Professional Documents
Culture Documents
It is embraced in Rules 1 to 71 of the Rules of 2.1.c The plaintiff claims PHP 500,000 but after trial he
Court and after its revision, is now commonly known as the is only entitled to PHP 100,000, subject matter jurisdiction
1997 Rules of Civil Procedure. It is divided into the following is with the RTC. See: Ratilla v. Tapucar, 75 SCRA 64
topics:
- General Provisions (Rule 1), 2.1.d It cannot be made to depend on the defenses
- Ordinary Civil Actions (Rules 2-5), interposed in an answer or a motion to dismiss AS IT IS
- Procedure in Regional Trial Courts (Rules 6- THE COMPLAINT, PETITION OR INITIATORY
39), PLEADING THAT BRINGS THE CASE FOR TRIAL AND
- Appeals (Rules 40-43), JUDGMENT – ALTHOUGH THE DEFENDANT MAY IN
- Procedure in the Court of Appeals (Rules 44- HIS ANSWER OR MOTION ATTACK JURISDICTION – if
55), the Rule were otherwise – NO ACTION CAN PROSPER as
- Procedure in the Supreme Court (Rule 56), all the defendant has to do is to allege that jurisdiction is
- Provisional Remedies (Rules 57-61), and vested in another court. The EXCEPTION is the defense of
- Special Civil Actions (Rules 62-71). agricultural tenancy. See Section 3, Rule 70
Included within its scope are the 1991 Rules on Summary 2.2 Determined by the law in force at the time
Procedure and Local Government Code provisions on the of the commencement of the action
Katarungang Pambarangay.
2.2.a If action for payment of a sum of money is filed
after the effectivity of RA 7961 on April 15, 1994 (Expanding
the jurisdiction of the MTC and implemented by Adm.
JURISDICTION Circular 9-94-June 14, 1994) interest, damages of whatever
kind ( as long as incidental), attorney’s fees, litigation
Any discussion of procedural rules should always expenses and costs are not to be considered in fixing the
be preceded by a discussion of jurisdiction. jurisdictional amount, but must be specifically alleged and
filing fees paid thereon
The presence of jurisdiction gives rise to the application of
the rules for the purpose of resolving the action that is 2.2.b There is a shipment of goods from HK to Manila.
brought before a court. Absent jurisdiction, the only thing a The shipment was short. Consignee sued in Manila, carrier
court can do as provided by the rules is to dismiss the action. moved to dismiss for lack of jurisdiction since the Bill of
If a court acts without jurisdiction, all its acts are null and Lading provided that in case of dispute, suit must be
void. Further, any decision it may render is not a decision brought in HK. Motion will not prosper as jurisdiction is
in contemplation of law and cannot be executory. See: conferred by law and cannot be stipulated by the parties.
Abbain v. Chua 22 SCRA 748, Estoesta vs. CA 179 SCRA
203, Dava v. People 202 SCRA 62
DISTINCTIONS BETWEEN THE NATURE
Simply defined JURISDICTION refers to the power and OF JURISDICTION EXERCISED BY THE
authority of a court or tribunal to hear, try and decide a COURTS
case. It has also been defined as the authority by which
courts and judicial officers take cognizance of and decide 1. AS TO THE NATURE OF THE EXERCISE OF
cases. JURISDICTION – it is General, meaning it is exercised
over all kinds of cases or Limited, meaning it exercised
over and extends only to a particular or specified cases.
REQUISITES FOR A VALID EXERCISE OF
JURISDICTION 2. AS TO THE NATURE OF THE CAUSE OR
THE ACTION – it is Original, meaning it is exercised by
1. It must have jurisdiction over the persons of courts in the first instance or Appellate, meaning it is
the parties. It is acquired over the plaintiff upon his filing exercised by a superior court to review and decide a cause or
of a complaint. On the other hand, it is acquired over the action previously decided by a lower court.
defendant by his voluntary appearance before the court or
the employment of the coercive power of legal process. 3. AS TO THE EXTENT OF THE EXERCISE OF
JURISIDICTION – it is Exclusive, meaning it is confined
2. It must also have jurisdiction over the subject to a particular court or CONCURRENT, meaning two or
matter in controversy Jurisdiction over the subject matter more courts have jurisdiction at the same time and place. In
of the compliant as determined by the allegations in the
1
this instance, the court which has first validly acquired PROBLEM AREAS AFFECTING
jurisdiction takes it to the exclusion of the others. JURISDICTION
That which vests in an administrative tribunal the 2.2 Action for removal of improvements with prayer
jurisdiction to determine a controversy requiring the for 10,000 for attorney’s fees – RTC incapable of pecuniary
exercise of sound administrative discretion – stated estimation.
otherwise – if jurisdiction is vested upon an administrative
body, no resort to courts can be made until the 2.3 Action to collect sum of money – within
administrative body shall have acted on the matter. jurisdiction of the MTC but with accessory prayer for
damages beyond MTC jurisdiction – MTC - if action is
personal, damages are to be excluded – (Adm Circ. 09-94 –
WHEN CAN THE ABSENCE OF June 14, 1994) for determining jurisdiction but payment is
JURISDICTION BE QUESTIONED still to be collected – Damages, Interest, Attorney’s fees and
Litigation costs.
The general rule is jurisdiction may be
questioned at any stage of the proceedings, even on BUT – if action is for damages over 400K – RTC because it
appeal, BUT a party may be barred from raising it on the is the main cause of action or one of the causes of
ground of laches or estoppel when he has actually action.
invoked the jurisdiction of the court by participating in the
proceedings, then belatedly questions lack of jurisdiction 3. IF DOCKET FEES ARE INCORRECT – The
after judgment has gone against him. See: Tijam v. trial court should allow the plaintiff to pay within a
Sibonghanoy, 23 SCRA 29, Lopez v. Northwest 223 SCRA reasonable period of time before the expiration of the
469, Soliven v. FastForms Phil. Inc, GR No. 139091, October applicable prescriptive or reglamentary period – EFFECT –
18, 2004, citing PNOC v. CA,. 297 SCRA 402, APT v. CA 300 defendant must move to dismiss the complaint on the
SCRA 597 and Producers Bank v. NLRC, 298 SCRA 517. See ground of lack of jurisdiction – if not he may be considered
also: Sections 2 and 3, Rule 47 – Annulment of Judgment to be in estoppel. See NSC v. CA – GR 123215, Feb 2, 1999)
based on extrinsic fraud or lack of jurisdiction. If based on
lack of jurisdiction before it is barred by laches or 4. DOCKET FEES FOR MAIN/REAL ACTION
estoppel. PAID BUT THOSE FOR RELATED DAMAGES ARE
NOT PAID –Trial court may expunge the claims or allow
on motion, a reasonable time for amendment of the
complaint or accept payment of the requisite legal fees.
2
or resolutions of RTCs and quasi-judicial agencies,
5. IF CLAIMS ARE UNSPECIFIED BUT ARISE such as the Securities and Exchange Commission,
AFTER FILING –The required additional fee shall Sandiganbayan and National Labor Relations
constitute a lien on the judgment Commission.
1. JURISDICTION OF THE SUPREME COURT The RTCs are our second-level trial courts. As the
Supreme Court and the Court of Appeals, RTCs have both
The jurisdiction of the Supreme Court in civil cases original and appellate jurisdiction in civil cases.
of which it cannot be deprived and which cannot be Their original jurisdiction is concurrent with
diminished by Congress is to review, revise, reverse, the Supreme Court and the Court of Appeals in the issuance
modify, or affirm on appeal or certiorari as the law or the of writs of certiorari, prohibition, mandamus, quo
Rules of Court may provide, final judgments and orders of warranto, habeas corpus and injunctions but, as issued by
lower courts in: RTCs, these writs may be enforced only within their
respective regions, and over actions affecting ambassadors
(a) all cases in which the constitutionality or validity of and other public ministers and consuls.
any treaty, international or executive agreement,
law, presidential decree, proclamation, order, The original jurisdiction of RTCs, which is
instruction, ordinance, or regulation is in question; exclusive, is broad and covers the following cases:
(b) all cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in (1) all civil actions in which the subject of the litigation is
relation thereto; incapable of pecuniary estimation;
(c) all cases in which the jurisdiction of any lower
court is in issue; and (2) all civil actions which involve the title to, or possession
(d) all cases in which only an error or question of law is of, real property, or any interest therein, where the assessed
involved. value of the property involved exceeds Two hundred
thousand pesos (P200,000.00) or for civil actions in Metro
The foregoing Constitutional definition is of Manila, where such value exceeds Four hundred thousand
appellate jurisdiction. Congress, however, is not prohibited pesos (P400,000.00) except actions for forcible entry into
from increasing or adding to this Constitutionally-defined and unlawful detainer of lands or buildings, original
jurisdiction. And so Congress has given the Supreme Court jurisdiction over which is conferred upon the Metropolitan
original jurisdiction over cases affecting ambassadors, other Trial Courts, Municipal Trial Courts, and Municipal Circuit
public ministers, and consuls and petitions for the issuance Trial Courts;
of writs of certiorari, prohibition and mandamus against
the Court of Appeals. Congress has also vested the Supreme (3) all actions in admiralty and maritime jurisdiction where
Court with jurisdiction, concurrent with the RTCs, over the demand or claim exceeds Two hundred thousand pesos
petitions for the issuance of the writs of certiorari, (P200,000.00) or in Metro Manila, where such demand or
prohibition, habeas corpus, and in actions brought to claim exceeds Four hundred thousand pesos
prevent and restrain violations of law concerning (P400,000.00);
monopolies and combinations in restraint of trade.
(4) all matters of probate, both testate and intestate, where
The appellate jurisdiction in civil cases of the the gross value of the estate exceeds Two hundred thousand
Supreme Court as defined in the Constitution had been pesos (P200,000.00) or, in probate, both testate and
revised and expanded a little bit more by law to include all intestate, where the gross value of the estate exceeds Two
cases involving petitions for naturalization or hundred thousand pesos (P200,000.00) or, in probate
denaturalization, all decisions of the Auditor General, if the matters in Metro Manila, where such gross value exceeds
appellant is a private person or entity, and final judgments Four hundred thousand pesos (P400,000.00);
or orders of the Commission on Elections.
(5) all actions involving the contact of marriage and marital
2. JURISDICTION OF THE COURT OF relations;
APPEALS
(6) all cases not within the exclusive jurisdiction of any
The Court of Appeals has both original and court, tribunal, person or body exercising jurisdiction of any
appellate jurisdiction. court, tribunal, person or body exercising judicial or quasi-
judicial functions;
Its original jurisdiction, which is exclusive, is
over actions for annulment of RTC judgments. (7) all civil actions and special proceedings falling within the
Its original jurisdiction, which is concurrent with exclusive jurisdiction of a Juvenile and Domestic Relations
the Supreme Court and the RTCs, is to issue writs Court and of the Court of Agrarian Relations as then
of mandamus, prohibition, certiorari, habeas provided by law; and
corpus and quo warranto, and auxiliary writs or
processes, whether or not in aid of its appellate (8) all other cases in which the demand, exclusive of
jurisdiction. interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs or the value of the property in
The appellate jurisdiction of the Court of controversy exceeds Two hundred thousand pesos
Appeals, which is exclusive, is over final judgments (P200,000.00) or, in such other cases in Metro Manila,
3
where the demand, exclusive of the above-mentioned items
exceeds For hundred thousand pesos (P400,000.00). RULE 1 GENERAL PROVISIONS
The appellate jurisdiction of the RTCs is over all
cases decided by Metropolitan Trial Courts, The Rules shall be known and cited as the Rules of Court.1
Municipal Trial Courts and Municipal Circuit Trial They shall apply in all courts, except as otherwise provided
Courts in their respective territorial jurisdiction. by the Supreme Court2 in civil, criminal and special
proceedings.3 They do not apply to election cases, land
The term “damages of whatever kind” has registration, cadastral, naturalization and insolvency, and
been specially defined by the Supreme Court for purposes of other cases not herein provided, except by analogy or in
determining the jurisdictional amount in respect to the suppletory character and whenever practicable and
jurisdiction of the RTC. This term is understood to apply convenient.4
only to cases when the damages are merely incidental to or a
consequence of the main cause of action, and that therefore For purposes of the subject matter, only Rules 1 to 71 or
where the claim for damages is the main cause of action or the 1997 Rules of Civil Procedure shall be discussed herein.
one of the causes of action, the amount of the claim shall be
considered in determining the jurisdiction of the court. 1. A Civil Action is one by which a party sues
another for the enforcement or protection of a right or
The Supreme Court has however designated certain the prevention or redress of a wrong.
branches of the RTCs to handle exclusively certain cases as Examples: To enforce payment of a loan or to eject an
corporate and intellectual property cases. intruder on one’s property.
(2) cases of forcible entry and unlawful detainer: Provided, 1.3 DISTINCTIONS BETWEEN A CIVIL ACTION
That when, in such cases, the defendant raises the question AND SPECIAL PROCEEDINGS –
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 CIVIL ACTION SPECIAL PROCEEDINGS
Adversarial-between not necessarily as it may
(3) all civil actions which involve title to, or possession of, plaintiff and defendant involve only 1party
real property or any interest therein where the assessed
value of the property or interest therein does not exceed Two formal demand of a right declaration of a status, right or
hundred thousand pesos (P200,000.00) or, in civil actions by one against the other. a particular fact.
in Metro Manila, where such assessed value does not exceed
Four hundred thousand pesos (P400,000.00) exclusive of
interest, damages of whatever kind, attorney’s fees, litigation
expenses and costs.
1
The MTCs may however be assigned by the Section 1, Rule 1, 1997 Rules of Civil Procedure
2
Supreme Court to hear and determine certain cadastral Supra, Section 2, Rule 1
3
cases and petitions for habeas corpus. Supra, Section 3, Rule 1
4
Supra,,Section 4, Rule 1
4
WHEN AN ACTION IS COMMENCED 4. Concommitant to a liberal application of the rules
of procedure should be an effort on the part of the party
An action is commenced upon the filing of the invoking liberality to adequately explain his failure to abide
original complaint in court. If an additional defendant is by the rules.12
impleaded in a later pleading – it is commenced on the date
of the filing of the later pleading IRRESPECTIVE OF 5. The rules and procedure laid down for the trial
WHETHER THE MOTION FOR ITS ADMISSION, IF court and the adjudication of cases are matters of public
NECESSARY, IS DENIED BY THE COURT.5 policy. They are matters of public order or interest which
can in no wise be changed or regulated by agreements
1. Note though that FILING IS DEEMED DONE between or stipulations by parties to an action for their
ONLY UPON PAYMENT OF THE DOCKET FEE singular convenience.13 (Republic vs. Hernandez, 253 SCRA
REGARDLESS OF ACTUAL DATE OF THE FILING OF 509)
THE COMPLAINT6 (MAGASPI V. RAMOLETE 115 S 193)
6. The Supreme Court has the power to suspend or set
EXCEPT – if the plaintiff is authorized to litigate as a aside its rules in the higher interest of justice.14
pauper litigant – he is exempt from filing fees.
(1) a rigid application will result in manifest failure or DISTINGUISHING IT FROM RIGHT OF
miscarriage of justice, especially if a party successfully shows ACTION
that the alleged defect in the questioned final and executory
judgment is not apparent on its face or from the recitals RIGHT OF ACTION is the right to commence and
contained therein
maintain an action, it is a remedial right that depends on
(2) where the interest of substantial justice will be served substantive law, while a
(3) where the resolution of the motion is addressed solely to CAUSE OF ACTION is a formal statement of the operative
the sound and judicious discretion of the court facts that give rise to such remedial right which is a
(4) where justice to the adverse party is not commensurate
matter of statement and is governed by procedural law.
with the degree of this thoughtlessness in not complying
with the procedure prescribed.10 WHEN ALL ELEMENTS OF A CAUSE OF ACTION
ARE PRESENT, THERE WILL BE A RIGHT OF
3. Note that in doing so, substantial justice and equity ACTION
considerations must not be sacrificed. Periods for filing are
as a matter of practice, strictly construed. Neither can The distinction is best used to explain the principle that the
liberality of the rules be invoked if it will result in the existence of a cause of action may only be ascertained
wanton disregard of the rules or cause needless delay in the from the allegations of the complaint.18
administration of justice.11
5 12
Supra, Section 5, Rule 1 Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v
6
Magaspi v Ramolete, 115 SCRA 193 Duremdes, 415 SCRA 684
7 13
Cabrera v Tiano,8 SCRA 542 Republic v Hernandez, 253 SCRA 509
8 14
Supra,Section 6, Rule 1 Fortica v Corona, GR No. 131457, April 24, 1998
9 15
Vda De Toledo v Toleda, 417 SCRA 260 Supra, Section 1, Rule 2
10 16
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA Supra, Section 2, Rule 2
17
173, Tan v CA, 295 SCRA 755 Navao v CA, 251 SCRA 545
11 18
El Reyno Homes v Ong, 397 SCRA 563 Equitable Bank v CA, 425 SCRA 544
5
HOW MANY SUITS CAN BE FILED FOR A IF A PARTY HAS SEVERAL CAUSES OF
CAUSE OF ACTION ACTION
A party may not institute more than one suit for a single He can join his causes of action24 as he may in one pleading
cause of action.19 assert, in the alternative or otherwise, as many causes of
action as he may have against the opposing party, subject to
1. If a party institutes more than one suit, the filing of one the following conditions:
or a judgment upon the merits in anyone is available as a
ground for the dismissal of the others.20 This is also known 1. party joining the causes of action shall comply with
as SPLITTING A CAUSE OF ACTION. the rule on joinder of parties, which provides that :
2. The SINGLENESS OF CAUSE OF ACTION of a - All persons in whom or against whom any right
cause of action is determined as follows: to relief is respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the
2.1 In an action EX DELICTO, the singleness of a alternative, may except as otherwise provided in these rules,
cause of action lies in the singleness of the delict or wrong join as plaintiffs or be joined as defendants in one
violating the right of a person. If however, one injury results complaint, where any question of law or fact common to all
from several wrongful acts, only one cause of action arises. such plaintiffs or to all such defendants may arise in the
Example: A party who is injured could not maintain an action.25
action for damages based on a breach of the contract of
carriage against the owner of the vehicle in which he was 2. joinder does not allow the inclusion of special civil
riding and another action for quasi-delict against the actions or actions governed by special rules .
driver/owner of the offending vehicle. The recovery under Example: An action for a sum of money cannot be joined
one remedy necessarily should bar recovery under another. with an action for iIlegal detainer
This, in essence, is the rationale for the proscription in our
law againt double recovery for the same act or omission 3. where causes of action are between same parties
which, obviously stems from the fundamental rule against but pertain to different venues or jurisdictions, joinder
unjust enrichment.21 may be allowed in the RTC provided one of the causes of
action falls within its jurisdiction and venue lies therein.
2.2 In an action EX CONTRACTU, the rules are as
follows: 4. when the claims in all causes of action are
principally for recovery of money, the aggregate amount
2.2.a In a single or indivisible contract, only one shall be the test of jurisdiction.
cause of action arises from a single or several breaches.
Example: In a contract of sale of personal property by EFFECT OF MISJOINDER
installments, the remedies of the unpaid seller is alternative,
they are: Upon motion of a party or on the initiative of the court, a
(1) elect fulfillment misjoined cause of action may be severed and proceeded
(2) cancel the sale, should the vendee’s failure to with separately.26
pay cover two or more installments, and
(3) foreclose the mortgage on the thing sold if one
has been constituted should the vendee fail to pay
two or more installments. 22 RULE 3 PARTIES TO CIVIL
2.2.b If the contract provides for several obligations, ACTIONS
each obligation not performed gives rise to a single
cause of action. But if upon filing of the complaint several WHO MAY BE PARTIES TO A CIVIL
obligations have already matured, all of them shall be ACTION
integrated into a single cause of action.
Example: Contract for delivery of goods in part or over a Only (1) natural or (2) juridical persons or (3) entities
period. authorized by law may be parties in a civil action.27
They are called:
2.2.c If the contract is divisible in its performance, and
the future performance is not yet due, but the obligor has PLAINTIFF – he is one who has interest in the subject
already manifested his refusal to comply, the contract is of the action and obtaining the relied demanded. He may be
entire and the breach is total. Thus, there can only be one the claimant in the original complaint, the counter-claimant
action.23 in the counter claim, or cross-claimant in a cross-claim or
the third party plaintiff and
A CROSS-CLAIM is a claim by one party against a co- 2.1 It states NO CAUSE OF ACTION BECAUSE IT
party arising out of the transaction or occurrence that is the IS NOT BEING PROSECUTED IN THE NAME OF THE
subject matter either of the original action or of a counter- REAL PARTY IN INTEREST.
claim therein.29
2.2 LACK OF LEGAL CAPACITY TO SUE means
A THIRD PARTY CLAIM is a claim that a defending that the plaintiff is not in exercise of his civil rights, does not
party may, with leave of court, file against a person not party have the necessary qualification to appear or does not have
to an action for contribution, indemnity, subrogation or any the character or representation he claims. Example: Trustee
other relief, in respect to his opponent’s claim.30 or Minor, AS DISTINGUISHED FROM LACK OF LEGAL
PERSONALITY means that the plaintiff is not the real party
in interest. Dismissal is based on the fact that the complaint
1. The state or any of its political subdivisions, states no cause of action
while considered as juridical entities, they can sue but as a
general rule, they cannot be sued without its consent. 3. Legal standing means a personal and substantial
interest in the case such that the party has sustained or will
2. A foreign corporation cannot be a plaintiff in suit sustain direct injury as a result of the act being challenged.
when it is transacting business in the Philippines without a The term interest is material interest, an interest in issue,
license. and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental
3. Entities authorized by law are recognized labor interest. Moreover, the interest must be personal and not
organizations and entities without legal personality referring one based on a desire to vindicate the constitutional right of
to 2 or more persons not organized as an entity with some third or unrelated party.
juridical personality enter into a transaction, they may be
sued under the name by which they are generally or
commonly known but in their answer to the complaint, their CLASSIFICATION OF REAL PARTIES IN
names and addresses must be revealed.31 INTEREST
1.1 Examples of representatives are: Joinder of Parties refers to the act of uniting several
(1) trustee of an express trust parties in a single suit either as plaintiffs or defendants.
(2) a guardian, executor or administrator, or
(3) a party authorized by law or the Rules. 1. The rule on joinder of parties states that:
- All persons in whom or against whom any right to
1.2 An agent acting in his own name and for the relief in respect to or arising out of the same transaction is
benefit of an unknown principal may sue or be sued without alleged to exist, whether jointly, severally or in the
joining the principal except when the contract involves alternative, may except as otherwise provided in these rules,
things belonging to the principal. This refers to an AGENCY join as plaintiffs or be joined as defendants in one
WITH AN UNDISCLOSED PRINCIPAL.42 complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the
2. HUSBAND AND WIFE- as a general rule shall action.54
sue or be sued jointly, except as provided by law.43 Non
joinder of party’s husband is not fatal. It is a mere formal
defect.44 2. Joinder of Parties, as a rule, is permissive
when there is a question of law or fact common to all the
2.1 They are required to sue and be sued jointly as they plaintiffs or defendants. This means that the right to relief
are joint administrators of the Absolute Community or the or to resist the action arises out of the same transaction or
Conjugal Partnership.45 event or series of transactions or events.
2.2 The exceptions provided by law are when the Example: action by passengers of a common carrier for
property relations of husband and wife are governed by the injuries sustained in an accident, there is no community of
rules on separation of property46 or one is disposing of interest, the extent of the interest is limited to the extent of
exclusive property.47 damages being claimed by each.
2.3 NOTE that the legal provision against the 3. It becomes compulsory when the parties to be
disposition of conjugal property by one spouse without the joined are indispensable parties.55
consent of the other has been established for the benefit, not
of third persons, but only for the spouse for whom the law 4. The exception to compulsory joinder of
desires to save the conjugal partnership from damages that parties is when the subject of the action is proper for a class
might be caused. No other party can avail of the remedy suit. The subject matter of the controversy is proper for a
other than the aggrieved spouse.48 class suit when it is one of common or general interest to
many persons so numerous that it is impractical to join all
3. MINORS OR INCOMPETENTS - may sue or be as parties.56 All the parties who are interested in the action
sued with the assistance of father, mother, guardian or, if he as plaintiffs or defendants are all indispensable parties but
has none, a guardian ad litem.49 not all need to be joined.
3.1 A guardian ad litem is a special guardian
appointed by the court in which a particular litigation is 4.1 The requisites of a class suit are:
pending to represent or assist a minor or an incompetent
person involved in or has interest in the property subject of 1. The subject matter of the controversy is one of
common or general interest to many persons. There must be
41 an INDIVISIBLE RIGHT AFFECTING MANY
Supra, Section 3, Rule 3
42
Article 1883, NCC
43 50
Supra, Section 4, Rule 3 Supra, Section 16, Rule 3
44 51
Miranda v Besa, 435 SCRA 532 Supra, Section 18, Rule 3
45 52
Articles 96 and 124, Family Code Supra, Section 10, Rule 14
46 53
Article 145, Family Code Article 222, Family Code
47 54
Article 111, Family Code Supra, Section 6, Rule 3
48 55
Villaranda v Villaranda, 423 SCRA 571 Supra, Section 7, Rule 3
49 56
Supra, Section 5, Rule 3 Supra, Section 12, Rule 3
8
INDIVIDUALS WHOSE PARTICULAR INTEREST IS 7. MISJOINDER OR NON JOINDER NOT A
OF INDETERMINATE EXTENT AND IS INCAPABLE GROUND FOR DISMISSAL. Parties may be dropped or
OF SEPARATION. This requires that the benefit to one is added by order of the court on motion of any party or on its
a benefit to all. own initiative at any stage of the action and on such terms
that are just. Any claim against a misjoined party may be
Examples: stockholder derivative suits and taxpayer suits. severed and proceeded against separately.61
1.1 Improper for a class suit is when a claimant is NOTE HOWEVER – that if the party to be joined is
interested only in collecting his claims and has no concern in indispensable and the plaintiff fails or refuses or such party
protecting the interests of the others.57 cannot be sued – the complaint must be dismissed (NDC v.
CA 211 S 422)
2. The parties affected are so numerous that it is
impracticable to join all as parties 8. IF A PARTY TO BE JOINED AS A
PLAINTIFF DOES NOT CONSENT OR CANNOT BE
3. The parties bringing or defending the class suit are OBTAINED he may be made a defendant and the reason
found by the court to be sufficiently numerous and therefor shall be stated in the complaint.62
representative as to fully protect the interest of all.
To comply with the 2nd and 3rd requisite, the Complaint most
allege: DISTINCTIONS BETWEEN
If the court finds the reason for the omission is not He may be sued as the unknown owner, heir, devisee or by
meritorious, it may order the inclusion of the omitted such other designation as the case may require – WHEN
necessary party if jurisdiction over his person is obtained. THE IDENTITY OR NAME IS DISCOVERED – the pleading
must be amended accordingly.64 EXAMPLE: Action to
If pleader fails to comply with order for inclusion without recover real property from several unknown heirs of a
justifiable cause, it shall be deemed a waiver of the claim common ancestor.
against the party, BUT the non-inclusion does not prevent
the court from proceeding in the action, and the judgment
therein shall be without prejudice to rights of such necessary
party.60
57 61
Cadalin v POEA Administrator, 238 SCRA 721 Supra, Section 11, Rule 3
58 62
Supra, Section 2, Rule 17 Supra, Section 10, Rule 3
59 63
NDC v Court of Appeals, 211 SCRA 422 Supra, Section 13, Rule 3
60 64
Supra, Section 9, Rule 3 Supra, Section 14, Rule 3
9
EFFECT OF DEATH OF A PARTY (Sec 16) 1. RULES TO BE OBSERVED IN CASE OF
When a party dies and his claim is not extinguished – it shall DEATH OF OBLIGOR are:
be the duty of counsel – to inform the court within 30 days
after such death of the: a) If he dies before the action is filed, a money claim
must be filed in the testate or intestate proceedings
(1) FACT OF DEATH b) if he dies during the pendency of an action, the
(2) NAME AND ADDRESS OF LEGAL REP/REPS action continues until entry of judgment, and the
judgment claim is then filed with the testate or
IF NOT, Counsel may be subject to disciplinary action. intestate proceedings. It must be noted that a
money claim judgment need not be proven because
ONCE NOTICE IS GIVEN – The COURT SHALL ORDER it is conclusive.
THE LEGAL REP/S TO APPEAR AND BE SUBSTITUTED
WITHIN 30 DAYS FROM NOTICE. NOTE FURTHER, that if property has been levied upon
Note: Heirs may be allowed to be substituted for the before death. It can disposed of in the manner provided by
deceased without requiring the appointment of an executor the rules on execution of judgments because it has already
or administrator and the court can appoint a guardian ad been segregated from estate. If there is a deficiency, a
litem for minor heirs. money claim can be filed subsequently.
BEFORE SUBSTITUTION – IF NO EXPRESS ASSENT, the 4. If a claim involves a conjugal debt that was not
public officer shall be given reasonable notice of the brought and one of the spouses die before filing, the claim
application and be accorded an opportunity to be heard. must be brought in the testate or intestate proceedings of
the deceased spouse.68 ( Alipio v. CA, GR. 134100, 9-29-
2000)
EFFECT OF DEATH OF DEFENDANT ON A 5. IF IT IS THE PLAINTIFF WHO DIES:
CONTRACTUAL MONEY CLAIM (a) if action is purely personal to him, the action is abated
(b) if action is not purely personal, it continues but counsel
If the action is for the recovery of money that arises from a must give notice of death.
CONTRACT, express or implied, and the defendant dies
BEFORE ENTRY OF A FINAL JUDGMENT, the RULE is – EFFECT ON INCOMPETENCY/INCAPACITY
ON AN ACTION
- it will not be dismissed but shall be allowed to 1. The court, upon motion with notice, may allow the
continue until entry of judgment, a favorable judgment action to be continued by or against the incompetent or
obtained shall be enforced in the manner provided by the incapacitated person assisted by his guardian or guardian ad
rules for prosecuting claims against the ESTATE OF A litem.69
DECEASED PERSON.65
66
Supra, Section 7, Rule 39
67
UST v Court of Appeals, GR No. 124250, October 18,
2004
68
Alipio v Court of Appeals, GR No. 134100, September
29, 2000
65 69
Supra, Section 20, Rule 3 Supra, Section 3 and 18, Rule 3
10
EFFECT OF A TRANSFER OF INTEREST 4. The allowance to litigate as an indigent or pauper
PENDING LITIGATION litigant can be contested at any time before judgment is
rendered by any adverse party. If found to be meritorious,
1. The action may be continued by or against the the proper fees are assessed and are to be collected. IF NOT
original party, unless the court upon motion directs the PAID, execution shall issue on the payment thereof without
person to whom interest is transferred to be substituted in prejudice to other sanctions.
the action or joined with the original party.70
5. On appeal, a motion to litigate as an indigent or
2. The rule refers to a transfer pendente lite. The pauper litigant is allowed.
transferee pendente lite shall stand exactly in the shoes of
the transferor. Consequently, any judgment will be binding
upon him. WHEN SOLICITOR GENERAL IS
REQUIRED TO APPEAR
3. A transferee pendent elite does not have to be
included or impleaded by name in order to be bound by the In any action involving the validity of any treaty, law,
judgment because the action or suit may be continued for or ordinance, executive order, presidential decree, rule or
against the original party or the transferor and still binding regulation, the court, in its discretion, may require the
on the transferee.71 appearance of the SOLGEN, who may be heard in person or
through a representative duly designated by him.75
4. In a case on appeal where the transferee pendente
lite did not appeal, he nevertheless was benefited by the
appeal of the transferor pendent elite.72
RULE 4 – VENUE OF ACTIONS
INDIGENT/PAUPER LITIGANT
1. Venue is the place where the action is to be
commenced and tried. It has also been defined as the proper
1. An indigent or pauper litigant Is one who litigates location for the trial of a case.
on a claim that he has no money, or property sufficient and
available for food, shelter and basic necessities for himself
2. Distinguishing it from jurisdiction:
and his family.73
(1) venue is the place where action is commenced
2. An indigent or pauper litigant must file an ex-parte and tried, jurisdiction is the authority of a court
application for authority to litigate as an indigent that is too
to hear and decide the action
be resolved by the court after hearing. Attached to the
motion is an affidavit attesting to the fact that he does not (2) venue may be waived, jurisdiction over the
earn a gross income of PHP 4000.00 in Metro-Manila, or subject matter cannot be waived, but that over the
PHP 3,000.00 elesewhere and has no real property with a person can be waived
fair market value of PHP 50,000.00. Said affidavit must be
supported by another affidavit of a disinterested person. (3) venue may be the subject of a written agreement,
Note that recently, an indigent litigant has been defined as jurisdiction cannot be subject of a written
one (a) whose gross income and that of their immediate agreement
family does not exceed an amount double the monthly
minimum wage of an employee and (b) who does not own
(4) a court cannot motu-propio dismiss on improper
real property with a fair market value as stated in the venue, while when there is no jurisdiction, a court
current tax declaration of more than PHP 300,000.00. If can motu-propio dismiss the action.
there is any falsity in the affidavit or that of the
disinterested person, it shall constitute sufficient ground to
3. The following are the rules on venue:
dismiss the action or strike out the pleading, without
prejudice to whatever criminal liability is incurred.74 3.1 IF IT IS A REAL ACTION or one that affects title
to or possession of real property, or interest therein, it shall
3. The effect of being allowed to litigate as an be commenced and tried in the proper court which has
indigent or pauper litigant are:
jurisdiction over the area wherein the real property involved
or a portion thereof is situated. Forcible Entry and Detainer
(1) exemption from the payment of docket fees and actions are to be commenced and tried in the Municipal
other lawful fees Trial Court which has jurisdiction over the area wherein the
(2) exemption from TSN fees which the Court may
real property involved, or any portion thereof, is situated.76
order to be furnished BUT, the amounts due shall
be a LIEN on a favorable judgment unless the 2. IF IT IS A PERSONAL ACTION or one that is
Court orders otherwise. brought for the recovery of personal property, for the
enforcement of a contract or recovery of damages for its
breach of for the recovery of damages due to injury to person
70
or property or such all other actions shall be commenced or
Supra, Section 19, Rule 3 tried where the plaintiff or ANY OF THE PRINCIPAL
71
State Invetsment House, Inc. v Court of Appeals, 318 PLAINTIFFS reside or any of the defendants reside, or if a
SCRA 47
72
Jocson v Court of Appeals, GR 88297, March 22, 1990
73 75
Supra, Section 21 Supra, Section 22, Rule 3
74 76
Section 19, Rule 141, Rules of Court Supra, Section 1, Rule 4
11
NON-RESIDENT DEFENDANT, where he may be 3.2 A non-resident alien who cannot be found can sue
FOUND at the election of the plaintiff77 and be sued as by filing his complaint, he submits to the
jurisdiction of the Court, even if he has never been able to
2.1 RESIDE – means the place of abode, whether enter the Philippines.82 (Dilweg vs. Philipps, 12 S 243)
permanent or temporary – as distinguished from domicile – THE RULES ON VENUE ARE NOT
fixed permanent residence, where if one is absent he intends APPLICABLE
to return.
The rules on venue will not apply if:
(1) in cases where a specific rule or law provides
2.2 Is the complaint for cancellation of a real estate otherwise
mortgage with damages, a real or personal action? (2) Where the parties have validly agreed in writing
- It is a real action, the controlling factor in BEFORE FILING OF THE ACTION ON
determining venue of such a case is the primary objective for EXCLUSIVE VENUE83
which it is filed. An action for cancellation of a real estate
mortgage is necessarily an action affecting title to real 1. EXAMPLES:
properties since the primary objective is to recover the
properties that the bank had foreclosed on.78 (1) Quo Warranto proceedings may be instituted in the
Supreme Court, Court of Appeals or the Regional Trial Court
exercising territorial jurisdiction over the area where the
2.3 In personal actions, it is the residence of the respondent/s reside. If the Solicitor General commences the
proprietor, not the business address of the sole action, he may do so in the Supreme Court, Court of Appeals
proprietorship that is considered to determine venue as a or the Regional Trial Court of Manila.84 The criminal or civil
sole proprietorship has no legal personality.79 action for damages due to libel can only be instituted either
in Regional Trial Court of the place where he holds office or
in the place where the alleged libelous article was printed
2.4 R engaged the services of L as geodetic surveyor to and first published; and if the offended parties are private
subdivide two parcels of land located in Batangas. As individuals, the venue shall be in the Regional Trial Court of
payment for L’s services, R agreed to given him one lot. After the place where the libelous article was printed and first
the survey, R delivered to L possession of one lot as payment published or where any of the offended parties actually
for his services. However, R failed to deliver to L the tile of resides at the time of the commission of the offense85 or 2.
the lot. L, who resides in Quezon City, filed with the RTC of Art 360, RPC. Libel – Civil and Criminal action to
Quezon City an action against R for specific performance to be distributed in the RTC where public official holds office
compel R to deliver to him the title to the lot. R moved to or where libelous article was first printed or published
dismiss on the ground of improper venue, contending that (3) Intracorporate Controversies are to be filed in the
since his is a real action, the complaint must be filed in the Regional Trial Court where principal office corporation is
RTC of Batangas where the lot is situated. Is R correct? No, located.86
R is not correct. This action for specific performance is a
personal action. The venue therefore, was properly laid in 2. Any agreement as to venue must be in writing and
Quezon City where the plaintiff resides. It is not a real action for exclusivity, the intent must be clear, otherwise, it will be
because plaintiff L is not seeking the recovery of the lot as he interpreted to allow for an additional venue.
is already in possession thereof. He is merely asking the
delivery of the title to him, which is a personal action.80 2.1 The freedom of the parties to stipulate on the venue
is however subject to the usual rules on contract
interpretation. Where the provision appears to be one-sided
3. IF DEFENDANT IS A NON-RESIDENT or one as to amount to a contract of adhesion, the consent of the
who does not reside and is not found in the Philippines, and parties thereto may well be vitiated and the venue
the action affects the personal status of the plaintiff , or any stipulation will not be given effect.87
property of said defendant located in the Philippines, the
action may be commenced and tried in the court of the place 2.2 Venue as stipulated in the promissory note shall
where the plaintiff resides, or where the property or any govern notwithstanding the absence of a stipulation as to
portion thereof is situated or found.81 venue in an accompanying surety agreement as the latter
can only be enforced in conjunction with the former.88
82
Dilweg v Philipps, 12 SCRA 243
77 83
Supra, Section 2, Rule 4 Supra, Section 4, Rule 4
78 84
Go v UCPB, GR No. 156187, November 11, 2004 Supra, Section 7, Rule 66
79 85
Mangila v Court of Appeals, 387 SCRA 162 Article 360, Revised Penal Code
80 86
Dimo Realty & Development, Inc. et al. v. RA 8799, and A.M. 01-02-04-CS, March 13, 2001
87
Dimaculangan, G.R. NO. 130991, March 11, 2004 Sweet Lines v Teves, 83 SCRA 361
88
Philippine Bank of Communications v Lim, 455 SCRA
81
Supra, Section 3, Rule 4 714
12
HOW VENUE IS QUESTIONED
2.1 The following are the kinds of defenses97 that may
Venue may be questioned in: be interposed in an answer:
89
Supra, Section 1 (c) ,Rule 16 (2) barred if not set up in not barred even if not set
90
Supra, Section 6, Rule 16 the up in the answer
91
Supra, Section 8, Rule 40 answer
92
Supra, Section 1, Rule 6
93
Supra, Section 2, Rule 6
94 97
Supra, Section 3, Rule 6 Supra, Section 5, Rule 6
95 98
Supra, Section 4, Rule 6 Supra, Section 10, Rule 8
96 99
Naga Development Corporation v Court of Appeals, 41 Supra, Section 6, Rule 16
100
SCRA 105 Supra, Section 6, Rule 6
13
(c) It must be within the jurisdiction of the court both
(3) plaintiff need not plaintiff must answer once as to amount and the nature thereof, except that in
answer docket fees are paid an original action before the RTC, counterclaim is
considered compulsory regardless of amount
(4) if not answered – no if not answered – default 4. A CROSS-CLAIM is a claim by one party against a
default lies co-party arising out of a transaction/occurrence that is the
subject matter either of the original action or the counter-
claim.
(5) does not require a being an initiatory pleading It may include a claim that a party against whom it
certification as to non- – it requires a certification is asserted is or may be liable to the cross claimant for all or
forum shopping as to non-forum shopping part of a claim asserted in the action against the cross-
claimant. 104
(a) It arises out of or is necessarily connected w/the 5. A REPLY is a pleading, the office or function of
transaction or occurrence that in the subject matter which is to deny or allege facts in denial or avoidance of new
of the party’s claim matters alleged by way of defense in the answer and thereby
(b) It does not require for adjudication the presence of join or make an issue as to such matters.
3rd parties over whom the court cannot acquire
transaction 5.1 If a reply is not filed, all new matters are
(c) It must be cognizable by the regular courts of deemed controverted. If plaintiff wishes to interpose any
justice claims arising out of the new matters so alleged, such claims
(d) It must be within the jurisdiction of the court both shall be set forth in an amended/supplemental complaint.
as to amount and the nature thereof, except that in
an original action before the RTC, counterclaim is 5.2 If the defense is based on an actionable document,
considered compulsory regardless of amount it must be replied to, otherwise it is admitted.
(e) It must already be existing at the time defending
party files his answer (Rule 6, Sec. 7, Rule 11, Sec. 6. A 3RD PARTY COMPLAINT is a claim that a
8) defending party may, WITH LEAVE OF COURT, file against
a person, NOT A PARTY, called 3RD party defendant. FOR
See Reyes De leon v Del Rosario, 435 SCRA 232, test to CONTRIBUTION INDEMNITY, SUBROGATION, OR ANY
determine whether counterclaim is compulsory or not. OTHER RELIEF in respect of his opponent’s claim.106
101
Supra, Section 9, Rule 11, Intramuros Administration v
Contacto, 402 SCRA 581
102 104
Supra, Section 12, Rule 6 Supra, Section 8, Rule 6
103 105
Lafarge Cement Philippines, Inc. v Luzon Continental Supra, Section 9, Rule 6
106
Land Corporation, 443 SCRA 522 Supra, Section 11, Rule 6
14
(b) IN PR0PER CASES, he may assert a counter- by : FIRST CAUSE OF ACTION etc. WHEN: 2 or more
claim against the ORIGINAL PLAINTIFF in respect paragraphs are addressed to one or several causes of action
to his claim against the 3rd party plaintiff.107 in the complaint, they shall be prefaced by: ANSWER TO
THE FIRST CAUSE OF ACTION – and so on. If it addresses
EXAMPLE: – a REINSURER (3rd party defendant) may several causes of action, the paragraphs shall be prefaced
set up in his answer the defense alleged by defendant insurer accordingly.
that loss is caused by plaintiff insured. However 3rd party
defendant cannot file a counterclaim against the original 2.3 Relief should be specified but it may add a general
plaintiff as there is no privity of contract. prayer for such further or other relief as may be deemed just
and equitable.
107
Supra, Section 13, Rule 6
108
Supra, Section 12, Rule 6
109 110
Supra, Section 1, Rule 7 Supra, Section 4, Rule 7
15
4.3 A VERIFICATION IS REQUIRED under rules CERTIFICATE shall constitute indirect contempt without
governing prejudice to corresponding administrative and criminal
actions. PROVIDED, that if the acts of the party or counsel
(a) cases covered by the Rules on Summary Procedure clearly constitute WILLFUL and DELIBERATE forum
(b) Petition for relief from judgment / order111 shopping, it shall then be ground for SUMMARY
(c) Petition for review112 DISMISSAL WITH PREJUDICE, and shall constitute
(d)Appeal by certiorari113 DIRECT CONTEMPT as well as cause for administrative
(e) Petition for annulment of judgment 114 sanctions.
(f) Injunction115
(g) Receivership116 5.3 Forum Shopping exists when as a result of an
(h) Support117 adverse opinion in one forum, a party seeks a favorable
(i) 69) Certiorari, Prohibition or Mandamus118 opinion, other than by appeal or certiorari, in another, or
(j) Quo Warranto119 when he institutes two or more actions or proceedings
(k) Expropriation120 grounded on the same cause, on the gamble that one or the
(l) Forcible Entry / Detainer121 other court would make a favorable disposition. The most
(m) Indirect Contempt 122 important factor in determining the existence of forum
shopping is the vaxation caused the courts and parties-
litigants by a party who asks different courts to rule on the
4.4 An improper verification is cured by amending same or substantially the same reliefs.125
the pleading with the CORRECT VERIFICATION
5.3.1 It also occurs when a party attempts to have his
action tried in a particular court or jurisdiction where he
5. CERTIFICATION AGAINST FORUM feels he will receive the most favorable judgment.
SHOPPING is executed by the plaintiff or principal party
who shall certify under OATH in the COMPLAINT or 5.3.2 It has been said to exist also where the elements of
INITIATORY PLEADING ASSERTING A CLAIM OR litis pendentia are present or where a final judgment in one
RELIEF – OR IN A SWORN CERTIFICATION ANNEXED case will amount to res judicata in another. Hence, the
THERETO AND SIMULTANEOUSLY FILE THEREWITH: following requisites concur:
(1) That he has not therefore commenced any action or (a) identity of parties, or at least such parties represent
filed any claim involving the same issues in any the same interests in both actions
COURT, TRIBUNAL OR QUASI-JUDICIAL (b) identity of rights asserted and relief prayed for, the
AGENCY, AND to the best of his knowledge, no relief being founded on the same facts, and
such other claim or action is pending therein (c) identity of the two preceding particulars is such
(2) If there is such other pending action or claim, a that any judgment rendered in the other action
complete statement of the present status thereof will, regardless, of which party is successful,
(3) That if he should thereafter learn that the same or amount to res judicata in the action under
similar action has been filed or is pending, he shall consideration. 126
report that fact within 5 days therefrom to the court
wherein his complaint / initiatory pleading has 5.4 The purpose of the certification against
been filed.123 forum shopping is to prohibit and penalize the evils of
forum shopping.127 Forum Shopping is a deplorable practice
5.1 The lack of a certification is not curable by because it results in unnecessarily clogging of the already
amendment, but such shall be cause for dismissal of the heavily burdened docket of the courts.128
complaint. The dismissal shall be without PREJUDICE
unless otherwise provided, upon motion and after 5.5 The execution of the certification is required to be
hearing.124 accomplished by the petitioner himself as it is the petitioner
himself who has actual knowledge of whether or not he has
5.2 The NON-COMPLIANCE WITH ANY OF THE initiated similar actions or proceedings in different courts or
UNDERTAKINGS OR SUBMISSION OF A FALSE agencies.
(a) Where the counsel is the Solicitor General has been CAN THE CERTIFICATION BE FILED
deemed to be substantial compliance134 LATER-
(b) Certification by acting regional counsel of NPC was
accepted because it was his basic function to General Rule – NO – Note Uy v. Land Bank GR 136100 July
prepare pleadings and to represent NPC – 24, 2000-REINSTATEMENT OF THE CASE AFTER
Mindanao – as such he was in the best position to MOTION TO ADMIT CERTIFICATION
know and certify if a similar action was pleading or
had been filed135 BUT: Loyola v. CA 245 S 477 – one day after, Roadway
(c) Certification was signed by counsel. The procedural Express v. CA 264 S 696 – 14 days before the CA dismissed
lapse may be overlooked in the interest of Petition for Review.
substantial justice.136
(d) Certification was executed by an in house counsel Shipside v. Ca – GR 143377, Feb 20, 2001 – motion for
is sufficient compliance with the Rules137 reconsideration – showing authority of petitioner to execute
certification prior to filing.
SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005 REASON – special or compelling reasons justified
relaxation of the Rule – IN Shipside – merits of case
The rule in Section 1, Rule 17 is that the plaintiff may justified deviation.
dismiss his complaint by filing a notice of dismissal at any
time before service of the answer or of a motion for
summary judgment. As a general rule, such dismissal is DISTINGUISH BETWEEN VERIFICATION /
without prejudice. Suppose P filed a complaint against D, CERTIFICATION
and before service of the answer or of motion for summary
judgment, P caused the dismissal of his complaint by filing a Verification Certification
notice of dismissal. Months later, P filed the same complaint
against D. In the certification on non-forum shopping -allegations are true and
no action/claim involving
appended to the second complaint, P failed to mention correct based on personal
the same issues have been
about the prior filing and dismissal of the first case. Is P’s knowledge/authentic
filed or is pending
failure to mention about the prior filing and dismissal of the records
first case fatal?
-required in complaints, Required only in
initiatory pleadings and in complaints / initiatory
some responsive pleadings. pleadings.
129
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy
v Guadalquiver, 429 SCRA 722 -may be cured by
cannot be cured by
130 amendment or order to
HCC Construction and Development Corporation v amendment
verify
Emily Homes Subdivision Homeowners Association, 411
SCRA 504 -may not result in dismissal results in dismissal
131
Dar v Alonso Legasto, 339 SCRA 306
132 -may be signed by counsel by the party himself
Docena v Lapesura, 355 SCRA 658
133
Hamilton v Levy, 344 SCRA 821
134
Commissioner of Internal Revenue v SC Johnson, 309
SCRA 87
135
Robern Development Corporation v Quitain, 315 SCRA
150
136
Sy Chin v Court of Appeals, 345 SCRA 673
137
Mercury Drug Corporation v Libunao, 434 SCRA 404
17
RULE 8 – MANNER OF MAKING HOW TO PLEAD CONDITIONS
PRECEDENT
ALLEGATIONS IN PLEADINGS
A general averment of the performance or occurrence of all
HOW ALLEGATIONS ARE MADE IN A conditions precedent is sufficient.140
PLEADING
(a)that earnest efforts at a compromise have been exerted,
In general, a pleading must contain in a METHODICAL and the suit being one between members of the same family
LOGICAL form a PLAIN, CONCISE, and DIRECT statement (b)that prior resort to conciliation has been undertaken to
of the ULTIMATE FACTS on which the party pleading relies no avail
for his claim or defense138
1. ULTIMATE FACTS are the essential facts PLEADING CAPACITY TO SUE AND TO BE
constituting the plaintiff’s cause of action. A fact is essential SUED
if it cannot be stricken out without leaving the statement of
the cause of action insufficient. The following must be averred:
(1) capacity to sue or be sued
Examples: (2) authority of a party to sue or be sued in a representative
(a) That an obligation has been constituted, that party must capacity
comply, that there is no compliance (3) legal existence of an organized association of persons
(b)That party is the owner of property, that he has a right to that is made a party.141
its use/possession, that he has been dispossessed
1. Note the cross reference to Sections 1 and 3, Rule 3
2. Mere EVIDENTIARY FACTS or those that are referring to who may be parties and representative parties,
necessary for the determination of the ultimate facts are to and to Section 1(d), Rule 16 referring to a motion to dismiss
be omitted. Evidentiary facts are the premises upon which on the ground of lack of legal capacity to sue, meaning that a
conclusions of ultimate facts are based. party is not in possession of his civil rights, does not have
the qualification to appear, or does not have the character or
Examples: representation claimed.
(a)That obligation as covered by promissory note was
executed before specified persons, that defendant has 2. A party desiring to raise the issue of lack of legal
several letters indicating intention to/or not to pay capacity shall do so by specific denial, which shall include
(b) How property was acquired such supporting particulars as peculiarly within the
pleader’s knowledge.
3. LAWS may be pleaded only if the pleading is an
Answer.
HOW TO AVER FRAUD, MISTAKE,
CONDITION OF MIND
PLEADING ALTERNATIVE CAUSES OF
ACTION OR DEFENSES Fraud and mistake must be stated with particularity.
Condition of mind, such as malice, intent, knowledge may be
1. A party may set forth two or more statements of a averred generally.142
claim or a defense alternatively or hypothetically, either in HOW TO AVER/ PLEAD A JUDGMENT/DECISION
one cause of action or defense or in separate causes of OF A DOMESTIC/FOREIGN COURT,
actions or defenses. If two or more statements are made in JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL
the alternative and if one of them if made independently BOARD
would be sufficient, the pleading is not made insufficient by
the insufficiency of one or more of the alternative It is sufficient that a general allegation of the existence of the
statements.139 judgment is made, without setting forth matter showing
jurisdiction to render it.143 Jurisdiction in this case is
Example: presumed.
(a) allegations for breach of contract of carriage and tort
(b) allegations for breach of contract and fraud
(c) defense of failure to repurchase by plaintiff and that IF ACTION/DEFENSE IS BASED ON AN
property was inherited are inconsistent defenses. ACTIONABLE DOCUMENT
2. Overruling of one does not bar other defense. 1. Where the action or defense is based on a written
However, if not set up, determination of one shall bar the document ( an actionable document) it is pleaded by
determination of the other.
(a) setting forth the substance of such document in the
3. The OBJECT OF PROVISION is to relieve a pleading and attaching the original/copy as an
party from making a definite election in cases where his annex OR
claim or defense might fall within two different substantive
classes. SO, a party may state as many claims/defenses as he
has regardless of inconsistency. 140
Supra, Section 3, Rule 8
141
Supra, Section 4, Rule 8
138 142
Supra, Section 1, Rule 8 Supra, Section 5, Rule 8
139 143
Supra, Section 2, Rule 8 Supra, Section 6, Rule 8
18
(b) setting it forth verbatim in the pleading.144 (c) Allegation of lack of knowledge or information
sufficient to form a belief as to the truth of the
2. AN ACTIONABLE DOCUMENT IS material averment in the pleading of the adverse
CONTESTED by specifically denying it under oath and party.
setting forth what he claims to be the fact.
1. If allegations are not denied in the prescribed
2.1 The requirement DOES NOT APPLY IF: manner, a party is deemed to have made a GENERAL
DENIAL which is TANTAMOUNT TO AN
(a) adverse party is not/does not appear to be a party ADMISSION.148(Section 11)
to the actionable document.
Example: Heirs are sued on a document executed 1.1 An exception to the rule are allegations that
by a person they will inherit from pertain to UNLIQUIDATED DAMAGES
(b) when compliance with an order for an inspection of 1.2 Note that when the allegations pertain to
the original document is refused.145 (a) allegations of usury in a complaint to recover
usurious interest,OR
(c) when the document is not an actionable document (b) genuineness and due execution of an actionable
but is merely evidence of the claim or existence of document are required to be made UNDER OATH
the actionable document . OTHERWISE THEY ARE ADMITTED.
Example: demand letters
STRIKING OUT OF A PLEADING OR
(d) when the party who has the benefit of an implied MATTER CONTAINED THEREIN
admission waives the benefit.
Example: he presents evidence as to genuineness If the pleading or any matter therein is SHAM, FALSE,
and due execution REDUNDANT, IMMATERIAL, IMPERTINENT OR
SCANDALOUS, the court can order the pleading or matter
3. The EFFECT of not SPECIFICALLY contained therein to be stricken therefrom
DENYING AN ACTIONABLE DOCUMENT UNDER
OATH is that the genuineness and due execution is (a) upon motion made by a party before responding to
admitted. MEANING, that it was executed by him/by a pleading
someone authorized by him, it was in the words/figures set (b) if no responsive pleading is allowed / permitted by
forth in the pleading, and that the formal requirements of the Rules, upon motion by a party within 20 days
law have been observed. THUS, there is no need to present it after service of the pleading, OR
formally in evidence because it is an admitted fact. (c) upon the Court’s own initiative149
(a) Specifically denying the material averment in the 1. A compulsory counterclaim or a cross-claim not set
pleading of the adverse party and setting forth the up shall also be barred.151
substance of the matter upon which he relies for
such denial Note that this is in consonance with the
(b) Deny only a part of the averment by specifying that requirement of the Rules that a a compulsory counterclaim
so much of it is true and deny the remainder
144 148
Supra, Section 7, Rule 8 Supra, Section 11, Rule 8
145 149
Supra, Section 8, Rule 8 Supra, Section 12, Rule 8
146 150
Supra, Section 9, Rule 8 Supra, Section 1, Rule 9
147 151
Supra, Section 10, Rule 8 Supra, Section 2, Rule 9
19
or cross claim existing at the time of the filing of the answer The available remedies of a defendant who is declared in
must be contained therein152 default are as follows:
BUT if it arises after the filing of an answer, it may 1. MOTION TO SET ASIDE ORDER OF
be set up in a supplemental pleading before judgment153 DEFAULT- under oath, filed at any time after notice of
declaration in default and before judgment. Defendant must
OR if failure is due to oversight, inadvertence, show by an AFFIDAVIT OF MERIT that failure to file an
excusable neglect or when justice requires, it may be set up answer was due to FAME and that he has a meritorious
by amendment with leave of court before judgment.154 defense
2. EFFECT OF A PARTIAL DEFAULT, where a In the following cases, default does not lie:
pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer (a) annulment of marriage
while others do not , THE COURT SHALL TRY THE CASE (b) declaration of nullity of marriage
AGAINST ALL UPON THE ANSWERS THUS FILED AND (c) legal separation
RENDER JUDGMENT UPON THE EVIDENCE (d) expropriation, and
PRESENTED.157 (e) forcible entry, illegal detainer and the other actions
covered by the Rules on Summary Procedure.
3. THE EXTENT OF RELIEF THAT MAY BE
AWARDED shall not exceed the amount or be different in In the first three cases, the court shall order the
kind from that prayed for nor award unliquidated prosecuting attorney to investigate whether or not collusion
damages.158 exists, and if there is no collusion, to intervene for the state
in order to see that the evidence so presented is not
fabricated.161
WHAT ARE THE REMEDIES OF A
DEFAULTED DEFENDANT
152
Supra, Section 8, Rule 11
153
Supra, Section 9, Rule 11
154
Supra, Section 10, Rule 11
155
Supra, Section 3, Rule 9
156 159
Supra, Section 3 (a), Rule 9 Supra, Rule 38
157 160
Supra, Section 3 (c), Rule 9 Supra, Rule 65
158 161
Supra, Section 3 (d), Rule 9 Supra, Section 3,(e), Rule 9
20
RULE 10 – AMENDED AND 2.1 That the amendments should not substantially
alter the cause of action or defense is NO LONGER THE
SUPPLEMENTAL PLEADINGS RULE as the Rules now allow the pleading of alternative
causes of action/defenses167 and that all such causes or
defenses must be pleaded in accordance with the rule on
WHAT ARE AMENDMENTS waiver.168
Amendments consist of: 2.2 The Trial Court may refuse leave or amendments
(1) Adding or striking out an allegation or the name of when:
any party
(2) Corrections of mistakes in the name of a party or (a) a responsive pleading has been filed and the
mistaken or inadequate allegation or description in any motion for leave to amend is made with intent to
other respect. delay
(b) purpose is to confer jurisdiction as the court must
first acquire jurisdiction before it can act169
PURPOSE FOR ALLOWING AMENDMENTS (c) purpose is to cure the defect of a non-existent cause
of action.
Actual merits of the controversy may speedily be determined Example: An amendment of the complaint to
without regard to technicalities and in the most expeditious correct its having been filed prematurely or when
and inexpensive manner. 162 the obligation was not yet due.
The kinds of amendments are: 2.4 PROBLEM: Complaint is filed against several
defendants. Some defendants answer, the others have not
1. Formal Amendments which are defects in the yet filed their answers. Amendments will be allowed as a
designation of the parties, other clerical or typographical matter of right against those who have not filed answers,
errors that may summarily be corrected provided no and with leave of court, as against those who have filed their
prejudice is caused the adverse party and are allowed at any answers.170
stage, at the Court’s own initiative or on motion.163
3. Substantial amendments can also be made when it
2. ALL OTHER AMENDMENTS ARE considered as is necessary to conform to the evidence. This occurs when
SUBSTANTIAL. issues are tried with the express or implied consent of
parties. If such, they are treated in all respects as if they have
been raised in the pleadings171, thus paving the way for an
WHEN AMENDMENTS CAN BE MADE amendment of the pleadings to conform to the evidence.
This is made upon motion of any party, even after judgment
1. Formal and Substantial amendments can be made THOUGH FAILURE TO AMEND DOES NOT AFFECT
once as a matter of right before a responsive pleading is THE RESULT OF THE TRIAL.
served, or in case of a Reply, at any time within 10 days after Example: Increased claim for the payment of
it is served.164 damages OR made to authorize presentation of evidence.
This occurs when evidence is objected to at the trial on the
1.1 Note that the FILING OF MOTION TO DISMISS ground that it is not within the issues made by the pleadings,
does not bar an amendment as it is not a responsive the court may allow the pleadings amended and shall do so
pleading, but can no longer be made if the order dismissing with liberality to authorize presentation of evidence.172
the complaint has become final.
3.1 THUS, the failure of a complaint to state a cause of
1.2 Prior to the filing of an answer, the plaintiff has the action may be cured by
absolute right to amend the complaint whether a new cause
of action or change in theory is introduced.165 (1) Presentation of evidence to prove that cause of
action followed by an amendment to conform to
2. After the filing of a responsive pleading, evidence, OR
Substantial amendments require leave of court, but leave (2) Evidence is objected to and the trial court sustains
may be refused if it appears to the court that the motion was the objection, this is then followed by an
on made with INTENT TO DELAY. Orders related to leave amendment with leave of court to authorize
shall be made upon motion filed in court, with notice to the presentation of evidence. Same remedies may be
adverse party and opportunity to be heard.166 resorted to WHEN A PARTY FAILS TO RAISE
A DEFENSE IN HIS PLEADING.
167
Supra, Section 2, Rule 8
162 168
Supra, Section 1, Rule 10 Supra, Section 1, Rule 9
163 169
Supra, Section 4, Rule 10 Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15
164
Supra, Section 2, Rule 10 SCRA 331
165 170
Remington Industrial Sales Corporation v Court of Siasoco v Court of Appeals, 303 SCRA 186
171
Appeals, 382 SCRA 499 Bernardo v Court of Appeals, 263 SCRA 660
166 172
Supra, Section 3, Rule 10 Supra, Section 5, Rule 10
21
THE EFFECTS OF AN AMENDED action mentioned in the original complaint, the court should
PLEADING not admit the supplemental complaint.179
173
Supra, Section 4, Rule 129
174 179
Supra, Section 8, Rule 10 APT v Court of Appeals, 324 SCRA 533
175 180
Supra, Section 7, Rule 10 Supra, Section 1, Rule 11
176 181
Supra, Section 9, Rule 11 and Section 2, Rule 9 Supra, Section 5, Rule 11
177 182
Supra, Section 6, Rule 10 Supra, Section 3, Rule 11
178 183
Shoemart, Incorporated v Court of Appeals, 190 SCRA Supra, Section 2, Rule 11, Section 128, Corporation
189 Code
22
6. If it is a supplemental complaint, within 10 days WHEN A COMPLAINT SHOULD BE FILED
from notice of the order admitting the supplemental
complaint. The answer to the complaint shall serve as the A complaint is not a responsive pleading. It is to be filed
answer to the supplemental complaint if no new or upon accrual of the cause of action or any time thereafter
supplemental answer is filed.184 but before it is barred by prescription.
NOTE that it is required that a compulsory counterclaim or 2. It is to be resorted to when the complaint is
a cross claim existing at the filing of defendant’s answer deficient in details with respect to the factual basis of each
must be included therein BUT, if it matures / or is acquired and every item claimed, but such deficiency is not such as to
after serving of answer, it may with the court’s permission amount to a failure to state a cause of action as the remedy
be presented as such in a supplemental pleading. If already then is to file a motion to dismiss.193
existing and not set up through oversight, inadvertence, or
excusable neglect, it may, by leave of court be set up as such
by amendment before judgment.186 WHEN SHOULD IT BE FILED
MAY THE TIME TO PLEAD BE EXTENDED Upon filing of the motion that points out the defects
complained of, the paragraphs wherein they are contained,
Upon motion and on terms as may be just, the Court it may and the details desired (it is a litigated motion, thus requires
extend or allow it to be filed after the time fixed by the a notice of hearing) – the CLERK OF COURT must
Rules.189 The court may also, upon like terms, allow an IMMEDIATELY BRING IT TO THE ATTENTION OF THE
answer or other pleading t be filed after the time fixed by COURT, who may deny or grant the motion OUTRIGHT or
these Rules. allow the parties an opportunity to be heard.194
1. NOTE that in cases covered by the Rules on 1. IF GRANTED, whether in WHOLE or in PART, the
Summary Procedure, the period cannot be extended nor compliance therewith must be effected within 10 days from
shortened. notice of order, unless a different period is fixed by the
Court.
2. In quo warranto cases, the period may be
shortened.190 2. The BILL OF PARTICULARS – may be filed
either in a separate or in an amended pleading, serving a
3. A lawyer shall not, after obtaining extensions of copy on the adverse party.195 ONCE filed, it becomes part of
time to file pleadings, memoranda, or briefs, let the period the pleading for which it is intended.196
lapse without submitting the same or offering an
explanation for failure to do so.191
184
Supra, Section 7, Rule 11
185
Supra, Section 4, Rule 11
186
Supra, Sections 8,9, and 10, Rule 11
187 192
Supra, Section 6, Rule 11 Supra, Section 1, Rule 12
188 193
Supra, Section 10, Rule 6 Sabangan v Manila Railroad Company, 28 SCRA 772
189 194
Supra, Section 11, Rule 11 Supra, Section 2, Rule 12
190 195
Supra, Section 8, Rule 66 Supra, Section 3, Rule 12
191 196
Rabanal v Tugade, 383 SCRA 484 Supra, Section 6, Rule 12
23
EFFECT OF NON-COMPLIANCE WITH registry receipt shall be date of the filing / deposit of court.
ORDER The envelope shall be attached to the record. It bears
stressing that it is the date of mailing, not the date of receipt
In case of failure to obey or insufficient compliance, the of the mail matter, which shall be considered as the date of
Court may order the pleading or portions thereof to which filing.204
the order was directed to be stricken out OR make such This has been the practice since mail is considered
order as it deems just.197 HENCE, it may also dismiss for an agent of the Government.205
failure of the plaintiff to obey order of the Court. 198 The This is also known as the MAILBOX RULE.
striking out of a complaint by the lower court upon motion
of the defendant for failure of the plaintiff to comply with an 2. The PAPERS that are to served or ARE TO BE
order requiring him to submit a bill of particulars as a FILED / SERVED are JUDGMENTS, RESOLUTIONS,
ground for dismissal is equivalent to an adjudication on the ORDERS, PLEADINGS SUBSEQUENT TO THE
merits unless otherwise provided by the court.199 COMPLAINT, WRITTEN MOTIONS, NOTICE,
APPEARANCES, REMAND, OFFER OF JUDGMENT OR
SIMILAR PAPERS SHALL BE FILED AND SERVED UPON
WHEN MUST A RESPONSE / ANSWER BE AFFECTED PARTIES206
FILED
After service of a bill / definitive pleading OR notice of WHAT ARE THE MODES OF SERVICE
denial of the motion for a bill of particulars, the moving
party has the remaining period that he was entitled to at the The general rule is that PLEADINGS, MOTION, NOTICES,
time of the filing of the motion, which shall not be less then ORDERS, JUDGMENTS AND OTHER PAPERS shall be
5 days in any event.200 served PERSONALLY or by MAIL.207
1. Where the address of the respondent’s counsel is 83 2. Late filing of the affidavit of service may be
kilometers away from the address of petitioner’s counsel, considered as substantial compliance with the Rules.219
such distance makes personal service impracticable, and a
written explanation why service was not done personally 3. Failure of a party to comply with the required proof
might have been superfluous. Liberal construction has been of service may be excused where the motion is not a
allowed in cases where the injustice to the adverse party is contentious motion and therefore, no right of the adverse
not commensurate with the degree of thoughtlessness in not party would be affected by the admission thereof.220
complying with the procedure prescribed.215
NOTICE OF LIS PENDENS
WHAT CONSTITUTES PROOF OF FILING Is an announcement to the world that a particular property
(real) is in litigation, serving as a warning that one who
Proof of filing is shown by: acquires the property or an interest therein does at his own
(a) existence of the pleading or other paper in the risk which is filed with the Office of the Register of Deeds of
records of the case the place where the property is located.
(b) If not in the record, but is claimed to be:
1. It shall contain
(1) FILED PERSONALLY by the written / stamped (a) the names of the parties
acknowledgment of its filing by the Clerk of Court (b) object of the action or defense
on a copy, and (c) description of the property.221
211 216
Supra, Section 9, Rule 13 Supra, Section 12, Rule 13
212 217
Supra, Section 8, Rule 13 Supra, Section 13, Rule 13
213 218
Supra, Section 10, Rule 13 Cruz v Court of Appeals, 388 SCRA 72
214 219
Supra, Section 11, Rule 13 Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
215 220
Maceda v. De Guzman vda de Macatangay, 481 SCRA PEA v Caoibes, Jr., 312 SCRA 767
221
415 Supra, Section 14, Rule 13
25
affected thereby, be deemed to have constructive notice of 1. An Officer having management of a jail or
the pendency of the action and only of its pendency against institution, if a defendant is a prisoner therein is deputized
parties designated by their real names as a special sheriff for service of summons.228
3. Service by publication with leave of court, obtained Service of summons is to be made upon the defendant.
by the filing of a motion in writing, supported by an affidavit If the defendant is:
of the plaintiff or some person in his behalf, setting forth the
ground that allows resort to it.237 (a) AN ENTITY WITHOUT JURIDICAL
PERSONALITY it is to be served upon any one of
3.1 The grounds that allow service of summons them or upon person in charge of the office or place
by publication are: of business maintained in such name BUT such
shall not bind individually any person whose
(a) Identity of the defendant is unknown OR whereabouts of connection with the entity has, UPON DUE
the defendant is unknown and cannot be ascertained by NOTICE, been severed before the action has
diligent inquiry238 brought244
(b) Defendant does not reside and is not found in the
Philippines but the suit can be maintained against him (b) MINOR, INSANE OR OTHERWISE
because it is in REM OR QUASI IN REM239 INCOMPETENT it is to be served upon him
(c) Defendant is a Philippine resident but is temporarily out personally and his guardian / or guardian ad litem.
of the country.240 In addition, in case of a minor, service may also be
Note the cross reference with Section 15 and the made on his father or mother245
fact that SUBSTITUTED SERVICE MAY ALSO BE
AVAILED OF. (c) REPUBLIC OF THE PHILIPPINES it is to be
served on the Solicitor General 246
4. Extra-Territorial Service is allowed in suits against
a non-resident defendant not found in the Philippines can (d) PROVINCE, CITY,MUNICIPALITY OR
be made by: SIMILAR PUBLIC CORPORATION it is to be
served on the executive head, or on such other
4.1 (a) Personal service officers as the law or court may direct247
(b) Publication in a newspaper of general
circulation in such places and for such time as the court may (e) DOMESTIC PRIVATE JURIDICAL ENTITY
order, in which case a copy of the summons and order of the its is to be served on the president, managing
court shall be sent by registered mail to the last known partner, general manager, corporate secretary,
address treasurer or in house counsel.248 Note the
(c) Or any other manner the court may deem abandonment of doctrine of substantial
sufficient.241 Resort to registered mail has been deemed compliance.249
appropriate.242
(f) FOREIGN PRIVATE JURIDICAL ENTITY it is
4.2 EXTRA-TERRITORIAL SERVICE CAN BE to be served upon its resident agent. If there be no
AVAILED OF when: resident agent, the Government official designated
by law such as the SEC, Insurance Commissioner,
(a) Action affects the personal status of the plaintiff Superintendent of Banks. If none, any of its officers
(b) Action relates to, or the subject of which is property or agents in the Philippines.
within the Philippines in which the defendant has or claims
a lien or interest, actual or contingent Note the required sequence of service. In addition,
(c) When the relief demanded, in whole or in part consists if a lawyer enters an appearance without proof of having
of excluding the defendant from any interest in property been engaged by the foreign corporation, no voluntary
located in the Philippines appearance can be inferred.250
(d) When the defendant’s property has been attached in the
Philippines.243
AFTER SERVICE IS COMPLETE, WHAT
4.3 Resort to extra-territorial service requires leave of MUST SERVER DO
court.
1. Within 5 days after completion, a copy of the return
must be served, personally or by registered mail, to
plaintiff’s counsel, and he shall return the summons to the
clerk of court who issued it together with proof of service.251
236 244
Samartino v Raon, 383 SCRA 664 Supra, Section 8, Rule 14
237 245
Supra, Section 17, Rule 14 Supra, Section 10, Rule 14
238 246
Supra, Section 14, Rule 14 Supra, Section 13, Rule 14
239 247
Supra, Section 15, Rule 14 Supra, Section 13, Rule 14
240 248
Supra, Section 16, Rule 14 Supra, Section 11, Rule 14
241 249
Supra, Section 15, Rule 14, Valmonte v Court of Mason v Court of Appeals, 413 SCRA 303, E.B.
Appeals, 252 SCRA 92 Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
242 250
Cariaga v Malaya, 143 SCRA 441 Litton Mills v Court of Appeals, 256 SCRA 696
243 251
Supra, Section 15, Rule 14 Supra, Section 4, Rule 14
27
2. PROOF OF SERVICE is the writing executed by him on his objection. The objective is to avoid a capricious
the server setting forth change of mind in order to provide due process to both
parties and ensure impartiality.259
(1) the manner, place and date of service;
(2) the paper/s which have been served with the 4.2 The absence of the notice of hearing will not toll the
process and name of the person who received the running of the reglementary period for appeal.260
same. IT SHALL BE SWORN TO WHEN MADE BY
A PERSON OTHER THAN THE SHERIFF / 5. It must be served, together with the notice of
DEPUTY.252 hearing on the adverse party at least 3 days before the date
of hearing UNLESS THE COURT FOR GOOD CAUSE SETS
2.1 IF SUMMON IS BY PUBLICATION, PROOF OF THE HEARING EARLIER.261
SERVICE CONSISTS OF:
5.1 The purpose of the three day notice rule is to avoid
(a) Affidavit of printer, foreman, principal clerk editor, surprise upon the opposite party and to give him time to
business manager or advertising manager, COPY study and meet the arguments of the motion.262
OF PUBLICATION ATTACHED, and
(b) Affidavit showing the deposit of a copy of the 6. There must be proof of service of every written
summons and order for publication in the post motion set for hearing otherwise it shall not be acted
office, postage prepaid directed to the defendant by upon.263
registered mail at / to his last known address.253
6.1 As a general rule, proof of service is mandatory.264
3. It shall be set for hearing by the applicant except 1.1 This is the OMNIBUS MOTION RULE.268
when the motion can be acted upon by the court without
prejudicing the rights of the adverse party.257 Example: 1.2 The purpose of the Rule is to obviate multiplicity of
Motion for extension of time to plead motions as well as discourage dilatory pleadings. 269
Litigants should not be allowed to reiterate identical
4. It must contain a notice of hearing addressed to all motions speculating on the possible change of opinion of the
parties concerned, specifying the time, date of the hearing court or judges thereof.270
which must not be later than 10 days after the filing thereof.
258
1.3 It requires the movant to raise all available
exceptions in a single opportunity to avoid multiple
4.1 A motion without a notice of hearing is pro-forma piecemeal objections. But to apply the statutory norm, THE
or a mere scrap of paper. It presents no question which the
court should decide. The rationale behind the rule is plain: 259
unless the movant sets the time and place of hearing, the Fajardo v Court of Appeals, 354 SCRA 736
260
court will be unable to determine whether the adverse party Cledera v Sarmiento, 39 SCRA 553
261
agrees or objects to the motion, and if he objects, to hear Supra, Section 4, Rule 15
262
Remonte v. Bonto, 16 SCRA 257
263
Supra, Section 6, Rule 15
252 264
Supra, Section 18, Rule 14 Cruz v Court of Appeals, 388 SCRA 72
253 265
Supra, Section 19, Rule 14 Sumadchat v Court of Appeals, 111 SCRA 488
254 266
Supra, Section 1, Rule 15, Supra, Section 7, Rule 15
255 267
Supra, Section 2, Rule 15 Supra, Section 1, Rule 9
256 268
Supra, Section 3, Rule 15 Supra, Section 8, Rule 15
257 269
Supra, Section 4, Rule 15 Dacanay v Alvendia, 30 SCRA 31
258 270
Supra, Section 5, Rule 15 Miranda v Court of Appeals, 71 SCRA 295
28
OBJECTIONS MUST BE AVAILABLE TO THE 4. Plaintiff has no legal capacity to sue
PARTY AT THE TIME THE MOTION WAS FILED.271
4.1 This means that he is not in exercise of his civil
2. IF MOTION IS ONE FOR LEAVE TO FILE A rights, or does not have the necessary qualification to appear
PLEADING OR MOTION, IT SHALL BE ACCOMPANIED or does not have the character / representation he claims AS
BY THE PLEADING / MOTION SOUGHT TO BE OPPOSED TO the LACK OF PERSONALITY TO SUE which
ADMITTED.272 Example: Motion for leave to admit means that he is NOT the real party in interest, and the basis
amended complaint. for dismissal then is NO CAUSE OF ACTION or FAILURE
TO STATE A CAUSE OF ACTION.278
3. As to FORM, the Rules applicable to pleadings
shall apply to written motions as far as it concerns captions, 5. There is another action pending between the same
designation, signature and other matters.273 parties for the same cause
RULE 16 – MOTION TO DISMISS 5.2 The REQUISITES for its application are:
2. The court has not jurisdiction over the subject (a) Former judgment must be FINAL
matter of the claims (b) Rendered by a court having jurisdiction
over the subject matter and the parties
3. Venue is improperly laid (c) It must be a judgment or order on the
merits
3.1 An objection to improper venue must be made (d) There must be between 1st / 2nd action,
before a responsive pleading is filed, otherwise it is deemed identity of parties / subject matter /
waived.277 causes of action
271
PH Credit Corporation v Court of Appeals, 370 SCRA
155
272
Supra, Section 9, Rule 15
273 278
Supra, Section 10, Rule 15 Columbia Pictures, Inc. v Court of Appeals, 261 SCRA
274
Panganiban v Pilipinas Shell Petroleum Corporation, 144, Travelwide Assn of the Phil. v. Court of Appeals, 199
395 SCRA 624 SCRA 205
275 279
Supra, Section 6, Rule 16 Victronics Computer v RTC, 217 SCRA 517
276 280
Supra, Section 1, Rule 16 Teodoro v Mirasol, 99 Phil 150
277 281
Fernandez v ICB, 316 SCRA 326 Roa-Magsaysay v Magsaysay, 98 SCRA 592
29
6.2 The DOCTRINE IS FOUNDED ON 2 10.1 In certain cases, referral of a case to the Lupon is a
GROUNDS: condition precedent for filing a complaint in court. It is not
jurisdictional.285 It may be waived if not raised seasonably in
(a) Public policy and necessity which makes it a motion to dismiss.286
in the interest of the state that there
should be an end to litigation
(b) Litigant should be spared the hardship of RESOLUTION OF A MOTION TO DISMISS
being vexed twice for the same cause
1. It shall BE HEARD287, at the hearing, the parties
6.3 NOTE that there can be no res judicata in support shall submit arguments on the questions of law and evidence
cases as future support cannot be compromised.282 on the questions of law and fact involved EXCEPT THOSE
NOT AVAILABLE AT THAT TIME. SHOULD THE CASE
6.4 Statute of Limitations or prescription is a statute GO TO TRIAL, EVIDENCE DURING THE HEARINGS
establishing a period of time from the accrual of a cause of SHALL AUTOMATICALLY BE PART OF THE EVIDENCE
action within which a right of action must be exercised. If OF PARTY PRESENTING THE SAME.
the action is not brought within the period, then it is barred.
2. After the hearing, Court shall either DISMISS THE
7. The pleading asserting the claim states no cause of ACTION, DENY THE MOTION OR ORDER AMENDMENT
action. OF THE PLEADING, stating clearly and distinctly the
reasons for the action taken.288
7.1 The TEST OF SUFFICIENCY OF A CAUSE OF
ACTION is: Whether accepting the veracity of the facts 2.1 It is now mandated that the Court cannot defer
alleged in the complaint, the Court can render judgment resolution of the motion based on the reason that the
(valid) upon the same in accordance with the prayer in ground relied upon does not appear to be indubitable or
complaint. sure
2. Filing a motion to dismiss but such will not result RULE 18 – PRE-TRIAL
in dismissal without the approval of the court and upon
terms and conditions as the court deems proper. WHAT IS PRE-TRIAL
BUT, if a counterclaim has been pleaded before service
of motion to dismiss – the dismissal is limited to the It is a procedural devise intended to clarify and limit the
complaint. If shall be without PREJUDICE TO RIGHT OF basic issues between the parties. Its main objective is to
DEFENDANT to prosecute his counterclaim in a separate simplify, abbreviate and expedite trial, or otherwise
action unless within 15 days from notice of the motion he dispense with it.296
manifests a preference to have it resolved in the same action.
UNLESS specified, a dismissal is without prejudice. NOTE It is a conference or hearing at which the court, with the
also that a CLASS SUIT shall not be dismissed or cooperation of the parties, seek to determine definitively
compromised without the approval of the Court.292 what precisely are the factual issues to be tried and how each
party intends to establish his position on each disputed
COURT DISMISSAL ON ITS MOTION OR factual issue.
THAT OF DEFENDANT
The court can motu propio or upon motion of the defendant WHEN CONDUCTED
dismiss a complaint when:
(a) If, for no justifiable reason, the plaintiff fails to appear After the last pleading has been served and filed. It shall be
on the date of the presentation of his evidence in chief on the the duty of the plaintiff to move ex-parte that the case be set
complaint for pre-trial.297
(b) If, for no justifiable reason, plaintiff fails to prosecute
his action for an unreasonable length of time 1. SC Adm. Circular 3-99 dated January 15, 1999
(c) If, for no justifiable reason, plaintiff fails to comply with defined promptly as 5 days.
Rules of Court or any order of the Court.
2. SC Administrative Matter No. 03-1-09, SC, Section
DISMISSAL IS WITHOUT PREJUDICE TO RIGHT A (1.2) Should the plaintiff fail to move ex-parte to set case
OF THE DEFENDANT TO PROSECUTE HIS for pre-trial, the branch clerk of court should issue a notice
COUNTERCLAIM IN THE SAME OR SEPARATE ACTION of pre-trial.
and SHALL HAVE THE EFFECT OF ADJUDICATION ON
THE MERITS, UNLESS OTHERWISE DECLARED BY THE 2.1 The same circular also requires that the presiding
COURT.293 judge direct the parties to mediation, if possible. If it fails it
will schedule the pre-trial BUT IT MAY ALSO SCHEDULE A
1. The REMEDIES OF THE PLAINTIFF are: PRELIMINARY CONFERENCE before the branch clerk of
court to assist them in REACHING A SETTLEMENT, PRE-
(a) Appeal the dismissal as it is a FINAL MARKING OF DOCUMENTS AND EXHIBITS AND TO
ORDER, or CONSIDER OTHER MATTERS THAT WILL AID IN
(b) If without prejudice, REFILE THE PROMPT DISPOSITION. The JUDGE is also directed to
ACTION as an order dismissing without consider assisting the parties in effecting a settlement given
prejudice is not subject to appeal. the evidence of the parties.
2. At the pre-trial, the court ordered the parties to 3. The last pleading is the answer to the original
submit a compromise agreement within a ten day period. complaint, cross claim, or, third party complaint AND the
The parties were unable to submit the compromise reply.
agreement, thus leading to a dismissal. There is nothing in
the rules that imposes a sanction for failure to submit a
compromise agreement.294 NATURE AND PURPOSE
291 295
Supra, Section 1, Rule 17 Supra, Section 4, Rule 17
292 296
Supra, Section 2, Rule 17 Interlining v Philippine Trust Company, 378 SCRA 521
293 297
Supra, Section 3, Rule 17 Supra, Section 1, Rule 18
294 298
Ruiz, Jr v CA, 212 SCRA 660 Supra, Section 2, Rule 18
31
3. Necessity / desirability of amendment to the WHAT MUST BE FILED BEFORE PRE-
pleadings TRIAL
4. Possibility of obtaining stipulations or admissions A pre-trial brief must be filed and served on the adverse
of fact and of documents to avoid unnecessary proof party at least 3 days before the pre-trial containing:303
The parties and counsel are required to be present during FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE
the pre-trial. A party may be excused if: THE SAME EFFECT AS FAILURE TO APPEAR
(a) A valid cause is shown therefore
(b) A representative shall appear duly
authorized in writing to do the following: PRE-TRIAL ORDER
(1) enter into amicable settlement;
(2) submit to alternative modes of Proceedings shall be recorded. Upon termination, court
dispute resolution; shall issue an order which shall recite in detail:
(3) enter into stipulations /
admissions of fact / (a) matters taken up
documents.300 (b) action taken thereon
(c) amendments allowed to the pleadings
(d) agreements / admissions made by the
EFFECT OF FAILURE TO APPEAR parties as to any of the matters taken
(e) explicitly defining and limiting the issues
1. If plaintiff fails to appear despite DUE NOTICE, he to be tried. OBJECT – it shall control the
may be declared NON SUITED and the complaint subsequent course of the action, UNLESS
DISMISSED. The dismissal shall be with prejudice, MODIFIED TO PREVENT MANIFEST
unless otherwise ordered by the court. HIS INJUSTICE. 305
REMEDY is to appeal order of dismissal because it
is a FINAL resolution. If dismissed without 1. Pre-trial is primarily intended to make certain that
prejudice, he can REFILE the complaint all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are
2. If defendant fails to appear despite due notice, expected to disclose at a pre-trial conference all issues of law
plaintiff IS ALLOWED to present his evidence ex- and fact which they intend to raise at the trial, except such
parte and the court may render judgment on the as may involve privileged or impeaching matters. The
basis thereof. 301 determination of issues at a pretrial conference bars the
consideration of other questions on appeal.306
3. AS A RULE, THERE CAN BE NO SECOND PRE-
TRIAL UNLESS BOTH PARTIES CONSENT.302
303
Supra, Section 6, Rule 18
299 304
Supra, Section 3, Rule 18 Section 6, SC Adm. Circular 3-99, January 15, 1999
300 305
Supra, Section 4, Rule 18 Supra, Section 7, Rule 18
301 306
Supra, Section 5, Rule 18 Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406
302
Young v Court of Appeals, 204 SCRA 584 SCRA 88
32
2. NOTE THAT TRIAL SHALL BE LIMITED TO
ISSUES STATED IN THE PRE-TRIAL ORDER.307 2. The pleadings in intervention are
3. Notwithstanding, courts are not required to resolve (a) Complaint in Intervention, if he asserts a
all issues raised in pleading unless necessary for the claim against either or all of the original
resolution of the case.308 parties, OR
(b) Answer in Intervention, if he unites with
the defending party in resisting the claim
of the plaintiff. 313
RULE 19 – INTERVENTION
3. If granted, a complaint in intervention is to be
replied to within 15 days from notice of the order admitting
the same unless a different period is fixed by the court.
WHO MAY INTERVENE
4. NO INTERVENTION IS ALLOWED IN LAND
A person who has a REGISTRATION CASES as the remedy is to file an
(a) legal interest in the matter in litigation OPPOSITION. Neither is it allowed in cases covered by the
(b) has legal interest in the success of either of Rules on Summary Procedure.
the parties
(c) has an interest against both or 5. Intervention is merely collateral or accessory or
(d) is so situated as to be adversely affected by ancillary to the principal action and not an independent
a distribution or other disposition of proceeding. Hence, with the final dismissal of the original
property in the custody of the court or an action, the complaint in intervention can no longer be acted
officer thereof.309 upon.314
307 313
Supra, Section 5, Rule 30 Supra, Section 3, Rule 19
308 314
IBAA vs. IAC, 167 SCRA 450 Barangay Matictic v Elbinias, 148 SCRA 83
309 315
Supra, Section 1, Rule 19 Foster-Gallego v Galang, 435 SCRA 275
310 316
Roxas v Dinglasan, 28 SCRA 430 Supra, Section 1, Rule 20
311 317
Supra, Section 19, Rule 3 Supra, Section 2, Rule 20
312 318
Supra, Section 2, Rule 19 Ang v Bello, 163 SCRA 358
33
RULE 21 – SUBPOENA within 100 kilometers from where he resides, observing the
following steps:
(a) Party desiring to take deposition shall give
reasonable notice in writing to every other
WHAT IS A SUBPOENA party in the action stating the TIME,
PLACE AND NAME/ADDRESS OF
A process directed to a person requiring him to attend and PERSON WHOSE DEPOSITION IS TO
testify at the hearing or trial of an action, or at any BE TAKEN. There should be proof of
investigation conducted by competent authority, or the service of the notice
taking of his deposition (b) Proof of service of notice to take
deposition shall be presented to the clerk
of court of the place where deposition is to
KINDS OF SUBPOENA be taken
(c) On the basis of such proof of service, the
The kinds of subpoena are: clerk upon authority and under seal of the
(a) SUBPOENA AD TESTIFICANDUM if it court, shall issue the subpoena BUT a
directs and requires a person to attend subpoena duces tecum cannot be issued
and testify, OR without an order of the Court
(b) DUCES TECUM if it requires him to bring (d) Subpoena is to be served on witness
books/documents/or other things under whose deposition is to be taken.325
his control.319
2. Witness is a detention prisoner, if no permission of
the court in which his case is pending is obtained or if the
BY WHOM ISSUED witness is a prisoner sentenced to death, reclusion perpetua
or life imprisonment and is confined in a penal institution, if
A subpoena is issued by authority of the SC to bring out the prisoner has not been
(a) The court before whom the witness is obtained. The court should examine and study the
required to attend application properly to determine if it is being made for a
(b) The court where deposition is to be taken valid purpose.326
(c) Officer or body authorized by law to do so
in connection with investigations that it
may conduct FORM AND CONTENTS OF SUBPOENA
(d) Any justice of the Supreme Court/Court of
Appeals in any case or investigation A subpoena must contain the following:
pending within the Philippines320
(a) Name of the court
1. A request by a party for the issuance of a subpoena (b) Title of action/investigation AND IS TO
does not require notice to other parties to the action.321 BE DIRECTED to the person whose
attendance is required. IF DUCES
2. In taking depositions, the clerk of court shall not TECUM, in addition, it must contain a
issue a subpoena duces tecum without a court order.322 reasonable description of the books,
documents, things demanded which is
3. Absent any proceeding, suit or action, commenced must appear to the Court to be PRIMA
or pending before a court, a subpoena may not issue.323 FACIE relevant.327
319
Supra, Section 1, Rule 21 2. If AD TESIFICANDUM, it may be quashed on
320
Supra, Section 2, Rule 21 the following grounds:
321
Adorio v Bersamin, 273 SCRA 217
322 325
Supra, Section 5, Rule 21 Supra, Section 5, Rule 21
323 326
Collado v Bravo, 356 SCRA 411 Supra, Section 2, Rule 21
324 327
Supra, Section 10, Rule 21 Supra, Section 3, Rule 21
34
(a) Witness is not bound by the subpoena
(b) Witness fees and kilometrage allowed by rules were EFFECT OF INTERUPTIONS
not tendered when the subpoena was served.328
Allowable period after interruption shall start to run on the
day after, notice of the cessation of the cause thereof. The
HOW IS A SUBPOENA SERVED day of the act that caused cessation shall be excluded in the
computation of the period.
In the same manner as personal or substituted
service of summons, original is to be exhibited and delivered 1. RULE ON COMPUTATION OF TIME DOES NOT
to person on whom it is served – tendering the fees for one APPLY TO PRESCRIPTION OF OFFENSES or
day attendance at the kilometrage allowed by Rules PRESCRIPTION OF CAUSES OF ACTION. Hence, if the
EXCEPT if subpoena is issued by or on behalf of the last day falls on a Saturday, Sunday or legal holiday, it
Republic of the Philippines or an officer or agency thereof. prescribes on the said date.
Tender must be made so as to allow the witness a reasonable
time for preparation or travel to the place of attendance.329
334
Supra, Rule 23
328 335
Supra, Section 4, Rule 21 Supra, Rule 24
329 336
Supra, Section 6, Rule 21 Supra, Rule 25
330 337
Supra, Section 7, Rule 21 Supra, Rule 26
331 338
Supra, Section 8, Rule 21 Supra, Rule 27
332 339
Supra, Section 9, Rule 21 Supra, Rule 28
333 340
Supra, Section 1, Rule 22 Supra, Section 1, Rule 23
35
WHOSE DEPOSITION MAY BE TAKEN, requirement to pay costs/expenses as the Court may deem
HOW TAKEN, BY WHOM reasonable.343
2. During the taking of the deposition, it shall be A. DEPOSITION UPON ORAL EXAMINATION
taken subject to the following limitations:
1. Giving of reasonable notice in writing to every
2.1 During the taking of the deposition, on motion or other party to the action, which must state the time / place
petition of any party or the deponent upon showing that the of the taking of the deposition and the name and address of
examination is being conducted in BAD FAITH on IN SUCH the person to be examined, if known, IF NOT KNOWN, a
MANNER as UNREASONABLY to ANNOY EMBARRASS general description sufficient to identify him or the
OR OPPRESS the DEPONENT, or a party – the COURT particular class or group to which he belongs. ON MOTION
where the action is pending or the RTC of the place where OF PARTY UPON WHOM NOTICE IS SERVED, the
deposition is being taken may ORDER the officer taking the COURT, for CAUSE, may ENLARGE OR SHORTEN THE
examination to cease forthwith – or limit the scope as TIME.347
provided in Section 16.
2. Officer taking the deposition shall put the witness
2.2 If terminated, it shall be resumed thereafter only under oath and shall personally, or by someone acting under
upon order of the Court in which the action is pending. his direction and his presence record the testimony of the
UPON DEMAND of the OBJECTING PARTY/DEPONENT, witness stenographically unless the parties agree otherwise.
the taking shall be suspended for the time necessary to make
a notice for an order. In granting/refusing such order, the
court may impose upon either party or upon the witness the 343
Supra, Section 18, Rule 23
344
Supra, Sections 10 and 14, Rule 23
345
Supra, Sections 11, 12, and 14, Rule 23
341 346
Supra, Section 2, Rule 23 Supra, Section 13, Rule 23
342 347
Supra, Section 16, Rule 23 Supra, Section 15, Rule 23
36
All objections as to QUALIFICATION OR OFFICER attendance plus attorney’s fees to a party who appears in
TAKING DEPOSITION, MANNER OF TAKING EVIDENCE person or by counsel354 (Section 24)
PRESENTED, CONDUCT OF PARTIES OR ANY OTHER
OBJECTION – shall be NOTED – ANY EVIDENCE B. DEPOSITION UPON WRITTEN
OBJECTED TO SHALL BE TAKEN SUBJECT TO INTERROGATORIES
OBJECTIONS. PARTIES SERVED WITH NOTICE, IN LIEU
OF PARTICIPATING IN THE TAKING OF DEPOSITION, 1. Party desiring to take the deposition upon
may submit written interrogatories – which the officer WRITTEN INTERROGATORIES shall serve them upon
taking the deposition shall propound to the witness and every other party with notice stating:
record the answers VERBATIM.348
(1) name and address of the person who will
3. After the taking of the deposition – and testimony answer them
is transcribed – it is submitted to the witness for (2) descriptive title and address of the person
examination and shall be read to or by him, unless such is who will take the deposition
waived by the witness and the parties. IF THERE ARE (3) Within 10 days, party served may serve
CHANGES – IN FORM / SUBSTANCE – which the witness cross-interrogatories on the party
desires to make – it shall be entered upon the deposition by proposing to take the deposition
the officer with a statement as to the reason given by the (4) Within 5 days thereafter, the latter may
witness as why they are being made. The deposition is then serve re-direct INTERROGATORIES upon
SIGNED BY THE WITNESS, unless the parties by the party serving cross–interrogatories
stipulation waive the signing, or the witness is ill OR cannot (5) within 3 days after being served of re-
be found OR refuses to sign. direct INTERROGATORIES, a party may
serve re-cross interrogatories upon party
IF NOT SIGNED, officer shall sign it and state on the proposing to take deposition.355
record why it was not signed together with reasons. If there
is refusal to sign, the EFFECT is that the deposition then 2. A copy of the notice and copies of all
may be used fully as though signed, unless on a motion to interrogatories shall be delivered by the party taking the
suppress under Sec 29 (f) {errors or irregularities in deposition to officer designated in the notice, who shall
preparation}, the Court holds that the reason for refusal to proceed promptly in the manner provided by Sections 17, 19
sign require rejection of the deposition in whole or in and 20 to take the testimony of the witness in response to
part.349 the interrogatories and to prepare, certify, and file / mail the
deposition attaching copies of the notice and
4. Once signed, the officer shall certify on the interrogatories.356
deposition that the witness was duly sworn to by him and
that the deposition is a true record of the testimony of the 3. Officer must promptly give notice of filing / and
witness. He shall then securely seal the deposition in an may furnish copies to parties and deponent upon payment
envelope endorsed with the title of the action and marked of reasonable charges.357
“deposition of _______” to be promptly FILED WITH THE
COURT WHERE ACTION IS PENDING – OR SENT BY NOTE: that Sections 15, 16 and 18 are applicable and that by
REGISTERED MAIL TO THE CLERK THEREOF FOR motion, it can be asked that the deposition be upon oral
FILING.350 examination.
5. Notice of filing shall then promptly be given by the 4. SEE: Gerochi vs. Dept of Energy GR 159796, April
officer to all parties351 and upon payment of reasonable 5, 2005
charges, he is to furnish copies of the deposition to any party
or the deponent. 352
DISTINGUISHED FROM
INTERROGATORIES TO PARTIES UNDER
EFFECT OF NON-APPEARANCE RULE 25
1. IF PARTY GIVING NOTICE FAILS TO APPEAR An interrogatory under Rule 25 is allowed UNDER THE
AND ANOTHER ATTENDS IN PERSON OR BY COUNSEL, SAME CONDITIONS AS SPECIFIED IN SECTION 1, RULE
the Court may order the party giving notice to pay 23 as to when it is to be had and is for the purpose of
reasonable expenses incurred to attend, including enabling any party desiring to elicit material facts / relevant
reasonable attorney’s fees. 353 facts from any ADVERSE PARTY by the filing and service
upon the latter of a written interrogatory to be answered by
2. IF PARTY GIVING NOTICE DOES NOT SERVE the party served or if party is public / private corporation or
SUBPOENA AND WITNESS DOES NOT APPEAR, Court a partnership / association by any officer thereof competent
can order party giving notice to pay reasonable expenses for to testify in its behalf.358
348
Supra, Section 17, Rule 23
349 354
Supra, Section 19, Rule 23 Supra, Section 24, Rule 23
350 355
Supra, Section 20, Rule 23 Supra, Section 25, Rule 23
351 356
Supra, Section 21, Rule 23 Supra, Section 26, Rule 23
352 357
Supra, Section 22, Rule 23 Supra, Section 27, Rule 23
353 358
Supra, Section 23, Rule 23 Supra, Section 1, Rule 25
37
HOW AND WHEN ANSWERED HOW IS A DEPOSITION BEFORE ACTION
OBTAINED
Responses, which must be signed and sworn to, must be
filed within 15 days from service, unless the Court on motion By the filing of a verified petition by a person desiring to
and for good cause shown extends or shortens the time 359 perpetuate his testimony or that of any person in relation to
any matter cognizable in any court in the Philippines in the
Court in the place of residence of the expected adverse
CAN THEY BE OBJECTED TO party. 364
Yes, objections may be presented to the court within 10 day 1. The CONTENTS OF THE PETITION which
after service of notice as in the case of a motion, answers shall be entitled in the name of the petitioner and should
shall then be deferred until objections are resolved, which show:
shall be as early a time as is practicable.360
(a) That petitioner expects to be a party to an action in
a Court in the Philippines but is presently unable to
bring it or cause it to be brought
HOW MANY INTERROGATORIES (b) The subject matter of the expected action and his
interest therein
No party may, without leave of court, serve more than one (c) The facts that he desires to establish by the
set of interrogatories to be answered by the same party.361 proposed testimony and his reasons for desiring to
perpetuate it
(d) The names or description of the person he expects
SCOPE AND USE will be adverse parties and their addresses so far as
known
It may relate to any matters that can be inquired into under (e) The names and addresses of the persons to be
Section 2, Rule 23 and the answers used for the same examined and the substance of the testimony which
purpose provided for by Section 4, Rule 23362 he expects to elicit from each AND SHALL THEN
ASK FOR AN ORDER authorizing the petitioner to
take the depositions of the persons to be examined
EFFECT OF FAILURE TO SERVE WRITTEN named in the petition for the purpose of
INTERROGATORIES perpetuating their testimony.365
Unless thereafter allowed by the court for good cause shown 2. To Perpetuate means to preserve or make available
and to prevent failure of justice, a party not served with testimony for later use at a trial by means of deposition.
written interrogatories may not be compelled by the adverse
party to give testimony in open court or give a deposition
pending appeal.363 WHAT IS DONE AFTER PETITION IS
COMPLETED
FURTHER DISTINGUISHING DEPOSITION Petitioner shall serve a notice upon each person named in
UPON WRITTEN INTERROGATORIES AND the petition as an expected adverse party, together with a
WRITTEN INTERROGATORIES copy of the petition stating that: he will apply to the Court at
a time and place stated therein, for the order described in
1. Any person, party or not can be required to or the petition. At least 20 days before the date of the hearing,
compelled to give a deposition upon written interrogatories, the Court shall cause notice thereof to be served on the
while only the adverse party may be compelled to parties and prospective deponents in the manner provided
answer a written interrogatory. for service of summons.366
359 364
Supra, Section 2, Rule 25 Supra, Section 1, Rule 24
360 365
Supra, Section 3, Rule 25 Supra, Section 2, Rule 24
361 366
Supra, Section 4, Rule 25 Supra, Section 3, Rule 24
362 367
Supra, Section 5, Rule 25 Supra, Section 4, Rule 24
363 368
Supra, Section 6, Rule 25 Supra, Section 5, Rule 24
38
USE OF DEPOSITION a. May be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
Deposition taken under the Rule or although not so taken, it witness
would be admissible in evidence, it may be used in any
action involving the same subject matter contained in b. Deposition of a party or any one who at the time of
petition subsequently brought in accordance with Sections 4 the taking was an officer, director, or managing agent of a
and 5 of Rule 23.369 public/private corporation partnership/association which is
a party may be used by an adverse party for any purpose
WHEN DEPOSITIONS PENDING APPEAL c. Deposition of a witness, party or not, may be used
ARE TAKEN by any party for any purpose if the court finds that:
If appeal is taken from a judgment of a Court including the (1) witness is dead
CA in proper cases or before the taking of an appeal if the (2) witness resides more than 100 kilometers from the
time therefore has not yet expired. The Court in which place of trial/hearing or is out of the Philippines
judgment was rendered may allow taking of depositions of UNLESS, it appears that his absence is procured
witnesses to perpetuate their testimony for use in the event by the party offering the deposition
of further proceedings in the said Court. (3) witness is unable to attend/testify because of age,
sickness, infirmity or imprisonment
(4) party offering the deposition has been unable to
HOW TAKEN procure the attendance of the witness by subpoena
(5) upon application and notice, exceptional
Party makes a motion in said Court for leave to take circumstances exist as to make it desirable in the
depositions – upon the said notice and service thereof as if interest of justice and with due regard to the
the action was pending therein – MOTION states importance of presenting the testimony of witness
in open court, to allow the deposition to be used.
(1) name and addresses of persons to be examined and
substance of testimony to be elicited d. If only a part of the deposition is offered in
(2) reasons for perpetuating testimony. evidence by a party, the adverse party may require him to
introduce all of which is relevant to the part introduced, and
If Court finds that it is proper to avoid failure or delay of any party may introduce the other parts.373
justice – it may allow the depositions to be taken and used in
the same manner and under same conditions as prescribed WHEN DOES THE DEPOSITION BECOME
for depositions in pending actions.370 EVIDENCE OR WHEN CAN IT BE USED AS
EVIDENCE
EFFECT OF TAKING DEPOSITIONS 1. If the deponent is a party, the opposing party can
use it to prove his claim or defense. It may also be used to
A party shall not be deemed to make a person his own impeach or contradict the party deponent if he testifies.
witness by taking his deposition.371
2. If the deponent is only a witness, his deposition can
only be used to impeach/contradict him if he testifies BUT if
EFFECT OF USING DEPOSITIONS Paragraph (c ) of Section 4 applies, it can be used for any
purpose.
If introduced in evidence in whole/part for any purpose
OTHER THAN contradicting or impeaching the deponent,
such makes the deponent the witness of the party WHEN DEPOSITIONS ARE PRESENTED –
introducing the deposition BUT it does not apply to the use CAN THEY BE OBJECTED TO- WHEN
of an adverse party of a deposition as described in Par. (b)
Section 4 of Rule 23.372 Subject to the provisions of Section 29, OBJECTION may be
made at the TRIAL or HEARING to receive in evidence any
deposition or part thereof for any reason which would
USE OF DEPOSITION require the exclusion of the evidence if the witness were then
present and testifying.
When can it be used? – at the trial, upon the hearing of a
motion or an interlocutory proceeding – ANY PART or 1. As to notice – are waived unless written objection
ALL OF A DEPOSITION, so far as admissible under the is promptly served upon the party giving the notice
rules of evidence may be used AGAINST any party who was
present, or represented at the taking or had due notice 2. As to disqualification of the officer is waived
thereof, in ACCORDANCE WITH THE FOLLOWING: unless make before the taking of the deposition or as soon
thereafter as the disqualification becomes known or could be
discovered with reasonable diligence.
6. As to manner of preparation – objections as to Each of the matters of which an admission is requested shall
the manner in which the testimony is transcribed, or the be deemed admitted UNLESS, within a period designated
deposition is prepared, signed certified, sealed, indorsed, in the request, which shall not be less than 15 days after
transmitted, filed, or otherwise dealt with by the officer are service thereof or such period which the Court will allow on
WAIVED, unless a motion to suppress the deposition or part motion, the party served files and serves upon the
thereof is made with reasonable promptness after such requesting party a sworn statement, either denying
defect is, or with due diligence, might have been specifically the matters is setting forth in detail the reason
ascertained.374 why he cannot truthfully either admit / deny.
378
Supra, Section 1, Rule 26
374 379
Supra, Section 29, Rule 23 Supra, Section 2, Rule 26
375 380
Supra, Section 3, Rule 23 Supra, Section 3, Rule 26
376 381
Supra, Section 9, Rule 23 Supra, Section 4, Rule 26
377 382
Supra, Section 5, Rule 23 Supra, Section 5, Rule 26
40
RULE 27 – PRODUCTION OR the physician fails / refuses to make such report, his
testimony may be excluded if his testimony is offered at
INSPECTION OF DOCUMENTS ON trial. 386
THINGS
2.3 NOTE a WAIVER OF PRIVILEGE that is
caused by requesting and obtaining a report of the
HOW examination ordered or by taking the deposition of the
examiner, party examined WAIVES ANY PRIVILEGE he
On motion of any party showing GOOD CAUSE, the COURT may have in that action or any other involving the same
where the action is pending MAY ORDER, specifying the controversy regarding the testimony of every other person
time, place and manner AND prescribing such terms and who has examined or may thereafter examine him in respect
conditions as are just: of the same mental / physical examination.387 This refers
primarily to the privilege between doctor and patient.
1. Any party to produce and permit the inspection,
copying, photographing, by or on behalf of a having party of
any designated DOCUMENT, PAPERS, BOOKS,
ACCOUNTS, LETTERS, PHOTOGRAPHS, OBJECTS OR RULE 29 – REFUSAL TO COMPLY
TANGIBLE THINGS – NOT PRIVILEGED – which
CONSTITUTE OR CONTAIN EVIDENCE MATERIAL TO
WITH MODES OF DISCOVERY
ANY MATTER INVOLVED IN THE ACTION which are in
his possession and control, OR 1. If he refuses to answer upon being directed to do so
or refuses to be sworn, it will constitute CONTEMPT OF
2. Permit entry upon designated land or other COURT. A citation in contempt shall ensue after the
property in his possession / control for the purpose of following steps have been followed or observed:
INSPECTING, MEASURING, SURVEYING, TAKING
PHOTOGRAPHS of the property or any designated a. If the party/deponent refuses to answer any
RELEVANT OBJECT or OPERATION thereon.383 question upon oral examination, the deposition may be
completed on other matters or adjourned as the proponent
RESORTED TO DETERMINE CONTENTS, STATUS OR may prefer.
PRESERVATION OF THE SAME.
b. The proponent may then apply for an order to
compel an answer in the proper court where the deposition
is being taken. This is also applicable to interrogatories.
RULE 28 – PHYSICAL / MENTAL c. If granted, the court can order that answer be made
EXAMINATION OF PERSONS and if it finds that refusal is without substantial justification
– it may impose upon deponent / counsel advising that no
answer be given or both – reasonable expenses and
attorney’s fees in obtaining the order. If denied and the
WHEN AVAILED OF
court finds application was filed without substantial
justification proponent / counsel advising application or
In an action in which the MENTAL / PHYSICAL condition
both may in the same manner be sanctioned.388
of a party is in controversy, a court in its discretion, can
order him to submit to physical / mental examination by a
2. Other consequences – (applicable to Sec 1, Rule 29,
physician.384
Rule 27 and Rule 28) the Court may issue an:
1. It can be ordered ONLY upon motion for good
a. order that the matters regarding which the
cause shown, with NOTICE to the party to be examined and
questions are asked, character / description of thing or land
to all other parties, specifying the time, place, manner,
/ contents of a paper or physical / mental condition of a
condition and scope of the examination and person/s by
party shall be taken to be established in accordance with the
whom it is to be made.385
claim of the party obtaining the order.
2. ONCE EXAMINATION IS COMPLETED, the
b. order refusing to allow the disobedient party to
party examined may request that a detailed written report of
support / oppose designated claims / defenses – or
the examining physician setting forth his findings /
prohibiting him from introducing in evidence the designated
conclusions.
things / documents or items of testimony or from
introducing evidence of physical / mental condition.
2.1 If requested and delivered, the party causing
examination to be made is entitled to request and receive
c. order striking out pleadings or parts thereof or
from examined party a like report of the same mental /
staying proceedings until the order is obeyed, dismissing the
physical examination / condition PREVIOUSLY OR
action or proceeding or any part thereof, or rendering
THEREAFTER MADE.
judgment by default against the disobedient party.
2.2 If request is refused, the court on motion may order
delivery by the party examined on such terms as are just. If
383 386
Supra, Section 1, Rule 27 Supra, Section 3, Rule 28
384 387
Supra, Section 1, Rule 28 Supra, Section 4, Rule 28
385 388
Supra, Section 2, Rule 28 Supra, Sections 1 and 2, Rule 29
41
d. In lieu or in addition to orders, the disobedient to be given in evidence, or even if he objects or reserves the
party can be ordered arrested except in relation to a physical right to object to their admissibility, the trial shall not be
/ mental examination.389 postponed.395
OTHER SANCTIONS
IF DUE TO ILLNESS OF PARTY OR
1. Expenses on refusal to admit – if requested party COUNSEL
serves a sworn denial and party serving request proves
genuineness / truth, he may apply for an order directing the May be granted, if it appears upon affidavit or sworn
requested party to pay expenses incurred in making proof certification that the presence of party / counsel at the trial
plus attorney’s fees. Order is issued except if court finds is indispensable and that character of illness is such as to
good reasons for denial or admissions were of no substantial render non-appearance excusable.396
importance. 390
WHAT IS THE ORDER OF TRIAL
2. Failure of a party to willfully appear before the
officer taking the deposition, after being served with a Subject to Section 2, Rule 31 on separate trials and
proper notice, or fails to serve answers to written unless the court orders for special reasons, it shall be limited
interrogatories properly served, court may on motion and to the issues stated in the pre-trial order and shall proceed
notice: as follows:
(a) Strike out all or any part of the pleading of that 1. Plaintiff adduces evidence in support of his
party complaint
(b) Dismiss the action / proceeding / part thereof 2. Defendant adduces evidence in support of his
(c) Enter judgment by default against that party,and defense, counterclaim, crossclaim and 3rd party
(d) in its discretion, order payment of reasonable complaint
expenses and attorney’s fees391 3. Third party defendant, if any, shall adduce
evidence of his defense, counterclaim, crossclaim
BUT no expenses or fees are to be assessed against the and 4th party complaint.
Republic of the Philippines. 392 4. Fourth party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them.
5. Parties against whom any counterclaim/crossclaim
has been pleaded shall adduce evidence in support
RULE 30 – TRIAL of their defense, in the order prescribed by the
Court.
6. The parties may then respectively adduce rebutting
evidence, unless the Court, for good reasons and in
NOTICE OF TRIAL
the furtherance of justice, permits them to adduce
evidence upon their original case.
Upon entry of a case in the trial calendar – the clerk shall
7. Upon admission of the evidence, the case shall be
notify the parties of the date of the trial in such manner as to
deemed submitted for decision, unless the court
ensure receipt of the notice at least 5 days before such
directs the parties to argue or submit memoranda
date.393
or any further pleadings.
389
Supra, Section 3, Rule 29
390
Supra, Section 4, Rule 29
391 395
Supra, Section 5, Rule 29 Supra, Section 3, Rule 30
392 396
Supra, Section 6, Rule 29 Supra, Section 4, Rule 30
393 397
Supra, Section 1, Rule 30 Supra, Section 5, Rule 30
394 398
Supra, Section 2, Rule 30 Supra, Section 6, Rule 30
42
WHAT ARE TO BE MADE OF RECORD PURPOSE OF ALLOWING
CONSOLIDATION
All proceedings, including any statement made by the judge
with reference to the case, or to any of the parties, witnesses The purpose of allowing consolidation is to avoid
or counsel shall be made of record in the stenographic multiplicity of suits, guard against oppression or abuse,
notes.399 prevent delay, clearing of dockets, simplify the work of trial
court, save unnecessary expenses / costs.
Yes, involving the consolidation of civil action WITH 2. A commissioner is designated or authorized by an
criminal action, if filed before criminal action and trial has ORDER OF REFERENCE– which will specify or limit his
not yet commenced.404 powers, direct him to report only on or upon particular
issues or do or perform particular acts, receive or report
evidence only and fix date for beginning / closing hearings
and for the filing of the report.
PROCEDURE
EXPENSES / COMPENSATION
1. Commissioner takes oath and be sworn to a faithful
and honest performance of his duties409 They shall be reasonable as warranted by the circumstances
and are to be taxed as costs against the defeated party or
2. Upon receipt of the Order of Reference, and unless apportioned as justice requires419
otherwise stipulated he shall forthwith set a time and place
for the first meeting of the parties and counsel within 10
days after the date of the order of reference, and shall notify WHEN REFERENCE TO COMMISSIONERS
parties / counsel410 IS REQUIRED BY THE RULES
3. If parties / counsel fail to appear, he may proceed Reference to commissioners is required in the following
ex-parte or in his discretion, adjourn the proceedings, giving cases:
notice to the absent party or counsel of the adjournment411 (a) Expropriation under Rule 67 to determine just
compensation
4. He shall avoid delay as he is duty bound to proceed (b) Partition under Rule 69, when parties cannot agree
with all reasonable diligence. Either party on notice to other as to the manner of partition.
parties and the commissioner may apply for a court order to
expedite proceedings / report412
408
Supra, Section 3, Rule 32
409 417
Supra, Section 4, Rule 32 Supra, Section 12, Rule 32
410 418
Supra, Section 5, Rule 32 Eternal Gardens Memorial Park Corporation v Court of
411
Supra, Section 6, Rule 32 Appeals, 282 SCRA 553
412 419
Supra, Section 8, Rule 32 Supra, Section 13, Rule 32
413 420
Supra, Section 7, Rule 32 Supra, Section 1, Rule 33
414 421
Supra, Section 9, Rule 32 Quebral v Court of Appeals, 252 SCRA 353
415 422
Supra, Section 10, Rule 32 Nicos Industrial Corporation v Court of Appeals, 206
416
Supra, Section 11, Rule 32 SCRA 127
44
3. It is an error on the part of the Court of Appeals to WHEN NOT ALLOWED
order REMAND, if dismissal is elevated to it on appeal, it
must decide on the evidence adduced by the plaintiff.423 Judgment on the pleadings is not allowed in cases of:
(a) Declaration of nullity of marriage
(b) Annulment of marriage
DISTINGUISHED FROM CRIMINAL CASES (c) Legal separation.
(a) In both civil and criminal actions, the basis for In these cases, the plaintiff is required to prove the
both is the insufficiency of evidence. material facts regardless of whether the answer tenders an
(b) In a civil action, dismissal by demurrer is by issue.
motion only, while in a criminal action,
dismissal by demurrer is upon the court’s initiative
or motion giving the prosecution an opportunity to
be heard. RULE 35 – SUMMARY JUDGMENT
(c) In a civil action, leave is not required prior to
filing, while in a criminal action leave may / may
not be obtained. If obtained – no waiver of right to
present evidence if denied and if there is no WHAT IS SUMMARY JUDGMENT
leave, it is a waiver
(d) In a civil action, if granted, plaintiff’s remedy is Is a devise for weeding out sham claims or defenses at an
appeal, while in a criminal action, if granted, early stage of the litigation thereby avoiding the expense /
there is no appeal as such will constitute double loss of time involved in a trial. Its very object is to separate
jeopardy. what is formal or pretended in denial or averment from what
is genuine and substantial so that only the latter may subject
a suitor to the burden of trial.
Can be had if the ANSWER fails to tender an issue or Either plaintiff or defendant may move for a summary
otherwise admits the material allegations of the complaint judgment:
424
1. If plaintiff or claimant (of original complaint /
1. There is no MOTU PROPIO RENDITION OF counterclaim / cross-claim), he may file the motion at any
JUDGMENT as it is always by motion. time after the pleading in answer to his claim has been filed
on the ground that although there is an apparent issue, the
2. An answer fails to tender an issue when it fails to same is SHAM / FALSE427 .
comply with the requirements of specific denial or is deemed
to have admitted the allegations in the complaint425 Example: Answer admits obligation but states
that the amount is wrong or less than that claimed. If
3. An answer admits the material allegations when it plaintiff has proof that there is written acknowledgment that
expressly confesses the truthfulness thereof or where it as of a date or period prior to that of the filing, the defendant
omits to deal with them all. was aware of the true amount, there can be summary
judgment.
4. NOTE that when an answer raises factual issues
involving damages, it is not proper to render judgment on 2. If movant is the defending party, he may file the
the pleadings as presentation of evidence is required. motion at any time before or after he files his answer on the
ground that plaintiff’s claim against him is SHAM or FALSE
428
426
Monterey Foods Corporation v Eserjose, 410 SCRA
423
Radiowealth Finance Company v Del Rosario, 335 627, Puyat v Zabarte, 352 SCRA 738
427
SCRA 288 Supra, Section 1, Rule 35
424 428
Supra, Section 1, Rule 34 Supra, Section 2, Rule 35
425 429
Supra, Sections 8,9 and 11, Rule 8 Excelsa Industries v Court of Appeals, 247 SCRA 560
45
5. The PROCEDURE for the filing and resolution of DISTINGUISHED FROM JUDGMENT ON
a motion for summary judgment is as follows: THE PLEADINGS
REQUISITES OF A JUDGMENT/FINAL
EFFECT OF THE RENDITION OF ORDER
SUMMARY JUDGMENT
The requisites of a judgment or final order are:
1. The aggrieved party may appeal the summary
judgment as such is final judgment as defined by Section 1, (1) It must be in writing
Rule 41. (2) It must be personally and directly prepared by the
judge
2. IF DENIED, it is not appealable as order of denial (3) It must state clearly and distinctly the facts and the
of motion is interlocutory THOUGH certiorari may lie if the law on which it is based
rendering of a summary judgment is clear, plain and patent (4) It must be signed by the judge
but the court refuses or declines to render it. (5) It must be filed with the clerk of court.433
When the Court finds that a judgment cannot be rendered WHEN IS JUDGMENT RENDERED
upon the whole case or for all the reliefs because there are
controverted facts which require trial. A PARTIAL Ordinarily after trial, except in judgment on the pleadings,
SUMMARY JUDGMENT is not appealable and shall be summary judgment, judgment by compromise, judgment
taken together with the judgment that a trial court will based on stipulation of facts, judgment upon confession,
render after trial. Thus it cannot be executed.432 order of dismissal in instances when it considered as an
430 433
Supra, Section 5, Rule 35 Supra, Section 1, Rule 36
431 434
Supra, Section 6, Rule 35 ABC Davao Auto Supply v Court of Appeals, GR
432
Supra, Section 4, Rule 35 113296, January 16, 1998
46
adjudication on the merits, judgment in cases covered by the the action to proceed against the others.439 Example:
Rules of Summary Procedure. Judgment against a surety for admitted liability.
1. It is the filing of the judgment or final order with 3. Separate judgments may be rendered when more than
the clerk of court that constitutes RENDITION OF one claim for relief is presented, the court at any stage –
JUDGMENT, not the date of the writing of the decision or upon determination of the issues material to a particular
judgment, nor the signing thereof or even promulgation claim and all counter claims arising therefrom – may render
thereof.435 a separate judgment disposing of the claim and proceeding
with the others. BUT, it may stay execution or enforcement
2. A MEMORANDUM DECISION is one which until rendition of subsequent judgment/s and may prescribe
adopts by references findings of facts and conclusions of law such conditions to secure benefit thereof to the party in
contained in the decision of an inferior tribunal. Note that whose favor the judgment is rendered.440
this does not violate the rule as to statement of the facts and Example: It may occur when causes of action have
law. This kind of a decision can only be rendered by an been joined
appellate court.
4. Judgment against entity without juridical personality it
3. A SIN PERJUICIO JUDGMENT is one which is shall set forth the individual names / proper names if known
without a statement of facts and is to be supplemented later of persons composing it.441
by the final judgment. Such a judgment is void.
It shall be made in writing stating the ground/s, written 1. If denied – no second motion for reconsideration is
notice of which shall be served by the movant on the adverse allowed of the judgment or final order. NOTE THOUGH that
party. if the subject is not a judgment / final order or is an
interlocutory order which does not dispose of a case
1. If the Motion for New Trial is based on Fraud, completely but leaves something more to be done upon its
Accident, Mistake or Excusable Negligence, it merits, a 2nd motion for reconsideration may be allowed.
should be supported by affidavits of merit, which
may be rebutted by affidavits. The requirement of 2. The filing of a second motion for reconsideration is
an affidavit is essential because obviously a new a prohibited pleading. Thus it does not toll the running of
trial would be a waste of the court’s time if the the reglementary period of appeal.455
complaint turns out to be groundless or the defense
ineffective.448
OTHERS
2. If based on NEWLY DISCOVERED EVIDENCE
it should be supported by affidavits of the witnesses 1. The periods for resolving the motions are:
by whom such evidence is expected to be given or (a) MTC / RTC – within 30 days from the time it is
by duly authenticated documents which are submitted for resolution456
proposed to be introduced as evidence.
449
Marina Properties Corporation v Court of Appeals, 294
SCRA 273, Cledera v Sarmiento, 39 SCRA 552
450
Firme v Reyes, 92 SCRA 713
445 451
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 Supra, Section 3, Rule 37
452
SCRA 421 Supra, Section 5, Rule 37
446 453
Mckee v Intermediate Appellate Court, 211 SCRA 517 Supra, Section 6, Rule 37
447 454
Marikina Valley Development Corporation v Court of Supra, Section 3, Rule 37
455
Appeals, 294 SCRA 273 Hongria v Hongria-Juarde, 425 SCRA 504
448 456
Yap v Tanada, 163 SCRA 464 Supra, Section 4, Rule 37
48
(b) Court of Appeals- within 60 days after if declares it month after such judgment / final order was entered or such
submitted for resolution proceeding taken.464
(c) Supreme Court - no period is prescribed
1.1 A few days after expiration of the 60 day period is
not entirely fatal as long as it is still filed within the 6
2. THE DENIAL OF BOTH MOTIONS IS NOT months period.465
APPEALABLE, IT IS THE JUDGMENT / FINAL
ORDER THAT IS APPEALABLE.457 1.2 But if it is a judgment by compromise, the 6
months period runs from date of rendition, because a
judgment upon a compromise is immediately executory and
considered to have been entered on the date it was approved
RULE 38 – RELIEF FROM by the trial court.466
JUDGMENT, ORDERS OR OTHER 1.3 The 6 months period is reckoned from entry of
judgment or final order, not from its rendition or
PROCEEDINGS finality467while “from learning” means from notice of
judgment or final order468
GROUNDS UPON WHICH IT IS TO BE 2. It is to be filed in the same case and in the same
BASED court where the judgment / final order was entered or where
proceeding is taken.
Judgment / final order is entered, or proceeding is
thereafter taken against him through FRAUD, ACCIDENT,
MISTAKE, EXCUSABLE NEGLIGENCE. This means that PROCEDURE
the FAILURE TO ACT ON JUDGMENT / FINAL ORDER /
PROCEEDING ARE DUE TO Fraud, Accident, Mistake or 1. Filing of verified petition accompanied by affidavits
Excusable Negligence. This also applies to a failure to take showing FAME and the facts showing the petitioner’s good
an appeal is due. and substantial cause of action or defense, as the case may
be (grounds constituting his cause of action / defense)
1. The object to the petition is that the judgment,
order, or proceeding be set aside or that the appeal be given 2. Order issued requiring adverse party to answer
due course. within 15 days from receipt469 and if warranted a writ of
preliminary Injunction may be issued.470
2. The petition must be VERIFIED.458
3. Adverse party answers, but if he does not, he
3. The other ways by which a final and executory cannot be declared in default.
judgment may be set aside is by Petition for Certiorari under
Rule 65 and Rule 46 and by Annulment of Judgment under 4. Court hears and may grant relief if the allegations
Rule 47.459 are true or deny if not true.
4. The petition is premised on equity. It should 4.1 If granted, the assailed final order / judgment /
therefore be granted only in exceptional cases. Petitioner proceeding is set aside and proceedings taken as if a timely
must be able to prove fraud, accident, mistake or excusable motion for new trial has been granted.471 There are in effect
negligence and the existence of a good and substantial cause two hearings: the first is as to the merits of the petition, the
of action or defense, as the case may be.460 second is as the merits of the principal case.
5. It cannot be availed of if there is another remedy in 4.2 If denied, the order is not appealable472 but may be
law461and is available only against a final and executory subject of certiorari under Rule 65
judgment.462
5. Court hears the case as if a timely motion for new
6. Note though that is the case is covered by the Rules trial or reconsideration has granted. If the subject is denial
on Summary Procedure, a petition for relief is a prohibited of an appeal, the lower court shall be required to give due
pleading.463 course to the appeal and elevate the records as if a timely
and proper appeal has been made.473
WHEN AND WHERE FILED 6. Judgment is rendered and is appealable
1. It is to be filed within 60 days after he learns of the
464
judgment final order / proceeding but not more than 6 Supra, Section 3, Rule 38
465
Mago v Court of Appeals, 303 SCRA 600
466
Manipor v Ricafort, 407 SCRA 298
457 467
Barnes v Reyes, 411 SCRA 538 Bayog v Natino, 258 SCRA 378
458 468
Supra, Sections 1 and 2, Rule 38 Prudence Realty and Development Corporation v Court
459
Arcelona v Court of Appeals, 280 SCRA 20 of Appeals, 231 SCRA 379
460 469
Torno v Intermediate Appellate Court, 166 SCRA 742 Supra, Section 4, Rule 38
461 470
Alquesa v Cavada, Jr. 3 SCRA 428 Supra, Section 5, Rule 38
462 471
Valencia v Court of Appeals, 352 SCRA 72 Supra, Section 6, Rule 38
463 472
Sta Lucia Realty and Development Corporation v Court Supra, Section 1(b), Rule 41
473
of Appeals, 343 SCRA 214 Supra, Section 7, Rule 38
49
DISTINGUISHED FROM A MOTION FOR a. It is filed in the trial court while it has jurisdiction
NEW TRIAL over the case and is in possession of either the original
record or the record on appeal, as the case may be, at the
They are distinguished as follows: time of the filing of the motion. 476 The COURT, may in its
(a) a motion for new trial is filed before judgment discretion, order execution of judgment / final order even
becomes final, while a petition for relies if filed before the expiration of the period to appeal. If the trial
after a judgment becomes final court has lost jurisdiction, it is to be filed with the appellate
(b) a motion for new trial applies to judgments / final court.
orders, while a petition for relief includes
proceedings a.1 A court LOSES JURISDICTION when there is
(c) the grounds for a motion for new trial includes perfected appeal and the period to appeal has expired. When
newly discovered evidence, while a petition for a record on appeal is required, it loses jurisdiction OVER
relief is limited to FAME THE SUBJECT OF THE APPEAL upon perfection of the
(d) a motion for new trial is filed within the period appeal and expiration of the period to appeal.
for perfecting an appeal, while a petition for
relief is filed within 60 days from knowledge but
within 6 months from entry of judgment a.2 The REQUISITES OF EXECUTION PENDING
(e) a motion for new trial if denied allows an appeal, APPEAL are:
while a petition for relief from judgment does
not allow an appeal (1) A motion by the prevailing party with notice to the
(f) a motion for new trial is a legal remedy, while a adverse party
petition for relief is a remedy in equity (2) There must be good reason for execution pending
(g) a motion for new trial requires no verification, appeal
while a petition for relief needs to be verified. (3) The good reason must be stated in a special order.
They must constitute superior circumstances
demanding urgency which will outweigh the injury
or damage should the losing party secure a reversal
RULE 39 – EXECUTION, of the judgment on appeal.477
EXAMPLES OF GOOD REASONS are:
SATISFACTION AND EFFECT OF deterioration of the goods, prevailing party’s
JUDGMENTS inability to enjoy the decision, or it’s becoming
illusory. In a recent case, OLD AGE was found to be
a good reason.478 NOTE: corporation’s financial
TWO KINDS OF EXECUTION distress was not considered a good reason.
2.2 PROBLEM if LEVY is made beyond the period of a. Notice must be given as follows:
5 years from entry of judgment. The same is NOT VALID
as lifetime or a writ of execution is 5 years from date of entry 1. Perishable property – posting of written notice
of judgment.496 (of time, place, sale) in 3 public places preferably in
conspicuous areas of the municipal/city hall, post office,
494 497
Supra, Section 8, Rule 39 Supra, Section 9, Rule 39
495 498
Supra, Section 12, Rule 39 Supra, Section 14, Rule 39
496 499
Supra, Section 14, Rule 39 Supra, Section 10, Rule 39
52
public market, for such a time as may be reasonable Without an agreement – officer may adjourn from day to
depending on circumstances. day if it becomes necessary.503
b. All sales shall be by public auction. This applies WHAT HAPPENS IF PROPERTY IS
also when property is levied upon. Sale is made to the CLAIMED BY THIRD PERSON
highest bidder, to start at the exact time stated in the notice.
Third person is called a third party claimant. He is one who
1. If sufficient property has been sold, no more shall claims title to, or right of possession of the property levied
be sold and any excess property / proceeds shall be delivered upon by the sheriff. NOTE: there may be a 3rd party claimant
to the judgment obligor or his representative, unless in execution, preliminary attachment and replevin.
otherwise directed by the court EXAMPLE- other debts
due to be paid
WHAT DOES 3RD PARTY CLAIMANT DO
2. If sale is of real property – consisting of several
known lots – they must be sold separately or if claimed by a He can file a 3rd party claim or a terceria by executing an
3rd person, he may require it to be sold separately. affidavit showing his title thereto, or right of possession over
the property being levied upon, stating therein the grounds
3. Personal property capable of manual delivery – it of such title or right, serving a copy thereof to the sheriff and
must be sold within view of those attending and in such judgment obligee. If filed, sheriff is not obliged to proceed
parcels so as to bring the highest price. unless the judgment obligee files an indemnity bond in an
amount not less than value of the property. No action on
4. The judgment obligor, if present may direct the the bond may enforced by the third party claimant unless
order in which the property is to be sold when such property filed within 120 days from date of the filing of the bond. If
consists of several parcels / known lots which can be sold to bond is filed – 3rd party claimant may vindicate his claim
advantage separately. within the period OR he may institute a separate action to
vindicate his claim BUT nothing also prevents the judgment
5. No officer or his deputies, can be a purchaser, nor obligee from claiming damages in the same or separate
be interested directly or indirectly in any purchase at such action against a 3rd party claimant who files a frivolous /
sale.502 spurious claim.
6. By written consent of both judgment obligor /
obligee or their duly authorized representatives, the auction
sale may be adjourned to any date or time agreed by them.
503
Supra, Section 22, Rule 39
500 504
Supra, Section 15, Rule 39 Supra, Section 20, Rule 39
501 505
Supra, Section 17, Rule 39 Supra, Section 21, Rule 39
502 506
Supra, Section 19, Rule 39 Supra, Section 18, Rule 39
53
If writ is issued in the name of the RP, no bond is required. PROOF REQUIRED OF REDEMPTION
Officer is to be represented by the SOLGEN, and if damages
are assessed, it is to be paid out of the National Treasury. 507 A redemptioner must produce to the officer, or person from
whom he seeks to redeem, and serve with notice to the
officer- a copy of judgment or final order, certified by the
C. AFTER SALE, CONVEYANCE MADE AS clerk of court. Mortgage / other lien – certified copy by the
FOLLOWS Register of Deeds / or memorandum thereof and affidavit
showing amount due on the lien.511
I. REAL PROPERTY – a certificate of sale is
given stating the description of the property, price paid for
each distinct lot / parcel, whole price paid and a statement IF JUDGMENT OBLIGOR REDEEMS
that the right of redemption shall or will expire one year
from date of registration of the certificate.508 MAKING He must make all the payments required to effect a
MENTION OF THE EXISTENCE OF A 3RD PARTY CLAIM, redemption by a redemptioner. Thereupon, no further
IF ANY509 Note: the requirement of mentioning a 3rd party redemption is allowed and he is restored to his estate. The
claim, if any, applies also to conveyance over personal person upon whom redemption payment is made shall
property. execute a Certificate of Redemption after payment.
Certificate is then filed with the Office of the Registry of
Deeds.512
THE PARTIES ENTITLED TO REDEEM
ARE: WHO IS ENTITLED TO THE USE OF REAL
PROPERTY PENDING REDEMPTION
a. Judgment obligor, or his successor in interest, in
whole or any part of the property 1. Person in possession at the time of sale or entitled
to possession afterwards may continue to use it in the same
b. A creditor having a lien by virtue of an attachment, manner as it was previously used, or to use in the ordinary
judgment, mortgage on the property sold or on course of husbandry or to make necessary repairs to
some part thereof, subsequent to the lien under buildings thereon while he occupies the property, BUT the
which the property is sold. Such redeeming creditor court in proper cases, may restrain the commission of waste
is called a REDEMPTIONER.510 on the property by injunction on the application of the
purchaser / judgment obligee with or without notice. 513
TIME AND MANNER OF REDEMPTION 2. Rents, earnings and income shall belong to the
judgment obligor until the expiration of his period for
The judgment obligor / redemptioner may redeem the redemption. Neither shall the purchaser or judgment obligee
property from the purchaser at any time within 1 year from be entitled to the same when such property is in the
registration by paying the amount of purchase, plus 1% possession of a tenant.514
interest per month at the time of redemption, together with
the amounts of assessments / taxes paid at the purchase and
interest on the same at the same rate, AND, if the purchaser IF NO REDEMPTION IS MADE
be also a creditor having a prior lien to that of the
redemptioner, other than the judgment, the amount of the If no redemption is made within one year from date
lien plus interest. of registration, the purchaser is entitled to possession and
conveyance; OR if so redeemed – whenever 60 days has
Property so redeemed may be redeemed within 60 days after elapsed and no other redemption is made and the time for
the last redemption upon payment of the sum paid, w/ 2% redemption has expired, the last redemptioner is entitled to
interest thereon plus taxes / assessments paid, and amount possession and conveyance. BUT, in all cases the judgment
of liens held by redemptioner prior to his own. AND SO obligor is entitled to have the entire period of one year.
FORTH. Officer shall execute the deed / or his successor in
interest with the same effect.
Written notice however of redemption must be given to the Once done, the purchaser / redemptioner shall be
officer who made the sale and duplicate with the Registry of substituted to and acquire all the rights title and interest and
Deeds and if any assessments / taxes / prior liens are paid, claim of the judgment obligor to the property as of the time
notice must also be given to above parties OTHERWISE, of the levy. Possession shall then be given unless property is
redemption can be effected without paying taxes / held by a 3rd party adverse to the judgment obligor. 515
assessments / liens. NOTE: Proof required of redemption Manner of effecting transfer of possession is by writ of
under Section 30 possession.516
511
Supra, Section 30, Rule 39
512
Supra, Section 29, Rule 39
513
Supra, Section 31, Rule 39
507 514
Supra, Section 16, Rule 39 Supra, Section 32, Rule 39
508 515
Supra, Section 25, Rule 39 Supra, Section 33, Rule 39
509 516
Supra, Section 26, Rule 39 Cometa v IAC, 151 SCRA 563, AutoCorp Group v
510
Supra, Section 27, Rule 39 Court of Appeals, 437 SCRA 678
54
IF THE SALE IS SUBSEQUENTLY Performance of an act other than those enumerated in
RENDERED INFFECTIVE Section 9 and 10, a certified copy of the judgment shall be
attached to the writ of execution and served upon party
If the purchaser of real property or his successor in against whom it is rendered, or upon any person required
interest – fails to recover possession or is evicted therefrom thereby, or by law, to obey the same – if such party / person
– AS A CONSEQUENCE OF: irregularities in the disobeys – they may be punished for contempt.521
proceedings concerning the sale, judgment has been
reversed or set aside (RE: RELIEF),property is exempt from EXAMPLE: Injunction, Quo warranto
execution , or, 3rd person has vindicated his right to the
property
WHAT ARE THE PROPERTIES EXEMPT
HE MAY – on motion in the same action OR in a separate FROM EXECUTION
action recover from the judgment obligee the price paid with
interest, or so much thereof as has not been delivered to the Except as otherwise expressly provided by law, the following
judgment obligor OR, he may on motion have the judgment property, and no other, shall be exempt from execution:
revived in his name (if redemptioner) for the whole price
with interest, or so much thereof as has been delivered to the (a) The judgment obligor’s family home as provided by
judgment obligor – Judgment revived shall have the same law, or the homestead in which he resides, and land
force and effect as an original judgment would have as of the necessarily used in connection therewith;
date of revived and no more.517
(b) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
II. PERSONAL PROPERTY -
(c) Three horses, or three cows, or three carabaos, or
a. If capable of Manual Delivery, the officer must other beasts of burden, such as the judgment
deliver the property and if desired, execute and deliver a obligor may select necessarily used by him in his
certificate of sale, which shall conveys all right with the ordinary occupation;
judgment obligor had in such property as of date of levy on
execution or preliminary attachment. 518 (d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
b. If Incapable of Manual Delivery, the officer must
execute and deliver a certificate of sale and such shall convey (e) Household furniture and utensils necessary for
all rights to purchaser as of the date of levy on execution or housekeeping, and used for that purpose by the
preliminary attachment. 519 judgment obligor and his family, such as the
judgment obligor may select, of a value not
3. If for DELIVERY OR RESTITUTION OF exceeding one hundred thousand pesos;
REAL PROPERTY – officer shall demand of the person
against whom judgment is rendered and all persons (f) Provisions for individual libraries and equipment
claiming rights under him to peaceably vacate the property of judges, lawyers, physicians, pharmacists,
within 3 working days and restore possession thereof to the dentists, engineers, surveyors, clergymen, teachers,
judgment obligee – OTHERWISE, officer shall oust all and other professionals, not exceeding three
such persons thereon, with assistance from peace officers hundred thousand pesos in value;
employing reasonable means and place the judgment
obligee in possession. Any costs, damages, rents, profits (g) One fishing boat and accessories not exceeding the
shall be satisfied in the same manner as a judgment for total value of one hundred thousand pesos owned
money. by a fisherman and by the lawful use of which he
earns his livelihood;
4. If for REMOVAL OF IMPROVEMENTS – (h) So much of the salaries, wages, or earnings of the
officer shall not destroy, demolish or remove except upon judgment obligor for his personal services within
special order of the court, issued upon motion / hearing and the four months preceding the levy as are necessary
after the judgment obligee had failed to remove within a for the support of his family;
reasonable time fixed by the rules.
(i) Lettered gravestones;
5. If for DELIVERY OF PERSONAL PROPERTY
– officer shall take possession and forthwith deliver it to (j) Monies, benefits, privileges, or annuities accruing
party entitled thereto and satisfy any judgment for money as or in any manner growing out of any life insurance;
herein provided. 520
(k) The right to receive legal support, or money or
property obtained as such support, or any pension
EXECUTION OF SPECIAL JUDGMENTS or gratuity from the Government;
Claims for exemption from execution of properties must be The service of the order shall bind all credits due the
presented before its sale on execution by the sheriff.523 judgment obligor and all money / property of the judgment
obligor in the possession / control of the person, corporation
or juridical entity.
WHAT HAPPENS TO EXECUTION UPON
THE DEATH OF A PARTY Notice of all proceedings may also be required by the
court.527
It may issue or be enforced:
Obligor of judgment obligor may thereafter pay after writ of
a. In case of death of judgment obligee, upon execution on property has been issued, the amount of his
application of his executor or administrator debt or so much thereof as may be necessary to satisfy the
judgment and the sheriff’s receipt shall constitute sufficient
b. In case of death of judgment obligor, against his discharge for the amount so paid or directed to be credited
executor, administrator, or successor in interest, IF it be for by the judgment obligee on the execution528
recovery of real or personal property or enforcement of a
lien. In relation to both remedies – party or other person
may be compelled to appear by subpoena and failure to obey
c. Death of judgment obligor after execution is an order, subpoena or be sworn or answer as a witness or
actually levied upon any of his property, the same may be subscribe to a deposition is punishable by contempt. 529
sold for the satisfaction of the judgment obligation and the
officer must account to the executor or administrator for any 3. Order for application of property and income to
surplus, if any. 524 satisfaction of judgment. – it may include his property or
money due the judgment obligor, not exempt from
execution, in his hands or other person, corporation or
AS BETWEEN SEVERAL PERSONS juridical entity may be applied to satisfaction of judgment
AGAINST WHOM EXECUTION IS subject to any prior rights over such property. ALSO, if
DIRECTED upon investigation of current income and expenses, the
earnings of judgment obligor are more than necessary for
There is a right to contribution or reimbursement if: more the support of his family, the court may order that judgment
than a due portion of the judgment is satisfied out of the be paid by monthly installments, failing in which he may be
proceeds of the sale of the property of one of them, OR, one punished for indirect contempt.530
pays, without sale, more than his proportion.
4. Appointment of a receiver – for the property of
AND, if judgment is upon an obligation of one of them, as the judgment obligor, it may also forbid a transfer or other
security for another, and the surety pays the amount, or any disposition of or interference with the property of the
part thereof, either by sale of property or before a sale, he judgment obligor not exempt from execution.531 Thereafter,
may compel repayment from the principal.525 there can be a sale by the receiver upon order of
ascertainable interest (or the real estate itself) of a judgment
obligor in real estate in the place where proceedings are had
WHAT ARE THE OTHER REMEDIES OF as mortgagor / mortgagee or otherwise and if his interest
THE JUDGMENT OBLIGEE IF EXECUTION can be ascertained without controversy, the receiver may be
IS NOT CARRIED OUT OR JUDGMENT IS ordered to sell and convey such interest or real estate or the
NOT SATISFIED interest of the obligor therein. All proceedings to be
approved by the Court before execution of the deed.532
1. Examination of the judgment obligor concerning
his property and income before the court or a commissioner In relation to the foregoing, IF IT APPEARS THAT A
– and proceedings may thereafter may be had for the PERSON OR CORPORATION, ALLEGED TO HAVE
application of his property or income towards satisfaction of PROPERTY OF THE JUDGMENT OBLIGOR DENIES OR
judgment BUT – no obligor can be required to appear CLAIMS INTEREST IN THE PROPERTY ADVERSE TO
before a court or commissioner outside the province or city HIM, The Court may:
where he resides.526
(1) order judgment obligee to institute an action
2. Examination of the obligor of the judgment obligor against such person or corporation for the recovery
upon proof shown to the satisfaction of the court that a of such interest or debt
person, corporation or other juridical entity has property of (2) forbid a transfer / disposition of such interest /
the judgment obligor or is indebted to him, the Court may by debt within 120 days from notice of the order
order require the person, corporation or juridical entity to
527
Supra, Section 37, Rule 39
522 528
Supra, Section 13, Rule 39 Supra, Section 39, Rule 39
523 529
Gomez v Gealone, 203 SCRA 474 Supra, Section 38, Rule 39
524 530
Supra, Section 7, Rule 39 Supra, Section 40, Rule 39
525 531
Supra, Section 35, Rule 39 Supra, Section 41, Rule 39
526 532
Supra, Section 36, Rule 39 Supra, Section 42, Rule 39
56
(3) punish disobedience of such order as for contempt. judgment on the merits rendered in the first constitutes an
The order may be modified or vacated at any time absolute bar to the subsequent action.
by the court that issued it, or by the court in which
the action is brought, upon terms as may be just.533 1.2 Paragraph (c) is illustrative of what is known as
“conclusiveness of judgment”, when between the first case
WHAT IS TO BE DONE AFTER JUDGMENT wherein judgment was rendered and the second case
IS SATISFIED wherein such judgment is invoked, there is only identity of
parties, but there is no identity of cause of action, the
Entry of satisfaction of judgment by the Clerk of judgment is thus conclusive in the second case, only as to
Court in Court Docket and Execution Book upon the matters actually and directly controverted and
RETURN OF WRIT INDICATING determined, and not as to matters merely involved
SATISFACTION / ON ADMISSION OF therein.539
SATISFACTION BY JUDGMENT OBLIGEE /
COUNSEL534 1.3 CONCLUSIVENESS OF JUDGMENT, also
known as PRECLUSION OF ISSUES or COLLATERAL
It can also be entered upon demand of judgment obligor ESTOPPEL espouses that issues actually and directly
when judgment is satisfied in fact – OR upon notice / resolved in a former suit cannot again be raised in any future
motion – court may order entry without admission535 case between the same parties involving a different cause of
action.540
EFFECT OF JUDGMENTS OR FINAL 1.4 The doctrine of “ The law of the case” states
ORDERS that whatever has once been irrevocably established as the
controlling legal rule of decision between the same parties,
1. Effect of a judgment / final order rendered by a whether correct on general principles or not, so long as the
court in the Philippines, having jurisdiction to pronounce facts on which the decision was predicated continue to be
the same. the facts of the case before the court.541
(a) In case of a judgment / final order against a specific 2. Effect of a foreign judgment/final order
thing, or in respect to probate of a will or administration of
the estate of a deceased person, or in respect to personal, (a) If upon a specific thing, the judgment / final order
political or legal condition / status of a particular person or is conclusive upon title to the thing
his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will, (b) If against a person – it is presumptive evidence of a
administration status or relationship of the person. right between the parties and their successors in interest by
HOWEVER, probate or granting of letters of administration subsequent title.
shall only be prima facie evidence of the death of the
testator.536 In either case, judgment / final order may be repelled by
evidence of want of jurisdiction, want of notice, collusion,
(b) Other cases, judgment / final order is with fraud, clear mistake of fact / law.542
RESPECT TO THE MATTER DIRECTLY ADJUDGED OR
AS TO ANY MATTER THAT COULD HAVE BEEN RAISED 3. Effect of judgment against a surety
IN RELATION THERETO is CONCLUSIVE BETWEEN
THE PARTIES AND THEIR SUCCESSORS IN INTEREST When a judgment is rendered against a party who stands as
BY TITLE SUBSEQUENT TO THE COMMENCEMENT OF surety for another, the latter (principal) is also bound from
THE ACTION OR SPECIAL PROCEEDING LITIGATING the time he has notice of the action or proceeding, and an
FOR THE SAME THING, UNDER THE SAME TITLE AND opportunity at the surety’s request to join in the defense.543
IN THE SAME CAPACITY.537
533 539
Supra, Section 43, Rule 39 Oropeza Marketing Corporation v Allied Banking
534
Supra, Section 44, Rule 39 Corporation, 393 SCRA 278
535 540
Supra, Section 45, Rule 39 Tan v Court of Appeals, 363 SCRA 444
536 541
Supra, Section 47 (a), Rule 39 Boiser v NTC, 169 SCRA
537 542
Supra, Section 47 (b), Rule 39 Supra, Section 48, Rule 39
538 543
Supra, Section 47 (c), Rule 39 Supra, Section 46, Rule 39
57
APPEALS NOTE that the requirement for a Approval of record on
appeal548 – the trial court may approve it, if no objection is
filed by the appellee – or upon its motion / appellee direct
Rule 40 – Appeals from MTC to RTC its amendment by the inclusion of omitted matters which
are deemed essential to the determination of the issue of law
or facts involved is the appeal.If amendment is ordered,
WHERE CAN AN MTC DECISION BE which the appellant must comply with within the period
APPEALED stated, any extension or if none, within 10 days, submitting
the redrafted record for the approval of the Court. Where
A judgment / final order of the Municipal Trial Court is both parties are appellants, they may file a joint record on
appealable to the Regional Trial Court exercising appeal.549
jurisdiction over the area to which the Municipal Trial Court
pertains. 3. Regardless of the mode of appeal, the adverse party
is to be furnished with a copy.
1. In the appeal, the case title remains, but party
appealing is designated as appellant, while the adverse party
is designated as the party-appellee.544 WHEN PERFECTED
HOW IS APPEAL TAKEN (a) protection and preservation of the rights of the
parties not involving any matter litigated by the
1. By notice of appeal indicating parties, judgment or appeal
final order appealed from statement of the material dates (b) approve compromises
showing timeliness of the appeal. (c) permit appeals of indigent litigants
(d) order execution pending appeal (e)
2. By record on appeal in special proceedings or cases (e) allow withdrawal of appeal.550 This is power is
allowing for multiple appeals, like probate or partition. The known as “RESIDUAL JURISDICTION”
record on appeal shall contain the following:
3. In both cases, DOCKET FEES / OTHER FEES
a. Full name of the parties stated in the caption are also to be paid to the clerk of court of the court that
including the judgment / final order from which rendered judgment. Proof payment of the same shall be
appeal is taken transmitted to the appellant court together with the records
b. In chronological order, copies of all pleadings, / record on appeal. 551
petitions, motions, and all interlocutory orders as
are related to the appealed judgment / final order a. Late payment of docket fees may be admitted when
for proper understanding of the issue. a party shows a willingness to abide by the Rules by
c. Data to show that appeal was filed on time immediately paying the docket fee six days after filing a
d. If issue of fact is to be raised, it should include notice of appeal and beyond the period for perfecting an
reference the documentary evidence by exhibit appeal.552
taken on the issue – specifying the documentary
evidence by exhibit nos. or letters and testimonial b. Where delay in the payment of docket fee was not
evidence by the names of the witnesses. If the due to a desire to delay or defeat the ends of justice, late
whole of it is included, a statement to such effect is payment thereof which causes no prejudice to anyone
sufficient. should not result in the dismissal of the appeal.553
e. If more than 20 pages include a subject index 547
548
Supra, Section 7, Rule 41
549
Supra, Section 8, Rule 41
544 550
Supra, Section 1, Rule 40 Supra, Section 4, Rule 40
545 551
Supra, Section 2, Rule 40 Supra, Section 5, Rule 40
546 552
Neypes v Court of Appeals, GR 141524, September 14, Mactan Cebu International Airport Authority v
2005 Mangubat, 312 SCRA 466
547 553
Supra, Section 6, Rule 41 Lopez v Court of Appeals, 75 SCRA 401
58
a. THE RECORD/RECORD ON APPEAL IS (e) Order denying a motion to set aside judgment by
TRANSMITTED by the clerk of court within 15 days from consent confession, compromise on the ground of fraud,
perfection, together with transcripts / exhibits, which he will mistake, duress or any ground vitiating consent. A petition
certify as complete. A copy of the transmittal shall be for relief or a petition to annul judgment under Rule 47 or
furnished the parties.554 Certiorari under Rule 65 is the remedy
b. If it was tried on the merits, without jurisdiction, 1. The period of ordinary appeal is 15 days from
the RTC on appeal shall not dismiss the case if it has original notice of judgment / final order appealed from. If requiring
jurisdiction, but shall decide the case in accordance with a record on appeal, it is 30 days. Said periods are
Section 7, without prejudice to the admission of amended interrupted by a motion for new trial or reconsideration but
pleadings and additional evidence in the interest of no extension of time for their filing is allowed. NOTE: That
justice.556 in habeas corpus cases the period is 48 hours from notice of
judgment or final order559 NOTE ALSO: The application of
the “fresh period rule”.
RULE 41 – APPEALS FROM 2. Appellate court docket fees / lawful fees shall be
paid within the period for taking an appeal to the clerk of
REGIONAL TRIAL COURTS court of the court that rendered judgment BUT failure to pay
is a ground for dismissal of the complaint560
An appeal may be taken from a judgment /final order that
completely disposes of a case, or a particular matter therein 3. If Appeal is by NOTICE OF APPEAL, it must
when declared by the Rules to be appealable BUT NO indicate parties, judgment or final order appealed from, and
APPEAL CAN BE TAKEN FROM: include a statement of the material dates showing timeliness
of the appeal.561 or if by RECORD ON APPEAL it must
(a) Order denying a motion for new trial or comply with the requirements as previously discussed in an
reconsideration. An appeal of judgment/final order is appeal from the Municipal Trial Court to the Regional Trial
remedy or certiorari under Rule 65 Court.562
(b) Order denying a petition for relief from judgment 4. PERFECTION OF APPEAL IS AS
or similar motion. Certiorari under Rule 65 is remedy DISCUSSED under Rule 40.563 Subsequently, it is the
DUTY OF CLERK OF COURT OF THE LOWER COURT
(c) Interlocutory order. Certiorari under Rule 65 or within 30 days after perfection of all appeals to:
mandamus is remedy
5. Other procedural requirements and disposition of The CONTENTS OF APPELLEE’S BRIEF are:
the appeal are governed by Rule 44:
(1) subject index
5.1 The title of the case shall remain, party appealing (2) statement of facts, either a statement of
shall be referred to as appellant / adverse party-appellee.567 acceptance or counter-statement of facts
Counsel / guardians ad litem of parties shall likewise be (3) Arguments575
considered as such in Court of Appeals, when others appear (4) A Reply Brief may be filed by appellant within
or are appointed, notice shall be filed and furnished adverse 20 days from receipt of the Appellee’s Brief.576
parties.568
NO EXTENSION OF TIME TO FILE BRIEFS
5.2 If the RECORDS are not transmitted to the Court is allowed except for good and sufficient cause, and only if
of Appeals within 30 days after perfection of the appeal, filed before expiration of the time sought to be extended577
either party may file a motion with the Regional Trial Court,
with notice to the other, for transmittal.569 IN LIEU OF BRIEFS, MEMORANDA is
required in certiorari, prohibition, madamus, quo warranto,
5.3 UPON RECEIPT BY THE COURT OF hebeas corpus within a non-extendible period of 30 days
APPEALS, the clerk shall docket the case and notify the from notice that all evidence is attached to the record.
parties. If appeal is by record on appeal, within 10 days from Failure of appellant to file his memoranda is ground to
receipt of notice, appellant must file with the clerk of court 7 dismiss the appeal.578
clearly legible copies of approved record on appeal and proof
of service thereof to adverse party of 2 copies. Any 5.5 QUESTIONS OF LAW OR FACT MAY BE
unauthorized, alteration, omission or addition shall be RAISED in the appeal, whether or not a motion for new
ground for dismissal of the appeal.570 trial has been filed and must within the issues framed by the
parties.579
The Clerk of the CA should also ascertain the completeness
of the records. If incomplete, he shall inform the court and As a rule, a party who deliberately adopts a certain theory
recommend measures to complete the record within the upon which the case is tried and decided by the lower court
shortest possible time BUT if it cannot be completed due to will not be permitted to change his theory on appeal. Points
insuperable or extremely difficult circumstances. The court, of law, theories, issues, and arguments not brought to the
on its own or upon motion, may declare the record sufficient attention of the lower court need not be , and ordinarily not
to decide issues and explain reason for such declaration.571 be, considered by a reviewing court, as these cannot be
564 572
Supra, Section 10, Rule 41 Supra, Section 7, Rule 44
565 573
Supra, Section 11 and 12, Rule 41 Supra, Section 11, Rule 44
566 574
Supra, Section 13, Rule 41 Supra, Section 13, Rule 44
567 575
Supra, Section 1, Rule 44 Supra, Section 14, Rule 44
568 576
Supra, Section 2, Rule 44 Supra, Section 9, Rule 44
569 577
Supra, Section 3, Rule 44 Supra, Section 12, Rule 44
570 578
Supra, Section 4, Rule 44 Supra, Section 10, Rule 44
571 579
Supra, Sections 4 and 5, Rule 44 Supra, Section 15, Rule 44
60
raised for the first time at such late stage. Basic continues to have RESIDUAL JURISDICTION until the
considerations of due process underlie this rule.580 same has been given DUE COURSE.584
6. In Criminal Cases, note the possibility of the filing 5. NOTE that except in cases covered by the Rule on
of two notices of appeal when the penalty imposed by the Summary Procedure, appeal shall stay the judgment / final
Regional Trial Court is life imprisonment or reclusion order unless Court of Appeals or the Rules provide otherwise
perpetua, appeal is by notice to the Court of Appeals, and by
notice again to the Supreme Court. If the penalty is death, it 6. ONCE FILED, the Court of Appeals may:
is automatically reviewed by the Supreme Court, but such
shall be made by the Court of Appeals, which shall render (a) Require the respondent to file a comment, not a
judgment, then certify it to the Supreme Court, who will motion to dismiss, within 10 days from notice
then enter the same.581 (b) Dismiss the petition if found to be patently without
merit, prosecuted manifestly for delay, or questions
(b) Petition for Review is an appeal to the Court of raised therein are too unsubstantial to require
Appeals of judgment / final order of the Regional Trial Court consideration.585
in the exercise of its appellate jurisdiction under Rule 42
7. The COMMENT should be filed in 7 copies,
1. It is initiated by the filing of a Verified Petition for accompanied by certified true copies of such MATERIAL
Review with the Court of Appeals, paying at the same time PORTIONS OF THE RECORD AND OTHER SUPPORTING
to the Clerk of Court of Appeals the corresponding docket DOCUMENTS, stating:
fees and lawful fees, depositing 500 for costs, furnishing the
Regional Trial Court and adverse party with a copy of the (a) Statement of whether or not he accepts the
Petition. statement of matters
(b) Point out the insufficiencies / inaccuracies
2. It is to be filed within 15 days from notice of (c) State reasons why it should not be given due
decision sought to be reviewed or denial of motion for new course. Copy of which must be served on adverse
trial or motion for reconsideration. UPON PAYMENT OF party.586
DOCKET FEES AND DEPOSIT AND BEFORE
EXPIRATION OF THE PERIOD, the Court of Appeals may 8. A petition is given DUE COURSE when upon
grant an extension of 15 days. No further extension can be the filing of the comment or expiration of the period to file,
given unless for the most compelling reason, but in no case the Court of Appeals finds PRIMA FACIE that the lower
to exceed 15 days. 582 court has committed an error of fact / law that will warrant a
reversal / dismissal. CONSEQUENTLY, the Court of
3. FORM, CONTENTS, NUMBER OF COPIES. 7 Appeals, if it deems necessary, will order the elevation by the
copies are to be filed, indicating the original copy intended clerk of the Regional Trial Court of the entire record within
for the Court of Appeals containing 15 days from notice.587
(a) full names of parties, without impleading the 9. IT IS SUBMITTED FOR DECISION after the
lower court / judges filing of last pleading or memorandum. Prior to that though,
(b) specific material dates indicating that it is filed the Court of Appeals may set it for oral argument / or
on time require memoranda to be submitted within a period of 15
(c) statement of matters, issues, specification of days from notice.588
errors of fact / law and reasons / arguments
relied upon (c) Appeal by Certiorari or Petition for Review on
(d) accompanied by clearly legible duplicate copies Certiorari which should involve a pure question of law direct
or true copies of judgment of the lower courts, to the Supreme Court under Rule 45
certified correct by Regional Trial Court clerk
of court, pleadings and other material portions 1. A Question of Law is one that requires
supporting the allegations of the petition interpretation or application of a law, while a Question of
(e) certification against forum shopping / Fact is one that pertains to a resolution of a factual dispute.
verification.
1.1 There is a question of law in a given case when the
NOTE: Failure to pay fees or comply with the doubt or difference arises as to what the law is pertaining to
requirements shall be sufficient ground for dismissal.583 a state of acts, and there is a question of fact when the doubt
arises as to the truth or falsity of alleged facts.589
4. The appeal is deemed PERFECTED upon timely
filing of the petition and payment of docket fees. The RTC 2. This is initiated by the filing of a Verified Petition
loses jurisdiction upon perfection of the appeal and lapse of for Review on Certiorari raising only questions of law. This
time to appeal by the other parties. The Regional Trial Court mode of appeal is available to question judgment /
584
Supra, Section 8, Rule 42
585
Supra, Section 4, Rule 42
580 586
BPI v Leobrera, 416 SCRA 15 Supra, Section 5, Rule 42
581 587
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, Supra, Section 6, Rule 41
588
October 15, 2004 Supra, Section 9, Rule 42
582 589
Supra, Section 1, Rule 42 Manila Bay Club Corporation v Court of Appeals, 245
583
Supra, Sections 2 and 3, Rule 41 SCRA 715
61
resolutions of the Court of Appeals, the Sandiganbayan, a and impose sanctions for non-filing / non-
Regional Trial Court, and other Courts whenever authorized compliance or unauthorized filing.
by law.590
This ALSO applies to a determination as to whether it
3. The TIME FOR FILING is 15 days from notice of should be dismissed or denied.595 The RULE APPLIES
the judgment, final / order, or resolution or of denial of TO BOTH CIVIL / CRIMINAL ACTIONS, except in
petitioner’s motion for new trial / reconsideration. On cases where penalty is death, reclusion perpetua / life
motion and with full payment of docket fees and deposit of imprisonment.596
costs, the Supreme Court on justifiable reason may grant an
extension of 30 days within which to file the petition.
7. The exceptions to the general rule that only
Docket fees and proof of service of the petition on the lower questions of law may be raised in a petition for review are:
court and adverse party must accompany the filing of the
petition.591 (a) when the conclusion is a finding grounded entirely
on speculation, surmises, or conjectures;
4. 18 copies of the petition are required to be filed, (b) when the inference made is manifestly mistaken,
indicating the original copy for the court. It should contain: absurd, or impossible;
(c) where there is a grave abuse of discretion;
(a) full names of parties (petitioner / respondent) (d) when the judgment is based on a misapprehension
without impleading court / judge of facts;
(b) indicate material dates (e) when the findings of fact are conflicting;
(c) concise statements of the matters involved and the (f) when the Court of Appeals, in making its findings,
reason / arguments relied upon for the allowance went beyond the issue of the case and the same is
of the petition contrary to the admissions of both appellant and
(d) clearly legible copies of judgment / final order / appellee;
reconsideration or certified true copy and other (g) when the findings of the Court of Appeals are
material portion supporting the record contrary to those of the trial courts;
(e) Certificate against forum shopping and (h) when the findings of facts are conclusions without
verification592 citation of specific evidence on which they are
based;
5. UPON FILING, the Supreme Court can: (i) when the facts set forth in the petition as well as in
the petitioner’s main and reply briefs are not
5.1 DISMISS – disputed by the respondents;
(1) for failure to comply with the requirements (j) when the finding of fact of the Court of Appeals is
regarding payment, proof of service, contents premised on the supposed absence of evidence but
and documents is contradicted by the evidence on record; and
(2) on its own initiative because it is without (k) when the Court of Appeals manifestly overlooked
merit, prosecuted for delay, or issues are too certain relevant facts not disputed by the parties
unsubstantial to require consideration, OR and which, if properly considered, would justify a
different conclusion.597
5.2 ALLOW REVIEW, which is not a matter of right
but is discretionary, when there are special / important (c) By Petition for Review under Rule 43 in a case
reasons therefor: decided by the Regional Trial Court sitting as a commercial
court.598
EXAMPLES:
(1) when the court a quo has decided a matter of 1. Applies primarily to appeals from the Court of Tax
substance not therefore determined by the Supreme Court Appeals and other quasi-judicial agencies to the Court of
or decided in a way not in accord with the law or applicable Appeals, but is not applicable to judgments / final orders
decisions of the Supreme Court under the Labor Code.599
(2) when court a quo has so far departed from the
accepted and usual course judicial proceedings, or so far 2. The appeal can include questions of fact, law or
sanctioned such departure by a lower court, as to call for an mixed questions of law and fact.600
exercise of the power of supervision.593
3. The appeal shall be taken within fifteen (15) days
6. If given DUE COURSE, the Supreme Court can: from notice if the award, judgment, and final order of
resolution, or from the date of its last publication, if
(a) Require elevation of the records / or specified publication is required by law for its effectivity, or of the
portions thereof within 15 days from notice 594 denial of the petitioner’s motion for new trial or
(b) Require filing of pleadings, briefs, memoranda or reconsideration duly filed in accordance with the governing
documents as it may deem necessary within law of the court or agency a quo. Only one (1) motion for
periods / conditions it may consider appropriate
595
Supra, Section 7, Rule 45
590 596
Supra, Section 1, Rule 45 Supra, Section 9, Rule 45
591 597
Supra, Sections 2 and 3, Rule 45 Martinez v Court of Appeals, 358 SCRA 38
592 598
Supra, Section 4, Rule 45 A.M. No. 04-9-07-SC, September 14, 2004
593 599
Supra, Sections 5 and 6, Rule 45 Supra, Sections 1 and 2, Rule 43
594 600
Supra, Section 8, Rule 45 Supra, Section 3, Rule 43
62
reconsideration shall be allowed. Upon proper motion and (4) certification against forum shopping (5)docket fees
the payment of the payment of the full amount of the docket / deposit for cost.606 FAILURE TO COMPLY IS
fee before the expiration of the reglementary period, the SUFFICIENT GROUND FOR DISMISSAL OF
Court of Appeals may grant an additional period of fifteen PETITIONS
(15) days only within which to file the petition for review. No
further extension shall be granted except for the most A certified true copy is one the certification of which is made
compelling reason and in no case to exceed fifteen (15) by the proper clerk of court or his duly authorized
days.601 representative.607
PROCEDURE WITH THE COURT 2. If factual issues are to be resolved, the Court of
Appeals can conduct hearings or delegate reception of
OF APPEALS evidence on such issues to any of its members or to an
appropriate court / agency / office. 610(Section 6, Rule 46)
RULE 51 - JUDGMENT
RULE 50 - GROUNDS FOR
DISMISSAL BY THE COURT OF When submitted for judgment:
APPEALS
1. IN ORDINARY APPEALS:
In ALL CASES THAT COME BEFORE IT, and besides a. Where no hearing on merits is held, upon filing of
on a finding that the case is without merit, prosecuted for the last pleading, brief, memoranda or expiration
delay or issue is too unsubstantial to merit consideration, of period to file.
ON MOTION OF THE COURT OR OF THE b. Where a hearing is held, upon termination of
APPELLEE, it may dismiss the petition on the basis of: hearing or upon filing of the last pleading,
memoranda as may be required or permitted, or
1. Failure of record on appeal to show on its face that expiration of period to file
appeal was taken within period fixed by the Rules.
2. Failure to file notice of appeal or record on appeal 2. IN ORIGINAL ACTIONS / PETITIONS FOR
within period within the period prescribed by the REVIEW
Rules.
3. Failure to pay docket fees as provided under a. Where no comment is filed, upon expiration of the
Section 5, Rule 40 and Section 4, Rule 41. period to file comment
4. Unauthorized alterations, omissions, additions on b. Where no hearing, same as 1 (a)
record on appeal as provided under Section 4, Rule c. Where hearing is held, same as 1 (b)621
44
5. Failure of appellant to serve and file required 3. Judgment is rendered by members of the court who
number briefs or memoranda within provided time participated in the deliberations on the merits before
by these Rules assignment to a member for writing of the decision.622
6. Absence of specific assignment of errors or page
references to the record as required by Section 13, 4. Participation of all 3 justices shall be necessary at
par. a,c,d, and f of Rule 44 deliberation and unanimous vote shall be required for
7. Failure of appellant to take necessary steps for the pronouncement. If not, the clerk shall enter the vote of
correction or completion of the records within time dissenting justices in the record. Thereafter, Chairman of
limited by the Court the division refers it to the Presiding Justice, who will
8. Failure to appear at preliminary conference under designate 2 justices by raffle to sit temporarily and to form a
Rule 48, or comply with orders, circulars or special division of five (5) justices. The participation of all is
directives of the Court without justifiable cause required for deliberation. Concurrence of majority is
9. The fact that order / judgment appealed from is required for pronouncement.623
not appealable.618
Note: That in rendering judgment, harmless errors or
those which do not affect the substantial rights of the
parties624 or errors that are not assigned will not be
619
Supra, Section 2, Rule 50
614 620
Supra, Section 3, Rule 48 Supra, Section 3, Rule 50
615 621
Supra, Section 1, Rule 49 Supra, Section 1, Rule 51
616 622
Supra, Section 2, Rule 49 Supra, Section 2, Rule 51
617 623
Supra, Section 3, Rule 49 Supra, Section 3, Rule 51
618 624
Supra, Section 1, Rule 50 Supra, Section 6, Rule 51
64
considered unless they affect jurisdiction, validity of RULE 52- MOTIONS FOR
judgment, and of proceedings.625
RECONSIDERATION BEFORE THE
4.1 HARMLESS ERROR DOCTRINE means that CA
any error or defect which does not affect substantial rights
will be disregarded by the reviewing court or tribunal. It is Judgments of the Court of Appeals can be the subject of
followed to deal with evidence improperly admitted during reconsideration within fifteen (15) days from notice
trial wherein its damaging quality and impact to the thereof, with proof of service to the adverse party. 632
substantial rights of the litigant are examined. If deemed
slight and insignificant, the error is disregarded.626 It is not a 1. No second motion for reconsideration will be
ground for granting of a new trial or for setting aside, entertained.633
modifying, or disturbing a judgment or final order unless the
refusal appears to the Court inconsistent with substantial 2. It is to be resolved within sixty (60) days from
justice. submission for resolution634 and while pending, shall stay
the execution unless for good reason, court directs
5. JUDGMENTS OF THE COURT OF APPEALS otherwise.635
IN THE EXERCISE OF APPELLATE JURISDICTION
MAY affirm, reverse, or modify the judgment or final order
appealed from. It may also order or direct a new trial to be
held or that further proceedings be taken. 627 The decision RULE 53- MOTION FOR NEW
must state clearly and distinctly the findings of fact and
conclusions of law on which it is based, which may be
TRIAL
contained in the resolution itself or adopted from those set
forth in the judgment, final order appealed from.628 It can be filed at any time after appeal from the lower
court has been perfected and before the Court of Appeals
loses jurisdiction, on the ground of newly discovered
6. PROCEDURE AFTER JUDGMENT IS: evidence WHICH COULD NOT HAVE BEEN
DISCOVERED PRIOR TO THE TRIAL IN THE
6.1 After signing by the justices, it shall be delivered to COURT BELOW BY THE EXERCISE OF DUE
the clerk of court, who shall indicate thereon the date of DILIGENCE AND WHICH IS OF SUCH A
promulgation and cause true copies thereof to be served CHARACTER AS WOULD PROBABLY CHANGE
upon the parties or counsel.629 THE RESULT. The motion must be accompanied by
affidavits showing the facts constituting the grounds and the
2. If no appeal, or motion for new trial or newly discovered evidence.636
reconsideration is filed within the period, the judgment or
final resolution shall be entered in the book of Entries of The Court of Appeals shall then consider the
Judgment. Judgment or final resolution shall be deemed evidence and that adduced at the trial, to determine if it will
executory as of the date of entry. The record shall contain grant or refuse a new trial, or make such order, with notice
the dispositive portion, signed by the clerk with a statement to both parties, as to the taking of further testimony, either
that it is final and executory.630 orally in court, by depositions, or render such other
judgment as ought to be rendered upon terms it may deem
3. Execution shall as a rule issue upon a motion in the just.637 IF GRANTED, the procedure shall be the same as
proper court upon its entry. In appealed cases, where the that granted by a Regional Trial Court.638
motion is filed with the Court of Appeals at the time that it is
in possession of the original records or record on appeal, the Motion should be resolved within 90 days from the date it is
resolution granting the motion shall be transmitted to the declared to be submitted.639
lower court from which the case originated, together with
certified copy of the judgment to be executed, with a OTHER MATTERS
directive to said court to issue the proper writ for its
enforcement. In original actions, the writ shall be
accompanied by a certified true copy of the entry of
judgment and addressed to appropriate officer for
enforcement.631
632
Supra, Section 1, Rule 52
625 633
Supra, Section 8, Rule 51 Supra, Section 2, Rule 52
626 634
People v Teehankee, 269 SCRA 54. Supra, Section 3, Rule 52
627 635
Supra, Section 4, Rule 51 Supra, Section 4, Rule 52
628 636
Supra, Section 5, Rule 51 Supra, Section 1, Rule 53
629 637
Supra, Section 9, Rule 51 Supra, Section 2, Rule 53
630 638
Supra, Section 10, Rule 51 Supra, Section 4, Rule 53
631 639
Supra, Section 11, Rule 51 Supra, Section 3, Rule 53
65
RULE 54 – Internal Business 1.1 Note that the correctness of the judgment
is not in issue as a petition for annulment is not in issue.648
1.2 It is a remedy that may be availed of by
those who are not even parties to the judgment or to annul
Allotment of cases shall be among the different
even judgments that have been fully executed.649
divisions for hearing and decision. The Court of Appeals En
Banc shall make proper orders or rules to govern allotment,
2. It is available only on grounds of:
the constitution of such divisions, the regular rotation of
justices, filling of vacancies, and other matters. Such will
(a) EXTRINSIC FRAUD but only when it was not
continue in force and repealed or altered by it or the
availed of or could have been availed of in a motion
Supreme Court.640
for new trial or petition for relief OR
(b) LACK OF JURISDICTION
A majority of the court shall constitute a quorum for
sessions en banc and a majority of the members present
2.1 There is extrinsic fraud when the
shall be necessary to pass a resolution. Three members of a
unsuccessful party had been prevented from exhibiting fully
division shall constitute a quorum for sessions of a division
his case, by fraud or deception practice upon him by his
and the affirmative vote of three members shall be necessary
opponent, as keeping him away from the court, or where the
for pronouncement of judgment/resolution, which shall be
defendant never had knowledge of the suit, being kept in
reached in consultation among them before the writing of
ignorance by the acts of the plaintiff.650
the opinion by any member of the division.641
3. The period for its filing if based on extrinsic fraud
is within 4 years from its discovery, or if based on lack of
jurisdiction before it is barred by laches or estoppel.651
RULE 55 – Publication of
Judgment/Final Order/Resolution
FILING / CONTENTS OF THE PETITION
Judgments and Final Resolutions shall be published in
the Official Gazette and in the Reports officially authorized Filing is by verified petition alleging therein with
by the Court, in the language originally written, together particularity, the facts and the law relied upon for
with a syllabi. If not so published, a memoranda shall be annulment as well as supporting petitioner’s good and
made and published in the like manner. 642 The publication substantial cause of action / defense, as the case may be.
is to be prepared by the Reporter. 643 Those of the Supreme Containing
Court are called Philippine Reports, while those of the Court
of Appeals are called Court of Appeals Reports. 644 (1) certified true copy of judgment / final order /
resolution shall be attached to the original copy
intended for the court
(2) affidavits of witnesses
(3) certification against forum shopping652
RULE 47-ANNULMENT OF
JUDGMENT
WHAT THE COURT OF APPEALS WILL DO
Annulment of judgment covers judgments of the UPON FILING
Regional Trial Court for which the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies 1. If no substantial merit, it will be dismissed
ARE NO LONGER AVAILABLE THROUGH NO outright with specific reasons for such dismissal.
FAULT OF THE PETITIONER645
2. If prima facie merit be found, it shall be given
1. An important condition for the availment is that due course and summons shall be served on the respondent.
the petitioner failed to move for new trial, or appeal IF SO, procedure in ordinary civil cases shall be followed but
from, or file a petition for relief against, or take other reception may be referred to a member of the Court or a
appropriate remedies through no fault attributable to him. If Regional Trial Court judge.653
he failed to avail of the other remedies through his own
fault, he would then benefit from his inaction or
negligence.646 He must allege non availment of other EFFECT OF JUDGMENT IN A PETITION
remedies through no fault of the petitioner, otherwise the FOR ANNULMENT
petition will be dismissed.647
It shall set aside the questioned judgment / final order /
resolution and render the same null and void – without
prejudice to the refiling of the original action in the proper
court . However, where it is set aside by reason of extrinsic
640
Supra, Section 1, Rule 54
641
Supra, Section 2, Rule 54
642 648
Supra, Section 1, Rule 55 Republic v Heirs of Sancho Magdato, 340 SCRA 115
643 649
Supra, Section 2, Rule 55 Malolos v Dy, 325 SCRA 827
644 650
Supra, Section 3, Rule 55 Leonardo v ST Best, 422 SCRA 347
645 651
Supra, Section 1, Rule 47 Supra, Section 3, Rule 47
646 652
Manipor v Ricafort, 407 SCRA 298 Supra, Section 4, Rule 47
647 653
Ancheta v Ancheta, 424 SCRA 725 Supra, Sections 5 and 6, Rule 47
66
fraud, the court on motion, may order the trial court to try while the latter involves a review of
the case again as if a timely motion for new trial has been judgment/final order/ resolution on the merits
granted therein.654
(c) the former is filed within 15 days from notice of
The prescriptive period for the refiling of the original judgment / order, while the latter is filed not later
action shall be deemed suspended from the filing of such than 60 days from notice of the resolution
original action until finality of the judgment of annulment. sought to be assailed or denial of a motion for
HOWEVER, the prescriptive period is or shall not be reconsideration
suspended where extrinsic fraud is attributable to the
plaintiff is original action.655 (d) the former shall stay the judgment /final order or
award, while the latter does not stay the order or
resolution unless a temporary restraining order or
SCOPE OF RELIEF preliminary injunction is issued
It may include award of damages, attorney’s fees and (e) In the former, the petitioner/respondent are the
other relief. If already executed, restitution or other relief as original parties in the case and the lower court is
justice / equity may warrant.656 not impleaded, while in the latter, the aggrieved
party is the petitioner against the against the lower
IF ALSO APPLIES TO A PETITION TO ANNUL court, agency and the prevailing party
JUDGMENT / FINAL ORDER OF A MUNICIPAL TRIAL
COURT BUT IS FILED WITH REGIONAL TRIAL COURT (f) the former does not require the filing of a motion
and treated as an ordinary civil action.657 All sections except for reconsideration prior to filing, while the latter
Section 5 pertaining to dismissal or determination of prima requires a motion for reconsideration prior to
facie merit shall apply. filing
(b) in the former, it is addresses an interlocutory Special civil action against a tribunal,
order prior to appeal of a judgment when there is corporation, board, or person exercising JUDICIAL –
no appeal or any other speedy or adequate remedy, QUASI JUDICIAL – MINISTERIAL FUNCTION which
is alleged by an aggrieved party to be acting or about to act
without jurisdiction, in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or excess of
654
Supra, Section 7, Rule 47 jurisdiction and there is no appeal, or any plain, speedy and
655 adequate remedy in the ordinary course of the law praying
Supra, Section 8, Rule 47
656 that judgment be rendered commanding the respondent to
Supra, Section 9, Rule 47 desist from further proceeding in the action or proceeding
657
Supra, Section 10, Rule 47
658
Supra, Section 1, Rule 65
67
therein or otherwise granting such incidental reliefs as law (b) respondent unlawfully excludes another from the
and justice may require.659 use and enjoyment of a right or office to which such
other is entitled.
2 ASPECTS OF MANDAMUS
WHERE ELSE CAN BE FILED OTHER
The aspects of Mandamus are: THAN THE COURT OF APPEALS
(a) respondent unlawfully neglects the performance of The petition may be filed in the Supreme Court, the
an act which the law specifically enjoins as a duty Regional Trial Court if relates to an act / omission of a lower
resulting from an office, trust or station OR court, corporation, board, officer or person within its
661
Enriquez, Jr v Bidin, 47 SCRA 183
659 662
Supra, Section 2, Rule 65 Calderon v Sol, 215 SCRA 876
660 663
Municipal Council of Lemery, Batangas v Provincial Supra, Section 4, Rule 65, as Amended by A.M. 00-2-
Board of Batangas, 56 PHIL 260 03-SC
68
territorial jurisdiction, or the Sandiganbayan, if in aid of its RULE 66 -QUO WARRANTO
appellate jurisdiction
Quo Warranto is a special civil action brought by verified
petition in the name of the Republic of the Philippines
IT IS FILED WITH THE COURT OF
against:
APPEALS
(a) person who usurps, intrudes into or unlawfully
Whether or not in aid of its appellate jurisdiction, when holds or exercises a public office, positions or
it involves acts / omissions of quasi-judicial body, unless
franchise
otherwise provided. (b) public officer who performs an act that constitutes
a ground fro forfeiture of his office
(c) an association that acts as a corporation within the
PARTIES TO BE IMPLEADED Philippines without legally being incorporated or
without lawful authority to act.669
In addition to the public respondents, the petition shall
also join the person/s interested in sustaining the 1. It literally means “by what authority”.670
proceedings and it shall be the duty of the private
respondent to appear and defend both in his behalf and that 2. An individual can bring a quo warranto action in
of the public respondents and cost awarded shall be against his name when he is claiming to be entitled to a public office
private respondent only. or position usurped or exercised by another may bring an
action.671
Unless otherwise directed by the court, the public
respondents shall not appear or file an answer or comment. 3. A quo warranto action MUST be commenced by
If elevated to a higher court the public respondents shall be the Solicitor General or Public Prosecutor when directed by
nominal parties, and unless directed shall not appear or the President or upon complaint or otherwise he has good
participate in the proceedings therein.664 reason to believe that a cause can be established by proof. 672
If by complaint, a request for indemnity for expenses and
costs may be required to be deposited.673
ORDER TO COMMENT
3. BESIDES the Court of Appeals, the action can be
If petition is sufficient in form or substance, a comment will brought before the Supreme Court, a Regional Trial Court
be required, not a motion to dismiss.665 Orders expediting exercising jurisdiction over the area where the respondent/s
proceedings / temporary restraining order / injunctions for reside BUT, if the Solicitor General commences the action,
the preservation of the rights of the parties may be issued he may bring it before a Regional Trial Court in Manila, the
BUT the filing of the petition shall not interrupt the course Court of Appeals or the Supreme Court.674
of the principal case unless a Temporary Restraining Order
or Injunction is granted enjoining the public respondent 4. WHEN FILED: within 1 year from accrual of the
from further proceeding.666 cause of action (ouster or right to hold position) Damages if
recoverable must be in another action filed within 1 year
from entry of judgment.675
ACTIONS THAT MAY BE TAKEN
SUSBEQUENTLY 5. PARTIES and CONTENTS of the petition:
When the action is against the person for usurping a public
Court may hear or require filing of memoranda. If it office, position or franchise, the petition shall set forth the
finds the allegations to be true, it shall render judgment for name of the person who claims to be entitled thereto, if any
the relief prayed for or to which petitioner is entitled. with an averment of his right to the same and that the
respondent is unlawfully in possession thereof. All persons
It may also dismiss if patently without merit, who claim to be entitled may be made parties, and their
prosecuted manifestly for delay or issues are too respective rights may be determined in the same action.676
unsubstantial to require consideration.667 (Section 8)
6. REDUCTION OF TIME for pleadings and other
proceedings may be directed by the Court to secure the most
SERVICE / ENFORCEMENT OF JUDGMENT expeditious determination of the matters involved therein
consistent with the rights of the parties. It can also take
Certified copy of judgment shall be served in such precedence over other civil matters pending before the
manger as the court may direct and disobedience thereto Court.677
shall be punished as contempt. Execution may issue for any
damages / cost in accordance with Section 1, Rule 39.668
669
Supra, Section 1, Rule 66
670
Tecson v Comelec, 424 SCRA 277
671
Supra, Section 5, Rule 66
672
Supra, Section 2, Rule 66
664 673
Supra, Section 5, Rule 65 Supra, Section 3, Rule 66
665 674
Supra, Section 6, Rule 65 Supra, Section 7, Rule 66
666 675
Supra, Section 7, Rule 65 Supra, Sections 10 and 11, Rule 66
667 676
Supra, Section 8, Rule 65 Supra, Section 6, Rule 66
668 677
Supra, Section 9, Rule 65 Supra, Section 8, Rule 66
69
7. A JUDGMENT where the respondent is found APPEALED CASES
guilty of usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise shall state The only mode of appeal to the Supreme Court is by
that he be OUSTED AND ALTOGETHER EXCLUDED Petition for Review on Certiorari, except in criminal cases
THEREFROM, and that the rights of the PETITIONER OR where penalty is death, reclusion perpetua, and life
RELATOR, meaning the real party in interest, be imprisonment683
determined as justice requires.678 It can also include a
judgment for costs679 NOTE: Except in appeal of criminal cases where
penalty is death, reclusion perpetua, life imprisonment,
8. The RIGHTS of a person entitled to public office appeal by Notice of Appeal, will be dismissed 684 AND if by
include the right to demand of the respondent all books and certiorari from the Regional Trial Court to the Supreme
papers in his custody or control appertaining to the office, Court, raising issues of fact may be referred to the Court of
otherwise he may be punished for contempt.680Note: the Appeals for decision or appropriate action. Determination of
damages aspect must be brought in another action. the Supreme Court as to whether or not there are issues of
fact is FINAL.
DISTINGUISH BETWEEN QUO All appealed cases shall be governed by and disposed of
WARRANTO AND ELECTION PROTEST in accordance with the applicable provisions of the
Constitution, Rule 45 (Petition for Review on Certiorari)
In QUO WARRANTO the issue is the disqualification Rule 48 (Preliminary Conference), Sections 1 (When
/ ineligibility of the proclaimed candidate, in a PROTEST submitted) 2 (Who renders judgment) and 5 to 11 ( Form to
the issue is an irregularity in the election. Execution) Rule 51, Rule 52 (Motion for Reconsideration)
and Rule 56.685
If in the former, if the respondent is ineligible, the
petitioner does not occupy the position, while in the latter, GROUNDS FOR DISMISSAL OF AN APPEAL
the protestant can occupy the position if he obtains a
plurality of the votes. Motu propio or upon motion of respondent, it may be
dismissed on
DISTINGUISH BETWEEN QUO (1) failure to take appeal within the reglementary
WARRANTO AS TO NATURE OF POSITION period
(2) lack of merit
In quo warranto involving an ELECTIVE POST the (3) failure to pay docket and lawful fees
issue is the eligibility of candidate elected, while in that (4) failure to comply with requirements of proof of
involving an APPOINTIVE POST the issue is the legality service and documents
of appointment. (5) failure to comply with any circular, directive or
order of the Supreme Court without justifiable
In the former, if the respondent is found ineligible, the cause
found ineligible, 2nd highest vote getter, even if eligible (6) error in the choice or mode of appeal
cannot be declared elected, while in the latter, the (7) that it is not appealable to the Supreme Court686
resolution shall determine who has been legally appointed
and declare who is entitled to occupy the office.
IF SUPREME COURT OPINION IS
EQUALLY DIVIDED OR NECESSARY
MAJORITY CANNOT BE OBTAINED
RULE 56 – PROCEDURE IN THE
It will be deliberated further. If after deliberation, no
SUPREME COURT decision is reached, the original action commenced in the
court shall be dismissed. If appealed, it shall stand affirmed.
If on incidental matters, it shall be denied.687
ORIGINAL CASES
678 683
Supra, Section 9, Rule 66 Supra, Section 3, Rule 56
679 684
Supra, Section 12, Rule 66 Supra, Section 6, Rule 56
680 685
Supra, Section 10, Rule 66 Supra, Section 4, Rule 56
681 686
Supra, Section 1, Rule 56 Supra, Section 5, Rule 56
682 687
Supra, Section 2, Rule 56 Supra, Section 7, Rule 56
70
PROVISIONAL REMEDIES 4.1 The fraud should be committed either upon
contracting the debt or incurring the obligation sued upon
or in the performance thereof. A debt is fraudulently
contracted if at the time of contracting it, the debtor has a
RULE 57 – PRELIMINARY preconceived plan or intention not to pay.688
ATTACHMENT
5. Action against a party who has removed or
disposed of his property, or is about to do so, with intent to
WHAT IS PRELIMINARY ATTACHMENT defraud creditors.
1. By the sheriff, without delay and with all 3.3 THERE CAN ALSO BE EXAMINATION OF
reasonable diligence THESE PERSONS TO DETERMINE IF THERE ARE
PROPERTIES THAT MAY BE ATTACHED IN THEIR
1.1 Note that Rule 57 does not provide any lifetime for POSSESSION700
a writ of preliminary attachment unlike a writ of execution.
694 What the law provides are enforcing the writ without 4. Sheriff shall also make a RETURN without delay,
delay and making sheriff’s return thereon without delay. containing full statement of his proceedings under the writ
and a complete inventory of property attached, together with
2. He may attach only such property not exempt from a copy of a counter-bond if one has been filed, furnishing
execution, as may be sufficient to satisfy the demand copies thereof on the applicant.701
UNLESS defendant makes a deposit or give a counter bond
in an amount equal to the bond fixed by the court or to the 5. Property is to be held and disposed of in the
value of the property attached. 695 NOTE: That the following manner:
attachment shall proceed nevertheless until there have been
proceedings undertaken to discharge the attachment. If a. If judgment is recovered by the attaching party
found to be insufficient / or is not filed, a NEW ORDER
OF ATTACHMENT MAY BE APPLIED FOR.696 1. Paying to obligee proceeds of all sales of perishable
property or others sold pursuant to order of the court as
3. Attachment should be in accordance with the shall be necessary to satisfy the judgment.
following:
2. If there is a balance, selling so much of the real or
a. If real property, it requires the filing with the Office personal property as may be necessary to satisfy the balance,
of the Register of Deeds of a copy of the order together with if enough for that purpose, remains in the hands of the
notice that property or interest therein is attached. sheriff or clerk of court. Note that there can be an EARLY
SALE if it is made to appear to the court in which the action
b. If personal property capable of manual delivery is pending that the property attached is perishable, or that
taking it and safely keeping it in custody after issuance of the interest of all the parties to the action will be subserved
proper receipt. by the sale of the properties at public auction, the proceeds
to be deposited with the court to abide the judgment.702
c. If stocks / shares / interest in companies, by
leaving with the president or managing agent a copy of the 3. Collecting from all persons having in their
writ and notice. possession credits belonging to the obligor or debts due him
d. If debts, credits, bank deposits and other like A REPORT / RETURN of all proceedings must be filed
personal properties not capable of manual delivery – leaving with the court and copies furnished all parties.703
with such persons owing debt, holding credits or in
possession a copy of the writ and notice.
697
Supra, Section 7, Rule 57
698
Supra, Section 8, Rule 57
699
Supra, Section 9, Rule 57
693 700
Mangila v Court of Appeals, 387 SCRA 162 Supra, Section 10, Rule 57
694 701
Roque v Court of Appeals, 93 SCRA 540 Supra, Section 6, Rule 57
695 702
Supra, Section 5, Rule 57 Supra, Section 11, Rule 57
696 703
Supra, Section 12, Rule 57 Supra, Section 15, Rule 57
72
4. If there be a balance, he proceeds to collect as upon 3. Claim for damages on account of improper,
ordinary execution. If there be a surplus, it must be irregular, or excessive attachment. 709
returned.
NOTE: a motion to discharge / dissolve is not allowed if the
5. If judgment becomes executory, the surety/ies shall preliminary attachment is issued on a ground which is at the
become charged on the counter-bond and bound to pay the same time the applicant’s cause of action as that is
judgment obligee upon demand, the amount due on the TANTAMOUNT TO TRIAL ON MERITS.
judgment, which amount can be recovered after notice and
summary hearing in the same action.704 Example: action for money, property embezzled, party
guilty of fraud in incurring the obligation
6. If money was deposited in LIEU of a bond, it is
applied under direction of the Court and if judgment is
against attaching party, the whole sum deposited is WHAT HAPPENS IF PROPERTY IS
refunded. 705 CLAIMED BY A 3RD PERSON
2. Discharge or set aside the attachment on the 1. The applicant is entitled to the relief demanded,
ground that it was improperly issued or irregularly enforced, and the whole or part of the relief consists in restraining the
OR bond is insufficient OR what has been attached is commission / continuance of the act/s complained of, or in
excessive, the discharge is only for the excess.708 requiring the performance of an act/s, for a limited period or
perpetually.
These must clearly appear in the allegations in the complaint GROUNDS FOR OBJECTION /
– OTHERWISE – it may be ground for its outright denial DISSOLUTION
for INSUFFICIENCY, which is apparent in the application
itself OR if already granted, may be dissolved.714 1. The application may be denied or if granted,
dissolved, upon showing of insufficiency, or while entitled
to an injunction, the issuance or continuance thereof will
MAY IT BE ISSUED EX-PARTE – cause irreparable damage to the person enjoined while the
applicant can be compensated for the damages and a bond is
Its issuance requires filed OR if it appears that extent is too great, it may be
modified. 717
(1) a hearing
(2) reception of evidence with opportunity to cross 2. It may also be dissolved on objection to the
(3) finding that prohibited acts are threatened to be sufficiency of the bond, or upon finding of insufficiency, the
committed or that irreparable injury would be failure of surety to justify or filing of a sufficient bond. If it
inflicted upon the applicant. the objection is to the bond of the party enjoined, the
injunction shall be granted or restored. 718
IF GREAT / IRREPARABLE INJURY WOULD
RESULT BEFORE THEN: the Court BY WAY OF
EXCEPTION TO THE RULE ON NON EX-PARTE JUDGMENTS OR ORDERS IN INJUNCTION
ISSUANCE (1) can issue a Temporary Restraining Order
for 20 days after a summary hearing OR If it is of extreme 1. ORDER DISCHARGING IS IMMEDIATELY
urgency, it may issue ex-parte a 72 hour Temporary EFFECTIVE
Restraining Order. The lifetime of a Temporary Restraining
Order is 20 days if issued by a trial court, 60 days if issued 2. A Final Injunction is granted if it appears that the
by the Court of Appeals, and until further orders if issued by applicant is entitled to have the act/s permanently enjoined
the Supreme Court. Note that within the 20 day effectivity or confirming the preliminary mandatory injunction.719
period of the Temporary Restraining Order, the court must
order the party or person to show cause why the injunction 3. Judgments eventually rendered may include
should not be granted, determine also whether or not the damages against a party and sureties. 720
preliminary injunction should be granted, and accordingly
issue the order. 715 4. No injunction can issue against the acts of a co-
equal court, except in a 3rd party claim where claimant
vindicates his right by a separate action.
The court where action is pending or the Court of Appeals, 2. Should there be refusal / neglect to deliver property
the Supreme Court or a member thereof. During appeal, the to a receiver – it is punishable by contempt and shall be
appellate court may allow the application for the liable for the money or value of the property, plus damages
appointment to be filed in the court of origin, which can also sustained as a consequence of the refusal / neglect.726
decide on the same to be subject to the control of said
court.721
HOW APPLIED FOR
1. A receiver of real or personal property, which is the
subject of the action, may be appointed by the court when it 1. By verified application. Note that more than 1
appears from the pleadings or such other proof as the judge receiver may be applied for and appointed by the court.
may require, that the party applying for such appointment NOTE: That receivership may be a principal action or an
has: ancillary remedy.
(a) an actual interest in it, and 2. If application is granted – the receiver shall await
(b) that such property is in danger of being lost, the filing by the applicant of a bond executed to the party
removed, or materially injured; or whenever it against whom the application is presented in an amount
appears to be the most convenient and feasible fixed by the Court to the effect that the applicant will pay
means of preserving or administering the property such party all damages that he may sustain by reason of the
in litigation.722 appointment in case the same has been procured without
SUFFICIENT CAUSE – and the court in its discretion
2. A receiver is a person appointed by the court or by may require an additional bond to be filed as further
a quasi-judicial administrative agency, in behalf of all the security for damages.727
parties for the purpose of preserving and conserving the
property and preventing its possible destruction or 3. The APPLICATION may be denied or receiver
dissipation, if it were left in the possession of any of the discharged when the adverse party files a bond executed to
parties. It is the duty of the receiver to administer the assets the APPLICANT to the effect that such party will pay to the
of the receivership estate; and in the management and applicant all damages he may suffer by reason of acts,
disposition of the property committed to his possession, he omissions or other matters specified as grounds in the
acts in a fiduciary capacity and with impartiality toward all application – If may also be discharged if it is shown that
interested persons.723 appointment was obtained without sufficient cause.728
3. A receiver is not an agent or representative of any 4. BEFORE entering upon his duties, the receiver
party to the action. He is an officer of the court exercising shall be sworn to perform them faithfully and shall file a
his functions in the interest of neither plaintiff nor bond executed to such person and in amount fixed by the
defendant, but for the common benefit of al the parties in
interest. He performs his duties “subject to the control of
the Court,” and every question involved in the receivership
may be determined by the court taking cognizance of the 724
Pacific Mechandising Corp., versus Consolacion
Insurance & Surety Co., Inc., 73 SCRA 564
721 725
Supra, Section 1, Rule 59 Supra, Section 6, Rule 59
722 726
Commodities Storage & Ice Plant Corp. versus Court of Supra, Section 7, Rule 59
727
Appeals, 274 SCRA 439 Supra, Section 2, Rule 59
723 728
Arranza versus B.F. Homes, Inc., 333 SCRA 799 Supra, Section 3, Rule 59
75
court, to the effect that he will faithfully discharge his duties NOTE: Not the probable value as declared by the applicant.
and obey orders from the Court.729 Should there be a dispute, it is to be resolved by the Court.
5. Copies of bonds ( Applicant and Reciever OR 2. Filing of bond in double the value of the property –
Adverse Party) shall be served on each interested party – for return of the property to the adverse party and payment
who may except to its sufficiency or the surety. If found to be of such sum as he may recover from the applicant
insufficient or is not justified and a bond sufficient in
amount and surety is not filed, the application shall be 3. UPON FILING OF AFFIDAVIT AND BOND,
denied and the receiver discharged. If adverse party’s bond the writ of replevin shall issue requiring the sheriff to
is the one excepted to or found insufficient, the receiver shall forthwith take the property in custody.734
be appointed or reappointed as the case may be.730
3.1 IN TAKING CUSTODY – if concealed, he may
demand delivery, if not delivered, he may cause the building
WHEN TERMINATED / enclosure to be broken. Once in possession, it must be kept
in a secure place and shall be responsible for its delivery to
When the court, motu propio or upon motion, shall the party entitled thereto upon receipt of his fees and
determine that the necessity for a receiver no longer exists, it expenses.735
shall alter due notice, settle all accounts, direct delivery of
the funds / property in his possession to the person
adjudged to be entitled to receive them and order the REMEDIES FOR RETURN OF PROPERTY
discharge of the receiver from further duty. He is to be
allowed compensation as circumstances will warrant to be 1. Objection to the sufficiency of the bond / surety but
taxed against defeated party or apportioned as justice may he cannot immediately require delivery OR at any time
require.731 before delivery to the applicant, by filing a bond (redelivery
bond) executed to the applicant in double the value of the
Any judgment may include the amount, if any, to be property as stated in the applicant’s affidavit.
awarded any party upon any bond.732
729
Supra, Section 4, Rule 59
730 734
Supra, Section 5, Rule 59 Supra, Sections 2 and 3, Rule 60
731 735
Supra, Section 8, Rule 59 Supra, Section 4, Rule 60
732 736
Supra, Section 9, Rule 59 Supra, Section 6, Rule 60
733 737
Supra, Section 1, Rule 60 Supra, Section 7, Rule 61
76
3. SHERIFF must make return within 10 days after 3.1 IF GRANTED, it shall fix the amount of money to
taking of the property.738 be provisionally paid or such other forms or support as
should be provided – taking into account the necessities of
4. The JUDGMENT BY THE COURT shall include the applicant AND resources or means of the adverse party
a determination who has a better right of possession to and AND the terms or mode for providing support.
value of the property and render judgment in the alternative
for delivery thereof to the party entitled or its value in case 3.2 IF DENIED, the principal case shall be tried and
delivery cannot be made, and also for damages as either decided as early as possible.744
party may prove, with costs. Any amount awarded a party
upon any bond shall be claimed, ascertained and granted as
provided by Section 20 of Rule 57.739 HOW ENFORCED
5. A WRIT OF REPLEVIN may be served anywhere If adverse party fails to comply, the court shall, motu propio
in the PI or on motion, issue an order of execution without prejudice
to his liability for contempt. ALSO, if support be paid by a
3rd person, after due notice and hearing in the same case, he
may obtain a writ of execution to enforce his right of
RULE 61 – SUPPORT PENDENTE reimbursement against the person ordered to provide
support.745
LITE
RESTITUTION
WHEN FILED AND HOW
IF upon judgment / final order – The court finds that
At the commencement of the proper action or proceeding or the person who has been providing support is not liable
at any time prior to a judgment or final order – a verified therefor – it shall order the recipient to return the amounts
application may be filed by a party stating the grounds for paid plus interest from dates of actual payment without
the claim and the financial conditions of both parties, prejudice to the right of the recipient to obtain
accompanied by affidavits, depositions, or other authentic reimbursement in a separate action from the person legally
documents in support thereof.740 obliged to give support. Should the recipient fail to
reimburse, the person who provided the same, may, in a
1. It is also available in criminal cases when: separate action, seek reimbursement thereof from the
person obliged to give support.746
(a) child is born to offended party allegedly because of
the crime
(b) civil liability arising from the criminal action
includes support for the offspring
(c) civil aspect has not been waived, reserved or
instituted prior to filing of criminal action. SPECIAL CIVIL ACTIONS
This application may be filed successively by the offended
party, her parents, grandparents, guardian or the State in
the corresponding criminal case during its pendency.741 RULE 62 - INTERPLEADER
WHEN PROPER
PROCEDURE:
Whenever conflicting claims upon the same subject matter
1. Upon filing of verified application – it shall be are or may be made against a person who claims no interest
served on the adverse party, who shall have 5 days to whatever in the subject matter, or an interest which in whole
comment unless a different period is fixed by the court. It or in part is not disputed by the claimants, he may bring an
shall also be verified and accompanied by affidavits, action against the conflicting claimants to interplead and
depositions, authentic documents.742 litigate their several claims among themselves.747
3. Court shall determine provisionally the pertinent 1. Upon filing of the complaint, the court shall issue
facts and render such orders as justice and equity may an order requiring the conflicting claimants to interplead
require, having due regard to the probable outcome of the with one another. If the interest of justice requires, it may
case and such other circumstances. order the subject matter be paid or delivered to the court.748
738
Supra, Section 8, Rule 61
739 744
Supra, Sections 9 and 10, Rule 61 Supra, Section 4, Rule 61
740 745
Supra, Section 1, Rule 61 Supra, Section 5, Rule 61
741 746
Supra, Section 6, Rule 61 Supra, Section 7, Rule 61
742 747
Supra, Section 2, Rule 61 Supra, Section 1, Rule 62
743 748
Supra, Section 3, Rule 61 Supra, Section 2, Rule 62
77
2. Summons shall then issued to claimants, together 2. If involving validity of a statute, executive order,
with a copy of the complaint and order.749 regulation, or any other government regulation. The solicitor
general shall be notified and is entitled to be heard upon
3. Within the time for the filing of an answer, motions such question.754
to dismiss may be filed, if denied the claimant must file an
answer within the period remaining but in no case less than 3. If local government ordinance, the corresponding
5 days. If not, he may be declared in default and thereafter attorney / prosecutor of the Local Government Unit shall be
the court may render judgment barring him from any claim similarly notified and heard. If alleged to be
in respect of the subject matter. They may also file counter- unconstitutional, the Solicitor General shall be notified and
claims, cross-claims, 3rd party claims, and other responsive heard.755
pleadings.750
749 754
Supra, Section 3, Rule 62 Supra, Section 3, Rule 63
750 755
Supra, Sections 4 and 5, Rule 62 Supra, Section 4, Rule 63
751 756
Supra, Sections 6 and 7, Rule 62 Supra, Section 5, Rule 63
752 757
Supra, Section 1, Rule 63 Supra, Sections 1,2, and 3, Rule 64
753 758
Supra, Section 6, Rule 63 Supra, Section 8, Rule 64
78
2. order of just compensation (Section 8, deposit with the court of FIFTEEN PERCENT of the Fair
Rule 67). Market Value based on the current tax declaration.
Public use is one which confers some benefit or 2. AFTER, the case now proceeds to a determination
advantage to the public. It is not confined to actual use by of:
the public. It includes the right of use by the public, whether
it is exercised by one or some or many members of the 2.1 Authority of the plaintiff to expropriate. Thereafter,
public. the court may dismiss the petition or issue an order of
Public use contemplates indirect public benefit or expropriation. The order is appealable BUT SHALL NOT
advantage (Estate of Salud Jimenez vs. Phil. Export PREVENT DETERMINATION OF JUST
Processing Zone, 349 SCRA 240). It must be considered in COMPENSATION,IF GRANTED AND PLAINTIFF
its general concept of meeting a public need or a public CANNOT DISMISS OR DISCONTINUE EXCEPT ON
exigency. Manosca vs. CA, 252 SCRA 412). TERMS THAT COURT DEEMS JUST AND EQUITABLE as
there is entry already.762
At present, whatever may be beneficially employed
for the general welfare satisfies the requirement of public 2.2 NOTE the right of plaintiff to enter into the
use. (Reyes vs. NHA, 395 SCRA 494). property and appropriate shall not be DELAYED by an
APPEAL. But if appellate court determines that no right of
expropriation exists. It shall order the RTC to enforce
WHAT IS EXPROPRIATION restoration and determine the damages that the defendant
sustained.763
The taking of private property for public purpose
upon the payment of just compensation. It is also known as
exercise of the power of eminent domain. 3. Just compensation is then determined by no more
than 3 court appointed commissioners. If the Court accepts
their report, it will render judgment based thereon. Such
HOW EXERCISED judgment is also appealable.764
Filing of a verified complaint which shall state with certainty 3.1 IF upon determination of just compensation, the
the right and the purpose of expropriation, describing the ownership is uncertain or claims are conflicting, the court
real / personal property sought to be expropriated, joining may order sum / sums paid to be given to the Court for the
as defendants all persons claiming / owning or occupying benefit of the person adjudged in the same proceeding to be
any part thereof or interest therein. Note that the subject can entitled thereto BUT, payment will be required to be given to
be either real / personal property.759 the defendant or the court before plaintiff can enter into or
retain the property.765
(a) Date and due execution of the mortgage 1. Upon motion, the court shall order the property
(b) Its assignments, if any sold in the manner prescribed under Rule 39, such SALE
(c) Names/residences of mortgagor/mortgagee shall not affect the rights of persons holding prior
(d) Description of the mortgaged property liens/encumbrances on the property or parts thereof.
(e) Statement of the date of the note or other
documentary evidence of the obligation secured by 2. Upon motion, sale shall be CONFIRMED, and
the mortgage such shall operate to divest the rights in the property of all
(f) Amount claimed to be unpaid the parties to the action and to vest their rights in the
(g) Name/residences of persons having or claiming an purchaser, subject to such rights of redemption as may be
interest in the property subordinate in right to that allowed by law.
of the holder of the mortgage, all of whom shall be
made defendants.769 2.1 Note that when judicial foreclosure is resorted to
there is no right of redemption EXCEPT when the law
allows a redemption.
WHAT COURT CAN DO
EXAMPLE: Section 47 of the Philippine General Banking
After trial, if the court shall find the facts to be true, it shall Law which allows a one year period for redemption.
ASCERTAIN THE AMOUNT DUE THE PLAINTIFF AND
RENDER JUDGMENT FOR THE SUM WITH AN ORDER 3. Upon finality of the order of confirmation or upon
FOR IT TO BE PAID BY ADVERSE PARTY TO THE COURT expiration of the period of redemption when allowed by law,
OR JUDGMENT OBLIGEE WITHIN A PERIOD OF NOT the purchaser at auction is entitled to possession unless a
LESS THAN NINETY (90) DAYS NOR MORE THAN ONE third party is holding it adversely to the judgment obligor, in
HUNDRED TWENTY DAYS (120) FROM ENTRY OF which case, the purchaser at the auction sale may secure a
JUDGMENT, AND THAT IN DEFAULT, THE PROPERTY writ of possession from the Court ordering the sale.772
SHALL BE SOLD AT PUBLIC AUCTION. This period is
known as MORTGAGOR’S EQUITY OF REDEMPTION. 770 3.1 What is to be registered is the order of
confirmation. If there is no right of redemption, the title of
the mortgagor is cancelled and a new one issued in the name
of the purchaser.
767
Supra, Section 10, Rule 67
768 771
Supra, Section 12, Rule 67 Section 47, Philippine General Banking Law
769 772
Supra, Section 1, Rule 68 Supra, Section 3, Rule 68
770 773
Supra, Section 2, Rule 68 Supra, Section 7, Rule 68
80
4. PROCEEDS OF THE SALE shall, after of confirmation shall then be recorded in the registry of deed
deducting the costs, be paid to the persons foreclosing the of the place where the property is situated.
mortgage. If there be a balance or residue, it shall be paid to
the junior encumbrancers, in the order of priority A final order decreeing partition and accounting may be
ascertained by the Court, if none or there still be a balance appealed by the party aggrieved thereby.780
or residue after payment, to the mortgagor.774
2. If they fail to agree, the Court shall appoint not
5. If debt is not all due, as soon as a sufficient portion more than 3 commissioners, commanding them to set-off to
of the property has been sold to pay the total amount, the the plaintiff and each party in interest such part and
sale shall terminate. Afterwards, no more shall be sold, BUT proportion of the property as the court will direct.781
if property cannot be sold in portions, the entire property is
to be sold with rebate of interest if proper when the full debt 2.1 Before discharging their duties, the commissioners
is paid.775 shall take an oath that they will faithfully discharge their
duties, and in so doing they shall view and examine the real
6. Deficiency judgments, if there is a balance, upon property , shall hear the preferences of the parties,
motion, the court shall render judgment against the determine the comparative value of the property, and shall
defendant for the balance, upon which execution may issue. set apart the same to the parties in lots or parcels as will be
If balance is due at the time of rendition of judgment OR at most advantageous and equitable, having due regard to the
such time as the remaining balance becomes due under the improvements, situation and quality of the different parts
terms of the original contract, which time shall be stated in thereof.782
the judgment.776
2.2 If the property cannot be divided without prejudice
7. Note that the provisions of Section 31 as to use of to the interest of the parties, the court may order it assigned
premises by obligor, Section 32 as to rents still due the to one of the parties willing to take the same, provided he
obligor, and Section 34 as to recovery of price if sale is not pays to the other parties such amount as determined by the
effective of Rule 39 are applicable as far as the former are commissioners to be equitable, unless one of the interested
not inconsistent.777 parties asks that the property be sold instead.783
An action brought by a lessor, vendor, vendee or other 2. Upon filing of the complaint, the court may, from
person against whom possession of land/building is an examination of the allegations in the complaint and such
unlawfully withheld after expiration or termination of the evidence attached thereto, dismiss the complaint on any of
right to hold possession, by virtue of a contract, express or the grounds for a motion to dismiss which are apparent
unpaid. Such action must be brought within one year after therein. If not dismissed, it shall proceed to issue
withholding such possession. Also known as an accion summons.793
interdictal which seeks to recover possession de facto or
physical, actual or material possession. 3. If summons is issued, the defendant shall file his
answer within 10 days from receipt, serving a copy thereof to
Note that it is the character or nature of the defendant’s the plaintiff. Affirmative or negative defenses not pleaded
possession which will determine which of the two actions is are deemed waived, except lack of jurisdiction over the
appropriate. subject matter. Crossclaims or counterclaims not asserted
are barred. If the answer contains crossclaims or
counterclaims, answers thereto are to be filed within 10 days
UNLAWFUL DETAINER OR FORCIBLE from service of the answer in which they are pleaded.794
ENTRY OR ACCION INTERDICTAL
DISTINGUISHED 4. Failure to answer the complaint within the period
above provided, the court, motu proprio, or on motion of
From Accion Publiciana which is a plenary action to the plaintiff, shall render judgment as may be prayed for
recover right of possession that is brought after one year therein: Provided, however, That the court may in its
from accrual of the cause of action in a Regional Trial Court discretion reduce the amount of damages and attorney’s fees
and Accion Reivindicatoria which is an action to recover claimed for being excessive or otherwise unconscionable.
ownership, including possession. This is without prejudice to the applicability of Section 3,
Rule 9 of the Rules of Court, if there are two or more
Note: In addition to restitution of possession, damages and defendants.795
costs may also be recovered.788
5. A preliminary conference is then scheduled not
WHAT IS REQUIRED FOR THE ACTION TO later than 30 days after the last answer is filed. The
BE FILED provision of Rule 18 on pre-trial shall be applicable to the
If a sole defendant shall fail to appear, the plaintiff (c) Motion for new trial, or for reconsideration of a
shall be entitled to judgment in accordance with Section 6 judgment, or for reopening of trial;
hereof. This Rule shall not apply where one of two or more
defendants sued under a common cause of action who had (d) Motion for extension of time to file pleadings,
pleaded a common defense shall appear at the preliminary affidavits or any other paper;
conference.
(e) Memoranda;
No postponement shall be granted except for highly
meritorious grounds and without prejudice to sanctions (f) Petition for certiorari, mandamus, or prohibition
which the court may deem to impose.796 against any interlocutory order issued by the court;
6. Within 5 days after the termination of the (g) Motion to declare the defendant in default;
preliminary conference, an order shall be issued by the court
stating the following matters: (h) Dilatory motions for postponement;
796 800
Supra, Section 8, Rule 70, Article II, Section 7, Rules on Supra, Section 12, Rule 70, Article IV, Section 18, Rules
Summary Procedure on Summary Procedure
797 801
Supra, Section 9, Rule 70, Article II, Section 8, Rules on Heirs of Olivas v Flor, 161 SCRA 393
802
Summary Procedure Supra, Section 13, Rule 70, Article IV, Section 19, Rules
798
Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure
803
on Summary Procedure Supra, Section 15, Rule 70, Article II, Section 10, Rule
799
Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
804
on Summary Procedure Supra, Section 20, Rule 70
83
The court shall not resort to the clarificatory SALIENT PORTIONS OF KATARUNGANG
procedure to gain time for the rendition of the judgment.805 PAMBARANGAY LAW
11. Should the defense of OWNERSHIP be raised, All DISPUTES require conciliation except in the following:
the court shall only consider the same if the issue of (1) where one party is the government or any
possession cannot be resolved without deciding the issue of subdivision or instrumentality thereof
ownership. It shall thus be resolved only to determine (2) where one party is a public officer or employee, and
possession and any judgment shall be conclusive only on the dispute relates to the performance of his official
possession and shall not be a bar to another action between functions
the parties respecting the title to the land or building806 (3) offenses punishable by imprisonment exceeding 1
year or a fine exceeding P 5000.00
12. The judgment to be rendered by the court in favor (4) offenses where there is no private offended party
of the plaintiff shall include restitution of the premises, the (5) where the dispute is brought by or against a
sum justly due as arrears of rent or as reasonable corporation, partnership or juridical entity
compensation for the use of the premises, attorney’s fees (6) where the dispute involves real properties located
and costs. If the allegations are not true, it shall render in different cities or municipalities UNLESS the
judgment for the defendant for recovery of cost. If a parties agree to submit their differences to
counterclaim is established, the court shall render judgment amicable settlement by an appropriate lupon
for the sum found in arrears from either party and award (7) where dispute involves parties who actually reside
costs as justice requires.807 in barangays of different cities or municipalities,
EXCEPT when the barangays actually adjoin each
The judgment is APPEALABLE to the appropriate other and the parties agree to submit their
Regional Trial Court, which shall decide the case on the differences to amicable settlement by an
basis of the entire record of the proceedings in the court of appropriate lupon
origin and such memoranda or brief as may be submitted or (8) such other classes of disputes which the President
required808 may determine in the interest of justice or upon
recommendation by the Secretary of Justice
Note the ruling in the case of Azcuna Jr. vs. CA, GR No. (Section 408, PD 1508).
116665, March 20, 1996 allowing recovery of liquidated (9) disputes arising from the implementation of the
damages. CARP
(10) Employer-Employee disputes
(11) action to annul a judgment upon a compromise.
13. If judgment is rendered against the defendant, the Note however that while no petition, complaint,
execution shall issue immediately upon motion, unless an action or proceeding within the authority of the
appeal has been perfected AND the defendant to stay lupon shall be filed directly with the court or any
execution files a sufficient supersedeas bond if there are government office for adjudication UNLESS there
rentals in arrears809, approved by the court and executed in has been a confrontation before the lupon
favor of the defendant to pay rents, damages and costs chairman or pangkat, and that no conciliation or
accruing down to the time of the judgment appealed from, settlement has been reached as certified by the
AND UNLESS, during the pendency of the appeal, he lupon secretary or pangkat secretary, or unless the
deposits with the appellate court the amount of the rent due settlement has been repudiated within 10 days
from time to time under the contract or the reasonable value from its date by a statement sworn before the
for use and occupation adjudged by the court on or before punong barangay to the effect that his consent is
the 10th day of each succeeding month or period.810 vitiated by fraud violence or intimidation ( Section
418, PD 1508), the following cases may be filed
Note that there is no necessity for a motion for the court to directly:
fix the supersedeas bond as the amount of the same can be (1) accused in under detention
ascertained from the judgment. Also, if the records of the (2) person has otherwise been deprived of
case have already been transmitted to the appellate court, personal liberty calling for habeas corpus
the supersedeas bond may be filed with the appellate proceedings
court.811 (3) when action is coupled with a provisional
remedy
14. The judgment of the appellate court shall however (4) where action may otherwise be barred by
be subject to immediate execution without prejudice to a prescription (Section 412, PD 1508)
further appeal812
The proper VENUE for conciliation is as follows:
(1) if between persons actually residing in the same
barangay-before the lupon of the said barangay
805 (2) if between actual residents of different barangays
Supra, Section 11, Rule 70, Article within the same city of municipality- before the
806
Supra, Sections 16 and 18, Rule 70 lupon where the respondent resides, if there be
807
Supra, Section 17, Rule 70 several respondents- before the lupon where
808
Supra, Section 18, Rule 70 anyone of them resides at the election of the
809
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 complainant
SCRA 146 (3) if involving real property or any interest therein-
810 the barangay lupon where the property or larger
Supra, Section 19, Rule 70
811 portion is located
Chua v Court of Appeals, 286 SCRA 437
812
Supra, Section 21, Rule 70
84
(4) if arising in the workplace where the contending REVISED RULE ON
parties are employed or at the institution where SUMMARY PROCEDURE
such parties are enrolled for study- before the
lupon of the barangay where the workplace or RESOLUTION OF THE COURT EN BANC DATED
institution is located. Any OBJECTIONS TO OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE
VENUE shall be raised before the Punong ON SUMMARY PROCEDURE FOR METROPOLITAN
Barangay, otherwise they are waived. Legal TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
questions may be submitted to the Secretary of MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
Justice or his duly designated representative whose TRIAL COURTS.
ruling thereon shall be binding.
Pursuant to Section 36 of the Judiciary Reorganization Act
The procedure for settlement is of 1980 (B.P. Blg. 129) and to achieve an expeditious and
inexpensive determination of the cases referred to herein,
(1) initiation of complaint, orally or in writing, to the lupon the Court Resolved to promulgate the following Revised
chairman of the barangay Rule on Summary Procedure:
(2) mediation by lupon chairman on the next working day I
from receipt of the complaint, failing in which within 15
days from the first meeting, he shall forthwith set a APPLICABILITY
date for the constitution of the pangkat
SECTION 1. Scope: - This rule shall govern the summary
(3) the pangkat shall convene not later than 3 days from procedure in the Metropolitan Trial Courts in Cities, the
constitution to hear the parties and explore the Municipal Trial Courts, and the Municipal Circuit Trial
possibility of an amicable settlement within 15 days Courts in the following cases falling within their jurisdiction:
from the day it convenes, which period is extendible for
another 15 days, except in clearly meritorious cases. A. Civil Cases:
Note however, that while prescription does not run
upon filing of the complaint and shall resume only (1) All cases of forcible entry and unlawful detainer,
upon receipt of the complaint or certificate of irrespective of the amount of damages or unpaid rentals
repudiation, or certification to file action, the sought to be recovered. Where attorney’s fees are awarded,
interruption shall not exceed 60 days from filing of the the same shall not exceed twenty thousand pesos (P20,000).
complaint with the punong barangay. (Section 410, PD
1508) (2) All other cases, except probate proceedings, where
the total amount of plaintiff’s claim does not exceed one
The FORM of the amicable settlement shall be in writing, in hundred thousand pesos (P100,000) or, two hundred
a language/dialect known to the parties, signed by them and thousand pesos (P200,000) in Metropolitan Manila,
attested by the lupon/pangkat chairman (Section 411, PD exclusive of interest and costs. (As amended by A.M. No. 02-
1508). This shall have the force and effect of a final 11-09-SC, dated Nov. 12, 2002; this amended took effect on
judgment of a court upon expiration of 10 days from date November 25, 2002)
thereof unless repudiation has been made or a petition to
nullify the award has been filed before the proper court. This B. Criminal Cases:
does not apply to cases already pending but subsequently
referred to the lupon for amicable settlement under the last (1) Violations of traffic laws, rules and regulations;
paragraph of Section 408,as the same is submitted back to (2) Violations of the rental law;
the court to serve as basis for rendition of judgment. (3) Violations of municipal or city ordinances;
(Section 416, PD 1508). The award or settlement may be (4) Violations of Batas Pambansa Blg 22814
enforced by execution by the lupon within 6 months from (5) All other criminal cases where the penalty
the date of the settlement. After the lapse of the said period, prescribed by law for the offense charged is
by action in the appropriate city of municipal court. (Section imprisonment not exceeding six months, or a fine
417, PD 1508) not exceeding one thousand pesos (P1,000), or
both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
Note however that if a settlement is not complied with, the arising therefrom: Provided, however, That in
injured party may bring an action against the offending offenses involving damage to property through
party to recover the original amount of his claim, thereby criminal negligence, this Rule shall govern where
rescinding the compromise under Article 2041 of the Civil the imposable fine does not exceed ten thousand
Code which was held to qualify Article 2037 of the Civil pesos (P10,000).
Code as to the effect of a compromise being considered as
constituting res judicata.813 This rule shall not apply to a civil case where the
plaintiff’s cause of action is pleaded in the same complaint
with another cause of action subject to the ordinary
procedure; nor to a criminal case where the offense charged
is necessarily related to another criminal case subject to
ordinary procedure.
813 814
Chavez v Court of Appeals, GR 159411, March 18, 2005 A.M. 00-11-01-SC, April 15, 2003
85
SEC. 2. Determination of applicability. – NOTE: Rendition by the court of judgment on account of
Upon the filing of a civil or criminal action, the court shall failure to file an answer or to appear during the preliminary
issue an order declaring whether or not the case shall be conference may not require a motion (Sordan vs. De
governed by this Rule. Guzman, A.M. No. MTJ-00-1296, October 5, 2000)
B. Verification. – All pleadings shall be If a sole defendant shall fail to appear, the plaintiff
verified. shall be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or more
SEC. 4. Duty of court. – After the court defendants sued under a common cause of action who had
determines that the case falls under summary procedure, it pleaded a common defense shall appear at the preliminary
may, from an examination of the allegations therein and conference.
such evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for the SEC. 8. Record of preliminary conference. –
dismissal of a civil action. Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters
If no ground for dismissal is found, it shall taken up therein, including but not limited to:
forthwith issue summons which shall state that the
summary procedure under this Rule shall apply. (a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
NOTE: That any of the grounds for dismissal under Rule 16
apply although no motion to dismiss can be filed except on (b) The stipulations or admissions entered into by
the grounds of lack of jurisdiction and non-compliance with the parties;
the requirement on conciliation.
(c) Whether, on the basis of the pleadings and the
NOTE: That the prohibition as to the filing of a motion to stipulations and admissions made by the parties, judgment
dismiss exists prior to the filing of an answer but a dismissal may be rendered without the need of further proceedings, in
grounded on any of the causes stated in Rule 16 can only be which event the judgment shall be rendered within thirty
effected prior to the issuance of the court of summons and (30) days from issuance of the order;
not after an answer has been filed (Heirs of Ricardo Olivas
vs. Flor, 161 SCRA 393) (d) A clear specification of material facts which
remain controverted; and
SEC. 5. Answer. – Within ten (10) days from
service of summons, the defendant shall file his answer to (e) Such other matters intended to expedite the
the complaint and serve a copy thereof on the plaintiff. disposition of the case.
Affirmative and negative defenses not pleaded therein shall
be deemed waived, except for lack of jurisdiction over the SEC. 9. Submission of affidavits and
subject matter. Cross-claims and compulsory counterclaims position papers. – Within ten (10) days from receipt of
not asserted in the answer shall be considered barred. The the order mentioned in the next preceding section, the
answer to counterclaims or cross-claims shall be filed and parties shall submit the affidavits of their witnesses and
served within ten (10) days from service of the answer in other evidence on the factual issues defined in the order,
which they are pleaded. together with their position papers setting forth the law and
the facts relied upon by them.
SEC. 6. Effect of failure to answer. – Should
the defendant fail to answer the complaint within the period SEC. 10. Rendition of judgment. – Within
above provided, the court, motu proprio, or on motion of thirty (30) days after receipt of the last affidavits and
the plaintiff, shall render judgment as may be prayed for position papers, or the expiration of the period for filing the
therein: Provided, however, That the court may in its same, the court shall render judgment.
discretion reduce the amount of damages and attorney’s fees
claimed for being excessive or otherwise unconscionable. However, should the court find it necessary to
This is without prejudice to the applicability of Section 4, clarify certain material facts, it may, during the said period,
Rule 18 of the Rules of Court, if there are two or more issue an order specifying the matters to be clarified, and
defendants. require the parties to submit affidavits or other evidence on
the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days
86
after the receipt of the last clarificatory affidavits, or the his counsel. A refusal or failure to stipulate shall not
expiration of the period for filing the same. prejudice the accused.
The court shall not resort to the clarificatory Sec. 15 Procedure of trial. – At the trial, the
procedure to gain time for the rendition of the judgment. affidavits submitted by the parties shall constitute the direct
testimonies of the witnesses who executed the same.
NOTE: That hearings are not necessary unless for the Witnesses who testified may be subjected to cross-
purpose of clarifying certain material facts. examination, redirect or re-cross-examination. Should the
affiant fail to testify, his affidavit shall not be considered as
competent evidence for the party presenting the affidavit,
III but the adverse party may utilize the same for any
admissible purpose.
CRIMINAL CASES
Except on rebuttal or surrebuttal, no witness shall
be allowed to testify unless his affidavit was previously
Sec. 11. How commenced. – The filing of submitted to the court in accordance with Section 12 hereof.
criminal cases falling within the scope of this Rule shall be
either by complaint or by information; Provided, however, However, should a party desire to present
That in Metropolitan Manila and in Chartered Cities, such additional affidavits or counter-affidavits as part of his
cases shall be commenced only by information, except when direct evidence, he shall so manifest during the preliminary
the offense cannot be prosecuted de officio. conference, stating the purpose thereof. If allowed by the
court, the additional affidavits of the prosecution or the
The complaint or information shall be counter-affidavits of the defense shall be submitted to the
accompanied by the affidavits of the complainant and of his court and served on the adverse party not later than three
witnesses in such number of copies as there are accused plus (3) days after the termination of the preliminary conference.
two (2) copies of the court’s files. If this requirement is not If the additional affidavits are presented by the prosecution,
complied with within five (5) days from date of filing, the the accused may file his counter-affidavits and serve the
case may be dismissed. same on the prosecution within three (3) days from such
service.
Sec. 12 Duty of court. –
Sec. 16. Arrest of accused. – The court shall not
(a) If commenced by complaint. – On the basis of the order the arrest of the accused except for failure to appear
complaint and the affidavits and other evidence whenever required. Release of the person arrested shall
accompanying the same, the court may dismiss the case either be on bail or on recognizance by a responsible citizen
outright for being patently without basis or merit and order acceptable to the court.
the release of the accused if in custody.
(b) If commenced by information. – When the case is Sec. 17 Judgment. – Where a trial has been
commenced by information, or is not dismissed pursuant to conducted, the court shall promulgate the judgment not
the next preceding paragraph, the court shall issue an order later than thirty (30) days after the termination of trial.
which, together with copies of the affidavits and other
evidence submitted by the prosecution, shall require the COMMON PROVISIONS
accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving SEC. 18 Referral to Lupon. – Cases requiring
copies thereof on the complainant or prosecutor not later referral to the Lupon for conciliation under the provisions of
than ten (10) days from receipt of said order. The Presidential Decree No. 1508 where there is no showing of
prosecution may file reply affidavits within ten (10) days compliance with such requirement, shall be dismissed
after receipt of the counter-affidavits of the defense. without prejudice, and may be revived only after such
requirement shall have been complied with. This provision
Sec. 13 Arraignment and trial. – Should the shall not apply to criminal cases where the accused was
court, upon a consideration of the complaint or information arrested without a warrant.
and the affidavits submitted by both parties, find no cause or
ground to hold the accused for trial, it shall order the SEC. 19. Prohibited pleadings and motions.
dismissal of the case; otherwise, the court shall set the case – The following pleadings, motions, or petitions shall not be
for arraignment and trial. allowed in the cases covered by this Rule:
If the accused is in custody for the crime charged, (a) Motion to dismiss the complaint or to quash the
he shall be immediately arraigned and if he enters a plea of complaint or information except on the ground of lack of
guilty, he shall forthwith be sentenced. jurisdiction over the subject matter, or failure to comply
with the preceding section;
Sec. 14 Preliminary conference. – Before
conducting the trial, the court shall call the parties to a (b) Motion for a bill of particulars;
preliminary conference during which a stipulation of facts
may be entered into, or the propriety of allowing the accused (c) Motion for new trial, or for reconsideration of a
to enter a plea of guilty to a lesser offense may be judgment, or for reopening of trial;
considered, or such other matters may be taken up to clarify
the issues and to ensure a speedy disposition of the case. NOTES: A motion for reconsideration can be filed when the
However, no admission by the accused shall be used against case is already pending before the appellate court. (Jakihaca
him unless reduced to writing and signed by the accused and vs.Aquino, 181 SCRA 67). A motion for reconsideration of
87
rulings or pertaining to other incidents, NOT OF THE RULE 71 – CONTEMPT
JUDGMENT, is allowed ( Lucas vs. Fabros, 324 SCRA 1)
WHAT IS CONTEMPT
(e) Motion for extension of time to file pleadings,
affidavits or any other paper; Willful disobedience or open disrespect of the orders,
authority, or dignity of a court or judge acting in judicial
(f) Memoranda; capacity by disruptive language or conduct or by failure to
obey the orders of the court
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order issued by the
court; KINDS OF CONTEMPT
(h) Motion to declare the defendant in default; 1. DIRECT CONTEMPT – consists of misbehaviour
in the presence of or so near a court as to obstruct or
(i) Dilatory motions for postponement; interfere with the proceedings before the same, it includes,
disrespect, offensive personalities against others, refusal to
NOTE: If motion is well grounded, it may be allowed. be sworn or answer as a witness, or to subscribe to an
affidavit/deposition when lawfully required to do so.
(j) Reply;
This kind of contempt may be SUMMARILY ADJUDGED
(k) Third-party complaints; and and be punished by a fine not exceeding P 2,000.00 or
imprisonment of not exceeding 10 days or BOTH if it be by a
(l) Interventions. Regional Trial Court or a fine not exceeding P 200.00 or
imprisonment not exceeding 1 day or BOTH if it be by a
SEC. 20. Affidavits. – The affidavits required to Municipal Trial Court.
be submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in The remedy therefrom is certiorari/ prohibition, in which
evidence, and shall show their competence to testify to the case the judgment is suspended pending the petition
matters stated therein. provided the petitioner files a bond fixed by the court which
rendered the judgment and conditioned that he will abide by
A violation of this requirement may subject the and perform the judgment should the petition be decided
party or the counsel who submits the same to disciplinary against him. 815
action, and shall be cause to expunge the inadmissible
affidavit or portion thereof from the record. 1.1 It is direct contempt if a pleading contains
derogatory, offensive or malicious statements against a
SEC. 21. Appeal. – The judgment or final order particular judge when submitted in the same court where
shall be appealable to the appropriate regional trial court the judge is presiding. If submitted elsewhere, it is indirect
which shall decide the same in accordance with Section 22 of contempt.816
Batas Pambansa Blg. 129. The decision of the regional trial
court in civil cases governed by this Rule, including forcible
entry and unlawful detainer, shall be immediately executory, 2. INDIRECT CONTEMPT – consists of
without prejudice to a further appeal that may be taken a. Misbehavior of an officer of a court in the
therefrom. performance of his official duties or in his official
transactions;
NOTE: That immediate execution requires proof that the b. Disobedience of or resistance to a lawful writ,
losing party has been served with notice of judgment (Dy vs. process, order, or judgment of a court, including
CA, 191 SCRA 585) and that notice of the motion for the act of a person who, after being dispossessed or
execution to the adverse party is required ( Limpo vs. CA, ejected from any real property by the judgment or
333 SCRA 575) process of any court of competent jurisdiction,
enters or attempts or induces another to enter into
SEC. 22. Applicability of the regular rules. – or upon such real property for the purpose of
The regular procedure prescribed in the Rules of Court shall executing acts of ownership or possession, or in any
apply to the special cases herein provided for in a suppletory manner disturbs the possession given to the person
capacity insofar as they are not inconsistent herewith. adjudged to be entitled thereto;
c. Any abuse of or any unlawful interference with the
SEC. 23. Effectivity. – This revised Rule on processes or proceedings of a court not constituting
Summary Procedure shall be effective on November 15, direct contempt under Section 1 of this Rule;
1991. d. Any improper conduct tending, directly or
indirectly to impede, obstruct, or degrade the
administration of justice;
e. Assuming to be an attorney or an officer of a court,
and acting as such without authority;
f. Failure to obey a subpoena duly served;
815
Supra, Sections 1 and 2, Rule 71
816
Ang v Castro, 136 SCRA 453
88
g. The rescue, or attempted rescue, of a person or hearing of the charge, he may be ordered arrested and the
property in the custody of an officer by virtue of an bond forfeited.824
order or process of a court held by him.
2. If already imprisoned, the court may discharge the
But nothing in this section shall be so construed as to respondent if public interest will not be prejudiced by the
prevent the court from issuing process to bring the release.825
respondent into court, or from holding him in custody
pending such proceedings.817 APPLICABILITY OF THE RULE
2.1 This kind of contempt may be initiated motu The rules apply to persons, entities, bodies or agencies
propio by the court against which the contempt was exercising quasi-judicial powers or shall have suppletory
committed by an order or any formal charge requiring the effect to their rules. The RTC of the place where the
respondent to show cause why he should not be punished contempt is committed shall have jurisdiction.826
for contempt. In other cases, it shall be commenced by
verified petition with supporting particulars and certified
true copies of documents or papers involved therein, and DEFINING CRIMINAL AND CIVIL
upon FULL COMPLIANCE WITH REQUIREMENTS FOR CONTEMPT
FILING INITIATORY PLEADINGS in the court concerned.
If the charges are related to the principal action pending It is criminal contempt when the purpose is to vindicate the
before the court, the petition shall so allege such fact but it authority of the court and protect its outraged dignity. It is
shall be DOCKETED, HEARD AND DECIDED civil contempt when there is failure to do something ordered
SEPARATELY, unless the court in its discretion orders by the court to be done for the benefit of another party.827
consolidation of the charge and principal action for joint
hearing and decision.818 In fact, it has been declared that the motion for extension of
time within which a party may plead is not a litigated motion
2.2 The charge shall be filed in the Regional Trial Court where notice to the adverse party is necessary to afford the
if the contempt is committed against it or a court of equal or latter an opportunity to resist the application, but an ex
higher rank or against an officer appointed by it. If against a parte motion made to the court in behalf of one or the other
lower court, it may be filed in the Regional Trial Court in the of the parties to the action, in the absence and usually
place where the lower court sits or in such lower court, without the knowledge of the other party or parties.
subject to appeal to the Regional Trial Court.819 (Commercial Union Assurance Company Limited, et. al. vs.
Lepanto Consolidated Mining Company, et. al., L-43342.
This kind of contempt is punishable by a fine not exceeding October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et.
P 30,000.00 or imprisonment not exceeding 6 months or al., L-40491, May 28, 1975, 64 SCRA 192, 195)
both, if committed against a Regional Trial Court. If against
a Municipal Trial Court, by a fine not exceeding P 5,000.00 Therefore, as long as it is filed within the period sought to be
or imprisonment not exceeding 1 month. If it consists in a extended, a request for extension of time may be filed ex
violation of a writ of injunction, TRO or status quo order, he parte and granted without the usual formalities applicable to
may also be ordered to make complete restitution. A writ of motions in general. (Moya vs. Barton, 76 Phil. 831).
execution may be issued to enforce a fine.820 If it consists in
refusal or omission to do an act within his power to perform,
he may be imprisoned by order of the court until it is
performed.821
OTHERS
817
Supra, Section 3, Rule 71
818
Supra, Section 4, Rule 71
819
Supra, Section 5, Rule 71
820 824
Supra, Section 7, Rule 71 Supra, Sections 6 and 9, Rule 71
821 825
Supra, Section 8, Rule 71 Supra, Section 10, Rule 71
822 826
Supra, Section 11, Rule 71 Supra, Section 12, Rule 71
823 827
In Re, Mison, Jr, 33 SCRA 30 Yasay v Recto, 313 SCRA 739
89