Civil Procedure 2003

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REMEDIAL LAW REVIEWER

SAINT LOUIS UNIVERSITY BAR OPERATIONS
CIVIL PROCEDURE
What is jurisdiction? A. Jurisdiction is the power with which courts are invested for administering justice, that is, for hearing and deciding cases. In order for the court to have authority to dispose of the case to have merits, it must acquire jurisdiction over the subject matter and the parties. Q. What determines jurisdiction over the subject matter? A. Jurisdiction over the subject matter is conferred by the law and determined by the facts alleged in the complaint. It cannot be fixed by the will of the parties; it cannot be acquired through or waived, enlarged or diminished by any act or omission of the parties. Neither is it conferred by conscience of the court. Q. How is Jurisdiction over the parties acquired? A. For the plaintiff, jurisdiction over his person is acquired by filing the complaint. For the defendant, jurisdiction over the person is acquired by the service of summons or other coercive process or notice in the defendant personally within the limits of the jurisdictions or by voluntary appearance in person or through counsel. Q. When is jurisdiction over the person of a defendant essential? A. Jurisdiction over the person of the defendant is essential in actions in personal not in actions in rem or quasi in rem so long as the court does not render personal judgment against the defendant. Q. Distinguish jurisdiction from venue. A. Jurisdiction is the courts authority to hear and determine a case; while venue is the place where the case is to be heard or tried. The first is substantive and the second procedural. Venue may be conferred by the parties. Jurisdiction cannot; it is fixed by the law. Q. A. Outline the different courts jurisdiction.
discretion in ruling that the dismissal of Reyes is valid. The bank seek refuge to the Supreme Court alleging that the dispute is an intracorporate controversy concerning as it does the non-election of the private respondent to the position of Assistant VP of the Bank which falls under the exclusive and original jurisdiction of the SEC. Is the Banks contention meritorious? A. No. Petitioner Bank can no longer raise the issue of jurisdiction under the principle of estoppel. The bank participated in the proceedings from start to finish. It was only when the CA ruled in favor of private respondent did it raise the issue of jurisdiction. While it is true that jurisdiction over the subject matter of a case may be raised at anytime of the proceedings, this rule presupposes that laches or estoppel has not supervened. A party may be estopped or barred from raising the question of jurisdiction for the first time in the petition before the Supreme Court when it failed to do so in the early stages of the proceedings. (PBTC vs. Reyes 352 s 316) Q. May jurisdiction over the subject matter waived? Is the rule absolute? A. As a rule, jurisdiction over the subject matter is not waivable. The exception is in cases of estoppel to question or raise jurisdiction. Q. Mr. X entered into a contract with gravel and sand co. for the delivery of gravel and sand for the construction of his house. The company failed to deliver after payment of the services and goods, and after repeated demands. Mr. X filed a case for the delivery of the goods. With damages, amounting to P150.000 with the RTC. Will the case prosper? A. Yes, the RTC has jurisdiction because the subject matter of the action is incapable of pecuniary estimation which is within the RTCs jurisdiction. The claim for damages is merely incidental, to the main action. In determining whether the subject matter is incapable of pecuniary estimation the nature of principal action or remedy sought must be first determined. An action which is capable of pecuniary estimation where there is an alternative prayer for payment of sum of money or damages, jurisdiction should be based on the sum of money or damages alternative prayer for. Q. The plaintiff filed the complaint but failed to pay the required docket fees, should the trial court dismiss the case? A. No, although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply with this requirement, the defendant should timely raise the issue of jurisdiction or
Q. Ms. Reyes held the position of Assistant Vice-President in the foreign department of the Prudential Bank & Trust Company. She was illegally dismissed. She filed an illegal dismissal case against the bank to the Labor Arbiter. The bank filed its position papers. The LA decided in favor of Ms. Reyes. The bank appealed to the NLRC, which decided in its favor. Ms. Reyes went to the CA and the CA that the NLRC committed grave abuse of
Prepared by the REMEDIAL LAW SECTION Chief CHRISTIAN PAUL ULPINDO Assistant Chief MAGDALENA ERFE Members YVONNE BINWAG, SHARON BANAGEN, CHARLES JAVIER CALAPINI, BRIAN CRISPIN, QUOINA GABOL, RAYMOND MENDOZA, RUSSEL SABADO, MICHELLE EXIOMO and ANA MAY CORPUZ. All Rights Reserved by the SAINT LOUIS UNIVERSITY COLLEGE OF LAW BAR OPERATIONS 2003.
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else he should be considered in estoppel. In the latter case, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will be considered a lien on any award he may obtain in his favor. Q. A, a resident of Dagupan City, secured a favorable judgment in an ejection case against X from the RTC of Manila. The judgment, entered on 15 June 1991, had not yet been executed. (1) In July 1996, A decided to enforce the judgment. What is the procedure to be followed by A in enforcing the judgment? (2) With what court should A institute the proceedings? (1997 Bar Examinations) Answers: (1) A can enforce the judgment by another action reviving the judgment because it can no longer be enforced by motion as the 5 year period within which a judgment may be enforced by motion has already expired. (Sec. 6 of Rule 39) (2) A may institute the proceedings in the RTC in accordance with the rules of venue because the enforcement of judgment is a personal action incapable of pecuniary estimation. A may institute the proceeding in the MTC which has jurisdiction over the area where the real property involved is situated. Q. If a case was filed and the complaint was amended without the proper docket fee having been paid, do you think the court acquired jurisdiction over the subject matter? Why? A. Yes specially so that the Manchester rule has been relaxed. The court may now allow the payment of the fee within reasonable time nut in no case beyond the applicable prescriptive period or reglementary period. (Sun insurance vs. Asuncion Feb. 13, 1989) Q. Ruffa filed a complaint against Mae who filed a counter claim but did not pay the docket fee on the time. It was contended by Ruffa that the belated filing of the docket fee did not have the effect of vesting the trial court with jurisdiction over the counter claim Rule on Xs contention. A. If the counter-claim is compulsory, then there is no need to pay docket fees (Quintanillas vs. CA Sept. 24, 1997). But if the counter claim is permissive it is considered filed until and unless the filing fee prescribed therefore is paid. The rule applies also to thirdparty claims. (Metals Engineering Resources Corp. vs. CA Oct. 28, 1991) Q. Cindy resident of Quezon City filed a case for collection of sum of money against Christine resident of Baguio City in the amount of P250,000. If you were

the counsel of Cindy what court will you file the case? A. It depends. As counsel of Cindy, I may commence the action against Christine either in the proper courts of Quezon City or Baguio City. Collection of sum of money is a personal action hence maybe commenced and tried where the plaintiff resides or defendant at the election of plaintiff. (Sec. 2 Rule 4 of 1997 Rules) If I will file the case, at Quezon City, I will file it at the MTCC of Quezon City which has jurisdiction of the case because the amount involve does not exceed P400,000. MTCC of Metro Manila has jurisdiction over civil actions if the value involve does not exceed P400,000 but outside Metro Manila the amount should not exceed P200,000. If I will file the case at Baguio City, I will file it in the RTC of Baguio City which has jurisdiction over civil actions if the amount involve exceeds P200,000 (RA 7691) Note that on 2004, the limit of jurisdiction of MTC will again expand. Another P100,000 will be added. Q. Pedro files a sum of money case against Juan in the amount of P150,000 with moral damages of P100,000 and exemplary damages of P50,000 in the RTC of Baguio City Juan filed a motion to dismiss on the ground that the RTC has no jurisdiction of the claim of P150,000. Pedro opposed the motion alleging the totality rule so that the total claim is P300,000 which the RTC has jurisdiction Rule in the motion. A. The motion should be granted. The totality rule does not apply on this case. The main cause of action is collection of sum of money and the amount to be collected determines jurisdiction. The claim for damages all merely incidental to the main action. Totality rule applies of the main action is for damages. Q. What do you understand by the totality Rule in determining the jurisdiction of courts in civil cases? Explain. 1989 Bat Exams A. Under the totality rule, where there are several claims or causes of action between the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions. (Sec. 33 of BP129) as further explained by RA 7691 and Administrative Circular No. 09-94, the totality rule applies only if the main cause of action is for damages if not then the totality rule does not apply. Totality rule does not apply if damages are merely incidental to or a consequence of the main action.
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Q. Marissa brought an action against Nely and Inday in one complaint before the RTC of Baguio City. Marissa alleged that Nely purchased jewelries in the amount of P150, 000 on various occasions as her first cause of action. Marissas second cause of action alleged that Inday purchased on various occasions jewelries worth P150, 000. Both Nely and Inday moved to dismiss the complaint on the ground that the RTC has no jurisdiction. Rule on the motion. A Motion to dismiss should be granted because the totality rule is subject to the rule on permissive joinder of parties. In this case, there is misjoinder of parties defendant in as much as the claims against the two defendants are separate and distinct from each other and cannot be joined in a single complaint. Neither claim falls within the jurisdiction of the RTC. Q. What is meant by hierarchy of courts? (1996 Bar Exams) A. By hierarchy of courts is meant that while the Supreme Court, the Court of Appeals, and the Regional Trial Courts have concurrent original jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus, such occurrence does not accord litigants unrestrained freedom of choice of the court to which application therefore maybe directed. The application should be filed with the court of lower level unless the importance of the issue involve deserves the action of the court of higher level. (Uy vs. Contreras, 237 SCRA 167) Q. What is Residual Jurisdiction? A. Residual jurisdiction is an extension of the original jurisdiction of the trial court for certain specific purposes after the perfection of the appeal but before transmittal of the original record or record on appeal to the appellate court. Sometimes called retained jurisdiction. The court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal. Q. What is Doctrine of Primary Jurisdiction? A. Under the doctrine of primary jurisdiction, courts cannot and will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact and where a uniformity of ruling is essential to comply with the purpose of the regulatory statute administered.

KATARUNGANG PAMBARANGAY LAW Q. What is the object of Katarungang Pambarangay Law? (1999 Bar Examination) A. The object of the Katarungang Pambarangay Law is to effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. Compliance therewith is a condition precedent to the filing of a complaint or information in court or before the Fiscals office and its absence is a ground for dismissal of the complaint for pre maturity or absence of cause of action. Q. What are the rules of venue under the Katarungang Pambarangay Law? A. They are as follows: (1.) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the Lupon of the said barangay. (2.) Those involving actual residents of different barangays where the respondent or any of the respondents actually resides, at the election of the complainant. (3.) All disputes involving real property or any interest shall be brought in the barangay where the real property or the larger portion thereof is situated. (4.) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. (See 409 Local Government Code 1991) Q. When may objections to venue be raised? A. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Sec. Of Justice or his duly designated representative whose ruling thereon shall be binding. Q. A collection for sum of money case (P400,000) was filed by Mr. X against Mr. Y, both residents of Baguio City, at the RTC of Baguio City. Mr. Y filed a motion to dismiss alleging that since they are residents of the same city, the case should be first resolved by the Barangay Lupon, hence the case is prematurely filed and should be dismiss for lack of cause of action. Mr. X objected the motion contending that the case is beyond the Barangay Lupons jurisdiction. Only those cases cognizable by the First level courts that should go to the Barangay Lupon for
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conciliation. To do otherwise will divest the RTC of its jurisdiction. Is Mr. Xs contention meritorious? A. No. Mr. Xs contention is not meritorious because the lupon of each barangay shall authority to bring together the parties actually residing in the same municipality or city for amicable settlement of ALL disputes. Even if the case is within the RTCs jurisdiction, compliance still to the provision of Sec 408 of RA 7160, is a condition precedent for filing an action as long as the parties are residents to the same municipality or city. Q. What are the cases over which the Barangay Lupon may take cognizance of? Exceptions? A. The Barangay Lupon shall have authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes except: (1) When one party is the government or any subdivision or instrumentality thereof; (2) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions. (3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five Thousand Pesos(P5,000). (4) Offenses where there is no private offended party. (5) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. (6) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon . (7) Such classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Sec. Of Justice. (8) Any complaint by or against corporations, partnerships or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings. (9) Labor disputes or controversies arising from employer-employee relationship. (10) Actions to annul judgments upon a compromise which can be filed directly in court. (Sec.408 RA 7160) Q. What is the effect of the conciliation proceeding on the prescriptive period for offenses and cause of action? A. While the dispute is under mediation, conciliation or arbitration, the prescriptive

periods for offenses and causes of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the certification of repudiation or of the certification to file action issued by the lupon or pangkat secretary. But such interruption shall not exceed 60 days from the filing of the complaint with the punong barangay. Q. A complaint for damages against her next-door neighbor Rosa for P100,000 with prayer for preliminary attachment. She alleged that Rosa intrigued against her honor by spreading unsavory rumors about her among their co-workers at the Phoenix knitwear factory located at Valenzuela. After pre-trial the court muto proprio referred the case for amicable settlement between the parties to the Lupon Tagapamayapa of Brgy. 2 Zone 3 in Valenzuela where the factory is located. Rosa questioned the order contending that the court had no authority to do so as both parties had already gone through pre trial where amicable settlement was foreclosed and the parties were already going to trial. (1) Comment on Rosas contention. Explain. (2) Rosa also opposed the referral to the Lupon Tagapamayapa of Brgy. 2 Zone 3 claiming that the venue was wrong as the proper Lupon was that of Brgy. 1 Zone 5 where she and Alice reside. Is Rosas contention valid? Explain. (3) Suppose that the Lupon of Brgy 2 Zone 3 is successful in forgoing an amicable settlement between Alice and Rosa, is the compromise immediately executory? Explain. (4) How, when, and by whom shall the compromise agreement be enforced? Explain. (1995 Bar Exams) A. (1) Rosa is not correct. The Local Government Code of 1991 provides that in noncriminal cases not falling within the authority of the Lupon, the court may at any time before the trial refer the case to the Lupon concerned for amicable settlement. (Sec 408 RA 7160) No, because the law also provides that the venue of disputes arising at the workplace of the contending parties shall be brought in the barangay where such
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workplace is located. (Sec 409[d], RA 7160). No, because any compromise settlement shall be submitted to the court which referred the case for approval. Sec. 416, RA 7160). Upon approval thereof, it shall have the force and effect of a judgment of the court and shall be enforced in accordance with Sec 6 Rule 39, execution by motion or by independent action.

(3)
(4)
set the case for hearing but private respondent failed to appear. When the case was set again for hearing, the parties appeared but they failed to reach an amicable settlement. Accordingly, the barangay chairman issued a certification to File Action. Petitioners then filed their complaint before the MTC of Naval. Private respondent moved to dismiss the complain on the ground that no Pangkat was convened to settle the dispute. Rule on the motion. A. The motion should be denied for lack of merit. The SC held in the case of Diu vs. CA 19 Dec. 1995, while no pangkat was constituted it is not denied that the parties met at the office of the barangay chairman for possible settlement. The efforts of the barangay chairman, however, proved futile as no agreement was reached. Although no pangkat was formed, we believe that there was substantial compliance with the law. It is noteworthy that under Sec 412 of the Local Government Code, the confrontation before the lupon chairman or the pangkat is sufficient compliance with the precondition for filing the case in court. Q. A compromise agreement between A and B was entered into in the municipal court in an ejectment suit. An action to annul the judgment was filed in the RTC which action was being sought to be dismissed for failure of the plaintiff to resort to barangay conciliation. Is the contention correct? Why? A. No. It cannot be dismissed on the ground of pre maturity or failure to resort to barangay conciliation because a compromise is immediately executory and beyond the Authority of Barangay. An administrative body like the lupon cannot overturn the judgment of a court. (Sanchez vs. Tupas, 158 SCRA 459). Q. For failure of the tenant, X to pay rentals, A the court- appointed administrator of the estate of Henry Datu, decides to file an action against the former for the recovery of possession of the based premises located in Davao City and for the payment of accrued rentals in the total amount of P25,000. Is prior referral to the Lupon necessary? (1991 Bar Exams) A. No, because the law applies only to disputes between natural persons and does not apply to juridical person such as the estate of a deceased.
Q. AB filed a complaint for unlawful detainer against AS before the MTC, Baguio City without referring it first to the barangay Lupon for conciliation. A motion to dismiss was filed on the ground of failure to comply with the requirements of conciliation alleging that both parties are residents of Baguio City, although the complaint stated that defendant has a postal office address in Baguio City. If you were the judge, rule on the objection. A. I will deny the motion. As ruled by the SC in the case of Boleyley vs. Villanueva 14 Sept. 1999, there is no need to comply with the conciliation requirement under the Katarungan Pambarangay Law in the absence of showing in the complaint that the parties reside in the same city or municipality. Plaintiffs complaint should have alleged defendants actual residence, not his postal address. The allegation of defendants actual residence would have been ideal to determine the venue. In procedural law, however, specifically for the purposes of venue, the residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile. The complaint clearly implies that the parties do not reside in the same city or municipality because the postal office address is not included in the term residence. Q. In a case, two parties are residents of the same municipality but others are residents of different municipalities. Is there a need for prior barangay conciliation? Why? A. No more. In Candido vs. Macapagal, 221 S 328, it was said that the fact that petitioner Candido and respondent Contreras are residents of same municipality will not justify compulsory conciliation under PD 7160, it appears that other respondents are residents of different municipalities. Petitioners can file the case directly in court without resorting to barangay conciliation. Q. Petitioner Diu filed a complaint against private respondent Pagba before the Barangay Chairman of Naval, Biliran. The Brgy. Chairman
RULES ON SUMMARY PROCEDURE Q. What are the cases that are governed by the Rules on Summary Procedure? A. The cases covered are the following: CIVIL CASES:
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(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where atty. fees are awarded the same shall not exceed twenty thousand pesos (P20, 000). (2) All other civil cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed ten thousand pesos(P10, 000) exclusive of interests, and costs. CRIMINAL CASES: (1) Violations of traffic laws, rules and regulations (2) Violations of rental laws (3) Violations of municipal or city ordinances (4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months or a fine not exceeding one thousand pesos (P1,000) or both, irrespective of other imposable penalties, accessory or otherwise or of the civil liability arising therefrom. Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000).

on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule apply. Q. A complaint for forcible entry was filed by Miss SG against Mr. X and Mr. Y before the MTCC of B.C. Mr X and Mr Y filed with the MTCC of Baguio City an urgent motion for extension of time to file an answer which was denied on the ground that it was a prohibited pleading under the rule on summary procedure. More than 10 days from receipt of summons petitioner submitted an urgent motion praying for the admission of their answer, which was attached thereto. Rule on the motion. A. I will deny the motion. The Rule on Summary Procedure, in particular, was promulgated for the purpose of achieving an expeditions and in expensive determination of cases. For this reason, the rule frowns upon delays and prohibits altogether the filing of motions for extention of time. Consistent with this reasoning is Sec 6 of the Rule which allows the trial court to render judgement, even motu proprio, upon the failure of a defendant to file an answer within the reglementary period. The filing of an answer within the reglementary period is mandatory and non extendible. The word shall underscores the mandatory character of the Rule. Giving the provisions, a directory application would subvert the nature of the rule on Summary Procedure and defeat its objective of expediting the adjudication of suits. To admit a late answer is to put premium on dilatory manners. Q. what are the reglementary periods within which answers must be filed. A. Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. The answers to counterclaims or cross-claims shall be filed and served within 10 days from service of the answers in which they are pleaded. (Sec 5) Q. May defenses be waived under the Rules on Summary Procedure? A. Yes. Affirmative and negative defenses are deemed waived if not pleaded on the answer; except lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims are deemed barred if not pleaded. Q. What are the effects of non appearance of parties during preliminary conference.
Q. What action shall the court take upon the filing of a civil or criminal action? A. Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination to avoid the application of the Rule on Summary procedure is a ground for disciplinary action. Q. What pleadings are allowed under the rules on summary procedure? A. The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims pleaded on the answer, and the answers thereto. All pleadings shall be verified. Q. Suppose the court has determined that the case falls under the rule on summary procedure, can it dismiss the case outright on any ground apparent there from for the dismissal of a civil action? A. Yes. Sec.4 of the Revised Rule on Summary Procedure provides that after the court determines that the case falls under summary procedure, it may from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright
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A. Preliminary conference shall be held not later than 30 days after the filing of the last answer. If plaintiff fails to appear, the case can be dismissed. If defendant appears while plaintiff did not, the defendant shall be entitled to judgment on his counterclaim. All cross-claims shall be dismissed. (Sec 7) If sole defendant fails to appear, the plaintiff shall be entitled to judgment as may be warranted by the allegations in the complaint and evidence. In Lesaca vs. CA 21 Oct 1992, it was held that failure of defendant to appear at the preliminary conference is not a ground for judgment by default. The rule does not apply if there are two or more defendants who were sued under a common cause and have a common defense. Q. What is the duty of the court, in criminal cases covered by Rules on Summary Procedure if the case is commenced by complaint? Or by information? A. On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf serving copies thereof on the complainant or prosecutor not later than 10 days from receipt of such order. The prosecution may file reply affidavits within ten(10) days after receipt of the counter affidavits of the defense. Q. In pre-trial of criminal cases, there are admissions made by the accused. Are they admissible against him. A. It depends. In pre-trial conference, no admission of the accused can be used against him unless put to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.

Q. In an ejectment case which was covered by the Rules on Summary Procedure, defendant lost in the MTC. He appealed to the RTC which affirmed the decision. Defendant filed a motion for reconsideration which was objected by the plaintiff on the ground that motion for reconsideration is a prohibited motion under the Rules on Summary Procedure. Rule on the motion. A. Motion may be granted. The Rule on Summary Procedure applies only in cases filed before the MTC pursuant to Sec 26 of BP 129. Summary procedures have no application to cases before the RTC. Hence, when the respondents appealed the decision of the MTC to the RTC, the applicable rules are those of the latter court. Hence a motion for reconsideration of the decision of the RTC is available. (Jakihaka vs. Aquino 12 Jan 1990) Q. Can the court declare a defendant for failure to file an answer, in default if the case is governed by the Rules on Summary Procedure? A. Where no answer is filed, the court may not declare defendant in default because a motion to declare defendant in default is a prohibited pleading. (Lesaca vs. CA 21 Oct 1991) Q. X filed an ejectment suit against Y who filed an answer. Y filed a motion to dismiss in the guise of a position paper. X objected on the ground that such motion is a prohibited motion under the Rules of Summary Procedure. Rule on the objection. A. Objection not meritorious. While this is indeed a prohibited motion (Sec 19[a] of Revised Rules on Summary Procedure), it should be noted that the motion was filed after an answer had already been submitted within the reglementary period. In essence, therefore, it is not pleading prohibited by the Rule on Summary Procedure. What the rule prohibits is a Motion to Dismiss which would stop the running of the period to file an Answer and cause undue delay. Q. What are the prohibited pleadings and motions under the Revised Rules on Summary Procedure A. They are the following: (1) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with referral to Lupon for conciliation. (2) Motion for a bill of particulars (3) Motion for new trial or for reconsideration of a judgment or for reopening of trial (4) Petition for relief of judgment
Q. When may the court order the arrest of the accused? A. The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or recognizance by a responsible citizen acceptable to the court.
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(5) Motion for extension of time to file pleadings, affidavits or any other papers. (6) Memoranda (7) Petition for certiorari, mandamus or prohibition against any interlocutory order issued by the court (8) Motion to declare the defendant in default (9) Dilatory motion for postponement (10) Reply (11) Third-party complaints (12) Interventions. Q. In a case for unlawful detainer under the Revised Rules on Summary Procedure, the MTC rendered a decision in favor of A, the lessor, ordering B, the lessee, to vacate As apartment and to pay the back rentals. B appealed to the RTC which affirmed MTCs decision. A anticipating another appeal by B, filed a motion for execution pending appeal pursuant Sec 1of the Revised Rules of Summary Procedure. B likewise within the reglementary period filed a petition for review of the RTCs decision with the CA. (1) May the RTC grant As motion for execution pending appeal after B filed his petition for review with the CA? Explain. (2) May B validly oppose the motion for execution pending appeal on the ground that the motion is not based on the good reasons for which an execution pending appeal may be issued under Sec 2 Rule 39 of the Rules of court. A. (1) Yes because the decision of the RTC is immediately executory despite the appeal(Sec 21 Revised Rules of Summary Procedure) (2) No because Sec 2 of Rule 39 is not applicable to this case which falls under Summary Procedure. Q. For failure of the tenant, Marivic, to pay rentals, Letty, the court-appointed administrator of the estate of Santos Lindawan decides to file an action against Marivic for the recovery of possession of the leased premises located in Plaridel, Bulacan and for the payment of the accrued rentals in the total amount of P100,000. If the case is filed with the Municipal Trial Court, is it covered by the Revised Rules of Summary Procedure? A. Yes it is covered by the Revised Rules of Summary Procedure because Sec 1 A [1] provides that All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. This is a clear case of unlawful detainer and the accrued rentals of P100,000

is immaterial to the application of the Revised Rules of Summary Procedure. Q. Distinguish action from cause of action. (1999 Bar Exam) A. An action is one by which a party sues another for the enforcement or protection of a right or the prevention or redness of a wrong. (Sec. 3 Rule 1 1997 Rules of Civil Procedure.) A cause of action is the act or omission by which a party violates a right6 of another. ( Sec 2 Rule 2 of 1997 Rules. An action must be based on a cause of action. (Sec. 1 Rule 2 of 1997 Rules) Q. A sued B to recover P500,000 based from a promissory note due and payable on 5 Dec. 1995. The compliant was filed on 30 Nov. 1998 and summons was served on B on 7 Dec. 1998. B interposes a motion to dismiss on the ground that the compliant states no cause of action. If you were the judge, how would you rule on the motion. (1999 Bar Exams) A. If I were the judge, I would grant the motion on the ground that the compliant states no cause of action. When the compliant was filed, the promissory note yet due and demandable and hence the compliant was filed prematurely. This defect was not cured by the service of the summons on the defendant after the date when the promissory note become due and payable. Q. Distinguish: 1) An action IN REM from an action QUASI IN REM. 2) An action QUASI IN REM from an action IN PERSONAM. 3) An action IN PERSONAM from personal action. 4) An action IN REM from real action. 5) A personal action from a local action. (1994 Bar )
A. 1) An action IN REM is an action against all who might be minded to make an objection of any sort against the right sought to be established. While an action QUASI IN REM is an action against an individual although the purpose of the suit is to subject his interest in a particular property to the obligation or lien burdening the property. The judgement rendered in actions IN REM binds the whole world, while the judgement rendered in actions IN REM binds the whole world, while the judgement rendered in actions QUASI IN REM is conclusive only between the parties. 2) An action QUASI IN REM, as stated is an action against a person over a particular
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property or claims relating thereto, while an action in PERSONAM is an action to establish a claim against a person with a judgement that binds him personally. 3) An action in PERSONAM, a stated, is an action against a person on the basis of his personal liability while a personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or the resolution of a contract or the recovery of damages. 4) An action IN REM is an action against all who might be minded to make an objection of any sort against the right sought to be established, while a real action is an action affecting title to real property or for the recovery of possession or for partition or condemnation of or foreclosure of a mortgage on real property. 5) A personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or resolution of a contract or the recovery of damages, while a local action is that which must be brought in a particular place. Plaintiff in a personal action may file it in the place where he resides or where the defendant resides while in a local action, plaintiff has no choice except to file the action in the place where the property is located. Q. Distinguish civil actions from special proceedings. (1998 Bar Exam) A. A civil action is one by which a party sues another for the enforcement or protection of the right or the prevention or redness of a wrong, (Sec 3(a) Rule 1, 1997 Rules of Civil Procedure), while a special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec 3(c) Rule 1) Q. Ruby filed a collection of sum of money case against Grany on April 18, 2003, which the later contested when she filed her answer during the reglementary period. Ruby filed an amended compliant impleading Mildred as additional defendant upon a motion property filed on May 23, 2003 when is the civil action deemed commenced. A. As to Grany, the original defendant, the civil action is deemed commenced on April 18, 2003. But with regard to Mildred, the additional defendant, it is deemed commenced on May 23, 2003. A civil action is commenced by the filing of the original compliant on court. If the additional defendant is impleaded in a later pleading the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the

court. (Sec 5 Rule 1, 1997 Rules of Civil Procedure) Q. How shall the Rules of Court be construed 1998 Bar Exams A. The Rules of Court should be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Sec 6, Rule 1 1997 Rules of Civil Procedure) However, strict observance of the rules is an imperative necessity when they are considered indispensable to the prevention of needles delays and to orderly and speedy dispatch of judicial business (Alvero vs. Judge dela Rosa, 76 Phil 428 and other cases) Q. What are the kinds of actions for the recovery of possession of real property ? Explain each. A. The kinds of actions are the following: (1) The summary action for forcible entry and unlawful detainer forcible entry is a summary action to recover material or physical possession of real property when the person who originally held it was deprived of possession by force, intimidation, strategy, threath or stealth. An action for unlawful detainer, on the other hand may be filed when possession by a land lord, vendor, vendue or other person against whom the possession of any land or building is unlawfully with held after the expiration or termination of the right to hold possession, by virtue of contract, express or implied. Both actions may be filed with the municipal trial court within one year after unlawful deprivation or with holding of possession. (2) Accion publiciana is the plenary action to recover the right of possession when dispossession has lasted for more than one year or when dispossession was affected by means other than those mentioned under Rule 70 of the Rules of Court. The action may be brought before the Regional Trial Court. (3) Accion reivindicutoria is an action to recover ownership is filed with the Regional Trial Court. Q. Define Cause of Action and give its essential elements. A. A cause of action is defined as an act or omission of one party I violation of the legal right or rights of another. Its essential elements are: (1) legal right of the plaintiff: (2) correlative obligation of the defendant and (3) an act or omission of the defendant on violation of said legal right. There must be project or prejudice otherwise, no right of action arises in favor of plaintiff.
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Q. Butch purchase a lot from Cosme for P1.5M. he gave a down payment of P500,000, signed a promissory note payable for 30 days after date, and a security for the settlement of the obligation, mortgaged the same lot to Cosme. When the note fell due and Butch failed to pay Cosme commended suit to recover from Butch the balance of P1M. after securing a favorable judgement on his claim, Cosme brought another action against Butch before the same court to foreclose the mortgage. Butch now files a motion to dismiss the second action on the ground of bar by prior judgement. Rule on the motion. (1999 Bar Exams) A. The motion to dismiss should be granted. When be commenced suit to collect on the promissory note, he waived his right to foreclosed the mortgage be split his cause of action which he cannot validly do. Q. What be the rule against splitting a cause of action and its affect on the respective rights of the parties for failure to comply with the same? (1999 and 1998 Bar Exams) A. The rule against splitting a cause of action and its affect are that if two or more suits are instituted on the basis on the same cause of action, the filing of one or a judgement upon the merits in any one is available as a ground for dismissal of the others words, the ground for dismissal is either lis pendens (if the actions are still pending) or res judicata (if the judgement in one case has already become final. (Sec 4 Rule 2 of 1997 Rules. Q. Marife secured two loans from Nimfa, one for P500,000 and the other for P1,000,000 payable on different dates. Both have fallen due. Is Nimfa obliged file only one compliant against Marife for the recovery of both loans. Explain. (1999 Bar Exams) A. No. joinder is only permissive since the loans are separate loans which may be governed by the different terms and conditions. The two loans give rise to two separate causes of action and maybe the basis of two separate complaints. Q. What is the rule on joinder of causes of action 1999 Bar Exams? A. The rule on joinder of causes of action is that a party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, provided that: (1) the rule on joinder of parties is complied with (2) the joinder should not include special civil actions or actions governed by special rules

(3) where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder maybe allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein (4) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Sec. 5 Rule 2 1997 Rules) Q. May a complaint be dismissed on the ground of misjoinder of causes of action? A. No. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoinder cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (Sec. 6 Rule 2 1997 Rules) Q. Distinguish joinder of causes of action from joinder of parties. (1996 Bar Exams) A. Joinder of causes of action maybe made in the same complaint by one party against another, the totality of the demand determines jurisdiction of the court. But in cases of joinder of causes of action by or against several parties, the right to relief must arise out of the same transaction or series of transactions and there must be a common question of fact or law. Of these requisites are present, the totality of the demand determines the jurisdiction of the court. Q. The complaint filed before the RTC of Candon City states two (2) causes of action, one for rescission of contract and the other for the recovery of P100,000 both of which arose out of the same transaction. Is the joinder of the two causes of action proper? Explain. (1996 Bar Exams.) A. Yes, since the first cause of action for rescission of contract falls within the jurisdiction of the RTC of Candon City, because the subject is incapable of pecuniary estimation and the second cause of action for recovery of P100.000 is within the jurisdiction of a lower court and arose out of the same transaction, both may be joined in the complaint filed with the RTC. Q. Who may be parties to a civil action? A. Parties to a civil action are the plaintiff and defendant. Persons having an interest in the subject of the action and in obtaining the relief demanded maybe plaintiffs. Persons claiming an interest in controversy adverse to the plaintiffs maybe defendants. Parties should be (1) natural persons, (2) juridical persons (3) entities authorized by law to be parties such as labor organizations and entities without legal
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personality when sued as defendants. (Sec. 1 Rule 3 1997 Rules) Q. Who is a real party in interest? A. A real party in interest is the party who stands to be benefited or injured by the judgement in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (Sec 2 Rule 3 of 1997 Rules) Q. Distinguish lack of capacity to sue and lack of personality to sue. A. While the former refers to a plaintiffs general disability to sue, such as an account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications of a party, the latter refers to the fact that the plaintiff is not the real party in interest. Q. Mr. Garcia, an attorney-in-fact of Mr. Ringor prosecuted a case in favor of the later without including Mr. Ringor. The defendant Mr. Galang filed a motion to dismiss on the ground that the complaint states no cause of action. Rule on the motion. A. Motion should be granted. The attorney in fact is not a real party in interest hence cannot prosecuted the case only in his name. The complaint should include Mr. Ringor as real party in interest. Where action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. (Sec. 2 and 3 Rule 3 1997 Rules) Q. When is permissive joinder of parties proper? A. Permissive joinder of parties is proper when the following requisites are present. (1) The persons in whom or against whom any right to relief in respect to or against whom any right to relief in respect to or arising out of the same transaction or series of transaction or series of transactions is alleged to exist, whether jointly or severally or in the alternative, may join as plaintiffs or be joined as defendants in one complaint ; and (2) There is a question of the law or fact common to all such plaintiff or to all such defendants in the action. (Sec. 6 Rule 3 1997 Rules) Q. Balbin Subdivisions Inc. developed, subdivided and conveyed to lot buyers parcels of land in a subdivision owned by it. Mr. Pre claiming as owner of the whole subdivision filed a case against Balbin Subdivision Inc. for recovery of real properties. Will the action prosper?

A. No the action will not prosper. In an action for recovery of parcels of land, which had already been subdivided and conveyed to lot buyers, the latter are indespensable parties and their having been not impleaded as defendants renders the judgement and all proceedings therein held null and void for want of authority on the part of the court to act not only as to the absent parties but also as to the present. (Metropolitan Waterworks & Sewerage System vs. LA 297 s 287) Sec. 7, Rule 3 of 1997 Rules provides that parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. Failure to include indespensable parties is a ground for dismissal of action. Q. Who is a necessary party? A. A necessary party is one who is not indespensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties or for a complete determination or settlement of the claim subject of the action. Q. Distinguish indespensable and necessary parties. A. A proper party or necessary party is one which ought to be a party if complete relief is to be accorded as between those already parties. An indespensable party is a party who must be made a party either as plaintiff or defendant if final determination can be lead of an action. In other words, a necessary need not be joined as party litigant and the court can still adjudicate the controversy as between the parties already in court. On the otherhand, an indespensable party must be joined under all circumstances to enable the court to resolve the dispute, otherwise the case must be dismissed. Q. Give the effect of the non-joinder of a necessary party. (1998 Bar Exams) A. The effect of the non-joinder of a necessary party may be stated as follows: the court may order the inclusion of an omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion without justifiable cause is a waiver of the claim against such party. The court may proceed with the action but the judgement rendered shall be without prejudice to the rights of such necessary party. (Sec. 9 Rule 3 1997 Rules of Civil Procedure) Q. What is the rule in cases of unwilling plaintiff. A. An unwilling plaintiff who is a real or indespensable party should be impleaded as defendant an the reason therefor stated in the complaint. (Sec. 10 Rule 3 1997 Rules)
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Q. Is misjoinder and non-joinder of parties a ground for dismissal of an action? A. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such forms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11 Rule 3 1997 Rules) Q. What are the requisites of a class suit? A. The following are the requisites of a class suit: (1) the subject matter in controversy is of common or general interest to many persons (2) there is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinguish the individuals (3) the parties are so numerous that it would be impracticable to bring them before the court. Q. Francisca filed a complaint for the recovery of ownership of land against Santos who was represented by his counsel Romeo. In the course of trial Santos died. However Romeo failed to notify the court of Santoss death. The court proceeded to hear the case and rendered judgement against Santos. After judgement became final, a write of execution was issued against Cosme, who being Santos sole heir, acquired the property. (1) If you were counsel of C, what course of action would you take? (2) Did the failure of Romeo to inform the court of Santoss death constitute direct contempt? (1998 Bar Exams) Answers: (1) As counsel of Cosme, I would move to set aside the writ of execution and the judgement for lack of jurisdiction and lack of due process in the same court because the judgement is void. If X had notified the court of Bs death, the court would have ordered the substitution of the deceased by Cosme, the sole heir of Santos. (Sec. 16 Rule 3 of 1997 Rules of Civil Procedure) The court acquired no jurisdiction over C upon whom the trial and the judgement are not binding. I could also file an action to annul the judgement for lack of jurisdiction because Cosme, as the successor of Santos was deprived of due process and should have been heard before judgement. (2) No. It is not direct contempt under Sec. 1 Rule 71 but it is indirect contempt within the purview of Sec. 3 of Rule 71. The lawyer can also be the subject of disciplinary action. (Sec. 16 Rule 3 1997 Rules of Civil Procedure.) Q.

What is the duty of the counsel if his client dies pending a case against his client. A. Whenever a party to pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply for disciplinary action. (Sec. 16 Rule 3 1997 Rules) Q. What is the rule in cases of transfer of interests. A. In case of any transfer of interest, the action maybe continued by or against the original party, unless the court upon motion directs the person whom the interest is transferred to be substituted in the action or joined with the original party.(Sec. 19 Rule 3 1997 Rules) Q. When A (buyer) failed to pay the remaining balance of the contract price after it became due and demandable, B (seller) sued him for collection before the RTC. After both parties submitted their respective evidence, A perished in a plane accident. Consequently, his heirs brought an action for the settlement of his estate and moved for the dismissal of the collection suit. (1) Will you grant the motion? Explain. (2) Will your answer be the same if A died while the case is already on appeal to the CA? Explain. (3) In the same case, what is the effect if B died before the RTC has rendered judgment. (199 Bar Exams) Answers: (1) No, because the action will not be dismissed but shall instead be allowed to continue until entry of final judgement. (2) No, if A died while the case was already on appeal in the court of Appeals, the case will continue because there is no entry yet of final judgement. (3) The effect is the same. The action will not be dismissed but will be allowed to continue until entry of final judgement. (Sec. 20 Rule 3 1997 Rules) Q. What is the rule to be observed in case of death of the obligor if there are claims against him? A. If it is a money claim arising from contract, express or implied the following rule should be observed: (1) If the obligor dies before an action could be filed against him, the obligee will have to file a money claim with the probate court: (2) If the action has already been instituted against the obligor, and he dies before entry of final judgement in the court in which the action is pending at the time of such death, the action shall not be dismissed but
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shall instead be allowed to continue until entry of final judgement. Martinez vs. Pp May 31, 2000

The plaintiff can then file it as a money claim based on judgement in the probate court. If it is a claim that does not arise from contract, such as a claim for damages for injury to person or property: (1) if the obligor dies before an action could be filed against him an ordinary action may be filed against him, an ordinary action may be filed against his executor or administrator (2) if the obligor dies after an action has already been instituted against him, the action will continue until final judgement. The judgement may be executed against his executor or administrator. Q. What is the rule in the case of indigent party or pauper litigants? A. A party may be authorized to litigate his action, claim or damages as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no many or property sufficient and available for food, shelter and basic necessities for himself and his family. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgement rendered in the case favorable to the indigent, unless the court otherwise provide. (Sec. 21 Rule 3 1997 Rules of Civil Procedure) A motion to litigate as an indigent can be made even before the appellate court either for the prosecution of appeals, in petitions for review or in special civil actions. (Martinez vs. Pp. May 31, 2000.) Q. When is Solicitor Generals appearance required by the Rules? A. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. Q. Joyce a resident of Pangasinan sued Jeff, a resident of San Fernando City, La Union in the RTC of Quezon City for the collection of a debt of P1M. Jeff did not file a motion to dismiss for improper venue as an affirmative defense. Rule on the affirmative defense of improper venue. A. There is improper venue. The case for sum of money which was filed in Quezon City, is a personal action. It must be filed in the residence of either the plaintiff, which is Pangasinan, or of the defendant which is San Fernando City, at the election of plaintiff (Sec. 2 Rule 4 of 1997 Rules of Civil Procedure). The fact that it was not raised in a motion to
dismiss does not matter because the rule that if improper venue is not raised in a motion to dismiss it is deemed waived was removed from the 1997 Rules of Civil Procedure. The new rules provided that if no motion to dismiss has been filed any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6 Rule 16 of 1997 Rules) Q. Jessa, a resident of Angeles City, borrowed P300,000 from Kimjer, a resident of Pasay City. In the loan agreement, the parties stipulated that the parties agree to sue and be sued in the City of Manila. (1) In case of non-payment of the loan, can Kimjer file his complaint to collect the loan from Jessa in Angeles City? (2) Suppose the parties did not stipulate in the loan agreement as to venue, where can Kimjer file his complaint against Jessa? (3) Supposed the parties stipulated in their loan agreement that venue for all suits arising from this contract shall be the courts of Quezon City, can Kimjer file her complain against Jessa in Pasay City? (1997 Bar Exams) Answers: (1) Yes because the stipulation in the loan agreement that the parties agree to sue and be sued in the City of Manila does not make Manila the exclusive venue thereof (Sec. 4 Rule 4). Hence, Kimjer can file her complaint in Angeles City where the resides (Sec. 2 Rule 4 of 1997 Rules). (2) If the parties did not stipulate on the venue, Kimjer can file complaint either in Angeles City where Jessa resides or Pasay City where she resides. (3) NO. if the parties stipulated that the venue shall be in the courts in Q.C. Kimjer cannot file her complaint in Pasay City because of the word shall makes Quezon City the exclusive venue thereof. Q. Josie, a resident of Laoag City file a case for recovery of ownership of a parcel of land worth P200,000 located at Vigan City against Crisel, a resident of La Union. Where shall the case be filed? A. The case should be filed with the RTC of Vigan City because the action was a real action. Sec. 1 Rule 4 provides that Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated. Forcible entry and detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved, or a portion thereof is situated. Q. Where is the venue of personal actions? A. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiff resides, or where the
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defendant or any of the principal defendants resides or in the case of non-resident defendant where he may be found, at the election of the plaintiff. Q. David married Fely in June 18,1995 at Candon City, Ilocos Sur. Fely in April 1997 went to United States and never returned to the Philippines. They have no communication since then. David filed an annulment case against Fely at the RTC of Candon City where he resides. Is the action properly filed? A. Yes. Sec. 3 Rule 4 provides that If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. Q. What is venue? A. Venue of action is the place where the action is triable, whether real or personal. Venue relates to place of trial, not to jurisdiction, touches more of the convenience of the parties rather than the substance of the case. Q. Distinguish venue from jurisdiction. A. Venue refers to the place where the action is to be instituted, jurisdiction refers to the authority of the court to try and decide the case. Venue maybe waived; jurisdiction (as to subject matter cannot be waived. Venue maybe the subject of a written agreement between the parties; jurisdiction cannot be the subject of the written agreement between parties. Q. What are pleadings? A. Pleading are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgement. (Sec. Rule 6 of 1997 Rules) Q. What is a complaint? A. The complaint is the pleading the plaintiffs cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (Sec. 3 rule 6 of 1997 Rules of Civil Procedure) The complaint should inform the defendant of all the material facts on which the plaintiff relies to support his demand, it should state the theory or cause of action which forms the bases of the plaintiffs claim of liability. Q. What is an answer? A. An answer is a pleading which a defendant files against the complaint and raises defenses to defeat the claim against him; he may also; in the answer, raise counter claims against the plaintiff.

Q. What are the kinds of defenses. Explain each. A. Defenses may either be negative or affirmative. A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery. Q. What would the defendant do in cases where a written instrument copied or attached to a pleading as a basis of the claim or a defense in order not to be admitted? A. The genuineness and due execution of a written instrument copied in or attached to a pleading as basis of the claim or defense should be denied specifically under oath, otherwise they are deemed admitted. Q. Maui filed an action against Tracy for recovery of possession of a piece of land. Tracy in her answer specifically denied Mauis claim and interposed as a counter claim the amount of Php 150,000 arising from another transaction, consisting of the price of the car he sold and delivered to Maui and which the latter failed to pay. In Tracys counter claim allowed under the rules? Explain. (1996 BAR Exams) A. Tracys counter claim is a permissive counter claim in as much as it arises out of another transaction that is the subject matter of its complaint. It is allowed if it is within the jurisdiction of the court. Alternative Answer: The question does not state in what court Maui filed the action. If the assessed value of the property does not exceed Php 20,000 the action may be filed in the MTC in which case the counter claim of Php 150,000 may be allowed in as much as it is within its jurisdiction. Q. Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed of the value of improvement she had introduced in the same land and the payment of damages she had sustained. Should Lea file a separate action against Aya for that purpose? (1996 BAR Exams) A No. Leahs claim cannot be made in a separate action. It is a compulsory counter claim in the suit filed by Aya against Lea for the recovery of the land. A compulsory counter claim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing
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partys claim and does not require for its adjudication the presence of third parties of whom the court can not acquire jurisdiction. If Leas claim is not set up in the suit filed by Aya, the claim is barred. (Sec.7 Rule 6 1997 Rules of Civil Procedure) Q. Is a motion to dismiss with counter claim sanctioned by the rules of Court? (1992 BAR Exams) A. No, because a counter claim is contained in answer and not in a motion to dismiss. What the defendant should do is to plead the ground of his motion to dismiss as an affirmative defense on his answer together with his counter claim. What is counter claim? A. A counter claim is any claim which a defending party may have against an opposing party. (Sec. 6 Rule 6 1997 Rules) Q. Give the requisites of compulsory counter claim? A. The following are the requisites of a counter claim. (1) It arises out of, or is necessary connected with the transaction or occurrence that is the subject matter of the opposing partys claim. (2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (3) It must be cognizable by the regular courts of justice. (4) It cannot be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the RTC, the counter claim is considered compulsory regardless of the amount thereof; (5) It must already be existing at the time the defending party files his answer. (Sec. 7 Rule 6 of the 1997 Rules of Civil Procedure) Q. B and C borrowed P400,000 from A. the promissory note was executed by B and C in a joint and several capacity B who received the money from A, gave C P200,000. C in twin loaned P100,000 out of P200,000 he received to D. 1.) In an action filed by A against B and C with the RTC, can B file a cross-claim against C for the amount of P200,000? 2.) Can C file a third party complaint against D for the amount of P100,000? (1997 Bar Exams) A. 1.) Yes, B can file a cross-claim against C for the amount of P200,000 given to C. A cross-claim is a claim filed by one party against

a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counter claim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the claim asserted in the action against the cross-claimant. (Sec. 8 Rule 6 1997 Rules) 2.) Yes, C can file a third party complaint against D because the loan of P100,000 was taken out of the P200,000 received from B and hence the loan seeks contribution in respect to his opponents claim. (Sec. 11 Rule 6 of 1997 Rules) Q. A assembles an owner-type jeep for B who in twin rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries. X files an action for damages against A and B. May B file a third-party complaint against A for indemnity? Explain. (1996 Bar Exams) A. No, because what B should file is a cross-claim against his co-defendant A. thirdparty complaint is not available because both A and B are made defendant on the case. Q. What is a reply? A. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. (Sec. 10 Rule 6 1997 Rules) Q. A after he files his complaint wants to allege claims arising out of new matters, how A will he pleads? A. A should set forth-new matter in a amended or supplemented complaint. (Sec. 10 Rule 6 of 1997 Rules) Q. What is the effect if there is no reply filed? A. If a party does not file a reply, all matters alleged in the answer are deemed controverted. (Sec. 10 Rule 6 1997 Rules) Q. What is a third-party complaint? A. A third-party complaint is a claim that a defending party may with leave of court, file against a person not a party to the action, called the third-party defendant for contribution, indemnity, subrogation or any other relief, in respect to his opponents claim. (Sec. 12 Rule 6 1997 Rules) Q. When may a third-party complaint be disallowed? A. In the following cases, a third-party complaint may be disallowed: (1) When the resolution of the main case would be delayed as when the third-party defendant cannot be located. (2) When there are extraneous matters that would be raised
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(3) When the main declaratory relief. action is for

Q. Cesar Antonio Surla and wife Evangeline filed a complaint for damages against Santo Tomas University Hospital alleging that their son suffered damages when he fell from the hospitals incubator. The hospital filed an answer alleging counter claims that they have unpaid hospital bills and profession fees if the doctors and moral and exemplary damages without a certificate of non-forum shopping. State the effects of failure to submit a non-forum shopping certificate. Explain. Ans. It depends. A certificate of non-forum shopping is not necessary with respect to the counter claim for moral and exemplary damages because the same is not an initiator pleading. Such certificate is necessary only when the pleading is initiatory. The reason for the rule is that, the counter claim is merely auxiliary to the proceedings. The counter claim for the unpaid hospital bills however, is an initiatory pleading as it serves as an independent claim. The same did not arise out of the same transaction or occurrence that is the subject matter of plaintiffs complaint which is the alleged negligence of hospital employees. The hospitals claim arose out of contract. (Santo Thomas University Hospital vs. Surla; 294 SCRA 382) Q. BA Savings Bank filed a petition for certiorari with the CA with a certificate of non-forum-shopping signed by its lawyer. It was dismissed by the CA on that ground. It filed a motion for reconsideration attaching thereto a corporate secretarys certificate authorizing its lawyer to represent it in the action and to sign, execute and deliver a certificate of non-forum shopping. The motion was denied on the ground that the rule requires that it is the petitioner, not the counsel , who must sign the certificate. Is the ruling correct? Why? A. No, the certificate of non-forumshopping may be signed for and in behalf of a corporation, specifically by a lawyer who has a personal knowledge of the facts required to be disclosed in such document. Corporations perform physical actions only through properly delegated individuals like its officers or agents. In case of natural persons, the rule requires the parties themselves to sign the certificate of non-forum-shopping however such does not apply to corporations. There is no circumvention if the certificate was signed by the corporations authorized counsel, who had personal knowledge of the matters required by the rule. (BA Savings Bank vs. Sia 336 SCRA 484)
Q. What is the effect of the unsigned pleading? Is the rule obsolete? Why? A. An unsigned pleading produces no legal effect. However the court may, in its discretion, allow such deficiency to be reminded if it shall appear that the same was due to mere inadvertence and not intended for4 delay. (Sec. 3 Rule 7 of 1997 Rules) this is because the requirement as to the signature of a lawyer is mere formal requirement which can be cured. Q. What is the effect of unverified pleading? A. It shall be treated as an unsigned pleading. In fact this is also the effect if the verification contains a verification based on information and belief or upon knowledge, information and belief. The rule is so because the Rules require that a pleading is verified by an affidavit that the pleading and the allegations therein are true and correct of his knowledge and belief. (Sec. 4 Rule 1997 Rules) Q. What is forum-shopping? What are the sanctions imposed for its violation? (1996 Bar Exams) A. Forum-shopping is the filing of multiple petitions, complaints or other initiatory pleadings involving the same issues in the SC, CA or other tribunals or agencies, with the result that said courts tribunals or agencies have to resolve the same issues. Any violation thereof shall be a cause for the dismissal of the complaint, petition, application or other initiatory pleading, upon motion and after hearing. However, any clearly, willful and deliberate forum shopping by any party and his counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action shall be a ground for summary dismissal thereof and shall constitute direct contempt of court. Furthermore, the submission of false certification, or non-compliance with the under takings therein, shall constitute indirect contempt of court, with out prejudice to disciplinary proceedings against the counsel and filing of a criminal action against the guilty party. (Sec. 5 Rule 7 1997 Rules) Q. What is the significance of a counsels signature in a pleading? (1996 Bar Exams) A. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief there is a good ground to support it; and that it is not interposed for delay. (Sec. 5 Rule 7 of 1997 Rules) Q. Who must execute the certification against forum shopping? A. The certification against forum shopping must be executed by the party and not his counsel. Where there are several
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plaintiffs or petitioners, the certification against forum shopping may be signed by only one of them. Q. The complaint alleged that the defendant acted in bad faith, arbitrarily, wrongfully, and in violation of law. However it did not contain any averment of facts showing that defendants complaint state a cause of action. Explain (1996 Bar Exams) A. No, because it does not state the ultimate facts constituting the plaintiffs cause of action. The allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of law are mere conclusions of fact or conclusions of law. Alternative Answer: Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith, arbitrarily, illegally, wrongfully and violation of law. The rule allows malice, intent, knowledge or other condition of mind to be averred generally.(Sec. 5 Rule 8 of 1997 Rules) Q. How may a party plead an actionable document? A. The following are the ways of pleading on actionable document: (1) by setting forth the substance of such document in the pleading and attaching the original or copy of said document thereto as annex or (2) by setting firth said document verbatim in the pleading (Sec. 7 Rule 8 1997 Rules) Dalaodao Restaurant entered into a contract with Mr. Butch for the latter to deliver vegetables to the former. Mr. Butch contacted Malag Vegetables Products in order to get the needed vegetables. However due to low produce of vegetables, Mr. Butch wasnt able to deliver the ordered vegetables. Due to damages suffered Dalaodao Restaurant sued Mr. Butch and Malag Veg. Products and used the contract as basis of the claim. What should the defendants do in order to resist the claim? A. Sec. 8 Rule 8 of the 1997 Rules of Civil Procedure provides that Whenever an action or defense is based upon a written instrument or document, copied in are attached to the corresponding pleading, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party under oath, specifically denies them and set forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original is refused. Q.

Mr. Butch should specifically deny under oath the genuineness and due execution of the contract but such requirement does not apply to Malag Vegetable Product because it was not a party to the contract. Q. When may a party be declared in default? (1999 Bar Exams) A. A party may be declared in default when he fails to answer within the time allowed therefor and upon motion of the claiming party with notice to the defending party, and proof of such failure to answer. (Sec. 3, Rule 9 of the 1997 Rules) Q. What is the effect of an Order of Default? (1999 Bar Exams) A. The effect of an Order of Default is that the court may proceed to render judgement granting the claimant such relief as his pleading may warrant unless the court in its discretion requires the claimant to submit evidence. The party in default cannot take part in the trial but shall be entitled to notice of subsequent proceedings (Sec. 3[A] Rule 9 of 1997 Rules) Q. For failure to seasonable file his answer despite due notice, A was declared in default in case instituted against him by B. the following day, As mistress who is working as a clerk in the sala of the judge before whom his case is pleading, informed him of the declaration of default. On the same day, A presented a motion under oath to set aside the order of default in the ground that his failure to answer was due to fraud and he ha a meritorious defense, thereafter he went abroad, after his return a week later, with the case still undecided, he received the order declaring him in default. The motion to set aside default was opposed by B on the ground that it was filed before A received notice of his having been declared in default, citing the rule that the motion to set aside may be made at anytime after notice but before judgement. A. Assuming that the motion to set aside complies with the other requirement of the rule, it should be granted. Although such a motion may be made after notice but before judgement (Sec. 3 [B] Rule 9) with more reason may it be filed after discovery even before receipt of the order of default. Q. What are the available remedies of a party declared in default: (1) Before the rendition of judgement? (2) After judgement but before finality? (3) After finality of judgement? (1998 Bar Exams) A. The available remedies of a party declared in default are as follows: (1) Before the rendition of judgement (a) he may file a motion under oath to set aside the order of default on the grounds of fraud,
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accident, mistake, excusable negligence and that he has meritorious defense (Sec. 3 [b] Rule 9 1997 Rules) and if it denied, he may move to reconsider, and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of the lower courts jurisdiction. (Sec. 1, Rule 65 Rules of Court) or (b) he may file a petition for certiorari if he has been illegally declared in default e.g. before the expiration of the time to answer. (2) After judgement but before its finality, he may file a motion for ne2w trial on the grounds of fraud, accident, mistake, excusable negligence or a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law (Sec. 2 Rule 37 1997 Rule of Civil Procedure) and thereafter. If the motion is denied, appeal is available under Rule 40 or 41 which ever is applicable. (3) After finality of judgement, there are three ways to assail the judgement, which are: (a) a petition for relief under Rule 38 on the grounds of fraud, accident, mistake, excusable negligence; (b) annulment of judgement under Rule 47 for extrinsic fraud or lack of jurisdiction; or (c) certiorari if the judgement is void on its face or by the judicial record. Q. Mr. X filed a compliant against Mr. Y in the RTC. Before an answer is filed he amended his complaint without leave of court. Can he validly do that? A. Yes, a party may amend his pleading once as a matter of right at anytime before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (Sec. 2 Rule 10 1997 Rules). The amendment is a matter of right since no answer was filed and serve yet hence Mr. X may do the amendment without leave of court. Q. A. How may pleadings be amended? Pleading be amended either by: (1) adding or striking out an allegation or the name of any party; (2) correcting a mistake in the name of a party or a mistake or in adequate allegation or description in nay other respect.

Q. When is amendment a matter of privilege? A. Substantial amendment is a matter of privilege after the case is set for hearing and hence, needs leave of court. This is true even if the amendment substantially alter the cause of action or defense. (Sec. 3 Rule 10 1997 Rules) Q. When may leave of court to amend the complaint be refused? A. Leave of court to amend the pleading may be refuse if: (1) the motion is made to delay the action, (2) the cause of action or defense is substantially altered. Q. What are the kinds of amendment? Distinguish A. The kinds of amendments are (1) formal amendments and (2) substantial amendments. Formal amendments are those which affect the form of the pleading such as clerical or typographical errors, not the substantial rights of the parties. Whereas substantial amendments are those that strike at the very essence of the partys claim or defense, consequently prejudicial therefor. Q. The plaintiff filed an amended complaint in a civil case. Will the amendment be barred if after the filing of the complaint and before the filing of the amendment, the period of prescription concerning the cause of action as to which the amendment was, had expired? Explain. A. Yes, the rule permits a party to amend his compliant to incorporate a cause of action already in existence at the filing of the original pleading. In the case at bar, after the plaintiff filed his complaint, the cause of action subject matter of the amended complaint was already barred by prescription. A cause of action already barred by prescription can no longer be ventilated in a court of law. Q. Aubrey filed a case against Malou. At the trial, Malou presented evidence changing his defense without prior amendment of his pleadings. Discuss the validity of the same. A. Malou can do it even without amending his answer. It may be pointed out that under Sec.5 Rule 10 of 1997 Rules of Civil Procedure, such amendment of the pleadings as may be necessary to cause them to conform to evidence and to raise these issues may be made upon motion of any party at any time, even if after judgement; but failure to amend does not affect the result of the trial of these issues. Q. Give the limitations on the right to amend pleadings.
Q. Angel filed a compliant against Beverly, who filed a Motion to Dismiss. May Angel amend her complaint as a matter of right? A. Yes, because no answer or a responsive pleading was filed. A motion to dismiss is not a responsive pleading. Q. In the problem above, what if Beverly filed an answer and no reply was filed yet, may Beverly amend her answer? A. Yes, Beverly has the right to amend her answer before a reply. No responsive pleading has been filed to the answer.
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A. The limitations in amending pleadings are the following: (1) it cannot change substantially the cause of action or defense or theory (2) it cannot alter a final judgement on a substantial matter (3) it cannot confer jurisdiction (4) it cannot cure a premature or non-existing cause of action (5) it cannot be used to delay proceedings. Q. What are amended and supplemental pleadings? A. An amended pleading is one which incorporates facts, circumstances or occurrences that constitute the cause or causes of action or defenses already in existence at the filing of the original pleading and which were not included either because the same were merely overlooked or then not known. A supplemental pleading refers to one that incorporates new facts, occurrences, circumstances that constitute a new cause of action or defense which only happen after the filing of the original pleading. Q. Ana filed a complaint for sum of money against Bea in the amount of P500,000 stating that of the P1M obligation of the defendant, Bea had already paid P500,000. Later on Ana filed an amended complaint stating that Bea has not paid her obligations. State the effects of the filing of the amended complaint. A. Sec. 8 Rule 10 of the 1997 Rules of Civil Procedure provides that An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claim or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. The amended pleading is an admission by Ana that Bea had paid P500,000 which Bea can use as evidence against Ana. Q. Distinguish amended pleading from supplemental pleading A. A supplemental pleading does not extinguish the existence of the original pleading, while an amended pleading takes the place of the original pleading. A supplemental pleading exists side by side with the original, it does not replace that which it supplements; it does not replace that which supplements; it does not supersede the original but assumes that original pleading is to stand and the issues joined under the original pleading is to stand and the issues joined under the original pleading remain as issues to be tried in the action. A supplemental pleading supplies the deficiencies in aid of an original pleading, not to entirely substitute the latter. (Sps Caoili vs. CA 14 1999)

Q. Within what period should an answer be filed. A. The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (Sec. 1 rule 11 of 1997 Rules) Where the defendant as a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer be filed within thirty (30) days after receipt of summons by such entity. (Sec. 2 Rule 11 Rules) Q. Within what period an answer to an amended complaint be filed. A. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. (Sec. 3 Rule 11 1997 Rules) Q. Ara filed a sum of money case against Trcy. Ara amended her complaint with leave of court which was granted. Tracy failed to file an answer to the amended complaint. May she be declared in default? A. No, although the defendant is given 10 days to answer, Sec. 3 Rule 11 of 1997 Rules of Civil Procedure provides that An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. Tracy had already filed an answer hence cannot be declared in default. Q. Is extension of time to plead allowable? A. Yes upon motion and such terms may be just, the court may extend the time to plead. (Sec. 11 Rule11 1997 Rules) Provided that the motion for extension of time to plead be filed before the lapse of the period, otherwise, there is nothing more to plead. Q. What is the period to answer a counter claim or cross-claim? What is the purpose? A. A counter claim or cross claim should be answered within 10 days from service. (Sec. 4 Rule 11 of 1997 Rules). Counter claim or cross-claim is never considered as defense but as a counter-action or cross-action. There can be default except if the counter claim is compulsory. Q. What is the period to reply? Is it Mandatory?
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A. A reply may be filed within 10 days from service of pleading responded to. (Sec. 6 Rule 11 1997 Rules) It is Optional because if there is no reply the party is deemed to have controverted all the new matters called in the answer except when the answer is founded in a document. Q. Defendant failed to file an answer within the prescriptive period, what must he do if he was not yet declared in default? A. A motion for leave to admit answer should be filed and the answer should be attached to it. Q. Defendant failed to answer a supplemental complaint, may he be declared in default? What is the period to answer supplemental complaint? A. Sec. 7 of Rule 11 of 1997 Rules provides that A supplemental complaint may be answered within 10 days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. Q. How may a counter claim or cross-claim which a party failed to allege be pleaded? A. When a pleader fails to set up a counter claim or a cross-claim through oversight, inadvertence or excusable neglect, or when justice requires, he may, by leave of court set up the counter claim or cross-claim by amendment before judgement (Sec. 10 Rule 11 0f 1997 Rules of Civil Procedure) Q. Maui sued Rica to recover P300,000, representing unpaid obligation of defendant for office equipment purchased from plaintiff. Considering that Rica cannot determine exactly how come she still had such obligation, what procedural step must she take to protect her interest? A. Rica must file a motion for a bill of particulars within ten (10) days after service of summons and a copy of the complaint to her, for a more definite statement regarding the particulars of this P300,000 obligation. Q. What is the concept of a bill of particulars? A. A bill of particulars is a detailed explanation respecting any matter which as not averred with sufficient definiteness or particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. The bill of particulars is filed by the plaintiff pursuant to an order of the court issued upon granting a motion for a bill of particulars filed by the defendant before the latter files his answer. In this motion the

defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. Q. What is the effect of the filing of a bill of particulars? A. A seasonable motion for a bill of particulars interrupts the period within which to answer. After service of the bill of particulars or of a more definite pleading, or after notice of denial of hid motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by the rules, as that to which he was entitled at the time of serving his motion, but no less than five (5) days in any event. (Sec. 5 Rule 12 1997 Rules) Q. What should a party do if a motion for bill of particulars is granted. A. Sec. 3 Rule 12 of 1997 Rules of Civil Procedure provides that if the motion for bill of particulars is granted, in whole or in part, the compliance therewith must be effected with ten (10) days from notice of the order, unless a different period is fixed by the court. Q. What is the effect of noncompliance with the order to file a bill particulars? A. If the order to file a bill of particulars is not obeyed or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (Sec. 4 Rule 12 1997 Rules) Q. How should the bill of particulars be filed? A. It may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (Sec. 3 Rule 12 of 1997 Rules)
RULE 13 FILING & SERVICE OF PLEADINS, JUDGEMENTS & OTHER PAPERS FILING OF PLEADING is the act of presenting the pleading or other paper to the clerk of court. (sec. 2, rule 13)
MANNER OF FILING 1. Personally - to the clerk of court, who shall endorse on the pleading the date and hour of filing. Proof of filing: written or stamped acknowledgement of its filing by the clerk of court on the copy of the same.
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2. Mailing - thru registered mail the date of mailing is the date of filing. - Thru ordinary mail the date of receipt of the court is the date of filing. thru LBC, Fed ex - the date of receipt by the court is the date of filing. Proof of filing: registry receipt and by the affidavit with the person who did the mailing. * must be accompanied by a written explanation why the filing was not done personally(sec.11, Rule 13) No explanation? considered as not filed(sec.11, Rule13) PAPERS REQUIRED TO BE FILED & SERVED: (Sec.4, Rule 13) 1. every judgement 2. resolution 3. order 4. pleading subsequent to the complaint 5. written motion 6. notice 7. appearance 8. demand 9. offer of judgement 10. similar papers
MODES OF SERVICE OF PLEADING 1. Personal Service(Sec.6, Rule 13) a. delivering personally a copy to the party or his counsel. b. Leaving it in his office with his clerk or with a person in charge thereof. c. Leaving the copy, between 8A.M. to 6 P.M. at the partys or counsels residence, if known, with a person of sufficient age & discretion then residing therein. Proof of Service: copy receipt by adverse party(Sec.13, Rule13) 2. Service by Mail - done only when personal service is impractical. - Should be done thru registered mail but if unavailable, then can be done by ordinary mail. - Must be accompanied by a written explanation why the service was not done personally(Sec. 11, Rule13) - No explanation? considered as not filed. Proof of service: Registry receipt & affidavit of the mailing person if by registered mail. Ordinary mail affidavit of the person mailing(Sec.13, Rule 13) Completeness of Service: - ordinary mail upon the expiration of ten(10) days after mailing, unless the court otherwise provides(Sec. 10, Rule13) - registered mail upon actual receipt by the address or after five(5) days from the date he received the first notice of the postmaster, whichever date is earlier(Sec.10, Rule 13) 3. Substituted Service - resorted to only when personal & mail service has failed. - Done by delivering the copy to the clerk of court, with proof of both personal service & service by mail(Sec. 8, Rule 13) Completeness of service:at the time of such delivery ***service of judgements,final orders or resolutions -shall be served personally or thru registered mail.All other modes are not acceptable.Otherwise,counsel is not deemed properly served the order.Reglementary period didnt start to run yet.(sec.9,Rule 13) Rationale:Because counsel has only 15 days to file an appeal or motion for reconsideration.
SERVICE OF PLEADING - is the act of providing a party with a copy of the pleading or paper concerned.(2nd par, Sec.2, Rule13) ** ALL COPIES OF PLEDAINGS, EXCEPT COMPLAINTS, SHALL BE FURNISHED BY THE ADVERSE PARTY. * if any has appeared by counsel, service upon him shall be upon his counsel or one of them, unless service upon the party himself is ordered by the court. (2nd par, sec.2 Rule 13) * Where one counsel appears for several parties, he shall be entitled to one copy of any paper served upon him by the opposite side. (2nd par., Sec.2, Rule13) ** if a party is represented by several counsel, service to one of the counsel is enough. But, if there are several parties represented by the different counsels, all such counsels should be served copies.
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***When a party summoned by publication failed to appear in the action,judgements,final orders,resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (SEC.9,rule 13) Notice of lis pendens(Sec.14,Rule 13) -in actions affecting the title or the right of possession of real property. -the recording in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Contents of the notice: -names of the parties -object of the action or defense -description of the property in that province affected thereby. **Only from the time of filing such notice for record shall a purchaser or encumbrancer of the property affected thereby,be deemed to have CONSTRUCTIVE NOTICE of the pendency of the action & only of its pendency against the parties designated by their real names. **Cancellation of the notice of lis pendens: -upon order of the court,after it is shown that the notice is for the purpose of molesting the adverse party or that it is not necessary to protect the rights of the party who caused it to be recorded. **Land registration cases -govt is represented by the office of the solicitor general -notice of the order must also be furnished to the solicitor general. RULE 14 SUMMONS Summons -writ/process issued by the court upon the defendant in a civil action for the purpose of securing his appearance in said action. -this is for the purpose of acquiring jurisdiction over the person of the defendant. -issued by the clerk of court upon the filing of the complaint and the payment of the requisite legal fees(Sec.1,Rule 14) Alias summons -is a subsequent summons issued by the coert after the original writ is returned unserved on any or all the defendants or when the same has been lost. (Sec.5,Rule14)

WHO SERVES THE SUMMONS?(Sec. 3, Rule 14) 1. by the sheriff or 2. his deputy or 3. other proper court office or 4. for justifiable reasons any suitable person authorized by the court issuing the summons. WHEN SHOULD SUMMON BE SERVED? - at any time of the day or night at any day. CONTENTS OF THE SUMMON: (Sec. 2, Rule 14) 1. the name of the court and the names of the parties to the action. 2. a direction that the defendant answer within the time by these rules. 3. a notice that unless the defendant so answers, plaintiffs will take judgement by default & may be granted the relief applied for. ** a copy of the complaint & order for appointment of guardian ad litem, if any, shall be attached to the original & each copy of the summons. MODES OF SERVICE OF SUMMONS: 1. Personal/ Service on the person of the defendant(Sec. 6, Rule 14) - delivering/handling it personally to the defendant. * should defendant refuse to accept the summons, the sheriff should tender the same to the defendant. How? - by making a motion to give it to him. 2. Substituted Service of Summons(Sec. 7, Rule 14) - How?1. by leaving copies of the summons at the defendants residence with some person of suitable age & discretion then residing herein. ** Suitable age and Discretion - means they understand the legal implications of the summons. 2. By leaving the copies at defendants office or regular place place of business with some competent person in charge thereof. *** The sheriffs effort to personally serve the summons must be stated. *** The summons was served upon defendants uncle who is only on a 3-day visit. Is the service of summons valid? - |No. the summons was served upon a visitor, who although of sufficient
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age & discretion, cannot be considered as residing at defendants residence. Consequently, the court never acquired jurisdiction over the person of the defendant. ANY PROCEEDINGS TAKEN IF SERVICE OF SUMMONS IS IMPROPER IS NULL & VOID. *** Summons was served upon defendants wife. W/o the latters knowledge, defendant was already dead the day before such summons was served. Defendant was declared in default & a judgement was rendered. Can the wife petition to set aside the judgement? - Yes, upon the ground that the court never acquired jurisdiction over the person of the defendant and therefore, the judgement rendered is null & void. It is true that the service upon Ms wife was a valid service of summons. However, when the summons was served upon Ds wife, the defendant, having died the day before, had no longer any legal personality; in legal contemplation, there was no longer a defendant in the action. 3 Constructive service of summons (sec 14, rule 14) -summons is served by publication -must always be with leave of court -when is it allowed? 1 if defendant is a resident of the Philippines -in any action except those which are purely personal. 2 if defendant is a resident of the Philippines but is temporarily out of the country. 3 if defendant is unknown 4 if defendant is known but his whereabouts are unknown. -Publication should be in a newspaper with general circulation, once a week for three(3) consecutive weeks. -Court determines the place and time of publication. -Defendant has 60 days to file an answer from the date of the last publication. 4.EXTRA-TERRITORIAL SERVICE OF SUMMONS(SEC15,RULE14) -defendant is a non-resident of the Philippines. -must be always with leave of courtmade by motion in writing,supported by affidavit of the plaintiff or some person on his behalf,setting forth the grounds for application

-actions where extraterritorial service of summons are allowed: a) actions which affect the personal status of the plaintiff i.e.marriage b) actions relating to properties of the defendant both real and personal found here in the Philippines. c) Axns in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein. 1.e. cancellation of tax declaration. d) Property of the defendant has been attached with in the Philippines. ** HOW IS EXTRATERRITORIAL SERVICE OF SUMMONS DONE? 1. PERSONAL SERVICE - actually going abroad and serving the summons upon the person of the defendant. 2. BY PUBLICATION - In a newspaper of general circulation. - A copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant. *** Extra-territorial service of summon is only available in axns in rem and quasi-rem. That is, for as long as the court has jurisdiction over the res. *** Publication is solely for the purpose of complying with the requirement of due process. What is important is that the court has jurisdiction over the res. *** Effect of improper service of summons or lack of summons: - all subsequent proceedings are null and void. Is the effect curable? yes, if defendant, despite said defect, voluntarily appears and file his answers. (Sec. 20, Rule 14). ** The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance. ( Sec. 20, Rule 14). * In the case of a corporation, partnership or association organized under the laws of the Philippines, who are authorized to receive summons? (Sec. 11, Rule 14).
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1. 2. 3. 4. 5. 6. President Managing partner General manager Corporate secretary Treasurer In-house counsel

SERVICE UPON ENTITY WITHOUT JURIDICAL PERSONALITY (Sec. 8, Rule 14) - Service may be effected upon all the defendants by serving upon any one of them or upon the person in charge of the office or place of business maintained in such name. *** However, service shall not bind a person whose connection with the entity has, upon due notice, been served before the action was brought. SERVICE UPON PRISONERS (Sec. 9, Rule 14) - Service shall be effected upon him by the officer having the management of such jail or institution who is deputized as a special sheriff for said purpose. SERVICE UPON MINORS AND INCOMPETENTS (Sec. 10, Rule 14) - Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. *** Minor Service may also be made on his father or mother. (Sec. 12, Rule 14) SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY - Said foreign private juridical entity transacted business in the Philippines. - Service may be made on its resident agent designated in accordance with law for that purpose. - If there be no such agent, on the government official designated by law to that effect, OR - On any of its officers or agents with in the Philippines. SERVICE UPON PUBLIC CORPORATIONS (Sec. 13, Rule 14) - When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General. - When the defendant is a province, city or municipality, or like public corporations, service may be effected on its executive head or on such other officer/s as the law or the court may direct.
PROOF OF SERVICE OF SUMMONS (Sec. 18, Rule 14) - Shall be made in writing by the server and shall: 1. set forth the manner, place and date of service 2. specify any papers which have been served with the process and the name of the person who received the same 3. be sworn to when made by a person other than a sheriff or his deputy. PROOF OF SERVICE BY PUBLICATION (Sec. 19, Rule 14) 1. Affidavit of the printer, his foreman or principal clerk or of the editor, business or advertising manager to which affidavit a copy of the publication shall be attached. 2. Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. RULE 15 MOTIONS MOTION -
is an application for relief other than by a pleading.
OMNIBUS MOTION - is one that contains any and all available grounds sufficient to sustain an ordinary motion and directed to attack a particular pleading or pleadings. - The rule provides that such grounds as are available to the pleader at the time of filing the motion but which are not alleged therein, are DEEMED WAIVED, except the following: Lack of jurisdiction of the court over the subject matter Over the person of the defendant Over the nature of the action That the complaint does not state a cause of action. KINDS OF MOTIONS: 1. NON-LITIGATED/ EX-PARTE - need not a notification to the adverse party. - Include those which do not prejudice the rights of the adverse party. i.e. motion for postponement of hearing
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motion to subpoena witnesses motion for TRO which is good for 72 hours. 2. LITIGATED MOTIONS - Requisites: a. NOTICE OF HEARING (Sec. 5, Rule 15) - should be addressed to the adverse party/counsel. - should contain the DATE & TIME of the hearing, which should be set by the movant & not by the court(Sec 4, Rule 15) - such date & time of hearing must not be later than ten(10) days after the filing of the motion. b. 3-DAY NOTICE RULE(Sec. 4, Rule 15) - the adverse party shall be served the motion & notice of hearing at least 3 days before the date of hearing. Purpose of the 3-day notice rule: - to apprise the other party of the dame & to prevent surprise. * Compliance with the 2 rules can be shown by proof with service(personally or thru registered mail) * Effect of non-Compliance? - the motion is pro-forma, thus, a mere scrap of paper. Thus, this will not toll the running of the reglementary period. PROOF OF SERVICE(Sec. 6, Rule 15) - No written motion set for hearing shall be acted upon by the court w/o proof with service thereof. MOTION DAY(Sec. 7, Rule 15) - Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a nonworking diy, in the afternoon of the next working day.

this arises when the defendant has not at all been served the summons or he may be the improperly served the summons, which defect however can be cured by his voluntary appearance through his filing of an answer(Sec. 20, Rule 14) - this also arises when no service with counterclaim or cross-claim is done. 2. Lack of jurisdiction over the subject matter of the claim - determined in the allegation of the complaint. - This ground is NON-WAIVABLE. it can be raised at any time of the proceedings except if the party is stopped. * Even without a motion to dismiss having been filed by the defendant, the court, in its discretion, may motu proprio dismiss for want of jurisdiction. 3. Improper Venue - must be raised at the first instance. *** The laying of venue is procedural rather then substantive, relating as it does to jurisdiction of the court over the person rather than the subject matter. Venue relates to trial & not to jurisdiction. Sec. 1 of Rule 16 provides that objections to improper venue must be made in a motion to dismiss before any responsive pleading is filed. Consequently, having already submitted his person to the jurisdiction of the trial court, petitioner may no longer object to the venue, which, although mandatory in the instant case, is nevertheless waivable. As such, improper venue must be reasonably raised, otherwise, it may be deemed waived. On the present case, sets objection to the venue of the case was raised for the first time in the answer itself. Not having been raised on time, their objection is thus deemed waived. (FERNENDEZ vs. INTL CORP BANK et. al, Oct. 7,1999) 4. Lack of legal capacity to sue when plaintiff does not have the full exercise of his civil rights. Either he is suffering from a disability- that isinsanity, minority or civil interdiction imposed in criminal cases as an additional penalty. *** if a case is filed by an agent, he may not have the legal capacity to sue when he doesnt possess the representation/authority that he claims.
RULE 16 MOTION TO DISMISS - filed by the defendant - filed when? - within 15 days from the receipt of summons(Sec. 1, Rule 11) - a litigated motion(this needs notice of hearing, 3-day notice, proof of service) GROUNDS FOR A MOTION TO DISMISS 1. Lack of jurisdiction over the person of the defendant
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*** a foreign corporation has legal capacity to sue when: 1. it possesses a certificate of registration & is licensed to engage in business within the Phil. 2. if not engaged in business in the Phil., it should allege that it is suing in an ISOLATED TRANSACTION. *** instate estate of decedent the heirs can petition for the letters of administration but must first allege their relation to the decedent. A creditor can also do so, but his being a creditor of such decedent must be clearly alleged. The plaintiff is not in the exercise of his civil rights or does not have the necessary qualification to appear in the case or does not have the character or representation he claims.
The fact that petitioners are admittedly copyright owners or owners of exclusive distribution rights in the Philippines of motion pictures or films does not convert such ownership into an indicium of doing business which would require them to obtain a license before they can sue upon a cause of action in local courts. Neither the appointment of an attorney-in-fact of pet. tantamount to doing business in the Phil. As a general rule, a foreign corporation will not be regarded as doing business in the state simply because it enters into contracts with residents of the state where such contracts are consummated outside the state A corporation whose legal rights have been violated is undeniably such if not the only real property in interest to a being a suit thereon, although for failure to comply with the licensing requirement, it is not capacitated to maintain any suit before courts. CHAVEZ VS. PCGG (299 SCRA 744) The instant petition is anchored on the right of the people to information and access to official records, documents and papersa right guaranteed by the constitution. Petitioner, a former solicitor-general, is a Filipino citizen. Because of the satisfaction of the 2 basic requisites laid down by decisional law, sustains pets legal standing i.e. 1) The enforcement of a public right 2) espoused by a Filipino citizen, we rule that the pet. at bar should be allowed. TANKIKO VS. CEZAR Respondents are not the real parties in interest. Because they admit that they are not the owners of the land but mere applicants for sales patent therein, it is daylight clear that the land is public in character and that it should revert to the state. This being the case, sec.101 of the public land act categorically declares that only the govt may institute an action to recover ownership with a public land.
LACK OF CAPACITY TO SUE -general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualification with a party. LACK OF PERSONALITY TO SUE - plaintiff is not the real party in interest hence, grounded on failure to state a cause of action. ***People pretending to be corporations? -no juridical personality, thus ,lack the legal capacity to sue. -This ground is waivable, thus , must be raised at the first instance. *** COLUMBIA PICTURES VS. CA There is no showing that under our statutory or case law, petitioners are doing, transacting, engaging in or carrying on business in the Philippines as would require obtention of license before they can seek redress from our courts. No evidence has been offered to show that petitioners have performed any acts indicative of an intention to conduct or transact business in the Philippine and therefore, do not need a license in order to take recourse to our courts.
RULE 30
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TRIAL Section 1. What is trial? Trial is an examination before a competent tribunal of the facts or law put to issue in a case, for the purpose of determining the issue. (Ballentines Law Dictionary, 2nd Ed.,) Trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments. RULE: When an issue exists trial is necessary. Decision should not be made without trial. EXCEPTION: When there may be judgment without trial. 1. Judgment on the pleading (Rule 34) 2. Summary Judgment (Rule 35) 3. Judgment on Compromise 4. Judgment by Confession 5. Dismissal with prejudice (Rule 17) What is the justification for the law providing for an order of trial? It is designed for orderly procedure, which must be followed if injurious surprises and annoying delays in the administration of justice are to be avoided. Evidence cannot be piecemeal. (Dir. Of Lands vs. Archbishop of Manila, 41 Phil. 120). State the effect if there is an agreed statement of facts by the parties. If the parties agree, in writing, on the facts involved in the action, they may then ask the court to render judgment thereon without the introduction of evidence. If the agreement of facts is partial, trial shall be held as to others. (Section 2) Section 5. Order of trial in civil actions. The rules of Court provide that unless otherwise ordered by the court and subject to provisions on separate trial, the order of trial of civil actions is follows: a. The plaintiff shall adduce evidence in support of his complaint b. The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and thirdparty complaint; c. The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and third-party complaint; d. The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; e. The parties against whom any counterclaim or cross-claim has been pleaded shall adduce evidence

in support of their defense, in the order to be prescribed by the court; f. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in furtherance of justice, permits them to adduce evidence upon their original case; and g. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue of to submit their respective memoranda or any further proceedings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. Section 6. Agreed Statement of Facts Judgment may be rendered based on stipulation of facts. If agreement is only on some facts, trial shall be held as to the others. Judge to Receive Evidence: General Rule: Judge shall personally receive evidence of the parties. Exception: In a) default; or b) Ex parte hearing; and c) In any case where the parties agree in writing. The court may delegate the reception of evidence to its Clerk of Court who is a member of the bar. RULE 31 CONSOLIDATION OF SEVERANCE What are the modes of consolidating actions? The modes are: a) Recasting the case already instituted, conducting only one hearing and rendering only one decision; b) Consolidating existing cases, conducting only one hearing and rendering only one decision; and c) Without recasting or consolidating the case, the principal case is heard and the hearing of the others is suspended until judgment has been rendered in the first case. (Salazar v. CFI of Laguna, 64 Phil. 785). Section 1. Consolidation is proper when? a) When two or more actions involve the same or a common question of law or facts; and
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b) The said actions are pending before the same court. (PAL v. Teodoro, 97 Phil. 461) Within what period should actions be consolidated? There is no period because it can be done even for the first time on appeal. (Sideco V. Paredes, 74 Phil. 6) Section 2. Separate Trials. Under what circumstances may the court order a separate trial of any claim? The court may order separate trial of any claim or issue in furtherance or convenience or to avoid prejudice.

transcript, if any, of the evidence presented before him. (Sec. 9, Rule 32) Section 10. May a party object to the commissioners report? Yes. Under the rules, within ten (10) days from notice of the filing of the report of the commissioner, the parties may file their objections to the report. Objections based on grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (sec. 10, Rule 32). Section 11. What is the extent of the effect of the commissioners report upon the court? Is the rule absolute? Why? The commissioners report is not binding upon the court which is free to adopt, modify or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions. (Baltazar vs. Limpin, 49 Phil. 39; Sec. 11, Rule 32) RULE 33 DEMURRER TO EVIDENCE What is meant by demurrer to evidence? Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case on the ground of insufficiency of evidence. (Ballentines Law Dictionary, 2nd ed., p.358). What may demurrer to evidence be filed? It may be filed after the plaintiff has completed the presentation of his evidence. Give the effects of the filing of demurrer to evidence. The effects are: 1. The defendant does not waive his right to offer evidence in the event his motion is denied. (Sec. 1, Rule 33); 2. If the motion is granted and the order of dismissal is reversed upon appeal, the movant loses the right to present the evidence on his behalf. (Sec.1). 3. In case of reversal, the appellate court shall render judgment for the plaintiff based on the evidence alone. (Atun vs. Nuez, 97 Phil. 762; Siayngco vs. Costibato, Feb.28,1969). Give the effects of the filing of demurrer to evidence in criminal cases. If the court denies the motion to dismiss, the accused may adduce evidence in
RULE 32 TRIAL BY COMMISSIONER Trial by commissioner. 1. When there is references to a commissioner by consent of the persons (Sec.1) a) Issues to be tried: any one or all issues in the case. 2. When there is reference on motion of one party or upon courts own motion. (Sec.2) Issues to be tried: 1) issue of fact, requiring examination of long accounts; or 2) when taking of an account is necessary; 3) when a question of fact arises upon a motion(known as evidence on motion) Section 3. Powers of the commissioner Subject to the restrictions contained in the court order appointing him, the commissioner: 1. can regulate the proceedings before him; 2. can issue subpoena and subpoena duces tecum; 3. can swear witnesses; and 4. Generally, he may rule on admissibility of evidence and rule on objections. Section 9. Within what time shall the commissioner file his report? Upon completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order or reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach in his report all exhibits, affidavits, depositions, papers and the
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his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence of the prosecution (Rule 119, Sec. 15). What is the basic purpose of demurrer to evidence? It is an aid or instrument for the expeditious termination of an action similar to a motion to dismiss, which the court or tribunal may either grant or deny. (Nepomuceno vs. Comelec, 126 SCRA 472). RULE 34 JUDGMENT ON THE PLEADINGS SECTION 1. A. GROUNDS 1. Answer fails to tender an issue because of: a.) general denial of the material allegations of the complaint; b.) insufficient denial of the material allegations of the complaint; or 2. Answer admits material allegations of the complaint. B. PROCEDURE 1. Motion by Plaintiff. a.) no supporting papers are required because everything is based on the pleadings; b.) If denied, case will proceed to pre-trial and trial. 2. Judgment on the Pleading a.) By moving for judgment on the pleading, plaintiff waives his claim for unliquidated damages. Claim for such damages must be alleged and proved. 3. Appeal from Judgment a.) On pure question of law, hence, the appeal is by Certiorari to the Supreme Court under Rule 45. (Rule 40, Sec. 9; Rule 41, Sec. 2). Give the effects of a motion for judgment on the pleadings. Some effects are: 1. If one party prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence, he is understood to admit the truth of all the material allegations of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings. (Evangelista vs. De la Rosa, Phil. 115);

2. The movant for judgment on the pleadings must be considered to have waived or renounced his claim for damages and to have consented to such judgment as is warranted by the material allegations of his complaint that are admitted by the defendant. This is so because allegations as to the amount of damages are not deemed admitted even if not specifically denied. (Rili vs. Chunaco, 52 O.G. 1428). May there be judgment on the pleadings in cases of annulment of marriage or legal separation? No, because in actions for annulment of marriage or legal separation, the material allegations in the complaint must be proved. (Sec. 1). Are there distinctions between judgment on the pleadings and summary judgment? Yes. 1. In judgment on the pleadings, the answer does not tender an issue; in summary judgment, there is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right; 2. In judgment on the pleadings, the movant must give a 3-day notice of hearing; while in summary judgment, the opposing party is given 10 days notice; 3. In judgment on the pleadings, the entire case may be terminated; while in summary judgment, it may only be partial; 4. In judgment on the pleadings, only the plaintiff or the defendant as far as the counterclaim, cross-claim or thirdparty complaint is concerned can file the same; while in summary judgment, either the plaintiff or the defendant may file it. Are there distinctions between judgment by default and judgment on the pleadings? Yes, they are the following: 1. In judgment by default, the defendant did not file an answer; while in judgment on the pleadings, the defendant answered, but the answer did not tender an issue or admitted the material allegations in the complaint; 2. In judgment by default, evidence is received; in judgment on the pleadings, evidence is not received as the same is based on the pleadings alone; 3. In judgment on the pleadings, the decision is based on the allegations in the pleadings; in judgment by default, the decision is based on the evidence presented.
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In cases governed by the Rules on Summary Procedure, what motion should be filed if the defendant does not file an answer? The plaintiff should file a motion to render judgment as may be warranted by the allegations in the complaint and the annexes thereto, and not a motion for judgment on the pleadings. The reasons for the rule are: (1) the said motion for judgment on the pleadings is prohibited under the Rules on Summary Procedure; (2) a motion for judgment on the pleadings presupposes that an answer has been filed. RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT --- one granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists NO genuine issue or controversy as to any material fact. When may a claimant file a motion for summary judgment? A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits for a summary judgment in his favor upon or on all party thereof. (Sec.1, Rule 35). When may a defendant file a motion for a summary judgment and what should he do? A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits for a summary judgment in his favor as to all or any party thereof. (Sec. 2). State the time when a motion for summary judgment shall be heard and the procedure upon its filing. The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, depositions on file together with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Sec.3). What is meant by genuine issue? It means an issue of facts which call for the presentation of evidence as distinguished from an issue which is fictitious, contrived and set up in bad faith and patently unsubstantial so as not to constitute a genuine issue for trial. The court can determine this on the basis of the pleadings, and admissions, documents,

affidavits and/or counter-affidavits of the parties. Where the facts pleaded by the parties are disputed and contested, proceedings for a summary judgment cannot take the place of a trial. (Paz vs. CA, 181 SCRA 26, 1990). PROCEDURE 1. Filing of motion for summary judgment a.) Who can file Plaintiff: he must wait for the answer to be filed and served, and thus for the issue to be joined, before he can move for summary judgment (Sec. 1 for claimant [plaintiff, counter-plaintiff, cross-plaintiff, third party plaintiff]). Defendant: he can move for summary judgment at anytime, that is anytime after the filing and service of the complaint even before he answers. (Sec.2 . . .for defending party[defendant, counter-defendant, cross-defendant, third-party defendant]) b) Supporting Affidavit The motion must be supported by 10 affidavits, 20 depositions of the adverse party or a third party, or 3) admissions of the adverse party, all intended to show that: 1) there is no genuine issue as to any material fact, except damages (unliquidated) which must always be proved, and 2) the movant is entitled to a judgment as a matter of law. 2. Service of Motion The motion, together with the supporting affidavits, must be served to the adverse party at least ten (10) days before the scheduled hearing which is important because the case is decided before actual trial. 3. Hearing The parties prove their respective motions and oppositions. Movant has the burden of showing absence of genuine issue. 4. Judgment If the motion is denied, trial on the merit proceeds. If granted, the court will make the summary judgment, but only in favor of the movant. a.) However, the court can not render judgment as to the amount of damages, and if there is any real issue as to the amount of damages, it may nevertheless proceed to assess the amount recoverable after rendering the (summary) judgment. (Jugador v. Vera, 94 Phil. 704 (1954); Warner, Barnes & Co. v. Luzon Surety Company, 95 Phil. 294).
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5. Appeal The summary judgment is a judgment on the merit, so that an appeal may be taken therefrom. (Rongo v. Abastillas, 74 Phil. 176). When is summary judgment proper? When it clearly appears after hearing the motion that there is NO genuine issue as to any material fact. When is summary judgment not proper? If there is doubt as to facts and factual issues; in which case there should be trial on the merit. When summary judgment will not lie? In cases of declaration of nullity of marriage or annulment of marriage or legal separation where default is also not allowed. (Sec. 3(e) of Rule 9).

Concept of Judgment The conclusion of law upon the matters contained in the records, or the application of the law to the pleadings and to the facts as they appear from the evidence in the case, and as found by the court, admitted by the parties or as deemed to exist upon their default in a course of judicial proceedings. (30 Am. Jur. 821). It is the final consideration and determination of a court of competent jurisdiction upon matters submitted to it, in an action or proceeding. (Gotamco v. Razon, 46 Phil. 542). What constitutes rendition of judgment: It is the filing of such decision, judgment or order with clerk of court. (Ago v. CA 6 SCRA 530 (1962)). a.) Where the Order of dismissal of a criminal case dated October 1, 1965 but received by clerk of court for filing only on October 19, 1965 while the judge (who issued it) had qualified and assumed office in another court on October 12, 1965, the promulgation of the dismissal order is invalid. (People v. Soria, 22 SCRA 948). b.) Mere pronouncement of judgment in open court is not rendition of judgment. c.) While it has not been delivered to the Clerk of Court for filing, it is still subject to amendment or change by the judge. Signing or writing of judgments outside the territorial jurisdiction of the court where the cses are pending is allowed when the judge leaves the province (now region) by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary assignment. (People v. Soria, supra; Sec. 9, Rule 135 of the Rules of Court). This rule (Sec. 9, Rule 135) contemplates of a temporary occupancy by the judge of either the post he left or of the one he is going to assume. See also Detail of judge to another region in Sec. 17 of B.P. Blg. 129, which conveys the idea that the transfer or assignment of the judge treated therein is merely detail and not one of permanent character. Requisites of a valid decision a.) It must be rendered by a court legally organized or constituted. b.) By a judge legally appointed and actually acting either as de jure or de facto (Luna v. Rodriguez, 37 Phil. 186); c.) It must have been voluntarily rendered by the court.
RULE 36 JUDGMENT, FINAL ORDERS AND ENTRY THEREOF State the form of final order determining the merits of a case. A final order determining the merits of the case shall be in writing, personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him and filed with the clerk of court. (Sec. 1). What constitutes the rendition of a judgment? The filing of the decision, judgment or final order with the Clerk of Court, not the signing of the same, constitutes the rendition or promulgation of the judgment. (Castro vs. Malazo, 99 SCRA 164). What is a judgment? It is the final consideration and determination by a court of the rights of the parties as those rights which presently exist, upon matters submitted in an action or proceeding. (Gotamco vs. Chan Seng, 46 Phil. 542). State the essential requisites of a valid judgment. They are: 1. The court must have jurisdiction over the subject matter; 2. The court must have jurisdiction over the person of the defendant, or of the res; 3. The court must have jurisdiction over the issues; 4. The court must render the judgment after the hearing.
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Remedy against void judgment: May be impugned at any time either directly or collaterally by means of a petition filed in the same case or by means of a separate action or by resisting such judgment wherein it is involved. (Lam v. Rosiliosa, 86 Phil. 447; see People v. Pareja, 189 SCRA 143, infra). a.) Rule 47 Annulment of Judgments or Final Orders and Resolutions (of the RTC and the MTC). Reason for giving finality to judgment: Public policy and sound practice demand that, at the risk of occasional error, judgment should become final at some definite date fixed by the law. This is to put an end to controversies. (Albert v. CFI of Manila, supra). When judgment becomes final: If no appeal or motion for new trial or reconsideration has been filed within the time provided in the Rules. Entry of Judgments and Final Orders (Sec. 2) x x x shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. a.) How about the time-honored rule that a judgment becomes final upon the expiration of the period to appeal therefrom if no appeal has been perfected? A judgment from which a party can no longer appeal is already final even if this judgment has not yet been entered in the book of entries of judgment. RULE 37 NEW TRIAL OR RECONSIDERATION What are the grounds for new trial? The following are the grounds for new trial: a.) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; b.) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result; c.) Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the

decision is against the law. (Sec. 1, Rule 37). State the grounds for a motion for reconsideration. An aggrieved party may move for reconsideration on the following grounds: 1.) the damages awarded are excessive; 2.) the evidence is insufficient to justify the decision or final order; 3.) the decision or final order is contrary to law. (Sec. 1). Within what period should a motion for new trial be filed? A motion for new trial should be filed within the period for taking an appeal. (Sec. 1). Hence, it must be filed before the finality of the judgment. (Velasco vs. Ortiz, 184 SCRA 303). In Distilleria Limtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal. State the basic purposes for the granting of a motion for new trial. A motion for new trial is intended to give the court an opportunity to re-examine the issues of fact as the errors may be brought before it and to enable the court to correct such errors. Are there distinctions between a motion to reopen a case from that of a motion for new trial? Yes, as shown by the grounds relied upon. 1. A motion to reopen is available after either or both parties have rested their case but before judgment. A motion for new trial is proper after the rendition of a judgment. 2. A motion to reopen is not governed by the Rules; while a motion for reconsideration is recognized by the Rules. (Alegre vs. Reyes, 161 SCRA 226 (1988)). Is there any distinction between a Motion for New Trial from that of a Petition for Relief from Judgment? Yes. While the grounds of fraud, accident mistake, or excusable negligence (FAME) are substantially similar in both motion for new trial and petition for relief, yet the difference is that, a motion for new trial is filed before the order or judgment becomes final, while a petition for relief should be filed after the finality of the judgment or order, but within the so-called 60-day, 6 months period. (Clorox Co. vs. Director of Patents, 20 SCRA 965). What kind of fraud may warrant a motion for new trial?
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It must be an extrinsic fraud, something committed outside of the trial of the case, where the defeated party has been prevented form presenting fully his side of the case, by fraud or deception practiced on him by his opponent. (Macabingkil vs. PHHC, 72 SCRA 326). When is fraud intrinsic? Fraud is intrinsic when they constitute acts of a party in a litigation during the trial like the use of forged documents or perjured testimony, which did not affect the presentation of the case, but presented a fair and just determination of the case. (Dir. of Lands vs. CFI, 152 SCRA 487). When is there accident as a ground for new trial? When there is an actual surprise incident preventing one from attending the trial. In Sunico vs. Villapando, 14 Phil. 352, it was said that accident is a ground for hew trial where the party seeking it had exercised ordinary diligence to ascertain the facts which it is claimed to have surprised or prevented said party from presenting his case. Is abandonment by a lawyer a ground for new trial on the ground of accident? Yes, because the act prevented the client from presenting evidence. When is mistake a ground for new trial? It must be some unintentional act, omission, or error arising from ignorance, surprise, imposition or misplaced confidence. It is the result of ignorance of law or fact that has misled a person to commit that which, if he had not been in error, he could not have done it. (Blacks Law Dictionary, 5th Ed., p. 903). What kind of mistake constitutes a ground for new trial? Why? It must be a mistake of fact and not of law. Everyone is presumed to know the law. An example is where the losing party did not appeal within the reglementary period. This is not an excusable mistake because everyone is presumed to know the law. Ignorance of the law excuses no one. When is there excusable neglect? When there is failure to take the proper steps at the proper time, not in consequence of a partys own carelessness, inattention, or willfull disregard of the process or the unavoidable hindrance on the care and vigilance of his counsel or on promises made by the adverse party. (Blacks Law Dictionary, 5th Ed., p. 508).

Is the client bound by the negligence of his lawyer? Why? As a rule, yes. Clients are bound by the mistakes or omissions of their lawyers. In Villa Rhecar Bus vs. de la Cruz, 157 SCRA 13, the Supreme Court said that for the inexcusable negligence or mistakes of his counsel, his client has to bear the adverse consequences. The reason for the rule is that there would be no end to litigation if the negligence of the old lawyer can be invoked as a ground for new trial. (Tupas vs. CA, 193 SCRA 597 (1991). What requirements must be met in order that newly discovered evidence may be a ground for new trial? They are: 1. The evidence was discovered after the trial; 2. The evidence could not have been discovered and produced during the trial even with the exercise of reasonable diligence; 3. The evidence is material and not merely corroborative, cumulative or impeaching and is of such weight that if admitted, would probably alter the result. (Dapin vs. Dionaldo, 209 SCRA 38 (1992); Bernardo vs. CA, 216 SCRA 224 (1992)). What is the rule if the newly discovered evidence is a witness? He should submit an affidavit on what he would testify to if allowed and the court may decided on the materiality of the same. The movant should produce the evidence. There must be an affidavit showing what he would testify to, if a new trial were held, and indicating that the result then would probably be otherwise. (Dy Pac & Co. vs. CIR, 5 SCRA 892). What are the grounds for motion for reconsideration? They are: 1. excessive damages; 2. judgment is based on insufficient evidence; 3. there is error of law. What is the remedy if the motion for reconsideration is denied? The party aggrieved should appeal. This is so because a second motion for reconsideration is expressly prohibited under the Interim Rules. (Sec. 5). What is an affidavit of merits? Affidavit of merits is one which recites the nature and character of the fraud, accident, mistake or excusable neglect on
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which the motion is based and movants good and substantial cause of action or defense and the evidence he intends to present if the motion is granted. The evidence must be of such nature as to warrant reasonable belief that the result of the case would probably be otherwise, if a new trial is granted. (PCIB vs. Ortiz, 150 SCRA 380). Requisites for newly-discovered evidence: a) Must have been discovered after trial b) Could not have been discovered and produced at the trial c) If presented, would alter the result of the action Otherwise it is called forgotten evidence Section 2. Contents of motion for new trial or reconsideration and notice thereof A motion suspends or tolls the running of the reglementary period of appeal except when the same is pro-forma. PRO-FORMA MOTION-when it does not comply with Rule 15 and Rule 37, e.q it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is merely intended to such findings or conclusions, and is merely intended to delay the proceedings or if there is no affidavit of merit. Section 6. Effect of granting of motion for new trial. When motion is granted, the original judgment is thereby vacated and the action stands for trial de novo, but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial taking the same. RULE 38 RELIEF FROM JUDGEMENTS, ORDERS, OR OTHER PROCEEDINGS MODES OF ATTECKING FINAL AND EXECUTORY JUDGEMENTS: 1) By petition for relief from judgment under rule38, when judgment has been taken against the party through fraud, accident, mistake or excusable negligence. 2) By direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment, but is entirely regular in form; 3) By direct action, as certiorari, or by a collateral attack against the challenged

judgment which is void upon its face, or that the nullity of the judgment is apparent from its own recitals. NEW TRIAL/RECONSIDERA TION Must be filed within the appeal period. Judgment not yet final RELIEF FROM JUDGMENT Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered More on equality FAME only Relief from judgment/order on other proceeding
A legal right FAME + Newly discovered evidence Judgment on final order
TWO HEARINGS: a) Hearing to determine whether judgment be set aside b) If yes, a hearing on the merits of the case The period fixed by Rule 38 is non-extendible and is never interrupted. RULE 40 APPEALS AND PROCEDURE
REVIEW
APPELLATE
1. General Principles Governing Appeals 1.1. Appeal in not a constitutional nor an inherent right. It is merely a statutory privilege which, if allowed, must be exercised strictly in the manner and in accordance with the provisions of the law granting the right. 1.2.0nly a party in interest, who may be aggrieved or prejudiced by a judgment or order, can appeal. 1.3, A direct resort to the Supreme Court is not permitted where the aggrieved party has remedies elsewhere, particularly in the lower courts, which share with the Supreme Court some of the jurisdiction to issue extra-ordinary writs, except where exceptional and compelling circumstances justify such a direct resort. In other words, a party must ascent the hierarchical ladder in prosecuting an appeal. II Appellate Jurisdiction 1. APPELLATE JURISDICTION
OF
THE
REGIONAL TRIAL COURT IN CIVIL CASES
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Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictionsa. Time to Appeal - Within frfteen(15) days from notice to the appellant of the judgment or order appealed from. When a record on appeal is required, within thirty (30) days from such notice. (Sec. 2, Rule 40). Aside from appeals in special proceedings and Judgments on separate claims, a record on appeal is required: (1) In an appeal from an order of expropriation in an action of eminent domain (Rule 67,Sec.4); (2)In an appeal from an order of partition in an action of partition(Rule 69,Sec.2); (3) In a judgment for recovery of property with accounting (Miranda vs. CA, 71 SCRA 295;De Guzman vs CA, 74 SCRA 222). Such period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Upon receipt by movant of the court order denying the motion for reconsiderationor new trial, the interrupted time for appeal begins to run again (Carbonel vs. Padilla, 75 Phil. 950) b. How to Appeal - (a) By filing a notice of appeal with court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed therefrom, and state the material dates showing the timeliness of the appeal. In special proceedings and in other cases of multiple appeal or separate appeals, a record on appeal shall be required. Copies o the notice of appeal, and the record on appeal when required, shall be served on the adverse party; and (b) within the period for taking an appeal, by paying the appellate docket fee and other lawful fees to the clerk of court of the trial court. (Sees. 3 & 5, Rule 40). Nonpayment of appellate court docket and other lawful fees within the reglementary period to appeal is ground for dismissal of the appeal. (A.M. No, 00-2-10 SC, effective May 1,2000) e. When appeal is deemed perfected. A party's appeal by notice of appeal is deemed perfected as to him upon the filing of a notice of appeal in due time. If a record on appeal is required, such appeal shall be deemed perfected as to him upon approval of the record on appeal filed in due timed. Effect of perfection of appeal - (a) Insofar as the appellant is concerned, the appeal is deemed perfected upon his filing of his notice of appeal in due time. (b) Insofar as the other parties are concerned, the appeal is deemend perfected only upon

the expiration of their respective periods to appeal. When a record on appeal is required, the appeal is deemend perfected upn the approval of the record of appeal of the appellant- With respect to the other parties, the appeal shiall be deemed perfected only upon the expiration of their respective periods of appeal. e. Duty of the Clerk of Court of thelower court upon the perfcrion of appeal Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court, shall transmit the original record or the record on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the f. Procedure in the Regional Trial - Upon receipt of the complete records or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact; (b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fiftee (15) days from receipt of the appellant's memorandum, the appellee may file his memorandum. Failure on the appellant to file a memorandum shall be a ground for dismissal of the appeal- (c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed. APPELLATE JURISDICTION OF THE REGIONAL TRIAL COURT IN CRIMINAL CASES: The Regional Trial Court shall have appellate jurisdiction over all criminal cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdiction. The appeal is perfected by the mere filing of the accused of a notice of appeal with the court that tried and decided the case within fifteen (15) days from the promulgation of the decision. Such appealed cases are to be decided on the basis of the entire record of the case had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court. APPELLATE JURISDICTION OF THE COURT OF APPEALS IN CIVIL CASES The Court of Appeals shall exercise: (1) Original jurisdiction to issue writs of
36
mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appelate jurisdiction; (2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, order or awards of Regional Trial Courts, and quasijudicial agencies, instrumentalities, boards or commissions, including the Securities and Excange Commission, the Social Security Commission, the Employees Compensation Commission, and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling sithin its original appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings of the Court of Appeals must be continuous and must be completed within three (3) months, unless extended by the Chief Justice. (R.A. 7902 amending B.P. 129, approved February 23,1995). Under Revised administrative Circular No. 1-95 of the Supre Court, issued on May 16,1995, appeals from judgments or final orders of the Court of Tax Appeals, and of other quasijudicial agencies in the exercise of their quasijudicial functions, other than those mentioned in R.A. 7902, i.e. the Central Board of Assessment Appeals, the Land Registraiotn Authority, Social Security Commission, Office of the President, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energygmatory Board shall be taken to the Court of appeals by way of petition for review (Rule 43). In Saint Martin Funeral Homes vs. NLRC, appeals rom dicisions of the NLRC should be taken to the Court of Appeals ,by way of petition for certiorari may be filed not later than sixty(60) days from notice of judgment or resolution sought to be assailed. However, with respect to decisions rendered by the Ombudsman in administrative disciplinary cases filed before it, while the appeal is also to be taken to the Court of Appeals, the procedure in the appeal shall be governed, not by Rule 65, but by Rule 43, and the period for such appeal is within fifteen days from notice of the judgment or the denial of petitioner's motion for reconsideratio , In Barata vs Abalos, Jr,. G.R. No- 14288, June 6,2001, it was held that when respondent is

absolved of the administrative charge by (he Ombudsman, such decision is final and unappealable, as there is no provision in the Ombudsman Law allowing an appeal from an exoneration. Hoewever, in appropriate cases involving oppressive and arbirary action, the complainant is not deprived of legal recourse by certiorari under Rule 65 of the Rules of Court, which apply suppletorily to the Rules of Procedure of the Ombudsman. MODES OF APPEAL TRIAL COURTS TO APPEALS FROM REGIONAL THE COURT OF
(A) Ordinary Appeal (Rule 41) - m cases decided by me Refional Trial Court in me exercise of the latter's original jurisdiction, the phrase " of a particular matter therein when declared by these Rules to be appealable" found in Section I of Rule 41 refers (a) to a decision in legal separtion where the conjugal partnership has still to be liquidated(Macadangdang vs. Court of Appeals, 108 SCRA 314); (b) Orders of expropriation (Sec. 4, Rule 67); (c) Appeals provided for in Rule 109). An order of execution is not appealable, except when such order varies the term of the judgment or if the same is ambiguous(Presco vs. CA 192 SCRA 232). The appeal should be taken within fifteen (15) days from notice of the judgment or final order appealed grom. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of judgment or final order. The appellant merely files a notice of appeal with Regional Trial Court which rendered the judgment and serves a copy therof upon the adverse party. No appeal may be taken from the following : (a) An order denying a motion for new trial or reconsideration; (b) an order denying a petition for relief from judgment or any similar motion seeking relief from judgment or any similar motion seeking relief from judgment; 9c) an interlocutory order; (d) an order disallowing or dismissing an appeal; (e) an order dnyiing a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake, or duress, or any other ground vitiating consent; (f) an order of execution; (g) a judgment or final order for or against oner or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) an order dismissing an action without prejudice. In die above instances where the judgment or final order is not appealable, die aggrieved party may Hie an appropriate special civil action under Rule 65 (Rule 41.Scc.D(B) Petition for Review (Rule 42)
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In cases decided by regional trial courts in the exercise of the latter's appellate jurisdiction. Aside from the docket and other lawful fees, the petittioner is now required to pay (he amount P5000.00 for costs. The petition shall be filed with the Court of Appeals within fifteen (15) days from notice of the dicision sought to be reviewed or of the denial of petitioner's motion for reconsiderationor new trial filed in due time after judgment, a copy of which petition for review must be furnished the regional trial court and the adverse party within the period to file the same- Ther is no need anymore to implead the lower courts or the judges thereof as petitioners or respondents. The petition shall be accompanied by a certification on non-forum shopping, to be signed by the plaintiff or any of the principal party, and not by the attorney. The petition shall be filed in seven legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specificationof errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgment or final orders of both lower courts, certified correct by the clerk of court of me regional Trial Court, the requisite number of plain copies therof and of the pleadings and other material portions of the record as would support the allegations of the petition. The petitioner shall also submit together with the petition a certificaiton under oath that he has not thertofore commenced any action involving the same issues in the Supre Court, the Court of Appeals or different division thereof, or any other tribunal or agency; if there is such action or proceeding, he must state the status of the same; and if he slould thereafter learned that a similar actionor proceeding has been filed or is pending befroe the Supreme Court, the Court of Appeals, or different divisions therof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. The certification against forum shopping must be signed by petitioner himself, and not by counse, unless the latter is closthed with a special power of attorney to do so. Hence- a certification against forum shopping by the counsel is a defective certification and shall be a valid cause for the dismissal of the petition. (Manila Pilots Association vs. Philippine Ports

Authority, G.R. No. 130150, Oct. 1.1998). In case of several petitioners, the certification executed by any of the principal parties would be sufficient. (Condo Suite Club Travel Inc.. vs. NLRC, G.R. No. 125671, Jan. 28,2000). With respect to corporations, the certification against forum shopping must be executed by a duly authorized director or officer of the corporation. (Digital Microwave Corporation vs. Court of Appeals, G.R. No. 128550, March 16,2000). Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shil be granted except for the most compelling reason and in no case to exceed fifteen (15) days. Upon receipt of the petition, the Court of Appeals may (a) dismiss it outright if it finds the same patently without merit, or filed manifestly for delay, or that the question raised therein are too unsubstantial to require consideration; (b) require respondent to comment thereon within ten (10) days from notice, after receipt of which comment, or upon the expiration of the period for the filing thereof, the Court of Appeals shall determine whether or not to give due course to the petition. If the petition for review is given due course, the Court of Appeals may order the elevatio of the records, if necessary. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within fifteen (15) days from notice. Thereafter, the case shall be deemed submitted for decision. Under Rules 42 and 43, appeals on pure questions of law in petitions fro review in the Court of Appeals are now allowed, as may be gleaned from Section 2 of Rule 42 which provides: "The specification or errors of fact or law, or both, allegedly committed by the regional trial court.-.." This follows the opinion expressed by Justice Teehankee in Torres vs. Yu,119 SCRA 42. Petition for Review from decisions of quasijudicial agencies (Rule 430) - The appeal shall be taken within fifteen (15) days from notice of the awardjudgments, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with governing law of the court or agency a quo. Only one motion fw reconsideration shall be allowed. Upon proper motion and the payment of the fall amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extention
38
shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. The petition for review shall (a) state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved and the grounds relied upon for me review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of the awardjudgment, final order or resolution appealed from. together with certified true copies of such material portions of the record referred to therein and other supporting papers; and (d) contain a sworn certification against forum shopping as provided in the last paragraph of Sec. 2, Rule 42. The petition shall state the specific material dates showing that it was filed within the period fixed herein. The failure of the petitioner to comply with any of the foregoing requirements regarding payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be a sufficient ground for the dismissal of the petition. The Court of Appeals may require the respondent to comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therin are too unsubstantial to require consideration. The comment of respondent shall (a) point out insufficiency or inaccuracies in petitioner's statement of facts and issues; and (b) state the reasons why the petition should be denied or dismissed- A copy thereof shall be served on petitioner and proof of service shall be filed with the Court of Appeals. Thereafter, the Court of Appeals may or may not give due course to the appeal . If the petition is given due course, the Court of Appeals may require the elevation of the records. The findings of the agencies concerned, when supported by SUBSTANTIAL EVIDENCE, shall be binding upon the Court of Appeals. Substantial evidence does not necessarily import preponderant evidence, as is required in ordinary civil acses, It is such evidence which affords a substantial basis from which the fact in issue may be resonably inferred (Rubberworld vs. NLRC, 175 SCRA 450) or as adequate to justify a conclusion (Remo Foods vs. NLRC; 249 SCRA 379; Filguera vs. Linsangan, 251 SCRA 264) Factual findings of quasi-judicial agencies which have acquired expertise because then jurisdiction is confined to specific matters are generally accorded by the Supreme Court not only respect but finality,

if supported by substantial evidence (Quinones vs. NLRC- 246 SCRA 294- The same principle applies to factual findings of the SEC (Villareal vs. Court of Appeals, 219 SCRA 239). If the original record or the record on appeal is not transmitted to the Court o f Appeals within thirty (30) days from the perfection of the appeal, either party roay file a motion with the lower court or agency concerned, with notice to the other, for the transmitlal of such record or record on appeal. The appeal may no longer be dismissed gor failure of the appellant to presecute his appeal. This ground for the dismissal of the appeal has been deleted groin Section l.Rule. In Fabian vs. Desierto. G.R. No. 129742, Sept 16, 1998, it was held tha tappeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken by way of petition for review to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure. While Section 12 of Rule 43 provides that "the appeal still not stay the awardjudgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as may be just" however, in Lapid vs. Court of Appeals, G.R. No. I4226!,June 29,2000, it was held that Section 12, Rule 43 of the Rules of Civil Procedure should be interpreted as mandating that the appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise. The ruling of the Supreme Court suggests that the determining rule on whether a decision of a quasi-judicial agency is immediately executory or not pending appeal, is the law under which said decision was rendered.
4. APPELLATE JURISDICTION OF COURT OF APPEALS IN CRIMINAL CASES
THE
1. How Appeal is taken - (a) By filing a notice of appeal within the reglemeotary period with the Regional Trial Court in cases decided by the latter in the exercise of its original jurisdiction; or (b) By filing a petition for review within the regtementary period with the Court of appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction. 2. Criminal Cases appealable to the Court of Appeals - All criminal cases, the penalty for which is below death or reclusion perpetua. For purposes of detenning which court has appellate jurisdiction, it is the maximum penalty, not the minimum, that is taken into account (Malacat vs. Court of Appeals, 283 SCRA 159)
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5. APPELLATE JURISDICTION OF THE SANDIGANBAYAN IN CRIMINAL CASES A. Appeals from decsions of the Regional Trial Court on public officials charged with criminal offenses intimately related to their office but who occupy government positions corresponding to salary grades lower than grade 27. B. An oftense is considered as committed in relation to the office "if the offense cannot exist without the office" or that "the office must be a constituent element of the crime as defined and punished by the law (Rep vs. Asuncion, 231 SCRA 211). The fact that the offense was committed in relation to the office must be alleged in the information, because of the unbending rule that jurisdiction is determined by the allegations in the information (Aguinaldo vs. Dumagas, G.R. No. 98452, En Bane Resolution, Sept 26,1991; People vs. Ocaya,83SCRA218) C. The mere allegation in the information that an offense was committed by an accused public officer iu relation to his office is not sufficient. That phrase is a mere conclusion of law, not a factual averment that would show close intimacy between the ofFense charged and the discharge of the accused's official duties. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discarge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office (Lacson vs. Executive Sec-, 301 SCRA 298) D. How appeal is taken - By filing a notice of appeal from decisions rendered by regional trial courts in the exercise of the latter's original jurisdiction, or by a petition for review in cases of decisions rendered by regional trial courts in the exercise of the latter's appellate jurisdiction. 6. APPELLATE JURISDICTION SUPREME COURT OF THE
perpetua or higher. e. All cases in which only an error or question of law is involved. 1. The Supreme Court is composed of the Chief Justice and fourteen Associate Justices and sits en bane or in divisions. At present, the Supreme Court has three divisions of five members. The composition of the divisions or their reorganization in membership is purely an internal matter which no party in a case may question (Limketkai Sons Milling Inc. vs. Court of Appeals, et al., 261 SCRA 464) 2. A decision or resolution of a division of the Supreme Court, when concurred in by a majority of the members who actually took part in the deliberations on the issues in a case and voted thereon, and in no case without the concurrence of at least three of such members, is a decision or resolution of the Supreme Court. When the required number is not obtained, the case shall be decided en bane. But no doctrine or principle of law laid down by the Supreme Court in a decision rendered en bane or in division may be modified or reversed except by me court sitting en bane. 3. The Supreme Court en bane is not an appellate tribunal to which appeals from divisions may be taken, for the judgment of the division are as authoritative and final as that of the Supre Court sitting en bane. Cases referred from a division to the en bane is not a matter of routine but only on specified grounds and in the discretion of the Supreme Court ( Ortigas and Company Limited Partnership vs. Judge Tirso Velasco, et al.,254 SCRA 234, Res, C.J-Narvasa) 4. Under Supreme Court Circular No. 2-89 dated February 7,1989, as amended by resolution of November 18,1993, the following are considered en bac cases: a. Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree,proclamation, order, instruction,ordinance,or regulation, is in question. b. Criminal cases in which the appealed decision imposes the death penahy; c. Cases raising novel questions of law; d. Cases affecting ambassadors, other public ministers and consuls; 5. Cases involving decisions,resolutions,or orders of the Civil Service Commission, Commission on Elections, Commission on Audit 6. The Supreme Court en bane is not an appellate tribunal to which appeals from divisions may be taken, for the judgment of the division are as authoritative and final as that of the Supre Court sitting en bane. Cases referred from a division to the en bane is not a matter of routine but only on specified grounds and in the discretion of the Supreme Court ( Ortigas and Company Limited
To review, revise modify, or affirm oa appeal or certiorari, as the law and the Rules of Court may provide final judgments and orders of lower courts in : a. All cases in which the constitutionality or validity of any treaty. international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation hereto. c. All cases in which the jurisdiction of any lower court is in issue. d. All criminal cases in which the penalty imposed is reclusion
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Partnership vs. Judge Tirso Velasco, et al.,254 SCRA 234, Res, C,J. Narvasa) 7. Under Supreme Court Circular No. 2-89 dated February 7,1989, as amended by resolution of November 18,193, the following are considered en bac cases: e. Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proctaroation, older, instruction, ordinance or regulation, is in question. f. Criminal cases in which the appealed decision imposes the death penalty, g. Cases raising novel questions of taw; h. Cases affecting ambassadors, other public ministers and consuls; i. Cases involving decisions, resolutions, or orders of the Civil Service Commission, Commission on Elections, Commission on Audit j. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbannent of a lawyer, or either the suspension of any of them for a period of more than one(l) year or a fine exceeding P10,000.00 or both; k. Cases where a doctrine or principle laid down by the court en bane or in division may be modified ore reversed; 1. Cases assigned to a division which in the opinion of at least three(3) members thereof merit the attention of the court enbanc and are acceptable to a majority of the actual membership of the court en bane; and, m. All cases as the court en bane by a majority of its actual membership may deem of sufficient importance to merit its attention. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court, or other courts whnever authorized by law, may file with the Supreme Court a verified petition for review on certiorari within fifteen (15) days from notice of the judgment or final order or resolution appealed grom, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. Upon filing of the petition, petitioner sshall pay the corresponding docket and other lawful fees to the clerk of court of the Supre Court and deposit the amount ofP 500 as costs. On motion duly filed and served, with mil payment of the docket fees and the deposti for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition.

The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (bO indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statemnt of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resloution certified by the clerk of court of the court a qou and the requisite number of plain copies theereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of Sec. 2 of Rules of Court. A review by the Supreme Court of decisions of the Court of Appeals is limited to revision of errors of law, since the findings of fact of the Court of Appeals are deemed conclusive and the Supre Court is not dutybound to analyze the evidence already considered in the proceedings before it. The Supreme Court, however, may review find^gs of facts of die Court of Appeals in the following instances. a. When the factual findings of the Court of Appeals and the trial court are contradictory; b. When the conclusion is a finding grounded entirely on speculaiton, surmises, or conjecture; C. When there is grave abuse of discretion in the appreciation of facts; d. When the appellate court, in making its findings goes beyond the issues of the case and such findings are contrary to the admission of both appellant and appellee; c. When the judgment of the Court of Appeals is premised on misapprehension of facts; f. When the court of Appeals fails to notice certain relevant facts which, if property considered will justify a different conclusion; g. When the findings of facts are themselves conflicting; h. When the findings of fact are conclusions without citatio o fthe specific evidence on which they are based, and i. When the findings of fact of the Cout of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record.
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Although the Supreme Court has absolute discretion to reject and dismiss a petition at the very start, it does so only (1) For procedural errors, like violations of the Rules of Court or Supreme Court circulars; or (2) the failure of the petition to demonstrate prima-facie a "reversible" error of the lower court or a grave abuse of discretion by any court, agency, or branch of the government.

Some of the procedural substantive errors are:
and
1- Late filing, as the .petition was filed beyond the reglementary period; 2. Failure to serve a copy of the petition on the adverse party or on the lower court, agency, or entity. 3. Nonsubmission of the proof of service mentioned in item 2 above, like the written acknowledgment of the party served, the affidavit of the party serving, or the registry receipts. 4. Failure to give an explanation why a pleading was mailed rather than personality delivered. 5. Lack of, or insufficient, verification of the petition. 6. Failure to pay the docket fees and other fees and the deposit for costs. 7. Failure to state the material dates showing that the petition was filed on time, including the dates when the assailed decision or resolution was received; when a motion for reconsideration, if any was filed and when me order denying such motion was received by the petitioner; 8. Failure to submit with the petition a clear duplicate original or a certified true copy of the judgment and orders being contested. 9. Failure to file the required number of copies of the petition; 10. Failure to file a certification of non forum shopping or the filing of a defective or insufficient certification thereof; 11. Failure to show the "reversible error" or grave abuse of discretion" allegedly committed by the lower tribunal, agency, or office. 12. Failure to set forth a concise statement of the matters involve, as well as the reasons and arguments why the petition should be allowed. 13. Error in the choice or mode of appeal, for example, the filing of only a notice of appeal, when the rules require a fullblown petition. 14. Non-appealability of the case to the Supreme Court. 15. Patent lack of merit16. Filing of petition manifestly for delay.
17. Too insubstantial questions raised 18. Failure to exhaust administrative remedies or to bring the petition within any of the exceptions to the rule of exhaustion of administrative remedies, ue to the insufficiency of allegations 19. Violation of the hierarchy of courts of or no special reason or compelling circumstances 20. Prematurely of the petition, there being no motion for reconsideration filed at the tribunal below (especially in petitions for certiorari, prohibition or mandamus) and there being no established exception justifying such prematurity 21. Evident use of certiorari as a substitute for me lost remedy of appeal. Orders dismissing petitions based on the foregoing grounds are known as minute resolutions and are normally couched in standard forms authorized by the court. Once a petition passes these procedural and substantive tests. PETITION FOR ANNULMENT OF JUDGMENTS OR FINAL ORDERS IN CIVIL ACTIONS OF REGIONAL TRIAL COURTS TO THE COURT OF APPEALS (Rule 47) Petitions for the annulment of judgments or final orders and resolutions in civil actions of Regional Trial Courts, for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are not longer available through no fault of petitioner, may be filed with the Court of Appeals. The annulment may be based only of the grounds of 1. extrinsic fraud and 2. lack mof jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief, If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before ti is barred by laches or estoppel. Limitation on Availment of a petition for annulment ofjudgmeaL It is a fundamental principle in our judicial system tha t every litigation must come to an end. Access to the courts is guaranteed. But there must be a limit thereto- Once a litigant's right has been adjudicated in a balid final judgment of a competent court, he should not be granted an unbridled license to come back for another try. The prevailing party should not be harassed by subsequent suits- For if endless litigations were to be encouraged, unscrupulous litigants will multiply in number to the detriment of the administration of justice (Mercado, et al., vs. Ubay, 187SCRA710, 1990).
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Accordingly, an action to annul a judgment on the ground of fraud can only be given due course if it was not availed of, or could not have been earlier availed of, in a motion for new trial or petition for relief, and only if the fraud is EXTRINSICE or COLLATERAL in character. It is regarded as extrinsic or collateral where it has prevented a party from having a trial or from presenting all of his case to the court (Asian Surety and Insurance Co., vs. Island Steel Inc., 118 SCRA 233,1982; Ruiz vs. CA, 201 SCRA233, 1991, or where it operates upon matters pertaining not to the judgment itself, but to the manner by which it was procured so that there is not a fair submiSssion of the controversy. In other words, extirsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of die trial of the case, where the defeated party has been prevented fromp[resenting fully his side of the case, by fraud or deception practiced on him by his opponent. (Macabingil vs. PHHC, 164 SCRA 160, 1933;Gerardo vs. Dela Pena 192 SCRA 680. There is also extrinsic fraud when a party waws prevented from presenting all of his case to the court as when his lawyer connive at his defeat or corruptly sells out his client's interest (Ruiz vs. CA, 201 SCRA 577,1991) Intrinsic fraud, as distinguised from extrinsic fraud, takes the form of "acts of a party in litigation during the trial, such as the use of forged instruments or perjured testimony, which did not affect die presentatio of the case, but did prevent a fair and just determination of the case (Vide Strait Times, Inc. vs, CA 294 SCRA 714, 1998). The distinction between intrinsic fraud and extrinsic fraud is significant because only actual fraud or extrinsic fraud are accepted as a ground for the annulment ofajudgment. Lack of jurisdiction as a ground to annul a judgment covers lack of jurisdiction over the subject matter and or over the person of indispensable parties and denial of due process, such as improper substituted service of summons (Harry Ang Ping vs. CA, 310 SCRA 343,1999) In Strait Times vs. CA, it was held that a regional trialcourt has no jurisdiction to order the issuance of a new titile which was not lost, the remedy being to file a motion under the land registraiton case for the one in possessio of the title to surrender the same. The principle applies even if the judgment of the regional trial court had beenaffirmed by the CA and the SC. FORMAL AND PROCEDURAL REQUIREMENTS 1. Verified pettition in seven (7) clearly legible copies, together with sufficient copies corresponding to the number of respondents, alleging with particularity (1) the facts and the law relied upon for annulment, as well as

(2) those supporting petitioner's good and substantial cause of action or defense. The annulment may be based only on ground of extrinsic fraud and lack of jurisdiction. 2. A certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition intended for the court and indicated as such by petitioner, and other supporting papers. 3. Indicate the specific material dates to determine the timeliness of me filing of die petition. If the petition is based on extrinsic fraud, the action must be filed within four (4) years from its discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel 4. The petition shall specifically allege and explain why the ordinary remedies of new trial, appeal, or petition for relief or other appropriate remedies are no longer available through no fault of petitioner, 5. The petitioner shall attach to the petition, affidavits of witnesses or documents supporting the cause of action or defense; 6. The petition shall contain a sworn certification against forum shopping : that the petitioner has not heretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or the different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, the petitioner must state the status of the same; and if he should thereafter leam that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof wihtin five (5) days therefrom. 7. The petition must contain a veriofication prescribed in Section 4., Rule 7 of the 1997 Rules of Civil Procedure, as amended by Supreme Court Circular No. 48-2000, "that the allegations therein are true and correct of his personal knowledge or based on authentic records". 8. Upon the filing of the petition, the petitioner shall pay to the Clerk of court of the Court of Appeals the docketing other lawful fees. ACTION BY THE COURT OF APPEALS Should the Court of Appeals find no substantial merit in the petition, the same may be dismissed outright with specific reasons for its dismissal Should prima facie merit be found in the petition, the same shall be given due course and summons shail be served upon the respondent. In the hearing of the case, the procedure observed in ordinary civil cases sahalt be observed in ordinary civel cases shall be observed- Should a trial be necessary, the reception of evidence may be referred to a
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member o the court ofr a judge of Regional Trial Court. Effect of a judgment of the Court of Appeals granting the annulment A favorable judgment of the Court of Appeals shall set aside the questioned judgment or final order or resolution and render the same null and viod, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order is set aside on the ground of extrinsic fraud, the court my on .motion order the trial court to try the case as I f a timely motion for new trial had been granted therein. The prescriptive period for the refilling of the original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. The judgment of annulment mya include the award of damages, attorney's fees and other relief. If the questioned judgment or final order or resolution had already been executed, the court may issue orders of restitution or other relief as justice and equity may warrant under the circumstances. ANNULMENT OF JUDGMENTS OR FINAL ORDERS OP MUNICIPAL TRIAL COURTS An action to annul a judgment or final order of a municipal trial court shall be filed in the regional trial court having jurisdiction over the former. It shall be treated as an ordinary civil action and Sections 2,3,4,7,8 and 9 of Rule 47 shall be applicable thereto.


Civil Procedure 2003

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Civil Procedure 2003

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is an application for relief other than by a pleading.

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A legal right FAME + Newly discovered evidence Judgment on final order

REGIONAL TRIAL COURT IN CIVIL CASES

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4. APPELLATE JURISDICTION OF COURT OF APPEALS IN CRIMINAL CASES

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Some of the procedural substantive errors are:

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