is one of the grounds for
extinguishment of an obligation. The decision itself was
novated and can no longer be enforced because you
agreed to payment by installments.
Another one is when a petition for relief from judgment
and a writ of preliminary injunction (see Rule 38, Section
5) is issued. A petition for relief from judgment is filed
after the judgment becomes final and executory. If the
losing party files for this relief and at the same time asks
for preliminary injunction and the court grants, then
there can be no execution.
When the judgment becomes dormant, the 5 year period
for its enforcement by motion having expired. You must
file an independent action for the revival of the
judgment.
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Once the judgment attains finality, it cannot be altered.
Thats what we call the principle of immutability of
judgment. Once the judgment becomes final, it cannot
be changed even if it is erroneous. Thats the general
rule, but there are exceptions, like when the judgment is
incomplete. The court can still amend a final judgment to
make corrections of clerical errors or to clarify ambiguity.
And the third, the judgment for support. Why? Because a
judgment for support can never be final, it can amended
anytime. These are the 3 instances where a final
judgment can still be changed or modified by the court.
Section 2. Discretionary execution.
(a) Execution of a judgment or final order pending
appeal. - On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in the
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 the 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.
Lets go to the discretionary execution. There are 2 kinds of
execution, one is a matter of right and the other is
discretionary to the court. When is execution of judgment a
matter or discretion of the court? It becomes a matter of
judicial discretion when the judgment has not yet attained
finality. Can you execute even if it isnt yet final? Yes, there
are instances, but it may only issue upon good reasons, to be
stated in a special order after due hearing. If the court
renders a decision in my favor, the losing party has 15 days to
appeal. If within that 15 day period, you havent been able to
file an appeal, I can ask the court for immediate execution.
This is what we call discretionary execution. For as long as
there are good reasons, I have to convince the court. What
are the good reasons?
Based on the discussion by Dean Alex Monteclar
Good reason for execution pending appeal:
Where the lapse of time will make the judgment
ineffective.
Where the appeal is clearly dilatory.
Where it is a judgment for support.
Where the subject article of the case would deteriorate
fast
Where the defendant is exhausting his income.
o The defendant is slowly disposing his properties.
You can ask for discretionary execution.
When the judgment debtor is in imminent danger of
insolvency.
The prevailing party is of advanced age. (nakadaog pero
90 years old na. unya ni appeal pa ang kontra. How can
he enjoy the benefits of the judgment?)
This discretionary execution is only good before the RTC or
the Trial Court Level. If the decision is that of the CA, and the
losing party appealed the decision to the SC, can you ask the
CA for discretionary execution? NO. Once the SC takes
cognizance of the case, no other court can touch it. CA will
not anymore grant discretionary execution.
When can you file?
During the 15 day period to appeal. And there is no
appeal yet filed by the losing party.
If there is already an appeal filed by the losing party,
you can still file for Discretionary execution for as long as the
RTC still has jurisdiction over the case AND it still has the
records of the case. This is also known as the Residual
Jurisdiction of the RTC. It has jurisdiction until it has
forwarded the records of the case to the CA.
Remember, it is very easy to perfect an appeal
before the RTC. File a notice of appeal. It only contains one
sentence.
If the records of the case are already forwarded to
the CA, can you still ask for discretionary execution? YES! The
remedy is to ask for execution pending appeal. You dont file
it before the RTC anymore but before the CA. The RTC has
already lost jurisdiction over the case.
What is your remedy if Discretionary execution is granted by
the court? If you think that the grant of the discretionary
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execution by the court is not anchored under good grounds,
then you can assail the order of the court granting such by
way of certiorari under Rule 65 for grave abuse of discretion.
When the prevailing party asks for DE (Discretionary
Execution), can the losing party prevent the DE? YES! By filing
a Supersedeas Bond. But the filing does not automatically
stop the DE. Where the needs of the prevailing party are
urgent, the court can order the immediate execution despite
the presence of supersedeas bond. An example would be an
award for support. Support is urgent. Sec 4 of rule 39, there
are four kinds of judgment which are immediately executory.
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.
Keyword: IRAS
Even if the losing party will appeal the decision, the appeal
will not stop the execution of the decision.
How to enforce a Judgment:
By motion within 5 years form the entry of judgment
after five years the case becomes dormant you must
revive the judgment
By Independent action for revival of judgment when
it is granted. How will you execute?
o Execute by mere motion within 5 years from that
revival
The execution of judgment may be done by mere motion
within five (5) years from the time the judgment becomes
final and executory. (file before the court which rendered the
decision, a mere motion for the execution of the decision) It
becomes a ministerial duty of the court. It is a matter of right.
The court will have to grant the issuance of the writ of
execution.
After 5 years you can no longer enforce the judgment by
mere motion. You have to file an independent action to
revive the judgment. Because after 5 years, the judgment will
become dormant. You have to revive it back. That revived
Based on the discussion by Dean Alex Monteclar
judgment maybe enforced again by mere motion within 5
years. If it becomes dormant again, can you ask for another
revival of judgment?
In the case of PNB vs Bondoc, once you revive a judgment,
you have another 5 years to enforce it by mere motion. If it
lapse you can still file for a second action for revival of
judgment.
IN the case of PNB vs Veloso, the SC said, no because you
only have 10 years to enforce a judgment according to the
civil code. (10 years prescriptive period if the action is based
on a judgment). But this was later on changed again by the
SC.
Sec 6 of Rule 39 is now very clear.
Sec. 6. Execution by motion or by independent action.
A final and executory judgment or order may be executed on
motion within five (5) years from the date of its entry. After
the lapse of such time, and before it is barred by the statute
of limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action
before it is barred by the statute of limitations.
So a revived judgment may be revived again by another
independent action. So on and So forth.
Execution in case of death of a party.
It depends on the kind of action and who is the party to died.
If it is the prevailing party dies
o The execution shall be asked by the executor or the
administrator of the estate. He will file for the
execution of the judgment.
If it is the losing party who dies (follow the rules on
money claims)
o While the case is pending, the court may continue
with the case until final judgment. The judgment
favorable to the creditor will be presented to the
administrator of the estate of the deceased
defendant as a claim against the estate.
If the judgment debtor dies after the judgment was
already rendered, still, the same rule.
o The prevailing party will have to wait for the decision
to become final and executory. And once it will
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become final and excutory, present it to the
executor or the administrator of the estate of the
deceased defendant debtor as claims against the
estate.
If there was already a levy made on the property of the
judgment debtor, let the execution continue. If there is
an excess from the auction sale, it will be given to the
executor or administrator of the estate of the defendant.
If no levy yet, file it as a claim against the estate of the
defendant.
Forms and contents of a writ of execution
Writ of Execution a written order of the court directing the
sheriff to enforce the judgment of the court that is final and
executory. It shall quote the dispositive portion.
Just like any other writs issued by the court.
It shall be issued under the name of the Republic of the
Philippines.
The name of the court
Title of the case
(same caption with the pleading)
The important amendment introduced by the new rules is
that when you file a motion for the execution of a judgment
of the court, the prevailing party is required to specify the
exact amount to be stated in the writ of execution. The
prevailing party must compute for the amount. Not the
sheriff or the clerk of court.
The writ of execution must only state the dispositive portion
of the decision. And not the entire body of the decision.
How to execute money judgment:
Steps
1. the sheriff will demand payment.
2. satisfaction by levy
3. garnishment of debts and credit.
Payment should be made in
1. cash
Based on the discussion by Dean Alex Monteclar
2. in a bank check or managers check (certified) It
cannot be any other check.
3. Any other form acceptable to the judgment creditor
(dation en pago)
If the judgment debtor could not pay the amount to the
judgment creditor, then the sheriff will start looking for
properties that he could levy.
Levy the act of setting aside properties of the debtor for
future execution sale in order to satisfy the judgment of the
court. It could be real or personal properties.
Under the new rules, the judgment debtor is given the chance
to choose what properties maybe levied first. (before it was
always personal property over the real properties)
If the judgment debtor will not decide, then the sheriff will be
the one to decide. First the personal properties before the
real properties. After levying, sheriff will now sell the
properties in the execution sale.
Other option is garnishment of debts and credits.
The sheriff will garnish the collectible of the debtor from
other persons. Then he will approach them to tell them that
payment should be made to the sheriff and not to the
judgment debtor.
The bank is a debtor to the judgment debtor in the case of
deposits. The sheriff will garnish them by going to the banks
with the writ of garnishment. The bank is duty bound to
answer the writ of garnishment within 5 days.
What you can garnish are bank deposits or collectibles from
another person and other tangible properties of the
judgment debtor.
JANUARY 8, 2016
HOW TO EXECUTE MONEY JUDGMENT? RULE 39 SEC 9
1. DEMAND IMMEDIATE AND FULL PAYMENT of the
amount from the judgment debtor including lawful
fees in CASH, CERTIFIED CHECK, or any other form
of payment acceptable to the creditor
2. If he cannot pay, SHALL LEVY upon properties.
Debtor has the option to choose but if not exercised,
shall LEVY PERSONAL then REAL, if insufficient.
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3. The officer may LEVY on the debts due the judgment
debtor including bank deposits, financial interest,
royalties, commissions and other personal property
not capable of manual delivery in the
possession/control of 3rd person. The process is
called GARNISHMENT.
HOW TO EXECUTE JUDGMENT FOR PERFORMANCE OF A
SPECIFIC ACT?
Sec. 10. Execution of judgments for specific act.
(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. - If a judgment directs a party who execute a
conveyance of land or personal property, or to deliver deeds
or other documents, or to perform any other specific act in
connection therewith, and the party fails to comply within
the time specified, the court may direct the act to be done at
the cost of the disobedient party by some other person
appointed by the court and the act when so done shall have
like effect as if done by the party. If real or personal property
is situated within the Philippines, the court in lieu of directing
a conveyance thereof may be an order divest the title of any
party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.
(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 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.
Based on the discussion by Dean Alex Monteclar
(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 the person fails to comply with the specific act,
CONTEMPT IS NOT A REMEDY because the act can
be performed by other person
HOW TO EXECUTE A SPECIAL JUDGMENT?
Sec. 11. Execution of special judgments.
When a judgment requires the performance of any act other
than those mentioned in the two preceding sections, a
certified copy of the judgment shall be attached to the writ of
execution and shall be served by the officer upon the party
against whom the same is rendered, or upon any other
person required thereby, or by law, to obey the same, and
such party or person may be punished for contempt if he
disobeys such judgment.
Act that cannot be delegated to another person,
thus, a person may be punished for CONTEMPT OF
COURT.
EFFECT OF LEVY
Sec. 12. Effect of levy on execution as to third persons.
The levy on execution shall create a lien in favor of the
judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
A LEVY is an act whereby the sheriff sets apart or
appropriates a part of the whole of the properties of the
judgment debtor to satisfy the command of the writ.
HOW TO LEVY?
1. Personal property- the sheriff takes possession of it.
2. Real property- annotating with the RD of the order in
the title with notice of attachment and by leaving with
the occupant of the property of the order and notice.
LEVY is in preparation of sale. An execution sale
must be preceded by a valid levy which is
indispensable for a valid execution sale.
PROPERTIES 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.
EXCEPTION: 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.
DUTY OF THE SHERIFF WITH REGARD TO THE WRIT OF
EXECUTION
Based on the discussion by Dean Alex Monteclar
Section 14. Return of writ of execution. The writ of
execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in part or
in full. If the judgment cannot be satisfied in full within thirty
(30) days after his receipt of the writ, the officer shall report
to the court and state the reason therefor. Such writ shall
continue in effect during the period within which the
judgment may be enforced by motion. The officer shall make
a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in
full, or its effectivity expires. The returns or periodic reports
shall set forth the whole of the proceedings taken, and shall
be filed with the court and copies thereof promptly furnished
the parties. (11a)
LIFE SPAN OF THE WRIT OF EXECUTION 5 years
BEFORE EXECUTION SALE, THERE MUST BE A NOTICE
OF SALE OF PROPERTY ON EXECUTION.
PLACE OF THE EXECUTION SALE? Real- in the court
Personal- place where it is found or court room.
Execution sale: This is like public auction sale. The proceeds
will be used to pay the Judgment Creditor.
-If the proceeds are not enough the judgment debtor
will be liable for that deficit.
-If the proceeds are in excess - the excess shall be
returned to the judgment obligor.
1. Notice - The notice must provide the description of the
property, specific date, place (normally in court) and time.
(where, when, what, how , and description of property to be
sold)
Place
o If Personal Property located in other place, you
conduct the sale there.
o If Real in the court where the property is.
Time and Date must specify the time of the sale
o Not Allowed: From 9am-2pm. From 11am-12pm
o Must be: 10:30 and thats it, sugod dayon.
Posted in 3 conspicuous places places in the city or
municipality were many people will go (e.g. marketplace,
plaza, city hall, etc.)
How many days is the posting? It DEPENDS:
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o Personal Property at least 5 days before the
schedule auction sale
EXCEPT: if perishable like the SAGING, ay lage
huwata malaya. Execute dayon! Haha
o Real Property at least 20 days before the date of
the sale
EXCEPT: if worth more than P50,000 in
addition to the posting in 3 conspicuous places
notice must be published in the Newspaper of
General Circulation in the place where the
property is located.
Once a week for 2 consecutive weeks
- Bisag Local Newspaper
*The judgment debtor shall be personally notified at least 3
days before the execution sale
*What is required is Local Newspaper only. It shall be raffled
to avoid conflict on which newspaper it will be posted.
*Absence of notice will render the execution sale null and
void.
2. Terceria a third party claim made or filed by third person
against the property levied by the sheriff.
Kung magpataka lang ang sheriff ug levy, property of
a third person may be involved. The third person shall file his
3rd party claim to the sheriff. He will just execute an
affidavit (stating his claim over the property) and submit it
to the sheriff MUST BE ACCOMPANIED WITH PROOF OF
OWNERSHIP.
What will the sheriff do? The sheriff will not go on with the
sale. Otherwise, he will be personally liable if it turns out that
the third party really owns the property. He has to
immediately notify the judgment creditor of the third-party
claim.
HOWEVER, if the Judgment Creditor wants to go on
with the sale he will put up a BOND it shall be
amount of money at least equivalent to the property
o PURPOSE OF THE BOND: to answer for any
damages the sheriff maybe held liable in the event
that the third party claimant will prove that he is
the real owner of the property
Based on the discussion by Dean Alex Monteclar
If you are the THIRD PARTY CLAIMANT how will you
prevent the execution sale after the judgment Creditor has
put up a bond?
File an Independent action (independent
reivindicatory action within 120 days) against the
sheriff & the judgment creditor to recover the
property and file it not in the same court that issued
the writ
WITH PRAYER OF INJUNCTION OR TRO to stop the
sheriff from selling the property. IMPORTANT
The judgment creditor may also file a suit claiming
damages in the same or a separate action against
the third-party claimant if the latter filed a frivolous
or plainly spurious claim (Sec 16).
*In here, the court does not rule on the issue of ownership.
The only issue is Whether or not the sheriff is right or wrong
in levying the property of the third person.
*if he wants to resolve the issue of ownership, then he must
file an independent action again to resolve on the issue of
ownership.
3. Penalty for selling without notice (Sec17) no notice,
entire sale is null and void.
Rules of court even provides penalties if conducted
without notice P5,000 + Actual Damages
Even Vandals you will also answer the same
penalty
4. How to prevent execution sale the only way to stop is to
pay
5. Who direct manner and order of execution
Here we have a situation nga daghan kaau ang
nabira sa sheriff. House, Ref, TV, Car, Speedboat, etc.
Who will direct which will be sold first?
o If the judgment debtor is around he will
be the one to decide first.
o If he is not around the sheriff will decide.
The sale will go on until the obligation is satisfied.
Normally, it is personal property sold first then the
real property.
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6. Refusal of purchaser to pay bid2 sya didto the, joke ra
btaw to sheriff. Dara ang kwarta oh, pero di btaw!
If he refuses to pay, he will conduct another bidding.
That person who refuse to pay is disqualified.
The PENALTY is that he will pay the remaining lost or
balance.
You can even be punished for contempt of court.
EX: Bid ka 1M, pero d btaw! Wa ka ni bayad. Another bidding
is conducted. In that second bidding the highest bidder is
600k. The difference of 400k YOU WILL PAY!
If on the second bidding, the highest bidder is 15,000 but the
true obligation is 20,000. The 20,000 which you bid would
have been commensurate but since it was only a joke, you
are not anymore allowed to join, so rebidding. The highest
bidder is only 15,000, then it will be awarded to the highest
bidder for 15,000 but the bidder (the person who said it was
only a joke) will pay the difference of 5,000. Its a penalty for
him.
Section 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.
Judgment obligee/creditor the highest bidder/purchaser
Does he have to pay the amount he bid?
General Rule: No need to pay. Apply Dacion en pago.
Exception: 1. Property that was sold in execution was subject
to a third party claim. He has to pay the bid (amount).
Because it is really controversial whether the property is
really owned by the judgment debtor.
2. (Based on Lakas Atenista) When his bid is higher than the
judgment. So he has to pay cash for the excess.
During the auction sale, the property will be awarded to the
highest bidder.
Will it be delivered right away to the highest bidder?
Section 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
Based on the discussion by Dean Alex Monteclar
as of the date of the levy on execution or preliminary
attachment.
1. Yes. If what is sold is a personal property capable of
manual delivery. Right then and there the sale is
consummated and the property will be yours right
away.
Ex: Car-movable property. Once a purchaser submits the
highest bid and pays the purchase price, the sheriff will
deliver to him the property. The sheriff will give you the
certificate of sale. Then you can already bring with you
the car.
If desired/necessary, execute and deliver to the
purchaser the Certificate of Sale.
The delivery itself is sufficient to transfer
ownership.
Section 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.
2. If it is a personal property NOT capable of manual
delivery. What the sheriff will do is to execute only a
certificate of sale in your favor.
Ex. Machinery is bolted in the warehouse. So certificate
of sale but the property is immediately transferred to
you.
Another Example: (Provided from the previous
transcript) Shares of stocks. Here, the sheriff must
execute a Deed of Sale.
The operative act of transferring ownership is
the execution of the deed of sale.
In fact, the execution of the deed of sale
retroacts to the date of the levy.
Meaning, when the deed of sale is handed over
to you, you are deemed to be the owner of the
property way back at the time the sheriff has
levied the said property.
If personal property, it coveys to the purchaser all the
rights that the judgment obligor had in his property as of
the date of the levy on execution but there is no
warranty mentioned.
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Difference between conventional sale and execution sale
Conventional sale- there is warranty against eviction.
Ex. I sell to you my land and later on you are evicted
because somebody claims to be the real owner and
he was able to prove, then I am answerable to you.
Execution sale- the sheriff does not warrant that the
property that is sold is really owned by the judgment
debtor. So if you buy a property in a public auction
sale, you have to examine what is the interest of the
judgment obligor over the property. This is where the
principle of CAVEAT EMPTOR. Buyers beware. Because
there is no warranty if auction sale.
Section 25. Conveyance of real property; certificate thereof
given to purchaser and filed with registry of deeds. Upon
a sale of real property, the officer must give to the purchaser
a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1)
year from the date of the registration of the certificate of
sale.
Such certificate must be registered in the registry of deeds of
the place where the property is situated.
3. If real property, there is no transfer of ownership
right away.
If what is sold is real property the officer will also give to
the highest bidder a certificate of sale and it contains the
description of the property sold, the price paid of each
distinct parcel and most importantly the statement that
the right of redemption expires one year from the date
of the registration of the certificate of sale.
Difference between personal and real property
If personal property (execution sale), there is transfer of
ownership immediately. From the moment the certificate of
sale is transferred to you, you are now the owner of that
property. You can already bring it.
If what is being sold is a real property, the highest bidder
does not become the owner of the real property yet. Why?
Because the judgment debtor/obligor is given by law the right
of redemption. He can redeem the property from the highest
Based on the discussion by Dean Alex Monteclar
bidder (purchaser) and he is given a year to redeem it. The
one year period starts to run not from the execution sale but
from the registration of the certificate of sale. Upon receiving
the certificate of sale, it is incumbent upon you to
immediately register the certificate of sale in the office of the
Register of Deeds. Annotate it at the back of the title.
Registration of the certificate of sale in the office of
the Register of Deeds that commences the one year
redemption period.
If you will not have it registered, then the one year period will
not start to run against the judgment debtor and that is
favorable to him and not to you, the purchaser of the
property. It means anytime, it can be redeemed by the
judgment debtor to you.
REDEMPTION
Rule: If the property that was bought is a real property, the
purchaser of the property in the auction sale does not
become the owner of the real property until after the lapse of
the 1 year redemption period.
In other words, a certificate of sale is only a memorandum or
evidence that you bought that property in the auction sale
but it does not make you the owner of the property yet. In
fact, the one who should occupy the property in the one year
redemption period is not you. You are not allowed to occupy.
You cannot take possession of the property yet. It is the
judgment debtor who will occupy it. In fact, all income and
rental of the property shall inure to the benefit of the
judgment debtor not to the purchaser within the 1 year
period. The purchaser only becomes the owner after the
lapse of the 1 year redemption period and the judgment
debtor failed to redeem it.
LAW ON REDEMPTION
Section 27. Who may redeem real property so sold. Real
property sold as provided in the last preceding section, or any
part thereof sold separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(a) The judgment obligor; or his successor in interest
in the whole or any part of the property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the property
sold, or on some part thereof, subsequent to the lien
under which the property was sold. Such redeeming
creditor is termed a redemptioner.
Who can redeem the property from the purchaser?
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1. The judgment obligor or his heirs or his successor-in-
interest;
The successor-in-interest is not necessarily his heirs
because the right of redemption is considered to be a
property right. The judgment obligor or debtor can tell it
to anybody. So if Im the judgment debtor, unya tan-aw
nako di na jud nako ma redeem 1 year kay wala na koi
kwarta, I can sell my right to redeem because its a
valuable property right.
Ex. My land is worth 10M was sold in the auction sale kay
wala ko nakabayad sa akong utang, gi levy sa sheriff,
gibaligya sa auction sale, gipalit lang ug 4M. Ang highest
bidder 4M ra so alkansi ko ug 6M. Anyway I cannot
complain because I can redeem it also for that same
amount of 4M within 1 year. Suppose I cannot raise the
necessary money within 1 year, maalkansi nako ug 6M.
So I can go to anyone, to a friend of mine, bai, di naman
gyud ni madala nako, sugot ka kani akong yuta akong
ibaligya nalang nako sa imo ug 7M. This is worth 10M.
baligya nako ug 7M. Hatagi lang ko ug 3M, ulii lang 4M
ang purchaser. So if I sell my right to redeem, my friend is
a successor-in-interest. And he can redeem it to the
purchaser within the 1 year period.
2. The redemptioners. A creditor having a lien by virtue of
an attachment, judgment or mortgage on the property
sold, subsequent to the lien under which the property
was sold.
Subsequent because if its before, you apply Section 12.
When the sheriff levied your property, if there is an
existing lien or encumbrances over the property, they
will be preferred creditors over the levy made by the
sheriff. Liens and encumbrances occurred after the
sheriff levied the property will entitle the lienholder to
redeem the property as redemptioners. Now, the liens
and encumbrances subsequent to the levy may either be
through an attachment or mortgage or a levy of
execution also.
Ex. You are a creditor, you did not pay, then the sheriff
levied it for execution sale. Then somebody made the
highest bid, purchaser. Certificate of sale was issued to
him. Now you happen to have other creditors. Dili lang
kay kani ra siya. Daghan kag giutangan. Your other
creditors also attached the property that was already
levied kay wala silay laing makit-an. They also filed a
case. They they were looking for other properties but
found nothing but only the same property that was
already levied. Kato imu attachment sa other creditors,
creates a lien over the property but they are inferior to
Based on the discussion by Dean Alex Monteclar
the first levy but the creditor who made that attachment
will be considered redemptioner. They can also redeem
the property. If there was a foreclosure of the mortgage
covering the same land was after the levy. I mean the
property was mortgaged actually after the levy. For
failure to pay, gi foreclose. Inferior na siya sa levy kay
subsequent man.
Redemptioners can also redeem the property
from the purchaser of the property.
Ex. If the land was sold in public auction, Mr. X bought it
as the highest bidder. The judgment debtor has 1 year to
redeem the land from Mr. X counted from the
registration of the certificate of sale. But it so happens
that there were also other redemptioners. These are
creditors of the judgment debtor who acquired a lien
over the property subsequent to the levy and this lien
was through attachment, levy or mortgage. Kani mga
tawhana pwede ni sila mu redeem from the purchaser.
The judgment debtor has 1 year to redeem. If tan-aw sa
redemptioners murag wa njud chance and judgment
debtor mu redeem, maypa kita nalang mu redeem. So
Redemptioner A immediately offered to redeem the
property from the purchaser. He must of course have to
prove his right to redeem. If you can prove it, then the
sheriff will allow you to redeem. You can redeem the
property from the purchaser by reimbursing the
purchaser the amount that he paid and all other
expenses plus 1% per month of the amount. If he bought
the property for 1M, then he spent for the registration
plus interest, you have to pay it 1% per month. Now after
Redemptioner A redeems the property, Redemptioner B
can redeem it also from him (Redemptioner A) within 60
days. It is allowed because if the purchase price during
the execution sale is very low compared to the actual
value, example if the property is worth 10M, was bought
during the auction sale for only 3M, then you are a
redemptioner with a collectible of 2M, you might as well
say ulian nimo ang purchaser ug 3M bisan pag ipatong
akong 2M, 5M tanan, ginansya pa ko ug 5M. Now when
Redemptioner A redeems the property, Redemptioner B
may also come in and say A, can I redeem it from you
now within 60 days, offer to redeem it from A. Ulian niya
si A.
3M (price when bought during auction sale) (original
purchaser)
+2M (collectible ni A)
5M + 2% interest per month(subsequent)
Pag redeem ni B, so B will say ang total nga nabayad nako ni
Redemptioner A is 5M. Then Redemptioner C will say sige
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redeem sad ko total 7M pa tanan di ko alkansi. Then if there
are other redemptioners who are to redeem it, they can do
so within 60 days from the time the last redemption was
made.
HOWEVER, RULE: Redemptioners cannot redeem if the
JUDGMENT DEBTOR redeems.
WHEN REDEMPTION CAN BE DONE
Section 28. Time and manner of, and amounts payable
on, successive redemptions; notice to be given and filed.
The judgment obligor, or redemptioner, may redeem the
property from the purchaser, at any time within one (1) year
from the date of the registration of the certificate of sale, by
paying the purchaser the amount of his purchase, with
the per centum per month interest thereon in addition, up to
the time of redemption, together with the amount of any
assessments or taxes which the purchaser may have paid
thereon after purchase, and interest on such last named
amount at the same rate; and if the purchaser be also a
creditor having a prior lien to that of the redemptioner, other
than the judgment under which such purchase was made, the
amount of such other lien, with interest.
Redemption can be made within 60 days from the last
redemption. You have to establish your proof to redeem the
property.
(Previous Notes) Two periods of redemption
1. The judgment obligor and first redemptioner are
given ONE YEAR from the date of registration of the
certificate of sale to redeem; after that,
2. All subsequent redemptioners are given 60 days.
Can you question the execution sale if the price paid by the
purchaser is very much below the actual price of the
property?
It depends:
If real property, you cannot complain. Why?
Because you can redeem it only for 200,000. Worth
1M, bought only for 200k, you can easily redeem it
because the price is low.
Section 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.
Based on the discussion by Dean Alex Monteclar
If personal property, if the price obtained at the
execution sale is shockingly inadequate and it is
shown that a better price can be obtained at a
resale. Meaning the highest bid is shockingly
inadequate.
If the property subject of execution sale was sold at a
very low price, say, only 20% of the actual price, can you
complain? It depends.
If it is a REAL PROPERTY, you CANNOT complain. It will
be good for the debtor since the redemption price will
also be less. He still has a right to redeem the property.
If it is a personal property, you can complain but only
when the price is shockingly revolting to the conscience
of men which means that it was sold at a very low price.
In the case of a real property sold at an auction sale, the
judgment obligor has a right of redemption. In the
meantime, the judgment obligor is the one who will
occupy the land within the one year redemption period.
The purchaser could not take over yet since the
judgment obligor still has the right to redeem.
But if the judgment obligor is wasting or destroying the
property, the purchaser may ask the court to order the
judgment obligor not to waste or destroy such property.
Section 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.
(33a)
Section 32. Rents, earnings and income of property pending
redemption. The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and income of the
property sold on execution, or the value of the use and
occupation thereof when such property is in the possession
of a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment
obligor until the expiration of his period of redemption. (34a)
Section 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
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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 adversely to the
judgment obligor. (35a)
After the lapse of the period to redeem and the
judgment obligor did not exercise such right, the
purchaser shall acquire ownership of the said property.
Ownership by the purchaser retroacts to the time of the
levy. And its the obligation of the sheriff of the court to
place the property in the possession of the purchaser.
If there is a need to demolish the house of the judgment
debtor in the said property, the purchaser must secure
from the court a special order to that effect.
If the judgment debtor encumbered or sold such
property to some other persons AFTER the levy, those
encumbrances or sale shall NOT prevail against the right
of the purchaser because the right of the purchaser
retroacts to the time of the levy. The purchasers right
will only be inferior if such encumbrances were made
BEFORE the levy.
Section 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
Based on the discussion by Dean Alex Monteclar
price with interest, or so much thereof as has been delivered
to the judgment obligor. The judgment so revived shall have
the same force and effect as an original judgment would have
as of the date of the revival and no more. (36a)
If the purchaser was not able to possess the property
because it was claimed by other persons and won the
case, the purchaser will have to demand for
reimbursement from the judgment obligee.
Section 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.
(37a)
Section 36. Examination of judgment obligor when judgment
unsatisfied. When the return of a writ of execution issued
against property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the judgment
obligee, at any time after such return is made, shall be
entitled to an order from the court which rendered the said
judgment, requiring such judgment obligor to appear and be
examined concerning his property and income before such
court or before a commissioner appointed by it at a specified
time and place; and proceedings may thereupon be had for
the application of the property and income of the judgment
obligor towards the satisfaction of the judgment. But no
judgment obligor shall be so required to appear before a
court or commissioner outside the province or city in which
such obligor resides or is found. (38a)
If you are the judgment creditor, you have to help the
court in finding properties to be levied. If you find that
there are properties hidden by the judgment debtor then
you must immediately inform the court.
Remedies in Aid of Execution
Section 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 remain
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
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entity, or any officer, or member thereof, to appear before
the court or a commissioner appointed by it, at a time and
place within the province or city where such debtor resides or
is found, and be examined concerning the same. The service
of the order shall bind all credits due the judgment obligor
and all money and property of the judgment obligor in the
possession or in the control of such person corporation, or
juridical entity from the time of service; and the court may
also require notice of such proceedings to be given to any
party to the action in such manner as it may deem proper.
(39a)
Examination of Judgment Obligor you can ask the court
to subpoena the judgment debtor and let him testify
under oath regarding his property holdings that could be
levied upon. Any false testimonies would mean perjury.
You can also ask the obligor of the judgment debtor to be
subpoenaed to the court and be asked regarding his
obligations to the judgment debtor. He will be asked to
pay his obligation to the court and garnish it instead.
Section 38. Enforcement of attendance and conduct of
examination. A party or other person may be compelled,
by an order or subpoena, to attend before the court or
commissioner to testify as provided in the two preceding
sections, and upon failure to obey such order or subpoena or
to be sworn, or to answer as a witness or to subscribe his
deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the
proceedings may be adjourned from time to time, until they
are completed. If the examination is before a commissioner,
he must take it in writing and certify it to the court. All
examinations and answers before a court commissioner must
be under oath, and when a corporation or other juridical
entity answers, it must be on the oath of an authorized
officer or agent thereof. (40a)
Section 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. (41a)
The obligor of the judgment debtor may pay his
obligation directly to the judgment creditor and he will
now be free of such obligation to the judgment debtor.
That is one way of extinguishing an obligation.
Section 40. Order for application of property and income to
satisfaction of judgment. The court may order any
Based on the discussion by Dean Alex Monteclar
property of the judgment obligor, or money due him, not
exempt from execution, in the hands of either himself or
another person, or of a corporation or other juridical entity,
to be applied to the satisfaction of the judgment, subject to
any prior rights over such property.
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of
his family, the court may order that he pay the judgment in
fixed monthly installments, and upon his failure to pay any
such installment when due without good excuse, may punish
him for indirect contempt. (42a)
Garnishment of income more than enough for the
support of his family is possible.
o Can salary be garnished? YES provided it is in
excess of what is needed to support his family.
o It can be made in monthly installment.
o Court can direct the employer to set aside certain
amount sweldo 100k for support 90k only -
maybe 10k for the obligation.
Section 41. Appointment of receiver. The court may
appoint a receiver of the property of the judgment obligor;
and it may also forbid a transfer or other disposition of, or
any interference with, the property of the judgment obligor
not exempt from execution. (43a)
Section 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 other- wise, 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 state upon execution, and the proceedings
thereon shall be approved by the court before the execution
of the deed. (34a)
Ascertainable Interest, like to assign the redemption or a
right of mortgagee to foreclose a mortgage. You can sell
that and you can use the proceeds to pay his obligations
to you.
Section 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 denied the debt, the court may authorize,
by an order made to that effect, the judgment obligee to
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institute an action against such person or corporation for the
recovery of such interest or debt, forbid a transfer or other
disposition of such interest or debt within one hundred
twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may
be modified or vacated at any time by the court which issued
it, or by the court in which the action is brought, upon such
terms as may be just. (45a)
If a third person in possession of the property deny that
it belongs to the judgment debtor, instead claims
ownership to the property.
o The court here will allow the judgment creditor to
step into the shoes of the judgment debtor to file
case against that third person.
ONLY IF THERE IS STRONG PROOF THAT THE
PROPERTY REALLY BELONGS TO THE
JUDMENT DEBTOR.
For example, the property levied is a Car. That car is in
possession of the third person saying that he is the real
owner of it. Then the court will allow you to file a case
against him. If proven that it is really a property of the
judgment debtor, it shall be delivered to the sheriff for
the execution.
Section 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. (46a)
Section 45. Entry of satisfaction with or without admission.
Whenever a judgment is satisfied in fact, or otherwise than
upon an execution on demand of the judgment obligor, the
judgment obligee or his counsel must execute and
acknowledge, or indorse an admission of the satisfaction as
provided in the last preceding section, and after notice and
upon motion the court may order either the judgment
obligee or his counsel to do so, or may order the entry of
satisfaction to be made without such admission. (47a)
Section 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
Based on the discussion by Dean Alex Monteclar
opportunity at the surety's request to join in the defense.
(48a)
Once the judgment is already satisfied, the sheriff will
render a report to the court and the clerk of court will
enter it into the book of satisfaction of judgment.
The best evidence to prove that the obligation has
already been satisfied is the report of the sheriff, the
admission of the judgment creditor that he was already
paid. If the judgment creditor could no longer be found,
the judgment debtor may be allowed to present proof of
satisfaction of obligation such as a receipt.
The principal is bound by the judgment against the surety
if the surety was made a party to the case. The surety
must be made a party to the case.
Section 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 missed in relation
thereto, conclusive between the parties and their
successors in interest, by title subsequent to the
commencement of the action or special proceeding,
litigating for the same thing and under the same title and
in the same capacity; and
(c) In any other litigation between the same parties or
their successors in interest, that only is deemed to have
been adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or
necessary thereto. (49a)
The effect of judgment or final order is that it is
conclusive as to ownership.
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You cannot revive the case with the same issues and the judgment on grounds such as lack of jurisdiction, due process,
same parties. It constitutes Res Judicata. etc.

o . Requisite of Res Judicata Different Modes of Appeal:

Judgment must be final 1. Ordinary Appeal

Court must have jurisdiction a. Mere notice of Appeal

Judgment must be upon the merits b. Records on Appeal

There must be between the two cases: 2. Petition for Review (RTC, exercising appellate
jurisdiction, to CA)
Identity of the party
3. Petition for Review (Quasi-judicial body to the CA)
Identity of subject matter
4. Petition for Certiorari (CA to SC or RTC to SC if pure
Identity of cause of action question of law)

Section 48. Effect of foreign judgments or final orders. The RULE 40

effect of a judgment or final order of a tribunal of a foreign APPEAL FROM MUNICIPAL TRIAL COURTS
country, having jurisdiction to render the judgment or final TO THE REGIONAL TRIAL COURTS
order is as follows:
Appeal from the Decision of MTC:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order, is conclusive upon the Shall be appealed to the RTC which exercises jurisdiction
title to the thing, and over the area where the MTC is located.

(b) In case of a judgment or final order against a person, Ex: MTC of Daan Bantayan appeal to RTC of Bogo
the judgment or final order is presumptive evidence of a
MTC of Liloan or MTC of Consolacion RTC of
right as between the parties and their successors in
Mandaue
interest by a subsequent title.

In either case, the judgment or final order may be repelled by

Period of Appeal:
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. (50a) a. Notice of Appeal 15 days

b. Records on Appeal 30 days

Effect of foreign judgment or final order

In a case of judgment upon a specific thing, the Appeal by Notice of Appeal:

judgment is conclusive upon the title to the thing; and
In case of judgment against a person, the judgment is
presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title.
Notice is hereby given that defendant received the decision
of this honorable court dated xx xx and received on xx xx xx.
Not satisfied with the said decision, defendant hereby
appeals the ruling to the Regional Trial Court.

In either case, the judgment or final order may be Its usually just one sentence but you must state the
repelled by evidence of a want of jurisdiction, want of following:
notice to the party collusion, fraud, clear mistake of law
or facts. a. The decision you are appealing

b. Material Dates (Material Data Rule):

Take note that a foreign judgment cannot be executed here i. Date you received the decision
in the Philippines. If you want it executed here, you must file
an action for recognition of foreign judgment. It is not ii. Date you filed your notice
automatic. This will give the other party to object to such
iii. Date of the decision was promulgated

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Based on the discussion by Dean Alex Monteclar
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The date of the decision may be omitted, but its
important you state the first two because the date of
receipt and date of filing determines the timeliness
of the filing.
Appeal by Records on Appeal:
Required only in Special Proceedings (Settlement of
Estate, Probate of Will, etc.) or in multiple appeals
Even if you are appealing by Records on Appeal, you
still have to file a Notice of Appeal along with it.
A longer period is given to the appellant to give him
more time to prepare the records. The period of 30
days may be extended for Records on Appeal, but in
Notice of Appeal you cannot ask for an extension of
time.
Perfection of Appeal:
As to Appellant- From the time he files the Notice of
Appeal or approval of Records on Appeal
As to Appellee- Only perfected after the lapse of the
period to appeal
Because the appellee may also appeal if he
is not satisfied with the judgment
Payment of Docket Fees:
When you file your appeal, you have to pay the
docket fees in the very same court that renders the
decision you are questioning.
But you are also allowed to file your Notice of
Appeal first, then pay the docket fees later, provided
it is still within the 15-day period to appeal.
Duty of Clerk of Court:
Upon perfection of appeal (filing of Notice of Appeal
+ Payment of Docket Fees), the Clerk of Court of the
MTC must immediately gather, complete, and
prepare the entire records and forward it to the RTC.
Upon receipt of the RTC of the records, the Clerk of
Court of RTC must first examine whether the records
are complete. If incomplete, the lower court may be
ordered to complete such records.
Based on the discussion by Dean Alex Monteclar
Appellants Memorandum:
Once the records are complete, the RTC will issue an
order directing the Appellant to file your
Appellants Memorandum or Memorandum on
Appeal within 15 days, copy furnished the appellee.
(NB: No Appellants Brief in MTC. Thats in RTC and
you are given 45 days).
Appellee is given 15 days to file his Appellees
Memorandum upon receipt of the Appellants
Memorandum.
Appellants Memorandum is mandatory and failure
to file such is a ground for dismissal of the appeal.
While the submission of the Appellees
Memorandum is not mandatory.
After the lapse of period for the Appellee to file his
memorandum, regardless if one was filed or not, the
case will be declared submitted for decision.
Caption of the Case:
The caption will remain as is and will not be
changed. The words Appellant and Appellee will
just be inserted, as the case may be.
Ex. Defendant loses and appeals: Plaintiff-
Appellee vs. Defendant-Appellant
New Rules provide that in appeal; retain the same order of
parties in the caption.
If X vs Y, still X vs Y, just indicate: Plaintiff-Appellee
Defendant-Appellant.
So add the words Appellant and Appellee
When is the case submitted for decision?
The case is deemed submitted for decision of the RTC
when the last pleading is filed.
o MTC to RTC, last pleading is the appellees
memorandum or position paper if required by the
court.
Section 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
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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.
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.
When the MTC orders the dismissal of a case without
going to trial due to lack of jurisdiction, the RTC will
determine whether MTC is correct or not correct in
dismissing the case.
o If the RTC finds that MTC is CORRECT in dismissing
the case (that MTC doesnt have jurisdiction) RTC
will then ASSUME JURISDICTION as if the case was
filed directly with the RTC, provided it has
jurisdiction.
If the RTC doesnt have jurisdiction and belongs
to another tribunal (ex: DARAB for an ejectment
case with an agricultural landlord-tenant
relationship), it shall dismiss the appeal and
advise the appellant to file with the proper
tribunal.
EX: You file collection of money of 1M in the MTC
obviously the correct jurisdiction is with RTC. MTC will
dismiss the case because it does not have jurisdiction.
o If the RTC finds that MTC is WRONG in dismissing
the case (that it does have jurisdiction it should
not have dismissed it) RTC will remand the records
of the case.
Section 9: The rules found in the next rule (Rule 41) shall
also apply to Rule 40. This is in line with the uniformity of
the Rules in the Trial Courts (MTC & RTC).
o Except when the rule specify that a particular
rule such shall apply only to the MTC/RTC
Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS
Based on the discussion by Dean Alex Monteclar
Final decisions of the RTC in the exercise of its
original jurisdiction are appealable to the court of appeals.
Final in the sense that its already an adjudication on the
merits of the case, and not an interlocutory order.
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. (n)
The last paragraph of the amendment (AM 07 7-12 of
2007) of Sec 1 provides that Certiorari is the proper
remedy for the foregoing if there is grave of abuse of
discretion amounting to lack or in excess of jurisdiction,
and not anymore appeal.
Different Modes of Appeal in the RTC (in so far as the
decision of the RTC is concerned)
1. Ordinary Appeal (Rule 41)
Refers to an Appeal from the decision of the RTC in
the exercise of its ORIGINAL JURISDICTION.
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Appeal by Notice of Appeal. 15 days from receipt of
Judgment that is adverse to you.
OR File a Notice of Appeal + Records on Appeal
if the case is a special proceedings or incase
multiple or separate appeals (30 days)
[Memory Aid: Original = Ordinary]
2. Petition for Review (Rule 42)
Refers to an Appeal from the decision of the RTC in
the exercise of its APPELATE JURISDICTION.
3. Appeal by Certiorari (Rule 45)
Questioning the decision of the RTC in the exercise
of its ORIGINAL JURISDICTION straight to the
Supreme Court (skip CA).
This is allowed if your appeal is a on pure questions
of law (no factual issues involved).
Period of Appeal
Ordinary appeal 15 days
Records on Appeal 30 days
Habeas Corpus 48 hours
Effect of Filing of Motion for Reconsideration or Motion for
New Trial in an Ordinary Appeal
Within the 15-day period, you may file a Motion for
Recon or Motion for New Trial instead of filing a
notice of appeal.
This interrupts the running of the 15-day period, and
upon denial, you will have the remaining balance.
But the Neypes Case has amended this rule, and
you are given a fresh period of 15 days.
Motion for Extension of Time to File New Trial or
Reconsideration is not allowed, nor are you not
allowed to file Motion for Extension of Time to File
Notice of Appeal.
However, you are allowed to Motion for Extension
of Time to file Record on Appeal.
Based on the discussion by Dean Alex Monteclar
Payment of Appellate Court docket Fee and other Lawful
Fees
Same as MTC: When you file your Notice of Appeal,
you pay the docket fee at the same time, in the same
court whose judgment you are questioning. Thus
you pay the docket fee in the RTC and not CA.
Sec 5
Contents of Notice of Appeal
o Caption
o Title of the case
o Material dates when you receive the decision
and when did you file the notice of appeal
Failure to allege these material dates will result
to the denial of your appeal
Sec. 6
Contents of Record on Appeal
o Summary of everything that transpired in the
court : from the moment the case was filed
o When was the case filed, when the defendant
receive the summons etc
o Attach all the pleadings (complaint, summons,
answer, reply etc)
o Discuss the errors committed by the court
As it contains a lot of documents, you can
file an extension of time to appeal
Sec 7
Record on Appeal is subject to the approval of the Court
o The other party is given 5 days to examine and
object it, if no objection then approval by the
court
o The court may order an amendment which should
be complied it within 10 days
o The approval of the record on appeal is the time
the appeal is perfected
Different from notice of appeal: perfected
as to the appellant is the time of the filing
of notice of appeal
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Sec 8
Joint Record on Appeal -When both parties filed record
on appeal
The court may extend the period to file records on
appeal.
Sec 9
How appeal is perfected:
Record on Appeal: upon approval of record on appeal
Notice of Appeal: Deemed perfected from the moment
the appellant files his notice of appeal but perfected only
as to him.
o THUS, IT IS NOT YET PERFECTED TO THE OTHER
PARTY WHY?
o Because that other party, the winner of the
case, can also appeal the decision he is
not yet contented of the decision
EX: Kaso ta, daug ka. But then you appealed because you feel
that the court is also wrong in its decision. You are not
contented of the damages given.
Q: So when will the appeal deemed perfected to the other
party who did not appeal?
A: It is deemed perfected when the time to appeal of the
other party EXPIRES.
SIMPLIFY: Ang imo Kuntra ni appeal na perfected ONLY
as to him ra na.
o On your part: You received the decision. You won
the case. You dont want to appeal. However, you
still have that 15-day period to appeal WHEN
THAT 15 DAYS EXPIRE APPEAL IS DEEMED
PERFECTED AS TO YOU.
So the appeal is deemed perfected AS TO
BOTH PARTIES when the APPELLANT FILED
an appeal AND when the period to appeal
of the APPELLEE EXPIRES
Effect of the Perfection of the Appeal the court loses
jurisdiction. Jurisdiction transfers to the Appellate
Court.
BUT, even if the RTC loses its jurisdiction, the court of
origin still retains RESIDUAL JURISDICTION
Based on the discussion by Dean Alex Monteclar
o When will the Residual Jurisdiction Expires? Until
the records of that case are transmitted to the CA.
o Residual Jurisdiction the court of origin can still
entertain motions for the preservation of the
protection of the rights of either party if the
records of the case is not yet transmitted. This
includes:
Issue protective order
Approve compromises
Permit appeals of indigent litigants
Order discretionary execution
Sec 10
Duty of the Clerk of Court
Within 30 days after the 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
record on appeal, as the case may be, and to make
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.
o If the efforts to complete the records fail, he
shall indicate in his letter of transmittal the
exhibits or transcript not included in the records
being transmitted to the appellate court, he
reason for their non-transmittal, and the steps
taken or that could be taken to have them
available.
Under the new rules, parties will not rely on the
stenographic notes as it is required to have a judicial
affidavit (direct testimony)
In cross-examination, stenographic notes are still needed
Sec. 11
Transcript is in 5 copies
Sec. 12
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Records of the case shall be transmitted within 30
days from the perfection of the appeal
Sec 13
Dismissal of the appeal:
o Motu proprio or on motion dismiss the appeal
on the following grounds:
a. Appeal taken out of time
b. Non-payment of docket and other lawful
fees within the reglementary period.
JANUARY 13, 2016
To recap:
Rule 40 MTC to RTC
. How to appeal (MODES OF APPEAL)
Notice on appeal only if the case decided by the
MTC is an ordinary civil action (collection of sum of
money, breach of contract, ownership of land,
recovery of personal possession)
Record on appeal in special proceedings and
multiple appeal
o Actually this also requires notice on appeal
file the notice, then transmit the records.
Rule 41
APPEAL FROM RTC TO CA
Decisions of the RTC in the exercise of its original
jurisdiction are appealable to the court of appeals.
Modes of Appeal appeals here is the same with the Appeal
from MTC to RTC
Ordinary Appeal under Rule 41
o As discussed in Rule 40, it only take 5-
10mins to accomplish this
o By Record of Appeal also discussed
already in rule 40
Petition for Review under Rule 42 appeal from the
Decision of the RTC in the Exercise of its Appellate
Jurisdiction
o So the case actually started in MTC and
appeal to the RTC when the latter decides
Based on the discussion by Dean Alex Monteclar
the case and you are not contented you
can appeal to the CA by Petition for Review
not by ordinary appeal
Appeal by Certiorari under Rule 45 appeal directly
to the Supreme Court; you dont have to go to CA
o This is only allowed if you will appeal on
pure questions of law
o If there is question of facts/ mixture of facts
and law, you will have to pass CA
Rule 42
PETITION FOR REVIEW FROM RTC TO CA
This refers to the petition for review to the CA from
the decision of RTC in the exercise of its IN ITS APPELLATE
JURISDICTION.
RECALL:
If in Original Jurisdiction Rule 41
If APPELLATE JURISDICTION of RTC RULE 42
A. How appeal taken:
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. 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. (n)
By verified petition;
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Paying at the same time the docket fees and other of P500
lawful fees with the CA;

Deposit P500 for cost;

B. Forms and Contents of Petition for Review:
Furnish the RTC and adverse party a copy of the
petition. Section 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
When to file: by the petitioner, and shall (a) state the full names of
the parties to the case, without impleading the
Within 15 days from notice of decision OR denial of lower courts or judges thereof either as petitioners
motion for reconsideration or new trial; or respondents; (b) indicate the specific material
o Basis of the fresh 15 days dates showing that it was filed on time; (c) set forth
concisely a statement of the matters involved, the
o File it DIRECTLY TO THE CA issues raised, the specification of errors of fact or
law, or both, allegedly committed by the Regional
The CA may grant extension of time to file petition Trial Court, and the reasons or arguments relied
for 15 days ONLY after complying with the prior upon for the allowance of the appeal; (d) be
conditions of payment of docket fees and cost of accompanied by clearly legible duplicate originals or
P500. true copies of the judgments or final orders of both
lower courts, certified correct by the clerk of court of
o Can it be EXTENDED? YES.
the Regional Trial Court, the requisite number of
You must first comply with plain copies thereof and of the pleadings and other
condition precedent PAYMENT material portions of the record as would support the
OF DOCKET FEES - IMPORTANT allegations of the petition.

There should only be 1 extension allowed The petitioner shall also submit together with the
petition a certification under oath that he has not
No further extension except for most compelling theretofore commenced any other action involving
reason. the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other
o What are the compelling reasons? ITS UP
tribunal or agency; if there is such other action or
TO THE CA
proceeding, he must state the status of the same;
and if he should thereafter learn that a similar action
Distinctions between Rule 41 and Rule 42 or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different
Rule 41 Rule 42 divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts
Decisions of RTC in exercise Decisions of RTC of its
and other tribunal or agency thereof within five (5)
of its ORIGINAL APPELLATE JURISDICTION
days therefrom. (n)
JURISDICTION
Petition shall be in 7 legible copies;
If original action filed in RTC, File a Petition for Review
mode of appeal is Notice of within 15 days where you o Out of that 7 copies you must specify
Appeal perfected by mere have to discuss the errors which is the ORIGINAL
filing; or Record on Appeal; committed by the RTC
State the full names of the parties without
File an Appellants Brief No need to file an impleading the lower court judge as respondent;
Appellants Brief
o Why not to implead the judge? Because you
Docket fees to be paid at Docket fees to be paid at CA can only implead the judge when it is a
RTC Petition for Certiorari his grave abuse of
discretion NOT IN PETITION FOR REVIEW
No requirement for deposit Required to deposit P500

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Indicate specific material dates
o Material Data Rule if you appeal, you
must specify the material dates of when
you appeal, when you received the decision
(reckoning point of 15-day period to
appeal), when you filed your appeal or
Petition for Review;
Set forth concisely a statement of the of the matters
involved, issues raised, specification of errors of
facts or law OR both;
Reasons or arguments relied upon for the allowance
of the appeal;
Accompanied by clearly legible duplicate original or
true copy of the judgment or final orders appealed;
o To be a duplicate original copy it must
contain the Stamp of the Court
o PHOTOCOPIES NOT ALLOWED! THIS WILL
RESULT IN DENIAL OF THE APPEAL!
Submit a certification of non-forum shopping.
o Non-forum Shopping certification that no
other case pending in other case similar to
the present case.
So, File Petition for Review and pay at the CA. Then
deposit for costs. Then FURNISH copies to the RTC
and other party. Then comply with the
requirements as to the contents and form.
NB: Appeal here may be on question of fact, question of
law, or both facts and law.
C. Effects of failure to comply with requirements:
Section 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. (n)
DISMISSAL
D. Action on the petition by the CA:
Based on the discussion by Dean Alex Monteclar
Section 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 insubstantial to
require consideration. (n)
Require the respondent to comment within 10 days,
OR
Dismiss the case outright.
o If unmeritorious
When can the C.A dismiss your petition for review outright:
1. patently without merit
2. prosecuted manifestly for delay
3. question raised are too unsubstantial to
warrant consideration
petition for review as a mode of appeal is not a matter of
right, and so you have to strictly comply with the
requirements of the law
if the court requires the respondent to file comment, he
must file within 10 days from receipt of order of CA
must be in 7 copies
accept the statement of the matters involved as
presented by petitioner, or point out the inaccuracies, or:
statement of reasons why the petition be denied.
The CA will decide whether there is prima facie evidence of
error of fact or law by the lower court.
If yes, it will issue an order or resolution that it will
give due course to the petition. Then it will require the lower
court to elevate the records of the case , both documentary
and testimonial, for judicial review. Elevate the record
within 15 days from notice.
WHEN IS AN APPEAL DEEMED PERFECTED:
RULE 41
Notice of appeal - appellant: moment you file the notice
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appellee: expiration of time to appeal
Records on appeal - upon the approval of the court of your
records on appeal
RULE 42
Petition for review - Petitioner: moment you file the petition,
and payment of fees.
Respondent: expiration to file appeal.
EFFECTS
1. The trial court loses jurisdiction over the case
2. Just like in Rule 41, it still has residual jurisdiction until
the records are elevated
Residual jurisdiction the RTC may still act on certain
matters, e.g.: order for preservation or protection of
rights of parties, allow appeal by indigent litigants, grant
discretionary judgment.
3. Appeal STAYS judgment, except rule on summary
procedures which is immediately executory like
ejectment.
PETITION FOR REVIEW under RULE 43
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 Invention Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration Commission,
and voluntary arbitrators authorized by law.
Appeal the decision from a quasi-judicial body in the
Based on the discussion by Dean Alex Monteclar
exercise of its quasi-judicial power. Decisions of quasi-
judicial bodies from the exercise of their administrative
functions are not appealable.
Section 2. Cases not covered. This Rule shall not apply to
judgments or final orders issued under the Labor Code of the
Philippines.
CTA is not included, it is already appealable to the SC
pursuant to R.A. 9282
SEC is also not included because SEC now does not
have quasi-judicial powers, it is now lodged to RTC.
NLRC and DOLE decision, they are not covered BUT
pursuant to St Martins doctrine in connection with
the hierarchy of courts, it is now appealable to the
CA, but not under this RULE 43.
RTC decision as a corporate court is appealable still
to the CA, not under Rule 41, but under Rule 43 as
clarified in R.A. 8799
Section 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.
ISSUES YOU CAN ELEVATE:
questions of fact
question of law , unlike rule 42 where pure questions
of law are elevated to SC
questions of both fact and law
Section 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.
PERIOD TO APPEAL
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15 days from receipt of judgment or order denying
motion for recon or new trial
only one motion for recon is allowed
motion for extension can be granted only for 15 days
after payment of required fees
Procedures in rule 42 and rule 43 are very similar mao sad
nay ilang title pariha rasad - Petition for the review.
How is an appeal from the decision of a quasi-judicial body
taken to the CA?
It is taken by way of a petition for review. You have to file a
verified petition in 7 copies, proof of service to the adverse
party and the court or agency a quo and payment of the
docket fee and other lawful fees.
What are the contents of your petition?
1. state the full names of the parties
2. concise statement of facts
3. copy of the original judgment
4. certification of non-forum shopping
Petition for review although it is an appeal it is treate4d like
an initiatory pleading to the appellate court that is why to
have put a certification of non-forum shopping. You have to
state a very strong _____ action that you have filed in any
other court or pending in any other court.
What is the effect if you failed to comply with the
requirements of appeal under rule 43?
Your petition will be dismissed.
What are the actions to be taken by the court of appeals?
Same with rule 42, either require the respondents to
comment or dismiss for denying your appeal outright.
On what reason?
That your appeal is patently without merit, prosecuted
manifestly for delay or that your argument is too
unsubstantial to warrant consideration.
Based on the discussion by Dean Alex Monteclar
If the court of appeals will require the respondent to file his
comment, the comment of the respondent has to be made in
seven copies, he must point out the inaccuracies in the
petition, state the reason why the petition should be denied
and it must be filed within 10 days.
If the court finds that there is prima facie evidence of error,
the court will give due course to the petition. The finding of
fact of the court or agency concern well supported by
substantial evidence shall be binding on the CA. after the
court gives due course to the petition, the record shall now
be transmitted to the CA.
What is the effect of your appeal?
It will NOT STAY the award judgment or final order soon to be
reviewed unless the court of appeals provides otherwise.
Difference with the petition for review under rule 42:
In rule 42, it stays the judgment. In rule 43, it will not stop the
execution not unless the CA provides otherwise.
After the comment is filed, the CA may require the parties to
submit their respective memorandum or orally argue the case
and thereafter a case is deemed submitted for resolution.
Question by Bing re: different period of appeal in LC
Sirs answer: Its the rules of court I think that should prevail,
because its a matter of procedure. In case of conflict
between the provisions of the rules of court and the labor
code, to resolve the issue, I think would be to determine what
is the nature of that provision, is it procedural or substantive?
If it is procedural, you talk about appeals, then the rules of
court should prevail because it is a procedural law. When it is
a substantive law, then it creates a right then you follow the
substantive law.
Decisions of quasi-judicial bodies are given much respect by
the CA so the appellate court will give so much weight to
them an as much as possible factual findings of the court
below shall not be disturb by the appellate court not unless
there is glaring error committed.
PROCEDURES IN THE CA
ORDINARY APPEALED CASES
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Decisions of the RTC in the exercise of its original jurisdiction naman nmu sa ordinary appeal, daan naman na nmung
that are appealed to the CA where the mode of appeal is by gibayran as RTC level.
ordinary appeal, it could be either notice of appeal or by
records on appeal. After the appellee files the appellees brief, the appellant is
also given time to file a reply brief. He is given only 20 days.
The title of the case in the court of origin shall remain the
only thing that will be added is the word appellant and
appellee. The same procedures in rule 40, you remember sa In the case of Certiorari, prohibition, mandamus, quo
MTC when you appeal the decision of the MTC to the RTC, warranto, you dont have to file an appellants brief. Instead,
dont disturb the caption, mao lang ghapun nah ang plaintiff you are required to file a memorandum which you have to do
defendant pun an lag who is the appellant who is the within 30 days.
appellee. The same procedure is observed in the appeals in
the RTC to the CA. What are the contents of an appellants brief?
The counsel or guardian of a party in the court below shall be 1. subject index
considered to be the same counsel or guardian if the CA is
not informed of any change thereof. So the CA has the right 2. assignment of error
to presume that your lawyer in the RTC is the same lawyer
that you are hiring the CA. if you did not inform the CA about 3. statement of the case
it, notices might be served to your counsel on record. Once 4. statement of facts
the appeal is perfected, the CA will order the transmittal of
the records of the case to the CA. when the records of the 5. statement of issues
case reach the CA, the CA will now docket the case. Docket
6. arguments
means to assign a docket number to that particular case. And
thereafter, the clerk of court of the CA will notify the parties 7. relief
that the records are already with them and thats the time
that the appellant will be ordered by the court of appeals to In any appeal, a copy of the decision that you are questioning
file his appellants brief. If it is an appeal by records on must be attached to your appeal and dont just attach a Xerox
appeal, in the case of appeal the record of appeal ang imung copy, it should be the duplicate original copy or a certified
record of appeal will have to be approved first by the court of true copy otherwise the appellate court will not accept it.
origin RTC so when the records are already forwarded, the CA
will order the appellant to submit the approved record on
What is this assignment of errors?
appeal to the CA and approved by the RTC within the period
of 10 days. When it is an appeal by mere notice of appeal, Here you will enumerate to the CA what are the errors
what the CA will order is for the appellant to file appellants committed by the RTC in deciding the case. So you will state,
brief within 45 days. assignment of error number 1. the RTC committed an error in
deciding that bla bla bla and so on. You have to discuss every
The appellant is given 45 days to file his appellants brief. Copy
assigned error.
furnished the appellee. Once the appellee receives a copy of
the appellants brief, he is also given the same period of 45
days to file his appellees brief. Failure of the appellant to file Statement of the case
his appellants brief will surely result to the dismissal of the
case. Failure of the appellee to file the appellees brief does Very brief, what is the case all about
not mean that he already lost the case. The filing of the
appellees brief is not mandatory, its optional. But the
Statement of facts
appellants brief, mandatory gyud na.
You present the facts from your point of view because the
appellee might have another version.
Can you ask for extension of time to file your appellants
brief?
Remember, in ordinary appeal from the decision of the RTC
YES. If you think the 45 day period is not enough for you to
to the CA, the only error because you will be made to
prepare the appellants brief, yes you can. Requirement kay
enumerate the assigned errors of the lower court, only those
bayad una sa docket fee. Anyway ang docket fee gi bayran

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that are assigned as errors will be considered by the CA in its
decision. Errors to be considered in the CA only errors that
are specifically assigned and are reviewed in the brief will be
considered. But there are exceptions:
1. errors affecting jurisdiction over the subject matter
because lack of jurisdiction of the court may be
raised even on first time on appeal
2. plain and clerical errors
3. unassigned errors closely related to or dependent
upon an assigned error and properly argued in the
brief
kung wala na nimu na mention sa assignment of errors pero
imu nang gi discuss and it is related to an assigned error, that
will be considered by the court.
After the appellants brief is filed, the appellee will now file
his appellees brief
Contents of Appellees Brief
1. subject index
2. counter statement of facts
3. arguments
Counter statement of facts
If you did not agree with the way the facts of the case was
presented by the appellants. So you will say pagbasa nmu sa
appellants brief, dili man ni mao ang iyang pag suwat sa
facts kay naturally when the appellants brief made the facts,
kana jung pabor niya. If you are the appellee and you are not
satisfied of the way the case is presented to the court, you
may make a counter statement of facts. So you may state in
your appellees brief due to the inconsistencies or
inaccuracies of the presentation of the facts of the case,
appellee hereby present the true facts of the case as follows
then you present your side.
Arguments
Based on the assigned errors. The appellants brief duna may
assignment of errors, error 1, error 2, etc. Inig file nmu sa
imung appellees brief you will have to do it also by refutation
of the first assigned error then you discuss. Then refutation of
the second assigned error, then you make your own
discussion and your own argument why the court should not
grant the appeal or should deny the appeal.
Based on the discussion by Dean Alex Monteclar
Questions that you may raise on appeal:
Any question of law or fact that has been raised in the court
below.
Factual findings of the lower court are to be respected by the
appellant court. Why?
As much as possible, the appellate court will not destroy the
factual findings of the lower court because it is the lower
court which has the opportunity to observe the demeanor of
the witness. Kung namakak ba na ang witness or wala,
mabantayan na sa trial court judge, mao nah siya ang maka
observe sa demeanor sa witness kung nag sulti ba xa sa tnoud
or wala. Ang appellate court justices, wala man nah sila kita
sa taw, wala na sila kibaw bakakon ba ni nga witness or dili.
They just rely on the transcript and the records, ang nakakita
gyud sa mga witnesses ang trial court judge. So the factual
findings of the trial court as much as possible should not be
disturb by the appellate court not unless there is glaring error
committed in the appreciation of the facts of the case.
Third kind of petition for review and they call that PETITION
FOR REVIEW ON CERTIORARI UNDER RULE 45 or we call that
APPEAL BY CERTIORARI TO THE SC
When you appeal a case to the SC, you do it only by way of
certiorari under rule 45.
Decisions appealable to SC under rule 45:
Decisions of CA, CTA, SB & RTC (on pure question of law)
These are the decisions nga imung ma appealar ngadto sa SC
under rule 45.
o Under Rule 45, only questions of law may be raised
because SC is not a trier of facts.
Exceptions:
1. Writ of Amparo
2. Habeas Corpus
3. Writ of Kalikasan
Question of Fact vs Question of Law
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o There is a question of fact when the doubt arises as to exercising judicial or quasi-
the truth or falsity of the alleged facts while a question of judicial functions has acted
law arises when there is doubt as to what the law is on a without jurisdiction, in excess
certain state of facts. of jurisdiction, or with grave
abuse of discretion
o The rule proscribing the raising of questions of fact is not amounting to lack of
an absolute one provided the petition shows any of the jurisdiction;
following:
4. Shall be filed within fifteen 4. Shall be filed not later than
1. The conclusion of the CA is grounded entirely on
(15) days from notice of sixty (60) days from notice of
speculations, surmises or conjectures;
judgment, final order or judgment, order or
2. The inference made is manifestly mistaken, absurd resolution appealed from; resolution sought to be
or impossible; assailed or from notice of
denial of a motion for
3. There is grave abuse of discretion; reconsideration or motion
for new trial;
4. The judgment is based on misapprehension of
facts; 5. Does not require a prior 5. As a general rule, it
motion for reconsideration; requires a prior motion for
5. The findings of facts are conflicting;
reconsideration;
6. The CA, in making its findings, went beyond the
6. Stays the judgment 6. Does not stay the
issues of the case and the same is contrary to the
appealed from; judgment or order subject of
admissions of both appellant and appellee.
the petition unless enjoined
7. The findings of fact of the CA are contrary to those or restrained;
of the trial court;
7. The petitioner and 7. The tribunal, board or
8. The findings of fact are conclusions without respondent are the original officer exercising judicial or
citation of specific evidence on which they are parties without impleading quasi-judicial functions is
based; the lower court; impleaded as respondent;

9. The facts set forth in the petition, as well as in the 8.Can be filed only in the SC; 8. As a special civil action,
petitioners main and reply briefs, are not may be filed with the RTC, CA
disputed by the respondents; or SC;

10. The findings of the CA are premised on the
supposed absence of evidence and contradicted
by the evidence on record. (RIANO)
DIFFERENCE BETWEEN RULE 45 AND RULE 65
PETITION FOR REVIEW ON PETITION FOR CERTIORARI
CERTIORARI (RULE 45) (RULE 65)
1. A mode of appeal; 1. A special civil action that is
an original action and not a
mode of appeal;
2. Seeks to review final order 2. May be directed against an
or final judgments; interlocutory order or
matters where no appeal
may be taken from;
3. Raises questions of law; 3. Raises question of
jurisdiction because a
tribunal, board or officer
9. In the exercise of appellate 9. The higher court exercise
jurisdiction and power of its original jurisdiction and
review power of control and
supervision over the lower
court.
o In Rule 45, you file your petition for certiorari or appeal
by certiorari within 15 days from receipt of the judgment
appealed from or from the denial of the motion for
reconsideration or new trial. Motion for extension may
be granted for 30 days. In petition for review under Rule
43 or 42, you can ask also for an extension for your
petition for review but only for 15 days. You have to pay
first the docket fee and the cost. There must also be
proof of service.
Contents of the petition:

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1. State the full names of the appealing party and the
adverse party;
2. Indicate the material dates (MATERIAL DATA RULE);
3. Set forth concisely a statement of the matter
involved and the arguments to support the petition;
4. Must be accompanied by the original or certified
true copies of the judgment;
5. Must contain a sworn certification against forum
shopping.
Grounds for the dismissal of certiorari before SC:
1. Failure to comply with the requirement of docket
fees and other lawful fees and the deposit for cost;
2. Failure to show proof of service to the other party;
3. Failure to observe the contents of the petition and
the documents that must accompany your petition;
Additional Grounds:
4. That the appeal is without merit;
5. Prosecuted manifestly for delay;
6. The questions are to unsubstantial to warrant
consideration.
o Petition for certiorari under rule 45 is discretionary on the
court and not a matter of right
o SC will grant your petition for certiorari when the court a
quo has decided a question of substance not theretofore
determined by the SC or has decided it in a way not in
accord with the law or the court a quo has so far departed
with the accepted and usual course of judicial proceedings
as to call for the exercise of its power of supervision.
o When you file a petition for certiorari before the SC, if it
finds prima facie evidence of error committed by the
lower court, the SC may require you to file your comment
or to file any other pleadings that may aid the SC in the
proper disposition of the case. Noncompliance warrants
the dismissal of your petition.
o As a rule, reply is not mandatory. You may or may not file.
But if the SC ask you to file a reply, you have to file
otherwise your petition will be denied.
Based on the discussion by Dean Alex Monteclar
o Rule 45 is applicable to both civil and criminal except in
criminal cases where the penalty imposed is death,
Reclusion Perpetua or Life Imprisonment.
Contents of the Petition:
Full names of the parties
Statement of the matters involved
Discuss the grounds relied upon
How many copies?
o CA 7 copies
o SC 18 copies
Accompanied by copy of the decision of the court you
want to appeal
o It must be an original copy or certified true copy
*Failure to comply: Ground for DISMISSAL
Jurisdiction of the Petitioner deemed acquired?
From the moment the petition is filed
Jurisdiction over the person of respondent acquired:
From the moment respondent receives the initial action
of the court ( where CA may outrightly deny the
petition or require the defendant to file his comment)
o if the CA decides to deny it, the CA will issue an order
denying the petition for lack of merit
o if the CA decides not to deny the petition, then the
CA will issue an order to the defendant to file his
comment and the CA acquires jurisdiction over the
defendant upon the defendants receipt of the
courts order to file his comment.
3
o WHY? Unlike in cases that are filed in the RTC or
MTC, when you file complaint the court will issue
summons with copy of the complaint. The moment
the defendant receives the summons, the court
acquires jurisdiction.
IN HERE, THERE IS NO SUMMONS. WHEN YOU
FILE CASE UNDER RULE 46, YOU MUST FIRST
3
From notes in the previous year.
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GIVE COPY OF THE PETITION TO THE OTHER
PARTY NOT THE COURT. - IMPORTANT
If you will not furnish copy to the respondent,
the petition shall be dismissed.
*So if you are the RESPONDENT
DONT FILE YOUR ANSWER RIGHT AWAY.
You must wait for the action of the court.
Action by the Court
Dismiss the case outright
Require respondent to comment within 10 days
from receipt of notice.
Determination of factual issues:
Usually CA does not call for a hearing.
The calling of hearing is just discretionary in the CA.
o What is the purpose of hearing? For determination
of fact
o So the court will just conduct a hearing if there are
factual issues that need to be determined.
BEFORE: CA are only in Manila, and so the hearing is
delegated to RTC judge in the place of residence of
the parties. Now, since there are now CA in Cebu
and Cagayan, it is now seldom to delegate to RTC
Judge of the power to conduct hearing
*How will CA conduct a hearing?
Either the CA justices will hear the case for
themselves.
A justice may receive evidence or he may delegate
that job to the RTC judge
o The RTC judge will receive in his behalf and will
just notify the CA that evidence is submitted.
*The CA may require for the other party to comment.
Effect of failure to file comment:
Court may decide on the basis of the records
Without prejudice to the imposition of disciplinary
action on the disobeying party
Based on the discussion by Dean Alex Monteclar
o there is no trial in default, although these
are original actions.
Rule 47
ANNULMENT OF JUDGMENT OF THE RTC
- This is not an appealed case, BUT AN ORIGINAL ACTION.
This is the only case in the original and exclusive jurisdiction
of the CA.
- Of all the Remedies, this rule is also called the Last Recourse
of the losing party in a civil action.
Coverage
The Court of Appeals may annul the judgment of the
RTC if the remedies of new trial, appeal, petition for relief
from judgment or other remedies are no longer available
through no fault of the petitioner. This is actually a
continuation of the remedies of a non-answering defendant.
We have already learned so many remedies:
If there is no judgment yetMotion to Lift the Order
of Default or to Set Aside the Order of Default
After rendition of judgment, within that 15 days to
make your appeal (not yet become final) Motion
for Reconsideration or New Trial
o Ground of FAME
If you want to appeal from judgment of the RTC in its
original jurisdiction Appeal to the CA under Rule
41
If the case originated at MTC appealed to the RTC
Appeal to the CA under Rule 42
If judgment became final and you were not able to
file the Motion for Reconsideration and New trial
Petition for Relief from Judgment under Rule 38
o Ground of FAME within 60 days from
receipt/knowledge of the decision but not
more than 6 months from the entry of
judgment
*If you were not able to avail of these remedies, and if 60
days from receipt/knowledge of the decision and 6 month
from the entry of judgment already expired, now you will
file ANNULMENT OF JUDGMENT.
Grounds:
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Extrinsic Fraud
Lack of Jurisdiction
In Motion to Lift the Order of Default, Motion for New Trial,
Petition for Relief from JudgmentFAME is a ground, but not
in Rule 47 Annulment of Judgment of the RTC.
Extrinsic VS Intrinsic
EXTRINSIC a fraud employed by one party in order to
prevent the other from appealing.
o He used this fraud to deny the other partys day in
court.
o Through this kind of fraud, the other party was not
able to avail of the remedies - Motion to Lift Order of
Default, Motion for New Trial and Petition for Relief
of Judgment - through no fault of his own.
INTRINSIC a fraud employed by one party during the
trial of the case.
o Using false documents, manufactured evidence, etc.
o But these are used during the trial that could have
been discovered by the other partys lawyer if only
he is diligent enough.
o NOT A GROUND for Annulment of Judgment of the
RTC
*only EXTRINSIC FRAUD can be used as a ground
NB. If the ground is extrinsic fraud, the petitioner must
allege that he failed to avail of new trial, appeal, or petition
for relief through no fault of his own. However, if the ground
of lack of jurisdiction is also included, then there is no need to
allege said condition precedent. (Ancheta vs Ancheta)
The Ancheta Case
This is a case of declaration of nullity of marriage on
the ground of Psychological Incapacity. Old man and old wife
separated and divided their property so there was voluntary
dissolution of conjugal partnership.
But tiguwang na man jd sla, the wife said that they
will just separate their properties. They decided that she
Based on the discussion by Dean Alex Monteclar
would own the ancestral house and a beach resort. Gikapuy
na guro sya, she decided to stay na jd sa BEACH RESORT.
Now the husband found another woman and
decided to marry her. He filed the nullity of marriage
gisabot nya ang iyang anak and the sheriff. TO SEND THE
SUMMONS TO THE ANCESTRAL HOUSE IN MANILA
knowing that wife no longer resides there SO WALA
KADAWAT SI WIFE,. But according to the record of the court,
nadawat na daw, when in truth the husband connive with
their son to receive the summons. In result, she did not
participated in the hearing.
The judge decided in default. Remember that it is
not allowed because in annulment or nullity of marriage, you
cannot declare a party in default. Ingon pd ni si Sr. Huwis
GRANTED!
*2 years after the judgment only when the wife
learned of the decision she went to a lawyer they filed
ANNULMENT OF JUDGMENT. The petition contained 2
grounds BUT IN EXTRINSIC FRAUD - THEY DID NOT ALLEGE
that they failed to avail of the remedy through no fault of
her own.
Because of this, the lawyer of the husband said that
the petition must be dismissed because it failed to
comply with the requirement. Ground for
Dismissal daw.
SC HELD: When you look at her petition, there are actually 2
grounds alleged. Extrinsic fraud and Lack of Jurisdiction
that the court did not acquired jurisdiction of the person of
the defendant because she received no summons. SO THEY
NEED NOT ALLEGE THAT they did not avail of the remedy
due to no fault of her own. - IMPORTANT
SIMPLIFY:
If Extrinsic Fraud ONLY you must allege that you
failed to appeal through no fault of your own
If it is with Lack of Jurisdiction you need not allege
*So if you will include the 2 grounds Ancheta Case tells
you that you need not allege. IMPORTANT
When to file action:
Extrinsic Fraud 4 years from discovery
Lack of Jurisdiction until barred by laches
o LACHES when? It depends upon the court
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Usually, the court can use this if the other party
is PREJUDICED by your inaction.
EX: the lot has already been sold to other party
then you filed the petition you will prejudice
his right already.
*Even if you have this principle of prescription 10 years if
good faith, 30 year if bad faith. Even if you still have that
prescriptive period, if other partys right is already involved,
THE COURT MAY USE LACHES. IMPORTANT you are
actually sleeping on your right Natug kas pansitan!
Contents:
Verified petition in 7 copies
Affidavit of witnesses or documents
o This affidavit is not required in Rule 46 -
difference
Certification of non-forum shopping
Action by the court:
Dismiss outrightly
Give due course to the Annulment of Judgment of the
RTC, then summons is served on the defendant
o DIFFERENCE IN RULE 46 rule 46 did not require
summons.
Remember that it is the party who will give
them copy of the petition, not the court.
o Here you need not furnish a copy to the other party.
File directly to the court and it is now the job of the
court to give copy to the adverse party.
*So here, the court acquires jurisdiction over
the respondent upon receipt of the summons.
IMPORTANT
*It will be treated as an ordinary civil action
Procedure: - the same as ordinary civil action before the RTC
You file
Summons will be sent
Court will required you within 15 days to comment
Based on the discussion by Dean Alex Monteclar
When the CA grants the Annulment of Judgment, what is
the effect? Judgment of the RTC will be set-aside or no
judgment at all.
Effect: It depends on the ground
Lack of Jurisdiction Judgment is set-aside without
prejudice to re-filing.
Extrinsic Fraud Trial de novo, as if timely motion for new
trial is filed
Section 8. Suspension 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. (n)
Section 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. (n)
Section 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. (n)
Here in Rule 47, we are talking about annulment of judgment
of the RTC by the Court of Appeals. Can there be annulment
of judgment of the MTC by the RTC? Yes (Sec. 10, Rule 47).
You just follow the same procedure in Rule 47.
RULE 48
Preliminary Conference
In original actions filed with the Court of Appeals, there will
also be a sort of pre-trial. This is governed by Rule 48
preliminary conference conducted by the CA.
Purpose of 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.
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(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. (Rule 7, CA Internal
Rules) (n)
The proceedings shall be recorded and the CA shall issue an
order that will govern the conduct of the proceedings
subsequent to the preliminary conference
Section 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. (n)
Section 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. (n)
RULE 49
Oral Argument
The CA may allow oral arguments upon motion of the parties
or upon the courts own volition
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. (n)
The oral argument shall be limited to such matters as the
court may specify in its order or resolution. (1a, R48)
If a party is represented by several lawyers, there will only be
one lawyer who will argue on behalf of such party
Based on the discussion by Dean Alex Monteclar
Section 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. (n)
When you file a motion with the Court of Appeals, you dont
set it for hearing because the CA will not conduct a hearing
on such motion. The hearing of a motion applies only in cases
before the trial courts (MTC/RTC).
Section 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. (29, R49)
RULE 50
Dismissal of Appeal
Grounds for dismissal of appeal before CA
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 5, Rule 40 and section 4 of
Rule 41; (Bar Matter No. 803, 17 February 1998)
(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;
Q: How many copies of the appellants brief should
be filed?
A: Seven (7) copies (Sec. 7, Rule 44)
(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;
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This is one of the grounds which is not compulsory. o Withdrawal of appeal as a matter of discretion
The CA may be lenient sometimes and will not take this into after appellees brief has been filed.
consideration.

(g) Failure of the appellant to take the necessary steps for RULE 51
the correction or completion of the record within the time Judgment
limited by the court in its order;
When case deemed submitted for judgment (Section 1)
(h) Failure of the appellant to appear at the preliminary
A. In ordinary appeals
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable cause; 1) Where no hearing on the merits
and
a) upon the filing of the last pleading, brief, or
(i) The fact that the order or judgment appealed from is not memorandum; or
appealable. (1a)
b) the expiration of the period for its filing.
What is the rule regarding dismissal of an improper appeal?
2) Where such a hearing is held
Section 2. Dismissal of improper appeal to the Court of
Appeals. An appeal under Rule 41 taken from the a) upon its termination; or
Regional Trial Court to the Court of Appeals raising only b) upon filing of the last pleading or
questions of law shall be dismissed, issues purely of law not memorandum; or
being reviewable by said court. Similarly, an appeal by notice
of appeal instead of by petition for review from the c) the expiration of the period for its filing.
appellate judgment of a Regional Trial Court shall be
dismissed. (n)
B. In original actions and petitions for review
An appeal erroneously taken to the Court of Appeals shall
1) Where no comment is filed upon the expiration of
not be transferred to the appropriate court but shall be
the period to comment;
dismissed outright. (3a)
2) Where no hearing is held
The following shall be dismissed:
a) upon the filing of the last pleading; or
1. Appeal under Rule 41 from RTC to CA on pure
questions of law; b) the expiration of the period for its filing.
o The proper mode of appeal from judgments
of the RTC on pure questions of law is not
an ordinary appeal to the CA under Rule 41 3) Where a hearing on the merits of the main case is
but appeal by certiorari to the Supreme held
Court under Rule 45.
a) upon its termination; or
2. Appeal by notice of appeal from the appellate b) filing of the last pleading or memorandum;
judgment of the RTC; or
o The proper mode of appeal should be c) the expiration of the period for its filing.
petition for review under Rule 42.

Can the appellant withdraw his appeal? Yes

Section 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. (4a)
o Withdrawal of appeal as a matter of right at any
time before the filing of the appellees brief.
Section 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. (n)
o Who will decide the case? In the Court of Appeals, a
case is assigned to only one division. There are only

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Based on the discussion by Dean Alex Monteclar
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three Justices in one division. One of them will be
assigned to pen or write the decision. He is called
the ponente. The other two Justices will just concur
with the decision of the ponente.
Section 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 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.
(2a)
o In the Court of Appeals, what is required for the
pronouncement of a judgment is the unanimous
decision of the three Justices, not majority vote.
o If they cannot arrive at a unanimous vote, they will
invite two other Justices from another division
forming a special division of five. Here, majority vote
is required for the pronouncement of a judgment or
final resolution.
Section 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. (7a)
What are the questions that may be decided on appeal?
1. Those closely related to or dependent on an
assigned error and properly argued in the brief;
2. Plain errors and clerical errors;
3. Errors affecting the jurisdiction over the subject
matter;
4. Errors affecting the validity of the judgment
appealed from stated in the assignment of
errors.
Based on the discussion by Dean Alex Monteclar
As a rule, only those errors assigned in the assignment of
errors will be resolved by the CA. However, there are
errors not mentioned in the assignment of errors which
the CA can take cognizance of.
Harmless errors or those not affecting the substantial rights
of the parties must be disregarded
Section 6. Harmless error. xxxx The court at every stage of
the proceeding must disregard any error or defect which
does not affect the substantial rights of the parties. (5a)
Section 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. (n)
o Promulgation of judgment in the CA takes place when
the three Justices will sign the decision. The first one to
sign will be the ponente and below the signature of the
ponente are the signatures of the other two Justices. The
will then give it to the clerk of court of that division and
the latter will enter it in the book of judgment. That is
the date of the promulgation of judgment. That is when
the Justices hands the decision signed by them to the
clerk of court for recording.
Section 10. Entry of judgments and final resolutions. 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. (2a, R36)
Section 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.
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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. (n)
o In original actions in the CA, the appellate court will
be the one to issue the writ of execution. In
appealed cases, execution of judgment shall be
enforced by the court of origin. The CA may issue an
execution pending appeal.
RULE 52
Motion for Reconsideration
o If the Court of Appeals decides a case, a party is given the
chance to seek for reconsideration of the judgment or
final resolution.
o A party may file a motion for reconsideration within 15
days from notice of the judgment or final resolution (Sec.
1).
o NO SECOND MOTION FOR RECONSIDERATION IS
ALLOWED (Sec. 2).
o If a motion for reconsideration is filed, it shall be resolved
by the CA within 90 days from the date when the court
declares it submitted for resolution (Sec. 3).
o The pendency of a motion for reconsideration STAYS THE
EXECUTION of the judgment or final resolution unless the
court, for good reasons, shall otherwise direct (Sec. 4).
What are the grounds of a motion for reconsideration? Rule
52 which specifically govern a motion for reconsideration of
the decision of the Court of Appeals, does not mention any
grounds. Can we apply Rule 37 which governs a motion for
reconsideration of the decision of the RTC?
There are two views on the matter. The first view posits that
Rule 37 applies only to decisions rendered by the RTC. The
other view posits that it can also be used by the CA. This
seems to be the better view.
What are the grounds of a motion for reconsideration in the
RTC? (Sec. 1, Rule 37)
1. That the damages awarded is excessive;
2. That the evidence does not support the judgment. In
other words, there is insufficiency of evidence; and
Based on the discussion by Dean Alex Monteclar
3. The decision or the findings and conclusions of the trial
court is contrary to law.
So when the CA decides a case, whether it is an original case
or an appealed case, you may file a motion for
reconsideration on those grounds mentioned in Rule 37.
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. (1a)
Period for filing: At any time after the appeal has been
perfected and before the CA loses jurisdiction over the case.
Ground: Newly discovered evidence
Requisites:
1. A motion must be filed
2. Within the time prescribed by the Rules
3. Accompanied by an affidavit of merits showing the
facts constituting the grounds therefor and the
newly discovered evidence
Section 2
o The CA shall conduct a hearing;
o On such hearing, the CA shall consider the new
evidence together with that adduced at the trial
below.
o The appellate court may
Grant or refuse a new trial
Make such orders as to the taking of further
testimony, orally in court or by deposition ; and
Render such judgment as ought to be rendered
upon such terms as it may deem just.
The CA shall resolve the motion within ninety (90) days from
the date when the court declares it submitted for resolution
(Section 3).
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The procedure in the new trial shall be the same as that a
motion for new trial in the RTC unless the court otherwise
directs (Section 4).
RULE 54
Internal Business
How are cases distributed?
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.
Cases shall be distributed by raffle among the different
divisions.
When it comes to appealed cases to the CA or even original
cases before it, they will just be decided by division. Unlike
the Supreme Court which may decide the case en banc, in the
CA, there is no en banc decision. They will only sit en banc to
decide on matters not involving cases, specifically matters
which govern their internal rules and regulations.
The Court of Appeals, sitting en banc, shall make proper
orders or rules to govern
o the allotment of cases among the different divisions;
o the constitution of such divisions;
o the regular rotation of Justices;
o the filing of vacancies occurring therein; and
o other matters relating to the business of the court
Such rules shall continue in force until repealed or altered by
the Supreme Court (Section 1).
Section 2. Quorum of the court. A majority of the actual
members of the court shall constitute a quorum for its
sessions 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 judgment or final resolution, which
shall be reached in consultation before the writing of the
opinion by any member of the division. (Sec. 11, first par. of
BP Blg. 129, as amended by Sec. 6 of EO 33). (3a)
o Quorum for sessions en banc majority of the
actual members of the CA
o Quorum for sessions of a division three members/
Justices
Based on the discussion by Dean Alex Monteclar
o No. of votes necessary to pass a resolution en banc
affirmative votes of the majority of the members
present;
o No. of votes necessary to pronounce a judgment or
final resolution of a division affirmative cotes of
the three members/Justices
RULE 55
Publications of Judgments and Final Resolutions
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. (1a)
Section 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. 22a, R.A. No. 296) (n)
Section 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 volumes published. (Sec.
23a, R.A. No. 296) (n)
Procedure In The Supreme Court
RULE 56
A. Original Cases
Cases which may be originally filed with the Supreme Court
(Section 1):
1. Petitions for certiorari, prohibition and mandamus
2. Quo warranto
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3. Habeas corpus
4. Disciplinary proceedings against members of the
judiciary and attorneys;
E.g. disbarment cases. Usually these are referred to
the IBP but the IBP will just conduct the investigation
proper. It will then make a recommendation to the
SC and it is the SC who will eventually decide on the
matter.
5. Cases affecting ambassadors, other public ministers
and consuls.
*Nos. 1-3 are also cases cognizable by the CA and the RTC.
Section 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, 48, 49, 51, 52 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 Rules
139-B, as amended. (n)
B. Appealed Cases
Most of the cases that reached the Supreme Court are
appealed cases.
Section 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.
(n)
GR: The mode of appeal to the SC is by petition for review on
certiorari under Rule 45.
EXC: In criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, the mode of appeal
to the SC is by notice appeal (Sec. 6, Rule 56).
Based on the discussion by Dean Alex Monteclar
Section 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. (n)
Section 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. (n)
How will the SC dispose an improper appeal? (Sec. 6, Rule
56)
1. Appeal by notice of appeal to the SC shall be
dismissed except appeals in criminal cases where
the penalty imposed is death, reclusion perpetua or
life imprisonment.
2. Appeal by certiorari to the SC from the RTC
submitting issues of fact may be referred to the CA
for decision or appropriate action.
o Take note, this is discretionary on the
SC which may likewise dismiss the
appeal.
The determination of the Supreme Court on whether or not
issues of fact are involved shall be final.
What happens if the opinion of the SC en banc is equally
divided?
Section 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
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appealed from shall stand affirmed; and on all incidental

matters, the petition or motion shall be denied.

When is there an equally divided opinion? There are fifteen

(15) Justices in the Supreme Court. When the SC en banc
deliberates on a case, it may happen that not all Justices are
present. Suppose only 14 Justices participated in the
deliberation of the case and the votes turned out to be
equally divided 7-7. So they will have a re-deliberation. If
after re-deliberation, still no decision is reached, then the
following rules shall apply:

1. If it is an original action filed before the SC, the

action shall be dismissed;

2. If it is an appealed case, then the decision is deemed

affirmed. Meaning, the CA decision which was
appealed to the SC stands.

3. On all other incidental matters, the petition or

motions shall be denied.

END OF CIVIL PROCEDURE

Made by the 2015-2016 Remedial Review Team

ALO, BARING, BURDEOS, CADORNA, DIONALDO, ENRIQUEZ,

ENTERA, ESCABARTE, V. FERNANDEZ, GOCUAN, ITAO,
LIGARAY, MARTINEZ, MORALES, PAPA, & YANO

Special Acknowledgment to:

Kuya Tristan and Ron for the recordings

Jos notes from 2nd year Civ Pro class

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Based on the discussion by Dean Alex Monteclar