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TABLE OF CONTENTS

CIVIL PROCEDURE

A. JUDGMENTS IN GENERAL ........................... 95


B. CONTENTS OF A JUDGMENT....................... 97
C. JUDGMENT ON THE PLEADINGS ................ 98

I. GENERAL CONCEPTS ............................... 2

D. SUMMARY JUDGMENTS .............................. 98

A. CONCEPT OF REMEDIAL LAW ........................2

E. RENDITION OF JUDGMENTS AND FINAL


ORDERS ............................................................ 101

B. SUBSTANTIVE LAW VIS--VIS REMEDIAL


LAW .......................................................................2

F. ENTRY OF JUDGMENT AND FINAL ORDER 101

C. RULE MAKING POWER OF THE SUPREME


COURT .................................................................. 3

G. AMENDMENTS TO JUDGMENT .................. 101

V. POST-JUDGMENT REMEDIES .............. 102

D. NATURE OF PHILIPPINE COURTS ................ 4

II. JURISDICTION ......................................... 6

A.
MOTION
FOR
NEW
TRIAL
OR
RECONSIDERATION ........................................ 102

A. ASPECTS OF JURISDICTION ...........................6

B. APPEALS ......................................................105

B. JURISDICTION OF COURTS .......................... 10


C. JURISDICTION OVER SMALL CLAIMS .......... 17

COMPARATIVE TABLE ON THE MODES OF


APPEAL .................................................... 123

D. CASES COVERED BY RULES ON SUMMARY


PROCEDURE ...................................................... 17

C. RELIEF FROM JUDGMENTS. ORDERS, AND


OTHER PROCEEDINGS .................................... 125

E.
CASES
COVERED
BY
BARANGAY
CONCILIATION ................................................... 17

D. ANNULMENT OF JUDGMENTS OR FINAL


ORDERS AND RESOLUTIONS ......................... 127

F. TOTALITY RULE.............................................. 18

E. COLLATERAL ATTACK OF JUDGMENTS .... 129

III. COMMENCEMENT OF ACTIONS TO TRIAL


.................................................................... 18

VI. EXECUTION, SATISFACTION AND


EFFECT OF JUDGMENTS .......................... 130

A. ACTIONS......................................................... 18
B. CAUSE OF ACTION ........................................ 21

A. FINALITY FOR PURPOSES OF APPEAL AND


FOR PURPOSES OF EXECUTION .................... 130

D.VENUE ............................................................ 30

B. WHEN EXECUTION SHALL ISSUE ................ 131

E. PLEADINGS .................................................... 31

C. HOW JUDGMENT IS EXECUTED ................. 134

F. SUMMONS ..................................................... 53

D. PROPERTIES EXEMPT FROM EXECUTION 139

G. MOTIONS IN GENERAL ................................ 58

E. PROCEEDINGS WHERE PROPERTY CLAIMED


BY THIRD PERSONS .........................................141

I. MOTION FOR BILL OF PARTICULARS .......... 60

F. RULES ON REDEMPTION ............................ 142

J. MOTION TO DISMISS...................................... 61

G. REMEDIES OF JUDGMENT CREDITOR IF


JUDGMENT NOT SATISFIED ............................ 145

K. DISMISSAL OF ACTIONS .............................. 68


L. PRE-TRIAL ..................................................... 70

H. EFFECT OF JUDGMENT OR FINAL ORDERS


........................................................................... 146

M. INTERVENTION ............................................. 77
N. SUBPOENA ....................................................78
O. MODES OF DISCOVERY ............................... 80

I. ENFORCEMENT AND EFFECT OF FOREIGN


JUDGMENT OR FINAL ORDERS ...................... 148

P. TRIAL ............................................................. 89

VII. PROVISIONAL REMEDIES .................. 149

Q. DEMURRER TO EVIDENCE .......................... 94

A. PRELIMINARY ATTACHMENT .....................150

IV. JUDGMENTS AND FINAL ORDERS ....... 95

B. PRELIMINARY INJUNCTION ........................ 154


C. RECEIVERSHIP ............................................. 159

TABLE OF CONTENTS
D. REPLEVIN ..................................................... 162

C. VENUE .......................................................... 215

A COMPARATIVE CHART ON THE


PROVISIONAL REMEDIES ........................ 166

D. EXTENT OF JURISDICTION OF PROBATE


COURT .............................................................. 216

VIII. SPECIAL CIVIL ACTIONS.................... 168

E. POWERS AND DUITIES OF A PROBATE


COURT .............................................................. 216

A.

IN GENERAL ........................................... 168

III. SUMMARY SETTLEMENT OF ESTATES 217

B. INTERPLEADER ........................................... 169

A. EXTRAJUDICIAL SETTLEMENT OF ESTATES


........................................................................... 217

C. DECLARATORY RELIEFS AND SIMILAR


REMEDIES ........................................................ 170

B. SUMMARY SETTLEMENT OF ESTATES OF


SMALL VALUE .................................................. 218

D. REVIEW OF JUDGMENTS AND FINAL


ORDERS OR RESOLUTION OF THE COMELEC
AND COA .......................................................... 172

C. REMEDIES OF AGGRIEVED PARTIES AFTER


EXTRA-JUDICIAL SETTLEMENT OF ESTATE .. 219

E. CERTIORARI, PROHIBITION, MANDAMUS 173

IV. PRODUCTION AND PROBATE OF WILL


................................................................. 220

F. QUO WARRANTO ........................................ 180


G. EXPROPRIATION ........................................ 182

A. NATURE OF PROBATE PROCEEDINGS ..... 220

H.
FORECLOSURE
OF
REAL
ESTATE
MORTGAGE ...................................................... 188

V. ALLOWANCE OR DISALLOWANCE OF
WILL ......................................................... 221

I. PARTITION ..................................................... 192

A. WHO MAY PETITION FOR PROBATE;


PERSONS ENTITLED TO NOTICE .................... 221

J. FORCIBLE ENTRY AND UNLAWFUL


DETAINER......................................................... 195
K. CONTEMPT.................................................. 200

B. CONTENTS OF PETITION FOR ALLOWANCE


OF WILL............................................................ 222

THE SPECIAL CIVIL ACTIONS .................. 205

C. GROUNDS FOR DISALLOWING A WILL..... 223

IX. SPECIAL RULES .................................. 207

D. REPROBATE................................................ 224

A. REVISED RULES ON SUMMARY PROCEDURE


.......................................................................... 207

F. EFFECTS OF PROBATE ............................... 224

VI. LETTERS TESTAMENTARY AND OF


ADMINISTRATION ................................... 224

B. KATARUNGANG PAMBARANGAY LAW (PD


1508; RA 7160 AS AMENDED) ........................ 208

A. WHEN AND TO WHOM LETTERS OF


ADMINISTRATION ARE GRANTED ................ 224

C. RULES OF PROCEDURE FOR SMALL CLAIMS


CASES (A.M. NO. 08-8-7-SC) ......................... 209

B. ORDER OF PREFERENCE ........................... 226

D. EFFICIENT USE OF PAPER RULE (A.M. NO. 119-4-SC) .............................................................. 211

C. OPPOSITION TO ISSUANCE OF LETTERS


TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION ................. 226

SPECIAL PROCEEDINGS

D. POWERS AND DUTIES OF EXECUTORS AND


ADMINISTRATORS; RESTRICTIONS ON THE
POWERS .......................................................... 227

I. SPECIAL PROCEEDINGS ........................ 214

D.1. GENERAL POWERS AND DUTIES OF


EXECUTORS AND ADMINISTRATORS ........... 228

A. SUBJECT MATTER AND APPLICABILITY OF


GENERAL RULES ............................................. 214

D.2. RESTRICTIONS ON POWERS OF


EXECUTORS AND ADMINISTRATORS ........... 228

A. MODES OF SETTLEMENT OF ESTATE ........ 215


B. JURISDICTION .............................................. 215

E.
APPOINTMENT
OF
SPECIAL
ADMINISTRATOR ............................................ 230

ii

TABLE OF CONTENTS
F. REVOCATION, DEATH, RESIGNATION AND
REMOVAL
OF
EXECUTORS
AND
ADMINISTRATORS .......................................... 231

D. GROUDS FOR REMOVAL AND RESIGNATION


OF A TRUSTEE................................................. 245
E. EXTENT OF AUTHORITY OF TRUSTEE ...... 245

VII. CLAIMS AGAINST THE ESTATE ..........232

XII. GUARDIANSHIP ................................ 245

A. TIME WITHIN WHICH CLAIMS SHALL BE


FILED; EXCEPTIONS ....................................... 232

A.
GUARDIANSHIP
OF
INCOMPETENT
PERSONS NOT MINORS ................................. 246

B. CLAIM OF EXECUTOR OR ADMINISTRATOR


AGAINST AN ESTATE ...................................... 234

B. RULE IN GUARDIANSHIP OVER MINOR (A.M.


NO. 03-02-05-SC) ........................................... 248

C. PAYMENT OF DEBTS .................................. 234

XIII. ADOPTION........................................ 252

VIII.
ACTIONS
BY
AND
AGAINST
EXECUTORS AND ADMINISTRATORS ..... 237

A. DISTINGUISH DOMESTIC ADOPTION FROM


INTER-COUNTRY ADOPTION......................... 252

A. ACTIONS BY AND AGAINST EXECUTORS .. 237

B. DOMESTIC ADOPTION ACT ....................... 256

B. RECOVERY OF PROPERTY CONCELEAD,


EMBEZZLED OR FRADULENTLY CONVEYED 238

C. INTER-COUNTRY ADOPTION .................... 257

XIV. WRIT OF HABEAS CORPUS .............. 258

WHEN RECOVERY BY CREDITOR OF PROPERTY


FRAUDULENTLY CONVEYED MAY BE DONE 238

A. CONTENTS OF THE PETITION ................... 260


B. CONTENTS OF THE RETURN ..................... 260

C. SALES, MORTGAGES, AND OTHER


ENCUMBRANCES ........................................... 239

C. DISTINGUISH PEREMPTORY WRIT FROM


PRELIMINARY CITATION ................................. 261

WHEN PERSONAL ESTATE IS NOT SUFFICIENT


TO
PAY
DEBTS,
EXPENSES
OF
ADMINISTRATION AND LEGACIES; OR......... 239

D. WHEN NOT PROPER OR APPLICABLE ...... 261


E. WHEN WRIT DISALLOWED OR DISCHARGED
........................................................................... 261

IX. DISTRIBUTION AND PARTITION ........ 240


A. LIQUIDATION .............................................. 240

F. DISTINGUISHED FROM WRIT OF AMPARO


AND HABEAS DATA ........................................ 262

B. PROJECT OF PARTITION ............................. 241

G. RULES ON CUSTODY OF MINORS AND WRIT


OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
.......................................................................... 262

C. REMEDY OF AN HEIR ENTITLED TO RESIDUE


BUT NOT GIVEN HIS SHARE ........................... 241
D. INSTANCES WHEN PROBATE COURT MAY
ISSUE WRIT OF EXECUTION ........................... 241

XV. WRIT OF AMPARO (A.M. 07-9-12-SC) 266

X. ESCHEAT ............................................. 242

A. COVERAGE .................................................. 266

A. WHEN TO FILE ............................................ 242


B. REQUISITES FOR FILING OF PETITION ..... 242

B. DISTINGUISH FROM HABEAS CORPUS AND


HABEAS DATA ................................................. 267

C. REMEDY OF RESPONDENT AGAINST


PETITION; PERIOD FOR FILING A CLAIM. ..... 243

C. AMPARO VS SEARCH WARRANT .............. 267


D. WHO MAY FILE ........................................... 267

XI. TRUSTEES .......................................... 243

E. CONTENTS OF RETURN ............................. 268

A.
DISTINGUISHED
FROM
EXECUTOR/ADMINISTRATOR ....................... 243

F. EFFECTS OF FAILURE TO FILE RETURN ... 269


G. OMNIBUS WAIVER RULE ........................... 269

B. CONDITIONS OF THE BOND ...................... 244

H. PROCEDURE FOR HEARING ..................... 269

C. REQUISITES FOR THER REMOVAL AND


RESIGNATION OF A TRUSTEE ....................... 245

I. INSTITUTION OF SEPARATE ACTION ......... 270


J. EFFECT OF FILING A CRIMINAL ACTION ... 270

iii

TABLE OF CONTENTS

CRIMINAL PROCEDURE

K. CONSOLIDATION ........................................ 270


L.
INTERIM
RELIEFS
AVAILABLE
TO
PETITIONER AND RESPONDENT .................. 270

I. GENERAL MATTERS ............................. 296

M. QUANTUM OF PROOF IN APPLICATION FOR


ISSUANCE OF WRIT OF AMPARO ................... 271

A. JURISDICTION OVER SUBJECT MATTER AND


JURISDICTION OVER PERSON OF THE
ACCUSED DISTINGUISHED ............................ 296

XVI. WRIT OF HABEAS DATA (A.M. NO. 08-116-SC) ....................................................... 272


A. SCOPE OF THE WRIT ...................................272

B. REQUISITES FOR EXERCISE OF CRIMINAL


JURISDICTION ................................................. 297

B. AVAILABILITY OF WRIT ...............................272

C. JURISDICTION OF CRIMINAL COURTS ..... 297

C. DISTINGUISHED FROM HABEAS CORPUS


AND AMPARO .................................................. 273

D. WHEN INJUNCTION MAY BE ISSUED TO


RESTRAIN CRIMINAL PROSECUTION ........... 299

D. CONTENTS OF THE PETITION .................... 273

II. PROSECUTION OF OFFENSES ............. 299

E. CONTENTS OF THE RETURN ...................... 273

A. CRIMINAL ACTIONS; HOW INSTITUTED ... 299

F. INSTANCES WHEN PETITION MAY BE HEARD


IN CHAMBERS ..................................................274

B. WHO MAY FILE; CRIMES THAT CANNOT BE


PROSECUTED DE OFICIO ............................... 300

G. CONSOLIDATION ........................................274

C. CRIMINAL ACTIONS; WHEN ENJOINED .... 302

H. EFFECT OF FILING CRIMINAL ACTION ......274

D. CONTROL OF PROSECUTION .................... 302

I. INSTITUTION OF SEPARATE ACTION ..........274

XVII. CHANGE OF NAME ...........................274

E.
SUFFICIENCY
OF
COMPLAINT
OR
INFORMATION ................................................ 303

XVIII. CANCELLATION OR CORRECTION OF


ENTRIES IN THE CIVIL REGISTRY .............276

F. DUPLICITY OF THE OFFENSE; EXCEPTION


.......................................................................... 306

A. ENTRIES SUBJECT TO CANCELLATION OR


CORRECTION IN RELATION TO R.A. 9048 ....276

G. AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION .................... 306

RA 9048, AS AMENDED BY RA 10172 ............. 277

H. VENUE OF CRIMINAL ACTIONS................. 308

XIX. ABSENTEES....................................... 277

I. INTERVENTION OF OFFENDED PARTY ...... 309

III. PROSECUTION OF CIVIL ACTION ....... 309

A. PURPOSE OF THE RULE ............................. 277

A. RULE ON IMPLIED INSTITUTION OF CIVIL


ACTION WITH CRIMINAL ACTION .................. 309

B. WHO MAY FILE; WHEN TO FILE .................. 277

XX. APPEALS IN SPECIAL PROCEEDINGS 278

B. WHEN CIVIL ACTION MAY PROCEED


INDEPENDENTLY ............................................ 309

A. JUDGMENTS AND ORDERS FOR WHICH


APPEAL MAY BE TAKEN ................................. 278

C. WHEN SEPARATE CIVIL ACTION IS


SUSPENDED ..................................................... 310

B. WHEN TO APPEAL .......................................279


C. MODES OF APPEAL .....................................279

D. EFFECT OF DEATH OF THE ACCUSED OR


CONVICT ON CIVIL ACTION ............................. 310

D. RULE ON ADVANCE DISTRIBUTION ..........279

E. PREJUDICIAL QUESTION ............................ 310

WRIT MATRIX (COMPARISON OF THE


WRITS) .................................................... 280

F. RULE ON FILING FEES IN CIVIL ACTION


DEEMED INSTITUTED WITH THE CRIMINAL
ACTION .............................................................. 311

iv

TABLE OF CONTENTS
IV. PRELIMINARY INVESTIGATION .......... 312

I. APPLICATION NOT A BAR TO OBJECTIONS


ON ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION ..................... 326

A. NATURE OF RIGHT ...................................... 312


B.
PURPOSES
OF
PRELIMINARY
INVESTIGATION ............................................... 312

J. HOLD/ALLOW DEPARTURE ORDER AND


BUREAU OF IMMIGRATION WATCHLIST .......327

C. WHO MAY CONDUCT DETERMINATION OF


EXISTENCE OF PROBABLE CAUSE ................. 313

VII. RIGHTS OF THE ACCUSED ................ 328

D. RESOLUTION OF THE INVESTIGATING


PROSECUTOR .................................................. 314

A. RIGHT TO BE PRESUMED INNOCENT UNTIL


THE CONTRARY IS PROVED BEYOND
REASONABLE DOUBT .................................... 328

E. REVIEW ......................................................... 314

B. RIGHT TO BE INFORMED OF THE NATURE


AND CAUSE OF THE ACCUSATION AGAINST
HIM ................................................................... 328

F. WHEN WARRANT OF ARREST MAY ISSUE 315


G. CASES NOT REQUIRING PRELIMINARY
INVESTIGATION NOR COVERED BY THE RULE
ON SUMMARY PROCEDURE ........................... 315

C. RIGHT TO BE PRESENT AND DEFEND IN


PERSON AND BY COUNSEL AT EVERY STATE
OF THE PROCEEDINGS................................... 329

H. REMEDIES OF ACCUSED IF THERE WAS NO


PRELIMINARY INVESTIGATION ...................... 316

C.1. RIGHT TO BE PRESENT ............................ 329

I. INQUEST ........................................................ 316

V. ARREST ................................................ 317

D. RIGHT TO TESTIFY AS WITNESS IN HIS


BEHALF ............................................................ 330

A. IMMUNITY .................................................... 317

E. RIGHT AGAINST SELF-INCRIMINATION .... 330

B. HOW MADE .................................................. 317

F. RIGHT TO CONFRONTATION ..................... 330

D. METHOD OF ARREST ................................. 320

G. RIGHT TO COMPULSORY PROCESS .......... 331

E. REQUISITES OF A VALID WARRANT OF


ARREST ............................................................ 321

H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC


TRIAL................................................................. 331

F. DETERMINATION OF PROBABLE CAUSE FOR


ISSUANCE OF WARRANT OF ARREST ........... 321

I. RIGHT TO APPEAL ........................................ 331


J. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATIONS ............................................. 331

G. PROBABLE CAUSE OF FISCAL AND JUDGE


DISTINGUISHED ............................................... 321

VIII. ARRAIGNMENT AND PLEA ...............333

VI. BAIL .....................................................322

A. ARRAIGNMENT AND PLEA; HOW MADE ...333

A. NATURE ...................................................... 322

A.2.A. HOW MADE........................................... 334

B. WHEN A MATTER OF RIGHT; EXCEPTIONS


.......................................................................... 322

B. WHEN A PLEA OF NOT GUILTY SHOULD BE


ENTERED ......................................................... 335

C. WHEN A MATTER OF DISCRETION ............323

C. WHEN ACCUSED MAY ENTER A PLEA OF


GUILTY TO A LESSER OFFENSE ..................... 335

D. HEARING OF APPLICATION FOR BAIL IN


CAPITAL OFFENSES ....................................... 324
E. GUIDELINES IN FIXING AMOUNT OF BAIL 325

D. ACCUSED PLEADS GUILTY TO CAPITAL


OFFENSE; DUTY OF THE COURT ................... 336

F. WHEN BAIL NOT REQUIRED ...................... 325

E. SEARCHING INQUIRY ................................. 336

G. INCREASE OR REDUCTION OF BAIL ......... 325

F. IMPROVIDENT PLEA OF GUILTY TO A


CAPITAL OFFENSE ........................................... 337

H. FORFEITURE AND CANCELLATION OF BAIL


.......................................................................... 326

G.
GROUNDS
FOR
SUSPENSION
OF
ARRAIGNMENT ................................................ 337

TABLE OF CONTENTS
IX. MOTION TO QUASH ............................338

D. JUDICIAL NOTICE OF FOREIGN LAWS, LAW


OF NATIONS AND MUNICIPAL ORDINANCE 389

A. WHEN FILED ............................................... 338

III. OBJECT (REAL) EVIDENCE.................. 390

B. GROUNDS ................................................... 339

X. PRE-TRIAL........................................... 345
XI. TRIAL.................................................. 348
XII. JUDGMENT ........................................ 352
XIII. NEW TRIAL OR RECONSIDERATION 356

A.

NATURE OF OBJECT EVIDENCE........... 390

B.

REQUISITES FOR ADMISSIBILITY ........ 390

C.

CATEGORIES OF OBJECT EVIDENCE .... 391

D.

DEMONSTRATIVE EVIDENCE ................ 391

E. VIEW OF AN OBJECT OR SCENE ................. 391

XIV. APPEAL ............................................ 358

F. CHAIN OF CUSTODY IN RELATION TO SEC. 21


OF THE COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002 ...................................... 392

XV. SEARCH AND SEIZURE ..................... 365


XIV. PROVISIONAL REMEDIES ................. 375

G. RULE ON DNA EVIDENCE .......................... 392


(A.M. NO. 06-11-5-SC) ...................................... 392

EVIDENCE

IV. DOCUMENTARY EVIDENCE................ 394


A. MEANING OF DOCUMENTARY EVIDENCE 394
B. REQUISITES FOR ADMISSIBILITY .............. 394

I. GENERAL PRINCIPLES ..........................378

C. BEST EVIDENCE RULE ................................ 394

A. CONCEPT OF EVIDENCE .............................378

D. RULES ON ELECTRONIC EVIDENCE ......... 395

B. SCOPE OF THE RULES OF EVIDENCE [SEC. 2,


RULE 128] .........................................................378

(A.M. NO. 01-7-01- SC) ..................................... 395


E. PAROL EVIDENCE RULE ............................. 398

C. EVIDENCE IN CIVIL CASES VERSUS


EVIDENCE IN CRIMINAL CASES ......................378

F. AUTHENTICATION AND PROOF OF


DOCUMENTS ................................................... 399

D. PROOF VERSUS EVIDENCE ........................379

V. TESTIMONIAL EVIDENCE .................... 402

E. FACTUM PROBANS VERSUS FACTUM


PROBANDUM ...................................................379

A. QUALIFICATIONS OF A WITNESS .............. 402

F. ADMISSIBILITY OF EVIDENCE .....................379

B. COMPETENCY VERSUS CREDIBILITY ........ 402

G. BURDEN OF PROOF AND BURDEN OF


EVIDENCE ......................................................... 381

C. DISQUALIFICATIONS OF WITNESSES ....... 403


D. EXAMINATION OF A WITNESS .................. 409

H. PRESUMPTIONS ......................................... 382

E. ADMISSIONS AND CONFESSIONS ............. 414

I. LIBERAL CONSTRUCTION OF THE RULES OF


EVIDENCE ........................................................ 385

F. HEARSAY RULE ............................................ 417

J. QUANTUM OF EVIDENCE (WEIGHT AND


SUFFICIENCY OF EVIDENCE) ......................... 385

H. OPINION RULE ........................................... 424

II. JUDICIAL NOTICE AND JUDICIAL


ADMISSIONS ........................................... 386

J. RULE ON EXAMINATION OF A CHILD


WITNESS (A.M. NO. 004-07-SC) .................... 426

A. WHAT NEED NOT BE PROVED .................. 386

VI. OFFER AND OBJECTION ..................... 430

B. MATTERS OF JUDICIAL NOTICE ................ 386

A. OFFER OF EVIDENCE ................................. 430

C. JUDICIAL ADMISSIONS .............................. 388

B. WHEN TO MAKE AN OFFER [SEC. 35, RULE


132] .................................................................... 431

I. CHARACTER EVIDENCE .............................. 425

vi

TABLE OF CONTENTS
C. OBJECTION [SEC. 36, RULE 132] ................. 431

E. WRIT OF CONTINUING MANDAMUS ......... 440

D. REPETITION OF AN OBJECTION [SEC. 37,


RULE 132]......................................................... 432

IV. CRIMINAL PROCEDURE ..................... 442


A. WHO MAY FILE ............................................ 442

E. RULING ON THE OBJECTION [SEC. 38, RULE


132] ................................................................... 432

B. INSTITUTION OF CRIMINAL AND CIVIL


ACTION ............................................................ 442

F. STRIKING OUT AN ANSWER [SEC. 39, RULE


132] ................................................................... 432

C. ARREST WITHOUT WARRANT, WHEN VALID


.......................................................................... 442

G. TENDER OF EXCLUDED EVIDENCE [SEC. 40,


RULE 132]......................................................... 433

RULES OF PROCEDURE
ENVIRONMENTAL CASES

D. STRATEGIC LAWSUIT AGAINST PUBLIC


PARTICIPATION [SLAPP] ................................ 442
E. PROCEDURE IN THE CUSTODY AND
DISPOSITION OF SEIZED ITEMS .................... 442

FOR

F. BAIL .............................................................. 443


G. ARRAIGNMENT AND PLEA ........................ 443

I. SCOPE AND APPLICABILITY OF THE RULE


................................................................. 435

H. PRE-TRIAL .................................................. 443

II. CIVIL PROCEDURE .............................. 436

V. EVIDENCE ............................................ 444

A. PROHIBITION AGAINST TEMPORARY


RESTRAINING ORDER AND PRELIMINARY
INJUNCTION .................................................... 436

A. PRECAUTIONARY PRINCIPLE.................... 444

I. SUBSIDIARY LIABILITIES ............................. 444

B. DOCUMENTARY EVIDENCE ....................... 444

B.
TEMPORARY
ENVIRONMENTAL
PROTECTION ORDER (TEPO) .........................437
C. DECLARATION OF DEFAULT MOTU PROPRIO
...........................................................................437
D. PRE-TRIAL CONFERENCE; CONSENT
DECREE ............................................................437
E. PROHIBITED PLEADINGS AND MOTIONS .437
F. PERIOD TO TRY AND DECIDE .....................437
G. JUDGMENT AND EXECUTION; RELIEFS IN A
CITIZEN SUIT ................................................... 438
H.
PERMANENT
ENVIRONMENTAL
PROTECTION ORDER; WRIT OF CONTINUING
MANDAMUS .................................................... 438
I. STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION (SLAPP) ................................ 438

III. SPECIAL CIVIL ACTIONS ..................... 439


A. WRIT OF KALIKASAN ................................. 439
B. PROHIBITED PLEADINGS AND MOTIONS 440
C. DISCOVERY MEASURES............................. 440
D. APPEAL ....................................................... 440

vii

UP LAW BOC

CIVIL PROCEDURE

REMEDIAL LAW

REMEDIAL LAW

CIVIL PROCEDURE

UP LAW BOC

CIVIL PROCEDURE

I. General Concepts

REMEDIAL LAW

(5) Insolvency proceedings


(6) Other cases not provided for in the Rules of
Court

A. CONCEPT OF REMEDIAL LAW

Except by analogy or in a suppletory character


and whenever practicable and convenient
[Rule 1, Sec. 4]

Remedial law traditional term given to the


rules which prescribe the procedure for the
protection and enforcement of all claims
arising from the rights and duties created by
law [Riano]

A.3 PROSPECTIVITY/ RETROACTIVITY


The Rules of Court are not penal statutes and
cannot be given retroactive effect. [Bermejo v
Barrios (1970)].

That branch of law which prescribes the


method of enforcing rights or obtaining redress
for their invasion (Bustos v. Lucero, 81 Phil. 640).

However, they may be made applicable to


actions pending and undetermined at the time
of their passage, and are deemed retroactive in
that sense and to that extent. [In the Matter to
Declare in Contempt of Court Hon. Simeon
Datumanong (2006)].

A.1 SOURCE
Remedial law is basically contained in the
Rules of Court. Circulars of the Supreme Court
implementing the Rules of Court (e.g. Rules on
Summary Procedure) also contain remedial
law.

The reason for this is because there are no


vested rights in the rules of procedure. [Go v.
Sunbanon]

The Rules of Court, do not originate from the


legislature and cannot be called laws in the
strict sense. However, since they are
promulgated by authority of law, they have the
force and effect of law, if not in conflict with
positive law. The rule is subordinate to the
statute, and in case of conflict, the statute will
prevail. [Riano citing Alvero v. Dela Rosa; Shioji
v Harvey (1922)]

Procedural rules do not apply to pending


actions:
(1) where the statute itself or by necessary
implication provides that pending actions
are excepted from its application;
(2) if applying the rule to pending actions
would impair vested rights;
(3) when to do so would not be feasible or
would work injustice;
(4) if doing so would involve intricate
problems of due process or impair the
independence of the courts. [Riano citing
Tan v. CA]

A.2 APPLICABILITY
The Rules of Court shall apply in all the courts,
except as otherwise provided by the SC. [Rule 1,
Sec. 2]
It shall govern the procedure to be observed in
civil or criminal actions, and special
proceedings. [Rule 1, Sec. 3]

B. SUBSTANTIVE
REMEDIAL LAW

It does not apply to the following cases:


(1) Election cases,
(2) Land registration cases,
(3) Cadastral cases
(4) Naturalization cases,

LAW

VIS--VIS

Substantive Law - creates, defines and


regulates rights and duties regarding life,
liberty or property which when violated gives
rise to a cause of action (Bustos v. Lucero, 81
Phil. 640)
2

UP LAW BOC

CIVIL PROCEDURE

SUBSTANTIVE LAW

REMEDIAL LAW

Creates, defines, or
regulates
rights,
concerning life, liberty
or property or the
powers of agencies or
instrumentalities for the
administration of public
affairs
It makes vested rights
possible

Legislation
providing
means or methods
whereby
causes
of
action
may
be
effectuated,
wrongs
redressed, and relief
obtained; also called
Adjective Law

Prospective
application

in

Cannot be enacted by
the SC

REMEDIAL LAW

shared by the Court with Congress, more so


with the executive. [Echegaray v. Secretary of
Justice]

C.1 POWER OF THE SC TO AMEND


PROCEDURAL RULES
The SC has the sole prerogative to amend,
repeal, or even establish new rules for a more
simplified and inexpensive process, and the
speedy disposition of cases. [Neypes v. CA
(2005)]

It has no vested rights


Governs
acts
and
transactions which took
place (retroactive)
SC
is
expressly
empowered
to
promulgate procedural
rules

The constitutional faculty of the Court to


promulgate rules necessarily carries with it the
power to overturn judicial precedents on points
of remedial law through the amendment of the
Rules of Court. [Pinga v. Heirs of Santiago
(2006)].

C. RULE MAKING POWER OF THE


SUPREME COURT

C.2 POWER OF SC TO SUSPEND

Sec. 5(5), Art. VIII, of the 1987 CONST provides


that that the Supreme Court shall have the
power to promulgate rules concerning:
(1) the protection and enforcement of
constitutional rights,
(2) pleading, practice, and procedure in all
courts;
(3) admission to the practice of law;
(4) the Integrated Bar;
(5) and legal assistance to the underprivileged

The Rules of Court shall be liberally construed


in order to promote their objective of securing
a just, speedy and inexpensive disposition of
every action and proceeding. [Rule 1.6]
The courts have the power to relax or suspend
procedural rules, or to except a case from their
operation when compelling reasons so warrant
or when the purpose of justice requires it. What
constitutes good and sufficient cause that
would merit suspension of the rules is
discretionary upon the courts. [Commr of
Internal Revenue v. Mirant Pagbilao Corp.]

The same section sets forth the limitations to


the power:
(1) The rules shall provide a simplified and
inexpensive
procedure
for
speedy
disposition of cases;
(2) The rules shall be uniform for courts of the
same grade; and
(3) The rules shall not diminish, increase or
modify substantive rights.

Procedural rules were conceived to aid the


attainment of justice. If a stringent application
of the rules would hinder rather than serve the
demands of substantial justice, the former
must yield to the latter. [City of Dumaguete v.
Phil. Ports Authority]

The 1987 Constitution took away the power of


Congress to repeal, alter or supplement rules
concerning pleading, practice and procedure.
The power to promulgate rules is no longer

However, compliance with the procedural rules


is the general rule, and abandonment thereof
should only be done in the most exceptional
circumstances. [Pilapil v. Heirs of Briones]
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as Distinguished from a Judge


A court is an organ of government with a
personality separate and distinct from the
judge who sits on it. [People v. Carlos]

Save for the most persuasive reasons, strict


compliance with the rules is enjoined to
facilitate the orderly administration of justice.
[Novateknika v. PNB]

Court
Tribunal officially
assembled under
authority of law
Comparable to
corporation

Concomitant to a procedure adopting a liberal


application of the rules should be an effort on
the part of the party invoking liberality to
explain his failure to abide by the rules.
[Abrenica v. Abrenica]

Judge
Officer
tribunal

of

such

a A physical or natural
person

Jurisdiction does not attach to the judge but to


the court. The continuity of a court and the
efficacy of its proceedings are not affected by
the death, resignation, or cessation from the
service of the judge presiding over it. [ABC
Davao Auto Supply v. CA (1998)].

They must be able to hurdle that heavy burden


of proving that they deserve an exceptional
treatment. The Court did not intend to forge a
bastion for erring litigants to violate the rules
with impunity. [Prieto v. Alpadi Development
Corp. (2013)]

D.2 CLASSIFICATION OF PHIL. COURTS

The reasons which would warrant suspension


of the Rules are:
(1) The existence of special and compelling
circumstances;
(2) The merits of the case;
(3) A cause not entirely attributable to the
fault or negligence of the party favored by
the suspension;
(4) A lack of any showing that the reviw
sought is merely frivolous or dilatory; and
(5) The rights of the other party will not be
unjustly prejudiced thereby. [Sarmiento v.
Zaratan]

i. Courts of original and appellate jurisdiction


Courts of original jurisdiction Those courts in
which, under the law, actions or proceedings
may be originally commenced.
Courts of appellate jurisdiction Courts which
have the power to review on appeal the
decisions or orders of a lower court. [Rule
egalado]
ii. Courts of general and special jurisdiction
Courts of general jurisdiction Those
competent to decide their own jurisdiction and
to take cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.

D. NATURE OF PHILIPPINE COURTS


D.1 MEANING OF A COURT
Court an organ of government belonging to
the judicial department, the function of which
is the application of the laws to controversies
brought before it as well as the public
administration of justice.

Courts of special or limited jurisdiction Those


which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Rule egalado]

It is also the place where justice is


administered. [Riano citing Blacks Law
Dictionary, Am. Jur. and C. J. S.]

iii. Constitutional and statutory courts


Constitutional courts Those which owe their
creation and existence to the Constitution and,
therefore cannot be legislated out of existence
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CIVIL PROCEDURE

or deprived by law of the jurisdiction and


powers unqualifiedly vested in them by the
Constitution.
e.g.
Supreme
Court;
Sandiganbayan is a constitutionally-mandated
court but created by statute.

REMEDIAL LAW

Courts not of record Courts which are not


required to keep a written record or transcript
of proceedings held therein.
All Philippine courts, including inferior courts,
are now courts of record. [Riano]

Statutory courts Those created, organized


and with jurisdiction exclusively determined by
law. [Rule Regalado]

D.3 PRINCIPLE OF JUDICIAL HIERARCHY


Doctrine of hierarchy of courts Where courts
have concurrent jurisdiction over a subject
matter, a case must be filed before the lowest
court possible having the appropriate
jurisdiction, except if one can advance a special
reason which would allow direct recourse to a
higher court.

iv. Courts of law and equity


Courts of Law- Those courts which administer
the law of the land. They settle cases according
to law.
Courts of Equity- Those courts which rules
according to the precepts of equity or justice.
They settle cases according to the principles of
equity referring to principles of justice, fairness
and fair play.
Philippine courts are both courts of law and
equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same
tribunal. [US v. Tamparong (1998)]

The rationale is two-fold:


(1) It would be an imposition upon the limited
time of the Court; and
(2) It would inevitably result in a delay, in the
adjudication of cases, which are remanded
or referred to the lower court as the proper
forum, or a trier of facts. [People v.
Azarraga]

v. Superior and Inferior Courts


Superior courts Courts which have the power
of review or supervision over another and lower
court.

The SC may disregard the doctrine if warranted


by the nature and importance of the issues
raised in the interest of speedy justice and to
avoid future litigations.

Inferior courts Those which, in relation to


another court, are lower in rank and subject to
review and supervision by the latter. [Rule
egalado]

Direct resort to the SC has been allowed in the


following cases:
(1) where there are special and important
reasons clearly stated in the petition;
(2) When dictated by public welfare and the
advancement of public policy;
(3) When demanded by the broader interest of
justice;
(4) When the challenged orders were patent
nullities;
(5) When
analogous
exceptional
and
compelling circumstances called for and
justified the immediate and direct handling

vi. Courts of record and not of record


Courts of record Those whose proceedings
are enrolled and which are bound to keep a
written record of all trials and proceedings
handled by them. [Rule egalado]
There exists a strong presumption as to the
veracity of its records that cannot be
collaterally attacked except for fraud.
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CIVIL PROCEDURE

by the Court. [Rule epublic v. Caguioa


(2013)]

REMEDIAL LAW

(2) to determine WON there has been grave


abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch or instrumentality of Government.
[Sec. 1, Art. VIII, 1987 Constitution]

D.4 DOCTRINE OF NON-INTERFERENCE


Also known as the doctrine of judicial stability

Judicial review -- the power of the Court to


declare a law, treaty, international or executive
agreement, presidential decree, proclamation,
order, instruction, ordinance, or regulation
unconstitutional.

Courts of equal and coordinate jurisdiction


cannot interfere with each others orders
[Lapu-lapu Development and Housing Corp. v.
Group Management Corp. (2002)]
The principle also bars a court from reviewing
or interfering with the judgment of a co-equal
court over which it has no appellate jurisdiction
or power of review. [Villamor v. Salas (1991)]

A. ASPECTS OF JURISDICTION
[Boston Equity Resources, Inc. v. CA (2013)]

The doctrine applies with equal force to


administrative bodies. When the law provides
for an appeal from the decision of an
administrative body to the SC or CA, it means
that such body is co-equal with the RTC in
terms of rank and stature, and logically beyond
the control of the latter [Phil Sinter Corp. v.
Cagayan Electric Power (2002)].

A.1 JURISDICTION OVER THE PARTIES


The manner by which the court acquires
jurisdiction over the parties depends on
whether the party is the plaintiff or the
defendant.
Jurisdiction over the plaintiff is acquired by his
filing of the complaint or petition. By doing so,
he submits himself to the jurisdiction of the
court. [Davao Light & Power Co., Inc. v CA
(1991)]

General Rule: No court has the authority to


interfere by injunction with the judgment of
another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare
as unjust a judgment of another court

Jurisdiction over the person of the defendant is


acquired:
(1) by his voluntary appearance In court and his
submission to its authority; or
(2) by service of summons. [Rule 14.20;
Macasaet v. Co (2013)]

Exception: The doctrine of judicial stability


does not apply where a third party claimant is
involved

II. Jurisdiction

Jurisdiction over the person of the defendant is


necessary for the court to validly try and decide
a case only in an action in personam. It is not a
prerequisite in an action in rem or quasi in rem,
provided that the court acquires jurisdiction
over the res. [Alba v. CA (2005)]

Jurisdiction the authority to try, hear and


decide a case. [Tolentino v. Leviste (2004)]
Judicial Power includes the duty of the courts
of justice:
(1) to settle actual controversies involving
rights, which are legally demandable and
enforceable; and

An objection to jurisdiction over the person of


the defendant may be raised as a ground in a

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Motion to Dismiss [Rule .16.1(a)] or as an


affirmative defense in an Answer [Rule 16.6].

Renders a judgment void


or voidable.

However, if not raised in such Motion or


Answer, it is deemed waived. It is not one of
those defenses not deemed waived under
Section 1, Rule 9. [Boston Equity Resources, Inc.
v. CA (2013)]

Ground for reversal only


if it is shown that
prejudice has been
caused.

iii. How Conferred and Determined


[Medical Plaza Makati Condominium v. Cullen]
Jurisdiction over subject matter is conferred by
law, which may be either the Constitution or
statute. [City of Dumaguete v. PPA]

A.2 JURISDICTION OVER THE SUBJECT


MATTER
Jurisdiction over the subject matter the power
of a particular court to hear the type of case
that is then before it [Riano citing Blacks Law
Dictionary]

Since jurisdiction over the subject matter is


conferred by law, it cannot be:
(1) granted by agreement of the parties;
(2) acquired, waived, enlarged, or diminished
by any act or omission of the parties; or
(3) conferred by the acquiescence of the courts.
[De la Rosa v. Roldan]
(4) subject to compromise [Article 2035, Civil
Code]

It is the power to hear and determine cases of


the general class to which the proceedings in
question belong. [Rule eyes v. Diaz (1941)]
i. Jurisdiction Versus the Exercise of Jurisdiction
Jurisdiction refers to the power or authority of
the court. [Arranza v. BF Homes (2000)] while
the exercise of this power or authority is the
exercise of jurisdiction.

The statute in force at the time of the


commencement of the action determines the
jusridiction of the courts. [Baritua v. Mercader]
Jurisdiction over the subject matter is
determined by the allegations in the complaint,
which comprise a concise statement of the
ultimate facts constituting the plaintiffs cause
of action.

Jurisdiction is the authority to decide a case


and not the decision rendered therein. When
there is jurisdiction over the person and the
subject matter, the decision on all other
questions arising in the case is but an exercise
of jurisdiction. [Republic v. G Holdings, Inc.]

It does not depend on whether the plaintiff is


entitled to recover on some or all the claims
asserted, as the averments in the complaint
and the character of the relief sought are the
ones to be consulted. [City of Dumaguete v.
PPA]

ii. Error of Jurisdiction as Distinguished from


Error of Judgment
Error of jurisdiction
One where the act
complained of was (1)
without jurisdiction, in
excess of jurisdiction, or
with grave abuse of
discretion amounting to
lack of jurisdiction.
Correctible only by the
extraordinary writ of
certiorari.

REMEDIAL LAW

Error of judgment
One which the court
may commit in the
exercise
of
its
jurisdiction. It includes
errors of procedure or
mistakes in the courts
findings.

It also does not depend upon defenses set up


in the answer or upon the motion to dismiss;
otherwise, the question would depend almost
entirely on the defendant.
Note: The MTC does not lost jurisdiction over
ejectment cases by mere allegation of a

Correctible by appeal.

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tenancy relationship. However, if after hearing,


tenancy had in fact been shown to be the real
issue, the court should dismiss the case for lack
of jurisdiction. [Hilado v. Chavez]

REMEDIAL LAW

(9) when the issue of non-exhaustion of


administrative remedies has been rendered
moot;
(10) when there is no other plain, speedy,
adequate remedy;
(11) when strong public interest is involved; and
(12) in quo warranto proceedings. [Province of
Aklan v. Jody King Construction and
Development Corp. (2013)]

iv. Doctrine of Primary Jurisdiction


Courts cannot and will not resolve 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 [Paloma v. Mora (2005)].

v. Doctrine of Adherence of Jurisdiction


Also known as doctrine of continuity of
jurisdiction
Once jurisdiction has attached, cannot be
ousted by subsequent happenings or events,
although of a character which would have
prevented jurisdiction from attaching in the
first instance. The court retains that jurisdiction
until it finally disposes of the case. [Bantua v.
Mercader (2001)]

The objective is to guide a court in determining


whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court [Riano citing Omictin v. CA
(2007)]

As a consequence, jurisdiction is not affected


by a new law placing a proceeding under the
jurisdiction of another tribunal, except:
(1) Where there is an express provision in the
statute
(2) The statute is clearly intended to apply to
actions pending before its enactment.
[People v. Cawaling (1998)]

The exceptions to the Doctrine of Primary


Jurisdiction are:
(1) where there is estoppel on the part of the
party invoking the doctrine;
(2) where the challenged administrative act is
patently illegal, amounting to lack of
jurisdiction;
(3) where there is unreasonable delay or
official inaction that will irretrievably
prejudice the complainant;
(4) where the amount involved is relatively
small;
(5) where the question involved is purely legal
and will ultimately have to be decided by
the courts;
(6) where judicial intervention is urgent;
(7) when its application may cause great and
irreparable damange;
(8) where the controverted acts violate due
process;

vi. Objections to Jurisdiction over the Subject


Matter
When it appears from the pleadings or
evidence on record that the court has no
jurisdiction over the subject matter, the court
shall dismiss the same. [Rule 9, Sec. 1]
The court may on its own initiative object to an
erroneous jurisdiction and may ex mero motu,
take cognizance of lack of jurisdiction at any
point in the case and has a clearly recognized
right to determine its own jurisdiction [Fabian v.
Desierto (1998)].

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REMEDIAL LAW

A.3 JURISDICTION OVER THE ISSUES

The earliest opportunity of a party to raise the


issue of jurisdiction is in a motion to dismiss
filed before the filing or service of an answer.
Lack of jurisdiction over subject matter is a
ground for a motion to dismiss. [Rule 16, Sec.
1(b)]

It is the power of the court to try and decide


issues raised in the pleadings of the parties.
[Rule eyes v. Diaz]
An issue is a disputed point or question to
which parties to an action have narrowed down
their several allegations and upon which they
are desirous of obtaining a decision.

If no motion is filed, the defense of lack of


jurisdiction may be raised as an affirmative
defense in the answer. [Rule 16.6].

Generally, jurisdiction over the issues is


conferred and determined:
(1) by the pleadings of the parties, which
present the issues to be tried and
determine whether or not the issues are of
fact or law [Rule eyes v. Diaz];
(2) by stipulation of the parties as when, in the
pre-trial, the parties enter into stipulations
of facts or enter into agreement simplifying
the issues of the case [Rule .18.2];
(3) by waiver or failure to object to evidence on
a matter not raised in the pleadings. Here
the parties try with their express or implied
consent or issues not raised by the
pleadings. [Rule 10.5]

Jurisdiction over the subject matter may be


raised at any stage of the proceedings, even for
the first time on appeal. The reason for this is
that jurisdiction is conferred by law, and lack of
it affects the very authority of the court to take
cognizance of the action. [Asiatrust
Development Bank v First Aikka Development,
Inc.]
When the court dismisses the complaint for
lack of jurisdiction over subject matter, it is
submitted that the court should not remand
the case to another court with the proper
jurisdiction. Its only has authority to dismiss
and not to make any other order. [Riano]

A.4 JURISDICTION OVER THE RES OR


PROPERTY IN LITIGATION

vi. Effect of Estoppel on Objections to


Jurisdiction
General Rule: Estoppel does not apply to
confer jurisdiction to a tribunal that has none
over a cause of action. Jurisdiction is conferred
by law. Where there is none, no agreement of
the parties can provide one. Settled is the rule
that the decision of a tribunal not vested with
appropriate jurisdiction is null and void.
[SEAFDEC-AQD v. NLRC (1992)]

Res, in civil law is a thing or object. It is


everything that may form an object of rights as
opposed to a persona, which is the subject of
rights. It includes object, subject matter or
status. [Riano citing Blacks Law Dictionary]
Jurisdiction over the res refers to the courts
jurisdiction over the thing or the property which
is the subject of the action.

Exception: Participation in all stages of the


case before the trial court, that included
invoking its authority in asking for affirmative
relief, effectively barred petitioner by estoppel
from challenging the courts jurisdiction.
[Soliven v. Fastforms (2004)]

Jurisdiction over the res may be acquired:


(1) By placing the property under its custody
(custodia legis), or by seizure of the thing
under legal process whereby it is brought
into actual custody of law

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(2) By statutory authority conferring upon the


court the power to deal with certain
property within the territorial jurisdiction.

REMEDIAL LAW

By way of petition for review on certiorari


(appeal by certiorari under Rule 45) against:
(1) CA
(2) Sandiganbayan
(3) RTC on pure questions of law and CTA in
its decisions rendered en banc.

This is called potential jurisdiction over the


res and results from institution of a legal
proceedings under such statute by which
the power of the court is recognized and
made effective.

This appellate jurisdiction applies:


(1) In cases involving the constitutionality or
validity of a law or treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty,
jurisdiction of a lower court; and
(2) All cases in which the jurisdiction of any
court is in issue;
(3) All cases in which an error or question of
law is involved

B. JURISDICTION OF COURTS
B.1 SUPREME COURT
Exclusive Original Jurisdiction
Petitions for certiorari, prohibition and
mandamus against the CA, COMELEC, COA,
CTA, Sandiganbayan.
Concurrent Original Jurisdiction
(1) With CA
(a) Petitions for certiorari, prohibition, and
mandamus against:
(i) Regional Trial Courts;
(ii) Civil Service Commission;
(iii) Central Board of Assessment
Appeals;
(iv) NLRC, and other Quasi-judicial
agencies.
(b) Petitions for writ of kalikasan

The SC may resolve factual issues in certain


exceptional circumstances [Josefa v. Zhandong,
(2003)]
(1) The
conclusion
is
grounded
on
speculations/ surmises /conjectures
(2) The
inference
is
manifestly
mistaken/absurd/impossible;
(3) There is grave abuse of discretion;
(4) The
judgment
is
based
on
a
misapprehension of facts;
(5) The findings of fact are conflicting;
(6) There is no citation of specific evidence on
which the factual findings are based;
(7) The finding of absence of facts is
contradicted by the presence of evidence
on record;
(8) The findings of the CA are contrary to those
of the trial court;
(9) The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a
different conclusion;
(10) The findings of the CA are beyond the
issues of the case;

(2) With RTC in cases affecting ambassadors,


public ministers and consuls.
(3) With CA and RTC
(a) petitions for certiorari, prohibition and
mandamus against lower courts and
bodies;
(b) petitions for quo warranto;
(c) petitions for writs of habeas corpus.
(4) With CA, RTC and Sandiganbayan
(a) Petitions for writ of amparo and habeas
data.
Appellate Jurisdiction
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(11) Such findings are contrary
admissions of both parties.

CIVIL PROCEDURE
to

the

REMEDIAL LAW

(c) from decisions of the Office of the


Ombudsman
in
administrative
disciplinary cases.

B.2 COURT OF APPEALS


B.3 COURT OF TAX APPEALS

Exclusive Original Jurisdiction in actions for


annulment of judgments of the RTC

UNDER RA 9282 and RULE 5, AM 05-11-07


CTA

Concurrent Original Jurisdiction


(1) With SC
(a) Petitions for certiorari, prohibition, and
mandamus against:
(i) Regional Trial Courts;
(ii) Civil Service Commission;
(iii) Central Board of Assessment
Appeals;
(iv) NLRC, and other Quasi-judicial
agencies.
(b) Petitions for writ of kalikasan

Exclusive Appellate Jurisdiction:


(1) Decisions of Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue
taxes, fees or other charges, penalties in
relation thereto, or other matters arising
under the NIRC or other laws administered
by BIR;
(2) Inaction by CIR in the above-mentioned
cases, where the NIRC or other applicable
law provides a specific period of action, in
which case the inaction shall be deemed
an implied denial;
(3) Decisions, orders or resolutions of the
RTCs in local taxes originally decided or
resolved by them in the exercise of their
original or appellate jurisdiction;
(4) Decisions of the Commissioner of Customs
in cases involving liability for customs
duties, fees or other charges, seizure,
detention or release of property affected,
fines, forfeitures or other penalties in
relation thereto, or other matters arising
under the Customs law or other laws
administered by BOC;
(5) Decisions of the Central Board of
Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving
the assessment and taxation of real
property originally decided by the
provincial or city board of assessment
appeals;
(6) Decision of the Secretary of Finance on
customs
cases
elevated
to
him
automatically for review from decisions of
the Commissioner of Customs which are

(2) With SC and RTC


(a) petitions for certiorari, prohibition and
mandamus against lower courts and
bodies;
(b) petitions for quo warranto;
(c) petitions for writs of habeas corpus.
(3) With SC, RTC and Sandiganbayan
(a) Petitions for writ of amparo and habeas
data.
Exclusive Appellate Jurisdiction
(1) By ordinary appeal:
(a) from the RTC and the Family Courts
(b) over decisions of the MTCs in cadastral
or land registration cases pursuant to
its delegated jurisdiction
(2) By petition for review:
(a) from judgments of the RTC rendered in
its appellate jurisdiction.
(b) from decisions, resolutions, orders or
awards of the Civil Service Commission
and other bodies mentioned in R43;
and

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adverse to the government under Sec. 2315


of the Tariff and Customs Code;
(7) Decisions of Secretary of Trade and
Industry in the case of non-agricultural
articles, and the Secretary of Agriculture in
the case of agricultural articles, involving
dumping duties and countervailing duties
under Secs. 301 and 302, respectively, of
the Tariff and Customs Code, and
safeguard measures under RA 8800,
where either party may appeal the decision
to impose or not to impose said duties.

REMEDIAL LAW

(2) In tax collection cases


(a) Over appeals from the judgments,
resolutions or orders of the RTC in tax
collection cases originally decided by
them in their respective territorial
jurisdiction; and
(b) Over petitions for review of the
judgments, resolutions or orders of the
RTC in the exercise of their appellate
jurisdiction over tax collection cases
originally decided by the MeTCs, MTCs
and MCTCs in their respective
jurisdiction.

Exclusive Original Jurisdiction


(1) In tax collection cases involving final and
executory assessments for taxes, fees,
charges and penalties, where the principal
amount of taxes and fees claimed,
exclusive of charges and penalties, at least
P1M.
(2) Over all criminal cases arising from
violation of the NIRC and the TCC and
other laws, part of laws, or special laws
administered by the BIR or the BOC where
the principal amount of taxes and fees,
exclusive of charges and penalties claimed
is less than P1M or where there is no
specified amount claimed (the offenses or
penalties shall be tried by the regular
courts and the jurisdiction of the CTA shall
be appellate);

B.4 SANDIGANBAYAN
Original Jurisdiction:
(1) Violations of RA 3019, or the Anti-Graft
and Corrupt Practices Act
(2) Violations of RA 1379, or the Anti-Ill-Gotten
Wealth Act
(3) Sequestration cases, under Executive
Order Nos. 1, 2, 14, and 14-A
(4) Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC) where one or more of the principal
accused are occupying the following
positions in the government, whether in
permanent, acting or interim capacity, at
the time of the commission of the offense:
(a) Officials of the executive branch
occupying the positions of regional
director
and
higher,
otherwise
classified as Grade 27 and higher, of
the Compensation and Position
Classification Act of 1989 (RA 6758)
(b) Members of Congress and officials
thereof classified as G-27 and up under
RA 6758
(c) Members of the Judiciary without
prejudice to the provisions of the
Constitution
(d) Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution

Exclusive Appellate Jurisdiction


(1) In criminal offenses
(a) Over appeals from the judgment,
resolutions or orders of the RTC in tax
cases originally decided by them, in
their respective territorial jurisdiction,
and
(b) Over petitions for review of the
judgments, resolutions or orders of the
RTC in the exercise of their appellate
jurisdiction over tax cases originally
decided by the MeTCs, MTCs, and
MCTCs in their respective jurisdiction.
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(e) All other national and local officials


classified as Grade 27 and higher
under RA 6758
(f) Other offenses or felonies committed
by the public officials and employees
mentioned in Sec. 4(a) of RA 7975 as
amended by RA 8249 in relation to
their office
(g) Civil and criminal cases filed pursuant
to and in connection with EO Nos. 1, 2,
14-A (Sec. 4, RA 8249)

REMEDIAL LAW

If the basic issue is something other than the


right to recover a sum of money, such that the
money claim is purely incidental to, or a
consequence of, the principal relief sought, the
action is one where the subject of the litigation
may not be estimated in terms of money.
[Soliven v. Fastforms (1992)]
(2) Civil actions involving title to, or possession
of real property, or any interest therein,
where assessed value exceeds P20,000
outside Metro Manila, or exceeds P50,000
in Metro Manila

NOTE: Without the office, the crime cannot be


committed.

Exception: Forcible entry and unlawful


detainer cases

Appellate Jurisdiction over final judgments,


resolutions or orders of the RTC whether in the
exercise of their original or appellate
jurisdiction over crimes and civil cases falling
within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.

(3) If the amount involved exceeds P300,000


outside Metro Manila or exceeds
P400,000 in Metro Manila in the following
cases:
(a) Actions in admiralty and maritime
jurisdiction, where the amount refers to
the demand or claim
(b) Matters of probate (testate or
intestate), where the amount refers to
the gross value of the estate
(c) Other actions involving personal
property, where the amount refers to
the value of the property
(d) Demand for money, where the amount
refers to the demand exclusive of
interest, damages of whatever kind,
attorneys fees, litigation expenses and
costs.

Concurrent Original Jurisdiction with SC, CA,


and RTC for petitions for writs of habeas data
and amparo
NOTE: The requisites that the offender the
offender occupies salary Grade 27 and the
offense must be intimately connected with the
official function must concur for the SB to have
jurisdiction

B.5 REGIONAL TRIAL COURTS


Exclusive Original Jurisdiction
(1) The action is incapable of pecuniary
estimation

The exclusion of damages of whatever kind


applies to cases where the damages are merely
incidental to or a consequence of the main
cause of action.

If the action is primarily for the recovery of a


sum of money, the claim is considered capable
of pecuniary estimation, and jurisdiction will
depend on the amount of the claim. [Rule CPI v.
CA (2002)]

However, if the claim for damages is the main


cause of action, or one of the causes of action,
the amount of such claim shall be considered
[Admin Circ. No. 09-94]
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officers or managers of such


corporations,
partnerships
or
associations
(d) Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases
where
the
corporation,
partnership of association possesses
sufficient property to cover all its debts
but foresees the impossibility of
meeting them when they respectively
fall due or in cases where the
corporation, partnership of association
has no sufficient assets to cover its
liabilities,
but
is
under
the
management of a Rehabilitation
Receiver or Management Committee.

(4) All actions involving the contract of


marriage and family relations, and all civil
actions falling within the exclusive original
jurisdiction of the Juvenile and Domestic
Relations Court and of the Court of
Agrarian Reform
See Jurisdiction of Family Courts, infra.
In areas where there are no Family Courts, the
cases within their jurisdiction shall be
adjudicated by the RTC (Sec. 17, RA 8369)
(5) All cases not within the exclusive
jurisdiction of any court, tribunal, person,
or body exercising judicial or quasi-judicial
functions (General Original Jurisdiction)

Concurrent Original Jurisdiction


(1) With SC in cases affecting ambassadors,
public ministers and consuls.
(2) With SC and CA
(a) petitions for certiorari, prohibition and
mandamus against lower courts and
bodies;
(b) petitions for quo warranto;
(c) petitions for writs of habeas corpus.
(3) With SC, CA and Sandiganbayan
(a) Petitions for writ of amparo and habeas
data.
(4) With Insurance Commissioner for claims
not exceeding P100,000

(6) Jurisdiction to Hear and Decide IntraCorporate


Controversies
(Sec.
52,
Securities and Regulations Code)
(a) Cases involving devises or schemes
employed by or any acts, of the board
of directors, business associates, its
officers or partnership, amounting to
fraud and misrepresentation which
may be detrimental to the interest of
the public and/or of the stockholders,
partners, members of associations or
organizations registered with the SEC
(b) Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates; between any or
all of them and the corporation,
partnership or association of which
they are stockholders, members or
associates, respectively; and between
such corporation , partnership or
association and the state insofar as it
concerns their individual franchise or
right to exist as such entity
(c) Controversies in the election or
appointments of directors, trustees,

Appellate Jurisdiction over cases decided by


lower courts in their respective territorial
jurisdictions, except those made in the exercise
of delegated jurisdiction, which are appealable
to the CA.
Special Jurisdiction - SC may designate certain
branches of RTC to try exclusively criminal
cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not
falling within the jurisdiction of any quasi-

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judicial body and other special cases in the


interest of justice.

B.6 FAMILY COURTS


(RA 8369)
(1) Petitions for guardianship, custody of
children and habeas corpus involving
children;
(2) Petitions for adoption of children and the
revocation thereof;
(3) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to status and property relations of
husband and wife or those living together
under different status and agreements,
and petitions for dissolution of conjugal
partnership of gains;
(4) Petitions
for
support
and/or
acknowledgment;
(5) Summary judicial proceedings brought
under the provisions of the Family Code;
(6) Petitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for voluntary
or involuntary commitment of children, the
suspension, termination or restoration of
parental authority and other cases
cognizable under PD 603, EO 56, s. 1986,
and other related laws;
(7) Petitions for the constitution of the family
home;
(8) Cases against minors cognizable under the
Dangerous Drugs Act, as amended;
(9) Violations of RA 7610, or the Special
Protection of Children Against Child Abuse,
Exploitation and Discrimination Act; and
(10) Cases of domestic violence against Women
and Children

(2)

(3)
(4)
(5)
(6)

(7)
(8)
(9)

REMEDIAL LAW

not exceed P400,000 in Metro Manila in


the following cases:
(a) Actions in admiralty and maritime
jurisdiction;
(b) Matters of probate (testate or
intestate);
(c) Other actions involving personal
property;
(d) Demand for money;
Actions involving title to, or possession of,
real property, or any interest therein where
the assessed value of the property or
interest therein does not exceed P20,000
outside Metro Manila or does not exceed
P50,000 in Metro Manila
Inclusion and exclusion of voters
Those governed by the Rules on Summary
Procedure
Forcible entry and unlawful detainer
(FEUD)
With jurisdiction to resolve issue of
ownership to determine ONLY issue of
possession (provisional only)
Irrespective of the amount of damages or
unpaid rentals sought to be recover
Where attorneys fees are awarded, the
same shall not exceed P20,000
Other civil cases, except probate
proceeding, where the total amount of the
plaintiffs claim does not exceed P200,000
in MM, exclusive of interests and costs.

Special Jurisdiction over petition for writ of


habeas corpus OR application for bail in
criminal cases in the absence of all RTC judges
in the province or city
Delegated Jurisdiction to hear and decide
cadastral and land registration cases where:
(1) There is no controversy over the land
(2) In case of contested lands, the value does
not exceed P100, 000:
(a) The value is to be ascertained:
(i) By the claimants affidavit

B.7 METROPOLITAN TRIAL COURTS/


MUNICIPAL TRIAL COURTS
Exclusive Original Jurisdiction
(1) If the amount involved does not exceed
P300,000 outside Metro Manila or does

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(ii) By agreement of the respective


claimants, if there are more than
one
(iii) From the corresponding tax
declaration of the real property

REMEDIAL LAW

Concurrent Jurisdiction of Sharia District Courts


The Sharia courts shall have original
jurisdiction concurrently with existing civil
courts for:
(1) Petitions of Muslim for the constitution of
the family home, change of name and
commitment of an insane person to an
asylum;
(2) All other personal and legal actions not
mentioned in par. (d) of the immediately
preceding topic, wherein the parties
involved are Muslims
Exception: those for forcible entry and
unlawful detainer, which shall fall under
the exclusive jurisdiction of the MTC.
(3) All special civil actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims

NOTE: MTC decisions in cadastral and land


registration cases are appealable in the same
maner as RTC decisions
1st level courts:
(a) Metropolitan Trial Court Metro
Manila;
(b) Municipal Trial Courts in Cities
situated in cities
(c) Municipal Circuit Trial Court
composed of multi-sala
(d) Municipal Trial Courts in one
municipality

B.8 SHARIA COURTS


Exclusive Original Jurisdiction of Sharia District
Courts
(1) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under the Code of Muslim Personal Laws;
(2) All cases involving disposition, distribution
and settlement of estate of deceased
Muslims, probate of wills, issuance of
letters of administration of appointment
administrators or executors regardless of
the nature or aggregate value of the
property;
(3) Petitions for the declaration of absence
and death for the cancellation and
correction of entries in the Muslim
Registries;
(4) All actions arising from the customary
contracts in which the parties are Muslims,
if they have not specified which law shall
govern their relations; and
(5) All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and all
other auxiliary writs and processes in aid of
its appellate jurisdiction

Appellate Jurisdiction of Sharia District Courts


Such courts have appellate jurisdiction over all
cases tried in the Sharia Circuit Courts within
their territorial jurisdiction.
Exclusive Original Jurisdiction of Sharia Circuit
Courts
(1) Offenses defined and punished under PD
1083
(2) Disputes relating to:
(a) Marriage;
(b) Divorce under PD 1083;
(c) Betrothal or breach of contract to
marry;
(d) Customary dowry (mahr);
(e) Disposition and distribution of property
upon divorce;
(f) Maintenance
and support
and
consolatory gifts (muta); and
(g) Restitution of marital rights
(3) Disputes relative to communal properties

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The Sharia District Court or the Sharia Circuit


Court may constitute an Agama Arbitration
Council to settle certain cases amicably and
without formal trial. The Council is composed
of the Clerk of Court as Chairperson and a
representative of each of the conflicting parties.

C. JURISDICTION
CLAIMS

OVER

REMEDIAL LAW

amount of damages or unpaid rentals


sought to be recovered; and
(2) All
other
cases,
except
probate
proceedings where the total amount of the
plaintiffs claim does not exceed P100,000
(outside Metro Manila) or P200,000 (in
Metro Manila), exclusive of interest and
costs.

SMALL

Probate proceedings are not covered by the


Rule on Summary Procedure even if the gross
value of the estate does not exceed the abovementioned amounts.

MTCs, MeTCs and MCTCs shall have


jurisdiction over actions for payment of money
where the value of the claim does not exceed
P100,000 exclusive of interest and costs (Sec.
2, AM 08-8-7-SC, Oct. 27, 2009).

Prohibited Pleadings
[Sec. 19, 1991 Revised Rule on Summary
Procedure]
(1) Motion to dismiss the compliant except on
the ground of
(a) failure to comply with barangay
conciliation proceedings; or
(b) lack of jurisdiction over the subject
matter
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file
pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.

Applicability [Sec. 4, AM 08-8-7-SC, as


amended]
(1) All actions which are purely civil in nature,
where the claim or relief prayed for by the
plaintiff is solely for payment or
reimbursement of sum of money, and
(2) The civil aspect of criminal actions, either
filed before the institution of the criminal
action, or reserved upon the filing of the
criminal action in court, pursuant to Rule
111.
These claims may be:
(1) For money owed under the contracts of
lease, loan, services, sale, or mortgage;
(2) For damages arising from fault or
negligence, quasi-contract, or contract;
and
(3) The enforcement of a barangay amicable
settlement or an arbitration award
involving a money claim pursuant to Sec.
417 of RA 7160 (LGC).

E. CASES COVERED BY BARANGAY


CONCILIATION

D. CASES COVERED BY RULES ON


SUMMARY PROCEDURE

The Lupon of each barangay shall have the


authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes

Civil Cases subject to Summary Procedure


(1) All cases of forcible entry and unlawful
detainer (FEUD), irrespective of the
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injunction, attachment, replevin and


support pendente lite
(d) Where the action may be barred by
statute of limitation
(10) Labor disputes or controversies arising
from employer-employee relationship
(11) Where the dispute arises from the CARL
(12) Actions to annul judgment upon a
compromise which can be directly filed in
court.

EXCEPT:
(1) Where one party is the government or any
subdivision or instrumentality thereof
(2) Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
(3) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
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 other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary 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 either as complainants or
respondents
(9) Disputes where urgent legal action is
necessary to prevent injustice from being
committed
or
further
continued,
specifically:
(a) A criminal case where the accused is
under police custody or detention
(b) A petition for habeas corpus by a
person illegally detained or deprived of
his liberty or one acting in his behalf
(c) Actions coupled with provisional
remedies,
such
as
preliminary

NOTE: It is a condition precedent under Rule


16; can be dismissed but without prejudice

F. TOTALITY RULE
Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the claims
in all the claims of action, irrespective of
whether the causes of action arose out of the
same or different transactions (Sec. 33[1], BP
129).

III. Commencement of
Actions to Trial
A. ACTIONS
An ordinary suit in a court of justice by which
one party prosecutes another for the
enforcement or protection of a right or the
prevention or redress of a wrong [Santos v. Vda.
De Caparas, (1959)]
An action is the legal and formal demand of
ones right from another person made and
insisted upon in a court of justice. The
determinative operative act, which converts a
claim into an action is its filing with a court of
justice. [Riano]

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This is distinguished from the cause of action,


which is the fact or combination of facts which
affords a party a right to judicial interference in
his behalf [Into v. Valle (2005)] and which is the
basis of ordinary civil actions. [Rule 2, Sec.1]

REMEDIAL LAW

Special Proceeding remedy by which a party


seeks to establish a status, a right, or a
particular fact. [Rule 1.3(c)]
Action

Special Proceeding
As to Parties
Involves at least 1
Involves at least 2 party or 2 or more
parties
parties in proper
cases
As to cause of action
Involves a right and a
violation of such right May involve a right,
by the defendant, but there need not
which causes some be a violation of this
damage or prejudice right
upon the plaintiff
As to formalities
Requires
the Requires no such
application of legal formalities, as it
remedies
in may be granted
accordance with the upon application
prescribed rules
As to governing rules
Ordinary
rules
of Special rules of
procedure
procedure

A.1 KINDS OF ACTIONS


Civil action -- one by which a party sues
another for the enforcement or protection of a
right, or the prevention or redress of a wrong
[Rule .1.3(a), par.1]
Ordinary civil action civil action that is
governed by the rules for ordinary civil
actions
Special civil action civil that is subject to
the specific rules prescribed for a special
civil action but also governed by the rules
for ordinary civil actions [Rule 1.3(a), par. 2]
Criminal action one by which the State
prosecutes a person for an act or omission
punishable by law [Rule 1, Sec. 3(b)]
Kinds of Ordinary Civil Actions
(1) As to place
(a) Transitory action founded on privity
of contract between parties; brought in
the place where the party resides
(b) Local - action founded on privity of
estate only and there is no privity of
contract; brought in a particular place
(2) As to object
(a) Action in rem
(b) Action quasi in rem
(c) Action in personam
(3) As to foundation
(a) Real
(b) Personal

As to appeal from an Interlocutory Order


Cannot be directly and
immediately appealed
to the appellate court
until
after
final
judgment
on
the
merits

Can be immediately
and
directly
appealed to the
appellate court

A.3 PERSONAL ACTIONS AND REAL


ACTIONS
The distinction is importation for purposes of
determining venue [Riano]
Real Action an action affecting title to or
possession of real property, or interest therein.
[Rule 4, Sec.1]

A.2 CIVIL ACTIONS VERSUS SPECIAL


PROCEEDINGS

A real action is local, i.e. its venue depends


upon the location of the property involved in
the litigation

Civil Action one by which a party sues


another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
[Rule 1.3(a), par.1]
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Not every action involving real property is a


real action because the realty may only be
incidental to the subject matter of the suit.
[Riano]

REMEDIAL LAW

Action in rem one which seeks to determine


the state or condition of a thing. Its
Action quasi in rem one whick seeks to
directly subject the property or interest of
named defendants to the obligation or lien of
the plaintiff.

Personal Action All other actions [Rule 4.2]


A personal action is transitory, i.e. its venue
depends upon the residence of the plaintiff or
the defendant.

Action in personam one which seeks to


enforce personal rights and obligations
brought against the person. Its purpose is to
impose, through the judgment of the court,
some liability directly upon the person of the
defendant.

A.4 LOCAL AND TRANSITORY ACTIONS


Local action
One that could be
instituted
in
one
specific place [Manila
Railroad v. AttorneyGeneral (1911)]

Transitory action
One that could be
prosecuted in any one
of several places
[Manila Railroad v.
Attorney-General
(1911)]
Its venue depends
Venue depends upon upon the residence of
the location of the the plaintiff or the
property involved in defendant at the
the litigation (Riano)
option of the plaintiff
(Riano)

A.6 INDEPENDENT CIVIL ACTIONS


[Rule 111, Sec 3]
An independent civil action may be brought in
the cases provided by:
(1) Article 32 of the Civil Code (Violation of
Constitutional rights by a public officer or
employee, or a private individual)
(2) Article 33 (defamation, fraud, or physical
injuries)
(3) Article 34 (refusal or failure to render aid or
protection by a member of the police
force); and
(4) Article 2176 (quasi-delict)

E.g. Action to recover E.g. Action to recover


real property
sum of money
If action is founded on privity of contract
between parties, then the action is transitory

Physical injuries under Article 33 is used in


the generic sense, and not in reference to the
offense (?) defined in the Revised Penal Code.
It also includes consummated, frustrated, and
attempted homicide and death arising from
delict. [Lanuza v. Ping (1980)]

But if there is no privity of contract and the


action is founded on privity of estate only, such
as a covenant that runs with the land in the
hands of remote grantees, then the action is
local and must be brought in the place where
the land lies

A.5 ACTIONS IN REM, IN PERSONAM, OR


QUASI IN REM
The distinction is important to determine
whether or not jurisdiction over the person of
the defendant is required, and the type of
summons to be employed. [Riano]

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Table: Actions in rem, in personam, and quasi in rem


Action in rem

Action in personam
Action quasi in rem
Directed against particular Directed against particular
Directed against the thing itself
persons
persons
Jurisdiction over the person of
Jurisdiction over the person of Jurisdiction over the person of defendant is not required as
the defendant not required
defendant required
long as jurisdiction over the res
is required
Proceeding to subject the
Action
to
impose
a
Proceeding to determine the
interest of a named defendant
responsibility or liability upon a
state or condition of a thing
over a particular property to an
person directly
obligation or lien burdening it
Judgment is binging only upon
Judgment is binding on the
Judgment
binging
upon
impleaded parties or their
whole world
particular persons
successors in interest
E.g. Action for partition;
E.g.
Probate
proceeding, E.g. Specific performance,
foreclosure of real estate
cadastral proceeding
action for breach of contract
mortgage

B. CAUSE OF ACTION

B.1 RIGHT OF ACTION VERSUS CAUSE OF


ACTION

Cause of action the act or omission by which


a party violates a right of another. [Rule 2.2]

Right of action
The remedial right or
right to relief granted
by law to a party to
institute an action
against a person who
has committed a
delict
or
wrong
against him
Right to sue as a
consequence of the
delict

Every ordinary civil action must be based on a


cause of action [Rule 2.1]
A cause of action stems from the sources of
obligations under Art. 1156 of the Civil Code:
(1) Law,
(2) Contract,
(3) Quasi-contract,
(4) Acts and omissions punishable by law and
(5) Quasi-delict. [Sagrada Orden etc v.
NACOCO (1952)]

Cause of action
The delict or wrongful
act
or
omission
committed by
the
defendant in violation
of the primary rights
of the plaintiff
The delict or wrong

Determined by the
Whether such acts
averments in the
give him right of
pleading
regarding
action determined by
the acts committed by
substantive law
the defendant

Elements of a Cause of Action:


(1) Plaintiffs legal right;
(2) Defendants correlative obligation to
respect plaintiffs right;
(3) Defendants act/omission in violation of
plaintiffs right [Ma-ao Sugar Central v.
Barrios (1947)]

There can be no right of action without a cause


of action being first established [Regalado
citing Espaol v. The Chairman of PVA (1985)]

B.2 FAILURE TO STATE A CAUSE OF


ACTION

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B.3 SPLITTING A SINGLE CAUSE OF


ACTION; EFFECTS

Even if in reality, he plaintiff has a cause of


action against the the defendant, the
complaint may be dismissed if the complaint of
pleading asserting the claim states no cause
of action. [Rule .16.1(g)]

Splitting a Cause of Action The act of


instituting two or more suits on the basis of the
same cause of action. [Rule 2, Sec.4]

The cause of action must unmistakably be


stated or alleged in the complaint. All the
elements required by substantive law must
clearly appear from a mere reading of the
complaint. [Riano]

The pleader divides a single cause of action,


claim, or demand into two or more parts and
brings suit for one of such parts with the intent
to reserve the rest for another separate action.
[Quadra v. CA]

The complaint must contain a concise


statement of the ultimate or essential facts
constituting the plaintiffs cause of action. The
focus is on sufficiency, not veracity, of the
material allegations. [Anchor Savings Bank v.
Furigay]

The test of singleness of cause of action lies in


the singleness of the delict or wrong violating
the rights of one person.
The tests to ascertain whether two suits relate
to a single or common cause of action are:
(1) Whether the same evidence would support
and sustain both causes of action
(2) Whether the defenses in one case may be
used to substantiate the complaint in the
other
(3) Whether the cause of action in the second
case existed at the time of filing of the first
complaint [Umale v. Canoga Park
Development Corp.]

Test of Sufficiency
The existence of the round to dismiss can be
determined only from the facts alleged in the
complaint and from no other, and the court
cannot consider other matters aliunde.
The test is whether, assuming the facts alleged
to be true, the court could render a valid verdict
in accordance with the prayer of the complaint.
[Manaloto v. Veloso III]

For a single cause of action or violation of a


right, the plaintiff may be entitled to several
reliefs. It is the filing of separate complaints for
these several reliefs that constitutes splitting
up of the cause of action which is proscribed by
Rule 2, Sec. 3 and 4. [City of Bacolod v. SM
Brewery (1969)]

However, the Court has considered other


matters aside from the facts alleged in the
complaint, such as:
documents attached to the complaint
[Agrarian Reform Beneficiaries Association v.
Nicolas]
appended annexes, other pleadings, and
admissions on record [Zepeda v. China
Banking Corp.]

Effects:
The filing of one or a judgment upon the merits
in any one is available as a ground for the
dismissal of the others. [Rule 2.4] The remedy
is for the defendant to file a Motion to Dismiss
under Rule 16.

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(1) Filing of the first complaint may be


pleaded in abatement of the second
complaint, on the ground of litis pendentia
[Rule 16.1.(e)]; or

There is no sanction against non-joinder of


separate causes of action since a plaintiff
needs only a single cause of action to maintain
an action (Regalado).

(2) A judgment upon the merits in any of the


complaints is available as ground for
dismissal of the others based on res
judicata [Rule 16.1(f)]

Requisites [Rule 2.5]


(1) The party joining the causes of action shall
comply with the rules on joinder of parties;
(2) The joinder shall not include special civil
actions or actions governed by special
rules;
(3) Where causes of action are between the
same parties but pertain to different
venues or jurisdictions, the joinder may be
allowed in the RTC provided one of the
causes of action are within that courts
jurisdiction and 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 (totality rule)

Rationale
A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3] The
rationale is:
(1) To prevent repeated litigation between the
same parties in regard to the same subject
or controversy;
(2) To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et
eadem causa (No man shall be twice vexed
for one and the same cause);
(3) To avoid the costs and expenses incident to
numerous suits. [City of Bacolod v. SM
Brewery (1969)]

B.4 JOINER AND


CAUSES OF ACTION

MISJOINDER

Misjoinder of Causes of Action


Misjoinder is not a ground for dismissal of an
action [Rule 2.6]

OF

An erroneously joined cause of action may, on


motion of a party or on the initiative of the
court, be severed and proceeded with
separately.

Joinder of Causes of Action the assertion of as


many causes of action as a party may have
against another in one pleading alone.
[Rule .2.5]

If there is no objection to the improper joinder


or the court did not motu proprio direct a
severance, then there exists no bar in the
simultaneous adjudication of all the
erroneously joined causes of action, as long as
the court trying the case has jurisdiction over
all of the causes of action therein
notwithstanding the misjoinder.

It is also the process of uniting two or more


demands or rights of action in one action.
[Riano]
Ratio
To avoid a multiplicity of suits and to expedite
disposition of litigation at minimum cost [Ada v.
Baylon (2012)]

If the court has no jurisdiction to try the


misjoined action, then it must be severed.
Otherwise, adjudication rendered by the court
with respect to it would be a nullity. [Ada v.
Baylon (2012)]C. Parties

The rule however is purely permissive as the


plaintiff can always file separate actions for
each cause of action. [Baldovi v. Sarte (1917)]
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Plaintiff one having an interest in the matter


of the action or in obtaining the relief
demanded.

REMEDIAL LAW

partnership to third persons [Arts. 1768,


1772, Civil Code]
(3) The estate of a deceased person is a
juridical entity that has a personality of its
own [Nazareno v. CA]
(4) The Roman Catholic Church may be a
party; as to its properties, the Archbishop
or diocese to which they belong may be a
party. [Ponce v. Roman Catholic]
(5) A legitimate labor union may sue and be
sued in its registered name [Art. 242(e),
Labor Code]

The term may either refer to the claiming party,


counter-claimant, cross-claimant, or thirdparty plaintiff. [R3.1]
Defendant one claiming an interest in the
controversy or the subject thereof adverse to
the plaintiff.
Term may refer to the original defending party,
the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party
defendant. [R3.1] It also includes an unwilling
co-plaintiff, or one who should be joined as
plaintiff but refuses to give his consent thereto.
[R3.10]

Legal Capacity to Sue


Legal capacity to sue or be sued means that
the party is free from general disability (e.g.
minority or insanity) or, in case of juridical
entities, that it must be duly registered in
accordance with law

Who may be Parties


(1) natural persons;
(2) juridical persons;
(3) entities authorized by law. [R3.1]

Facts showing the capacity of a party to sue or


be sued, or the authority of a party to sue or be
sued in a representative capacity, or the legal
existence of an organized association of
persons that is made a party, must be averred.
[Rule 8, Sec.4]

Juridical persons [Art. 44, Civil Code]


(1) The State and its political subdivisions;
(2) Other corporations, institutions and
entities for public interest or public
purpose, created by law; and
(3) Corporations,
partnerships,
and
associations for private interest or purpose
to which the law grants a judicial
personality, separate and distinct from that
of each shareholder, partner, or member.

Legal capacity to sue


Plaintiffs general
disability to sue, on
account of minority,
insanity,
incompetence, etc.
Ground for a Motion
to Dismiss is lack of
capacity to sue [Rule
16, Sec. 1(d)]

Examples of Entities Authorized by Law [Riano]


(1) A corporation by estoppel is precluded
from denying its existence, and the
members are liable as general partners
[Sec. 21, Corporation Code]
(2) A partnership with capital of at least
P3,000 which fails to comply with the
registration requirements is liable as a

Legal personality to
sue
Plaintiff is not the real
party in interest
Ground is failure of
complaint to state a
cause of action. [Rule
16, Sec. 1(g)]

C.1 REAL PARTY-IN-INTEREST


Real Party-in-Interest the party who stands
to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of
the suit. [Rule 3, Sec.2]

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Interest means material interest or an


interest in issue to be affected by the decree or
judgment of the case, as distinguished from
mere curiosity about the question involved.
[Ang v. Sps. Ang (2012)]
The interest must be real, which a present and
substantial interest as distinguished from a
mere expectancy or a future, contingent,
subordinate, or consequential interest. [Rayo v.
Metrobank] It should be material and direct, as
distinguished from a mere incidental interest.
[Mayor Rhustam Dagadag v. Tongnawa]

Minors (represented by their parents) are real


parties in interest under the principle of
intergenerational responsibility. [Oposa v.
Factoran (1993)]

Unless authorized by law or the Rules, every


action must be prosecuted or defended in the
name of the real party in interest. [Rule 3, Sec.
2]

Remedies:
(1) Amendment of pleadings (Alonso v.
Villamor, 1910); or
(2) Complaint may be deemed amended to
include the real party-in-interest (Balquidra
v. CFI Capiz, 1977)

Failure to Name a Real Party-in-Interest


If the suit is not brought in the name of or
against the real party-in-inteerest, a Motion to
Dismiss may be filed on the ground that the
complaint states no cause of action.
[Balagtas v. CA]

Husband and wife shall sue and be sued jointly,


except as provided by law. [Rule 3, Sec. 4]

As an exception, the real litigant may be held


bound as a party even if not formally
impleaded provided he had his day in court.
[Albert v. University Publishing Co., (1958)]

Representatives as Parties
A representative is one acting in fiduciary
capacity, such as a trustee of an express trust,
a guardian, an executor or administrator, or a
party authorized by law or the Rules of Court.
[Rule 3, Sec. 3]

C.2. INDISPENSABLE AND NECESSARY


PARTIES
Indispensable Party a real party-in-interest
without whom no final determination can be
had of an action. [Rule 3, Sec. 7]

Where the action is allowed to be prosecuted


or defended by a representative party, the
beneficiary shall be included in the title of the
case and shall be deemed to be the real party
in interest.

Necessary Party not an indispensable party


but 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
[Rule 3, Sec. 8]

An agent acting in his own name and for the


benefit of an undisclosed principal may sue or
be sued without joining the principal, except if
the contract involves things belonging to the
principal.

Although joinder of parties is generally


permissive [Rule 3, Sec. 6] the joinder of a party
becomes compulsory when the one involved is
an indispensable party. [Rule 3, Sec. 7]

A minor or a person alleged to be incompetent


may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a
guardian ad litem. [Rule 3, Sec. 5]

A person is not an indispensable party if his


interest in the controversy or subject matter is
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C.5 COMPULSORY AND PERMISSIVE


JOINDER OF PARTIES

separable from the interest of the other parties,


so that it will not necessarily be directly or
injuriously affected by a decree which does not
complete justice between them. [Riano]
Indispensable parties

Necessary parties

Must be joined under


any and all conditions

Should
be
joined
whenever possible

Presence is a condition
sine qua non for
exercise of judicial
power

Action can proceed even


in their absence; interest
is separable from that of
the indispensable party

No valid judgment if
not joined.

The case may be


determined
but
the
judgment will not resolve
the entire controversy

Interest
in
the
controversy such that a
final decree would
necessarily affect their
rights..

REMEDIAL LAW

Compulsory Joinder [Rule 3, Sec. 7]


Parties in interest without whom no final
determination can be had of an action (i.e.
indispensable parties) shall be joined either as
plaintiffs or defendants
The absence of an indispensable parties
renders all subsequent actions of the trial court
null and void for want of authority to act, not
only as to the absent parties but even as to
those present. [Go v. Distinction Properties
Development, Inc. (2012)]
Non-Joinder of Necessary Parties [Rule 3, Sec.
9]
When a pleading asserting a claim, omits to
join a necessary party, the pleader must:
(1) Set forth the name of the necessary party,
if known, and
(2) State the reason why the necessary party is
omitted. [Rule 3, Sec. 9, par. 1]

Interests are so far


separable that a final
decree can be made in
their absence without
affecting them.

C.3 INDIGENT PARTIES


Indigent Party one who has no money or
property sufficient and available for food,
shelter, and basic necessities [Rule 3, Sec. 21]

Non-joinder of a necessary party does not


prevent the court from proceeding in the action.
The judgment rendered therein shall not
prejudice the rights of such necessary party
[Rule 3, Sec. 9 par 3]

Authority to litigate as such shall include


exemption from payment of docket fees, other
lawful fees, and fees for TSN but these
amounts shall be a lien on any judgment
favorable to such indigent party, unless the
court provides otherwise.

Permissive Joinder [Rule 3, Sec. 6] - Parties can


be joined, as plaintiffs or defendants, in one
single complaint or may themselves maintain
or be sued in separate suits.

This authority may be granted upon an ex parte


application and hearing but the adverse party
may contest such grant at any time before
judgment is rendered by the trial court.

Requisites:
(1) Right to relief arises out of the same
transaction or series of transactions
Transaction not only a stipulation or
agreement but any event resulting in
wrong, whether the wrong was done by
violence, neglect, or breach of contract
Series of transactions transactions
connected with the same subject of the
action

C.4 ALTERNATIVE DEFENDANTS


Where the plaintiff is uncertain against whom
of several persons he is entitled to relief, he
may join any or all of them in the alternative,
although a right to relief against one may be
inconsistent with a right to relief against the
other. [Rule 3, Sec. 13]
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(2) A question of law or fact common to all the


plaintiffs or defendants
(3) Such joinder is not otherwise proscribed by
the rules on jurisdiction and venue

Objections should be made at the earliest


opportunity. At the moment such defect
becomes apparent, a motion to strike the
names of the parties must be made.

NOTE: Compare to Joinder of Causes of Action


where it is enough if the causes of action arises
out of the same contract, as there is no need
for a common question of fact or law.

Objections to misjoinder cannot be raised for


the first time on appeal [Lapanday Agricultural
& Development Corporation v. Estita (2005)]

C.7 CLASS SUIT


C.6 MISJOINDER AND NON-JOINDER OF
PARTIES

Requisites [Rule 3, Sec. 12]


(1) Subject matter of the controversy is one of
common or general interest to many
persons;
(2) The persons are so numerous that it is
impracticable to join them all as parties,
and to bring them all before the court;
(3) Parties actually before the court are
sufficiently numerous and representative of
the class as to fully protect the interests of
all concerned;
(4) The representative sues or defends for the
benefit of all.

Misjoinder when one is made a party to the


action although he should not be impleaded.
Non-joinder when one is not joined when he
is supposed to be joined but is not impleaded
in the action. [Riano]
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of an action. parties
may be [Rule 3, Sec. 11]

Non-joinder of an indispensable party is not


a ground for outright dismissal of the
action. If he plaintiff refused to implead an
indispensable party despite order of the
court, that court may dismiss the complaint
for the plaintiffs failure to comply with the
order. [Pamplona Platation v. Tinghil].

In a class suit, any party in interest shall have


the right to intervene to protect his individual
interest. [Rule 3, Sec. 12]
If a class suit is improperly brought, the action
is subject to dismissal regardless of the cause
of action. [Rule 16, Sec 1 (d)]

If the court finds the reason for the nonjoinder of a necessary party unmeritorious,
it may order the inclusion of such necessary
party, if jurisdiction over his person may be
obtained. Failure to comply with such
order without justifiable cause is deemed a
waiver of the claim against such party. [Rule
3, Sec. 9, pars. 1-2]

However, no class suit may be dismissed upon


the instance of the plaintiff or compromised,
without the approval of the court. [Rule 17, Sec.
2]
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]

Parties may be dropped or added by order of


the court on motion of any party or on its own
initiative at any stage of the action and on such
terms as are just. [Rule 3, Sec.11]
Objections to defects in parties

A derivative suit is action brought by minority


shareholders in the name of the corporation to
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redress wrongs committed against it, for which


the directors refuse to sue. It is a remedy
designed by equity and has been the principal
defense of the minority shareholders against
abuses by the majority.

The service of summons may be effected upon


all the defendants by serving upon any of them,
or upon the person in charge of the office or
place of business maintained under such name.
[Rule 14, Sec. 8]

In a derivative action, the real party in interest


is the corporation itself, not the shareholders
who actually instituted it [Lim v. Lim Yu (2001))

C.9 EFFECT OF DEATH OF A PARTYLITIGANT


Duty of Counsel upon Death of Client [Rule 3,
Sec. 16]
(1) Inform court of such fact within 30 days
after the death;
(2) Give the name and address of the legal
representatives.

There is no class suit in an action filed by


associations of sugar planters to recover
damages in behalf of individual planters for an
allegedly libelous article in an international
magazine. There is no common or general
interest in reputation of a specific individual.
Each of the sugar planters has a separate and
distinct reputation in the community not
shared by the others. [Newsweek, Inc. v.
Intermediate Appellate court (1986)]

Failure to comply is a ground for disciplinary


action.
Action of Court upon Notice of Death
Upon receipt of notice, shall determine if claim
is extinguished by such death.
(1) Claim does not survive: the proper action
would be to dismiss the case. Substitution
would not be required.

A class suit does not require a commonality of


interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Mathay v. Consolidated Bank &Trust
Company (1974)]

(2) Claim survives: the court shall order the


legal representative of the deceased to
appear and be substituted for him within
30 days, or within such time as may be
granted.

C.8 SUITS AGAINST ENTITIES WITHOUT


JURIDICAL PERSONALITY
Requisites [Rule 3, Sec. 15]
(1) There are 2 or more persons not organized
as a juridical entity;
(2) They enter into a transaction;
(3) A wrong is committed against a 3rd person
in the course of such transaction.

Survival of Action
Survival depends on the nature of the action
and the damage sought
(1) Causes of Action that Survive:
(a) The wrong complained of affects
primarily and principally property and
property rights
(b) Injuries to the person are merely
incidental
(c) E.g. Purely personal actions like
support
(2) Causes of Action that do not Survive:
(a) The injury complained of is to the
person

Persons associated in an entity without


juridical personality may be sued under the
name by which they are generally or commonly
known, but they cannot sue under such name.
[Rule 3, Sec. 15]

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(b) Property and property rights affected


are incidental
(c) E.g. actions to recover real and
personal property or to enforce liens
thereon

REMEDIAL LAW

(1) The action must primarily be for recovery of


money, debt or interest thereon;
(2) The claim arose from express or implied
contract;
(3) Defendant dies before the entry of final
judgment in the court in which the action
was pending.
(4) The defendants death will not result in the
dismissal of the action.

Court may order the opposing party to procure


the appointment of an administrator or
executor of the estate in the ff. cases:
(1) No legal representative is named; or
(2) The one so named fails to appear within the
specified period. [Rule 3, Sec. 16]

Effect
There shall be substitution in the manner
provided under Rule 3, Sec. 16, and the action
will continue until the entry of final judgment.
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.

The substitute defendant need not be


summoned. The order of substitution shall be
served upon the parties substituted for the
court to acquire jurisdiction over the substitute
party. [Ferreria v Vda de Gonzales (1986)]
i. Death or Separation of a Party who is a Public
Officer
Requisites [Rule 3, Sec. 17]
(1) That the public officer is a party to an
action in his official capacity;
(2) That during the pendency of the action, he
either dies/resigns or otherwise ceases to
hold office;
(3) That any party shows to the satisfaction of
the court, within 30 days after the
successor takes office, that there is a
substantial need to continue or maintain
the action;
(4) That the successor adopts or continues his
predecessors action, or threatens to do so;
and
(5) The party or officer affected:
(a) Assented to the substitution, or
(b) Was given reasonable notice of the
application, and opportunity to be
heard

iii. Incompetency or Incapacity of a Party During


the Pendency of the Action
The Court, upon motion with notice, may allow
the action to be continued by or against the
incapacitated person, assisted by his legal
guardian or guardian ad litem. [Rule 3, Sec. 18]
iV. Transfer of Interest During Pendency of
Action
General rule: The rule does not consider the
transferee an indispensable party. Hence, the
action may proceed without the need to
implead him.
Exception: When the substitution by or joinder
of the transferee is ordered by court. [Rule 3,
Sec. 19]
The case is dismissed if the plaintiffs interest is
transferred to defendant unless there are
several plaintiffs, in which case the remaining
plaintiffs can proceed with their own cause of
action.

ii. Action on Contractual Money Claims


Requisites [Rule 3, Sec. 20]
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D.VENUE

Exception in cases of
Summary
Procedure
[Rule 4, Rule on
Summary Procedure]

Venue is the place, or the geographical area


where an action is to be filed and tried. In
civil cases, it relates only to the place of the
suit and not to the jurisdiction of the court.
[Riano citing Manila Railroad Company v.
Attorney General (1911)]

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. [Rule 4, Sec. 1(1)]
Forcible entry and detainer actions shall be
commenced and tried in the municipal court
of the municipality or city wherein the real
property involved, or a portion thereof, is
situated. [Rule 4, Sec. 1(2)]

A motu propio dismissal based on improper


venue is patently incorrect. [Dolot v. Paje]
Unless and until the defendant objects to the
venue in a motion to dismiss, the venue
cannot truly be said to have been improperly
laid because the venue, although technically
wrong, may be acceptable to the parties for
whose convenience the rules of venue had
been laid. [Dacuycoy v. IAC]

If the property is located at the boundaries of


2 places, file the case in either place (at the
plaintiffs option).
If the case involves 2 properties located in 2
different places:
(1) objects of the same transaction file it in
any of the 2 places;
(2) objects of distinct transactions
separate actions should be filed in each
place unless properly joined.

However, the court may effect a motu propio


dismissal for improper venue in actions
covered by the Rules on Summary Procedure,
in Small Claims cases, and in ejectment
cases.

D.3 VENUE OF PERSONAL ACTIONS

D.1 VENUE VERSUS JURISDICTION


Jurisdiction

Place where the action


is instituted

Power of the court to


hear and decide a case
Jurisdiction over the
subject matter and
over the nature of the
action is conferred by
law and cannot-be
waived
Substantive
Is fixed by law and
cannot be the subject
of the agreement of
the parties

May be waived

Procedural
May be changed by the
written agreement of
the parties
Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent
Not a ground for a
motu propio dismissal

proprio dismissal.

D.2 VENUE OF REAL ACTIONS

Choosing the venue of an action is not left to


a plaintiffs caprice; the matter is regulated
by the Rules of Court. [Ang v. Sps. Ang
(2012)]

Venue

REMEDIAL LAW

At the plaintiffs election [Rule 4, Sec. 2]


(1) Where the plaintiff or any of the principal
plaintiffs resides;
(2) Where the defendant or any of the
principal defendants resides;
(3) In case of a non-resident defendant,
where he may be found.
The plaintiff or the defendant must be
residents of the place where the action has
been instituted at the time the action is
commenced. [Ang v. Sps. Ang (2012)]

Establishes a relation
between the court and
the subject matter

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

Lack of jurisdiction
over the subject matter
is a ground for a motu

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provided he resides therein with continuity


and consistency. [Boleyley v. Villanueva]

REMEDIAL LAW

prospective action between them. The


agreement of parties must be restrictive and
not permissive. [Regalado]

A corporation cannot be allowed to file


personal actions in a place other than its
principal place of business unless such place
is also the residence of a co-plaintiff or
defendant. [Clavecilla Radio v. Antillon]

In the absence of qualifying restrictive words


(e.g. only/solely/exclusively in such court),
venue stipulation is merely permissive; that is,
the stipulated venue is in addition to the
venue provided for in the rules. [Polytrade
Corp. v. Blanco (1969)]

D.4 VENUE OF ACTIONS AGAINST


NON-RESIDENTS

The court may declare agreements on venue


as contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to
file suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres
(1978)].

Non-resident found in the Philippines


(1) For personal actions
(a) Where the plaintiff, or any of the
principal plaintiffs, resides; or
(b) Where the non-resident defendant
may be found
(2) For real actions -- where the property is
located

E. PLEADINGS
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate
judgment [Rule 6, Sec. 1]

Non-resident not found in the Philippines


(1) Involves personal status of plaintiff
where plaintiff resides
(2) Involves property of defendant in the
Philippines where the property, or any
portion thereof, is situated or found

Pleadings versus Motions


Pleading
Purpose is to submit a
claim or defense for
appropriate judgment

When there is more than one defendant or


plaintiff, the residences of the principal
parties should be the basis for determining
proper venue (Herrera)

May be initiatory
Always filed before
judgment
Only 9 kinds of
pleading are allowed
by the rules

D.5 WHEN THE RULES ON VENUE DO


NOT APPLY
(1) If a specific rule or law provides otherwise
(e.g. action for damages arising from
libel);
(2) If there is a stipulation as to venue which
is permitted if the agreement:
(a) is in writing;
(b) was made before the filing of the
action; and
(c) is exclusive the exclusive venue.

Must be written

Motion

Purpose is to apply for


an order not included in
the judgment
Cannot be initiatory;
Always made in a case
already filed in court
May be filed even after
judgment
Any application for
relief not by a pleading
is a motion
May be oral when made
in open court or in the
course of a hearing or
trial

E.1 KINDS OF PLEADINGS


Kinds of Pleadings Allowed [Rule 6, Sec. 2]
(1) Complaint
(2) Answer
(3) Counterclaim
(4) Cross-claim
(5) 3rd-party Complaint
(6) Complaint-in-intervention
(7) Reply

D.6 EFFECTS OF STIPULATION ON


VENUE
To be binding, the parties must have agreed
on the exclusive nature of the venue of any
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i. Complaint
The pleading alleging the plaintiffs cause/s
of action. [Rule 6, Sec. 3]

REMEDIAL LAW

Kinds of Defenses [Rule 6, Sec. 5]


(1) Negative Defenses - Specific denials of
the material facts alleged in the pleading
of the claimant essential to his cause of
action.
(2) Affirmative Defenses - Allegations of new
matters which, while hypothetically
admitting the material allegations in the
claimants pleading, would nevertheless
prevent or bar recovery, by way of
confession and avoidance.

The complaint should contain a statement of


ultimate facts on which the plaintiff relies for
his claim, which is:
(1) in a methodical and logical form;
(2) plain, concise, and direct; and
(3) omits statement of mere evidentiary facts
[Rule 8, Sec. 1]
Function
(1) Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared
to meet the issues at trial.
(2) It should inform the defendant of all
material facts on which the plaintiff relies
to support his demand.
(3) It should state the theory of a cause of
action which forms the bases of plaintiffs
claim of liability. [Tantuico v. Republic
(1991)]

A denial is not specific just because it is so


qualified. [Agton v. CA] A general denial will
be deemed an admission of the averments in
the complaint; it has to be specific.
Modes of Specific Denial [Rule 8,Sec. 10]
(1) Defendant must specify each material
allegation of fact the truth of which he
does not admit
(2) If pleader decides to deny only a part or a
qualification of an averment, he shall
specify so much of it as true and deny the
remainder
(3) If pleader is without knowledge or
information sufficient to form a belief as
to the truth of a material averment, he
shall so state

Ultimate Facts - Essential facts constituting


the plaintiffs cause of action. A fact is
essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient. [Remitere v. Montinola (1966)]

Negative Pregnant - a denial pregnant with


the admission of the substantial facts in the
pleading responded to which are not
squarely denied. It is in effect an admission of
the averment it is directed to. [Philamgen v.
Sweet Lines (1993)]

Not Ultimate Facts:


(1) Evidentiary or immaterial facts;
(2) Legal conclusions, conclusions or
inferences of facts from facts not stated,
or incorrect inferences or conclusions
from facts stated;
(3) Conclusions of law alleged in the
complaint are not binding on the court.
(4) The details of probative matter or
particulars of evidence, statements of
law, inferences and arguments.

While it is a denial in form, its substance


actually has the effect of an admission
because of a too literal denial of the
allegation sought to be denied. This arises
when the pleader merely repeats the
allegations in a negative form.

ii. Answer
The pleading where the defendant sets forth
his affirmative/negative defenses. It may also
be the response to a counterclaim or a crossclaim. [Rule 6, Sec. 4]

iii. Counterclaim
Any claim which a defending party may have
against an opposing party.

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How Raised
(1) By including it in the Answer
A compulsory counterclaim or a crossclaim that a defending party has at the
time he files his answer shall be
contained therein. [Rule 11, Sec. 8]
(2) By filing after the Answer
(a) A counterclaim may be set up, by
leave of court, by amendment before
judgment, when:
(i)
it is not set up due to oversight,
inadvertence,
or
excusable
neglect, or
(ii)
when justice requires [Rule 11, Sec.
10]

jurisdiction.
Barred if not set up in
the action.
Need not be answered;
no default.
Not
an
initiatory
pleading; does not
require CNFS

Initiatory pleading

Compulsory Counterclaim
Requisites
(1) It arises out of, or is necessarily
connected with the transaction or
occurrence, which is the subject matter of
the opposing party's 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, and within the courts
jurisdiction both as to the amount and
the nature. [Rule 6, Sec. 7]

In an original action before the RTC, the


counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7]
If a counterclaim is filed in the MTC is in
excess of its jurisdictional amount, the
excess is considered waived. [Agustin v.
Bacalan (1985)]
However, in another case, the remedy
where a counterclaim is beyond the
jurisdictional amount of the MTC is to set
off the claims and file a separate action
to collect the balance. [Calo v. Ajax
(1968)]

Arises out of or is
necessarily connected
with the transaction or
occurrence that is the
subject matter of the
opposing party's claim.
Does not require for its
adjudication
the
presence
of
third
parties of whom the
court cannot acquire

Not barred even if not


set up in the action.
Must be answered,
otherwise,
the
defendant
can
be
declared in default.

NOTE: compulsory counterclaims are not


initiatory pleadings but docket fees are now
required under A.M. No. 04-2-04-SC, which
required docket fees for compulsory
counterclaims, third (fourth, etc.)-party
complaints and complaints-in-intervention.

(b) A counterclaim, which either


matured or was acquired by a party
after serving his pleading, with
permission of the court, be set up in a
supplemental
pleading
before
judgment. [Rule 11, Sec. 9]

Kinds of Counterclaims
Compulsory
counterclaim

REMEDIAL LAW

A plaintiff who fails or chooses not to answer


a compulsory counterclaim may not be
declared in default, principally because the
issues raised in the counterclaim are deemed
automatically joined by the allegations in the
complaint. [Gojo v. Goyala (1970)]
The filing of a motion to dismiss and the
setting up of a compulsory counterclaim are
incompatible remedies. If he files a motion to
dismiss, he will lose his counterclaim. But if
he opts to set up his counterclaim, he may
still plead his ground for dismissal as an
affirmative defense in his answer. [Financial
Building Corp. v. Forbes Park Association]

Permissive
counterclaim
Neither arises out of
nor
is
necessarily
connected with such
subject matter
May
require
the
presence
of
third
parties over whom the
court cannot acquire
jurisdiction.

Permissive Counterclaim
A counterclaim is permissive if it does not
arise out of, nor is necessarily connected with,
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the subject matter of the opposing partys


claim This is not barred even if not set up in
the action

REMEDIAL LAW

case, after the defendant had filed a


responsive pleading
(3) Dismissal under Rule 17, Sec. 3 where
the complaint is dismissed due to the
fault of the plaintiff

Must have independent jurisdictional ground


(Herrera). Hence, the filing of a separate
docket fee.

In all these cases, the rules expressly provide


that the dismissal shall be without prejudice
to the right of the defendant to pursue his
counterclaim in the same or in a separate
action.

Determining
whether
Compulsory
or
Permissive
(also known as logical relationship test)
A positive answer on all four the following
tests would indicate that the counterclaim is
compulsory:
(1) Are the issues of fact and law raised by
the claim and counterclaim largely the
same?
(2) Would res judicata bar a subsequent suit
on defendants claims, absent the
compulsory counterclaim rule?
(3) Will substantially the same evidence
support or refute plaintiffs claim as well
as the counterclaim?
(4) Is there any logical relation between the
claim and counterclaim? [GSIS v. Heirs of
Caballero]

iv. Cross-claim
Requisites
(1) A claim by one party against a co-party;
(2) It must arise out of the subject matter of
the complaint or of the counterclaim;
(3) The cross-claimant is prejudiced by the
claim against him by the opposing party.
A cross-claim is generally compulsory. A
cross-claim not set up shall be barred. [Rule
9, Sec. 2] Exceptions (permissive crossclaims) are when:
(1) The claim is outside the courts
jurisdiction;
(2) The court cannot acquire jurisdiction over
3rd parties whose presence is necessary
for the adjudication of said cross-claim.
(3) The Cross-claim that matured or was
acquired after service of Answer

There is a logical relationship where


conducting separate trials of the respective
claims would entail substantial duplication
of effort and time and involves many of the
same factual and legal issues. [Meliton v. CA
(1992)]

The dismissal of the complaint carries with it


the dismissal of a cross-claim, which is purely
defensive; but not a cross-claim seeking an
affirmative relief. [Torres v. CA (1973)]

NOTE: If the counterclaim matures after the


Answer, it is merely permissive.

Improper Cross-Claims
(1) Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
(2) The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and
executory (Ruiz, Jr. v. CA, 1993)
(3) A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of

Effect on Counterclaim when Complaint is


dismissed
The case may be dismissed, with a
counterclaim set up under any of the
following circumstances:
(1) Dismissal under Rule 16, Sec. 6 where
the defendant does not file motion to
dismiss but raises the ground as an
affirmative defense
(2) Dismissal under Rule 17, Sec. 2 where
the plaintiff files a motion to dismiss the
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default because then the cross-claimant


would re-obtain a standing in court as
party litigant

REMEDIAL LAW

3rd-party complaint

Counterclaim

Counter-Counterclaim - A claim asserted


against an original counter-claimant.

Need not be within the


jurisdiction of the court
trying the main case
Diminishes/defeats the
recovery sought by the
opposing party

Counter-Cross-claim - A claim filed against


an original cross-claimant.

Cannot exceed the


amount stated in the
original complaint

Must be within the


jurisdiction of the court
trying the main case
Need
not
diminish/defeat
the
recovery sought by the
opposing party
May exceed in amount
or be different in kind
from that sought in the
original complaint

v. Third(Fourth, etc.)-Party Complaints


It is a claim that a defending party may, with
leave of court, file against a person not a
party to the action, for contribution,
indemnity, subrogation, or any other relief, in
respect of his opponent's claim. [Rule 6, Sec.
11]

Under this Rule, a person not party to an


action may be impleaded by the defendant
either:
(1) On allegation of liability to the latter,
covered by the phrase contribution,
indemnity, or subrogation
(2) On the ground of direct liability to the
plaintiff; or both, as covered by the
phrase any other relief. [Samala v.
Victor (1989)]
Tests to Determine Whether the 3rd-Party
Complaint is in Respect of Plaintiffs Claim
(Capayas v. CFI, 1946)
(1) WON it arises out of the same
transaction on which the plaintiff's claim
is based, or although arising out of
another/different
transaction,
is
connected with the plaintiffs claim;
(2) WON the 3rd-party defendant would be
liable to the plaintiff or to the defendant
for all/part of the plaintiffs claim against
the original defendant;
(3) WON the 3rd-party defendant may assert
any defenses which the 3rd-party plaintiff
has or may have to the plaintiffs claim.

There could also be a 4th/etc.-party


complaint with the same purpose and
function.
Counterclaim

3rd Party
complaint

Against
an
opposing party

Against
a
person not a
party to the
action

Must arise
out of the
transaction
that is the
subject
matter of the
original
action or of a
counterclaim
therein

May arise out of


or be necessarily
connected with
the transaction
or the subject
matter of the
opposing partys
claim
(compulsory
counterclaim), or
it
may
not
(permissive
counterclaim)

Must be in
respect of the
opponents
(plaintiffs)
claim

No need for
a leave of
court

No need for leave


of court

Leave of court
is needed

Cross-claim
Against
co-party

3rd-party complaint
Brings into the action a
3rd person who was not
originally a party
Initiative is with the
person already a party
to the action

Additional Rules
Leave of court to file a 3rd-party complaint
may be obtained by motion filed under Rule
15.

Complaint in
intervention

Summons on third (fourth, etc.)-party


defendants must be served for the court to
obtain jurisdiction over his person, since he is
not an original party.

Same
Initiative is with a nonparty who seeks to join
the action

Where the trial court has jurisdiction over the


main case, it also has jurisdiction over the
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third-party complaint, regardless of the


amount involved as a 3rd-party complaint is
merely auxiliary to and is a continuation of
the main action. [Republic v. Central Surety
(1968)]

REMEDIAL LAW

The Court has full discretion in permitting or


disallowing intervention, which must be
exercised judiciously and only after
consideration of all the circumstances
obtaining in the case. [Mago v. CA (1999)]

A third-party complaint is not proper in an


action for declaratory relief.

It is not an absolute right as it can be secured


only in accordance with the terms of
applicable statute or rule. [Office of
Ombudsman v. Samaniego (2010)]

vi. Complaint-in-Intervention
Pleadings-in-Intervention (Rule 19, Sec. 3)
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.

Legal Interest
Interest must be of a direct and immediate
character so that the intervenor will either
gain or lose by the direct legal operation of
the judgment. The interest must be actual
and material, a concern which is more than
mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent,
indirect
and
remote,
conjectural,
consequential or collateral. [Virra Mall
Tenants v. Virra Mall (2011)]

Intervention a remedy by which a third


party, not originally impleaded in a
proceeding, becomes a litigant therein to
enable him to protect or preserve a right or
interest which may be affected by such
proceeding.

Requisites for Valid Intervention


(1) There must be a motion for intervention
filed before rendition of judgment by the
trial court.
(2) Movant must show in his motion:
(a) That he has a legal interest:
(i)
in the matter of litigation,
(ii)
in the success of either party in
the action, or
(iii)
against both parties.
(b) That the movant is so situated as to
be adversely affected by a
distribution or other disposition of
property in the custody of the court or
an officer thereof
(c) That the intervention must not
unduly delay or prejudice the
adjudication of the rights of the
original parties; and
(d) That the intervenors rights may not
be fully protected in a separate
proceeding.

Intervention is never an independent action,


but is ancillary and supplemental to an
existing litigation, and in subordination to
the main proceeding. [Saw v. CA]
Its purpose is "to settle in one action and by a
single judgment the whole controversy
(among) the persons involved." [First
Philippine Holdings v. Sandiganbayan (1996);
Rule 19]
When Allowed
Intervention shall be allowed when a person
has:
(1) A legal interest in the matter in litigation;
or
(2) A legal interest in the success of any of
the parties;
(3) An interest against the parties; or
(4) When he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or of
an officer thereof. [Fernandez v. CA
(2013)]
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How to Intervene
(1) With leave of court, the court shall
consider the 2 factors
(2) Motion to intervene may be filed at any
time before rendition of judgment by trial
court
(3) Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties

REMEDIAL LAW

Exception: When a Reply is necessary


(a) To set up affirmative defenses on the
counterclaim [Rosario v. Martinez]
(b) Where the answer alleges the
defense of usury in which case a reply
under oath should be made;
otherwise, the allegation of usurious
interest shall be deemed admitted
[Rule 8, Sec. 8; Sun Bros. v. Caluntad]
(c) Where the defense in the answer is
based on an actionable document, a
reply under oath must be made;
otherwise, the genuineness and due
execution of the document shall be
deemed admitted. [Rule 8, Sec. 11;
Toribio v. Bidin]

Time to Intervene [Rule 19, Sec. 2]


General Rule: The motion to intervene must
be filed at any time before the rendition of
judgment by the trial court
Exceptions:
(1) With respect to indispensable parties,
intervention may be allowed even on
appeal (Falcasantos v. Falcasantos)
(2) When the intervenor is the Republic (Lim
v. Pacquing)
(3) Intervention may be allowed after
judgment where necessary to protect
some interest which cannot otherwise be
protected, and for the purpose of
preserving the intervenors right to
appeal (Pinlac v. CA)

E.2 PLEADINGS ALLOWED IN SPECIAL


RULES
Revised Rules on Summary Procedure
The only pleadings allowed to be filed are:
(1) Complaints
(2) Compulsory counterclaims pleaded in
the Answer
(3) Cross-claims pleaded in the Answer; and
(4) Answers thereto [Sec. 3[A], II]

Remedy for Denial of Motion for Intervention


(1) The movant may file a motion for
reconsideration since the denial of a
motion for intervention is an interlocutory
order.
(2) Alleging grave abuse of discretion,
movant can also file a certiorari case.

Prohibited Pleadings, Motions, or Petitions


(Sec. 19)
(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 required barangay
conciliation proceedings;
(2) Motion for a bill of particulars;
(3) Motion
for new trial, or for
reconsideration of a judgment, or for
opening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file
pleadings, affidavits or any other paper;
(6) Memoranda
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;

vii. Reply
The plaintiffs response to the defendant's
answer. The function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Rule 6, Sec. 10]
Effect of Failure to Reply
General Rule: Filing a reply is merely optional.
New facts that were alleged in the answer
are deemed controverted should a party fail
to reply thereto.
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(8) Motion to declare the defendant in


default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third party complaints; and
(12) Interventions.

REMEDIAL LAW

(4) Petition for relief from judgment;


(5) Motion for extension of time to file
pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
(8) Motion to declare the defendant in
default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.

Forms under the Rule of Procedure for Small


Claims Cases
(1) Instead of filing a Complaint, a
Statement of Claim using Form 1-SCC
shall be filed [Sec. 5]
(2) Answer shall be filed by way of a
Response using Form 3-SCC [Sec. 10]
(3) Defendant may file counterclaim if he
possesses a claim against the plaintiff
that
(a) Is within the coverage of this Rule,
exclusive of interest and costs;
(b) Arises out of the same transaction or
event that is the subject matter of the
plaintiffs claim;
(c) Does not require for its adjudication
the joinder of third parties; and
(d) Is not the subject of another pending
action, the claim shall be filed as a
counterclaim in the Response;
otherwise, the defendant shall be
barred from suit on the counterclaim.

E.3 PARTS OF A PLEADING


Caption that part of the pleading which
sets forth the:
(1) the name of the court;
(2) the title of the action (i.e. the names of
the parties); and
(3) the docket number, if assigned. [Rule 7,
Sec. 1]
Body that part of the pleading which sets
forth its designation, the allegations of
party's claims or defenses, the relief prayed
for, and its date.
(1) Paragraphs must be numbered, and each
paragraph number must contain a single
set of circumstances
(2) Headings should be used if there is more
than one cause of action in the
Complaint, and if paragraphs in the
Answer address one or more causes of
action from the Complaint.
(3) Should specify relief sought, but it may
add a general prayer for such further or
other relief as may be deemed just or
equitable; also called the prayer
(4) Every pleading shall be dated. [Rule 7,
Sec. 2]

The defendant may also elect to file a


counterclaim against the plaintiff that does
not arise out of the same transaction or
occurrence, provided that the amount and
nature thereof are within the coverage of this
Rule and the prescribed docket and other
legal fees are paid.
NOTE: Courts decision shall be contained in
Form 13-SCC
Prohibited Pleadings and Motions in Small
Claims
(1) Motion to dismiss the complaint except
on the ground of lack of jurisdiction;
(2) Motion for a bill of particulars;
(3) Motion
for new trial, or for
reconsideration of a judgment, or for
reopening of trial;

I. SIGNATURE AND ADDRESS


Every pleading must be signed by the party
or counsel representing him. The address
must be stated and such address must not
be a post office box. [Rule 7, Sec. 3]

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An unsigned pleading produces no legal


effect. However, the court may allow such
deficiency to be remedied if it appears that:
(1) It was due to mere inadvertence; and
(2) It was not intended for delay [Rule 7, Sec.
3]

REMEDIAL LAW

(12) Petition for certiorari (Sec. 1, Rule 65)


(13) Petition for prohibition (Sec. 2, Rule 65)
(14) Petition for mandamus (Sec. 3, Rule 65)
(15) Petition for quo warranto (Sec. 1, Rule
66)
(16) Complaint for expropriation (Sec. 1, Rule
67)
(17) Complaint for forcible entry or unlawful
detainer (Sec. 4, Rule 70)
(18) Petition for indirect contempt (Sec. 4,
Rule 71)
(19) Petition for appointment of a general
guardian (Sec. 2, Rule 93)
(20)
Petition for leave to sell or encumber
property of the ward by a guardian (Sec. 1,
Rule 95)
(21) Petition for declaration of competency of
a ward (Sec. 1, Rule 97)
(22)
Petition for habeas corpus (Sec. 3,
Rule 102)
(23)Petition for change of name (Sec. 2, Rule
103)
(24)
Petition for voluntary judicial
dissolution of a corporation (Sec. 1, Rule
104)
(25)
Petition for cancellation or correction
of entries in the civil registry (Sec. 1, Rule
108)

Effect of Signature of Counsel


This constitutes a certificate by him that:
(1) He has read the pleading
(2) That to the best of his knowledge,
information, and belief there is good
ground to support it; and
(3) That it is not interposed for delay [Rule 7,
Sec. 3]

II. VERIFICATION
A pleading need not be under oath, verified
or accompanied by affidavit, unless
otherwise provided by law or rules.
Verification is required in the following
instances:
(1) Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure are all required to be verified
(2) Petition for relief from judgment or order
(Sec. 3, Rule 38)
(3) Petition for review from RTC to the CA
(Sec. 1, Rule 42)
(4) Petition for review from quasi-judicial
agencies to the CA (Sec. 5, Rule 43)
(5) Appeal by certiorari from the CTA to the
SC (Sec. 12, RA 9282 amending Sec. 19,
RA 1125)
(6) Appeal by certiorari from CA to the SC
(Sec. 1, Rule 45)
(7) Petition for annulment of judgments or
final orders and resolutions (Sec. 1, Rule
47)
(8) Complaint for injunction (Sec. 4, Rule 58)
(9) Application for appointment of receiver
(Sec. 1, Rule 59)
(10) Application for support pendente lite (Sec.
1, Rule 69)
(11) Petition for certiorari against judgments,
final
orders,
or
resolutions
of
constitutional commissions (Sec. 2, Rule
64)

How verified [Rule 7, Sec. 4]


By an affidavit declaring that
(1) That the affiant has read the pleading;
and
(2) That the allegations therein are true and
correct of his personal knowledge or
based on authentic documents.

III. FORUM SHOPPING


The repeated availment of several judicial
remedies in different courts, simultaneously
or successively, all substantially founded on
the same transactions and the same
essential facts and circumstances, and all
raising substantially the same issues, either
pending in or already resolved adversely by
some other court. [Asia United Bank v.
Goodland Company, Inc. ]

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Test to determine existence of Forum


Shopping
Whether in the 2 or more cases pending,
there is identity of:
(1) Parties
(2) Rights or causes of action
(3) Relief sought [Huibonhoa v. Concepcion
(2005)]

REMEDIAL LAW

If, for justifiable reasons, the party-pleader is


unable to sign, he must execute a Special
Power of Attorney designating his counsel of
record to sign on his behalf. [Vda. de Formoso
v. PNB (2011)]
Verification/CNFS for Corporation
The certification must be executed by an
officer, or member of the board of directors,
or by one who is duly authorized by a board
resolution; otherwise, the complaint will have
to be dismissed. [Cosco Philippines Shipping,
Inc. v. Kemper Insurance, Co. (2012)]

Certificate of Non-Forum Shopping (CNFS)


A sworn statement in which the plaintiff or
principal party certifies in a complaint or
initiatory pleading:
(1) That he has not commenced any action
or filed any claim involving the same
issues in any court or tribunal, and to the
best of his knowledge, no such other
action is pending;

However, the Court has ruled that a


President of a corporation can sign the
verification and CNFS, without the benefit of
a board resolution. It also allowed the
following to sign:
(1) the Chairperson of the Board;
(2) the General Manager or acting GM;
(3) a personnel officer; and
(4) an employment specialist in a labor case.

(2) That if there is such other pending action


or claim, a complete statement of the
present status thereof; and
(3) That if he should learn that the same or a
similar action has been filed or is
pending, he shall report such fact within
5 days to the court receiving his initiatory
pleading. [Rule 7, Sec. 5]

However, the bettwe procedure would be to


append a board resolution to obviate
questions regarding the authority of the
signatory. [South Cotabato Communications
Corp. v. Sto. Tomas ]

CNFS is not required in a compulsory


counterclaim, as this is not an initiatory
pleading. [UST Hospital v. Surla (1998)]
However, a certification is needed in
permissive counterclaims [Korea Exchange
Bank v. Gonzales ]

Belated submission of written authority has


been found to be substantial compliance
with the rule, especially when the acts were
also ratified by the Board. [Swedish Match
Philippines v. Treasurer of the City of Manila
(2013)]

Who Executes the CNFS


It is the plaintiff or principal party who
executes the certification under oath. [Rule 7,
Sec. 5]

E.4 ALLEGATIONS IN A PLEADING


i. In General
Every pleading shall contain a statement of
the ultimate facts on which the party
pleading relies for his claim or defense
(1) In a methodical and logical form
(2) A plain, concise and direct statement
(3) Statement of mere evidentiary facts
omitted [Rule 8, Sec. 1]

The rationale is that the plaintiff, not the


counsel, is in the best position to know
whether he or it has actually filed or caused
the filing of a petition. Certification signed by
counsel is defective, and a valid cause for
dismissal. [Anderson v. Ho (2013)]

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If a defense relief is based on law, state in a


clear and concise manner:
(1) Pertinent provisions of the law
(2) Applicability of the law to him

REMEDIAL LAW

Failure to comply with a condition precedent


is a ground for a motion to dismiss (Rule 16,
Sec. 1(j))

Facts that must be averred particularly


Circumstances showing fraud or mistake
when averred [Rule 8, Sec. 5]

Examples of Conditions Precedent:


(1) Exhaustion of administrative remedies
(2) Investigation by a fiscal is a prerequisite
to annulment of marriage when
defendant
defaults
(Tolentino
v.
Villanueva)
(3) No suit shall be filed or maintained
between members of the same family
unless it should appear that earnest
efforts at compromise have been made
but that the same have failed. (Art. 222;
Versoza v. Versoza)
(4) Arbitration; Barangay Conciliation

Facts that may be averred generally


(1) Conditions precedent but there must
still be an allegation that the specific
condition precedent has been complied
with; [Rule 8, Sec. 3]
(2) Capacity to sue or be sued;
(3) Capacity to sue or be sued in a
representative capacity; [Rule 8, Sec. 4]
(4) Legal existence of an organization A
party desiring to raise an issue as to the
legal existence or capacity of any party to
sue or be sued in a representative
capacity shall do so by specific denial
which
shall
include
supporting
particulars
within
the
pleader's
knowledge. [Rule 8, Sec 4]
(5) Malice/intent/knowledge
or
other
condition of the mind; [Rule 8, Sec. 5]
(6) Judgments of domestic/foreign courts,
tribunals, boards or officers (without
need to show jurisdiction); [Rule 8, Sec.
6]
(7) Official documents/acts. [Rule 8, Sec. 9]

Capacity
The following must be averred:
(1) Facts showing the capacity of a party to
sue or be sued; or
(2) The authority to sue or be sued in a
representative capacity;
(3) Or the legal existence of an organized
association of persons that is made a
party [Rule 8, Sec. 4]
Fraud or Mistake Circumstances
constituting these must be stated with
particularity [Rule 8, Sec.5]

Condition Precedent If the cause of action


depends upon a condition precedent, its
fulfillment or legal excuse for non-fulfillment
must be averred.

Malice, Intent, Knowledge and other


Conditions of the Mind May be averred
generally [Rule 8, Sec. 5]
Judgment - In pleading a judgment or
decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the
judgment or decision without setting forth
matter showing jurisdiction to render it. [Rule
8, Sec. 6]

A general averment of the performance or


occurrence of all conditions precedent shall
be sufficient [Rule 8, Sec. 3]
All valid conditions precedent to the
institution of a particular action, whether
prescribed by statute, fixed by agreement of
the parties, or implied by law must be
performed or complied with before
commencing the action. Such fact must be
pleaded.

Official documents or acts sufficient to aver


that the document was issued, or the act
done, in compliance with law. [Rule 8, Sec. 9]

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II.
PLEADING
DOCUMENT

CIVIL PROCEDURE

AN

ACTIONABLE

REMEDIAL LAW

as seal, acknowledgement, or revenue


stamps, which it lacks, are waived by him

Actionable Document the written


instrument upon which the action or defense
is based. Where a pleader relies upon a
document, its substance must be set out in
the pleading either by its terms or by its legal
effects

Genuineness - That the party whose


signature it bears admits that, at the
time it was signed it, was in words and
figures exactly as set out. [Hibberd v.
Phde and Mcmillian ]

iii. Specific Denials

Pleading the document


(1) The substance of such document shall be
set forth in the pleading; and the original
or a copy shall be attached as an exhibit;
or
(2) Said copy may be set forth in the
pleading [Rule 8, Sec. 7]

The purpose of requiring the defendant to


make a specific denial is to make him
disclose the matters alleged in the complaint
which he succinctly intends to disprove at the
trial, together with matters which he relied
upon to support the denial. The parties are
compelled to lay their cards on the table.
[Philippine Bank of Communications v. Go
(2011)]

A variance in the substance of the document


set forth in the pleading and the document
annexed thereto does not warrant dismissal
of the action (Convets Inc. v. National Dev.
Co.)
How to Contest [Rule 8, Sec. 8]
(1) By specific denial under oath; and
(2) By setting forth what is claimed to be the
facts

Modes of Denial
(1) Specific Absolute Denial - Defendant
must specify each material allegation of
fact the truth of which he does not admit,
and, whenever applicable, set forth the
substance of matters relied upon to
support the denial

Denial need not be under oath when:


(1) The adverse party does not appear to be
a party to the instrument, or
(2) Compliance with the an order for
inspection of the document has been
refused.

(2) Partial Specific Denial - If pleader decides


to deny only a part or a qualification of an
averment:
(a) He shall specify so much of it as is
true and material
(b) He shall deny the remainder

Effect of Failure to Deny Under Oath


(1) The genuineness and due execution is
deemed admitted
(2) The document need not be formally
offered in evidence

(3) Denial by Disavowal of Knowledge The


defendant states that he is without
knowledge or information sufficient to
form a belief as to the truth of a material
averment; has the effect of a denial

Due Execution - That the party whose


signature it bears admits that he
voluntarily signed it; or that it was signed
by another for him with his authority;
that the document was delivered; and
that any formalities required by law, such

Effect of Failure to make Specific Denials


Allegations not specifically denied are
deemed admitted [Rule 8, Sec. 11] except:
(1) Allegations as to the amount of
unliquidated damages;
(2) Allegations immaterial to the cause of
action
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(3) Allegations of merely evidentiary or


immaterial facts may be expunged from
the pleading or may be stricken out on
motion. [Rule 8, Sec. 12]
(4) Conclusion of law.

REMEDIAL LAW

Failure of the defendant to answer within the


proper period. It is not his failure to appear
nor his failure to present evidence
Dual stages of default
(1) Declaration of Order of Default when
defendant fails to answer within the time
specified in the rules, the court shall,
upon motion of the plaintiff and proof of
such failure, declare defendant in default

Specific Denial requires an oath in the


following cases:
(1) Denial of the genuineness and due
execution of an actionable document;
[Rule 8, Sec. 8] and
(2) Denial of allegations of usury. [Rule 8,
Sec. 11]

(2) Rendition of Judgment by Default


thereafter, on the basis of the allegation
of the complaint or after receiving
plaintiffs evidence, the court shall render
judgment granting him such relief as the
complaint and the facts proven may
warrant

E.5 EFFECT OF FAILURE TO PLEAD


I. FAILURE TO PLEAD DEFENSES AND
OBJECTIONS
General Rule: Defenses and objections not
pleaded in answer or motion to dismiss are
deemed waived.[Omnibus Motion Rule,
Rule 9, Sec. 1]

Order of default
Issued by the court
on plaintiffs motion,
for failure of the
defendant to
seasonably file his
responsive pleading
Interlocutory
unappealable

Exceptions:
(1) Lack of jurisdiction over the subject
matter;
(2) Litis pendentia
(3) Res judicata
(4) Action barred by statute of limitations.

Judgment by default
Rendered by the
court following a
default order or after
it received ex parte
plaintiffs evidence
Final Appealable

When Declaration of Default is Proper


There is only one instance when a party
defendant can properly be declared in
default and that is when he fails to file his
answer within the reglementary period, or
within such extended time as he is allowed
by the court, under Sec. 1, Rule 18

II. FAILURE TO PLEAD COMPULSORY


COUNTERCLAIMS AND CROSS-CLAIMS
General Rule: A compulsory counterclaim not
set up is considered barred. [Rule 9, Sec. 2]
Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set
up by amendment before judgment. [Rule 11,
Sec. 10]

Requisites before a Declaration of Default


(1) The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons
or voluntary appearance
(2) The defendant failed to file his answer
within the time allowed therefor
(3) There must be a motion to declare the
defendant in default with notice to the
latter

For Cross-Claims: A cross-claim is always


compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]

E.6 DEFAULT
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(4) There must be notice to the defendant by


serving upon him a copy of such motion
(5) There must be proof of such failure to
answer
(6) There must be a hearing to declare
defendant in default

REMEDIAL LAW

Relief from an Order of Default


[Lina v. CA]
(1) After notice of the Order and before
Judgment file a motion under oath to
set aside the Order; must show:
(a) Failure to file Answer was due to
fraud, accident, mistake, excusable
negligence; and
(b) That he has a meritorious defense (i.e.
through an affidavit of merit)

Effect of Order of Default


(1) The party declared in default loses his
standing in court, meaning he cannot
take part in the trial. However, he may
still participate as a witness [Cavil v.
Florendo (1987)] and is entitled to notices
of subsequent proceedings.

(2) After rendition of Judgment, before it


becomes final and executory may file:
(a) a motion for new trial under Rule 37;
or
(b) appeal from the judgment for being
contrary to the evidence or law

In all, the defendant should receive the


following notices:
(a) Motion to declare him in default;
(b) Order declaring him in default;
(c) Subsequent proceedings;
(d) Service of final orders and judgments.

(3) After Judgment becomes final and


executory may file a petition for relief
under Rue 38

(2) The court may either:


(a) Proceed to render judgment granting
the claimant such relief as his
pleading may warrant; or
(b) Require the claimant to submit
evidence, which need not be received
by the court personally but may be
received by the clerk of court

These remedies presuppose that there was a


valid order of default but the defendant may
also file a petition for certiorari when he is
improperly declared in default. [Riano]
Partial Default
When the complaint states a common cause
of action against several defendants, only
some of whom answer, the court should
declare defaulting defendants in default, and
proceed to trial on answers of others

A declaration of default is not


tantamount to an admission of the truth
or validity of the plaintiffs claims.
[Monarch Insurance v. CA ]

If the defense is personal to the one who


answered, it will not benefit those who did
not answer.

(3) A defending party declared in default


retains the right to appeal from the
judgment by default. However, the
grounds that may be raised in such an
appeal are restricted to any of the
following:
(a) The failure of the plaintiff to prove
the material allegations of the
complaint;
(b) The decision is contrary to law; and
(c) The amount of judgment is excessive
or different in kind from that prayed
for. [Ortero v. Tan (2012)]

Extent of Relief to be Awarded


(1) A judgment rendered against a party in
default shall not exceed the amount or
be different in kind from that prayed for
nor award unliquidated damages
(2) If the claim is not proved, the case should
be dismissed
As held in Datu Samad Mangelen v. CA
(1992):
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(1) In a judgment based on evidence


presented ex parte, judgment should
neither exceed the amount, nor be
different in kind from that prayed for.
(2) On the other hand, in a judgment where
an answer was filed but defendant did
not appear at the hearing, the award may
exceed the amount or be different in kind
from that prayed for.
Default is not allowed, in the following cases:
(1) An action for annulment or declaration of
nullity of marriage
(2) For legal separation
(3) Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed
(4) Summary procedure

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REMEDIAL LAW

DEFAULT IN ORDINARY PROCEDURE


After the lapse of time to file an
answer, the plaintiff may move to
declare the defendant in default

If motion denied:
Defendant allowed to file an answer

If motion granted:
Court issues order of default and
renders judgment or require plaintiff
to submit evidence ex parte

Before judgment by default is


rendered, defendant may:
(1) Move to set aside order of default
upon showing of FAME and that he
has a meritorious defense;
(2) Avail of Rule 65 in proper cases

Court maintains order of default

Court sets aside order of default and


defendant is allowed to file an
answer
Presentation of plaintiffs evidence
ex-parte
Case set for pre-trial

If plaintiff proves his allegations:


Judgment by default

If plaintiff fails
allegations:
Case is dismissed

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(3) Further modification, Heirs of Hinog v.


Melicor (2005)
Fees as lien
Where the trial court acquires jurisdiction
over a claim by the filing of the pleading
and the payment of the prescribed filing
fee, BUT SUBSEQUENTLY, the judgment
awards a claim not specified in the
pleading, or cannot then be estimated, or a
claim left for determination by the court,
then the additional filing fee shall
constitute a lien on the judgment

E.7 FILING AND SERVICE OF PLEADINGS


I. PAYMENT OF DOCKET FEES
As a rule, the court acquires jurisdiction over
the case only upon payment of prescribed fees
General rule: Without payment, case is
considered not filed. Payment of docket fees is
mandatory and jurisdictional.

(4) Exception to the Sun Insurance doctrine,


Gochan v. Gochan
The Sun Insurance rule allowing payment
of deficiency does not apply where plaintiff
never demonstrated any willingness to
abide by the rules to pay the docket fee but
stubbornly insisted that the case filed was
one for specific performance and damages.

It is not simply the filing of the complaint or


appropriate initiatory pleading but the
payment of the prescribed docket fee that
vests a trial court with jurisdiction over the
subject matter or nature of the action [Proton
Pilipinas v. Banque National de Paris (2005)]

II. FILING
PLEADINGS

Effect of Failure to Pay Docket Fees at Filing

VERSUS

SERVICE

OF

Filing - The act of presenting the pleading or


other paper to the clerk of court. [Rule 13, Sec.
2]

(1) The Manchester Rule: Manchester v. CA


(1987)
Automatic Dismissal
Any defect in the original pleading
resulting in underpayment of the docket
fees cannot be cured by amendment, such
as by the reduction of the claim as, for all
legal purposes, there is no original
complaint over which the court has
acquired jurisdiction

Service - The act of providing a party or his


counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
Papers required to be filed and served: (Rule 13,
Sec. 4)
(1) Pleading subsequent to the complaint;
(2) Appearance;
(3) Written Motion;
(4) Notice;
(5) Order;
(6) Judgment;
(7) Demand;
(8) Offer of Judgment;
(9) Resolution;
(10) Similar papers.

(2) Relaxation of the Manchester Rule, Sun


Insurance v. Asuncion (1989)
NOT automatic dismissal
Court may allow payment of fees within
reasonable period of time. Note that
payment should always be within the
prescriptive period of the action filed.

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different period
fixed by the court

III. PERIODS OF FILING PLEADINGS


Period
Reckoning Point
Answer to the Complaint
Service of summons,
General rule: Within unless a different
15 days
period is fixed by the
court (Rule 11, Sec. 1
Foreign
private
juridical
entity
defendant, summons Receipt of summons
through government (Rule 11, Sec. 2)
official: Within 30
days
Non-resident
defendant,
with
Service
of
extraterritorial service
extrajudicial
of
summon:
summons [Rule 14,
reasonable time not
Sec. 15]
less than 60 days set
by oourt
Answer to amended Complaint
Amendment
was
Service of a copy of
matter of right: Within
the
amended
15 days
complaint

is

Upon motion and on such terms as may be just,


the court may extend the time to plead
provided in these Rules. The court may also,
upon like terms, allow an answer or other
pleading to be filed after the time fixed by
these Rules. [Rule 11, Sec. 11]

IV. MANNER OF FILING


Personal
By personally presenting the original copy of
the pleading, notice, appearance, motion,
order, or judgment to the clerk of court. [Rule
13, Sec. 3]
Deemed filed upon the receipt of the same by
the clerk of court who shall endorse on it the
date and hour of filing.
If a party avails of a private carrier, the date of
the courts actual receipt of the pleading (not
the date of delivery to the private carrier) is
deemed to be the date of the filing of that
pleading. [Benguet Electric Cooperative v.
NLRC (1992)]

Amendment
not Notice of the order
matter of right: Within admitting the same
10 days
(Rule 11, Sec. 3)
Answer to Counterclaim or Cross-Claim
From service (Rule 11,
Within 10 days
Sec. 4)
Answer to third (fourth, etc)-party complaint
Same rule as answer
Within 15 days
to the complaint (Rule
11, Sec. 5)
Reply
From service of the
Within 10 days
pleading responded
to (Rule 11, Sec. 6)
Answer to supplemental complaint
From notice of the
Within 10 days
order admitting the
same,
unless
a

Registered Mail [Rule 13, Sec.3]


Filing by mail should be through the registry
service (i.e. by depositing the pleading in the
post office).
Deemed filed on the date it was deposited with
the post office.
Note: Filing a pleading by facsimile is not
sanctioned. But fax was allowed in an
extradition case (Justice Cuevas v. Juan Antonio
Munoz)

V. MODES OF SERVICE
Personal Service (Rule 13, Sec. 6)

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(1) Delivering personally a copy to the party,


who is not represented by a counsel, or to
his counsel; or
(2) Leaving a copy in counsels office with his
clerk or with a person having charge
thereof; or
(3) Leaving the copy between 8am and 6pm at
the partys or counsels residence, if known,
with a person of sufficient age and
discretion then residing thereon if not
person is found in his office, or if his office
is unknown, or if he has no office

REMEDIAL LAW

Done by delivery of the copy to the clerk of


court with proof of failure of both personal and
service by mail
Proper only when:
(1) Service cannot be made personally or by
mail
(2) Office and place of residence of the party of
his counsel being unknown
Service is complete at the time of such delivery
Service of Judgments, Final Orders, or
Resolutions
Service is done either:
(1) Personally
(2) By registered mail
(3) By publication, if:
(a) A party is summoned by publication;
and
(b) Such party failed to appear in the
action

Service by Mail (Rule 13, Sec. 7)


(1) Ordinary Mail - it does not constitute filing
until the papers are actually delivered into
the custody of clerk or judge
(a) Service may be done by ordinary mail if
no registry service is available in the
locality of either sender or addressee
(2) Registered Mail - The date of mailing is the
date of filing
(a) Date of filing is determinable from 2
sources:
(i)
From the post office stamp on the
envelope
(ii)
From the registry receipt

NOTE: There is NO substituted service of


judgments and final orders

VI. PRIORITIES IN MODES OF SERVICE


AND FILING
General rule: Personal filing and service is
preferred. (Rule 13, Sec. 11)

(b) It is done by depositing in the post


office:
(c) In a sealed envelope
(d) Plainly addressed to the party or his
counsel
(i)
At his office if known
(ii)
Otherwise, at his residence if
known
(e) Postage fully pre-paid
(f) With instructions to the postmaster to
return the mail to the sender after 10
days if undelivered

Resort to other modes of filing and service


must be accompanied by an explanation why
the service/filing was not done personally. If
there is no written explanation, the paper is
considered not filed.
Exception: Papers emanating from the court.

VII. COMPLETENESS AND PROOF OF


SERVICE
Completeness of
Proof of service
service [Rule 13 Sec.
[Rule 13 Sec. 13]
10]
Personal service

Substituted Service (Rule 13, Sec. 8)

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(1) Written admission


of the party served;
or
(2) Official return of
the server; or
Upon actual delivery (3) Affidavit of the
party serving, with
a full statement of
the
date/place/manner
of service.
Service by ordinary mail
10
days
after Affidavit of person
mailing,
unless mailing
of
facts
otherwise provided showing
compliance
by the court
with Sec. 7 of Rule 13.
Service by registered mail
Whichever is earlier
of:
(1) Affidavit of person
(1) Actual receipt by
mailing
showing
the addressee;
compliance
as
or
above; and
(2) 5 days after
(2) Registry
receipt
addressee
issued by the post
received
office
postmaster's
notice

(1) When it is doubtful who the attorney for


such party is; or
(2) When the lawyer cannot be located; or
(3) When the party is directed to do something
personally, as when he is ordered to show
cause. [Retoni, Jr. v. CA]

Substituted Service

Completeness of
Proof of filing
Filing
[Rule 13, Sec. 12]
[Rule 13, Sec. 3]
Personal filing
Written
or
stamped
Upon receipt by
acknowledgment by the
the clerk of court
clerk of court
Filing by registered mail
On the date the (1) Registry receipt, and
pleading
was (2) Affidavit
of
the
deposited with the
person who did the
post office
mailing

Notice to the lawyer who appears to have been


unconscionably irresponsible cannot be
considered as notice to his client, as it would
then be easy for the lawyer to prejudice the
interests of his client by just alleging that he
just forgot every process of the court affecting
his clients, because he was so busy. [Bayog v.
Natino]

VII. COMPLETENESS AND PROOF OF


FILING
General Rule: The filing of a pleading or paper
is proved by its existence in the record of the
case [Rule 13, Sec. 12]
Exception: When the pleading or paper is not in
the record, its filing may be proved as shown in
the table below

At the time of delivery of the copy to the clerk


of court together with proof of failure of both
personal service and service by mail
When service is effected by registered mail:
(1) The registry return card which shall be filed
immediately upon its receipt by the sender;
or
(2) The unclaimed letter together with the
certified or sworn copy of the notice given
by the postmaster to the addressee. [Rule
13, Sec. 13]

In the case of filing by registered mail, when


the paper does not appear in the record, the
affidavit of the person who did the mailing
must contain:

Service to the lawyer binds the party. But


service to the party does not bind the lawyer,
unless ordered by the court in the following
circumstances:
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I. AMENDMENTS AS A MATTER OF
RIGHT

(1) A full statement of the date and place of


depositing the mail in the post office
(2) The fact that the paper was in a sealed
envelope addressed to the court
(3) The fact that postage was fully paid
(4) The fact that there were instructions to the
postmaster to return the mail to the sender
after 10 days if undelivered

A party may amend his pleading once as a


matter of right, at any time before a responsive
pleading is served, thus:
(1) Amendment of complaint is before an
answer is served.
(2) Amendment of answer is before a reply is
filed, or before the period for filing a reply
expires, and
(3) Amendment of reply any time within 10
days after it is served

E.8 AMENDMENT AND SUPPLEMENTAL


PLEADINGS
How to Amend Pleadings [Rule 10, Sec. 1]
(1) Adding an allegation of a party;
(2) Adding the name of a party;
(3) Striking out an allegation of a party;
(4) Striking out the name of a party;
(5) Correcting a mistake in the name of a
party; and
(6) Correcting a mistaken or inadequate
allegation or description in any other
respect

A motion to dismiss is not a responsive


pleading and does not preclude the exercise of
the planitffs right to amend his complaint/
[Remington Industrial Sales v. CA ]

II. AMENDMENTS BY LEAVE OF COURT


Leave of court is necessary in the following
instances:
(1) Further amendments after the party has
already amended his pleading as a matter
of right; and
(2) When a responsive pleading has already
been served.

A new copy of the entire pleading,


incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed.
(Rule 10, Sec. 7)

Requisites
(1) A motion for leave of court to amend
pleading is filed

Purpose: That the actual merits of the


controversy may speedily be determined,
without regard to technicalities, and in the
most expeditious and inexpensive manner.
[Rule 10, Sec. 1]

Amended pleading should be attached to


the motion [Rule 15, Sec. 9]

As a general policy, liberality in allowing


amendments is greatest in the early stages of a
law suit, decreases as it progresses and
changes at times to a strictness amounting to
a prohibition. This is further restricted by the
condition that the amendment should not
prejudice the adverse party or place him at a
disadvantage. [Barfel Development v. CA
(1993)]

(2) Notice is given to the adverse party


(3) Parties are given opportunity to be heard
When amendment may not be allowed
(1) If the cause of action, defense or theory of
the case is changed.
(2) If amendment is intended to confer
jurisdiction to the court.
If the court has no jurisdiction in the
subject matter of the case, the amendment
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of the complaint cannot be allowed so as


to confer jurisdiction on the court over the
property. [PNB v. Florendo (1992)]

REMEDIAL LAW

(2) Also allows admission of evidence on a


defense not raised in a motion or answer:
(a) if no objection is made thereto; or
(b) in the event of such objection, upon
amendment of the answer with leave
of court

(3) If amendment is for curing a premature


cause of action.
(4) If amendment is for purposes of delay.

However, where the plaintiff has no cause of


action at the time of the filing of the complaint,
this defect cannot be cured or remedied in this
manner by the acquisition or accrual of one
while the action is pending

III. FORMAL AMENDMENTS


Instances:
(1) Mere defect in the designation of the
parties;
(2) Other clearly clerical or typographical
errors

Two Scenarios
(1) No objection to the evidence is raised
Issues not raised in pleadings are tried by
express or implied consent of the parties;
they are treated in all respects as if they
had been raised.
Such amendments as may be necessary to
cause the pleadings to conform to the
evidence may be made upon motion of any
party at any time, even after judgment
Failure to amend does not affect the result
of the trial of those issues

The formal amendment must not cause


prejudice to the adverse party.
How formal amendments are effected
(1) May be summarily corrected by the court at
any stage of the action
(2) A party may, by motion, call for the formal
amendment

IV. AMENDMENTS TO CONFORM TO OR


AUTHORIZE
PRESENTATION
OF
EVIDENCE

(2) Objection to the evidence is raised


Objection on the ground that it is not
within the issues made by the pleadings
Court may allow the pleadings to be
amended and shall do so freely when the
presentation of the merits of the action will
be subserved
As safeguard, the court may grant a
continuance to enable the objecting party
to meet such evidence

[Rule 10, Sec. 5]


This is an instance wherein the court acquires
jurisdiction over the issues even if the same are
not alleged in the original pleadings, where the
trial of said issues is with the express or
implied consent of the parties

What Sec. 5 contemplates


(1) Allows a complaint which states no cause
of action to be cured either by:
(a) Evidence presented without objection
or
(b) In the event of an objection sustained
by the court, by an amendment of the
complaint with leave of court

V. SUPPLEMENTAL PLEADINGS
A pleading which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
Purpose: To bring into the records new facts
which will enlarge or change the kind of relief
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to which the plaintiff is entitled [Ada v. Baylon


(2012)]

F. SUMMONS

How Made: Upon motion of a party, with


reasonable notice and upon terms as are just.

The writ by which the defendant is notified of


the action brought against him [Republic v.
Domingo ]

The admission or non-admission of a


supplemental pleading is not a matter of right
but is discretionary on the court

Upon the filing of the complaint and the


payment of legal fees, the clerk of court shall
issue the corresponding summons to the
defendants. [Rule 14, Sec. 1]

Amended versus Supplemental Pleadings


Supplemental
Amendments
pleadings
Grounds
for
Reason
for
supplemental
amendment
is
pleading arose after
available at time of
the filing of the first
the first pleading
pleading
Either as a matter of
Always by leave of
right or by leave of
court
court
Merely supplements,
Supersedes
the
and exists side-byoriginal
side with the original
A new copy of the Does not require a
entire pleading must new copy of the entire
be filed
pleading

Contents
(1) Summons shall be:
(a) Directed to the defendant
(b) Signed by clerk of court under seal
(2) Summons shall contain:
(a) The name of the court, and the names
of the parties to the action;
(b) A direction that the defendant answer
within the time fixed by the Rules; and
(c) A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
(3) The following shall be attached to the
original and each copy of the summons:
(a) A copy of the complaint; and
(b) An order for appointment of guardian
ad litem (if any)

Supplemental pleadings are not allowed on


separate and distinct causes of action but a
supplemental pleading may raise a new cause
of action as long as it has some relation to the
original cause of action set forth in the original
complaint. [Ada v. Baylon (2012)]

Who may Serve Summons


(1) The sheriff
(2) His deputy
(3) Other proper court officer
(4) Any suitable person authorized by the
court, for justifiable reasons. [Rule 14, Sec.
3]

VI. EFFECT OF AMENDED PLEADING


(1) An amended pleading supersedes the
pleading that it amends
(2) Admissions in the superseded pleading can
still be received in evidence against the
pleader
(3) Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived [Rule 10, Sec.
8]

The enumeration of persons who may validly


serve summons is exclusive. [Herrera]

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F.1 NATURE AND PURPOSE OF


SUMMONS IN RELATION TO ACTIONS IN
PERSONAM, IN REM, AND QUASI IN REM

REMEDIAL LAW

defendants person, is not deemed a voluntary


appearance. [Rule 14, Sec. 20]

F.3 MODES OF SERVICE OF SUMMONS

For Actions in Personam


To acquire jurisdiction over the person of
the defendant in a civil case;
To give notice to the defendant that an
action has been commenced against him.

Modes
(1) Personal Service [Rule 14, Sec. 6]
(2) Substituted Service [Rule 14, Sec. 7]
(3) Service by Publication [Rule 14, Sec. 14-16]
Summons cannot be served by mail
Where service is made by publication, a copy of
the summons and order of the court shall be
sent by registered mail to last known address
of defendant. [Rule 14, Sec. 15]

Where the action is in personam, that is, one


brought against a person on the basis of his
personal liability, jurisdiction over the person
of the defendant is necessary for the court to
validly try and decide the case. [Velayo-Fong v.
Velayo ]

Resort
to
registered
mail
is
only
complementary to service by publication but
does not mean that service by registered mail
alone would suffice.

For Actions in Rem and Quasi in Rem


Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due process
Jurisdiction over the defendant is not
required and the court acquires jurisdiction
over an action as long as it acquires
jurisdiction over the res

I. PERSONAL SERVICE
How Done [Rule 14, Sec. 6]
(1) By handing a copy of summons to him; or
(2) If he refuses to receive it, by tendering it to
him
Personal Service of
Pleadings
Rule 13, Sec. 6
Personal
service
includes:
1. Service on the
party or his
counsel; or
2. By leaving a
copy with the
clerk or person
having charge
of his office; or
3. Leaving it with
a person of
sufficient age
and discretion
at the partys or
counsels

F.2 VOLUNTARY APPEARANCE


Any form of appearance in court, by the
defendant, by his agent authorized to do so, or
by attorney, is equivalent to service except
where such appearance is precisely to object
the jurisdiction of the court over the person of
the defendant [Carballo v. Encarnacion ]
General
Rule:
Defendant's
voluntary
appearance in the action shall be equivalent to
service of summons. [Rule 14, Sec. 20]
Exception: Special appearance to file a motion
to dismiss.
Inclusion in the motion to dismiss of grounds
other than lack of jurisdiction over the

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Personal Service of
Summons
Rule 14, Sec. 6
Service is only made
on
defendant
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CIVIL PROCEDURE

REMEDIAL LAW

Office or Regular Place of Business office or


place of business of defendant at the time of
service
Reasonable Time

residence

II. SUBSTITUTED SERVICE OF SUMMONS


It is only when the defendant cannot be served
personally within a reasonable time and for
justifiable reasons that a substituted service
may be made. [Rule 14, Sec. 7]

Person of Sufficient Age and Discretion


Person in Charge

III.
SERVICE
BY
PUBLICATION
(CONSTRUCTIVE SERVICE)

How Done
(1) By leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion residing
therein; or
(2) By leaving the copies at defendants office
or regular place of business with some
competent person in charge thereof

(1) Service upon Unknown Defendant [Rule 14,


Sec. 14]
(2) Extraterritorial Service of Summons [Rule
14, Sec. 15]
(3) Service upon a Resident temporarily out of
the Philippines [Rule 14, Sec. 16]
Service upon Unknown Defendant [Rule 14, Sec.
14]
Applicable in cases where:
(1) Defendant is sued as an unknown owner;
or
(2) His whereabouts are unknown and cannot
be ascertained with diligent inquiry

Requisites
It is necessary to establish the following:
(1) Indicate the impossibility of service of
summons within a reasonable time;
(2) Specify the efforts exerted to locate the
defendant; and
(3) State that the summons was served upon:
(a) a person of sufficient age and
discretion who is residing in the
address, or
(b) a person in charge of the office or
regular place of business, of the
defendant.
(4) It is likewise required that the pertinent
facts proving these circumstances be
stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar (2012)]

Service of summons may be effected by


publication in a newspaper of general
circulation and in such places and for such
time as the court may order
The Section applies to any action, making no
distinction between actions in rem, in
personam and quasi in rem.
Extraterritorial Service of Summons [Rule 14,
Sec. 15]
Applicable in cases where:
(1) Defendant is a nonresident;
(2) He is not found in the Philippines; and
(3) The action is either in rem. or quasi in rem
[Jose v. Boyon ]

Residence -- the place where the person


named in the summons is living at the time of
when the service is made, even though he may
be temporarily out of the country at that time
(Venturanza v. CA)

The actions in rem or quasi in rem, which would


justify extraterritorial service of summons are:
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(1) Those which affect the personal status of


the plaintiff,
(2) Those which relate to, or the subject of
which is, property within the Philippines in
which defendant claims a lien or interest,
actual or contingent;
(3) Those in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest in property
located in the Philippines, or
(4) Those wherein property of defendant
within the Philippines has been attached

REMEDIAL LAW

Even without such Section, as the defendant


has a residence in the Philippines, summons
may also be served through substituted service
under Rule 14, Sec. 7.
Summons may be effected to a resident
defendant, temporarily outside the Philippines,
by:
(1) Substituted service [Rule 14, Sec. 7]
(2) Service by publication [Rule 14, Sec. 15]

IV. SPECIAL CLASSES OF DEFENDANTS


Upon an Entity without Juridical Personality
[Sec. 8]
Applicable in cases where:
(1) Persons are associated in an entity without
juridical personality; and
(2) They are sued under the name by which
they are generally or commonly known

Service of summons is effecedt, by leave of


court, in the following modes:
(1) By personal service, as under Rule 14, Sec.
6;
(2) By publication in a newspaper of general
circulation in such places and for such time
as court may order; in which case, a copy of
the summons and order of the court shall
be sent by registered mail to the last
known address of defendant; or
(3) In any other manner the court may deem
sufficient.

Service is effected upon all of them by:


(1) Serving summons upon any of them; or
(2) Serving summons upon the person in
charge of their office or place of business
Upon Prisoners [Sec. 9]
Where the defendant is a prisoner confined in a
jail or institution, service shall be by the
management of such institution, who is
deemed deputized as a special sheriff.

Any order granting such leave shall specify a


reasonable time within which defendant must
answer, which shall not be less than 60 days
after notice.
Service upon a Resident temporarily out of the
Philippines [Rule 14, Sec. 16]
Applicable in cases where:
(1) Defendant is a resident of the Philippines;
and
(2) Is temporarily out of the country

Upon Minors and Incompetents [Sec. 10]


Service upon minors is effected upon:
(1) The minor defendant; and
(2) His legal guardian, or any of his parents
Service upon incompetents is effected upon:
(1) The defendant personally; and
(2) His legal guardian

Summons may, by leave of court, be effected


as in the case of extraterritorial service but
unlike in Rule 14, Sec. 15, it may be effected in
this manner for any action, not
distinguishing between actions in rem, in
personam, and quasi in rem.

In either case, if there be no legal guardian, the


plaintiff shall apply for the appointment of a
guardian ad litem, whom he shall also serve
upon.

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Upon Domestic Private Juridical Entity [Sec. 11]


Service is effected upon:
(1) The president,
(2) Managing partner,
(3) General manager,
(4) Corporate secretary,
(5) Treasurer, or
(6) In- house counsel

REMEDIAL LAW

(2) Upon provinces, cities, municipalities, and


like public corporations through the
executive head, or on such officers as law
or the court may direct.

F.4 RETURN AND PROOF OF SERVICE


Return [Rule 14, Sec. 4]
When service has been completed, the server
shall:
(1) Serve a copy of the return to the plaintiffs
counsel, personally or by registered mail,
within 5 days from service of summons;
and
(2) The server shall return the summons,
accompanied by proof of service, to the
clerk who issued it.

Upon a Foreign Private Juridical Entity [Sec. 12]


Service is effected:
(1) When the defendant is transacting
business in the Philippines:
(a) Upon the resident agent; or (if there be
none)
(b) Upon
the
government
agent
designated by law; or
(c) Any officer or agent of the corporation.

It is required to be given to the plaintiffs


counsel in order to enable him:
1. To move for a default order should the
defendant fail to answer on time, or
2. In case of non-service, so that alias
summons may be sought

Note that service in the cases of (b) and (c)


require that there is no resident agent
(2) When the defendant is not registered in the
Philippines, or has no agent, with leave of
court:
(a) By personal service coursed through
the appropriate foreign court, with the
assistance of the DFA;
(b) By publication in a newspaper of
general circulation in the country
where the defendant may be found;
and by serving a copy of the summons
and court order by registered mail at
the defendants last known address;
(c) By facsimile or any recognized
electronic means, which can generate
proof of service;
(d) By such other means directed by the
court/

In either of the 2 cases, server must serve a


copy of the return on plaintiffs counsel within
5 days from completion or failure of service
Alias Summons [Rule 14, Sec. 5]
Upon plaintiffs demand, the clerk may issue
an alias summons if either:
1. Summons is returned without being
served on any/all of the defendants.
2. Summons was lost.
The server shall also serve a copy of the return
on the plaintiff's counsel within 5 days
therefrom, stating the reasons for the failure of
service

Upon Public Corporations [Sec. 13]


Service is effected:
(1) Upon the Republic of the Philippines to
the Solicitor General;

Proof of Service [Rule 14, Sec. 18]


Proof service shall be made in writing, and
shall state
(1) the manner, place, date of service;

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(2) any papers which served with the process;


and
(3) the name of the person who received the
same.

REMEDIAL LAW

does not extinguish extinguishes


the
the
action action (final relief)
(interlocutory relief)
Generally in writing Always in writing
(with
some
exceptions)

Proof of service shall be sworn to when made


by a person, other than the sheriff or his deputy.

General Rule: A motion does not pray for


judgment

If effected by publication, proof of service shall


be by:
(1) The affidavit of the printer, his foreman, or
principal clerk; or of the editor, business or
advertising manager
(2) A copy of the publication; and
(3) An affidavit showing the deposit in the post
office, with postage prepaid, directed for
registered mail to the last known address
of the defendant of:
(a) A copy of the summons; and
(b) The order of publication.

Exceptions:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to
evidence.

G.1. CONTENTS AND FORM OF MOTION


Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained
(2) Grounds upon which it is based
(3) With supporting affidavits and other papers
if:
(a) Required by the Rules, or
(b) Necessary to prove facts alleged
therein

Effect of Defect of Proof of Service


(1) Where sheriffs return is defective,
presumption of regularity in the
performance of official functions will not lie
(2) Defective return is insufficient and
incompetent to prove that summons was
indeed served
(3) Party alleging valid summons will now
prove that summons was indeed served
(4) If there is no valid summons, court did not
acquire jurisdiction which renders null and
void all subsequent proceedings and
issuances

Form [Rule 15, Sec. 2]


Generally, in writing, except:
(1) Motions for continuance made in the
presence of the adverse party or those
made in the course of the hearing or trial
(2) Those made in open court even in the
absence of the adverse party or those
made in the course of a hearing or trial

G. MOTIONS IN GENERAL
Motion an application for relief other than by
a pleading

G.2 KINDS OF MOTIONS


Motions versus Pleadings
Motion
Pleading
Contains allegations Contains allegations
of facts
of the ultimate facts
Prays for a relief
Prays for a relief
Grant of the relief Grant
of
relief

(1) Litigated Motions -- one which requires the


parties to be heard before a ruling on the
motion is made by the court; written
motions are generally litigated motions
(2) Ex Parte Motions one which does not
require such ruling, and upon which the
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court may act without prejudicing the


rights of the other party

REMEDIAL LAW

Notice must be addressed to the counsels. A


notice of hearing addressed to the clerk of
court, and not to the parties, is no notice at all.
Accordingly, a motion that does not contain a
notice of hearing to the adverse party is
nothing but a mere scrap of paper, as if it were
not filed. [Provident International Resources v.
CA (1996)]

(3) Motion of Course - one for a relief or


remedy, to which the movant is entitled as
a matter of right; factual allegations
contained therein do not require
verification or investigation
(4) Special Motions one involving discretion
of the court and requiring investigation on
the facts alleged

Exceptions to the rule on Notice of Hearing


(1) Ex parte motions;
(2) Urgent motions;
(3) Motions agreed upon by the parties to be
heard on shorter notice, or jointly
submitted by the parties;
(4) Motions for summary judgment which
must be served at least 10 days before its
hearing.

(5) Pro Forma Motions one which fails to


indicate the time and place of the hearing

G.3 NOTICE OF HEARING AND HEARING


OF MOTIONS
Litigated written motions shall be set for
hearing by the movant or applicant. [Rule 15,
Sec. 4]

Proof of Service [Rule 15, Sec. 6]


A written motion set for hearing will not be
acted upon by the court if there is no proof of
service thereof.

General Rule: Motions shall be scheduled for


hearing on Motion Day
(1) On Friday afternoons; or
(2) Afternoon of the next working day, if Friday
is a non-working day. [Rule 15, Sec. 7]

Exceptions:
(1) If the motion is one which the court can
hear ex parte.
(2) If the court is satisfied that the rights of the
adverse parties are not affected by the
motion.
(3) If the party is in default; such a party is not
entitled to notice.

Exception: Motions which require immediate


action
Notice of Hearing
Notice shall be addressed to all parties, and
shall specify the time and date of the hearing
which shall not be later than 10 days from the
filing of the motion. [Rule 15, Sec. 5]

G.4. OMNIBUS MOTION RULE


A motion attacking a pleading, order,
judgment, or proceeding must include all
objections then available. All objections not
included in the motion are deemed waived.

Motion and notice of hearing must be served at


least 3 days before the date of hearing; [Rule 15,
Sec. 4]

Purpose: To require the movant to raise all


available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided

Purpose: To prevent surprise upon the adverse


party and to enable the latter to study and
meet the arguments of the motion.

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Exception:
(1) Lack of jurisdiction over subject matter
(2) Litis pendentia
(3) Res judicata
(4) Prescription

REMEDIAL LAW

definiteness or particularity to enable the


movant to properly prepare his responsive
pleading and to prepare for trial. [Tantuico, Jr.
v. Republic (1991)]
What cannot be done in a Bill of Particulars:
(1) To supply material allegations necessary to
the validity of a pleading
(2) To change a cause of action or defense
stated in the pleading
(3) To state a cause of action or defense other
than that one stated
(4) To set forth the pleaders theory of his
cause of action or a rule of evidence on
which he intends to reply
(5) To furnish evidentiary information

I. MOTION FOR BILL OF


PARTICULARS
Bill of Particulars a detailed explanation
respecting any matter which is not averred with
sufficient definiteness or particularity in the
complaint as to enable a party to properly
prepare his responsive pleading [Rule 12, Sec. 1]
An action cannot be dismissed on the ground
that the complaint is vague or indefinite. The
remedy of the defendant is to move for a Bill of
Particulars, or avail of the proper mode of
discovery. [Galeon v. Galeon (1973)]

I.2 ACTION OF THE COURT


Upon filing of the motion, the clerk must
immediately bring it to the attention of the
court. [Rule 14, Sec. 2]

I.1. PURPOSE AND WHEN APPLIED FOR


The purpose of the motion is to seek an order
from the court directing the pleader to submit
a bill of particulars, which avers matters with
sufficient definiteness or particularity to enable
the movant to prepare his responsive pleading.

The court may either:


(1) Deny
(2) Grant the motion outright
(3) Allow the parties the opportunity to be
heard

It is not to enable the movant to prepare for


trial. When this is the purpose, the appropriate
remedy is to avail of Discovery Procedures
under Rules 23 to 29. [Riano]

I.3 COMPLIANCE WITH THE ORDER

When Applied For


(1) Before responding to a pleading
(2) If sought to clarify a reply, within 10 days
from service thereof

If motion is granted, either in whole or in part,


the pleader must file a Bill of Particulars or a
more definite statement, within 10 days from
notice of order, unless the court fixes a
different period.

Compliance with Order [Rule 12, Sec. 3]

The motion should point out:


(1) The defects complained of;
(2) The paragraph wherein they are contained;
(3) The details desired. [Rule 12, Sec. 1]

Bill of Particulars or definite statement filed


either as a separate pleading or as an
amended pleading, a copy of which must be
served on the adverse party.

The only question to be resolved in such


motion is whether the allegations in the
complaint are averred with sufficient
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A Bill of Particulars becomes part of the


pleading for which it was intended. [Rule 12,
Sec. 6]

REMEDIAL LAW

J. MOTION TO DISMISS
A remedy of the defendant, which attacks the
entire pleading and seeks its dismissal based
on:
(1) Grounds which are patent on the face of
the complaint;
(2) Defenses available to the defendant at the
time of the filing of the complaint

Effect of Non-Compliance [Rule 12, Sec. 4]


(1) In case of non-compliance or insufficient
compliance with the order for Bill of
Particulars, the court may:
(a) Order the striking out of the pleading
(or portion thereof) to which the order
is directed; or
(b) Make such order as it may deem just.

The Motion hypothetically admits the truth of


the factual allegations stated in the complaint.
It is not a responsive pleading. It is not a
pleading at all.

(2) If the plaintiff fails to obey, his complaint


may be dismissed with prejudice unless
otherwise ordered by the court. [Rule 12,
Sec. 4; Rule 17, Sec. 3]

It is subject to the omnibus motion rule since it


is a motion that attacks a pleading. Hence, it
must raise all objections available at the time
of the filing thereof.

(3) If defendant fails to obey, his answer will


be stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintiff. [Rule
9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

Types of Dismissal of Action:


(1) Upon Motion to Dismiss under Rule 16;
(2) Dismissal under Rule 17:
(a) Upon notice by plaintiff;
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff.
(3) Upon Demurrer to Evidence after plaintiff
has presented his evidence under Rule 33;
(4) Dismissal of an appeal.

I.4 EFFECT ON THE PERIOD TO FILE


RESPONSIVE PLEADING
Provided that the Motion for Bill of Particulars
is sufficient in form and substance, it stays the
period for the movant to file his responsive
pleading.

Period to File
General Rule: Within the time for, but before
filing of, the answer to the complaint or
pleading asserting a claim

The movant may file his responsive pleading:


(1) within the period he was entitled at the
time the motion was filed; or
(2) within 5 days, whichever is higher.

Exceptions:
(1) For special reasons which may be allowed
even after trial has begun, a motion to
dismiss may be filed
(2) The court has allowed the filing of a motion
to dismiss where the evidence that would
constitute a ground for dismissal was
discovered during trial

Such period shall be reckoned from:


(1) Service of the Bill of Particulars or more
definite pleading; or
(2) Notice of denial of his Motion for Bill of
Particulars.

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General Rule: A court may not dismiss a case


motu propio, unless a motion to that effect is
filed by a party.

REMEDIAL LAW

Sec. 20, Rule 14 makes a categorical statement


that 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 voluntary appearance on his part.

Exceptions:
(1) Upon the grounds stated in Rule 9, Sec. 1;
(2) Due to fault of the plaintiff, under Rule 17,
Sec. 3;
(3) Pursuant to Sec. 4, Revised Rule on
Summary Procedure.

II. LACK OF JURISDICTION OVER THE


SUBJECT MATTER
If the complaint shows lack of jurisdiction over
subject matter on its face, the court may
dismiss the case outright even without a
motion to dismiss. [Rule 9, Sec. 1]

J.1. GROUNDS
(1) Lack of jurisdiction over the defendants
person
(2) Lack of jurisdiction over the subject matter
of the claim
(3) Improper venue
(4) Plaintiffs lack of legal capacity to sue
(5) Litis pendentia
(6) Res judicata
(7) Prescription
(8) Failure to state a cause of action
(9) Extinguished claim
(10) Unenforceable claim under the Statute of
Frauds
(11) Non-compliance
with
a
condition
precedent for filing claim

A motion to dismiss on this ground may also


be raised
1. Before answer;
2. After answer is filed;
3. After hearing had commenced;
4. At any stage of the proceeding, even
for the first time on appeal and even if
no such defense is raised in the answer.
NOTE: The rule refers to the subject matter of
each particular claim and not only to that of
the suit. Hence. other initiatory pleadings
included.

NOTE: Complaints cannot be dismissed on


ground not alleged in a motion to dismiss. The
motion may be based on only one of the
grounds enumerated in Sec. 1, Rule 16

Where a party invokes the jurisdiction of a


court to obtain affirmative relief and fails, he
cannot thereafter repudiate such jurisdiction.
While the issue of jurisdiction may be raised at
any time, he is estopped as it is tantamount to
speculating on the fortunes of litigation
(Crisostomo, et al. v. CA)

I. LACK OF JURISDICTION OVER THE


PERSON OF THE DEFENDANT
This objection must be raised:
(1) At the very first opportunity;
(2) Before any voluntary appearance is made.

III. IMPROPER VENUE


Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
improperly laid. [Diaz v. Adiong (1993)]

In La Naval Drug Corp. v. CA, et al. the Court


held that while lack of jurisdiction over the
person of defendant may be duly and
seasonably raised, his voluntary appearance in
court without qualification is a waiver of such
defense.

Where a motion to dismiss for improper venue


is erroneously denied, the remedy is prohibition
[Enriquez v. Macadaeg ]
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prove the pendency of another case, even if


same had been brought later.

IV. PLAINTIFF HAS NO LEGAL CAPACITY


TO SUE

It is not required that the later case be


dismissed in favor of the earlier case. To
determine which case should be abated, apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into
account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court
to the parties;
(c) Other similar factors.

The plaintiff lacks legal capacity to sue:


(1) When he does not possess the necessary
qualification to appear at the trial (e.g.
when he plaintiff is not in the full exercise
of his civil rights);
(2) When he does not have the character
which he claims, which is a matter of
evidence (e.g. when he is not really a duly
appointed administrator of an estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real
party in interest, in which case the ground for
dismissal would be that the complaint states
no cause of action.

In both tests, the parties good faith shall be


taken into consideration.
The 1st case shall be abated if it is merely an
anticipatory action or defense against an
expected suit. The 2nd case will not be abated
if it is not brought to harass. [Vitrionics
Computers v. RTC (1993)]

The issue of plaintiffs lack of legal capacity to


sue cannot be raised for the first time on
appeal where the defendant dealt with the
former as a party in the proceedings below
[Univ. of Pangasinan Faculty Union v. Univ. of
Pangasinan ]

VI. RES JUDICATA


Two concepts of res judicata [Topacio v. Banco
Savings and Mortgage Bank (2010)]
(1) Bar by prior judgment [Rule 39, Sec. 47(b)]
Judgment on the merits in the first case
constitutes an absolute bar to the subsequent
action not only as to every matter which was
offered and received to sustain or defeat the
claim or demand, but also to any other
admissible matter which might have been
offered for that purpose and to all matters that
could have been adjudged in that case.

V. LITIS PENDENTIA
Requisites
(1) Identity of parties, or at least such as
representing the same interest in both
actions;
(2) Identity of rights asserted and relief prayed
for, the relief being founded on the same
facts; and
(3) Identity of the two cases such that
judgment in one would amount to res
judicata on the action under consideration
[Film Development Council of the
Philippines v. SM Prime Holdings, Inc.
(2013)]

(2) Conclusiveness of judgment [Rule 39, Sec.


47(c)]
The second action is upon a different claim or
demand, the judgment in the first case
operates as an estoppel only with regard to
those issues directly controverted, upon the
determination of which the judgment was
rendered.

It is not required to allege that there be a prior


pending case. It is sufficient to allege and

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Requisites for Bar by Prior Judgment


(1) former judgment or order must be final;
(2) the judgment or order must be on the
merits;
(3) the decision must have been rendered by a
court having jurisdiction over the subject
matter and the parties;
(4) there must be, between the two actions,
identity:
(a) of parties;
(b) of subject matter; and
(c) of causes of action [Topacio v. Banco
Filipino Savings and Mortgage Bank
(2010)]

A matter of time
Statutory
Applies in law
Based on fixed time

REMEDIAL LAW
A matter of equity
Not statutory
Applies in equity
Not based on fixed
time

Defense of prescription is waived and cannot


be considered on appeal if not raised in the
trial court (Ramos v. Osorio)
However, if the allegations of the complaint, or
evidence presented, clearly indicate that the
action has prescribed, or where there is no
issue in fact as to prescription, defense of
prescription is not deemed waived by failure to
allege the same (Chua Lamko v. Dioso)

The test of identity of cause of action lies not in


the form of the action but on whether or not
the same evidence would support and
establish the former and the present causes of
action. [DBP v. Pundogar (1993)]

Estoppel and prescription cannot be invoked


against the State (Republic v. CA)
A motion to dismiss on the ground of
prescription will be given due course only if the
complaint shows on its face that the action has
already prescribed (Sison v. McQuaid)

Rationale: The sum and substance of the whole


doctrine is that a matter once judicially decided
is finally decided because of:
(1) Public policy and necessity makes it the
interest of the State that there should be
an end to litigation;
(2) The hardship on the individual that he
should be vexed twice for the same cause.
[Nabus v. CA (1991)]

If it is not apparent on its face, take note that


Sec. 3 prohibits deferment of the resolution of
the motion. Thus:
1. Evidence may be received in support of
the motion under Sec. 2, Rule 16; or
2. The motion to dismiss should be
denied without prejudice to the
complaints dismissal if evidence
disclose that the action had already
prescribed (Sec. 1, Rule 9)

VII. STATUTE OF LIMITATIONS


Prescription applies only when the complaint
on its face shows that indeed the action has
already prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be
brought out later, the court must defer
decision on the motion until such time as proof
may be presented on such fact of prescription.

VIII. COMPLAINT STATES NO CAUSE OF


ACTION
Failure to state a cause of action (not lack of
cause of action) is the ground for a MTD. The
former means there is insufficiency in the
allegations in the pleading. The latter means
that there is insufficiency in the factual basis of
the action.

Prescription
Laches
Concerned with the Concerned with the
fact of delay
effect of delay
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The failure to state a cause of action must be


evident on the face of the complaint itself.

admissions
or
evidence presented
and with prejudice

Test: Assuming the allegations and statements


to be true, does the plaintiff have a valid cause
of action?

IX. EXTINGUISHED CLAIM


That the claim/demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished.

A MTD based upon the ground of failure to


state a cause of action imports a hypothetical
admission by the defendant of the facts
alleged in the complaint.

X. UNENFORCEABLE CLAIM UNDER THE


STATUTE OF FRAUDS
Article 1403(2) of the Civil Code requires
certain contracts to be evidenced by some note
or memorandum in order to be enforceable, to
wit:
(1) An agreement that by its terms is not to be
performed within a year from the making
thereof;
(2) A special promise to answer for the debt,
default, or miscarriage of another;
(3) An agreement made in consideration of
marriage, other than a mutual promise to
marry;
(4) An agreement for the sale of goods,
chattels or things in action, at a price not
less than five hundred pesos, unless the
buyer accept and receive part of such
goods and chattels, or the evidences, or
some of them, of such things in action, or
pay at the time some part of the purchase
money; but when a sale is made by auction
and entry is made by the auctioneer in his
sales book, at the time of the sale, of the
amount and kind of property sold, terms of
sale, price, names of the purchasers and
person on whose account the sale is made,
it is a sufficient memorandum;
(5) An agreement for the leasing for a longer
period than one year, or for the sale of real
property or of an interest therein;
(6) A representation as to the credit of a third
person.

If the court finds the allegations of the


complaint to be sufficient but doubts their
veracity, it must deny the MTD and require the
defendant to answer and then proceed to try
the case on its merits.
A complaint containing a premature cause of
action may be dismissed for failure to state a
cause of action.
If the suit is not brought against the real partyin-interest, a motion to dismiss may be filed on
the ground that the complaint states no cause
of action. [Tanpinco v. IAC (1992)]
Complaint states no
cause of action
Insufficiency
of
allegations in the
pleading
May be raised in a
Motion to Dismiss at
any time but before
the filing the answer
to the complaint or
pleading asserting a
claim
Dismissal due to
failure to state a
cause of action can be
made at the earliest
stages of an action
and without prejudice

REMEDIAL LAW

No cause of action
Insufficiency of factual
basis for the action

May be raised at any


time

Dismissal due to lack


of cause of action is
made after questions
of fact have been
resolved on the basis
of
stipulations,

Unlike a motion to dismiss on the ground that


the complaint states no cause of action, a
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motion invoking the Statute of Frauds may be


filed even if the absence of a cause of action
does not appear on the face of the complaint.
Such absence may be proved during the
hearing of the motion to dismiss on said
ground. (Yuviengco et al. v. Dacuycuy, etc., et
al.)

REMEDIAL LAW

Evidence need not be presented when the


ground relied upon is failure to state a cause
of action, which must generally be
determined on the basis of the facts alleged in
the complaint.
Lack of formal hearing is not fatal when the
issues raised were fully discussed in the motion
and opposition. [Castillo v. CA ]

XI. NON-COMPLIANCE WITH CONDITION


PRECEDENT
Where the plaintiff has not exhausted all
administrative remedies, the complaint not
having alleged the fact of such exhaustion, the
same may be dismissed for lack of cause of
action (Pineda v. CFI Davao, et al.)

After hearing, the court may:


(1) Dismiss the action/claim
(2) Deny the MTD
(3) Order amendment of the pleadings [Rule
16, Sec. 3]

Where the complaint does not state that it is


one of the excepted cases, or it does not allege
prior availment of conciliation process, or it
does not have a certification that no
conciliation or settlement had been reached
under P 1508, case should be dismissed on
motion (Morata v. Go, et al.)

The court cannot defer the resolution of the


motion for the reason that the ground relied
upon is not indubitable, and must clearly and
distinctly state the reasons for its resolution.

Where the defendant had participated in the


trial court without any invocation of PD 1508,
and the judgment therein had become final
and executory, but said defendant thereafter
sought the annulment of the decision for
alleged lack of jurisdiction, the same was
denied under the doctrine of estoppel and
laches (Royales, et al., v. IAC)

Exception: The action cannot be re-filed


(although subject to appeal) if it was dismissed
on any of the following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/demand;
(4) Unenforceability under the Statute of
Frauds. [Rule 16, Sec. 1 (f),(h),(i)]

J.3. BAR BY DISMISSAL


General rule: The action/claim may be re-filed.

J.2. RESOLUTION OF MOTION

J.4. REMEDIES OF PLAINTIFF WHEN THE


COMPLAINT IS DISMISSED

A motion to dismiss is a litigated motion and


should be heard. During the hearing, parties
shall submit:
(1) Arguments on questions of law
(2) Evidence on questions of fact, except those
not available at that time

If the motion is granted, the complaint is


dismissed. Such dismissal is final, and not
interlocutory.
The plaintiff has several options:
(1) Where dismissal for certain grounds are
not tantamount to adjudication on the
merits (e.g. improper venue), the plaintiff
may refile the complaint.

If the case should later go to trial, evidence


presented in the hearing shall automatically be
part of the evidence of the party presenting the
same.

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(2) Where it is for a ground which bars re-filing,


the plaintiff may appeal from the order of
dismissal;
(3) Where the dismissal was tainted with grave
abuse of discretion, the plaintiff may also
avail of a petition for certiorari. [Riano]

A defendant with a counterclaim should plead


these grounds as affirmative defenses as
dismissal of the complaint under this section
shall be without prejudice to the prosecution of
the counterclaim in the same or separate
action.

J.5. REMEDIES OF DEFENDANT WHEN


THE MOTION IS DENIED

J.7. DISTINGUISHED FROM DEMURRER


TO EVIDENCE [RULE 33]

If the motion is denied, the denial is


interlocutory.

A motion to dismiss under this Rule differs


from a motion to dismiss under Rule 33 on
demurrer to evidence:

General Rule: The filing of an answer and


going through the usual trial process, and later,
the filing of a timely appeal from the adverse
judgment are the proper remedies against a
denial of a motion to dismiss.

Motion to Dismiss
Grounded
on
preliminary
objections
May be filed by any
defending
party
against whom a claim
is asserted in the
action
Should be filed within
the time for but prior
to the filing of the
answer
of
the
defending party to
the
pleading
asserting the claim
against him
If denied, defendant
must file an answer,
or else he may be
declared in default

If the motion is denied, the movant shall file his


answer:
(1) within the balance of the period prescribed
under Rule 11 to which he was entitled at the
time of serving his motion; or
(2) within 5 days, whichever is higher. [Rule 16,
Sec. 4]
If the pleading is ordered to be amended, the
movant shall file his answer within the period
prescribed by Rule 11, counted from service of
amended pleading, unless a longer period is
prescribed by the court.
Exception: The denial may be assailed by
certiorari, prohibition or mandamus, if there is a
showing that the denial was tainted by with
grave abuse of discretion amounting to lack of
jurisdiction.

If granted, plaintiff
may appeal or if
subsequent case is
not barred, he may
re-file the case

J.6. WHEN GROUNDS PLEADED AS


AFFIRMATIVE DEFENSES
If no motion to dismiss had been filed, any of
the grounds for dismissal may be pleaded as
affirmative defenses and a preliminary hearing
may be had at courts discretion. [Rule 16, Sec.
6]
67

Demurrer to Evidence
Based on insufficiency
of evidence
May be filed only by
the defendant against
the complaint of the
plaintiff
May be filed for the
dismissal of the case
only after the plaintiff
has completed the
presentation of his
evidence

If denied, defendant
may present evidence
If granted, plaintiff
appeals and the order
of
dismissal
is
reversed, defendant
loses his right to
present evidence

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(2) both actions based on , or including, the


same claims;
(3) in a court of competent jurisdiction.

K. DISMISSAL OF ACTIONS
K.1. DISMISSAL
PLAINTIFF

UPON

NOTICE

REMEDIAL LAW

BY

The second dismissal operates


adjudication on the merits.

Dismissal by plaintiff as a matter of right


Dismissal is effected by mere notice of
dismissal, which is a matter of right, before
service of:
1. The answer; or
2. A motion for summary judgment

as

an

K.2. DISMISSAL UPON MOTION OF


PLAINTIFF
Under this section, dismissal of the complaint
is subject to the discretion of the court and
upon such terms and conditions as may be just.

The dismissal as a matter of right ceases when


an answer or a motion for summary judgment
is served on the plaintiff, not when the answer
or the motion is filed with the court.

General Rule: Dismissal is without prejudice


Exceptions:
(1) When otherwise stated in the motion to
dismiss; or
(2) When stated to be with prejudice in the
order of the court

Withdrawal is not automatic but requires an


order by the court confirming the dismissal.
Until confirmed, the withdrawal does not take
effect. The requirement is in keeping with the
respect due the court. [Herrera]

Effect on Counterclaim:
If counterclaim has been pleaded by defendant
prior to service upon him of plaintiffs motion
for dismissal, dismissal shall be limited to the
complaint

However, it is not the order which operates to


dismiss the complaint. As stated by the rule, it
merely confirms the dismissal already effected
by the filing of the notice. [Riano]

The defendant either:


(1) Prosecute his counterclaim in a separate
action; or
The court should render the
corresponding order granting the
plaintiffs motion and reserving his
right to prosecute his claim in a
separate complaint

General Rule: Dismissal is without prejudice


Exceptions:
(1) Where the notice of dismissal so provides;
or
(2) Where the plaintiff has previously
dismissed the same case in a court of
competent jurisdiction (Two Dismissal
Rule)
(3) Where the notice of dismissal is premised
on a reason which would prevent refiling of
the complaint (e.g. extinguishment or res
judicata) [Riano]

(2) Have the same resolved in the same action


Defendant must manifest such
preference to the trial court within 15
days from notice of the plaintiffs
motion to dismiss
These alternative remedies of the defendant
are available to him regardless of whether his
counterclaim is compulsory or permissive.

Two Dismissal Rule


Applies when the following are met:
(1) plantiff had twice dismissed actions;
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K.3. DISMISSAL DUE TO FAULT OF THE


PLAINTIFF

REMEDIAL LAW

(3) Fails to comply with the Rules or any court


order.
(a) The order must be valid
(b) Failure to comply with order:
(c) Dismissal for failure to comply with
order to amend complaint to make
claims asserted more definite is ground
for dismissal (Santos v. General Wood
Craft)
(d) Failure to comply with an order to
include indispensable parties is ground
for dismissal (Aranico-Rubino v.
Aquino)
(e) The failure to comply with order of new
judge to recall witness so he may
observe demeanor is sufficient ground
for dismissal (Castillo v. Torres)

The case may be dismissed motu proprio or


upon the defendants motion if, without
justifiable cause, plaintiff:
(1) Fails to appear on the date of the
presentation of his evidence-in-chief on the
complaint;
(a) The plaintiffs failure to appear at the
trial after he has presented his
evidence and rested his case does not
warrant the dismissal of the case on
the ground of failure to prosecute. It is
merely a waiver of his right to crossexamine and to object to the
admissibility of evidence. [Jalover v.
Ytoriaga (1977)]
(b) Since plaintiffs presence is now
required only during the presentation
of his evidence in chief, his absence
during the presentation of defendant
or other parties evidence, or even at
rebuttal or subsequent stages, is not a
ground for dismissal.

(4) Failure to comply with rules


(a) The failure of the parties to submit a
compromise agreement within period
granted to them by court is not a
ground for dismissal (Goldloop
Properties Inc. v. CA)
(b) Dismissal is improper where a 3rd
party complaint has been admitted
and the 3rd party defendant had not
yet been summoned (Sotto v.
Valenzuela)
(c) A case may be dismissed for failure to
answer written interrogatories under
Rule 25 even without an order from the
court to answer. (Arellano v. CFISorsogon)

(2) Fails to prosecute his action for an


unreasonable length of time (nolle
prosequi);
(a) The test for dismissal of a case due to
failure to prosecute is WON, under the
circumstances,
the
plaintiff
is
chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
(b) The dismissal of an action pursuant to
this rule rests upon the sound
discretion of the court ( Smith Bell and
Co. v. American President Lines Ltd.)
(c) The action should never be dismissed
on a non-suit for want of prosecution
when the delay was caused by the
parties looking towards a settlement.
(Goldloop Properties Inc. v. CA)

General Rule: Dismissal is with prejudice, and


operates as an adjudication on the merits
Exceptions:
(1) The court declares otherwise, without
prejudice to the right of the defendant to
prosecute his counter-claim in the same or
separate action
(2) If court has not yet acquired jurisdiction
over the person of the defendant
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Effect on Counterclaim:
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action

REMEDIAL LAW

It is a procedural device by which the court is


called upon, after the filing of the last pleading,
to compel the parties and their lawyers to
appear before it, and negotiate an amicable
settlement or otherwise make a formal
settlement and embody in a single document
the issues of fact and law involved in the action,
and such other matters as may aid in the
prompt disposition in the case, such as:
1. Number of witnesses
2. Tenor or character of their testimonies
3. Documentary evidence; nature and
purpose of each
4. Number of trial dates [Herrera]

Defendant is not required to manifest his


preference within a 15-day period as in Sec. 2.
The motions to dismiss in this section and in
Rule 16, Sec. 6 are filed by a defendant who
has already deliberated on the course of action
he intends to take on his counterclaim and
which he may even manifest right in his motion
to dismiss.
The dismissal in Sec. 2 is at the instance of
plaintiff, hence, defendant is granted the time
and duty to manifest preference within 15 days
from notice, after an opportunity to study the
situation.

L.1. NATURE AND PURPOSE


Purpose of pre-trial is to consider: [Rule 18, Sec.
2]
(1) Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution;
(2) Simplification of the issues;
(3) Necessity/desirability of amendments to
the pleadings;
(4) Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
(5) Limitation of the number of witnesses;
(6) Advisability of a preliminary reference of
issues to a commissioner;
(7) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefor be found to exist;
(8) Advisability/necessity of suspending the
proceedings; and
(9) Other matters that may aid in the prompt
disposition of the action.

K.4. DISMISSAL OF COUNTERCLAIM,


CROSS-CLAIM,
OR
THIRD-PARTY
COMPLAINT
Provisions of Rule 17 shall apply to the
dismissal of any counterclaim, cross-claim, or
third-party complaint
Voluntary dismissal by claimant by notice as in
Sec. 1, shall be made:
(1) Before a responsive pleading or motion for
summary judgment is served; or
(2) If there is none, before introduction of
evidence at trial or hearing

L. PRE-TRIAL
Pre-Trial is a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel, called by the court after the joinder of
issues in a case or after the last pleading has
been filed and before trial, for the purpose of
settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice.

Pre-trial is Mandatory
Mandatory nature is addressed to both court
and parties:

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counsel and the parties actually knew of the


pre-trial (Bembo v. CA)

Court must set the case for pre-trial and


notify the parties as well as counsel to
appear
Parties with their counsel are obliged to
obey the order of the court to that effect

L.3. APPEARANCE OF PARTIES


It is the duty of both the parties and their
counsel to appear at the pre-trial. [Rule 18, Sec.
4]

Primary Objective
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.

When non-appearance is excused [Rule 18, Sec.


4]
Non-appearance of a party may be excused
only if either:
(1) Valid cause is shown for it;
(2) A representative appears in his behalf, fully
authorized in writing:
(a) To enter into an amicable settlement;
(b) To submit to alternative modes of
dispute resolution; and
(c) To enter into stipulations/admissions
of facts and of documents.

Thus, to obviate the element of surprise,


parties are expected to disclose at a pre-trial
conference all issues of law and fact which they
intend to raise at the trial, except such as may
involve privileged or impeaching matters. The
determination of issues at a pre-trial
conference bars the consideration of other
questions on appeal. [Caltex v. CA (1992)]

L.2. NOTICE OF PRE-TRIAL

The written special authority must be in the


form of a special power of attorney as authority
to enter into amicable settlement must be in
such form. [Rule 138, Sec. 23; Article 1878(3),
Civil Code]

After the last pleading has been served and


filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for
pre-trial. [Rule 18, Sec. 1]
Within 5 days from date of filing of the
reply, plaintiff must promptly move ex
parte that the case be set for pre-trial
conference.
If the plaintiff fails to file said motion
within the given period, the branch clerk
shall issue a Notice of Pre-Trial [AM No. 031-09-SC]

Effect of Failure to Appear; Order of Non-suit


(1) Of the plaintiff the case shall be
dismissed with prejudice, unless the court
orders
(2) Of the defendant the plaintiff shall be
allowed to present evidence ex parte, and
judgment shall be rendered based thereon
[Rule 18, Sec. 5]

The last pleading need not be literally


construed as the actual filing of the last
pleading. For purpose of pre-trial, the
expiration of the period for filing the last
pleading is sufficient [Sarmiento v. Juan ]

The non-appearance of defendant in pre-trial


is not a ground to declare him in default. Thus,
we distinguish:
Failure to appear by
Default by defendant
defendant (Rule 18,
(Rule 9, Sec. 3)
Sec. 5)
Upon motion and
Not required
notice to defendant.
Requires proof of Not required

The notice shall be served on counsel, or on the


party if he has no counsel. [Rule 18, Sec. 3]
The sufficiency of the written notice of pre-trial
is irrelevant where evidence shows that
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(1) Statement of their willingness to enter into


amicable settlement or alternative modes
of dispute resolution, indicating the
desired terms thereof;
(2) Summary of admitted facts and proposed
stipulation of facts;
(3) Issues to be tried/resolved;
(4) Documents/exhibits to be presented,
stating the purpose thereof;
(5) Manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners;
(6) Number and names of the witnesses, and
the substance of their respective
testimonies. [AM No. 03-1-09-SC]

failure to answer
Court
renders
Court may render
judgment based on
judgment
without
the
evidence
receiving evidence
presented ex parte
Judgment by Default
Judgment Ex Parte
Relief awarded must Relief awarded may
be the same in nature be of different nature
and amount as prayed and amount from the
for in the complaint
relief prayed for
When we say that a defendant is in default it
speaks of his failure to file responsive pleading
and not his non-appearance at pre-trial.
Remedies of Non-suited Party
(1) For a non-suited plaintiff:
Since the dismissal is with prejudice, it
has the effect of an adjudication on the
merits.
The proper remedy of the plaintiff is
appeal, not certiorari [Chingkoe v.
Republic (2013)]

Remedy of defendant is to file a motion for


reconsideration, showing that his failure to file
a trial brief was due to fraud, accident, mistake,
or excusable negligence. The filing of pre-trial
brief is mandatory, and is not excused simply
because the defendant was not represented by
counsel. [Saguid v. CA (2003)]

(2) For a non-suited defendant:


Since the order allowing presentation
of the evidence ex parte does not
dispose of the case, it is interlocutory.
The remedy of the defendant is to file a
motion for reconsideration, and if
denial is with grave abuse of discretion,
file a petition for certiorari [Riano]

No evidence shall be allowed to be presented


and offered during the trial in support of a
partys evidence-in-chief other than those
identified and pre-marked during the pre-trial,
except if allowed by the court for good cause
shown. [A.M. No. 03-1-09-SC]

L.5. PROCEEDINGS DURING AND AFTER


PRE-TRIAL

L.4. PRE-TRIAL BRIEF

Record of Pre-Trial
The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the
court shall issue the pre-trial order. [Rule 18,
Sec. 7]

Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
It is mandatory for parties to file their pre-trial
briefs as failure shall have the same effect as
failure to appear at the pre-trial. [Rule 18,
Sec.6]

One Day Examination of Witness Rule


The court shall ask the parties to agree on
specific dates for continuous trial, adhere to
the case flow chart determined by the court,

Contents
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and use the time frame for each stage in


setting the trial dates.

Civil Case [Rule 18]


Set when the plaintiff
moves ex parte to set
the case for pre-trial
[Sec. 1]
Made after the last
pleading has been
served and filed [Sec.
1]

Adherence to the One Day Examination of


Witness Rule shall be required where the
witness shall be fully examined in one day only,
subject to the courts discretion during the trial
on whether or not to extend the examination
for justifiable reasons. [A.M. No. 03-1-09-SC]
Most Important Witness Rule
The court shall determine the most important
witnesses, limit the number of such witnesses
and require the parties and/or counsels to
submit to the branch clerk of court the names,
addresses and contact numbers of the
witnesses to be summoned by subpoena. The
court may also refer the case to trial by
commissioner under Rule 32. [A.M. 03-1-09-SC]

Possibility
of
an
amicable settlement
as
an
important
objective [Sec. 2(a)]
The sanctions for nonappearance
are
imposed upon the
plaintiff
and
the
defendant [Sec. 4]
A pre-trial brief is
specifically required
to be submitted [Sec.
6]

Contents of Pre-Trial Order


(1) Matters taken up in the conference;
(2) Action taken thereon;
(3) Amendments allowed on the pleadings;
(4) Agreements/admissions made by the
parties as to any matters considered;
(5) Should the action proceed to trial, the
explicit definition and limit of the issues to
be tried.

REMEDIAL LAW
Criminal Case [Rule
118]
Ordered by the court
and no motion is
required from either
party [Sec. 1]
Ordered by the court
after
arraignment,
and within 30 days
from the date the
court
acquired
jurisdiction over the
person of the accused
Sec. 1]
Possibility of amicable
settlement of criminal
liability not among its
purposes [ Sec. 1]
Sanctions
are
imposed upon the
counsel
for
the
accused
or
the
prosecutor [Sec. 3]
A pre-trial brief is not
specifically required.

Pre-trial under Criminal Cases require stricter


procedure:
Civil Case: The arrangements and
admissions are not required to be signed
by both parties and their counsels; instead
contained in the record of pre-trial and
pre-trial order [Rule 18, Sec. 7]

Effect of Pre-Trial Order


The contents of the order shall control the
subsequent course of the action; unless:
(1) Modified before trial to prevent manifest
injustice [Rule 18, Sec. 7]
(2) Issues impliedly included therein or may be
inferable
therefrom
by
necessary
implication [Philippine Export and Foreign
Loan Giuarantee Corp. v. Amalgated
Management and Development Corp. ]
(3) Amendment to conform to evidence [Rule
10, Sec. 5]

Recently, the proceedings during the


preliminary conference are recorded in the
Minutes of Preliminary Conference to be
signed by both parties and/or counsel.
Note that either the party or his counsel
may sign. [A.M. No. 03-1-09-SC]

L.6. DISTINCTION BETWEEN PRE-TRIAL


IN CIVIL CASE AND IN CRIMINAL CASE

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conference are reduced in writing and


signed by both the accused and counsel;
otherwise, they cannot be used against the
accused. [Rule 118, Sec. 2]

L.7.
ALTERNATIVE
RESOLUTION

REMEDIAL LAW

Policy: To actively promote party autonomy in


the resolution of disputes or the freedom of the
party to make their own arrangements to
resolve their disputes [RA 9285, Sec. 2]

DISPUTE

Exception to the Application of RA 9285 [Sec.


6]
(1) labor disputes covered by the Labor Code;
(2) the civil status of persons;
(3) validity of a marriage;
(4) any ground for legal separation;
(5) the jurisdiction of courts;
(6) future legitime;
(7) criminal liability; and
(8) those which by law cannot be
compromised.

One the purposes of pre-trial is the


consideration of the possibility of amicable
settlement, or of a submission to alternative
modes of dispute resolution. [Rule 18, Sec. 2(a)]
The pre-trial briefs of parties must include the
parties statement of their willingness to enter
into an amicable settlement indicating the
desired terms thereof or to submit the case to
any of the alternative modes of dispute
resolution [Rule 18, Sec. 6; A.M. No. 03-1-09SC]

Modes of Alternative Dispute Resolution [Sec. 3,


RA 9285]
(1) Arbitration -- a voluntary dispute
resolution process in which one or more
arbitrators, appointed in accordance with
the agreement of the parties, or rules
promulgated pursuant to this Act, resolve
a dispute by rendering an award

At the start of the pre-trial conference, the


judge shall immediately refer the parties
and/or their counsel if authorized by their
clients to the Philippine Mediation Center
mediation unit for purposes of mediation if
available. IF mediation fails, the judge will
schedule the continuance of the preliminary
conference. [AM No. 03-1-09-SC]

Different Kinds:
(1) Domestic Arbitration an arbitration that
is not international; governed by RA 876
(Arbitration Law) [RA 9285, Sec. 32]
(2) International Arbitration An arbitration is
international if:
The parties to an arbitration
agreement have, at the time of the
conclusion of that agreement, their
places of business in different States; or
One of the following places is situated
outside the State in which the parties
have their places of business [Article 3,
Model Law on International Commercial
Arbritration]

The judge should not allow the termination of


pre-trial siply because of the manifestation of
the parties that they cannot settle the case. He
should expose the parties to the advantages of
pre-trial [A.M. No 03-1-09-SC]

I. ALTERNATIVE DISPUTE RESOLUTION


SYSTEM
Any process or procedure used to resolve a
dispute or controversy, other than by
adjudication of a presiding judge of a court or
an officer of a government agency, as defined
in the Act, in which a neutral third party
participates to assist in the resolution of issue
[RA 9285, Sec. 3(a)]

(2) Mediation a voluntary process in which a


mediator, selected by the disputing parties,
facilitates communication and negotiation,
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and assist the parties in reaching a


voluntary agreement regarding a dispute;
includes conciliation [Sec. 7, RA 9285]

REMEDIAL LAW

(10) Recognition and Enforcement of a Foreign


Arbitral Award;
(11) Confidentiality/Protective Orders; and
(12) Deposit and Enforcement of Mediated
Settlement Agreements.

(3) Mini-Trial a structured dispute resolution


method in which the merits of a case are
argued before a panel comprising senior
decision makers with or without the
presence of a neutral third person after
which the parties seek a negotiated
settlement

Service and Filing of Petition


The petitioner shall serve, either by personal
service or courier, a copy of the petition upon
the respondent before the filing thereof. Proof
of service shall be attached to the petition filed
in court.

(4) Early Neutral Evaluation a process


wherein parties and their lawyers are
brought together early in a pre-trial phase
to present summaries of their cases and
receive a nonbinding assessment by an
experienced, neutral person, with expertise
in the subject in the substance of the
dispute

Notice is served once the court finds petition


sufficient in form and substance, directing the
parties to appear at a particular time and date
for hearing and allowing him to file a comment
or opposition to petition within 15 days from
receipt of notice.
Hearing shall not be set no later than 5 days
from lapse of period for filing opposition or
comment.

(5) Combinations of alternative dispute


resolution processes: Med-Arb - step
dispute resolution process involving both
mediation and arbitration

Summary Hearing - In all cases, as far as


practicable, the summary hearing shall be
conducted in one (1) day and only for purposes
of clarifying facts.

Special Rules of Court on ADR [A.M. No. 07-1108-SC]


The Special ADR Rules shall apply to and
govern the following cases (Rule 1.1)
(1) Relief on the issue of Existence, Validity, or
Enforceability
of
the
Arbitration
Agreement;
(2) Referral ADR
(3) Interim Measures of Protection;
(4) Appointment of Arbitrator;
(5) Challenge to Appointment of Arbitrator;
(6) Termination of Mandate of Arbitrator;
(7) Assistance in Taking Evidence;
(8) Confirmation, Correction or Vacation of
Award in Domestic Arbitration;
(9) Recognition and Enforcement or Setting
Aside of an Award in International
Commercial Arbitration;

Prohibited Submissions (Rule 1.6)


(1) Motion to dismiss;
(2) Motion for bill of particulars;
(3) Motion for new trial or for reopening of
trial;
(4) Petition for relief from judgment;
(5) Motion for extension, except in cases where
an ex-parte temporary order of protection
has been issued;
(6) Rejoinder to reply;
(7) Motion to declare a party in default; and
(8) Any other pleading specifically disallowed
under any provision of the Special ADR
Rules.

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No summons (Rule 1.9)


In cases covered by the Special ADR Rules, a
court acquires authority to act on the petition
or motion upon proof of jurisdictional facts, i.e.,
that the respondent was furnished a copy of
the petition and the notice of hearing.

PRE TRIAL

NO SETTLEMENT

Agreements
made by parties;
Amendments to
pleading;
Schedule of Trial

FAILURE
APPEAR

TO

AMICABLE
SETTLEMENT

If defendant is
absent, court may
hear evidence of
plaintiff ex parte

If
plaintiff
is
absent when so
required
to
attend, court may
dismiss the case

TRIAL

If evidence is
insufficient
to
prove plaintiffs
cause of action or
defendants
counterclaim,
court rules in
favor of either
one or dismisses
the case
COURT
RENDERS
DECISION

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REMEDIAL LAW

and remote, conjectural, consequential or


collateral. [Virra Mall Tenants v. Virra Mall
[2011]]

M. INTERVENTION
A proceeding in a suit or an action by which a
third person is permitted by the court to make
himself a party, either:
(1) Joining plaintiff in claiming what is sought
by the complaint;
(2) Joining with defendant in resisting the
claims of the plaintiff; or
(3) demanding something adverse to both of
them. [Herrera]

Notwithstanding the presence of a legal


interest, permission to intervene is subject to
the sound discretion of the court, the exercise
of which is limited by considering "whether or
not the intervention will unduly delay or
prejudice the adjudication of the rights of the
original parties and whether or not the
intervenors rights may be fully protected in a
separate proceeding. [Virra Mall Tenants v.
Virra Mall (2011)]

Intervention is never an independent action,


but is ancillary and supplemental to the
existing litigation. Its purpose is to afford one
not an original party, yet having a certain
right/interest in the pending case, the
opportunity to appear and be joined so he
could assert or protect such right/interest.
[Carino v. Ofilada, 1993]

M.2. TIME TO INTERVENE


The motion to intervene may be filed at any
time before rendition of judgment by the trial
court.

M.1. REQUISITES FOR INTERVENTION

EFFECTED BY:

(1) The legal interest:


(a) In the matter in controversy; or
(b) In the success of either of the parties;
or
(c) Against both; or
(d) So situated as to be adversely affected
by a distribution or other disposition of
property in the custody of the court or
of an office thereof;
(2) Intervention will not unduly delay or
prejudice the adjudication of rights of
original parties
(3) Intervenors rights may not be fully
protected in a separate proceeding
[Lorenza Ortega v. CA, 1998]

(1) A motion to intervene


(2) Attaching the pleading-in-intervention;
and
(3) Also erving the motion and pleading-inintervention on the original parties [Rule 19,
Sec. 2]
General Rule: Allowance of intervention is
discretionary with the court
Exception: When the
indispensable party

intervenor

is

an

PLEADINGS-IN-INTERVENTION
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in resisting
a claim against the latter.
(3) Answer to complaint-in-intervention [Rule
19, Sec. 4] - It must be filed within 15 days
from notice of the order admitting the

MEANING OF LEGAL INTEREST


Interest must be of a direct and immediate
character so that the intervenor will either gain
or lose by the direct legal operation of the
judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
must not be indirect and contingent, indirect
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complaint-in-intervention,
unless
different period is fixed by the court.

(3) Officer or body authorized by law to do so


in
connection
with
investigations
conducted by said officer or body; or
(4) Any justice of the SC or of the CA, in any
case or investigation pending within the
Philippines

M.3. REMEDIES OF THE PARTIES


(1) If intervention is denied
(a) Aggrieved party may appeal
(b) Mandamus will not lie except in case of
grave abuse of discretion
(2) If intervention is granted
(a) A grant of a motion to intervene is
interlocutory
(b) Hence, anyone who objects can file a
petition for certiorari for improper
granting of intervention

All processes issued by the MTC and MCTC in


cases falling within their jurisdiction may be
served anywhere in the Philippines without the
necessity of certification by the judge of the
RTC [Sec. 38(2), BP 129]

FORM AND CONTENTS


[Rule 21, Sec. 3]
(1) Shall state the name of the court and the
title of the action or investigation
(2) Shall be directed to the person whose
attendance is required
(3) for subpoena duces tecum, shall also
contain a reasonable description of the
books, or things demanded which must
appear to the court to be prima facie
relevant

N. SUBPOENA
A process directed to a person requiring him:
(1) To attend and to testify at the hearing or
the trial of an action, or at any
investigation conducted by competent
authority, or for the taking of his
deposition; or
(2) To bring with him any books, documents,
or other things under his control [Rule 21,
Sec. 1]
Subpoena
An order to appear
and testify or to
produce books and
documents
May be served to a
non-party
Needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee

REMEDIAL LAW

N.1. SUBPOENA DUCES TECUM


A process directed to a person requiring him to
bring with him books, documents, or other
things under his control [Rule 21, Sec. 1]

Summons
An order to answer
complaint

Does not need tender


of kilometrage and
other fees

The subpoena duces tecum is, in all respects,


like the ordinary subpoena ad testificandum,
with the exception that it concludes with an
injunction that the witness shall bring with him
and produce at the examination the books,
documents, or things described in the
subpoena.

[Rule 21, Sec. 2]


(1) Court before whom the witness is required
to attend
(2) Court of the place where the deposition is
to be taken

Before this subpoena may issue, the court


must first be satisfied that the following tests
are met:
(1) Test of relevancy the books, documents,
or other things requested must appear
prima facie relevant to the issue subject of
the controversy;

Served
on
defendant

the

WHO MAY ISSUE

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REMEDIAL LAW

(2) Test of definiteness such books must be


reasonably described by the parties to be
readily identified

The refusal to obey a subpoena without


adequate cause shall be deemed contempt of
the court issuing it. [Rule 21, Sec. 9]

N.2. SUBPOENA AD TESTIFICANDUM

Exception:
Provisions regarding the compelling of
attendance [Sec. 8] and contempt [Sec. 9] do
not apply where:
(1) Witness resides more than 100km from his
residence to the place where he is to testify
by the ordinary course of travel [viatory
right]; or
(2) Permission of the court in which the
detention prisoners case is pending was
not obtained

A process directed to a person requiring him to


attend and to testify at the hearing or the trial
of an action, or at any investigation conducted
by competent authority or for the taking of his
deposition [Rule 21, Sec. 1]

N.3. SERVICE OF SUBPOENA


Service of subpoena shall be made in the same
manner as personal or substituted service of
summons. [Rule 21, Sec. 6]

Note: Viatory right applies only in civil cases,


not criminal cases. [Genorga v. Quitain (1977)]

Formalities
(1) The original is exhibited to the person
served;
(2) A copy is delivered to him; and
(3) Tender is made to him of the following:
(a) fees for one days attendance;
(b) kilometrage allowed by the Rules; and
(c) in the case of subpoena duces tecum,
the reasonable cost of producing the
books,
documents
and
things
demanded.

N.5. QUASHING OF SUBPOENA


Quashing of subpoena is done by the court,
upon motion promptly made at or before the
time specified in the subpoena. [Rule 21, Sec. 4]

GROUNDS
(1) For quashing subpoena duces tecum:
(a) That the subpoena is unreasonable
and oppressive;
(b) That the articles sought do not appear
prima facie relevant to the issues;
(c) That the applicant does not advance
the cost for the production of the
articles desired; or
(d) That there was no tender of witness
fees and kilometrage.
(2) For quashing subpoena ad testificandum
(a) That the witness is not bound thereby,
or
(b) That there was no tender of witness
fees and kilometrage.

Note: Tender of these amounts need not be


made if subpoena is issued by or on behalf of
the Republic, or an officer or agency thereof
When made: must be such as to allow the
witness reasonable time for preparation and
travel to the place of attendance

N.4. COMPELLING ATTENDANCE OF


WITNESS
The court which issued the subpoena may,
upon proof of service and failure of witness to
attend, issue a warrant for the arrest of the
witness and make him pay the cost of such
warrant and seizure, if the court should
determine that his disobedience was willful
and without just cause [Rule 21, Sec. 8]
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(2) Without leave
been served
Note: The taking
confined in prison
whether before or
[Rule 23, Sec. 1]

O. MODES OF DISCOVERY
Discovery a device employed by a party to
obtain information about relevant matters on
the case from the adverse party in the
preparation for trial [Riano]
Purpose: to permit mutual knowledge before
trial of all relevant facts gathered by both
parties so that either party may compel the
other to disgorge facts whatever he has in his
possession [RIano citing C.J.S.]

REMEDIAL LAW
of court after answer has
of deposition of a person
is always by leave of court,
after service of the answer.

Before whom Depositions are taken


[Rule 23, Sec. 10-11]
(1) Within the Philippines:
(a) Judge
(b) Notary Public, or
(c) Any person authorized to administer
oaths, as stipulated by the parties in
writing
(2) Outside the Philippines
(a) On notice before a secretary of
embassy or legation, consul general,
consul, vice-consul, or consular agent
of the Philippines
(b) Before such person or officer as may be
appointed by commission or under
letter rogatory or
(c) Any person authorized to administer
oaths as stipulated by parties in writing

Modes of Discovery
(1) Depositions pending actions [Rule 23]
(2) Depositions before action or pending
appeal [Rule 24]
(3) Interrogatories to parties [Rule 25]
(4) Admission by adverse party [Rule 26]
(5) Production or inspection of documents or
thing [Rule 27]
(6) Physical and mental examination of
persons [Rule 28]

O.1 DEPOSITIONS
[Rules 23-24]
Deposition taking of testimony out of court of
any person, whether party to the action or not
but at the instance of a party to the action
[Riano]

Disqualification by interest
[Rule 23, Sec. 13]
No deposition shall be taken before the
following:
(1) A relative by affinity or consanguinity
within the 6th degree of any party;
(2) An employee or counsel of any of the
parties
(3) A relative within the same degree or
employee of such counsel;
(4) Any person financially interested in the
action

Kinds of Depositions
(1) Depositions pending action [Rule 23]
called deposition de bene esse
(2) Depositions before action or pending
appeal [Rule 24] called depositions in
perpetuam rei memoriam

I. TAKING OF DEPOSITION
When Depositions Pending Action Taken [Rule
23, Sec. 1]
(1) With leave of court
(a) after jurisdiction has been obtained
over any defendant or over the property
which is the subject of the action, but
(b) before an answer has been served

Taking Depositions upon Oral Examination


(1) A party desiring to take the deposition
shall give reasonable notice in writing to
every party stating the time and place for
taking the deposition and the name and

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address of each person to be examined.


[Sec. 15]
(2) After notice is served, the court may make
any order for protection of the parties and
the deponent. [Sec. 16]

REMEDIAL LAW

(3) Under such limitations as the court may


order under Secs. 16 and 18.
These may relate to:
(1) any claim or defense of any other party;
(2) the existence, description, nature, custody,
condition, and location of books,
documents and other tangible things; or
(3) the identity or location of persons having
knowledge of relevant facts.

(3) The attendance of the witnesses may be


compelled by the use of subpoena. [Sec. 1]
(4) The deponent may be examined following
the procedures for witnesses in a trial, and
may be asked questions on direct, cross,
re-direct or re-cross. He has the same
rights as a witness and may be impeached
like a court witness. [Sec. 3]
(5) The officer before whom the deposition is
being taken has no authority to rule on
objections interposed during the course of
the deposition but any objections shall be
noted by him upon the deposition. Any
evidence that is objected to shall be taken
subject to the objection. [Sec. 17]

Specific Uses of Depositions [Rule 23, Sec. 4]


The use of depositions depends on whether
deponent is a party or not.
(1) For contradicting or impeaching the
testimony of the former deponent, now
testifying as a witness
Only used to contradict, not as proof of
specific facts
Cannot be used for this person if
deponent does not testify

Effect of Taking Depositions


[Rule 23, Sec. 7]
A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition because depositions are taken for
discovery and not for use as evidence.

(2) For any purpose, if the deponent was an


adverse party
May be used as an admission
Cannot, however, be used in the trial of
a case against a defendant who was
not a party to the action when the
deposition was taken

II. USES AND SCOPE OF DEPOSITION


General Uses of Deposition:
(1) Intended as a means to compel disclosure
of facts resting in the knowledge of a party
or other person, which are relevant in a suit
or proceeding
(2) Dual functions:
(a) A method of discovery
(b) A method of presenting testimony in
lieu of oral open court testimony

(3) Deposition of a witness or party may be


used for any purpose under the following
circumstances:
(a) Witness-deponent is dead there must
be proof or presumption of death, and
proof that the deposition was lawfully
taken
(b) Witness resides more than 100 km
from the place of trial or hearing, or is
out of the country -- unless absence
was procured by the proponent of the
deposition
(c) Disability of a witness due to age,
sickness, infirmity, or imprisonment

Scope of Examination [Rule 23, Sec. 2]


Deponent may be examined as to any matter:
(1) Not privileged;
(2) Relevant to the subject of the pending
action; and
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proven by certificate of attending


physician
(d) Inability to procure attendance of
witness by subpoena
(e) Exceptional circumstances

REMEDIAL LAW

When done: At any time during the taking of


deposition
Grounds:
That the examination is being conducted:
(1) In bad faith, or
(2) In such manner as unreasonably to annoy,
embarrass or oppress the deponent or
party

General rule: A deposition is not a substitute


for the actual testimony in open court of a
party or witness. If the witness is available to
testify, he should be presented in court to
testify. If available to testify, a partys or
witness deposition is inadmissible in evidence
for being hearsay. [Dasmarinas Garments Inc. v.
Reyes, 1993].

Effect of Errors and Irregularities in Depositions


[Rule 23, Sec. 29]
Error and
Effect
Irregularities
Waived
As to notice for
Unless written objection is
taking
promptly served upon
depositions
party giving notice
Waived
Objection
to Unless made:
taking
(1) Before
taking
of
deposition
deposition begins or
because
of (2) As soon thereafter as
disqualification
disqualification
of
officer
becomes known or
before whom it
could be discovered
is to be taken
with
reasonable
diligence
Not waived by failure to
Objection
to
make them before or
the
during the taking of
competency of
deposition
a witness or
Unless the ground of the
competency or
objection is one which
relevancy
or
might have been obviated
materiality of
or removed if presented at
testimony
that time
In the manner of taking, in
Occurring at
the form of questions or
oral
answers, in the oath or
examination
affirmation, or in conduct
and
other
of parties and errors of
particulars
any kind which might be

Exception: Depositions may be used as


evidence under the circumstances in Sec. 4.
Effect of Using Deposition [Rule 23, Sec. 8]
General Rule: If a party offers the deposition in
evidence, then he is deemed to have made the
deponent his witness.
Exceptions:
(1) The deposition is that of an opposing party,
or
(2) The deposition is used to impeach or
contradict opponent.

III. OBJECTIONS TO ADMISSIBILITY


Objection may be made at the trial or hearing
to receiving in evidence any deposition or part
thereof for any reason which would require the
exclusion of the evidence if the witness were
then present and testifying. [Rule 23, Sec. 6]

IV. TERMINATION OF TAKING OF


DEPOSITION OR LIMITATION OF SCOPE
How done
(1) A motion or petition for termination or limit
examination is filed by any party or of the
deponent
(2) Filed in the court where the action is
pending OR the RTC of the place where
deposition is being taken
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Objections to
the form of
written
interrogatories
under Sec. 25
and 26

In the manner
in
which
testimony
is
transcribed or
in
the
preparation
under Sec. 17,
19, 20, and 26

CIVIL PROCEDURE
obviated or removed if
promptly prosecuted are
waived
Unless
reasonable
objection thereto is made
at the time of taking the
deposition
Waived
Unless served in writing
upon
the
party
propounding them within
the time allowed for
serving succeeding cross
or other interrogatories
and within 3 days after
service
of
last
interrogatories authorized
Waived
Unless
motion
to
suppress depositions or
some part thereof is made
with
reasonable
promptness after such
defect is ascertained, or
with due diligence might
have been ascertained

REMEDIAL LAW

enclosed in sealed envelopes to be opened


as directed by the court;

V. DEPOSITIONS BEFORE ACTION OR


PENDING APPEAL
[Rule 24]
Referred to as perpetuation of testimony
(depositions in perpetuam rei memoriam)
because their objective is to perpetuate the
testimony of a witness for future use, in the
event of further proceedings in said court.
Who may avail:
Any person:
(1) Who wants to perpetuate his own
testimony; or
(2) Who wants to perpetuate the testimony of
another person
Procedure for Deposition before Action
(1) File a verified petition in the court of the
place of the residence of any expected
adverse party, entitled in the name of the
petitioner and stating:
(a) That the petitioner expects to be a
party to an action in a court of the
Philippines but is unable to bring it or
cause it to be brought;
(b) The subject matter of the expected
action and his interest therein;
(c) The facts which he desires to establish
by the proposed testimony and his
reasons for desiring to perpetuate it;
(d) The names or a description of the
persons he expects will be adverse
parties and their addresses so far as
known; and
(e) The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit, and
(f) Asking for an order authorizing the
taking of the depositions of the persons
sought to be examined named in the

Orders of the court regarding deposition taking


(1) That the deposition shall not be taken;
(2) That it may be taken at some designated
place other than that stated in the notice;
(3) That it may be taken only on written
interrogatories;
(4) That certain matters shall not be inquired
into
(5) That the scope of the examination shall be
held with no one present except the parties
to the action and their officers or counsel;
(6) That after being sealed, the deposition
shall be opened only by order of the court;
(7) That secret processes, developments, or
research need not be disclosed;
(8) That the parties shall simultaneously file
specified documents or information

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petition
for
the
purpose
of
perpetuating their testimony.
(2) Notice and service to each person named in
the petition as an expected adverse party,
together with a copy of the petition, stating
that the petitioner will apply to the court,
at a time and place named therein, for the
order described in the petition.
(a) At least 20 days before the date of the
hearing, the court shall cause notice
thereof to be served on the parties and
prospective deponents in the manner
provided for service of summons.

as if the action was pending therein. The


motion shall state:
(a) The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each, and
(b) The reason for perpetuating their
testimony.
(3) Order allowing the deposition: If the court
finds that the perpetuation of the
testimony is proper to avoid a failure or
delay of justice, it may make an order
allowing the deposition to be taken.

(3) Order and Examination: If the court is


satisfied that the perpetuation of the
testimony may prevent a failure or delay of
justice, it shall make an order designating
or describing the persons whose deposition
may be taken and specifying the subject
matter of the examination and whether the
depositions shall be taken upon oral
examination or written interrogatories.

O.2. WRITTEN INTERROGATORIES OF


ADVERSE PARTIES [RULE 25]
[Rule 25]
Purpose: This mode of discovery is availed of by
the party to the action for the purpose of
eliciting material and relevant facts from any of
the adverse party. [Rule 25, Sec. 1]
Scope and Use: Interrogatories have the may
relate to the same matter as may be inquired
into under Depositions Pending Action and
may also be used for the same purposes
provided. [Rule 24, Sec. 5]

Use of Deposition
If a deposition to perpetuate testimony is taken
under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be
used in any action involving the same subject
matter subsequently brought in accordance
with the provisions of sections 4 and 5 of Rule
23. [Rule 24, Sec. 6]

Written Interrogatories v. Interrogatories to


Parties
Interrogatories to
Written Interrogatories
Parties
Taken
before
a
No deposition officer.
deposition officer
Questions
are
prepared beforehand,
The questioning is
and submitted to the
direct.
deposition officer who
will ask the deponent
The deposition of any
Interrogatories
are
person may be taken,
served on parties to
whether he is a party
the action
or not.

Procedure for Deposition Pending Appeal:


(1) During the pendency of an appeal, the
court in which the judgment was rendered
may allow the taking of depositions of
witnesses to perpetuate their testimony in
the event of further proceedings in the said
court.
(2) The party who desires to perpetuate the
testimony may make a motion in the said
court for leave to take the depositions,
upon the same notice and service thereof

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I. SERVICE OF INTERROGATORIES TO
PARTIES

REMEDIAL LAW

Grounds
(1) The interrogatories require:
(a) statements of conclusions of law;
(b) answers to hypothetical questions or
opinion;
(c) mere hearsay; or
(d) matters not within the personal
knowledge of the interrogated party
(2) Frivolous interrogatories need not be
answered. [Herrera]

Any party desiring to elicit material and


relevant facts from any adverse party shall file
and serve upon the adverse party written
interrogatories to be answered by the party
served.
Manner of Service
(1) Without leave of court After answer has
been served; and for the first set of
interrogatories
(2) With leave of court before the answer has
been served; and for subsequent sets of
interrogatories
Note: No party may, without leave of court,
serve more than one set of interrogatories to
be answered by the same party. [Rule 25, Sec.
4]

IV. CONSEQUENCES OF FAILURE TO


ANSWER
On failure to answer of a party served with
interrogatories, the court, on motion and
notice, may:
(1) strike out all or any part of any pleading of
that party;
(2) dismiss the action;
(3) render judgment by default against the
party; and
(4) order payment by such party of reasonable
expenses including attorneys fees. [Rule
29, Sec. 5]

II. ANSWERS
Written interrogatories and the answers
thereto must both be filed and served. [Rule 25,
Sec. 2] Hence, the answers may constitute as
judicial admissions [Rule 129, Sec. 4]

V. EFFECT OF FAILURE TO SERVE

Form: The answer must be fully in writing,


signed and sworn to by the person making
them.

A party not served with written interrogatories


may not be compelled by adverse party to:
(1) Give testimony in open court; or
(2) Give deposition pending appeal [Rule 25,
Sec. 6]

Service and Filing


Shall be filed and served on the party
submitting interrogatories within 15 days after
service of interrogatories, unless the court
extends or shortens period on motion and for
good cause.

Exception: Allowed by the court for good cause


shown and to prevent a failure of justice

O.3. REQUEST FOR ADMISSION


III. OBJECTIONS TO INTERROGATORIES

[Rule 26]
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegation in a
pleading.

Objections may be presented to the court


within 10 days after service of the
interrogatories, with notice as in case of a
motion. [Rule 25, Sec. 3]
Effect: Answers shall be deferred until
objections are resolved
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Purposes:
(1) To allow one party to request the adverse
in writing to admit certain material and
relevant matters which most likely will not
be disputed during the trial.
(2) To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the
other to:
(a) Admit the genuineness of any material
and relevant document described in
and exhibited with the request; or
(b) Admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]

Period: Such party must file and serve such


statement:
(1) Within a period not less than 15 days
designated in the request; or
(2) Within such further time as the court may
allow on motion

How made:
(1) A party files and serves upon any other
party a written request
(2) Copies of the documents shall be served
with the request unless already furnished

The proponent may apply to the proper court


for an order to compel an answer. [Rule 29, Sec.
1]

Objections shall be submitted to the court by


the party requested within the period for and
prior to filing of his sworn statement.
Compliance with the sworn statement shall be
deferred until objections are resolved. [Rule 26,
Sec. 2]

II. CONSEQUENCES FOR FAILURE TO


ANSWER REQUEST

If application is granted, the court:


(1) shall require the refusing party to answer;
and
(2) may require the refusing party or counsel
to pay reasonable expenses for obtaining
the order, the refusal to answer was
without substantial justification.

The request for admission must be served on


the party, not the counsel. This is an exception
to the general rule that notices shall be served
upon counsel and not upon the party. [Duque v.
CA, (2002)]
When made: At any time after issues have been
joined, which is to say,

If application is denied and it was filed without


substantial justification, the court may require
the refusing party or counsel to pay reasonable
expenses for opposing the application.

I. IMPLIED ADMISSION BY ADVERSE


PARTY
Each of the matters which an admission is
requested shall be deemed admitted unless
the party to whom request is directed files and
serves upon the party requesting admission a
sworn statement [Rule 26, Sec. 2]

Refusal to answer after being directed by the


court would constitute contempt of court.
Refusal to obey would also allow the court to
make such orders regarding the refusal as are
just, such as:
(1) that the matters regarding which questions
were asked be taken as established for the
purposes of the action in accordance with
the claim of the party obtaining the order;

Contents
(1) Denying specifically the matters of which
an admission is requested, or
(2) Setting forth in detail the reasons why he
cannot truthfully either admit or deny
those matters
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REMEDIAL LAW

I. PROCEDURE

(2) that the disobedient party be disallowed


from supporting or opposing designated
claims or defenses;
(3) that pleadings or parts thereof be stricken
out; or that further proceedings be stayed
until compliance; or that actions or any
parts thereof be dismissed or that
judgment be rendered by default against
the disobedient party; or
(4) that that the disobedient party be arrested.
[Rule 29, Sec. 3]

[Rule 27, Sec. 1]


A motion is filed by the party seeking
production or inspection, showing good cause
therefor.
The court may issue an order:
(1) for the party to produce and permit
inspection, copying or photographing, by
or on behalf of the moving party, of any
designated documents or tangible things,
(a) not privileged,
(b) constituting or containing material
evidence, and
(c) in the partys in his possession, custody
or control
(2) for the party to permit entry upon
designated land or other property, in his
possession or control, for inspection,
measuring, surveying, or photographing
property or any designated relevant object
or operation.

III. EFFECT OF ADMISSION


Any admission made by a party pursuant to
such request is for the purpose of the pending
action only [Rule 26, Sec. 3]
It shall not:
(1) Constitute an admission by him for any
other purpose; nor
(2) Be used against him in any other
proceeding

iv. Effect of Failure to File and Serve Request


for Admission

The order shall state:


(1) The time, place, and manner of making the
inspection and taking copies and
photographs, and
(2) Such terms and conditions as are just

Applicability: The party fails to file and serve a


request for admission on the adverse party for
facts at issue, which are:
[1] material and relevant fact at issue, and
[2] are, or ought to be, within the personal
knowledge of the adverse party

II. PRODUCTION OF DOCUMENTS V.


SUBPOENA DUCES TECUM
Production or
Inspection of
Documents

Effect: The party shall not be permitted to


present evidence on such facts, unless allowed
by the court for good cause and to prevent a
failure of justice [Rule 29, Sec. 5]

Subpoena Duces
Tecum

A
means
of
compelling
A mode of discovery
production
of
evidence
Limited to the parties May be directed to
of the action
non-party
Issued upon motion
May be issued upon ex
with notice to the
parte application
adverse party
May be asked before May be asked only
and/or during trial
during trial

O.4. PRODUCTION OR INSPECTION OF


DOCUMENTS OR THINGS
[Rule 27]
Applicable only to a pending action and the
things subject of the motion must be within the
possession, control, or custody of a party.

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Must
cause

CIVIL PROCEDURE

show

good Need not show good


cause
Grounds for quashal:
(1) Unreasonable,
May be quashed for
oppressive,
lack of good cause
irrelevant
shown
(2) Failure to advance
reasonable costs
of production
Disobedience would
allow court to issue Disobedience
orders as in the case constitutes contempt
of refusal to answer of court
request for admission

O.5.
PHYSICAL
OR
EXAMINATION OF PERSONS

REMEDIAL LAW

a like report of any examination, previously or


thereafter made, of the same mental or
physical condition.
If such report is not delivered
(a) due to refusal of the party examined, the
court may make an order requiring delivery
on such terms as are just;
(b) due to failure or refusal of the physician,
the court may exclude his testimony when
offered at trial.

III. WAIVER OF PRIVILEGE


[Rule 28, Sec. 4]
Where the party examined requests and
obtains a report on the results of the
examination, the consequences are:
(1) He has to furnish the other party a copy of
the report of any previous or subsequent
examination of the same physical and
mental condition; and
(2) He waives any privilege he may have in
that action or any other involving the same
controversy regarding the testimony of any
other person who has so examined him or
may thereafter examine him

MENTAL

[Rule 28]
Applicable in an action in which the mental or
physical condition of a party is in controversy.
[Rule 28, Sec. 1]

I. PROCEDURE
[Rule 28, Sec. 2]
A motion for the examination is filed in the
court where the action is pending:
(1) showing good cause for the examination;
(2) with notice to the party to be examined,
and all other parties; and
(3) specifying the time, place, manner,
conditions, scope, and person conducting
the examination.

O.6. CONSEQUENCES OF REFUSAL TO


COMPLY
[Rule 29]
Form of
Refusal

Sanctions

The court may, upon proper


application,
compel
a
refusing deponent to answer
[Sec. 1]
(1) If granted, and refusal to
Refusal
to
answer
is
without
answer
any
substantial justification,
question
court may require the
[Sec. 1 and 2]
refusing party to pay
proponent the reasonable
expenses incurred in
obtaining the order
(2) If denied, and filed

Since the results of the examination are


intended to be made public, the same are not
covered by physician-patient privilege [Rule
130, Sec. 24(b)]

II. REPORT OF FINDINGS


[Rule 28, Sec. 3]
The party examined may request delivery of a
copy of the detailed written report, with the
findings of the examining physician. Upon such
request and delivery, the party causing the
examination is entitled upon request to receive
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Form of
Refusal

CIVIL PROCEDURE

Form of
Sanctions
Refusal
admit under application, issue an order
Rule 26
requiring the other party to
[Sec. 4]
pay him reasonable expenses
incurred, including attorneys
fees
PROVIDED
that
party
requesting
proves
genuineness
of
such
document or truth
UNLESS court finds:
(1) There were good reasons
for denial
(2) Admissions sought were
of no importance
The court on motion and
notice may:
(1) Strike out all or any part
of any pleading of
Failure
of
disobedient party
party
to (2) Dismiss the action or
attend
or
proceeding or any part
serve answers
thereof
to
written (3) Enter a judgment by
interrogatories
default
against
[Sec. 5]
disobedient party
(4) Order
payment
of
reasonable
expenses
incurred by the other
including attorneys fees

Sanctions
without
substantial
justification, court may
require proponent to pay
refusing
party
the
reasonable
expenses
incurred in obtaining the
order

Refusal to be
Sworn [Sec. 2]

Refusal
to
answer
designated
questions or
refusal
to
produce
documents or
to submit to
physical
or
mental
examination
[Sec. 3]

Refusal

to

REMEDIAL LAW

A refusal to answer after


being directed by court to do
so may be constituted as
contempt of court
Cite
the
disobedient
deponent in contempt of
court
The court may make the
following orders:
(1) Prohibit the disobedient
party
to
introduce
evidence of physical or
mental condition
(2) Refuse to allow the
disobedient party to
support or oppose claims
or defenses
(3) Strike out pleadings or
parts thereof
(4) Stay further proceedings
(5) Dismiss the action or
proceeding or any part
thereof
(6) Render a judgment by
default
against
disobedient party
(7) Direct the arrest of any
party disobeying any of
such orders except an
order to submit to a
physical
or
mental
examination
(8) Other orders as may be
just
The court, upon proper

Note: Expenses and attorneys fees are not to


be imposed upon the Republic of the
Philippines. [Rule 29, Sec. 6]

P. TRIAL
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
[Acosta v. People [1962]].
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
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I.
ADJOURNMENTS
POSTPONEMENTS

because it actually embraces several stages in


the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
[Trocio v. Labayo [1973]]

AND

A court may adjourn a trial from day to day,


and to any stated time, as the expeditious and
convenient transaction of business may require

General rule: When an issue exists, trial is


necessary. Decision should not be made
without trial.

Limitations
The court has no power to adjourn a trial for:
(1) A period longer than one month for each
adjournment; or
(2) More than 3 months in all

Exceptions
A civil case may be adjudicated upon without
the need for trial in any of the following cases:
(1) Where the pleadings tender no issue at all,
judgment on the pleadings may be directed
by the court [Rule 34]
(2) Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment [Rule 35]
(3) Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the trial
is in progress [Rule 18; Art. 2028, Civil Code]
(4) Where the complaint has been dismissed
with prejudice, or when the dismissal has
the effect of an adjudication on the merits
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec.
5]
(5) Where the case falls under the Rules on
Summary Procedure, and
(6) Where the parties agree, in writing, upon
the facts involved in the litigation and
submit the case for judgment on the facts
agreed upon, without the introduction of
evidence. [Rule 30, Sec. 6] [Riano]

Exception: The court may go beyond these


limitations, if authorized in writing by the Court
Administrator.
Postponement
A motion for postponement should not be filed
on the last hour especially when there is no
reason why it could not have been presented
earlier. A party asking for postponement has
no absolute right to expect that his motion
would be granted. [Republic v. Sandiganbayan]
Requisites of Motion to Postpone Trial
(1) For absence of evidence [Rule 30, Sec. 3]
Motion accompanied by affidavit showing:
(a) That the materiality or relevancy of the
evidence; and
(b) That diligent efforts had been exerted
to procure the evidence
(2) For illness of party or counsel [Rule 30, Sec.
4] -- Motion accompanied by affidavit or
sworn certification showing:
(a) The presence of such party or counsel
at the trial is indispensable; and
(b) That the character of his illness is such
as to render his non-attendance
excusable

Notice of Trial
Upon entry of a case in the trial calendar, the
clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date. [Rule 30, Sec. 1]

II. AGREED STATEMENT OF FACTS


The parties may agree, in writing, upon the
facts involved in the litigation and submit the

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case for judgment in the facts agreed upon,


without the introduction of evidence

(6) Parties may then respectively adduce


rebutting evidence only, unless the court
permits them to adduce evidence upon
original case
(7) Upon admission of evidence, case
submitted for decision, unless court directs
parties to argue or to submit respective
memoranda or any further pleading [Rule
30, Sec. 5]

If the parties agree only on some of the facts in


issue, trial shall be held as to the disputed
facts in such order as the court shall prescribe.
[Rule 30, Sec. 6]
Stipulation in Civil
Cases
May be signed alone
by the counsel, who
has an SPA
May be made verbally
or in writing

REMEDIAL LAW

Stipulation in Criminal
Cases
Must be signed by
both counsel and
accused
Strict; it must always
be in writing

Reverse Order
The defendant presents evidence ahead of the
plaintiff, when the defendant relies in his
Answer only upon an affirmative defense.
Where the answer of the defendant admitted
the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come forward with evidence
to support his special defenses. [Yu v. Mapayo]

An agreed statement of facts is conclusive on


the parties, as well as on the court. Neither of
the parties may withdraw from the agreement,
nor may the court ignore the same. [McGuire v.
Manufactures Life]

The reasoning behind this is that the plaintiff


need not present evidence since judicial
admissions do not require proof [Sec. 2, Rule
129]

III. ORDER OF TRIAL


Trial shall be limited to the issues stated in the
pre-trial order, except in the following cases:
(1) the court orders separate trial under Rule
31, Sec. 2, in the furtherance of convenience
or to avoid prejudice; or
(2) when for special reasons the court directs
otherwise

IV. CONSOLIDATION OR SEVERANCE OF


HEARING OR TRIAL
Consolidation a procedural device, gratned to
the court as an aid in deciding how case in its
docket are to be tried, so that the business of
the court may be dispatched expeditiously
while providing justice to the parties. [Republic
v. Heirs of Oribello (2013)]

General Order of Trial


(1) Plaintiffs evidence in chief
(2) Defendants evidence in chief and evidence
in support of his counterclaim, cross-claim
and 3rd-party complaint
(3) 3rd-party defendant shall adduce evidence
of his defense, counterclaim, cross-claim,
and 4th party complaint
(4) 4th-party defendant shall adduce evidence,
and so forth
(5) 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 court

When proper: When actions involving a


common question of fact or law are pending
before the court [Rule 31, Sec. 1]
Court action: The court may:
(1) Order a joint hearing or trial of any or all
matters in issue in the actions
(2) Order all actions consolidated; or

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(3) Make such orders concerning proceedings


therein as may tend to avoid unnecessary
costs or delay

REMEDIAL LAW

Severance definition
When proper: A single action has a number of
claims, counterclaims, cross-claims, thirdparty complaints or issues which may be
separately tried for convenience, or to avoid
prejudice.

Purpose: To avoid multiplicity of suits, guard


against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unnecessary costs and
expenses

When separate trial of claims is conducted by


the court under this section, it may render
separate judgments on each claim [see Sec. 5,
Rule 36]

Where a case has been partially tried before


one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v.
Sandiganbayan (1992)]

This provision permitting separate trials


presupposes that the claims involved are
within the jurisdiction of the court
When one of the claims is not within its
jurisdiction, the same should be dismissed,
so that it may be filed in the proper court

It has been held that the rules do not


distinguish between cases filed before the
same branch or judge and those that are
pending in different branches or before
different judges of the same court, in order that
consolidation may be proper, as long as the
cases involve the resolution of questions of law
or facts in common with each other [Active
Woods Products Co. Inc. v. CA]

V. DELEGATION OF RECEPTION OF
EVIDENCE
General Rule: The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties. [Rule 30,
Sec. 9]
Exception: The court may delegate the
reception of evidence to its clerk of court who is
a member of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.

Kinds of Consolidation [Republic v. Heirs of


Oribello (2013)]
(1) Quasi-consolidation where all, except
one, of several actions are stayed until one
is tried, in which case, the judgment in the
one trial is conclusive as to others; not
actually consolidation but referred to as
such
(2) Actual consolidation where several
actions are combined into one, lose their
separate identity, and become one single
action in which judgment is rendered
(3) Consolidation for Trial where several
actions are ordered to be tried together,
but each retains its separate character, and
requires the entry of separate judgment

The clerk of court has no power to rule on


objections to any question or the admission of
exhibits. Objections shall be resolved by the
court upon submission of the clerks report and
TSN within 10 days from termination of the
hearing.
The rule requires that, where the reception of
evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither

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agreement by parties nor their acquiescence


can justify its violation. [Umali-Paco v. Quilala]

REMEDIAL LAW

in any stage, or for carrying a judgment


into effect [Rule 32, Sec. 2]

VI. TRIAL BY COMMISSIONERS

Order of Reference: [Rule 32, Sec. 3]


When a reference is made, the clerk shall
furnish the commissioner with a copy of the
order of reference, which may contain the
following:
(1) specifications or limitations of the powers
of the commissioner;
(2) a direction to report only upon particular
issues, to do or perform particular acts, or
to receive and report evidence only
(3) the date for beginning and closing the
hearings, and that for the filing of his
report

Commissioner - A person to whom a case


pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered
General rule: Trial by commissioner depends
largely upon the discretion of the court
Exception: In the following instances,
appointment of a commissioner is necessary:
(1) Expropriation [Rule 67]
(2) Partition [Rule 69]
(3) Settlement of Estate of a Deceased Person
in case of contested claims; and
(4) Submission of Accounting by executors or
administrators

Powers of Commissioner
(1) Exercise power to regulate the proceeding
before him
(2) Do all acts and take all measures
necessary or proper for the efficient
performance of his duties
(3) Issue subpoena and subpoenas duces
tecum
(4) Swear witnesses
(5) Rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference

Kinds of Trial by Commissioners


(1) Reference by consent of both parties.
(2) Reference ordered on motion when:
Reference by Consent
The court may order any or all of the issues in a
case to be referred to a commissioner by
written consent of both parties. [Rule 32, Sec. 1]
Commissioners are to be:
(1) Agreed upon by the parties; or
(2) Appointed by the court

Note: Refusal of a witness to obey such


subpoena or to give evidence before him is
deemed contempt of the court which
appointed the commissioner. [Rule 32, Sec. 7]

Reference Ordered on Motion


The court may direct reference to a
commissioner, upon application of a party or
upon its own motion, in the ff. cases:
(1) When trial of an issue of fact requires
examination of long account;
(2) When taking of an account is necessary;
(3) When question of fact, other than upon
pleadings, arises upon motion or otherwise,

Proceedings before the Commissioner


[Rule 32, Sec. 5]
(1) Upon receipt of the order of reference, the
commissioner shall set a time and place for
the first meeting of parties or their counsel
(2) Notices shall be sent to parties or counsel
(3) Hearing is to be held within 10 days after
date of order of reference

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(4) If a party fails to appear, the commissioner


may: [Sec. 6]
(a) Proceed ex parte; or
(b) Adjourn the proceedings to a future
date giving notice to the absent party
or his counsel

REMEDIAL LAW

(3) Requiring the parties to present further


evidence before the commissioner or the
court

Q. DEMURRER TO EVIDENCE
A species of motion to dismiss that may be
invoked based on insufficiency of evidence [i.e.
upon the facts and the law the plaintiff has
shown no right to relief]. [Rule 33, Sec. 1]

Report of the Commissioner


[Rule 32, Sec. 9]
The report is filed with the court upon
completion of the trial, hearing or proceeding
before the commissioner.

It is invoked after the plaintiff has presented all


the evidence available to him

Contents:
(1) Report in writing upon the matters
submitted to him by the order of reference
(2) When his powers are not specified or
limited, he shall set forth his findings of
fact and conclusions of law
(3) He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if any,
of testimonial evidence presented before
him

Judgment on Demurrer to Evidence judgment


rendered by the court dismissing a case upon
motion of defendant, made after plaintiff has
rested his case, on the ground that upon the
facts presented and the law on the matter,
plaintiff has not shown any right to relief.
Demurrer of Evidence v. Motion to Dismiss
Demurrer to Evidence
Motion to Dismiss
Presented after the Presented
before
plaintiff has rested his filing of a responsive
case
pleading
Based
on
the Based
on
those
insufficiency
of grounds enumerated
evidence
in Rule 16
If
denied,
the If
denied,
the
defendant
may defendant may file his
present his evidence
responsive pleading
If
granted,
the
If
granted,
the complaint
is
complaint
is dismissed;
plaintiff
dismissed; plaintiffs may appeal or re-file,
remedy is to appeal
depending on the
ground for dismissal.

Notice and Hearing on the Report


[Rule 32, Secs 10-11]
Upon filing of the report of the commissioner:
(1) Parties shall be notified by the clerk
(2) Parties shall be allowed 10 days within
which to object to the findings of the report
Note: Objections based upon grounds which
were available to the parties during the
proceedings before the commissioner shall not
be considered by the court, unless they were
made before the commissioner
Upon expiration of the 10-day period to file
objections, the report shall be set for hearing.
After such hearing, the court shall issue an
order:
(1) Adopting, modifying, or rejecting the
report, in whole or in part
(2) Recommitting it with instructions; or

Q.1. EFFECT OF DENIAL


If the demurrer is denied, the plaintiff shall
have the right to present his evidence.
The court should not proceed to grant the relief
demanded by the plaintiff but should set the
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date for reception of the defendants evidence.


[Northwest Airlines v. CA (1998)]

Civil Cases
Criminal Cases
demurrer, defendant demurrer
will
present
his (1) filed with leave,
evidence
accused
may
present evidence.
(2) filed
without
leave,
accused
can no longer
present evidence.
If
prosecutions
If plaintiffs evidence
evidence insufficient,
insufficient, court will
court
will
grant
grant demurrer by
demurrer
by
dismissing
the
rendering judgment
complaint
of acquittal.
The judgment of
dismissal
is Judgment of acquittal
appealable;
If is not appealable;
reversed, court will Double jeopardy sets
decide
based
on in.
plaintiffs evidence.

An order denying the demurrer is interlocutory,


and not subject to appeal. It can be subject to a
petition for certiorari, in case of grave abuse of
discretion or oppressive exercise of judicial
authority. [Katigbak v. Sandiganbayan]

Q.2. EFFECT OF GRANT


If the demurrer is granted, the case shall be
dismissed.
As a final order, the remedy of the plaintiff is to
appeal. If the appeal is granted, the
defendant-movant loses the right to present
evidence.
The appellate court should not remand the
case for further proceedings but should render
judgment on the basis of the evidence
submitted by the plaintiff. [Consolidated Bank
and Trust Corp. v. Del Monte Motor Works, Inc.]

IV. Judgments and Final


Orders

Q.3. WAIVER OF RIGHT TO PRESENT


EVIDENCE

A. JUDGMENTS IN GENERAL

If the order granting the demurrer is reversed


on appeal, the defendant loses his right to
present evidence. [Rule 33, Sec .1; Republic v.
Tuvera (2007)]

The final ruling by a court of competent


jurisdiction regarding the rights and
obligations of the parties, or other matters
submitted to it in an action or proceeding
[Macahilig v. Heirs of Magalit (2000)]

Q.4. DEMURRER IN CIVIL AND CRIMINAL


CASES
Civil Cases
Defendant files
demurrer.

Court cannot motu


propio dismiss the
case for insufficiency
of plaintiffs evidence
Defendant need not
ask for leave of court
If court denies the

REMEDIAL LAW

A.1. REQUISITES OF A VALID JUDGMENT

Criminal Cases
Court may motu
proprio dismiss the
action for insufficiency
of prosecutions
evidence, after it has
rested its case. [Rule
119, Sec. 23]
May be filed with or
without leave of court.
If court denies the

[Riano]
(1) Court or tribunal must be clothed with
authority to hear and determine the matter
before it. [Acosta v. COMELEC (1998)]
(2) Court must have jurisdiction over the
parties and the subject matter.
(3) Parties must have been given an
opportunity to adduce evidence in their
behalf. [Acosta v. COMELEC (1998)]

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(4) Evidence must have been considered by


the tribunal in deciding the case. [Acosta v.
COMELEC (1998)]
(5) Judgment must be in writing, personally
and directly prepared by the judge. A
verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan
(2004)]
(6) Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the clerk
of court. [Rule 36, Sec. 1; Ar. VIII, Sec. 14,
1987 Constitution]

(4)

(5)

(6)

A.2. KINDS OF JUDGMENT


(1) Judgment on Compromise one conferred
on the basis of a compromise agreement
entered into between the parties. It is
immediately executory in the absence of a
motion to set aside on the ground of fraud,
accident, mistake, or excusable negligence.
(2) Judgment upon Confession one rendered
by the court when a party expressly agrees
to the other partys claim or acknowledges
the validity of the claim against him.
(a) Judgment by cognovit actionem after
service [of what?], the defendant,
instead
of
entering
a
plea,
acknowledged and confessed that the
plaintiffs cause of action was just and
rightful.
(b) Judgment by confession relicta
verification after pleading and before
trial, the defendant:
(i)
confessed the plaintiffs cause of
action; and
(ii)
withdrew his plea or other
allegations,
whereupon
judgment was entered against
him without proceeding to trial.
(3) Judgment upon the merits one rendered
after consideration of the evidence
submitted by the parties during the trial of
the case.

(7)

(8)

(9)

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A judgment is on the merits when it


amounts to a legal declaration of the
respective rights and duties of the parties,
based upon the disclosed facts
Clarificatory Judgment one rendered to
clarify an ambiguous judgment or one
difficult to comply with.
Judgment Nunc Pro Tunc literally, now
for then. It is a judgment intended to
enter into the record the acts which had
already been done, but which do not
appear in the records. [Lichauco v. Tan Pho
(1923)]
Judgment sin perjuicio refers to a
dismissal of a case without prejudice to it
being re-filed
Conditional Judgment one whose
effectivity depends upon the occurrence or
non-occurrence of an event; generally void
because of the absence of a disposition
[Cu-Unjieng v. Mabalacat Sugar Co. (1940)]
Several Judgment one rendered by a
court against one or more defendants and
not against all of them, leaving the action
to proceed against the others. [Rule 36, Sec.
4]
Proper when the liability of each party is
clearly separate and distinct from his coparties such that:
(a) the claims against each of them could
have been the subject of separate suits,
and
(b) the judgment for or against one of
them will not necessarily affect the
other.
Separate Judgment one rendered
disposing of a claim among several others
presented in a case, after a determination
of the issues material to a particular claim
and all counterclaims arising out of the
transaction or occurrence that is the
subject matter of said claim. [Rule 36, Sec.
5]
Proper when more than one claim for relief
is presented in an action for the

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determination as to the issues material to


the claim has been made.
(10) Memorandum Decision a decision of the
appellate court which adopts the findings
and conclusions of the trial court.

REMEDIAL LAW
Part of the judgment that is subject to
execution,
as
constituting
the
judgment of the court

It is the dispositive part of the judgment


that actually settles and declares the rights
and obligations of the parties, finally,
definitively, and authoritatively [Light Rail
Transit Authority v. CA [2004]]
(3) Signature of the judge

A.3. JUDGMENT WITHOUT TRIAL


Trial is not necessary in the following
instances:
(1) Judgment on the Pleadings [Rule 34]
(2) Summary Judgment [Rule 35]
(3) Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule
18; Art. 2028 Civil Code]
(4) Dismissal with prejudice [Rule 16, Sec. 5;
Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)]
(5) Under the Rules on Summary Procedure
(6) Agreed statement of facts [Rule 30, Sec. 6]

B.3. DISTINCTION BETWEEN JUDGMENT


AND OPINION OF THE COURT
The judgment or fallo must be distinguished
from the Opinion.
The Opinion is the informal expression of the
views of the court and cannot prevail against
its final order or decision. While the two may be
combined in one instrument, the opinion forms
no part of the judgment. So there is a
distinction between the findings and
conclusions of a court and its judgment.

Note: Also enumerated in Part III.P. (Trial)

B. CONTENTS OF A JUDGMENT
B.1. FORM OF JUDGMENT
[Rule 36, Sec. 1]
(1) In writing
(2) Personally and directly prepared by the
judge
(3) Stating clearly & distinctly the facts and
the law on which it is based
(4) Signed by the judged
(5) Filed with the clerk of court.

While they may constitute its decision and


amount to a rendition of a judgment they are
not the judgment itself. They amount to
nothing more than an order for judgment,
which, of course, must be distinguished from
the judgment. [Freeman on Judgments, Vol. I,
5th Edition, page 6, quoted in Casilan v. Salcedo
(1969)]

B.2. PARTS OF A JUDGMENT

B.4. CONFLICT BETWEEN DISPOSITION


AND OPINION OF THE COURT

[Riano, Herrera]
(1) Opinion of the Court
Also called the body, or the ratio
decidendi
Contains the findings of facts and
conclusions of law
(2) Disposition of the case
Also called the dispositive portion, or
the fallo

General Rule: Where there is a conflict between


the fallo and the body of the decision, the fallo
controls.
Basis: The fallo is the final order. The opinion in
the body is merely a statement ordering
nothing [Poland Industrial Limited v. National
Development Company (2005)]

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Exception: This rule applies only when the


dispositive part is definite, clear, and
unequivocal [Union Bank v. Pacific Equipment
Corporation (2008)]

REMEDIAL LAW

Judgment on the Pleadings is not proper in the


ff. cases:
(1) Declaration of Nullity of Marriage
(2) Annulment of marriage; and
(3) Legal Separation
(4) Unliquidated damages; claims for such
damages must be alleged and proved
(5) Admission refers only to allegations of fact
and not conclusions of law
(6) Insufficiency of facts; proper remedy is
amendment

Where the inevitable conclusion from the body


of the decision is that there was a mistake in
the dispositive portion, the body of the decision
will prevail. [So v. Food Fest Land]

C. JUDGMENT ON THE PLEADINGS


Judgment on the Pleadings is a judgment
rendered by the court if the answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse partys
pleading. It is rendered without a trial, or even
without a pre-trial

Note: The concept will not apply when no


answer is filed. It will come into operation
when an answer is served and filed but the
same fails to tender an issue, or admits the
material allegations of the adverse partys
pleading. [Riano]

A motion for a Judgment on the Pleadings,


where the answer admits the material
averments of the complaint, is one that may be
considered ex parte because upon the
particular facts thus presented and laid down
before the court, the plaintiff is entitled to a
judgment [Dino v. Valencia (1989)]

When no answer is filed, the remedy is to move


that the defendant be declared in default.
[Rule 9, Sec. 3]

D. SUMMARY JUDGMENTS

GROUNDS FOR JUDGMENT ON THE


PLEADINGS

A judgment which the court may render before


trial, but after both parties have pleaded, upon
application by one party supported by
affidavits, depositions, or other documents,
with notice upon the adverse party who may
file an opposition supported also by such
documents, should the court find, after
summarily hearing both parties with their
respective proofs, that there exists no genuine
issue between them. [Herrera]

[Rule 34, Sec. 1]


(1) The 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) The answer otherwise admits material
allegations of the adverse partys pleading

The trial court cannot motu propio decide that


summary judgment on an action is in order.
The defending party or claimant, as the case
may be, must invoke the rule by filing a motion.
The adverse party must then be notified of the
motion and furnished with supporting
documents before hearing is conducted.
[Pineda v. Heirs of Eliseo Guevara (2013)]

A Judgment on the Pleadings cannot be


rendered by the court motu propio. It can only
be done where there is a prior motion to that
effect by the appropriate party. [Riano; see
Luzon Development Bank v. Conquilla]

Proper when it appears to the court that:


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(1) there exists no genuine issue as to any


material fact, except as to the amount of
damages; and
(2) the party presenting the motion must be
entitled to judgment as a matter of law

REMEDIAL LAW

(5) Court renders summary judgment


Note: Damages must still be proven even if not
denied.
Bases for Summary Judgment
(1) Affidavits made on personal knowledge;
(2) Depositions of the adverse or a 3rd party
[Rule 23]
(3) Answers to interrogatorie [Rule 25]
(4) Admissions of the adverse party [Rule 26]

Genuine Issue - an issue of fact which calls for


the presentation of evidence as distinguished
from a sham, fictitious, contrived, or false claim.
[Philippine Bank of Communications v. Go
[year]]
The test is whether or not the pleadings,
affidavits and exhibits in support of the motion
are sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, that there is no defense to the action, or
the claim is clearly meritorious. [Estrada v.
Consolocion (1976)]

D.1 WHEN THE CASE IS NOT FULLY


ADJUDICATED
Partial Summary Judgment applies when for
some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
Duty of the Court [Rule 35, Sec. 4]
(1) Ascertain which material facts exist
without substantial controversy, and which
are actually and in good faith controverted,
by:
(a) Examining the pleadings and evidence
before it; and
(b) Interrogating counsel
(2) Make an order, which:
(a) specifies the facts without substantial
controversy and deemed established,
including extent of damages
(b) directs further proceedings as are just
(3) Conduct trial on the controverted facts

When Filed
(1) If sought by the claimant only after the
answer is served; [Rule 35, Sec. 1]
(2) If sought by the defendant at any time
[Rule 35, Sec. 2]
Note: Filing of a motion for summary judgment
does not interrupt the running of the period for
filing an answer. Hence, the movant must also
file a Motion for Extension of Time to File
Answer.
Procedure [Rule 35, Sec. 3]
(1) Movant files a motion for summary
judgment with supporting affidavits,
depositions or admission
(2) Service to the adverse party at least 10
days the hearing
(3) Adverse party may serve opposing
affidavits, depositions or admissions at
least 3 days before the hearing
(4) Hearing Court shall determine if a
genuine issue as to any material fact exists,
and if the movant is entitled to a summary
judgment as a matter of law

Effect: A partial summary judgment is not a


final judgment, but merely a pre-trial
adjudication that said issues in the case shall
be deemed established for the trial of the case.
[Guevarra v. CA([1983)]

D.2 AFFIDAVITS AND ATTACHMENTS


Form [Rule 35, Sec. 5]
(1) Made on personal knowledge
(2) Setting forth such facts as would be
admissible in evidence
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(3) Showing affirmatively that the affiant is


competent to testify to the matters stated
therein.
(4) Certified true copies of all papers or parts
thereof referenced in the affidavit shall be
attached or served with the affidavit.

REMEDIAL LAW

Effect: The court:


(1) shall order the offending party or counsel
to pay the other party the amount of
reasonable expenses which the filing of the
affidavits caused him to incur; and
(2) may, after hearing, adjudge the offending
party or counsel guilty of contempt [Rule
35, Sec. 6]

Affidavits in bad faith those presented under


this Rule which appear to the court at any time
as presented in bad faith or solely for the
purpose of delay

SUMMARY JUDGMENT V. JUDGMENT ON THE PLEADINGS V. JUDGMENT BY DEFAULT


SUMMARY
JUDGMENT ON
JUDGMENT
THE PLEADINGS
Based on the pleadings,
depositions, admissions, and Based solely on the pleadings
affidavits
Generally available only to the
Available to both plaintiff and
plaintiff, unless the defendant
defendant
presents a counterclaim
There is no genuine issue
The answer fails to tender an
between the parties
issue or there is an admission of
i.e. There may be issues but
material allegations
these are irrelevant
10-day notice required
3-day notice required
May be interlocutory or on the
On the merits
merits
Available only in actions to
Available in any action except
recover a debt, or for a
annulment of marriage, or legal
liquidated sum of money or for
separation cases
declaratory relief
If sought by plaintiff, it must be
filed at any time after an
answer is served.
There is already an answer filed
If sought by defendant, may be
filed at any time even before
there is answer

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JUDGMENT BY
DEFAULT
Based on the complaint and
evidence, if presentation is
required
Available to plaintiff

No issue as no answer is filed by


the defending party
3-day notice rule applies
On the merits
Available in any action except
annulment of marriage, or legal
separation cases

There is no answer filed

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REMEDIAL LAW

to gross inefficiency o the part of the judge.


[Arap v Mustafa (2002)]

E. RENDITION OF JUDGMENTS AND


FINAL ORDERS

F. ENTRY OF JUDGMENT AND FINAL


ORDER

Rendition of Judgment
Pronouncement of the judgment in open court
does not constitute rendition of judgment. It is
the filing of the signed decision with the clerk of
court that constitutes rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has
not yet been filed with the clerk of court. [Ago v.
CA]

The entry of judgment refers to the physical act


performed by the clerk of court in entering the
dispositive portion of the judgment in the book
of entries of judgment after the same has
become final and executory. [Riano]
When entered: If no appeal, or motion for new
trial or reconsideration is filed within the time
provided in the Rules, the judgment or final
order shall forthwith be entered by the clerk in
the book of entries of judgments [Rule 36, Sec.
2]

This includes an amended decision because an


amended decision is a distinct and separate
judgment and must follow the established
procedural rule. [Herrera]

Contents of Record in the Book of Entries


(1) Dispositive part of the judgment or final
order
(2) Signature of the clerk; and
(3) Certification that such judgment or final
order has become final and executory.

Promulgation refers to the process by which a


decision is published, officially announced,
made known to the public, or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel
Period for Rendition
[Art. VIII, Sec. 15, 1987 Constitution]
(1) All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
(2) Unless reduced by the SC, within 12 months
for lower collegiate courts and within 3
months for all other lower courts.

Note: The date of finality is deemed the date of


entry.
A judgment becomes final and executory when
the period for appeal has elapsed without a
party having perfected an appeal, or if there has
been an appeal, it has been resolved by the
highest tribunal.
This is the date of entry of judgment even if the
physical act of entering the judgment in the
book of entries is done later. [Riano]

A case is deemed submitted for resolution upon


the filing of the last pleading, brief or
memorandum required by the Rules of Court or
by the court.

G. AMENDMENTS TO JUDGMENT
General Rule: Once a judgment becomes final
and executory, such judgment can no longer be
disturbed, altered, or modified

An extension of the period may be set by the SC


upon request by the judge concerned on
account of heavy caseload or by other
reasonable excuse. Without an extension, a
delay in the disposition of cases is tantamount

Under the Doctrine of Immutability of


Judgments, a judgment that has attained
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V. Post-Judgment
Remedies

finality can no longer be disturbed. The reason


of two-fold:
(1) to avoid delay in the administration of
justice, and to make orderly the discharge of
judicial business; and
(2) to put an end to judicial controversies at the
expense of occasional errors. [Riano]

Remedies before Finality of Judgment


(1) Motion for reconsideration [Rule 37]
(2) Motion for new trial [Rule 37]
(3) Appeal [Rules 40-45]

Exceptions:
(1) Correction of clerical errors [Filipinas
Palmoil Processing, Inc. v. Dejapa]
(2) Nunc Pro Tunc entries [Filipinas Palmoil
Processing, Inc. v. Dejapa]
(3) Whenever circumstances transpire after
finality of the decision, rendering its
execution unjust and inequitable. [Apo
Fruits Corp. v. Land Bank of the Phils.]
(4) In cases of special and exceptional nature,
when it is necessary in the interest of justice
to direct modification in order to harmonize
the disposition with the prevailing
circumstances [Industrial Timber Corp. v.
Ababon]
(5) In case of void judgments [Panlilio v. Garcia]
(6) Where there is a strong showing that a
grave injustice would result from an
application of the Rules [Almuete v. People]
(7) When there are grounds for annulment of
judgment or petition for relief [Gochan v.
Mancao]
Amended/clarified
judgment
An
entirely
new
decision
and
supersedes
the
original judgment
Court
makes
a
thorough study of the
original judgment and
renders the amended
and clarified judgment
only after considering
all the factual and
legal issues

REMEDIAL LAW

A. MOTION FOR NEW TRIAL OR


RECONSIDERATION
Note: The motion for reconsideration under Rule
37 is directed against a judgment or final order.
It does not refer to one for interlocutory orders,
which often precedes a petition for certiorari
under Rule 65.
These motions are prohibited in cases that fall
under the Rule on Summary Procedure and
those falling under the Rule of Procedure for
Small Claims.

A.1. GROUNDS
I. GROUNDS FOR MOTION FOR NEW
TRIAL
[Rule 37, Sec. 1]
(1) Fraud, accident, mistake, excusable
negligence (FAME) subject to the
following conditions:
(a) Which ordinary prudence could not have
guarded against; and
(b) By reason of which such aggrieved party
has probably been impaired in his rights

Supplemental decision
Does not take the
place of or extinguish
the original judgment

Note: Fraud must be extrinsic fraud which is


any fraudulent scheme executed outside of
the trial by the prevailing party against the
losing party, who because of such fraud is
prevented from presenting his side of the
case.

Serves to add to the


original judgment

(2) Newly discovered evidence subject to the


following requisites:

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A.3. FORM AND CONTENTS


I. FORM

(a) It must have been discovered after the


trial
(b) It could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence;
(c) It must be material and not merely
collateral, cumulative, or corroborative;
and
(d) The evidence is of such weight that if
admitted, would probably alter the
result of the action; and

II. GROUNDS FOR


RECONSIDERATION

MOTION

REMEDIAL LAW

[Rule 37, Sec. 2]


(1) The motion must comply with the provisions
of Rule 15 otherwise it will not be accepted
for filing and/or will not suspend the
running of the reglementary period.
(2) It shall be made in writing, stating the
ground or grounds therefor
(3) Written notice shall be served by movant on
the adverse party

FOR

Non-compliance with the formal requirements


would reduce the motion to a mere pro forma
motion, which shall not toll the period for
appeal.

[Rule 37, Sec. 1]


(1) Damages awarded are excessive
(2) Evidence is insufficient to justify the decision
or final order
(3) The decision or final order is contrary to law

II. CONTENTS OF A MOTION FOR NEW


TRIAL
[Rule 37, Sec. 2]
(1) If based on FAME, it shall be supported by
an affidavit of merits , which:
(a) recites the nature and character of
FAME on which the motion is based
(b) states the movants good and
substantial cause of action or defense;
and
(c) states the evidence he intends to
present if granted.

A.2. WHEN TO FILE


[Riano]
An aggrieved party may file a motion for new
trial or reconsideration within the period for
taking an appeal.
The period depends on whether the appeal is by
mere notice of appeal or by record on appeal. A
record on appeal shall be required only in
special proceedings and in other cases of
multiple or separate appeals.

(2) If based on newly found evidence, it shall be


supported by:
(a) Affidavits of witnesses by whom such
evidence is expected or given; or
(b) Duly authenticated documents which
are proposed to be introduced in
evidence

Where an appeal is one by notice of appeal, the


period for appeal is 15 days. Where a record on
appeal is required, the period is 30 days.
The periods commence upon receipt of notice of
the decision or final order appealed from by the
counsel of record, which is considered notice to
the parties. Service upon the parties themselves
is prohibited and is not considered as official
receipt of judgment.

III. CONTENTS OF A MOTION FOR


RECONSIDERATION
[Rule 37, Sec. 2]
(1) Shall point out specifically the findings or
conclusions of the judgment or final order
which are not supported by evidence or
which are contrary to law; and
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I. GRANT OF MOTION; EFFECT

(2) Make express reference to testimonial or


documentary evidence or provisions of law
alleged to be contrary to such findings or
conclusions

Grant of motion for reconsideration


The court may amend the judgment or final
order accordingly. The amended judgment is in
the nature of a new judgment, which
supersedes the original judgment.

Single-Motion Rule [Rule 37, Sec. 5]


A party shall not be allowed to file a 2nd motion
for reconsideration.

Grant of motion for new trial


The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at
the new trial without retaking them, if they are
material and competent.

While a 2nd motion for reconsideration is not


allowed, a second motion for new trial is
authorized, subject to the following conditions:
(1) it must be based on a ground not existing or
available when the 1st motion was made;
and
(2) it must be made within the period allowed
but excluding the time during which the first
motion had been pending.

Partial grant
The court may order a new trial or grant
reconsideration as to such issues if severable
without interfering with the judgment or final
order upon the rest. [Rule 37, Sec. 7]

A.4 RESOLUTION AND COURT ACTION


II. DENIAL OF MOTION

Court action [Rule 37, Sec. 3]


The court may:
(1) Set aside the judgment or final order and
grant a new trial; or upon such terms as
may be just
(2) Deny the motion
(3) Amend such judgment or final order
accordingly if:
(a) The court finds that excessive damages
have been awarded or that; or
(b) That the judgment or final order is
contrary to the evidence or law

Effect: The judgment or final order shall stand


as is.
Fresh 15-Day Rule: The aggrieved party has a
fresh period of 15 days within which to file his
appeal.
If the motion is denied, the movant has a fresh
period of 15 days from receipt or notice of the
order denying the motion for new trial or motion
for reconsideration within which to file an
appeal. [Neypes v. CA [2005]]

Resolution: The motion shall be resolved within


30 days from submission. [Rule 37, Sec. 4]

Note:
(1) This fresh period becomes significant only
when a party opts to file a motion for new
trial or reconsideration
(2) This rule does not refer to the period within
which to appeal from the order denying the
motion for reconsideration but to the period
within which to appeal from the judgment
itself.

The 30-day period to resolve the motion is held


to be mandatory. [Gonzales v. Bantolo (2006)]

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Remedies if Motion is Denied


(1) To appeal from the judgment or final order
itself
(2) The order denying the motion may itself be
assailed by a petition for certiorari under
Rule 65

REMEDIAL LAW

or final order is
contrary to the
evidence or law
Available even on Available against the
appeal but only on the judgments or final
ground
of
newly orders or both the trial
discovered evidence
and appellate courts
Both are prohibited motions under Summary
Procedure

Note: Rule 37, Sec. 9 says that an order denying


a motion for new trial or reconsideration is not
appealable. However, A.M. No. 07-7-12,
effective December 27, 2007, amended Rule 41,
Sec. 1 by deleting An order denying a motion
for new trial or reconsideration from the nonappealable orders.

B. APPEALS
Nature
(1) Not a natural right nor a part of due process
(2) It is merely a statutory right, and may be
exercised only in the manner and in
accordance with provisions of the law. It
must comply with the requirements; failing
to do so, the right to appeal is lost
(3) Once granted, appeals become part of due
process and should be liberally applied in
favor of the right to appeal

Motion for
Reconsideration
Grounds:
Grounds:
(1) Fraud, accident, (1) Damages awarded
mistake,
or
are excessive
excusable
(2) That evidence is
negligence
insufficient
to
(2) Newly discovered
justify the decision
evidence
or final order
(3) That decision or
final
order
is
contrary to law
Second motion from
the same party is
prohibited.
May be allowed so
long as based on
Prohibition
applies
grounds not existing
only to motions for
or available at the
reconsideration
of
time the first motion
final
orders
or
was made
judgments; allowed
for
interlocutory
orders
The court may amend
If granted, original the judgment or final
judgment or final order, it finds:
order is vacated, and (1) that
excessive
the case stands for
damages
have
trial de novo.
been awarded; or
(2) that the judgment
Motion for New Trial

B.1. JUDGMENTS AND FINALS ORDERS


SUBJECT TO APPEAL; MATTERS NOT
APPEALABLE
[Rule 41, Sec. 1, as amended by A.M. No. 07-7-12SC]
(1) Appeal may be taken from a judgment or
final order that completely disposes of the
case, or of a particular matter therein when
declared by the Rules to be appealable
(2) No appeal may be taken from:
(a) An order denying a petition for relief or
any similar motion seeking relief from
judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an
appeal;
(d) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
(e) An order of execution;
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(f) A judgment or final order for or against


one or more of several parties or in
separate claims, counterclaims, crossclaims and third-party complaints,
while the main case is pending, unless
the court allows an appeal therefrom;
and
(g) An order dismissing an action without
prejudice.

Remedy against Matters not Appealable


In those instances where the judgment or final
order is not appealable, the aggrieved party
may file the appropriate special civil action
under Rule 65. [Rule 41, Sec. 1]

B.2. MODES OF APPEAL


(1) Ordinary appeal Rule 40 and 41
(a) Notice of appeal
(b) Record on appeal
(2) Petition for review Rule 42
(3) Petition for review on certiorari Rule 45

Note: A.M. No. 07-7-12-SC removed from the


original list an order denying a motion for new
trial or reconsideration. However, Rule 37, Sec.
9 states that no appeal can be made from an
order denying MR or MNT.

B.3. ISSUES TO BE RAISED ON APPEAL


Limited to cognizable judgments/issues.

Only final judgments or orders can be appealed


as distinguished from interlocutory judgments
or orders which are not appealable.
Final Order
Disposes of the matter
in its entirety, leaving
nothing more to be
done but to enforce
execution
Appealable

REMEDIAL LAW

The appellate court has no jurisdiction to review


a judgment which is immediately final and
executory by express provision of law. [Republic
v. Bermudez-Lorino (2005)]

Interlocutory Order
Does not dispose of a
case completely but
leaves
something
more to be decided
upon.
Not appealable except
through a petition for
certiorari under Rule
65

Rationale: Appeal is merely a


conferred by law upon the litigants.

privilege

A party cannot change the theory on appeal.


Only issues pleaded in the lower court and
properly raised may be resolved by the
appellate court. [Medina v. CA (1992)]
However, issues which are inferred from or
necessarily connected with the issue properly
raised and pleaded may be resolved by the
appellate court. [Espina v. CA (1992)]

Must clearly and


No need to comply
distinctly state the law
with
such
a
and the facts on which
requirement
it is based
An interlocutory order is one that does not
finally dispose of the case, and does not end the
court's task of adjudicating the parties
contentions and determining their rights and
liabilities as regards each other, but obviously
indicates that other things remain to be done.
[BPI v. Lee [2012]]

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MODES OF APPEAL
Ordinary Appeal
Appeal by writ of error
Case is decided by RTC in its
original jurisdiction
Appealed to the CA
File notice of appeal or
record of appeal with court
of origin and give a copy to
adverse party

Petition for Review


Rule 42
Case decided by RTC in the
exercise of its appellate
jurisdiction
Petition for review with the CA
File a verified petition for
review with CA.
Pay docket and lawful fees and
P500 as deposit for costs with
the CA.
Furnish RTC and adverse party
a copy of such

Petition for Review by Certiorari


Rule 45
Case decided by the RTC, CA,
CTA, and Sandiganbayan
Appealed to the SC
File verified petition for review on
certiorari with the SC.
Pay docket and lawful fees and
P500 for costs.
Submit proof of service of a copy
to the lower court and adverse
party

Within 15 days from notice of


Within 15 days from notice of Within 15 days from notice of
judgment for notice of
decision to be reviewed or from judgment or order of denial of
appeal and 30 days for
denial of a MFR or MFNT
MFR or MFNT
records on appeal

PERIOD OF APPEAL
Period to Appeal

Extensions

Effect of MR or
MNT

MTC to RTC
By notice of appeal; within 15 days from
No extensions allowed
notice of judgment or final order

Fresh period to
appeal
from
denial MR or MNT

By record of appeal;
within 30 days from notice of judgment
or final order
RTC to CA
By notice of appeal;
Within 15 days from notice of judgment No extensions allowed
or final order
By record of appeal;
within 30 days from notice of judgment
or final order
MTC to RTC to CA
The CA may grant a 15 day
extension.
15 days from notice of the judgment or
No further extension shall be
final order OR from denial of MR or
granted except for the most
MNT
compelling reasons and in no case
longer than 15 days.
QJA to CA
15 days from notice of the award, The CA may grant a 15 day
judgment, final order or resolution or extension. No further extension
from date of last publication if required shall be granted except for the
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Fresh period to
appeal
from
denial MR or MNT

Fresh period to
appeal
from
denial MR or MNT

Fresh period to
appeal
from
denial MR or MNT

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Period to Appeal

REMEDIAL LAW
Effect of MR or
MNT

Extensions

by law OR from denial of MR or MNT

most compelling reasons and in no


case longer than 15 days.
RTC to SC; RTC to CA to SC; CA to SC
15 days from notice of judgment or final
Fresh period to
The SC may grant a 30 day
order OR from denial of petitioners MR
appeal
from
extension for justifiable reasons.
or MNT.
denial MR or MNT

B.6 APPEAL FROM MUNICIPAL TRIAL


COURTS [RULE 40]

The fresh period rule shall apply to:


(1) Rule 40 governing appeals from the
Municipal Trial Courts to the Regional
Trial Courts;
(2) Rule 41 governing appeals from the
Regional Trial Courts to the Court of
Appeals
(3) Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals;
(4) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(5) Rule 45 governing appeals by certiorari
to the Supreme Court.

I. OUTLINE OF PROCEDURE [RULE 40,


SEC. 7]
Appeal decision of MTC by filing notice of appeal
and pay within 15 days from receipt of judgment
15 days from perfection of appeal, MTC clerk
transmits record to RTC
Notice to parties that an appeal is being taken
from the decision of the MTC

The new rule aims to regiment or make the


appeal period uniform, to be counted from
receipt of the order denying the motion for
new trial, motion for reconsideration
(whether full or partial) or any final order or
resolution. [Neypes v. CA, (2005)]

Within 15 days from notice of appeal:


(1) Appellant submits memorandum to the RTC
(2) Appellee files his own memorandum 15 days
from receipt of appellants memorandum
Court acts on the appeal

Being procedural in nature, Neypes is


deemed to be applicable to actions pending
and undetermined at the time of its
effectivity and is thus retroactive in that
sense and to that extent. [First Aqua Sugar v.
BPI (2007)]

If
uncontested,
judgment is entered
in the book of
entries

Any party may


appeal by filing a
petition for review
with the CA

II. WHERE TAKEN

B.5 PERFECTION OF APPEAL


Perfection of an appeal in the manner and
within the period laid down by law is
mandatory and jurisdictional. [Balgami v. CA
(2004)]

It is taken to the RTC exercising jurisdiction


over the area to which the MTC pertains.
[Rule 40, Sec. 1]

Effect of Failure to Perfect Appeal


(1) Defeats a partys right to appeal.
(2) Precludes appellate court from acquiring
jurisdiction.

[Rule 40, Sec. 2]


(1) If by notice of appeal, within 15 days after
notice to appellant of judgment or final
order appealed from

III. WHEN TAKEN

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(2) If record of appeal is required, within 30


days from notice of judgment or final
order
(3) Period of appeal shall be interrupted by a
timely motion for new trial or
reconsideration

V. PERFECTION OF APPEAL

IV. HOW TAKEN

VI. APPEAL FROM ORDER DISMISSING


A CASE WITHOUT TRIAL; LACK OF
JURISDICTION

Since appeals from inferior courts may now


be either by notice of appeal or record on
appeal, the rules on the perfection and the
effect thereof are the same. See Sec. 9, Rule
41

[Rule 40, Sec. 3]


By Notice of Appeal
(1) File a notice of appeal with the trial court
that rendered the judgment or final order
appealed from
(2) The notice of appeal must indicate the
parties, the judgment or final order or
part thereof appealed from; the material
date showing timeliness of appeal
(3) A copy served on the adverse party; and
(4) Payment in full of docket fees and other
lawful fees

Two Scenarios:
(1) If the MTC dismissed the case without
trial on the merits, the RTC may:
(a) Affirm, if the ground of dismissal is
lack of jurisdiction over the subject
matter; If the RTC has jurisdiction, it
shall try the case on the merits as if
the case was originally filed therein
(b) Reverse, in which case, it shall
remand the case for further
proceedings

By Record on Appeal
(1) Record on appeal is required for the
following cases:
(a) Special proceedings
(b) In such other cases where multiple
appeals are allowed
(2) Form and contents of the record on
appeal: (Rule 41, Sec. 6)
(a) Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall transmit
to the RTC:
(i)
Original record or record on
appeal
(ii)
Together with transcripts and
exhibits
(b) Clerk shall make a certification that
the documents are complete
(c) Clerk shall also furnish the parties a
copy of his letter of transmittal of the
records to the appellate court
(3) Copy is served on the adverse party
(4) Payment in full of docket fees and other
lawful fees

(2) If the case was tried on the merits by the


MTC without jurisdiction over the subject
matter:
(a) The RTC shall not dismiss the case if
it has original jurisdiction but shall
decide the case and admit amended
pleadings or additional evidence in
the interest of justice
APPLICABILITY OF RULE 41 - The other
provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to supplement
the provisions of this Rule.

B. 7. APPEAL FROM THE REGIONAL


TRIAL COURTS
Modes of Appeal There are three modes of
appeal from judgments or final orders of the
RTC:
(1) Ordinary Appeal or appeal by writ of error,
where judgment was rendered in a civil

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or criminal action by the RTC in the


exercise of its original jurisdiction
This mode of appeal, governed by
Rule 41, is taken to the CA on
questions of fact or mixed questions
of fact and law

(4) The material dates


timeliness of the appeal

REMEDIAL LAW
showing

the

Record on Appeal Done in special


proceedings and other cases where multiple
or separate appeals are allowed. This is filed
and served in the same manner as notice of
appeal.

(2) Petition for Review, where judgment was


rendered by the RTC in the exercise of its
appellate jurisdiction
This mode of appeal, covered by Rule
42, is brought to the CA on question
of fact, of law, or mixed questions of
fact and law

Contents of the Record (Rule 41, Sec. 6)


(1) Full names of all the parties to the
proceedings shall be stated in the
caption of the record on appeal
(2) It shall include the judgment or final
order from which the appeal is taken,
(3) In chronological order, copies of only
such pleadings, petitions, motions, and
all interlocutory orders as are related to
the appealed judgment or final order
(4) For the proper understanding of the issue
involved
(5) Together with such data as will show that
the appeal was perfected on time

(3) Petition for Review on Certiorari, or


appeal by certiorari to the SC
This mode of appeal, provided for by
Rule 45, is brought to the SC from
the decision of the RTC in the
exercise of its original jurisdiction
and only on questions of law

B. 8. APPEAL FROM THE REGIONAL


TRIAL COURTS TO THE COURT OF
APPEALS [RULE 41]

Approval of the Record on Appeal (Rule 41,


Sec. 7)
Upon filing of the record for approval and if
no objection is filed by the appellee within 5
days from receipt of a copy thereof, the trial
court may:
(1) Approve it as presented; or
(2) Direct its amendment by the inclusion of
any omitted matters which are deemed
essential

Appeal via Rule 41 presupposes that:


(1) The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its original
jurisdiction; and
(2) That the appeal is taken to the CA on:
(a) Questions of fact or
(b) Mixed questions of fact and law

Joint Record on Appeal (Rule 41, Sec. 8)


Where both parties are appellants, they may
file a joint record on appeal.

Notice of Appeal Filed with the court which


rendered the judgment or final order
appealed from. A copy is served on the
adverse party. (Rule 41, Sec. 5)

I. PERIOD TO APPEAL
[Rule 41, Sec. 2]
(1) 15 days from notice of judgment or final
order appealed from
(2) 30 days from notice of judgment or final
order where a record on appeal is
required
(3) 48 hours from notice of judgment or final
order appealed from in habeas corpus
cases

Contents of the Notice of Appeal:


(1) Parties to the appeal
(2) Judgment or final order or part thereof
appealed from
(3) The court to which the appeal is being
taken; and

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Reckoning point of reglementary period


Period for filing the appeal should be
counted from the date when the partys
counsel received a copy of the judgment or
final order

(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

When a party is represented by a counsel,


service of process must be made on counsel,
not on party [Fajardo v. CA]
Effect of Motions for New Trial and
Reconsideration
Originally, the period to appeal is interrupted
by a timely motion for new trial and
reconsideration. However, with the Neypes
doctrine, a party has a fresh 15-day period
from a denial of the motion to perfect an
appeal.

REMEDIAL LAW

Subject index
Assignment of Errors
Statement of the Case
Statement of Facts
Statement of Issues
Arguments
Relief
Copy of judgment or final order appealed
from

Appellees Brief
Filed within 45 days from receipt of
appellants brief
Manner of filing is similar to that in
appellants brief
Contents:
(1) Subject index
(2) Statement of Facts
Statement of Facts
(3) Arguments

Extension of Period to Appeal


Period to appeal may be extended but such
extension is addressed to the sound
discretion of the court (Socco v. Garcia)

and

Counter-

Appellants Reply Brief


(1) Filed within 20 days from receipt of
appellees brief
(2) This is not mandatory as it is optional on
the part of the appellant

The mere filing and pendency of motion for


extension to perfect appeal does not suspend
the running of the reglementary period (Bello
et al., v. Fernandez)

Extension of Time for Filing Briefs:


General rule: Not allowed
Exception: For good reasons and only if
motion for extension is filed before expiration
of time sought to be extended

II. PLEADINGS FILED


[See Rule 44, Procedure in the CA]
Appellants Brief
Filed within 45 days from receipt of
notice of clerk that all evidence is
attached to record
Follow the Efficient Use of Paper Rule,
one original properly marked and 2
copies with annexes
Attach proof of service to adverse party

III. PERFECTION OF APPEAL


Payment of Docket Fees [Rule 41, Sec. 4]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful fees.
Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.

Grounds for dismissal with respect to


appellants brief:
(1) Failure to file brief on time
(2) Failure to make specific assignment of
errors in his brief
Contents:
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Payment of docket fees in full is mandatory


and is a condition sine qua non for the
perfection of an appeal.

filed before expiration of the period to


appeal)
(5) Allow withdrawal of the appeal

Perfection of Appeal (Rule 41, Sec. 9)


If appeal is by notice of appeal it is
deemed perfected as to him upon the
filing of the notice of appeal in due time
If appeal is by record on appeal it is
perfected as to him with respect to the
subject matter thereof, upon approval of
the record on appeal filed in due time

The concept of residual jurisdiction of the


trial court is available at a stage in which the
court is normally deemed to have lost
jurisdiction over the case or the subject
matter involved in the appeal. There is no
residual jurisdiction to speak of where no
appeal or petition has even been filed
(Fernandez v. CA).

Effect of Perfected Appeal


(1) In appeals by notice of appeal:
Court loses jurisdiction over the case
upon perfection of appeal filed in due
time and expiration of the time to
appeal of the other parties
This rule applies individually and to
each of the parties since the
timeliness of their recourse for
appellate remedy depends on when
they respectively received a copy of
the judgment or final order

Duty of Clerk Upon Perfection of Appeal [Rule


41, Sec. 10]
Within 30 days after perfection of all appeals,
the RTC clerk shall:
(1) Verify completeness of original record or
record on appeal and make certification
as to its correctness
(2) Verify completeness of records that will
be transmitted to appellate court
(3) If found to be incomplete:
(a) Take such measures as may be
required to complete records
(b) If efforts to complete records fail:
(i)
Indicate in his letter of
transmittal the exhibits or
transcripts not included
(ii)
Reasons for their transmittal
(iii)
Steps taken or that could be
taken to have them available
(4) Transmit the records to appellate court
and furnish the parties with copies of his
letter of transmittal

(2) In appeals by record on appeal:


Court loses jurisdiction only over the
subject matter thereof upon approval
of the records on appeal filed in due
time and the expiration of the time to
appeal of the other parties
The effect is limited to the subject
matter only. Jurisdiction over the
case is still with the trial court

IV. DISMISSAL OF APPEAL

Residual Powers/Jurisdiction of the RTC


After losing jurisdiction but prior to the
transmittal of the original record on appeal,
the RTC may:
(1) Issue orders for preservation of the rights
of the parties, which do not involve
matters litigated by appeal
(2) Approve compromise
(3) Permit appeal by an indigent
(4) Order execution pending appeal under
Rule 39, Sec. 2 (motion for execution was

[Rule 41, Sec. 13]


When can the RTC dismiss the appeal?
Prior to transmittal of original record to
appellate court; or
Prior to transmittal of record on appeal
to the appellate court
How done: By the court, motu proprio, or on
motion to dismiss appeal by a party

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Grounds
(1) Appeal was taken out of time
(2) Non-payment of docket and other lawful
fees within the reglementary period

REMEDIAL LAW

No further extension may be granted except


for the most compelling reason and in no
case to exceed 15 days.

Note: The dismissal of the appeal in RTC is


limited only to these two grounds

II. FORM AND CONTENTS

B. 9. PETITION FOR REVIEW FROM THE


REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS [RULE 42]

Form of the petition:


(1) Original copy is filed intended for the
court, properly marked and 2 copies with
their annexes (Efficient Use of Paper Rule)
(2) Accompanied by clearly legible duplicate
originals or true copies of judgments or
final orders of both lower courts certified
correct by the RTC clerk
(3) Also with pleadings and other material
portions of record as would support the
allegations of the petition

[Rule 42, Sec. 5]

Appeal via Rule 42 is proper when one


appeals from a decision of the RTC in the
exercise of its appellate jurisdiction. It may be
taken on either questions of fact, questions of
law, or on mixed questions of fact and law.
This mode of appeal is not a matter of right
but is a matter of discretion on the part of the
CA, on whether or not to entertain the appeal.

Contents:
(1) Full names of the parties without
impleading the lower courts or judges
thereof
(2) Specific
material
dates
showing
timeliness of appeal
(3) Concise statement of:
(a) Matters involved
(b) Issues raised
(c) Specification of errors of fact or law,
or both
(d) Reasons or arguments relied upon
(4) A certificate of non-forum shopping must
also be attached

I. HOW TAKEN; PERIOD TO APPEAL


If a party desires to appeal from a decision of
the RTC in its appellate jurisdiction:
(1) File a verified petition for review with the
CA
(a) Within 15 days from notice of decision,
or
(b) Within 15 days from notice of denial
of petitioners motion for new trial or
reconsideration
(2) Pay the corresponding docket fee and
other lawful fees and depositing P500
for costs
(3) Furnish the RTC and adverse party a copy
of the petition

Effect of failure to comply [Rule 42, Sec. 3]


Failure to comply with any of the following
requirements shall be sufficient ground for
dismissal:
(1) Payment of docket and other lawful fees

Extension of period
The CA may grant an additional 15 days
within which to file the petition for review

Note: In petitions for review under Rules


42, 43, and 45, the docket fee is paid in
the appellate courts

Conditions
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees
and other lawful fees as well as deposit
for costs
(3) These two were done within the
reglementary period

(2) Deposit for costs


(3) Proof of service of petition
(4) Contents of the documents, which should
accompany the petition
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(1) An original is filed, properly marked,


together with 2 copies with their annexes
(Efficient Use of Paper Rule)
(2) Accompanied by certified true copies of
such material portions of the record
referred to therein
(3) Together with other supporting papers
(4) Copy of the comment served on
petitioner

III. PERFECTION OF APPEAL


[Rule 42, Sec. 8]
Appeal is deemed perfected as to petitioner
upon:
(1) Timely filing of the petition
(2) Payment of docket and lawful fees
Jurisdiction of the RTC
(1) RTC loses jurisdiction upon:
(a) Perfection of appeals filed in due
time; and
(b) Expiration of the time to appeal of
other parties
(2) RTC may exercise residual jurisdiction
before the CA gives due course to the
petition

Contents The comment shall:


(1) State whether or not he accepts the
statement of matters involved in the
petition
(2) Point out such insufficiencies or
inaccuracies as he believes exist in
petitioners statement of matters but
without repetition
(3) Reasons why the petition should not be
given due course

General rule: Perfected appeal stays the


challenged judgment or final order
Exceptions:
(1) Civil cases decided under the Rule on
Summary Procedure; or
(2) Unless the CA, law, or Rules, provide
otherwise [Rule 42, Sec. 8]

Due Course [Rule 42, Sec. 6]


If the Court of Appeals finds prima facie that
the lower court has committed an error of
fact or law that will warrant a reversal or
modification of the appealed decision, it may
accordingly give due course to the petition.

IV. ACTION ON PETITION

As stated earlier, the Doctrine of Residual


Jurisdiction of the RTC applies as in cases
under Rule 41, except that the RTC must
exercise this jurisdiction before the CA gives
due course to the petition. In contrast, the
RTC must exercise residual jurisdiction in
Rule 41, prior to transmittal of the original
record or the record on appeal.

[Rule 42, Sec. 4]


The CA may:
(1) Require respondent to file a comment on
the petition not a motion to dismiss
within 10 days from notice; or
(2) Dismiss the petition if it finds the same to
be:
(a) Patently without merit
(b) Prosecuted manifestly for delay; or
(c) The questions raised therein are too
unsubstantial
to
require
consideration

V. SUBMISSION FOR DECISION


[Rule 42, Sec. 9]
If the petition is given due course
(1) Case may be set for oral argument, or
(2) The parties may be required to submit
memoranda within 15 days from notice

Under this Rule, appeal is discretionary on


the CA which may give its due course only
when the petition shows prima facie that the
lower court has committed error.
Comment by Respondent [Rule 42, Sec. 5]
Form

Case shall be deemed submitted for decision


upon filing of last pleading or memoranda

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B. 10. APPEALS FROM QUASI-JUDICIAL


BODIES

REMEDIAL LAW

Where to Appeal [Rule 43, Sec. 3]


Appeal is taken to the CA on questions of fact,
of law, or mixed questions of fact and law.

Scope: Appeals from awards, judgments,


final orders or resolution of or authorized by
any quasi-judicial agency (QJA) in the
exercise of its quasi-judicial functions

Period to Appeal [Rule 43, Sec. 4]


Period to appeal is 15 days from:
(1) Notice of award, judgment, final order, or
resolution;
(2) Date of publication, if publication is
required by law for its effectivity; or
(3) Denial of petitioners motion for new trial
or reconsideration.

A quasi-judicial agency or body is an organ of


government other than a court and other
than a legislature, which affects the rights of
private parties though either adjudication or
rule-making

Extension of Period
The CA may grant an additional 15 days
within which to file the petition for review

Note: The CTA is no longer a quasi-judicial


agency under RA 9282, as of April 7, 2004. A
party adversely affected by a decision or
ruling of the CTA en banc may file with the
SC a verified petition for review on certiorari
under Rule 45. [Sec. 11, RA 9282 and A.M. No.
07-7-12-SC]

Conditions:
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees
and other lawful fees as well as deposit
for costs
(3) These two were done within the
reglementary period

QJAs covered by Rule 43:


(1) Civil Service Commission
(2) Securities and Exchange Commission
(3) Office of the President
(4) Land Registration Authority
(5) Social Security Commission
(6) Civil Aeronautics Board
(7) Bureau of Patents, Trademarks and
Technology Transfer
(8) National Electrification Administration
(9) Energy Regulatory Board
(10) National
Telecommunications
Commission
(11) Department of Agrarian Reform under
RA 6657
(12) GSIS
(13) Employees Compensation Commission
(14) Agricultural Inventions Board
(15) Insurance Commission
(16) Philippine Atomic Energy Commission
(17) Board of Investment
(18) Construction
Industry
Arbitration
Commission, and
(19) Voluntary arbitrators authorized by law

No further extension may be granted except


for the most compelling reason and in no
case to exceed 15 days.
Note: Similar to the rule in petition for review
from the RTC to the CA (Rule 42).
How Taken [Rule 43, Sec. 5]
(1) A verified petition for review is filed with
the CA following the Efficient Use of
Paper Rule
(a) Attach proof of service of a copy to
the adverse party and to the court or
agency a quo
(2) Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs
(a) Payment is made to the CA clerk
(b) Exemption from payment may be
granted by the CA by filing a verified
motion for exemption; if denied,
party must pay within 15 days from
notice of denial

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Contents of Petition [Rule 43, Sec. 6]


(1) Statement of full names of parties to the
case without impleading court or
agencies
(2) Concise statement of facts and issues
involved and grounds relied upon for
review
(3) Accompanied by:
(a) Clearly legible duplicate original or a
certified true copy of award,
judgment, final order, or resolution
appealed from
(b) Certified true copies of such material
portions of record referred to in the
petition and other supporting papers
(4) Certificate of non-forum shopping
(5) Statement of specific material dates
showing timeliness of appeal

(b) And
such
other
supporting
documents
(3) Copy of Comment is served on petitioner
with proof of such service filed with the
CA

Effect of Failure to Comply [Rule 43, Sec. 7]


Failure to comply with the following is
sufficient ground for the CA to dismiss the
appeal:
(1) Payment of docket and lawful fees
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of petition
(5) Documents which should accompany the
petition

If not, then the CA may dismiss the same.

Contents of Comment [Rule 43, Sec. 9]


The comment shall:
(1) Point insufficiencies or inaccuracies in
petitioners statement of facts and issues
(2) State reasons why petition should be
denied or dismissed
Due Course [Rule 43, Sec. 10]
CA may give due course if CA finds prima
facie that court or agency has committed
errors of fact or law that would warrant
reversal or modification

Transmittal of Records [Rule 43, Sec. 11]


Within 15 days from notice that petition has
been given due course, the CA may:
(1) Require court or agency concerned to
transmit original or legible certified true
copy of entire record of proceeding under
review
(2) Require or permit subsequent correction
or addition to record

Action on the Petition [Rule 43, Sec. 8]


The CA may:
(1) Require respondent to file Comment
within 10 days from notice
(2) Dismiss the petition if CA finds the same
to be:
(a) Patently without merit
(b) Prosecuted manifestly for delay, or
(c) Questions
raised
are
too
unsubstantial
to
require
consideration

Effect of Appeal [Rule 43, Sec. 12]


General rule: Appeal shall not stay the award,
judgment, final order or resolution sought to
be reviewed
Exception: When the CA shall direct
otherwise upon such terms as it may deem
just
Submission for Decision [Rule 43, Sec. 13]
If petition is given due course, the CA may set
the case for oral argument or require parties
to submit memoranda within 15 days from
notice.

Form of Comment [Rule 43, Sec. 9]


(1) Filed within 10 days from notice following
the Efficient Use of Paper Rule
(2) Accompanied by the following:
(a) Clearly legible certified true copies of
such material portions of the record
referred to therein

Upon filing of last pleading or memorandum


required, case is deemed submitted for
decision.

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B. 11. APPEAL FROM THE CTA

Jurisdiction of the CA
(1) CA has jurisdiction over orders, directives,
and decisions of the Office of
Ombudsman
in
administrative
disciplinary cases only
(2) It cannot review orders, directives,
decisions in criminal and nonadministrative cases

A party adversely affected by a decision or


ruling of the CTA en banc may file with the
Supreme Court a verified petition for review
on certiorari pursuant to Rule 45. (Sec. 19, RA
1125 as amended by RA 9282)

B. 12. APPEAL FROM THE COMELEC


Unless otherwise provided by law, or by any
specific provisions in these Rules, any
decision, order or ruling of the Commission
may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty
(30) days from its promulgation. [Rule 37, Sec.
1, COMELEC Rules of Procedure; Rule 64, Sec.
3, Rules of Court]

Jurisdiction of the SC
(1) In criminal cases, ruling of Ombudsman
shall be elevated to the SC via Rule 65
(2) In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or excess
of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed with
this Court to set aside the Ombudsmans
order or resolution. [Nava v. NBI (2005)]

Decisions in appeals from courts of general


or limited jurisdiction in election cases
relating to the elections, returns, and
qualifications of municipal and barangay
officials are not appealable. (Rule 37, Sec. 2,
COMELEC Rules of Procedure)

B. 14. APPEAL FROM THE NLRC


Appeal from quasi-judicial agencies does not
apply to judgments or final orders issued
under the Labor Code. [Rule 43, Sec. 2]

Decisions in pre-proclamation cases and


petitions to deny due course to or cancel
certificates of candidacy, to declare a
candidate as nuisance candidate or to
disqualify a candidate, and to postpone or
suspend elections shall become final and
executory after the lapse of five (5) days from
their promulgation, unless restrained by the
Supreme Court. (Rule 37, Sec. 3, COMELEC
Rules of Procedure)

B. 13.
APPEAL
OMBUDSMAN

FROM

REMEDIAL LAW

The remedy of a party aggrieved by the


decision of the NLRC is to file a motion for
reconsideration and, if denied, file a special
civil action for certiorari under Rule 65 within
60 days from notice of the decision. In
observance of the doctrine of hierarchy of
courts, this should be filed with the CA. [St.
Martin Funeral Homes v. NLRC (1998)]
From the CA, the remedy of the aggrieved
party is a petition for review by certiorari to
the SC. [Dongon v. Rapid Movers and
Forwarders (2013)]

THE

The following decisions are unappealable


[Admin Order No. 7, Rule III, Sec. 7]
(1) In administrative cases where respondent
is absolved of the charge
(2) In case of conviction, where penalty
imposed is public censure or reprimand,
or suspension of not more than one
month or a fine equivalent to one month
salary

NLRC judgments and final orders or


resolutions are now reviewable, in the first
instance, by the Court of Appeals on
certiorari under Rule 65, but those of the
Employees
Compensation
Commission
should be brought to the Court of Appeals
through a petition for review under this Rule.
[Fabian v. Desierto (1998)]

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B. 15. APPEAL BY CERTIORARI TO THE


SUPREME COURT [RULE 45]

the
exercise
of exercises
original
appellate jurisdiction jurisdiction under its
and power of review
power of control and
supervision
over
proceedings of lower
courts

Certiorari as Mode of Appeal and as Special


Civil Action
[Herrera]
Appeal by Certiorari
[Rule 45]

Based on questions
of law

Involves review of
judgment, award or
final order on merits

Must be made within


the
reglementary
period of appeal

Stays the judgment,


award, or order
appealed from

Petitioner
and
respondent
are
original parties to
the action

Prior filing of MR not


required
Appellate court is in

REMEDIAL LAW

Certiorari as SCA
[Rule 65]
Raises the issue of
whether the lower
court acted without
or in excess of
jurisdiction, or with
grave
abuse
of
discretion
May be directed
against
an
interlocutory order of
the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy, or adequate
remedy
May be filed not later
than 60 days from
notice of judgment,
order or resolution
sought to be assailed
Does not stay the
challenged
proceedings, unless a
writ of preliminary
injunction or TRO is
issued
The parties are the
aggrieved
party
against the lower
court
or
quasijudicial agency as
prevailing parties
A filing of a MR is a
condition precedent,
subject to certain
exceptions
Higher
court

Outline of Procedure
RTC, Sandiganbayan, CTA en banc, or CA renders a
decision

Any party files a petition for review on certiorari


Within 15 days from notice
of final judgment or order of lower court
or notice of denial of motion for reconsideration or
new trial

Appellant serves copies of petition on adverse


parties
And to the lower court,
And pay the corresponding docket fees

SC may dismiss the petition or require appellee to


comment

If given due
memoranda

course,

parties

may

submit

SC may affirm, reverse, or modify judgment of


lower court

I. PROPRIETY AS A MODE OF APPEAL


Appeals to the SC can be taken from a
judgment or final order or resolution of the
CA, Sandiganbayan, CTA en banc, RTC or
such other courts as may be authorized by
law
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II. APPEAL FROM RTC TO SC UNDER


RULE 45

Only questions of law are allowed. Whether


an appeal involves only questions of law or
both questions of law and fact is best left to
the determination of an appellate court and
not by the court which rendered the decision
appealed from (PNB v. Romillo, etc., et al.)

RTC must have rendered judgment in the


exercise of its original jurisdiction .
If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to the
CA via Rule 42 even if only questions of law
are raised

QUESTIONS
LAW

OF QUESTIONS
OF
FACT
Doubt as to the truth
Doubt as to what the or falsehood of facts,
law is on certain or as to probative
facts
value of the evidence
presented
If the appellate court
can determine the
The
determination
issue
without
involves evaluation or
reviewing
or
review of evidence
evaluating
the
evidence
Query involves the
calibration of the
whole
evidence
considering mainly
Can
involve the credibility of
questions
of witnesses, existence,
interpretation of law and relevancy of
with
respect
to specific surrounding
certain set of facts
circumstances and
relation to each other
and
the
whole
probabilities of the
situation

If the other party had already taken an


appeal to the CA to question the RTC
decision, the property remedy of petitioner is
simply ordinary appeal to the CA as well.
(First Phil. International Bank v. CA)
Grave abuse of discretion is not an allowable
ground under Rule 45. (Martires v. CA).

III. APPEAL FROM CA


Appeal under Rule 45 is the proper review of
decisions of the CA even in special civil
actions.
Any alleged errors committed by it in the
exercise of jurisdiction would be errors of
judgment which are reviewable by timely
appeal and not by special civil action of
certiorari.
Rule 45 is clear that decisions, final orders,
or resolutions of the CA in any case,
regardless of the nature of the action or
proceedings involved, may be appealed to
the SC by filing a petition for review, which
would but be a continuation of the appellate
process over the original case.

The SC is not a trier of facts, and is not to


review or calibrate the evidence on record.
Moreover, findings of facts of trial court, as
affirmed on appeal by the CA, are conclusive
on the court (Boston Bank of the Philippines v.
Manalo)

IV. CONCLUSIVENESS OF FINDINGS OF


FACT
General rule: The findings of fact of the CA
are final and conclusive and cannot be
reviewed on appeal to the SC

It has to be emphasized that it is not the duty


of the SC to review, evaluate, and weigh the
probative value of the evidence adduced
before the lower courts (Frondarina v.
Malazarte)

Exceptions: CAs findings of fact may be


reviewed by the SC on appeal by certiorari
when:

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(1) Conclusion is a finding grounded entirely


on speculations, surmises or conjectures
[Joaquin v. Navarro (1953)].
(2) Inference made is manifestly mistaken,
absurd or impossible [Luna v. Linatok
(1942)].
(3) There is grave abuse of discretion in the
appreciation of facts [Buyco v. People
(1954)].
(4) Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing (1953).
(5) The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].
(6) The Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
(7) The Court of Appeals manifestly
overlooked certain relevant facts not
disputed by the parties and which, if
properly considered, would justify a
different conclusion [Abellana v. Dosdos
(1965)].
(8) The Court of Appeals findings of fact are
contrary to those of the trial court, or are
mere conclusions without citation of
specific evidence, or where the facts set
forth by the petitioner are not disputed
by the respondent, or where the findings
of fact of the Court of Appeals are
premised on absence of evidence but are
contradicted by the evidence of record
[Manlapaz v. CA (1987)].

REMEDIAL LAW

(2) Payment of docket and lawful fees, and


deposit for costs; and
(3) Showing of justifiable reasons.
Note: Both (1) and (2) must be within the
reglementary period.
Form of Petition
The petition must be verified:
(1) Following the Efficient Use of Paper
Rule:
(a) One original, properly marked, and 4
copies
(b) If the case is referred to En Banc, 10
additional copies is filed
(2) Payment of docket and other lawful fees
and deposit of P500 for costs is made
with the SC Clerk at the time of filing
(3) Proof of service of the petition to the
lower court and adverse party are
attached

Contents of Petition [Rule 45, Sec. 4]


(1) State full names of the parties
(a) Appealing party = as Petitioner
(b) Adverse party = as Respondent
(c) Do not implead lower courts or
judges
(2) Indicate material dates showing:
(a) When notice of judgment or final
order or resolution was received
(b) When a motion for new trial or
reconsideration, if any, was filed and
when a denial thereof was received
(3) Concise statement of:
(a) The matters involved
(b) Reasons or arguments relied on
(4) Accompanied by a clearly legible
duplicate original, or a certified true copy
of the judgment or final order or
resolution certified by the clerk of court
and court a quo
(5) Certificate of non-forum shopping

Period of Appeal [Rule 45, Sec. 2]


Time for Filing: 15 days from
(1) Notice of judgment, final order, or
resolution appealed from, or
(2) Notice of denial of motion for new trial or
reconsideration filed in due time after
notice of judgment
Note: The Neypes doctrine is also applicable
in Rule 45.

Grounds for Denial of Petition [Rule 45, Sec.


5]
(1) Failure of petitioner to comply with:

Extension of Period: 30 days upon


(1) Motion duly filed and served;

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B. 16. DISMISSAL OF APPEALS

(a) Payment of docket or other lawful


fees
(b) Deposit for costs
(c) Proof of Service; and
(d) Contents of and documents which
would accompany the petition
(2) Appeal is without merit
(3) Is prosecuted manifestly for delay
(4) That the questions raised are so
unsubstantial as to require consideration

Dismissal by the CA [Rule 50]


An appeal may be dismissed by the CA, on its
own motion, or on that of the appellee on
certain grounds.
Grounds for Dismissal [Rule 50, Sec. 1-2]
(1) Failure of record on appeal to show on its
face that appeal was taken within the
period fixed by Rules
(2) Failure to file notice of appeal or record
on appeal within prescribed period
(3) Failure of appellant to pay docket and
other lawful fees as provided in Sec. 4,
Rule 41
(4) Unauthorized alterations, omissions, or
additions in approved record on appeal
as provided in Sec. 4, Rule 44
(5) Failure of appellant to serve and file
required number of copies of his brief or
memorandum within time provided by
Rules
(6) Absence of specific assignment of errors
in the appellants brief, or of page
references to record as required in Sec. 13,
(a), (c), (d), (f), Rule 44
(7) Failure of appellant to take necessary
steps for correction or completion of
record within time limited by the court in
its order
(8) Failure of appellant to appear at
preliminary conference under Rule 48 or
comply with orders, circulars, directives
of the court without justifiable cause
(9) Fact that the order or judgment appealed
from is not appealable
(10) Appeal under Rule 41 from the RTC,
raising only questions of law;
(11) Appeal by notice of appeal from a
decision rendered by the RTC in its
appellate jurisdiction;
(12) Appeal erroneously taken to the CA

NOTE: SC may dismiss the petition motu


proprio

Review is Discretionary [Rule 45, Sec. 6]


Appeal to the SC is NOT a matter of right. It
will be granted only when there are special
and important reasons therefor.
Some indications of the character of reasons
which will be considered:
(1) When the court a quo has decided the
question of substance, not theretofore
determined by the SC, or has decided it
in a way probably not in accord with law
or with the applicable provisions of the
SC; or
(2) Court a quo has so far departed from
accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for
an exercise of power of supervision
Elevation of Records [Rule 45, Sec. 8]
If the petition is given due course, the
Supreme Court may require the elevation of
the complete record of the case or specified
parts thereof within fifteen (15) days from
notice

Other Grounds
(1) By agreement of the parties (i.e.
amicable settlement)
(2) Where appealed case has become moot
or academic
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(3) Where appeal is frivolous or dilatory

Dismissal by the SC [Rule 56]


The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
(1) Failure to appeal within reglementary
period
(2) Lack of merit of petition
(3) Failure to pay docket and lawful fees and
deposit
(4) Failure to comply with requirements on
proof of service, contents, and
documents accompanying petition
(5) Failure to comply with circular, directive,
or order of SC without justifiable cause
(6) Error in choice of mode of appeal
(7) The case is not appealable to the SC

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REMEDIAL LAW

COMPARATIVE TABLE ON THE MODES OF APPEAL


WHEN PROPER
RULE 40
RULE 41
ORDINARY APPEAL
Matter of Right; Filed with the court of origin
All records are elevated from court of origin
Appeal from a decision of
Appeal from a judgment or
the RTC in the exercise of its
final order of a MTC
original jurisdiction

Rule 41 provisions shall apply to Rule 40 if not consistent with


Rule 40 provisions

WHERE TO FILE
RULE 40
Filed with the MTC
Appeal to the RTC

RULE 41
Filed with the RTC
Appeal to the CA

RULE 42
RULE 43
RULE 45
PETITIONS FOR REVIEW
Discretionary; No records are elevated unless the court decrees it
Filed with the appellate court
Appeals to the SC from a
judgment or final order or
resolution
of
the
CA,
Appeals from awards, Sandiganbayan, CTA en banc,
judgments, final orders RTC (original jurisdiction) or such
Appeal from a decision of
or resolution of or other courts as may be
the RTC rendered in the
authorized by any quasi- authorized by law
exercise of its appellate
judicial agency in the Decisions, final orders, or
jurisdiction
exercise of its quasi- resolutions of the CA in any case,
judicial functions
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
RULE 42
Filed with the CA
Appeal to the CA

RULE 43
Filed with the CA
Appeal to the CA
Questions
of
fact,
Questions of fact or mixed
Questions of fact, Questions
Questions of fact or mixed
Questions of law, or
questions of fact and law
of law, or Mixed questions of
questions of fact and law
Mixed questions of fact
both
and law

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RULE 45
Filed with the SC
Appeal to the SC
Only Questions of Law

UP LAW BOC
TIME FOR FILING
RULE 40

CIVIL PROCEDURE

RULE 41

RULE 42

RULE 43
Within 15 days from:
(1) Notice of award,
Within 15 days from notice of
BY NOTICE OF APPEAL
judgment,
final
decision, or
Within 15 days after notice of judgment or final order
order, or resolution;
Within 15 days from notice of
(2) Date of publication, if
denial of petitioners motion
BY RECORD ON APPEAL
publication
is
for
new
trial
or
Within 30 days from notice of judgment or final order by filing
required by law for its
reconsideration
a notice of appeal and a record on appeal
effectivity;
(3) Denial of petitioners
MNT or MR

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REMEDIAL LAW

RULE 45
Within 15 days from:
(1) Notice of judgment, final
order, or resolution appealed
from, or
(2) Notice of denial of motion for
new trial or reconsideration
filed in due time after notice
of judgment

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C. RELIEF FROM JUDGMENTS.


ORDERS,
AND
OTHER
PROCEEDINGS

REMEDIAL LAW

Applies
to
Applies
to
judgments,
final
judgments or final
orders and other
orders only
proceedings
Grounds:
(1) FAME; or
(2) Newly
Ground: FAME
discovered
evidence
Filed:
(1) within 60 days
from knowledge
Filed within the time
of judgment; and
to appeal
(2) within 6 months
from entry of
judgment
If
denied,
order
If denied, order of
denying a petition for
denial
is
not
relief
is
not
appealable; hence,
appealable; remedy
remedy is appeal
is appropriate civil
from judgment
action under Rule 65
Legal remedy
Equitable remedy
Motion need not be Petition must be
verified
verified

Remedies after finality of judgment


(1) Petition for Relief [Rule 38]
(2) Action to Annul Judgment [Rule 47]
(3) Collateral Attack of a Judgment that is
Void on its Face

C. 1. NATURE
A legal remedy whereby a party seeks to set
aside a judgment rendered against him by a
court whenever he was unjustly deprived of a
hearing or was prevented from taking an
appeal because of fraud, accident, mistake,
or excusable negligence (FAME). [Quelnan v.
VHF Phils
A petition for relief from judgment is an
equitable remedy allowed only in exceptional
cases when there is no other available or
adequate remedy. When a party has another
remedy available, either motion for new trial
or appeal, and he was not prevented by
FAME from filing such motion or taking such
appeal, he cannot avail himself of this
petition. [Trust International Paper Corp. v.
Pelaez]

A party who has filed a timely motion for new


trial or motion for reconsideration can no
longer file a petition for relief from judgment
after his motion has been denied. These
remedies are mutually exclusive. It is only in
appropriate cases where a party aggrieved by
the judgment has not been able to file a
motion for new trial or motion for
reconsideration that a petition for relief can
be filed. [Francisco v. Puno (1981)]

A petition for relief is not regarded with favor


and judgment will not be disturbed where
the party complaining has or by his
exercising proper diligence would have had
an adequate remedy at law, as where
petitioner could have proceeded by appeal to
vacate or modify the default judgment.
[Manila Electric v. CA (1990)]

C. 3. WHEN PROPER
The petition can be availed of when the
judgment or final order has been entered or
when any other proceeding is thereafter
taken against the petitioner in any court
through FAME. [Rule 38, Section 1]

C. 2. MOTION FOR NEW TRIAL AND


PETITION FOR RELIEF
Motion for New Trial
[Rule 37]

Petition for Relief


[Rule 38]
Available
after
Available
before
judgment
has
judgment becomes
become final and
final and executory
executory

Thus, it was held that a petition for relief is


also applicable to a proceeding taken after
entry of judgment or final order such as an

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order of execution (Cayetano v. Ceguerra) or


an order dismissing an appeal (Medran v. CA)

REMEDIAL LAW

(1) The 60-day period is reckoned from the


time the party acquired knowledge of the
order, judgment or proceeding. Not from
the date he actually read the same (Perez
v. Araneta)
(2) 6-months period is computed from the
date of entry of the order or judgment

C. 4. WHERE FILED
Rule 38 is not an independent action but a
continuation of the old case. Hence, it is filed
with the same court and same branch which
decided the case.

C. 7. FORM OF THE PETITION


The petition must be:
(1) Verified;
(2) Accompanied by an affidavit showing the
FAME relied upon; and
(3) Accompanied by an affidavit of merit,
showing the facts constituting the
petitioners good and substantial cause
of action or defense.

C. 5. GROUNDS
[Rule 38, Sec. 1-2]
(1) When judgment or final order is entered
or any other proceeding is thereafter
taken against petitioner through FAME
(2) When petitioner has been prevented
from taking an appeal by FAME
Note: Extrinsic fraud is that fraud which the
prevailing party caused to prevent the losing
party from being heard on his action or
defense. Such fraud concerns not the
judgment itself but the manner in which it
was obtained. [AFP Mutual Benefit
Association, Inc. v. RTC-Marikina City (2011)]

The absence of an affidavit of merits is a fatal


defect and warrant denial of the petition
(Fernandez v. Tan Tiong Tick)

C. 6. PERIOD FOR FILING

When Affidavit of Merit is not necessary:


(1) When there is lack of jurisdiction over the
defendant;
(2) When there is lack of jurisdiction over the
subject matter;
(3) When judgment was taken by default;
(4) When judgment was entered by mistake
or was obtained by fraud; or
(5) Other similar cases.

However, it is not a fatal defect so long as the


facts required to be set out also appear in the
verified petition (Fabar Inc. v. Rodelas)

[Rule 38, Sec. 3]


(1) Within 60 days after petitioner learns of
the judgment, final order, or other
proceeding to be set aside; AND
(2) Not more than 6 months after such
judgment or final order was entered, or
such proceeding was taken
These two periods must concur, are not
extendible and are never interrupted. Strct
compliance with these periods stems from
the equitable character and nature of the
petition for relief. Such petition is actually the
last chance given by law to litigants to
question a final judgment or order. Failure to
avail of such chance, within the grace period
fixed by the Rules, is fatal. [Quelnan v. VHF
Phils. ]

ORDER TO FILE ANSWER (Rule 38, Sec. 4)


An order to answer shall issue only if petition
is sufficient in form and substance.
If petition is sufficient in form and in
substance, the court shall issue an order
requiring the adverse party to answer within
15 days from receipt thereof.
PROCEEDINGS AFTER ANSWER IS FILED
(Rule 38, Sec. 6)

Reckoning Points

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After filing of answer or expiration of the


period therefor, court shall hear the petition.

REMEDIAL LAW

failed to avail himself of those remedies


through his own fault or negligence.
[Republic v. G Holdings, Inc. ]

If the court finds that the allegations are not


true Petition is dismissed.

It is a condition sine qua non that one must


have failed to avail of those remedies,
through no fault attributable to him.
Otherwise, he would benefit from his own
inaction or negligence. [Republic v. De
Castro ]

If the court finds that allegations are true:


(1) It shall set aside the judgment, final
order, or other proceeding complained of
upon such terms as may be just
(2) Thereafter, case shall stand as if such
had never been rendered, issued, or
taken
(3) The court shall then proceed to hear and
determine the case as if timely motion for
new trial or reconsideration has been
granted by it

Where Filed
Judgment, Final
Order or Resolution
of the RTC
Filed with the CA
CA has exclusive and
original jurisdiction
over said action
under Sec. 9 (2) of
BP 129
The CA may dismiss
the case outright; it
has the discretion on
whether or not to
entertain
the
petition

REMEDY FOR DENIAL OF PETITION FOR


RELIEF.
Appeal from an order denying a petition for
relief is no longer available under the present
rules.
The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper.

Judgment, Final
Order or Resolution
of the MTC, etc.
Filed with the RTC
RTC as a court of
general jurisdiction
under Sec. 19(6) BP
129
The RTC has no such
discretion,
it
is
required to consider it
as an ordinary civil
action

Who Can File


Petitioner need not be a party to the
judgment sought to annulled.

D. ANNULMENT OF JUDGMENTS
OR
FINAL
ORDERS
AND
RESOLUTIONS

A person who is not a party to the judgment


may sue for its annulment provided that he
can prove the same was obtained through
fraud or collusion, and that he would be
adversely affected thereby. [Alaban v. CA ]

D. 1. NATURE
An action for annulment of judgment is a
remedy in law independent of the case where
the judgment sought to be annulled was
rendered. The purpose is to have the final
and executory judgment set aside so that
there will be a renewal of litigation. [Alaban v.
CA ]

D. 2. GROUNDS
[Rule 47, Sec. 2]
(1) Extrinsic Fraud
A fraudulent act committed by the
prevailing party outside of the trial of
the case, whereby the defeated party
was prevented from exhibiting fully
his side of the case by deception

When Proper
The remedy may not be invoked where the
party has availed himself of the remedy of
new trial, appeal, petition for review, or other
appropriate remedy and lost, or where he has
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practiced on him by the prevailing


party [Alba v. CA ]
Extraneous evidence is admitted

(2)
(3)

(2) Lack of Jurisdiction


Either lack of jurisdiction over the
person of the defending party, or over
the subject matter of the claim
Petitioner must show absolute lack of
jurisdiction and not mere abuse of
judicial discretion; a claim of grave
abuse of discretion will support a
petition for certiorari but not an
action for annulment of judgment.
Only evidence found in the record can
justify nullity

(4)

(5)

(b) Petitioners good and substantial


cause of action or defense
Filed following the Efficient Use of Paper
Rule
Certified true copy of the judgment or
final order or resolution shall be attached
to the original copy of the petition
Affidavits of witnesses or documents
supporting the cause of action or
defense; and
Certificate of non-forum shopping

D. 4. PROCEEDINGS
Two stages in the disposition of the petition:
(1) A preliminary evaluation of the petition
for prima facie merit (Sec. 5)
The rule allows the CA to dismiss the
petition outright as in special civil
actions
If prima facie merit is found, petition
is given due course and summons is
served on respondent

(3) Denial of Due Process


Recognized as an additional ground
based on jurisprudence.

D. 3. PERIOD TO FILE ACTION


[Rule 47, Sec. 3]

(2) If prima facie merit is found, petition is


given due course and issuance of
summons as in ordinary civil cases is
made (Sec. 6)
Procedure in ordinary civil cases is
observed

Lack of
Jurisdiction
Before barred
4 years from
by laches or
discovery
estoppel
Extrinsic Fraud

Period
for
Filing

REMEDIAL LAW

There must be a manifest showing with


petition that it was filed within the 4-yr
period.

NOTE: Prima facie determination is not


available in annulment of judgments or final
orders of MTCs before the RTC. (Rule 47, Sec.
10)

The rule does not fix the period to annul


judgment based on lack of jurisdiction but
recognizes the principle of estoppel as first
laid down by Tijam v. Sibanghanoy.

D. 5. EFFECT OF JUDGMENT OF
ANNULMENT
[Rule 47, Sec. 7]

Based on Lack of Jurisdiction


(1) The same shall be set aside, and
considered null and void
(2) Aggrieved party may refile the action in
the proper court

Form and Contents of Petition [Rule 47, Sec.


3]
(1) Verified petition, alleging therein:
(a) With particularity, the facts and the
law relied upon
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(1) By a direct action or proceeding to annul


the same
A direct attack against the order or
judgment because it is not incidental
to, but is the main object of, the
proceeding
To annul and enjoin enforcement of
the judgment, where the alleged
defect is not apparent on its face or
from the recitals contained in the
judgment
See Rule 47

This may involve a different court of


competent jurisdiction
Where the reason was lack of
jurisdiction over the defendant, the
action may be re-filed in the same
original court, provided it has proper
jurisdiction and venue

Based on Extrinsic Fraud


(1) The same shall be set aside and
considered null and void
(2) On motion of the prevailing party on
justifiable grounds, he may be allowed to
no longer refile the action; instead, the
trial court which rendered the questioned
judgment shall be ordered to try the case
anew

(2) By direct action, as certiorari, or by


collateral attack in case of apparent
nullity
The collateral attack must be against
a challenged judgment which is void
upon its face or that the nullity of the
judgment is apparent from its own
recitals

The prescriptive period for the refiling of the


aforesaid original action shall be deemed
suspended from the filing of said 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. [Rule 47, Sec. 8]

E. COLLATERAL
JUDGMENTS

ATTACK

REMEDIAL LAW

(3) By a Petition for Relief under Rule 38


This third manner of attacking must
be taken in the same action or
proceeding in which the judgment or
order was entered

OF

E. 2. VOID JUDGMENT
A void judgment is no judgment at all. It
cannot be the source of any right nor the
creator of any obligation. All acts performed
pursuant to it and all claims emanating from
it have no legal effect. Hence, it can never
become final and any writ of execution based
on it is void. [Polystyrene Manufacturing v.
Privatization Management (2007)]

E. 1. ATTACKING A JUDGMENT
Direct Attack v. Collateral Attack
Direct attack upon a judgment is an
action or proceeding to annul it, this
being the main object of the proceeding
Collateral attack upon a judgment is one
made to obtain relief other than the
setting aside of the judgment, the attack
on the judgment itself being incidental

A void judgment may be likened to a lawless


thing which can be treated as an outlaw and
slain at sight, or ignored wherever and
whenever it rears its head. [Banco EspanolFilipino v. Palanca (1918)]

Collateral attack is proper only when the


judgment on its face is null and void as where
it is patent that the court which rendered
said judgment has no jurisdiction

A judgment may be void for lack of due


process of law. [Spouses Benatiro v. Heirs of
Cuyos (2008))

The validity of a judgment or order of the


court, which has become final and executory,
may be attacked in three ways:
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Attacking a Void Judgment


It may be assailed anytime, collaterally or in
a direct action or by resisting such judgment
or final order in any action or proceeding
whenever it is invoked, unless barred by
laches. [Spouses Benatiro v. Heirs of Cuyos
(2008))

REMEDIAL LAW

exhibits its head. The proper remedy in such


case, after the time for appeal or review has
passed, is for the aggrieved party to bring an
action to enjoin the judgment. (Montinola v.
Judge Gonzales, 1989)
Assuming the judgment to have been void as
alleged by the proponent of this motion, the
proper remedy was by an original proceeding
and not by motion in the cause" [Banco
Espanol v. Palanca (1918)]. A final judgment
may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
[Panlilio v. Garcia (1982)]

Remedies
If the reglementary period for appeal has not
yet lapsed, some remedies are New Trial and
Reconsideration [Rule 37], Appeal [Rules 4045], Petition for Relief [Rule 48], and Other
Appropriate Remedies such as Certiorari may
also be used.

VI. Execution,
Satisfaction and Effect
of Judgments

If the appropriate remedies are no longer


available without the fault of the petitioner,
the equitable and extraordinary remedy of
Petition for Annulment of Judgment [Rule 47]
may be resorted to.

Execution is the legal remedy for the


enforcement of a judgment. It is not an
action but is included in the phrase Process
in an action part of the proceedings
considered as still pending.

When all else fails, there is jurisprudence to


the effect that a patently void judgment may
be dealt with by a Main Action for Injunction.
[See Barrameda v. Moir (1913)]

Writ of Execution a judicial writ issued to an


officer authorizing and requiring him to
execute the judgment of the court.

Jurisprudential Basis
Remedial Law Jurisprudence such as Spouses
Benatiro v. Heirs of Cuyos, (2008) and Agustin
v. Bacalan, (1985) on the matter of void
judgment particularly refer to Rule 47 as a
remedy against a void judgment. This
remedy, however, should be availed of only
when the appropriate remedies are no longer
available without fault on the part of the
petitioner.

A. FINALITY FOR PURPOSES OF


APPEAL AND FOR PURPOSES OF
EXECUTION
A judgment is final if it disposes of the action
as distinguished from an interlocutory order
which leaves something to be done with
respect to the merits of the case, and it is
executory if the period to appeal has expired
and no appeal is taken. [Herrera]

Although Section 2 of Rule 47 of the Rules of


Court provides that annulment of a final
judgment or order of an RTC may be based
"only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence recognizes
denial of due process as additional ground
therefore (Spouses Benatiro Case).

Finality for purposes of appeal refers to the


distinction between final judgments or
orders and interlocutory orders, which
cannot be appealed. [Rule 41, Sec. 1(b)]

A void judgment is like an outlaw which may


be slain at sight wherever or whenever it
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The word interlocutory refers to something


intervening between the commencement and
the end of a suit, which decides some point or
matter but is not a final decision of the whole
controversy. [Ramiscal, Jr. v. Sandiganbayan
(2004)]

REMEDIAL LAW

proceeding upon the expiration of the period


to appeal therefrom if no appeal has been
duly perfected.
If the appeal has been duly perfected and
finally resolved, the execution may forthwith
be applied for in the court of origin, on
motion of the judgment obligee, submitting
therewith certified true copies of the
judgment/s or final order/s sought to be
enforced and of the entry thereof, with notice
to the adverse party.

A final judgment or order is one that finally


disposes of a case, leaving nothing more to
be done by the court in respect thereto.
Examples include:
(1) an adjudication on the merits which, on
the basis of the evidence presented at
the trial, declares categorically what the
rights and obligations of the parties are
and which party is in the right; or
(2) a judgment or order that dismisses an
action on the ground, for instance, of res
judicata or prescription.

Exceptions: Execution may Issue even if


judgment not final in the following cases:
(1) Support pendente lite
(2) Judgments of inferior courts in ejectment
cases
(3) Execution pending appeal
(4) Injunction, accounting, receivership,
support [Rule 39, Sec. 4]
(5) Decision of the RTC in appealed civil
cases under Summary Procedure,
including forcible entry and unlawful
detainer
(6) Decision of the LA reinstating dismissed
employee, insofar as reinstatement
aspect is concerned

Once rendered, the task of the court is ended,


as far as deciding the controversy or
determining the rights and liabilities of the
litigants is concerned. Nothing more remains
to be done by the court except to await the
parties' next move (such as filing of a motion
for new trial or reconsideration, or the taking
of an appeal) and ultimately, to cause the
execution of the judgment once it becomes
'final and executory.

B. 1. EXECUTION AS A MATTER OF
RIGHT
[Rule 39, Sec. 1]

Finality for purposes of execution refers to the


judgment being final and executory upon
the lapse of the appeal period if no appeal is
taken, upon which execution shall issue as a
matter of right. [Rule 39, Sec. 1]

A judgment becomes final and executory by


operation of law, not by judicial declaration.
The prevailing party is entitled as a matter of
right to a writ of execution, and the issuance
thereof is a ministerial duty and compellable
by mandamus. [Herrera]

A judgment becomes final and executory


by operation of law. Finality becomes a fact
upon the lapse of the reglementary period to
appeal if no appeal is perfected.

Execution as a matter of right is available in


two instances:
(1) No appeal has been perfected or period
of appeal has expired
(2) Appeal has been perfected and finally
resolved

B. WHEN EXECUTION SHALL ISSUE


General rule: Execution shall issue as a
matter of right, on motion, upon a judgment
or order that disposes of the action or

How Done

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(1) If no appeal is perfected, prevailing party


applies by motion for a writ of execution
(2) If an appeal has been perfected and
finally resolved
(a) prevailing party files a motion in the
court of origin, submitting:
(i)
certified true copies of the
judgment/s or final order/s
sought to be enforced;
(ii)
certified true copies of the entry
thereof; and
(iii)
with notice to the adverse party.
(b) appellate court may also direct the
court of origin to issue the writ of
execution, upon motion in the same
case, when the interest of justice so
requires.

REMEDIAL LAW

(7) When execution is sought against


property exempt from execution;
(8) When refusal to execute the judgment
has become imperative in the higher
interest of justice. [Riano]
Supervening Event Doctrine
A supervening event can be invoked for the
modification or alteration of a final judgment.
This refers to:
(1) Facts which transpire after judgment has
become final and executory;
(2) New circumstances which developed
after the judgment has acquired finality;
(3) Matters which the parties were not aware
of prior to or during the trial as they were
not yet in existence at that time.
(4) The supervening facts or circumstances
must either bear a direct effect upon the
matters already litigated and settled or
create a substantial change in the rights
or relations of the parties therein which
render execution of the final judgment
unjust or impossible (Lim v. Jabalde)

Note: Execution may only issue upon motion


with notice of hearing.
General rule: Issuance of the writ of execution
is a matter of right on the part of the
prevailing party when the judgment or order
becomes executory. The court cannot refuse
execution.

B. 2. DISCRETIONARY EXECUTION
[Rule 39, Sec. 2]

Exceptions: The issuance of a writ of


execution which issues as a matter of right
can be countered in any of the following
cases:
(1) When the judgment has already been
executed by the voluntary compliance
thereof by the parties;
(2) When a judgment has been novated by
the parties;
(3) When a petition for review is filed and
preliminary injunction is granted; Also,
when execution of the judgment has
been enjoined by a higher court;
(4) When the judgment sought to b executed
is conditional or incomplete;
(5) When facts and circumstances transpire
which
would
render
execution
inequitable or unjust;
(6) When execution is sought more than five
(5) years from its entry without it having
been revived;

Discretionary
Execution
May issue before the
lapse of period to
appeal, and even
during appeal
Discretionary upon
the court
Upon showing of
good reason for
execution

Execution as a
Matter of Right
Period to appeal has
already lapsed and
no
appeal
is
perfected
Ministerial duty of
the court
Provided there are no
supervening events

Under the Rule on Discretionary Execution


(also called execution pending appeal), the
court rendering the judgment, if it still has
jurisdiction, may exercise discretion and
order execution pending appeal.
It is the execution of a judgment or final
order before it attains finality. The court
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which rendered the decision can grant an


execution pending appeal if it still retains
jurisdiction over the case and is in possession
of the records at the time of the filing of the
motion; otherwise, the motion shall be acted
upon by the appellate court.

REMEDIAL LAW

(2) it is in possession of either the original


record or the record on appeal.
After the trial court has lost jurisdiction, the
motion may be filed in the appellate court.
[Bangkok Republic Company, Ltd. v. Lee
(2006)]

To be valid, there should be a good reason to


justify execution pending appeal, stated in
the order which granted it.

Examples of Good Reasons:


(1) Where the goods subject of the judgment
stand to perish or deteriorate during the
pendency of the appeal (Yasuda v. CA)
(2) The award of actual damages is for an
amount fixed and certain (Radio
Communications Inc. v. Lantin). But not
an award for moral and exemplary
damages
(3) Insolvency of a defeated party (Hacienda
Navarro v. Labrador)
(4) The prevailing party is of advanced age
and in a precarious state of health and
the obligation in the judgment is nontransmissible, being for support (De Leon
v. Soriano)
(5) Where defendants were exhausting their
income and have no other property aside
from proceeds of the property subject in
litigation (Lao v. Mencias)

Discretionary Execution is not applicable in


the case of the Court of Appeals:
(1) The Rule on Discretionary Execution
contemplates a situation where a
judgment or final order rendered in the
exercise of its original jurisdiction and the
prevailing party in said decision seeks
immediate
execution
during
the
pendency of an appeal.
(2) The CA has no authority to issue
IMMEDIATE EXECUTION PENDING
APPEAL OF ITS OWN DECISIONS
THEREIN.
(3) Discretionary execution is allowed
pending appeal of judgment or final
order of the trial court upon good
reasons to be stated in a special order.
A judgment of the CA cannot be executed
pending appeal. (Heirs of Justice JBL Reyes v.
CA, 2000)

Stay of Discretionary Execution


Discretionary execution may be stayed upon
approval by the proper court of a sufficient
supersedeas bond filed by the party against
whom it is directed, conditioned upon the
performance of the judgment or order
allowed to be executed in case it shall be
finally sustained in whole or in part [Rule 39,
Sec. 3]

Requisites for Discretionary Execution:


(1) There must be a motion filed by
prevailing party with notice to adverse
party
(2) There must be a hearing of the motion
for discretionary execution
(3) There must be good reasons to justify the
discretionary execution
(4) These good reasons must be stated in a
special order after due hearing

Bond may be proceeded against on motion


with notice to surety
General rule: The filing of a supersedeas
bond is sufficient to stay the enforcement of
a discretionary execution.

When Filed
The motion for discretionary execution shall
be filed with the trial court while
(1) it has jurisdiction over the case; and

Exception: However, the filing of the


supersedeas bond does not entitle the
judgment debtor to the suspension of
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execution as a matter of right. Where the


needs of the prevailing party are urgent, the
Court can order immediate execution despite
such supersedeas bond. [Regalado]

REMEDIAL LAW

C. HOW JUDGMENT IS EXECUTED


C. 1. EXECUTION BY MOTION OR
INDEPENDENT ACTION
[Rule 39, Sec. 6]

If judgment is reversed totally or partially, or


annulled
The trial court may, on motion, issue such
orders of restitution or reparation of
damages as equity and justice may warrant
under the circumstances

Modes of Enforcement of Execution:


Mode
When Enforced
Within 5 years from date of
By Motion
entry of judgment
After the lapse of 5 years
from date of entry and
By
before it is barred by statute
Independent
of limitations which is 10
Action
years from date of entry (Art.
1144(3))

Remedy against Discretionary Execution


The remedy is certiorari by Rule 65. The fact
that the losing party has also appealed from
the judgment does not bar certiorari
proceedings as the appeal could not be an
adequate remedy from such premature
execution. [Hererra]

Note: The revived judgment may be enforced


by motion within 5 years from date of its
entry and thereafter by action before it is
barred by statute of limitations.
Once the judgment is revived, the 10-year
prescriptive period commences to run from
the date of finality of the revived judgment
and not the original judgment. [PNB v.
Bondoc ]

C. 2. ISSUANCE AND CONTENTS OF A


WRIT OF EXECUTION
[Rule 39, Sec. 8]
Contents of the Writ of Execution
(1) Issued in the name of the Republic from
the court which granted the motion
(2) States the name of the court, case
number and title, dispositive part of
judgment or order
(3) Requiring the sheriff or other proper
officer to whom it is directed to enforce
the writ according to its terms
(a)
(4) In all cases, it shall also specifically state
the amount of interest, cost, damages,
rents, or profits due as well as the
principal obligation
Dispositive Portion as Subject of Execution
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General rule: The dispositive portion of the


decision is that part that becomes the subject
of execution

REMEDIAL LAW

General rule: The execution of final and


executory judgments may no longer be
contested and prevented, and no appeal
should lie therefrom.

Exceptions:
(1) Where there is ambiguity, the body of the
opinion may be referred to for purposes
of construing the judgment because the
dispositive part of a decision must find
support from decisions ratio decidendi
(2) Where extensive and explicit discussion
and settlement of the issue is found in
the body of the decision

Exceptions: Instances where errors may be


committed prejudicial to the rights of a party,
calling for correction by a higher court.
Examples of these instances are:
(1) when the writ varies the judgment;
(2) when there has been a change in the
situation of the parties rendering
execution inequitable;
(3) when execution is sought to be enforced
against property exempt from execution;
(4) when it appears that the controversy has
never been submitted to the judgment of
the court;
(5) when the terms of the judgment are not
clear enough and there remains room for
interpretation;
(6) when it appears that the judgment has
already been satisfied;
(7) when it appears the writ has been
improvidently issued;
(8) when it appears that the writ is defective
in substance;
(9) when the writ is issued against the wrong
party;
(10) when the writ was issued without
authority.

Two Whom Issued


General rule: Only real parties in interest in
an action are bound by judgment rendered
therein and by the writs of execution
Exceptions: There are certain cases where the
writ may be issued against non-parties
(1) One who is privy to judgment debtor can
be reached by an order of execution and
writ of demolition (Vda. De Medina v.
Cruz)
(2) Issued against one who not being
originally a party to the case submits his
interest to the court for consideration in
the same case and invites adjudication
regarding said interest (Jose v. Blue)
(3) Where non-parties voluntarily signed the
compromise agreement or voluntarily
appeared before court (Rodriguez v.
Alikpala)
(4) Where the remedy of a person not a party
to the case which he did not avail of, was
to intervene in the case in question
involving rights over the same parcel of
land and said person in another case was
adjudged buyer in bad faith thereof
(Lising v. Plan)
(5) In an ejectment case, where 3rd party
derived his right of possession from
defendant particularly when such right
was acquired only after filing of
ejectment suit (Cordova v. Tornilla)

If motion to quash is denied, appeal from


said denial
An order granting the issuance of the writ is
not appealable, except where:
(1) The order varies the terms of the
judgment, or
(2) Where, being vague, the court renders
what is believed to be a wrong
interpretation

C. 3. RETURN OF WRIT OF EXECUTION


[Rule 39, Sec. 14]
Effectivity

Remedies against a Writ of Execution

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C. 5. EXECUTION OF JUDGMENTS FOR


MONEY

The writ shall continue to be in effect during


the period within which judgment may be
enforced by motion (5 years from entry of
judgment).

If the award is for payment of money,


execution is enforced by:
(1) Immediate payment on demand
(2) Satisfaction by levy
(3) Garnishment of debts and credits [Rule
39, Sec. 9]

Judgment Satisfied within 30 days


Writ of execution is returnable to the court
issuing it immediately after the judgment has
been satisfied in part or in full.
Judgment Not Satisfied within 30 days
Officer shall report to the court stating the
reason for non-satisfaction, and shall
continue to make a report every 30 days until
judgment is satisfied in full or the writ expires.

I. IMMEDIATE PAYMENT ON DEMAND


Procedure
(1) The officer shall demand from judgment
obligor the immediate payment of the
full amount stated in the writ and all
lawful fees

Form of Returns and Reports


The returns or periodic reports made by the
sheriff:
(1) shall set forth the whole of the
proceedings taken;
(2) shall be filed with the court; and
(3) shall have copies thereof furnished to the
parties.

(2) The judgment obligor shall pay the


amount of the judgment debt
(a) Payable in Cash, Certified bank check
payable to judgment obligee, or any
other form of payment acceptable to
judgment obligee
(i)
In no case shall sheriff demand
that any payment by check be
made payable to him
(ii)
Amount of judgment under
proper receipt directly to the
judgment
obligee
or
his
authorized representative if
present at time of payment

C. 4. ENTRY OF SATISFACTION OF
JUDGMENT
Satisfaction of Judgment is entered by the
clerk of court in the court docket and in the
execution book upon:
(1) Return of the writ of execution showing
full satisfaction of the judgment;
(2) Filing of an admission to the satisfaction,
executed and acknowledged in the same
manner as a conveyance of real property
by the judgment creditor or his lawyer; or
(3) Upon indorsement of such admission by
the judgment creditor or his attorney on
the face of the record of the judgment.
[Rule 39, Sec. 45]

(b) If judgment obligee or his


representative is present to receive
payment:
(i)
Judgment obligor shall delver
payment to executing sheriff
(ii)
Sheriff shall turn over the
amounts within the same day to
the clerk which issued the writ or
deposit the amounts to a
fiduciary account in the nearest
government depository bank of
the RTC of the locality
(3) The judgment obligor shall pay the
lawful fees handed over to the sheriff.
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Sheriff shall turn over the said amount


within the same day to the clerk that
issued the writ

REMEDIAL LAW

(a) The officer shall first levy on personal


properties, if any
(b) If personal properties are insufficient,
then on the real properties

(4) If there is any excess it shall be delivered


to the judgment obligor. Lawful fees
shall be retained by the clerk

(3) Sheriff shall sell only sufficient portion of


personal or real property of the judgment
obligor levied upon

II. SATISFACTION BY LEVY


(4) If there is more property than is sufficient
to satisfy judgment and lawful fees, then
sell only so much as is sufficient

Levy is the act whereby a sheriff sets apart or


appropriates for the purpose of satisfying the
command of the writ, a part or the whole of
the judgment debtors property.

III. GARNISHMENT OF DEBTS AND


CREDITS

Levy means the act or acts by which an


officer sets apart or appropriates a part or
the whole of the property of the judgment
debtor for purposes of the prospective
execution sale [Llenares v. Vandevella (1966)].

Garnishment is considered as a species of


attachment for reaching credits belonging to
the judgment debtor and owing to him from
a stranger to the litigation

If susceptible of appropriation, the officer


removes and takes the property for
safekeeping; otherwise the same is placed
under sheriffs guards. Without valid levy
having been made, any sale of the property
thereafter is void.

The Officer may levy on:


(1) Debts due the judgment obligor and
other credits,
(2) Including bank deposits, financial
interests, royalties, commissions,
(3) And other personal property not capable
of manual delivery in possession and
control of third parties

Conditions before resort to Satisfaction by


Levy
(1) If the judgment obligor cannot pay all or
part of the obligation then the officer
shall levy upon the properties of the
judgment obligor

The process of levying shall be called


garnishment if the property involved is
money, stocks, or other incorporeal property
in the hands of third persons. Garnishment
merely sets apart such funds but does not
constitute the creditor as owner of the
garnished property.

(2) Characteristics of properties to be levied


(a) Properties of every kind and nature
whatsoever
(b) Which may be disposed of for value
(c) Not otherwise exempt from execution

Garnishment is not a violation of RA 1405 on


the secrecy of bank deposits. [Chinabank v.
Ortega (1973)]

Procedure
(1) The judgment obligor have the option to
immediately choose which property or
part thereof may be levied upon,
sufficient to satisfy judgment

Notes: Upon service of the writ of


garnishment, the garnishee becomes a
virtual party or forced intervenor to the
case and the trial court thereby acquires
jurisdiction to bind the garnishee to comply
with its orders and processes. [BPI v. Lee
(2012)]

(2) If judgment obligor does not exercise the


option:
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(8) Lawful fees shall be paid directly to court


UPs funds, being government funds, are not
subject to garnishment. Moreover, The
execution of the monetary judgment against
the UP was within the primary jurisdiction of
the COA. [UP v. Dizon (2012)]

C. 6. EXECUTION OF JUDGMENTS FOR


SPECIFIC ACTS
[Rule 39, Sec. 10]
For Conveyance of Real of Land or Personal
Property
Judgment directs a party to:
(a) Execute a conveyance of land or
personal property;
(b) Deliver deeds or other documents; or
(c) Perform any other specific act in
connection therewith

Procedure
(1) Levy shall be made by serving notice
upon:
(a) The person owing such debts, or
(b) Having in his possession or control
such credits to which judgment
obligor is entitled
(2) Garnishment to cover only such amount
as will satisfy judgment and lawful fees

If the party fails to comply within the time


specified:
(1) Court may direct the act to be done at the
cost of the disobedient party by some
other person appointed by the court; or

(3) If there are 2 or more garnishees, holding


deposits or credits sufficient to satisfy
judgment, judgment obligor shall have
the right to indicate the garnishee/s who
shall be required to deliver. Otherwise,
the choice shall be made by judgment
obligee

(2) If the real or personal property directed


to be conveyed is situated in the
Philippines, court may by order divest the
title of any party and vest it in others,
which shall have the force and effect of
conveyance executed in due form.

(4) The garnishee shall make a written


report to the court within 5 days from
service of notice of garnishment. The
report shall state whether:
(a) Judgment obligor has sufficient
funds or credits to satisfy judgment,
OR
(b) Judgment obligor has insufficient
funds or credits to satisfy judgment

For Sale of real or personal property


An order for execution shall be issued
describing the property to be sold, and
directing the sheriff or other proper officer to
sell it, and apply the proceeds in conformity
with the judgment. [Rule 39, Secs. 8(b), 10]
For Delivery or Restitution of Real Property
The officer shall demand of the person
against whom the judgment is rendered and
all persons claiming rights under him to
peaceably vacate the property within three (3)
working days, and restore possession to the
judgment obligee.

(5) Garnish the amount which may be in


cash, or certified bank check issued in
the name of judgment obligee
(6) Garnished amount shall be delivered
directly to judgment obligee within 10
working days from service of notice on
said garnishee requiring such delivery

Otherwise, the officer shall oust all such


persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the

(7) Follow procedure under Immediate


Payment on Demand with respect to
delivery

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judgment obligee in possession of such


property.

(a) The party against whom the


judgment is rendered; or
(b) Any other person required by the
judgment or by the law to obey the
same.

Any costs, damages, rents or profits awarded


by the judgment shall be satisfied in the
same manner as a judgment for money.

(3) Failure of such party to obey is


punishable by contempt.

Removal of improvements on property subject


of execution
When the property subject of the execution
contains improvements constructed or
planted by the judgment obligor or his agent,
the officer shall not destroy, demolish or
remove said improvements except:
(1) upon special order of the court, issued
upon motion of the judgment obligee
after due hearing; and
(2) after the judgment obligor has failed to
remove these within a reasonable time
fixed by the court.

Examples
(1) A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital.
[Vital-Gozon v. CA (1992)]
(2) A judgment directing defendant to
remove a fence from a certain place is a
special judgment. [Marquez v. Marquez,
73 Phil. 74]

C. 8. EFFECT OF LEVY ON THIRD


PERSONS

Delivery of personal property


The officer shall take possession of the same
and forthwith deliver it to the party entitled
to it, and satisfy any judgment for money as
therein provided.

C. 7. EXECUTION
JUDGMENTS

OF

REMEDIAL LAW

The levy on execution shall create a lien in


favor of the judgment obligee over the right,
title and interest of the judgment obligor in
such property at the time of the levy, subject
to
liens
and
encumbrances
then
existing. [Rule 39, Sec. 12]

SPECIAL

Note: The power of the court in execution


extends only over properties unquestionably
belonging to the judgment debtor.

When Proper [Rule 39, Sec. 11]


A judgment requires performance of any
other act than payment of money or sale or
delivery of property.

D. PROPERTIES EXEMPT FROM


EXECUTION

Such judgment is one which can only be


complied with by the judgment obligor
because of his personal qualifications or
circumstances.

General rule: Except as otherwise expressly


provided by law, the following property, and
no other, shall be exempt from execution
(Rule 39, Sec. 13)
(1) The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;

Procedure
(1) A writ of execution shall be issued, with a
certified true copy of the judgment
attached.

(2) Ordinary
tools
and
implements
personally used by him in his trade,
employment, or livelihood;

(2) Writ shall be served by the officer upon:

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support, or any pension or gratuity from


the Government;

(3) Three horses, or three cows, or three


carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation;

(13) Properties specially exempted by law,


such as:
(a) property mortgaged to the DBP [CA
458, Sec. 26];
(b) savings of national prisoners
deposited with the postal savings
bank [Act 2489];
(c) benefits from private retirement
systems
of
companies
and
establishments with limitations [RA
4917];
(d) laborers wages except for debts
incurred for food, shelter, clothing
and medical attendance [Civil Code,
Art. 1708];
(e) benefit payments from SSS [RA 1161,
as amended; Sec. 16]

(4) His necessary clothing and articles for


ordinary personal use, excluding jewelry;
(5) Household furniture and utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor
and his family, such as the judgment
obligor may select, of a value not
exceeding P 100,000.00;
(6) Provisions for individual or family use
sufficient for four (4) months;
(7) The professional libraries and equipment
of
judges,
lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors, clergymen, teachers, and
other professionals, not exceeding
P300,000.00 in value;

Exception: However, no article or species of


property mentioned in this section shall be
exempt from:
(1) Execution issued upon a judgment
recovered for its price, or
(2) Upon a judgment of foreclosure of a
mortgage thereon.

(8) One fishing boat and accessories not


exceeding the total value of one hundred
thousand pesos owned by a fisherman
and by the lawful use of which he earns
his livelihood;

The exemptions must be claimed, otherwise


they are deemed waived. It is not the duty of
the sheriff to set off the exceptions on his
own initiative. (Herrera v. Mcmicking, 1909)

(9) So much of the salaries, wages, or


earnings of the judgment obligor for his
personal services within the four (4)
months preceding the levy as are
necessary for the support of his family;

(10) Lettered gravestones;


(11) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
(12) The right to receive legal support, or
money or property obtained as such

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(2) If the claim is filed under Sec. 14, Rule 57


(Attachment) or under Sec. 7, Rule 60
(Replevin)
Claimant may vindicate his claim by
intervention as he has a legal interest
in the matter of litigation
Intervention is allowed as these
actions are still pending in court

E.
PROCEEDINGS
WHERE
PROPERTY CLAIMED BY THIRD
PERSONS
Rule 39, Sec. 16, and other provisions
providing a mode for recovering property
alleged to have been wrongfully taken by
sheriff pursuant to a writ of execution or
other process, refer to a stranger to an action.
[Tillson v. CA (1991)]

Effect of Third-Party Claim


When a third-party claim is filed, sheriff is not
bound to proceed with the levy of the
property unless judgment creditor or latters
agent posts an indemnity bond against the
claim.

Remedies of Third-Party Claimant


(1) Summary hearing before the court which
authorized the execution
(2) Terceria or third-party claim filed with
the sheriff (Rule 39, Sec. 16)
(3) Action for damages on the bond posted
by the judgment creditor
(4) Independent reivindicatory action

E. 1. SUMMARY HEARING BEFORE


COURT AUTHORIZING EXECUTION
A third-person whose property was seized by
a sheriff to answer for an obligation of a
judgment debtor may invoke the supervisory
power of the court which authorized such
execution

The aforementioned are cumulative remedies


and may be resorted to by a third-party
claimant independently of or separately from
and without need of availing of the others.
[Sy v. Discaya (1990)]

Procedure
(1) Claimant files application

For a Third-Party Claim to be Sufficient:


(1) Must be filed by a person other than the
defendant or his agent, at any time
before sale
(2) Must be under oath or supported by
affidavit stating the claimants title to, or
right of possession of, the property, and
grounds therefor
(3) Must be served upon the officer making
levy and a copy thereof upon the
judgment creditor

(2) Court conducts summary hearing


(a) The court may command that the
property be released from the
mistaken levy and restored to rightful
owner or possessor
(b) If claimants proofs do not persuade,
the claim will be denied by the court
The court determination is limited only to a
determination of whether the sheriff has
acted rightly or wrongly in performance of his
duties. The court does not and cannot pass
upon the question of title.

The timing of the filing of the claim is


important because it determines the
remedies available to the claimant:
(1) If the claim is filed under Rule 39, Sec. 16:
Claimant may vindicate his claim in a
separate action
Intervention is no longer allowed
since judgment has already been
rendered

E. 2. TERCERIA
Independent of the foregoing, a third-party
claimant may also avail of the remedy of
Terceria. Terceria is provided in Sec. 16, Rule
39.

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E. 3. REINVINDICATORY ACTION

This is an action for damages by claimant


against officer within 120 days from date of
filing of bond for taking or keeping the
property subject of the terceria

The aforesaid remedies are nevertheless


without prejudice to any proper action that
third-party claimant may file to vindicate his
claim over the property. This action is
separate and independent.

Procedure
(1) Claimant serves on the officer making
levy an affidavit of his title and a copy
thereof to judgment creditor

Procedure
(1) He must institute an action, distinct and
separate from that which the judgment is
being enforced, with the court of
competent jurisdiction
(2) No need to file a claim in the court which
issued a writ. The latter is not a condition
sine qua non for the former.
(3) In such proper action, validity and
sufficiency of title of claimant will be
resolved.
(4) A writ of preliminary injunction against
sheriff may be issued

(2) Officer shall not be bound to keep


property
Unless judgment creditor, or his
agent, on demand of officer, posts
indemnity bond not lesser nor
greater than value of property
(3) Where a third-party claim has been filed
in due form:
Prevailing party can compel the
sheriff to proceed by filing of a bond
to answer for damages as a
consequence of the execution
If sheriff proceeds with the sale
without such bond, he will be
personally liable for such damages
as may be sustained by and awarded
to the claimant

F. RULES ON REDEMPTION
When Available
(1) For personal property there is NO right
of redemption as the sale is absolute
(2) For real property right of redemption is
available

(4) Action against Indemnity


Action against indemnity bond must
be filed within 120 days from date of
filing of the bond
After lapse of 120 days, no claim for
damages for taking or keeping of
property may be enforced against the
bond

Who May Redeem


[Rule 39, Sec. 27]
(1) Judgment obligor, or his successor in
interest;
Successors-in-interest
include,
among others, one to whom the
debtor has conveyed his interest in
the property for purposes of
redemption

The right of a third-party claimant to file a


terceria is founded on his title or right of
possession. Corollary thereto, before the
court can exercise its supervisory power to
direct the release of the property mistakenly
levied and the restoration thereof to its
rightful owner, the claimant must first
unmistakably establish his ownership or right
of possession thereon. [Villasi v. Garcia
(2014)]

(2) A creditor having a lien by virtue of an


attachment, judgment or mortgage on
the property sold, subsequent to the lien
under which the property was sold.
Redeeming creditors are called
redemptioner.

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Unlike
a
judgment
obligor,
such
redemptioner must prove his right to redeem
by producing the ff. documents:
(1) The documents necessary to establish his
right to redeem:
(a) A copy of the judgment or final order
under which he claims the right to
redeem, certified by the clerk of the
court wherein judgment or final order
was entered;
(b) If he redeems upon a mortgage or
other lien, a memorandum of the
record thereof, certified by the
Register of Deeds; or
(c) An original or certified copy of any
assignment necessary to establish
his claim; and
(2) An affidavit executed by him or his agent
showing the amount then actually due on
the lien [Sec. 30]

REMEDIAL LAW

of sale to redeem the property. If judgment


debtor redeems, no further redemption is
allowed (Sec. 29).
NOTE: There is no extension or interruption
of redemption period.
Redemption Price
(1) By the Judgment Debtor or First
Redemptioner:
(a) Purchase PRICE
(b) 1% INTEREST thereon up to time of
redemption
(c) Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as
interest on such last named amount
at the same rate
(d) If purchaser is also a creditor having
a PRIOR LIEN to that of
redemptioner, other than the
judgment under which such purchase
was made, the AMOUNT of such
OTHER LIEN, also with interest

If the lien of the creditor is prior to the


judgment under which the property was sold:
(1) He is not a redemptioner
(2) He cannot redeem since his interests in
his lien are fully protected. Any purchaser
at a public auction takes the same
subject to such prior lien which he has to
satisfy

(2) By all Subsequent Redemptioners


(a) AMOUNT paid on last redemption
(b) 2% INTEREST thereon
(c) Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as
interest on such last named amount
at the same rate
(d) Amount of any LIENS held by said
last redemptioner prior to his own,
also with interest

When Redemption Can be Made (Rule 39, Sec.


28)
WHO
WHEN
By
the Within 1 year from date
JUDGMENT
of
registration
of
DEBTOR
certificate of sale
Within 1 year from date
By
FIRST
of
registration
of
REDEMPTIONER
certificate of sale
Within 60 days from
last redemption
BY
ALL
PROVIDED
that
SUBSEQUENT
judgment debtor has
REDEMPTIONERS
not exercised his right of
redemption

If redemption is made by the Judgment


Obligor
(1) No further redemption is allowed
(2) He is restored to his estate [Rule 39, Sec.
29]
When a judgment debtor redeems the
property, what is effected is the elimination
of the lien created by the levy on attachment
or judgment on the registration of mortgage
thereon. Note that he never lost ownership so
there is no recovery of ownership.

In all cases, judgment debtor shall have the


entire 1 year period from date of registration
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If there is no redemption made within


1 year from date of registration of the
certificate of sale
(2) Of Last Redemptioner
If there was redemption, and 60 days
have elapsed and no other
redemption has been made
Notice must have been given, and
the redemption period has elapsed

Payment of redemption price may be made


to the:
(1) Purchaser or redemptioner, or
(2) For him to the officer who made the sale
The person to whom redemption payment is
made must execute and deliver to him a
CERTIFICATE OF REDEMPTION
1. Acknowledged by a notary public or
other officer authorized to take
acknowledgements of conveyances
of real property
2. Filed and recorded in the registry of
deeds of the place which the property
is situated
3. Registrar must note the record on the
margin of the record of the certificate
of sale
4.
Rights Pending Redemption
[Rule 39, Secs. 31 and 32]
Right of Judgment Creditor Pending
Redemption
(1) Apply for injunction to restrain the
commission of waste on the property

Two Documents which the Sheriff Executes in


case of Real Property
(1) CERTIFICATE OF SALE
After auction sale, he will execute in
favor of the purchaser the certificate
of sale under Sec. 25
From registration of said certificate,
the one year redemption period
starts
Certificate of sale after execution sale
is merely a memorial of the fact of
sale and does not operate as
conveyance
(2) DEED OF CONVEYANCE
Issued if after expiration of
redemption period there is no
redemption
Operates to transfer to purchaser
whatever rights the judgment debtor
had in the property
The effect of a final deed of sale
transfers the right as of the time of
the levy

Rights of the Judgment Debtor Pending


Redemption
(1) Remain in possession of the property
(2) Cannot be ejected
(3) Use the property in the same manner it
was previously used
(4) Make necessary repairs to buildings
thereon while he occupies the property
(5) Use it in the ordinary course of husbandry
(Sec. 31); and
(6) Collect rents, earning and income
derived from property until the expiration
of period of redemption

Recovery of Purchase Price if Sale Not


Effective
[Rule 39, Sec. 34]
Purchaser may recover the purchase price
WHEN:
(1) Purchaser or his successor-in-interest
fails to recover possession the property;
or
(2) Evicted due to:
(a) Irregularities in the proceedings
concerning the sale;

Expiration of Redemption Period


[Rule 39, Sec. 33]
Judgment obligor shall have the entire
period of one year from date of registration of
sale to redeem the property.
Entitlement to Conveyance and Possession
(1) Of Purchaser at Auction Sale
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(b) Judgment has been reversed or set


aside;
(c) The property sold was exempt form
execution; or
(d) A third person has vindicated his
claim to the property

REMEDIAL LAW

(2) A judgment obligor may no longer be


examined after the lapse of the five years
within which a judgment may be
enforced by motion. [Umali v. Coquia
(1988)]
Order for payment
Installments
[Rule 39, Sec. 40]

Remedies of the Purchaser


(1) File a motion in the same action or file a
separate action to recover from judgment
creditor the price paid
(2) File a motion for revival of judgment in
his name against judgment debtor; or
(3) Bring an action to recover possession of
property

in

Fixed

Monthly

Upon finding that the earning of the


judgment debtor for his personal services are
more than necessary for the support of his
family, the court may order payment in fixed
monthly installments.
The court may also, upon failure of the
judgment obligor without good excuse to pay
any installment when due, punish him for
indirect contempt.

G. REMEDIES OF JUDGMENT
CREDITOR IF JUDGMENT NOT
SATISFIED
[Rule 39, Secs. 3643]

G.2 EXAMINATION OF OBLIGOR OF


JUDGMENT OBLIGOR

G. 1. EXAMINATION OF JUDGMENT
OBLIGOR

When Available
(1) At any time after return is made, when it
shows that judgment remains unsatisfied
in whole or in part; and
(2) Upon proof to the satisfaction of the
court which issued the writ, that a
natural person or juridical entity has
property of the judgment obligor or is
indebted to him

When Available
At any time after return is made, when it
shows that judgment remains unsatisfied in
whole or in part
Procedure
Judgment Obligee entitled to an order from
the court which rendered the judgment to
appear and be examined concerning his
property and income before the court or a
commissioner assigned by the court.

Procedure
Court may, by an order, require such natural
person, or any officer or member of such
juridical entity, to appear and be examined
before the court or a commissioner
concerning such property or debt.

Attendance may be compelled by order or


subpoena. Failure to obey such order or
subpoena, to answer as a witness, or to
subscribe his deposition may be punished for
contempt. [Rule 39, Sec. 38]

Attendance may be compelled by order or


subpoena. Failure to obey such order or
subpoena, to answer as a witness, or to
subscribe his deposition may be punished for
contempt. [Rule 39, Sec. 38]

Limitations
(1) No judgment obligor shall be required to
appear before a court or commissioner
outside the province or city in which such
obligor resides or is found. [Rule 39, Sec.
36]
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Effect
Service of order shall bind all credits due to
judgment debtor and all money and property
in the possession or control of such person,
from the time of service.

disposition or interference with the property.


[Rule 39, Sec. 41]
If court finds that the judgment obligor has
an interest in real estate in the place where
proceedings are had, and such interest may
be ascertained without controversy, the
receiver may be ordered to sell and convey
such interest in the same manner as in a sale
of real estate upon execution. [Rule 39, Sec.
42]

Note: This is not applicable if there is no issue


concerning the indebtedness of the and there
is no denial of the existence of the deposit
with the bank which is considered a credit in
favor of the depositor against the bank [PCIB
v. CA (year)]

H. EFFECT OF JUDGMENT OR FINAL


ORDERS

When Alleged Obligor Denies Debt or Claims


Property
When such person claims an interest in the
property adverse to the judgment obligor or
denies the debt, the court may issue an order
(1) authorizing the judgment creditor to
institute an action against such person
for the recovery of such interest or debt,
and
(2) forbidding transfer or disposition of such
interest or debt for 120 days.

G.3 OTHER REMEDIES


ORDER
FOR
APPLICATION
PROPERTY OR INCOME

REMEDIAL LAW

Immutability of Judgments
A judgment that has acquired finality
becomes immutable and unalterable, and
may no longer be modified in any respect,
even if the modification is meant to correct
erroneous conclusions of fact and law, and
whether it be made by the court that
rendered it or by the Highest Court of the
land. [PNB v. Spouses Maranon (2013)]
Rationale:
(1) to avoid delay in the administration of
justice, and procedurally to make orderly
the discharge of judicial business
(2) to put an end to judicial controversies at
the risk of occasional errors

OF

Court may order any property of judgment


debtor, or any money due him, nor exempt
from execution, in the hands of either himself
or another person, to be applied to the
satisfaction of judgment. [Rule 39, Sec. 40]

H.1 DUAL ASPECT OF RES JUDICATA


(1) Bar by Former Judgment the

After a writ of execution against property has


been issued, a person indebted to judgment
obligor may pay to the sheriff holding the
writ the amount of his debt, or so much
thereof as may be necessary to satisfy the
judgment. Sheriffs receipt shall be sufficient
discharge for the amount so paid. [Rule 39,
Sec. 39]

judgment or final order is a bar to the


prosecution of ta subsequent action
based on the same claim or cause of
action
o Described by Rule 39, Sec. 47, pars
(a) and (b)
o Also known as Estoppel by Verdict
(2) Conclusiveness of Judgment the
judgment or final order precludes the
relitigation of particular issues or facts on
a different demand or cause of action
o Described by Rule 39, Sec. 47,
paragraph (c)

APPOINTMENT OF RECEIVER
The court may appoint a receiver for the
property of judgment debtor not exempt
from execution, and
may also forbid

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Also known as the Rule of Auter


Action Pendant

BAR BY FORMER
JUDGMENT
Requires identity
of
parties,
subject matter,
and causes of
action
Absolute Bar to:
(a) all matters
directly
adjudged; and
(b) those that
might have been
adjudged
Claim Preclusion

REMEDIAL LAW

otherwise provided by court. [Development


Bank v. CA]

Res Judicata in Judgments in Rem

CONCLUSIVENESS OF
JUDGMENT
There is only identity of
parties and subject
matter
Cause of action are
different

Judgments
order

or

final

Conclusive as to

Against a specific thing

Title of the thing


The
will
or
administration.
However,
the
probate of a will or
Probate of a will or
granting of letters
administration of the
of administration
estate of a deceased
shall only be prima
person
facie evidence of
the death of the
testator
or
intestate;
in respect to the
personal, political, or
Condition, status
legal condition or
or relationship of
status of a particular
the person,
person
or
his
relationship to another

Conclusive
as
to
matters
directly
adjudged and actually
litigated
Issue Preclusion

I. BAR BY FORMER JUDGMENT


The judgment or decree of a court of
competent jurisdiction on the merits
concludes the parties and their privies to the
litigation and constitutes a bar to a new
action or suit involving the same cause of
action either before the same or any other
tribunal. [Machoca v. Cariaga (1989)]

Res Judicata in Judgments in Personam


In other cases, the judgment or final order is,
with respect to the matter directly adjudged
or as to any other matter that could have
been missed in relation thereto, conclusive:
(1) Between the parties and
(2) Their successors in interest, by title
subsequent to the commencement of
the action or special proceeding,
litigating for the same thing and under
the same title and in the same capacity.

Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
General Rule: For res judicata to apply, trial
must be made on the merits of the case.

II. CONCLUSIVENESS OF JUDGMENT


Any right, fact or matter in issue directly
adjudicated or necessarily involved in the
determination of an action before a
competent court in which a judgment or
decree is rendered on the merits is
conclusively settled by the judgment therein
and cannot again be litigated between the
parties and their privies whether or not the
claim or demand, purpose or subject matter

Exception: Section 3, Rule 17 of ROC: If


plaintiff fails to appear at the time of the trial,
or to prosecute his action for an
unreasonable length of time, or to comply
with these rules or any order of the court, the
action may be dismissed upon motion of the
defendant or upon the court's own motion .
This dismissal shall have the effect of an
adjudication upon the merits, unless
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of the two suits is the same. [Machoca v.


Cariaga (1989)]

as
a
precedent in
subsequent
litigation
between
other parties

Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF ISSUES

Stare Decisis - When the SC has laid down a


principle of law applicable to a certain state
of facts, it will adhere to that principle and
apply to it all future cases where the facts are
substantially the same

PUBLIC POLICY PRINCIPLE


A judgment by a foreign court is enforceable
only within its territorial jurisdiction.
A valid judgment rendered by a foreign
tribunal may be recognized insofar as the
immediate parties the underlying cause of
action are concerned so long as it is
convincingly shown that:
(1) There has been an opportunity for a fair
hearing before a court of competent
jurisdiction
(2) Trial upon registered proceedings has
been conducted
(3) There is nothing to indicate either a
prejudice in court and in the system of
laws under which it is sitting or fraud in
procuring the judgment [Philippine
Aluminum v. Fasgi Enterprises (2000)]

Law of the Case - Whatever is once


irrevocably established as the controlling
legal rule or decision between the same
parties in the case continues to be the law of
the case whether correct on general
principles or not, so long as the facts on
which such decision was predicated continue
to be the facts of the case before the court.
As discussed in Ayala Corp. v. Rosa-Diana
Realty, 2000:
Law of the
Case
Operates only
in
the
particular and
single
case
where
the
ruling arises
and is not
carried into
other cases as
a precedent
The
ruling
adhered to in
the particular
case need not
be followed

will, generally,
be followed by
the same court
and
by
all
courts of lower
rank
in
subsequent
cases where the
same
legal
issue is raised

I. ENFORCEMENT AND EFFECT OF


FOREIGN JUDGMENT OR FINAL
ORDERS

H.2 RES JUDICATA, LAW OF THE CASE


AND STARE DECISIS

Res
Judicata
The ruling
in
one
case
is
carried
over
to
another
case
between
the same
parties

REMEDIAL LAW

Stare Decisis

Such limitation on the review of foreign


judgment is adopted in all legal systems to
avoid repetitive litigation on claims and
issues, prevent harassment of the parties and
avoid undue imposition on the courts.
This policy of preclusion rests on principles of
comity, utility and convenience of nations.

Once a point of
law has been
established by
the court, that
point of law

As a generally accepted principle of


international law, it is part of the law of the
Philippines by virtue of the Incorporation
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REMEDIAL LAW

VII.
PROVISIONAL
REMEDIES

Clause [Section 2, Article II of the 1987


Constitution] [Regalado]
Two Ways of Giving Effect to Foreign
Judgment:
(1) An ordinary action to enforce the foreign
judgment may be filed in court; or
(2) It may be pleaded in an Answer or a
Motion to Dismiss.

Nature of Provisional Remedies


Provisional remedies are writs and processes
available during the pendency of the action
which may be resorted to by a litigant for the
preservation or protection of their rights and
interests therein pending rendition, and for
purposes of the ultimate effects, of a final
judgment in the case; also known as ancillary
or auxiliary remedies.

EFFECT OF FOREIGN JUDGMENTS (Rule 39,


Sec. 48)
NATURE
EFFECT
In judgments
against
a Judgment is CONCLUSIVE
specific thing upon the title to the thing
(in rem)
Judgment is PRESUMPTIVE
In judgments
evidence of a right as
against
a
between parties and their
person
(in
successors-in-interest by a
personam)
subsequent title

They are applied to a pending litigation, for


the purpose of securing the judgment or
preserving the status quo, and in some cases
after judgment, for the purpose of preserving
or disposing of the subject matter. [Calo v.
Roldan (1946)]
Orders granting or denying provisional
remedies are merely interlocutory and cannot
be the subject of an appeal. They may
however be challenged before a superior
court through a petition for certiorari under
Rule 65.

In both cases, judgment may be repelled by


evidence of:
(1) Want of jurisdiction
(2) Want of notice
(3) Collusion
(4) Fraud
(5) Clear mistake of law or fact

Kinds of Provisional Remedies


1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)

A foreign judgment is presumed to be valid


and binding in the country from which it
comes, until a contrary showing, on the basis
of a presumption of regularity of proceedings
and the giving of due notice in the foreign
forum.

Note: The enumeration above is not exclusive.


The court may invoke its equity jurisdiction
and order the appropriate reliefs during the
pendency of an action

Before our courts can give the effect of res


judicata to a foreign judgment, it must be
shown that the parties opposed to the
judgment had been given ample opportunity
to do so on grounds under Section 48 of Rule
39 of the Rules of Court. [Roehr v. Rodriguez
(2003)]

Jurisdiction over Provisional Remedies


The court which grants or issues a provisional
remedy is the court which has jurisdiction
over the main action.
Inferior courts may also grant all appropriate
provisional remedies in an action pending

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with it and is within its jurisdiction [Sec. 33 (1),


BP 129]

REMEDIAL LAW

(a) A public officer;


(b) An officer of a corporation;
(c) An attorney, factor, broker, agent, or
clerk, in the course of his
employment as such; or
(d) Any other person in a fiduciary
capacity, or for a willful violation of
duty;

A. PRELIMINARY ATTACHMENT
The provisional remedy in virtue of which a
plaintiff or other party may, at the
commencement of the action or at any time
thereafter, have the property of the adverse
party taken into the custody of the court as
security for the satisfaction of any judgment
that may be recovered. [Davao Light v CA
(1991)]

(3) Action to recover the possession of


property unjustly or fraudulently taken,
detained or converted,
(a) When the property, or any part
thereof, has been concealed,
removed, or disposed of to prevent its
being found or taken by the applicant
or an authorized person;

Purposes
(1) To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
(2) To enable the court to acquire jurisdiction
over the action by the actual or
constructive seizure of the property in
those instances where personal service of
summons on the creditor cannot be
effected. [PCIB v. Alejandro (year)]

Note: The rule makes no distinction


between real and personal property
[Riano]
(4) Action against a party who has been
guilty of a fraud in contracting the debt
or incurring the obligation upon which
the action is brought, OR in the
performance thereof;

A.1 GROUNDS FOR ISSUANCE


[Rule 57, Sec. 1]

Note: The delivery of counterfeit money


or knowingly issuing a bounced check are
considered as grounds under this rule
[Riano]

There are only specific situations where


preliminary attachment may issue. The
grounds are EXCLUSIVE:

(5) Action against a party who:


(a) has removed or disposed of his
property, or is about to do so,
(b) with intent to defraud his creditors

(1) Action for recovery of a specified amount


of money or damages, except moral and
exemplary,
(a) On a cause of action arising from law,
contract, quasi-contract, delict, or
quasi-delict
(b) Against a party who is:
(i) about to depart from the
Philippines
(ii) with intent to defraud his
creditors;

(6) Action against a party who:


(a) Does not reside and is not found in
the Philippines; or
(b) On whom summons may be served
by publication.
Note: The persons on whom summons
may be served by publication are:
(a) Residents defendants whose identity
or whose whereabouts are unknown
[Rule 14, Sec. 14]

(2) Action for money or property, embezzled


or fraudulently misapplied or converted
to his own use by either:
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(b) Resident defendants who are


temporarily out of the country [Rule
14, Sec. 16]

REMEDIAL LAW

(2) May be issued pursuant to a separate


motion for attachment whenever the writ
is not prayed for in the original complaint

Three Stages in the Grant


(1) The court issues the order granting the
application
(2) Writ of attachment issues pursuant to the
order granting the writ
(3) The writ is implemented

A.2 REQUISITES FOR ISSUANCE


(1) The case must be any of those where
preliminary attachment is proper (Sec. 1,
Rule 57)
(2) Applicant must file a motion, whether ex
parte or with notice and hearing
(3) Applicant must file an affidavit showing
the required facts
(4) Applicant must post a bond executed to
adverse party

Note: For the initial two stages, it is not


necessary that jurisdiction over person of
defendant be first obtained. However, once
implementation of writ commences, court
must have acquired jurisdiction over the
defendant for without such jurisdiction, the
court has no power or authority to act

A writ of preliminary attachment is too harsh


a provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules
require that for the writ to issue, there must
be a recitation of clear and concrete factual
circumstances manifesting that the debtor
practiced fraud upon the creditor at the time
of the execution of their agreement in that
said debtor had a preconceived plan or
intention not to pay the creditor. [Equitable v.
Special Steel (2012)]

Issuance of the Order


(1) The order may be issued either:
(a) Ex parte (service of summons to
defendant required)
(b) Or upon motion with notice and
hearing
(2) The order is issued by the court in which
the action is pending or the CA, or the SC
Contents of the Order
(1) It must require the sheriff to attach so
much of the property of the party against
whom it is issued as may be sufficient to
satisfy applicants demand
(a) Property must be within the
Philippines
(b) And it must not be exempt from
execution

A.3 ISSUANCE AND CONTENTS OF


ORDER OF ATTACHMENT
When Applied For
A preliminary attachment may be applied for
(1) At the commencement of the action; or
(2) At any time before the entry of judgment.
Who may apply
It may be applied for by the plaintiff or any
proper party (including a defendant who filed
a counterclaim, cross-claim, or a third party
complaint).

(2) It shall contain an amount for the


attachment bond:
(a) The amount sufficient to satisfy the
applicants demand, or
(b) The value of the property to be
attached as stated by applicant

Methods
to
Procure
Preliminary
Attachment
(1) Writ may be prayed for in the complaint
itself
providing
the
allegations
warranting its issuance

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A.3 AFFIDAVIT AND BOND

not be implemented until jurisdiction over


the person is acquired by service of summons.
Otherwise, the implementation is null and
void. [Riano]

[Rule 57, Sec. 3 and 4]


For the writ to issue, the applicant must
submit an affidavit and post bond. The
affidavit and bond required must be duly
filed with the clerk before order issues

Exceptions to Contemporaneous Service of


Summons: [Rule 57, Sec. 5]
(1) Summons could not be served personally
or by substituted service despite diligent
efforts, or
(2) Defendant is a resident of the Philippines
temporarily absent therefrom, or
(3) Defendant is a non-resident, or
(4) The action is in rem or quasi in rem.

Contents of the Affidavit


The affidavit must establish that:
(1) A sufficient cause of action exists;
(2) The case is one of those mentioned in Sec.
1 (Grounds for Issuance);
(3) There is no other sufficient security for
the claim sought to be enforced by
action; and
(4) The amount due to applicant or
possession of which he is entitled to
recover is as much as the sum for which
the order is granted above all legal
counterclaims

A.5
MANNER
PROPERTY

ATTACHING

The sheriff enforcing the writ shall attach


only so much of the property in the
Philippines of the adverse party not exempt
from execution as may be sufficient to satisfy
the applicants demand, unless
(1) Party against whom writ is issued makes
a deposit with the court from which the
writ is issued, or
(2) He gives a counter-bond executed to the
applicant

(2) Conditioned that, if the court shall finally


adjudge that applicant was not entitled
to the writ, the bond will pay:
(a) All costs which may be adjudged to
adverse party and
(b) All damages which he may sustain by
reason of attachment

Attachment of specific kinds of property


[Rule 57, Sec. 7]
(1) Real property, or growing crops thereon,
or any interest therein
(a) File with the Registry of Deeds:
(i) A copy of the order together with
a description of the property; and
(ii) A notice that the property is
attached
(b) The registrar of deeds must index
attachments in the names of the
applicant, adverse party, or person by
whom the property is held or in
whose name it stands in the records
(c) If attachment is not claimed on the
entire area of land, description
sufficiently accurate for identification

The bond shall only be applied to all


damages sustained due to the attachment. It
cannot answer for those that do not arise by
reason of the attachment [Riano].

PRIOR
SERVICE

OF

[Rule 57, Sec. 5]

Applicants Bond
The party applying for the order must give a
bond executed to the adverse party
(1) Amount is fixed by the court in its order
granting the issuance of the writ

A.4
RULE
ON
CONTEMPORANEOUS
SUMMONS

REMEDIAL LAW

OR
OF

General Rule: A writ of attachment may be


issued ex parte even before the summons is
served upon the defendant but a writ may
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of such shall be included in the


registration

REMEDIAL LAW

Attachment of property in custodia legis


These may be attached by:
(1) Filing a copy of the writ of attachment
with the proper court or quasi-judicial
agency
(2) Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec.
7]

(2) Personal property capable of manual


delivery
(a) Sheriff Issues a corresponding receipt
therefor
(b) Sheriff takes it and safely keeps it in
his custody
(3) Stocks or Shares, or an Interest therein,
of any corporation or company
(a) Leave a copy of the writ and a notice
stating that these properties are
attached in pursuance of such writ
(b) Leave these documents with the
president, or managing agent thereof

A previously attached property may also be


subsequently attached. But the first
attachment shall have priority over
subsequent attachments. [Riano]

A.6 PROCEEDINGS WHERE ATTACHED


PROPERTY IS CLAIMED BY THIRD
PERSON

(4) Debts, credits, bank deposits, financial


interest, royalties, commissions and
other personal property not capable of
manual delivery
(a) Leave a copy of the writ and a notice
that the debts owing, credits, and
other personal property are attached
in pursuance of such writ
(b) Leave these documents with:
(i) The person owing such debts, or
(ii) Having in his possession or under
his control, such credits or other
personal property, or
(iii) With his agent

A third person who has a claim to the


property attached may avail of the following
remedies:
(1) File terceria or third-party claim (Rule 57,
Sec. 14)
o A third-party claim may be filed with
the sheriff while he has possession of
the properties levied upon, this being
the only time fixed for the purpose
o The claimant makes an affidavit of
his title or right to possession, stating
the grounds of such right or title. The
affidavit must be served upon the
sheriff
o Substantial identical procedure as in
terceria in Rule 39, Sec. 16

(5) The interest of the party against whom


attachment is issued in property
belonging to the estate of decedent,
whether as heir, legatee, or devisee
(a) By service of a copy of the writ, and
notice that said interest is attached
(b) Service is made to:
(i) The executor, or administrator, or
(ii) Other personal representative of
the decedent
(c) Copy of the writ and notice:
(i) Shall be filed with the clerk in
which said estate is being settled,
and
(ii) Served upon the heir, legatee, or
devisee concerned

(2) File independent


property; or

action

to recover

(3) File motion for intervention


o Available only before judgment is
rendered

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Effect of Dissolution on Plaintiffs


Attachment Bond
(1) Dissolution of preliminary attachment
upon security given, or a showing if its
irregular issuance, does not operate to
discharge the sureties on the attachment
bond
(2) That bond is executed to adverse party
conditioned that the applicant will pay
all the costs which may be adjudged to
adverse party and all damages which he
may sustain by reason of the attachment,
if the court shall finally adjudge that
applicant was not entitled thereto (Sec.
4)
(3) Until that determination is made, as to
applicants entitlement to attachment,
his bond must stand and cannot be
withdrawn

A.7 DISCHARGE OF ATTACHMENT AND


COUNTER-BOND
After a writ of attachment has been enforced,
the party whose property has been attached,
or the person appearing on his behalf, may
move for the discharge of the attachment
wholly or in part on the security given.

Ways of Discharging Attachment


(1) Counterbond under Sec. 12
(2) Motion for Discharge under Sec. 13
Grounds for Discharge
(1) Debtor has posted a counterbond or has
made the requisite cash deposit (Sec. 12)
(2) Attachment was improperly or irregularly
issued (Sec. 13)
(a) As where there was no ground for
attachment, or
(b) The affidavit and/or bond filed are
defective or insufficient (Sec. 3)
(3) Judgment is rendered against attaching
creditor (Sec. 19)
(4) Attachment is excessive, but the
discharge shall be limited to the excess
(Sec. 13)
(5) Property attached is exempt from
execution

A.8 SATISFACTION OF JUDGMENT OUT


OF PROPERTY ATTACHED
[Rule 57, Sec. 15]

Procedure
(1) Pay to judgment obligee the proceeds of
sale of perishable property
(2) If there is any balance that remains due,
sell property as may be necessary to
satisfy the balance if enough remains in
the sheriff or those of the clerk
(3) Collection of property of garnishee and
proceeds paid to judgment oblige
without need of prior permission to file
action but may be enforced in the same
action
(4) Return must be made within 10 days
from receipt of writ

Note: There is a difference between the bond


for issuance of writ and bond for lifting the
writ
(1) Bond for issuance of writ (Sec. 4) This is
for damages by reason of the issuance of
the writ
(2) Bond for lifting of writ (Sec. 5 and 12)
This is to secure the payment of the
judgment to be recovered
Only the defendant or party whose property
is attached may move for its lifting. If the
attachment is proper, the discharge should
be by counterbond under Sec. 12 (KO Glass v.
Valenzuela)

B. PRELIMINARY INJUNCTION
B.1 DEFINITIONS AND DIFFERENCES
Injunction is a judicial writ, process, or
proceeding whereby a party is ordered to do
or refrain from doing a particular act

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Preliminary Injunction is an ancillary or


preventive remedy where a court requires a
person, a party or even a court or tribunal
either to refrain from (prohibitory), or to
perform (mandatory), particular acts during
the pendency of an action. It is only a
temporary remedy.
Injunction as Main
Action

REMEDIAL LAW

essential, but the affected party neither


sought such relief nor did the allegations in
his pleading sufficiently make out a case for a
temporary restraining order.
It does NOT direct the doing or undoing of
acts but is an order to maintain the last,
actual, peaceable and uncontested state of
things which preceded the controversy.

Preliminary Injunction

Ancillary; exists only as


part or incident of an
independent action or
proceeding
Seeks a judgment Seeks to preserve the
embodying a final status quo until the
injunction
merits can be heard
Assailed by timely Assailed by petition for
appeal
certiorari

B.2 REQUISITES

Independent
Action

(1) There must be a verified application


(2) The applicant must establish:
(a) The existence of a clear and
unmistakable right that must be
protected;
(b) A material and substantial invasion
of such right; and
(c) An urgent and paramount necessity
for the writ to prevent serious
damage
(3) The applicant must post a bond, unless
otherwise exempted by the court
(4) As to a writ of preliminary injunction,
there must be notice and hearing

Purpose
To prevent future injury and maintain the
status quo (i.e. the last actual, peaceable,
uncontested status which preceded the
pending controversy) for [Knecht v. CA,
(1993)]
The injunction should not establish new
relations between the parties but merely reestablish the pre-existing relationship
between them.

B.3 KINDS OF INJUNCTION


(1) Preliminary Preventive Injunction
Prohibits the performance of a particular
act or acts
(2) Preliminary Mandatory Injunction
Requires the performance of a particular
act or acts. This is an extreme remedy
which will be granted only on showing
that:
(a) The invasion of the right is material
and substantial
(b) Right of complainant is clear and
unmistakable
(c) There is an urgent and paramount
necessity
PRELIMINARY
PRELIMINARY
PROHIBITORY
MANDATORY
INJUNCTION
INJUNCTION
Purpose
is
to
prevent a person Purpose is to require
from
the a person to perform
performance of a a particular act
particular act

Temporary Restraining Order


A TRO is issued in order to preserve the
status quo until the hearing of the
application for preliminary injunction.
[Bacolod City Water v. Labayen (2004)]
An application for a TRO shall be acted upon
only after all parties are heard in a summary
hearing, which shall be conducted within 24
hours after the sheriff's return of service
and/or the records are received by the
branch selected by raffle. [Rule 58, Sec.4]

Status Quo Order


A status quo order is in the nature of a cease
and desist order. It is resorted to when the
projected proceedings in the case made the
conservation of the status quo desirable or
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B.4 ISSUANCE OF WRIT


When: It may be issued at any stage prior to
the judgment or final order

The act has already


The act had not yet been performed and
been performed
this act has violated
the rights of another
Status
Quo
is Status
Quo
is
preserved
restored

By Whom: It may be granted by the court


where the action or proceeding is pending. If
the action or proceeding is pending in the
Court of Appeals or in the Supreme Court, it
may be issued by said court or any member
thereof. [Rule 58, Sec. 2]

When preventive injunction does not lie;


examples:
(1) To restrain collection of taxes [Valley
Trading v. CA](1989), except where there
are special circumstances that bear the
existence of irreparable injury. [Churchill
& Tait v. Rafferty (1915)]
(2) To restrain the sale of conjugal
properties where the claim can be
annotated on the title as a lien, such as
the husbands obligation to give support.
[Saavedra v. Estrada (1931)]
(3) To restrain a mayor proclaimed as duly
elected from assuming his office. [Cereno
v. Dictado (1988)]
(4) To restrain registered owners of the
property from selling, disposing and
encumbering their property just because
the respondents had executed Deeds of
Assignment in favor of petitioner. [Tayag
v. Lacson (2004)]
(5) Against consummated acts. [PNB v. Adi
(1982); Rivera v. Florendo (1986); Ramos,
Sr. v. CA (1989)]

B.5 GROUNDS FOR ISSUANCE OF


PRELIMINARY INJUNCTION
[Rule 58, Sec. 3]
Preliminary injunction may be granted when
it is established:
(1) That applicant is entitled to the relief
demanded, which consists in whole or in
part in restraining commission or
continuance of an act, or in requiring the
performance of an act, either for a
limited time or perpetually;
(2) That commission, continuance, or nonperformance of the act complained of
during the litigation would probably work
injustice to applicant; or
(3) That a party, court, agency or a person is
doing, threatening, or is attempting to do,
or is procuring or suffering to be done,
some act or acts probably in violation of
the rights of the applicant respecting the
subject of the action or proceeding, and
tending to render the judgment
ineffectual

When mandatory injunction does not lie;


examples
(1) To compel cohabitation [Arroyo v.
Vasquez (1921)]
(2) Cancellation of attachment [Levy
Hermanos v. Lacson (1940)]
(3) Release imported goods pending hearing
before the Commissioner of Customs.
[Commissioner of Customs v. Cloribel
(1967)]
(4) To take property out of the possession or
control of one party and place it into that
of another whose title has not clearly
been established [Pio v. Marcos (1974)]

B.6 GROUNDS FOR OBJECTION, OR


MOTION FOR DISSOLUTION
[Rule 58, Sec. 6]
The application for injunction or restraining
order may be denied:
(1) Upon a showing of its insufficiency.
o Application is not verified
o Application is not supported by the
grounds in Sec. 3
o Application does not show facts
entitling the applicant to the relief
demanded
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Procedure for Issuance of TRO


(1) If it appears that great or irreparable
injury would result to the applicant
before the matter can be heard on notice:
(a) Summary hearing on the application
of the TRO within 24 hours after
sheriffs return of service and/or
records are received by the branch
selected by raffle
(b) The court may issue a TRO effective
for 20 days from service on the party
sought to be enjoined

o Application is not supported by the


required bond
(2) On other grounds upon affidavits of the
party enjoined, which may be opposed by
the applicant also by affidavits
(3) If it appears after hearing that, although
applicant is entitled to injunction or TRO,
the issuance or continuance thereof,
would cause irreparable damage to party
enjoined while applicant can be fully
compensated for such damages as he
may suffer. In this case, the party
enjoined shall file a bond
o Amount: Fixed by Court
o Undertaking That he will pay all
damages which the applicant may
suffer by denial or dissolution of the
injunction or TRO

Within the 20 day period:


o The applicant must show cause why
injunction should not be granted
o The court will determine WON the
preliminary injunction shall be
granted. If granted, the court will
issue the corresponding order

If it appears that the extent of the preliminary


injunction or restraining order granted is too
great, it may be modified.

(2) If the matter is of extreme urgency and


the applicant will suffer grave injustice
and irreparable injury
(a) A TRO may be issued ex parte (after
raffling of case) ordered by the
Executive judge of a multiple sala
court or the presiding judge of a
single-sala court
(b) Effective for 72 hours from issuance
(i) The applicant must then
immediately comply with Sec. 4
as to service of summons and
documents
(ii) The Executive Judge shall then
summon the parties to a
conference and raffle the case in
their presence

B.7 TEMPORARY RESTRAINING ORDER


General Rule: Before preliminary injunction
may be granted, there must be prior notice to
person sought to be enjoined and there must
be a hearing
Procedure: When an application for a writ of
preliminary injunction or TRO is included in a
complaint or initiatory pleading, the case, if
filed in a multiple-sala, shall proceed as
follows:
(1) Verified complaint and bond is filed
(2) Determine if there is great or irreparable
injury or extreme urgency, which
warrants the issuance of a TRO
o If yes, go to Procedure for Issuance of
TRO
(3) In both cases, Notice shall then be served
to the party sought to be enjoined. There
must be prior and contemporaneous
service of summons (exceptions also
apply)

Within the 72-hr period


o The Presiding Judge before whom
the case is pending shall conduct a
summary hearing to determine
whether the TRO shall be extended
until application for preliminary
injunction can be heard
o In no case shall the total period of
effectivity of the TRO exceed 20 days,
including the original 72 hours
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Effectivity of TRO
o Effectivity is not extendible. No court
shall have authority to extend or renew
the same on the ground for which it was
issued
o If issued by the CA effective for 60
days from service
o If issued by SC effective until further
orders
TRO ISSUED BY
EXECUTIVE JUDGE
(MULTI-SALA) OR
ORDINARY JUDGE
(SINGLE-SALA)
Matter is of extreme
urgency and that
grave injustice and
irreparable
injury
will arise unless
immediately issued

REMEDIAL LAW

(2) Bidding or awarding of contract/ project


of the national government as defined
under Section 2 hereof;
(3) Commencement prosecution, execution,
implementation, operation of any such
contract or project;
(4) Termination or rescission of any such
contract/project; and
(5) The undertaking or authorization of any
other lawful activity necessary for such
contract/project.

TRO ISSUED BY
ORDINARY JUDGE

This prohibition shall apply in all cases,


disputes or controversies instituted by a
private party, including but not limited to
cases filed by bidders or those claiming to
have rights through such bidders involving
such contract/project.

If it appears that
great or irreparable
injury would result

This prohibition shall not apply when the


matter is of extreme urgency involving a
constitutional issue, such that unless a
temporary restraining order is issued, grave
injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to
be fixed by the court, which bond shall
accrue in favor of the government if the court
should finally decide that the applicant was
not entitled to the relief sought.

A summary hearing
May be issued ex
must be done before
parte
issuance
Good for 20 days
Good for 72 hours
including first 72
hours
Issued
before
Issued after raffling
raffling
Issued
after
Issued ex parte
summary hearing
Upon the expiration of the non-extendible
period, the TRO is automatically terminated.
No judicial declaration necessary.

Any TRO, preliminary injunction, or


preliminary mandatory injunction issued in
violation of Sec. 3 is void and of no force and
effect. [Sec 4]

B.8 IN RELATION TO RA 8975

B.19
RULE
ON
CONTEMPORANEOUS
SUMMONS

Sec. 3, RA 8975: No court, except the


Supreme Court, shall issue any TRO,
preliminary injunction or preliminary
mandatory
injunction
against
the
government, or any of its subdivisions,
officials or any person or entity, whether
public or private acting under the
government direction, to restrain, prohibit or
compel the following acts:
(1) Acquisition, clearance and development
of the right-of-way and/or site or location
of any national government project

PRIOR
SERVICE

OR
OF

When an application for a writ of preliminary


injunction or a temporary restraining order is
included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and
in the presence of the adverse party or the
person to be enjoined. In any event, such
notice
shall
be
preceded,
or
contemporaneously accompanied, by service
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of summons, together with a copy of the


complaint or initiatory pleading and the
applicant's affidavit and bond, upon the
adverse party in the Philippines.

main action, during the pendency of an


appeal or as an aid in the execution of a
judgment when the writ of execution has
been returned unsatisfied.

Exception:
Where the summons could not be served
personally or by substituted service despite
diligent efforts, or the adverse party is a
resident of the Philippines temporarily
absent therefrom or is a nonresident thereof,
the requirement of prior or contemporaneous
service of summons shall not apply. [Rule 58,
Sec.4] The executive judge of a multiple-sala
court or the presiding judge of a single sala
court may issue ex parte a TRO effective for
only 72 hours from issuance if the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury.
However, he shall immediately comply with
the provisions of Rule 38, Sec. 4 as to service
of summons and the documents to be served
therewith. [Rule 38, Sec. 5]

The receivership under Rule 59 is directed to


the property which is the subject of the action
and does not refer to the receivership
authorized under banking laws and other
rules or laws. Rule 59 presupposes that there
is an action and that the property subject of
the action requires its preservation.
Receivership under Rule 59 is ancillary to the
main action. [Riano]

B.10 GRANT OF FINAL INJUNCTION

[Rule 59, Sec. 1]

If after the trial of the action it appears that


the applicant is entitled to have the act or
acts complained of permanently enjoined,
the court shall grant a final injunction
perpetually restraining the party or person
enjoined
from
the
commission
or
continuance of the act or acts or confirming
the preliminary mandatory injunction. (Rule
58, Sec. 9)

(1) When it appears from the verified


application and other proof that the
applicant has an interest in the property
or fund which is the subject of the action
or proceeding, and that such property or
fund is in danger of being lost, removed,
or materially injured unless a receiver be
appointed to administer and preserve it;

The guiding principle is the prevention of


imminent danger to the property. If an action
by its nature, does not require such
protection or preservation, said remedy
cannot be applied for and granted.
(Commodities Storage v. CA, 1997)

C.1 CASES WHEN RECEIVER MAY BE


APPOINTED

Receiver A person appointed by the court


in behalf of all the parties to the action for
the purpose of preserving and conserving the
property in litigation and prevent its possible
destruction or dissipation if it were left in the
possession of any of the parties.

(2) When it appears in an action by the


mortgagee for the foreclosure of a
mortgage that the property is in danger
of being wasted or dissipated or
materially injured, and that its value is
probably insufficient to discharge the
mortgage debt, or that the parties have
so stipulated in the contract of mortgage;

Purpose
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights
of the parties during the pendency of the

(3) After judgment, to preserve the property


during the pendency of an appeal, or to
dispose of it according to the judgment,
or to aid execution when the execution

C. RECEIVERSHIP

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C.2 REQUISITES;
BEFORE ISSUANCE
Procedure

has been returned unsatisfied or the


judgment obligor refuses to apply his
property in satisfaction of the judgment,
or otherwise to carry the judgment into
effect;

REMEDIAL LAW

REQUIREMENTS

(1) Verified application filed by the party


requesting for the appointment of the
receiver;
(2) Applicant must have an interest in the
property or funds subject of the action;
(3) Applicant must show that the property or
funds is in danger of being lost, wasted,
or dissipated;
(4) Application must be with notice and
must be set for hearing;
(5) Before appointing a receiver, the court
shall require applicant to post a bond in
favor of the adverse party.
(6) Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully and shall file a bond.

(4) Whenever in other cases it appears that


the appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation.

Specific Cases
(1) If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
spouse may petition the court for
receivership. [Family Code, Article 101]
(2) The court may appoint a receiver of the
property of the judgment obligor; and it
may also forbid a transfer or other
disposition of, or any interference with,
the property of the judgment obligor not
exempt from execution. [Rule 39, Sec. 41]
(3) After the perfection of an appeal, the trial
court retains jurisdiction to appoint a
receiver of the property under litigation
since this matter does not touch upon the
subject of the appeal. [Rule 41, Sec. 9;
Acua v. Caluag (1957)]
(4) After final judgment, a receiver may be
appointed as an aid to the execution of
judgment. [Philippine Trust Company v.
Santamaria (1929)]
(5) Appointment of a receiver over the
property in custodia legis may be allowed
when it is justified by special
circumstances, as when it is reasonably
necessary to secure and protect the
rights of the real owner. [Dolar v.
Sundiam (1971)]

Who Appoints Receiver


(1) Court where the action is pending
(2) CA
(3) SC
(4) During the pendency of an appeal, the
appellate court may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin.
[Rule 59, Sec. 1]
Receivership may be denied or lifted
(1) If the appointment was sought or
granted without sufficient cause (Sec. 3)
(2) Adverse party files a sufficient bond to
answer for damages (Sec. 3)
(3) Bond posted by applicant for grant of
receivership is insufficient (Sec. 5)
(4) Bond of the receiver is insufficient (Sec.
5)

C.3 THE RECEIVER


Who May Be Appointed
The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas,
1963)
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C.4 TWO KINDS OF BOND


Applicants Bond

A clerk of court should not be appointed as a


receiver as he is already burdened with his
official duties. (Arigo v. Kayanan, 1983)

Applicant must file a bond executed to the


party against whom the application is
presented
o Amount: to be fixed by the court
o Undertaking: applicant will pay such party
all damages he may sustain by reason of
the appointment, in case the applicant
shall have procured such without
sufficient cause

Powers of a Receiver
(1) Bring and defend in such capacity actions
in his own name with leave of court
(2) Take and keep possession of the property
in controversy
(3) Receive rents
(4) Collect debts due to himself as receiver
or to the fund, property, estate, person,
or corporation of which he is the receiver
(5) Compound for and compromise the same
(6) Make transfers
(7) Pay outstanding debts
(8) Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
(9) Generally, to do such acts respecting the
property as the court may authorize
(10) Invest funds in his hands, only by order of
the court upon the written consent of all
the parties. [Rule 59, Sec. 6]

The court may require additional bond after


appointment in the exercise of its discretion
as further security for such damages (Rule 59,
Sec. 2)

Receivers Bond
As a precondition before entering into his
duties, receiver must file a bond.
o Executed to the person against whom the
application is presented
o Amount: in such sum as the court may
direct.
o Undertaking: To the effect that he will
faithfully discharge his duties and obey
the orders of the court (Rule 59, Sec. 4)

Liability for refusal or neglect to deliver


property to receiver
(1) May be punished for contempt; and
(2) Shall be liable to the receiver for the
money or the value of the property and
other things so refused or neglected to
be surrendered together with all
damages that may have been sustained
by the party or parties entitled thereto as
a consequence of such refusal or neglect.
[Rule 59, Sec. 7]

DAMAGES
DAMAGES ARISING
RESULTING FROM AFTER
APPOINTMENT
APPOINTMENT
Damages
which
arise
due
to
Damages resulting
receivers
from appointment
negligence
or
mismanagement
The right rests on
The right is statutory general principles of
law
The damages may
Liability rests on the
be caused before the
mismanagement or
receiver qualifies or
negligence
of
takes possession of
receiver
the property
The applicants bond The receivers bond
is responsible
is responsible

Remedies Against the Receiver


(1) No action against receiver can be
maintained without leave of court
(2) An aggrieved party may:
(a) Take the matter into the court which
appointed the receiver and ask either
for an accounting or take some other
proceeding, and ask for consequent
judgment on the acts complained of; or
(b) Ask for leave of court to bring him an
action directly
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C.5 TERMINATION

REPLEVIN

Ground: The necessity for a receiver no


longer exists

The purpose is to
recover personal
property capable
of manual delivery
from
the
defendant

Procedure
(1) The court shall determine that the
necessity for a receiver no longer exists
o Motu proprio, or on motion of either
party
(2) Due notice shall be given to all interested
parties
(3) A hearing shall be conducted
(4) The court shall then settle the accounts
of the receiver
(5) The court directs delivery of the funds
and other property in his possession to
the person adjudged to be entitled to
receive them
(6) The court will then order the discharge of
the receiver

The
property
either belongs to
the plaintiff or one
over which the
plaintiff has a
right of possession
May be sought
only when the
principal action is
for the recovery of
personal property
Can be sought
only
when
defendant is in
actual
or
constructive
possession of the
property
Cannot be availed
of when property
is in custodia legis

Effect
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver
entitled
to
reasonable
compensation to be taxed as costs
against defeated party

REMEDIAL LAW
PRELIMINARY
ATTACHMENT
The purpose is to have
the property put in the
custody of the court to
secure the satisfaction
of the judgment that
may be rendered in
favor of the plaintiff at
some future time
The property does not
belong to the plaintiff
but to the defendant
Available
even
if
recovery of property is
only incidental to the
relief sought
May be resorted to even
if
property
is
in
possession of a third
person

Can be availed of even


if property is in custodia
legis
Available
from
Available before
commencement
but
defendant
before
entry
of
answers
judgment
Bond is double the
Bond is fixed by the
value
of
the
court
property
Extends only to
Extends to all kinds of
personal property
property whether real,
capable of manual
personal, or incorporeal
delivery
Attachment to recover
Available
to possession of personal
recover personal property
unjustly
property even if detained presupposes
the same is not that the same is being
being concealed, concealed, removed, or
removed,
or disposed of to prevent
disposed of
its being found or taken
by the applicant

D. REPLEVIN
Replevin is the provisional remedy seeking
for the possession of the property prior to the
determination of the main action for replevin.
Replevin may also be a main action with the
ultimate goal of recovering personal property
capable of manual delivery wrongfully
detained by a person. In this sense, it is a suit
in itself

Note: There can be no replevin and


preliminary attachment in the same case
because the purposes are different.
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(1) In Rule 57, it is for security


(2) In Rule 60, it is for recovery of possession

(2)
(3)
(4)
(5)

D.1 WHEN WRIT MAY BE ISSUED


The provisional remedy of replevin is
available where the principal purpose of the
action is to recover the possession of
personal property.

When Applied For


A writ of replevin must be applied for:
(1) At the commencement of the action, or
(2) At any time before defendant files his
answer

REMEDIAL LAW

Application must contain an affidavit


Applicant must file a bond
Approval of the bond by the court
Court shall then issue an order and the
writ of replevin:
(a) It must describe the personal
property alleged to be wrongfully
detained
(b) Requiring the sheriff to take such
property into his custody

NOTE: The writ of replevin may be served


anywhere in the Philippines.

Note: There can be no replevin before the


appellate courts

D.3
AFFIDAVIT
REDELIVERY BOND

AND

BOND;

Who May Avail


(1) Plaintiff where the complaint prays for
recovery of possession of personal
property
(2) Defendant where a counterclaim was
set out in the answer for recovery of
personal property

Contents of the Affidavit


The affidavit shall:
(1) Particularly describe the property

It is available to any other party asserting


affirmative allegations praying for the
recovery of personal property unjustly
detained.

(3) State that the property is wrongfully


detained by adverse party, allege the
cause of detention according to his best
knowledge, information, belief

D.2 REQUISITES

(4) State either


(a) That the property has not been :
(i) Distrained,
(ii) Taken for a tax assessment,
(iii) Taken as a fine pursuant to law,
(iv) Seized under a writ of execution
or preliminary attachment, or
(v) otherwise under custodia legis
(b) That, if the property is so taken, it is
exempt from such seizure or custody.

(2) State that the applicant is:


(a) the owner of the property claimed; or
(b) entitled to possession

(1) Applicant is owner of the property


claimed or is entitled to possession
(2) Property is wrongfully detained by the
adverse party
(3) Property is not distrained or taken for tax
assessment or fine pursuant to law, or
seized (if seized, that the property is
exempt)
(4) Principal purpose of the action is to
recover possession of personal property

(5) State the actual value of the property


subject of replevin and not just its
probable value.

Procedure
[Rule 60, Sec. 2 and 3]
(1) An application is filed at the
commencement of the action or at any
time before answer of defendant

Applicants Bond
(1) Executed to the adverse party
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(2) Amount is DOUBLE the value of the


property stated in the affidavit
(3) Conditions of the Bond:
(a) The return to of property to adverse
party, if such return be adjudged, and
(b) The payment to adverse party of such
sum as he may recover from the
applicant in the action

(3) After taking possession:


(a) Keep the property in a secure place
(b) He shall be responsible for delivery to
party entitled
Unlike a preliminary attachment and
preliminary injunction, the rule on prior or
contemporaneous jurisdiction is not provided
for in replevin.

Return of Property [Sec. 5]


If the adverse party does not object to the
sufficiency of the bond, he may require the
return of the property
When: At any time before delivery to
applicant
How: By filing a redelivery bond

However, the rule requires that upon such


order, the sheriff must serve a copy on the
adverse party together with the required
documents.
A sheriffs prerogative does not give him the
liberty to determine who among the parties is
entitled to possession.

Redelivery Bond
This is executed to the applicant and filed
where the action is pending
o Amount: double the value of the property
as stated in the affidavit of the applicant
o Undertaking:
(a) The delivery thereof to the applicant,
if such delivery be adjudged, and
(b) The payment of such sum to him as
may be recovered against the
adverse party

D.4
SHERIFFS
IMPLEMENTATION

DUTY

REMEDIAL LAW

When a writ is placed in the hands of a sheriff,


it is his duty to proceed with reasonable
celerity and promptness to execute it
according to its mandate.

Disposition of Property by Sheriff


The sheriff shall retain the property for 5
days. Within such period, the adverse party:
(1) May object to the sufficiency of the
applicants bond or surety; or
(2) May file a redelivery bond, if he does not
object to the sufficiency of the bond

IN

Duties of the Sheriff (Rule 60, Sec. 4)


(1) Serve a copy of the order, together with
the copies of the application, the affidavit,
and bond to the adverse party

The adverse party is entitled to the return of


the property taken under writ of replevin, if:
(1) He seasonably posts a redelivery bond
(2) The applicants bond is found to be
insufficient or defective and is not
replaced with a proper bond
(3) The property is not delivered to the
plaintiff for any reason

(2) Take the property:


(a) If it be in the possession of the
adverse party or his agent Take the
property into custody
(b) If property is concealed in a building
or enclosure:
(i) Demand delivery of the property
(ii) If not delivered, cause the
building or enclosure to be
broken open and then take the
property into possession

D.5 WHEN PROPERTY CLAIMED BY


THIRD PARTY
Procedure
Third party claiming the property must:
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(1) Make an affidavit of his title to the


property, stating his grounds;
(2) Serve such affidavit upon the sheriff
while the latter has possession of the
property; and
(3) Serve a copy upon the applicant.

Effect
The sheriff shall not be bound to keep
property under replevin or deliver property to
the applicant, unless the applicant files a
bond approved by the court to indemnify the
third person, in an amount not less than the
value stated in the affidavit of the applicant.
No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action is filed
within 120 days from filing of the bond.

Note: The procedure in Rule 60, Sec. 7 is


similar to that in third-party claims in
execution (Sec. 16, Rule 39) and in
attachment (Sec. 14, Rule 57).
Difference in Service of Affidavits:
o Sec. 14, Rule 57 affidavit is served upon
the sheriff while he has possession of the
attached property
o Sec. 7, Rule 60 affidavit is served within
5 days in which sheriff has possession (in
connection with Sec. 6)

D.6 JUDGMENT
[Rule 60, Sec. 9]
After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall
render judgment in the alternative for the
delivery thereof to the party entitled to the
same, or for its value in case delivery cannot
be made, and also for such damages as
either party may prove, with costs.

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REMEDIAL LAW

A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

PURPOSE

SUBJECT
MATTER

Preliminary Attachment
To have the property of adverse
party attached as security for
satisfaction of judgment that
may be recovered in cases
falling under Sec. 1, Rule 57
To enable the court to acquire
jurisdiction over the action by
the actual or constructive
seizure of the property in those
instances
where
personal
service of summons on creditor
cannot be effected

Preliminary Injunction

Personal or real property

Particular act/s

Receivership

Replevin

To require a party or a court, agency, or a


person to reframe from doing a To place the property
particular act/s
subject of an auction or
proceeding under the
control of a third party To recover possession of
for its preservation and personal property
administration pendente
Or to require the performance of
lite or as an aid to
particular act/s
execution

Personal or real property

At any time prior to


At the commencement of
satisfaction of judgment
WHEN APPLIED/
action
At any stage prior to final judgment or It may be availed of even
GRANTED
OR `At any time prior to entry final order
after judgment becomes
of judgment
final under Sec. 41, Rule
39
File verified application and applicants File verified application
bond
and applicants bond
HOW
APPLIED File affidavits and applicants If application is included in initiatory Application may also be
FOR
bond
pleading, adverse party should be served included in initiatory
with summons together with a copy of pleading in actions for
initiatory pleading and applicants bond foreclosure of mortgage
Required
EXCEPT:
REQUIREMENT
Not required
Great or irreparable injury would result Required
OF A HEARING
May be issued ex parte
or Extreme urgency and applicant will
suffer grave injustice and irreparable
166

Personal
capable
delivery

of

property
manual

At the commencement of
the action
BUT before the filing of
answer

File
affidavits
applicants bond

and

Not Required
May be issued ex parte

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REMEDIAL LAW

injury (Sec. 5, Rule 58

WHO MAY GRANT

Courts where the action is


pending, the CA or the SC even
if action is pending in lower
court

1. Sufficient cause of action


2. Case is covered by Sec. 1,
Rule 57
3. No other sufficient security
REQUISITES FOR
for the claim exists
GRANTING
4. Amount due to applicant or
APPLICATION
value of property he is
entitled to recover is equal
to the sum which the order
of attachment is granted

Only the court where the action is


pending
Lower court, CA or SC provided action is
pending in the same court which issues
the injunction
Also with the Sandiganbayan and CTA

1.

Applicant is entitled to relief


demanded
2. Act/s complained of would work
injustice to applicant if not enjoined
3. Acts sought to be enjoined probably
violates applicants rights respecting
the subject of the action or
proceeding
4. Threatened injury incapable of
pecuniary estimation

167

Court where action is


pending
The CA or SC even if
action is pending in the
lower court
Appellate court may
allow application for
receivership
to
be
decided by the court of
origin
1. Applicant has interest
in property or fund,
subject matter of
action
2. Property or fund is in
danger of being lost,
or
removed,
or
material injured
3. Appointment is the
most convenient and
feasible means of
preserving,
administering,
disposing of property
in litigation

Only the court


action is pending

1.

were

Applicant is owner of
the property claimed
or is entitled to
possession
2. Property is wrongfully
detained
by
the
adverse party
3. Property
is
not
distrained or taken for
tax assessment or fine
pursuant to law, or
seized (if seized, that
the
property
is
exempt)

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VIII.
SPECIAL
ACTIONS

CIVIL

Initiated by complaint

REMEDIAL LAW
Some initiated by
complaint, some by
petition.

The Special Civil Actions (SCA) under the Rules


of Court
(1) SCAs initiated by complaints:
(a) Interpleader
(b) Foreclosure of Real Estate Mortgage
(c) Forcible Entry and Unlawful Detainer
(d) Partition
(e) Expropriation

A. IN GENERAL
B.

A.1 NATURE
o Special civil actions are civil actions primarily
governed by special rules, and secondarily by
rules for ordinary civil actions. [See Rule I, sec.
3]
o Since a civil action in general is one by which
a party sues another for the enforcement of a
right, or the prevention or redress of a wrong,
a special civil action is generally brought or
filed for the same purpose. [RIANO]

(2) SCAs initiated by petitions:


(a) Declaratory Relief
(b) Review
or
Adjudication
COMELEC/COA Decisions
(c) Certiorari
(d) Prohibition
(e) Mandamus
(f) Quo Warranto
(g) Contempt

A.2 ORDINARY CIVIL ACTIONS V. SPECIAL


CIVIL ACTIONS
A special civil action is governed by the rules of
ordinary civil actions but there are certain rules
that are applicable only to special civil actions.

of

A.3 JURISDICTION AND VENUE


o

ORDINARY
ACTION

CIVIL SPECIAL
CIVIL
ACTION
Also governed by
ordinary rules but
Governed by ordinary
subject to specific
rules
rules
prescribed
[Rule 1, sec. 3]
The concept of cause
Must be based on a
of action in an
cause of action which
ordinary action does
means
that
the
not always fit in a
defendant has violated
special civil action
plaintiffs rights
(e.g. interpleader)
Venue is determined by Venue is generally
either the residences of governed by the
the parties when action general rules on
is personal or by the venue, except as
location of the property otherwise indicated
when the action is real. by special rules.
[Rule 4, secs. 1 and 2]
[REGALADO]

Jurisdiction over special civil actions is


determined by the Constitution (art. VIII,
sec. 5, for the Supreme Court) and statutes
(e.g. B.P. Blg. 129).
Venue is a procedural matter and generally
set by the Rules of Court. Hence, the venue
of civil actions is determined by the general
rules on venue, unless otherwise subject to
special rules for special civil actions (e.g.
quo warranto, see Rule 66, sec. 7).

Jurisdiction of inferior courts


Special civil actions that can be filed in or are
within the jurisdiction of the inferior courts (i.e.
MTC, MeTC, MCTC):
(1) Interpleader -- Provided that amount
involved is within its jurisdiction
(2) Ejectment suits Original and exclusive
(3) Contempt

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Application of hierarchy of courts


In the absence of special reasons, the SC will
decline to exercise original jurisdiction in
certiorari, prohibition, and mandamus since it is
not a trier of facts and, that is a function which
can be better done by the trial courts. The same
rule applies for quo warranto wherein the SC
has concurrent jurisdiction with the RTC.
[REGALADO, citing Fisher v. Yangco Steamship Co.
(1915) and Veraguth v. Isabela Sugar Co. (1932)]

REMEDIAL LAW

INTERPLEADER v. INTERVENTION

B. INTERPLEADER
B.1 NATURE
o A remedy whereby a person who has
property in his possession or has an
obligation to render wholly or partially,
without claiming any right in both, comes to
court and asks that the defendants who have
made conflicting claims upon the same
property or who consider themselves entitled
to demand compliance with the obligation
be required to litigate among themselves in
order to determine who is entitled to the
property or payment or the obligation
[Beltran v. PHHC (1969)]
o The peculiar characteristic of an interpleader
is that there is NO CAUSE OF ACTION on the
part of the plaintiff but only a threat of cause
of action.

INTERPLEADER

INTERVENTION

Original action

Ancillary action, i.e.


there is a pending
action

Plaintiff either has


(a) no interest or (b)
an interest in the
subject
matter
undisputed by the
other parties

Intervenor claims an
interest that is adverse
to at least one of the
existing parties, or will
be adversely affected
by judgment in favor of
either of the existing
parties

Defendants
to
a
Defendants are sued complaint-into be impleaded
intervention are parties
to a pending suit

B.2 REQUISITES FOR INTERPLEADER


(1) The plaintiff clams no interest in the
subject matter or his claim thereto is not
disputed
(2) The parties to be interpleaded must make
effective claims
(3) There must be at least two conflicting
claimants with adverse or conflicting
interests to a property in custody or
possession of the plaintiff; and
(4) The subject matter must be one and the
same. [see Lim v. Continental Devt Corp.
(1976)]

PURPOSES
(1) To compel conflicting claimants to
interplead and litigate their several claims
among themselves. [Rule 62, Sec. 1]
(2) To protect a person against double
vexation in respect of one liability [Beltran,
supra]

N.B.
o Interpleader applies regardless of nature of
subject matter. [Wack Wack Golf & Country
Club v. Lee Won (1976), interpreting RULES OF
COURT (1964), Rule 63, sec. 1, which was
virtually unchanged by the now Rule 62, sec.
1]
o Interpleader cannot be availed of to resolve
the issue of breach of undertakings made by
defendants, which should be resolved in an
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ordinary action for specific performance or


other relief [Beltran, supra].

REMEDIAL LAW
5 days in any event from notice of
denial.

B.3 WHEN TO FILE

(5) From service of Answer, the claimants may


file their Reply serving copies to all parties.
Parties may file counterclaims, crossclaims, third-party complaints, responsive
pleadings

When to File: Within a reasonable time. An


action for interpleader should be filed within a
reasonable time after a dispute has arisen
without waiting to be sued by either of the
contending parties. Otherwise, it may be barred
by laches. [Wack-Wack Golf, supra]

EFFECT OF FAILURE TO ANSWER:


Default.
(a) The claimant may be declared, on
motion, in default
(b) Unlike ordinary default, default in
interpleader allows the court to render
judgment barring him from any claim
in respect to the subject matter

Who Files the Complaint: A complaint for


interpleader is filed by the person against whom
the conflicting claims are made
Jurisdiction and Venue: General rules on
jurisdiction and venue apply as in ordinary civil
actions. Hence, first-level courts have
jurisdiction where the amount is within the limit.
[see Makati Devt Corp. v. Tanjuatco (1969)]

(6) Pre-trial is conducted.


(7) After all pleadings have been fled, the
court shall then determine the respective
rights and adjudicate their several claims
(Sec. 6)

PROCEDURE
(1) A complaint is filed.
(2) Upon filing of complaint, the court issues
an Order (Sec. 2) requiring conflicting
claimants to interplead with one another
(3) Summons shall then be served upon the
conflicting claimants with a copy of the
complaint and the order to interplead (Sec.
3).
(4) Each claimant has a 15-day period to file
any of the following (Sec. 5)
(a) Answer, which must also be served
upon the other conflicting claimants.
(b) Motion to dismiss (Sec. 4). If filed,
period to answer is
o Grounds:
(1) Same as in Rule 16, plus
(2) Impropriety of interpleader
action
o If motion is denied, movant may file
his answer within the remaining
period but it shall not be less than

C. DECLARATORY
SIMILAR REMEDIES

RELIEFS

AND

C.1 Nature
o Subject matter: Deed, will, contract, or
other written instrument, statute, executive
order, or regulation, or ordinance
o Issue is the validity or construction of the
subject matter. This is the only question that
may be raised in declaratory relief. [Atlas
Consolidated Mining & Devt Corp. v. CA
(1990)]
o Relief: Declaration of the petitioners rights
and duties
o Purpose: To relieve the litigants of the
common law rule that no declaration of
rights may be judicially adjudged unless a
right has been violated and for the violation
of which relief may be granted.

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CHARACTERISTICS
o The concept of a cause of action does not
strictly apply to declaratory relief since this
SCA presupposes that there has been no
breach or violation of the instruments
involved. However, a breach or violation must
be impending, imminent, or at least
threatened. [Velarde v. Social Justice Society
(2004)]
o Hence, unlike other judgments, judgment in
an action for declaratory relief does not
essentially entail any execution process.
[REGALADO]

REMEDIAL LAW

WHERE TO FILE
Jurisdiction: Exclusive and original jurisdiction is
with the RTC (BP Blg. 129, sec. 19, i.e. incapable
of pecuniary estimation). SC has no original
jurisdiction over declaratory relief petitions, but
has appellate jurisdiction over them. [Liga ng
mga Barangay National v. City Mayor of Manila
(2004)]
Venue: General rule on venue applies.

C.3 Requisites Of Action For Declaratory


Relief
(1) Subject matter of controversy must be a
deed, will, contract, or other written
instrument, statute, executive order or
regulation, or ordinance. The enumeration
is exclusive. [Vda. de Aviles v. CA (1996)
(2) Actual justiciable controversy or ripening
seeds of one between person whose
interests are adverse
(3) No breach of documents in question
(4) Doubtful as to the terms and validity of the
document and require judicial construction
(5) Issue is ripe for judicial determination, as
where all administrative remedies have
been exhausted
(6) Adequate relief is not available through
other means or other forms of action or
proceeding [REGALADO]

C.2 Who May File The Action


[Rule 63, Sec. 1]
(1) Any person interested under a deed, will,
contract or other written instrument, before
a breach thereof.
(2) Any person whose rights are affected by a
statute, executive order or regulation, or
ordinance, or any other governmental
regulation, before a violation thereof.

PARTIES
(1) All persons who have or claim any interest
which would be affected by the declaration
[Rule 63, Sec. 2]
(2) If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor
General shall be notified. [Rule 63, Sec. 3]
(3) If action involves the validity of a local
government
ordinance,
the
prosecutor/attorney of the LGU involved
shall be notified. [Rule 63, Sec. 4]

C.4 When Court May Refuse To Make


Judicial Declaration
Court has discretion to refuse, motu proprio or
on motion, to grant Declaratory Relief when:
1. The decision will not terminate the
controversy or uncertainty giving rise to
the action; or
2. The declaration or constitution is not
necessary and proper under the
circumstances. (Rule 63, Sec. 5)

Non-joinder of interested persons is not a


jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
otherwise provided by the Rules. [Baguio
Citizens Action v. City Council of Baguio (1983)]

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C.5 Conversion To Ordinary Action

REMEDIAL LAW

D. REVIEW OF JUDGMENTS AND


FINAL ORDERS OR RESOLUTION OF
THE COMELEC AND COA

[Rule 63, Sec. 6]


When proper: If before the final termination of
the case, a breach or violation of the instrument
or status occurs. Then, petition is converted into
an ordinary action.

SCOPE (Rule 64, Sec. 1)


o Applicable only to judgments and final
orders of the COMELEC and COA [Rule 64,
Sec. 1]
o This new rule is based on the provisions of
CONST. art. IX-A, sec. 7, which states that
[u]nless otherwise provided by this
Constitution or by law, any decision, order, or
ruling of each Commission may be brought
to the Supreme Court on certiorari within
thirty days from receipt of a copy thereof.
Hence, judgments/orders of the Civil
Service Commission are now reviewable
by the CA under Rule 43, eliminating
recourse to the SC. [R.A. No. 7902; SC
Revised Administrative Circular No. 1-95]

Effect of Conversion: Parties shall be allowed to


file such pleadings as may be necessary or
proper.
N.B. If there has been breach or violation
BEFORE filing of the petition, declaratory relief
cannot be availed of.

C.6 Proceedings Considered As Similar


Remedies
Actions similar to Declaratory Relief and may be
brought under Rule 63: (may be filed with the
MTC)
(1) Action for reformation (See Art. 13591369 Civil Code)
(2) Action to quiet title or remove cloud (See
Art. 476-481 Civil Code)
(3) Action to consolidate ownership (See Art.
1607 Civil Code)

D.1 APPLICATION OF RULE 65 UNDER


RULE 64
The aggrieved party may bring a judgment or
final order or resolution of the COMELEC and
COA to the SC on certiorari under Rule 65 and
not on appeal by certiorari under Rule 45. [Rule
64, sec. 2]
o Note: The petition should be filed
EXCLUSIVELY with the SC.
o Certiorari is the mode of review. Rule 65 is
followed unless it conflicts with particular
rules under Rule 64.

These remedies are considered similar to


declaratory relief because they also result in the
adjudication of the legal rights of the litigants
often without the need of execution to carry the
judgment into effect. [Malana v. Tappa (2009)]
However distinction must be made between:
(1) Cases similar to declaratory relief, where
the court is BOUND to render judgment;
and
(2) Actions for declaratory relief, where the
court MAY REFUSE to exercise the power
to declare rights and to construe
instruments.

SPECIAL RULES UNDER RULE 64


o Reglementary Period: The petition should
be filed within 30 days from notice of
judgment or final order or resolution
sought to be reviewed. This follows the
express provision of the Constitution, and
is different from Rule 65 which provides
for 60 days.

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o

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REMEDIAL LAW

D.2 DISTINCTION IN THE APPLICATION


OF RULE 65 TO JUDGMENTS OF THE
COMELEC
AND
COA
AND
THE
APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS, AND OFFICERS

Interruption of the 30-day period: Filing of


MFR or MNT, if allowed under the
procedural rules of the Commission, shall
interrupt the 30-day period. If denied,
aggrieved party may file petition within
the remaining period but it shall not be
less than 5 days in any event from notice
of denial. [Rule 64, sec. 3]
Note: The Fresh Period Rule is NOT
applicable. Its application to Rule 65
cannot be automatically extended
because Rule 64, sec. 3 is a special rule.
In the case of COMELEC decisions, the
Court has chosen not to extend it in view
of the Constitutional policy of prompt
resolution of election cases. [Pates v.
COMELEC (2009)]

RULE 64

RULE 65

Directed only to the


judgments,
final
orders or resolutions
of COMELEC and COA

Directed
to
any
tribunal, board, or
officer
exercising
judicial or quasijudicial functions

Filed within 30 days Filed within 60 days


from notice of the from notice of the
judgment
judgment
Fresh period rule does
not apply. Rule 64, Fresh period rule
sec. 3 (supra) is applies
applicable.

PROCEDURE
(1) A verified petition is filed (Sec. 5) with
payment of docket and lawful fees (Sec. 4)
(2) Service of petition to the Commission and
parties concerned (Sec. 5)
(3) SC shall act on the petition:
(a) It may dismiss the petition:
(i) Due to failure to comply with the
form and content requirements in
Sec. 5;
(ii) If SC finds the petition insufficient
in form and substance (Sec. 6);
(iii) If it was filed manifestly for delay
(Sec. 6); or
(iv) Questions
raised
are
too
unsubstantial
to
warrant
proceedings (Sec. 6).
(b) If sufficient in form and substance, the
SC will require the respondents to file
their Comments (Sec. 6) within 10 days
from notice
(4) SC may also require oral argument or
submission of memoranda (Sec. 9)
(5) The case is then submitted for decision
(Sec. 9)

E.
CERTIORARI,
MANDAMUS

PROHIBITION,

E.1 DEFINITIONS AND DISTINCTIONS


Certiorari is a writ emanating from a superior
court directed against an inferior court, tribunal,
or officer exercising judicial or quasi-judicial
functions, the purpose of which is to correct
errors of jurisdictioni.e. without or in excess of
jurisdiction, or with grave abuse of discretion
amounting to the same. [Rule 65, sec. 1]

Prohibition is a writ issued by a superior court


and directed against an inferior court, board,
officer or other person whether exercising
judicial, quasi-judicial, or ministerial functions
for the purpose of preventing or restraining the
latter from usurping jurisdiction with which it is
not legally vested. [See Rule 65, sec. 2]

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Mandamus is a writ issued in the name of the


State, to an inferior tribunal, corporation, board,
or person, commanding the performance of an

REMEDIAL LAW

act which the law enjoins as a duty resulting


from an office, trust, or station. [Rule 65, sec. 3]

CERTIORARI
PROHIBITION
Directed against an entity or Directed against an entity or person
person exercising judicial or exercising judicial, quasi-judicial, or
quasi-judicial functions
ministerial functions

MANDAMUS
Directed against an entity
or
person
exercising
ministerial functions
Entity or person is alleged
Entity or person is alleged to have acted:
to have:
(1) Without jurisdiction
(1) Neglected a ministerial
(2) In excess of jurisdiction; or
duty; or
(3) With grave abuse of discretion amounting to lack or excess of (2) Excluded another from a
jurisdiction
right or office
PURPOSE:
PURPOSE:
PURPOSE
For respondent to: (1) do the
To have respondent desist from
To annul or nullify a proceeding
act required, and (2) pay
further proceeding
damages
Covers discretionary and ministerial Covers
Covers discretionary acts
acts
ministerial acts
Corrective remedy:
Negative and preventive remedy
May be affirmative, positive,
To correct usurpation of To restrain or prevent the said
or negative
jurisdiction
usurpation

E.1.1 CERTIORARI AS A MODE OF APPEAL AND AS A SPECIAL CIVIL ACTION


CERTIORARI AS A MODE OF APPEAL
CERTIORARI AS A SPECIAL CIVIL ACTION (Rule 65)
(Rule 45)
A continuation of the appellate process
An original action and not a mode of appeal
over the original case
May be directed against an interlocutory order of the
Seeks to review final judgment or final
court or where no appeal or plain or speedy remedy is
orders
available in the ordinary course of law
Raises questions of jurisdiction, i.e. whether a tribunal,
board or officer exercising judicial or quasi-judicial
Raises only questions of law
functions has acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion amounting
to lack of jurisdiction
Filed within 15 days from notice of Filed not later than 60 days from notice of judgment,
judgment or final order appealed from, or order, or resolution sought to be assailed. In case a
of the denial of petitioners motion for motion for reconsideration or new trial is timely filed, the
reconsideration or new trial.
60-day period is counted from notice of said denial.
Extension of 30 days may be granted for Extension granted only under exceptional cases (infra).
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justifiable reasons.
Does not require a prior motion for
reconsideration
Stays the judgment appealed from

REMEDIAL LAW

Motion for reconsideration is a condition precedent,


subject to exceptions
Does not stay the judgment or order subject of the
petition, unless enjoined or restrained

Parties are the original parties with the


appealing party as the petitioner and the The tribunal, board, or officer, exercising judicial or
adverse party as the respondent, without quasi-judicial functions is impleaded as respondent
impleading the lower court or its judge
Filed only with the SC
May be filed with the SC, CA, Sandiganbayan, or RTC
If the order is sufficient in form and substance:
The RTC shall (1) order respondents to comment,
Review by the SC is discretionary and will
and then (2)(a) hear the case or (2)(b) require the
be granted only when there are special or
parties to file memoranda.
important reasons. [Rule 45, sec. 6]
But the SC/CA may require a comment before
giving the petition due course.

E.1.2 PROHIBITION AND MANDAMUS, DISTINGUISHED FROM INJUNCTION


INJUNCTION
Ordinary civil action
Directed only to the party litigants,
without in any manner interfering with the
court

PROHIBITION
Special civil action
Directed to the court itself, commanding it to cease
from the exercise of a jurisdiction to which it has no
legal claim

INJUNCTION

MANDAMUS
Ordinary civil action
Special civil action
Directed against a tribunal, corporation,
Directed against a litigant
board, or officer
Purpose is to either refrain the defendant from Purpose is for the tribunal, corporation,
performing an act or to perform not necessarily a legal board, or officer, to perform a ministerial
and ministerial duty
and legal duty

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E.2 REQUISITES
Requisites of Certiorari:

REMEDIAL LAW

(3) There is no other plain, speedy, and


adequate remedy in the ordinary course
of law.

(1) Respondent is exercising judicial or


quasi-judicial function
(2) Respondent acted without or in excess
of its jurisdiction or acted with grave
abuse of discretion amounting to lack of
jurisdiction; and
(3) There must be no appeal or other plain,
speedy, and adequate remedy [Barbers v.
COMELEC (2005)]
Requisites of Prohibition:
(1) Respondent is exercising judicial, quasijudicial, or ministerial functions
(2) Respondent acted without or in excess
of its jurisdiction or acted with grave
abuse of discretion amounting to lack of
jurisdiction; and
(3) There must be no appeal or other plain,
speedy, and adequate remedy [Barbers,
supra]

Requisites of Mandamus:
(1) There must be a well-defined, clear
legal right or duty. [Valmonte v.
Belmonte (1989)]
o The duty must be enjoined by law;
hence, a contractual duty cannot be
enforced by mandamus. [Province of
Pangasinan
v.
Reparations
Commission (1977)]
(2) Respondent must be exercising a
ministerial duty. [Roble Arrastre, Inc. v.
Villaflor (2006)]
o A duty which is absolute and
imperative and involves merely its
execution
o However, mandamus will lie to
compel the discharge of the
discretionary duty itself but not to
control the discretion to be exercised.
In other words, mandamus can issue
to require action only but not specific
action. [Assoc. of Small Landowners
in the Phils., Inc. v. Sec. of Agrarian
Reform (1989)]

DISCRETIONARY
ACT

MINISTERIAL ACT

One where public


functionaries,
by
virtue of a power or
right conferred upon
them by law, can act
officially
under
certain
circumstances,
uncontrolled by the
judgment
or
conscience of others

One
which
an
officer or tribunal
performs in a given
state of facts, in a
prescribed manner,
in obedience to the
mandate of a legal
authority, without
regard to or the
exercise of his own
judgment upon the
propriety
or
impropriety of the
act done [Roble
Arrastre, Inc. v.
Villaflor (2006)]

E.3 WHEN PETITION FOR CERTIORARI,


PROHIBITION, AND MANDAMUS IS
PROPER
N.B. The common requisite among certiorari,
prohibition, and mandamus is that there is
no other plain, speedy, or adequate remedy in
the ordinary course of law.

WHEN PETITION FOR CERTIORARI IS


PROPER
o Only to correct errors of jurisdiction, not
errors of judgment.
o Questions of fact cannot be raised in an
original action for certiorari. Only
established or admitted facts may be
considered. [Suarez v. NLRC (1998)]
General rule: Where appeal is available,
certiorari will not lie. [Jose v. Zulueta (1961)]
Exceptions:

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(1) Where the appeal does not constitute a


speedy and adequate remedy
(2) Where orders were also issued either in
excess or without jurisdiction
(3) For certain special considerations, as
public welfare or public policy
(4) Where, in criminal actions, the court
rejects the rebuttal evidence for the
prosecution as, in case of acquittal,
there could be no remedy
(5) Where the order is a patent nullity
(6) Where the decision in the certiorari case
will avoid future litigations [Villarica
Pawnshop v. Gernale (2009)

REMEDIAL LAW

ministerial duty, this being its main


objective.
o A writ of mandamus will not issue to
control the exercise of official discretion or
judgment, or to alter or review the action
taken in the proper exercise of the
discretion of judgment, for the writ cannot
be used as a writ of error or other mode of
direct review.
o However, in extreme situations generally
in criminal cases, mandamus lies to
compel the performance of the fiscal of
discretionary
functions
where
his
actuations are tantamount to a wilful
refusal to perform a required duty.
[REGALADO]

WHEN PETITION FOR PROHIBITION IS


PROPER
o Prohibition is a preventive remedy.
However, to prevent the respondent
from performing the act sought to be
prevented during the pendency of the
proceedings for the writ, the petitioner
should obtain a restraining order and/or
writ of preliminary injuction. [REGALADO]
o The office of prohibition is not to correct
errors of judgment but to prevent or
restrain usurpation by inferior tribunals
and to compel them to observe the
limitation
of
their
jurisdictions.
[HERRERA]

Grounds for Mandamus:


(1) When any tribunal, corporation, board,
officer or person, UNLAWFULLY
NEGLECTS the performance of an act
which the law specifically enjoins as a
duty resulting from an office, trust, or
station.
(2) When any tribunal, corporation, board,
officer, or person, UNLAWFULLY
EXCLUDES another from the due and
enjoyment of a right or office to which
the other is entitled. [Rule 65, sec. 3]

E.4 INJUNCTIVE RELIEF


General Rule: Prohibition does NOT
ordinarily lie to restrain an act which is
already fait accompli.

Independent Action
An original action for Certiorari, Prohibition,
or Mandamus is an independent action, and
as such:
(1) Does not interrupt the course of the
principal action;
(2) Does not affect the running of the
reglementary periods involved in the
proceedings;
(3) Does not stay the execution of judgment
unless a TRO or writ of preliminary
injunction has been issued. [see Rule 65,
sec. 7]

Exception: Writ of prohibition will lie to


prevent the unlawful creation of a new
province by those in the corridors of power
who could avoid judicial intervention and
review by merely speedily and stealthily
completing the commission of such illegality
[Tan v. COMELEC (1986)]
WHEN PETITION FOR MANDAMUS
PROPER
o The purpose of mandamus is to compel
the performance, when refused, of a

Injunctive Relief

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General Rule: The mere elevation of an


interlocutory matter through a petition for
certiorari does not by itself merit a
suspension of the proceedings before a
public respondent, applying Rule 65, sec. 7.
o The public respondent shall proceed
with the principal case WITHIN 10 DAYS
from filing of the petition for certiorari
with the higher court, absent a TRO or
preliminary injunction, or upon its
expiration. Failure may be a ground for
an administrative charge [AM No. 07-712-SC]

(3)

(4)

(5)

Exceptions:
(1) When a writ of preliminary injunction or
TRO is issued: The burden is on
petitioner to show that there are
meritorious grounds, i.e. there is an
urgent necessity in order to prevent
serious damage; or
(2) Judicial courtesy: Even if there is no
injunction issued, lower court should
defer to higher court where there is a
strong probability that the issues before
the higher court would be rendered
moot and moribund as a result of the
continuation of the proceedings in the
court
of
origin.
[Republic
v.
Sandiganbayan (2006)]

(6)

(7)

(8)

(9)

REMEDIAL LAW
passed upon by the lower court, or are
the same as those raised and passed
upon in the lower court
Where there is urgent necessity for the
resolution of the question and any
further delay would prejudice the
interests of the Government
Where under the circumstances, an
MR would be useless, as where the
court had already indicated that it
would
deny
any
motion
for
reconsideration of its questioned order
Where petitioner was deprived of due
process and there is extreme urgency
for relief
Where, in a criminal case, relief from
an order of arrest is urgent and
granting such relief by trial court is
improbable
Where the proceedings in the lower
court are a nullity for lack of due
process
Where the proceeding was ex parte or
in which the petitioner had no
opportunity to object
Where the issue raised is one purely of
law or where public interest is involved

Where the subject matter of the action is


perishable [Ombudsman v. Laja (2006)]

E.6 RELIEFS PETITIONER IS ENTITLED


TO

E.5 EXCEPTIONS TO FILING MOTION


FOR RECONSIDERATION
BEFORE
FILING PETITION

RELIEFS, IN GENERAL
Petitioner may be entitled to:
(1) Injunctive relief Court may may issue
orders expediting the proceedings, and
it may also grant a temporary
restraining order or a writ of preliminary
injunction for the preservation of the
rights of the parties [Rule 65, sec. 7]
(2) Incidental reliefs as law and justice may
require [Rule 65, secs. 1 and 2]
(3) Other reliefs prayed for or to which the
petitioner is entitled [Rule 65, sec. 8]

General Rule: An MR is an essential


precondition for the filing of a petition for
certiorari, prohibition, or mandamus. It is a
plain, speedy, and adequate remedy. This is
to enable the lower court, in the first instance,
to pass upon and correct its mistakes without
the intervention of the higher court
Exceptions: MR may be dispensed with in
some cases:
(1) Where the order is a patent nullity
(2) Where questions raised in the certiorari
proceeding have been duly raised and
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PRAYERS
(1) In certiorari
(a) That the judgment be rendered
annulling
or
modifying
the
proceedings of such tribunal, board
or officer; and
(b) Granting such incidental reliefs as
law and justice may require [Rule 65,
sec. 1]
(2) In prohibition
(a) That the judgment be rendered
commanding the respondent to
desist from further proceedings in
the action or matter specified; or
(b) Otherwise granting such incidental
reliefs as law and justice may
require [Rule 65, sec. 2]
(3) In mandamus
(a) That the judgment be rendered
commanding
the
respondent,
immediately or at some other time
to be specified by the court, to do
the act required to be done to
protect the rights of the petitioner;
and
(b) To pay the damages sustained by
the petitioner by reason of the
wrongful acts of the respondent
[Rule 65, sec. 3]

REMEDIAL LAW

(a) Certified true copy of the judgment,


order, resolution subject thereof
(b) Copies of all pleadings and relevant
and pertinent documents
(c) Sworn certification of non-forum
shopping
(2) Contents of the petition
(a) Allegation of facts with certainty
Prayer

ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition,
Mandamus, when does the court acquire
jurisdiction over the person of the
respondent? It depends:
(1) If action is filed with the RTC: Follow
rules on ordinary civil actions.
Jurisdiction is acquired by:
(a) Service of summons to respondent
or
(b) By his voluntary appearance in
court
(2) If the action is filed with the SC/CA: Court
acquires jurisdiction over respondents
by:
(a) Service on them of its orders
indicating its initial action on the
petition or
(b) By their voluntary submission to
such jurisdiction

E.7 ACTS/OMISSIONS OF MTC/RTC IN


ELECTION CASES

PROCEDURE
A petition for certiorari/
prohibition is filed

In election cases involving an act or an


omission of a municipal or regional trial court,
the petition [for certiorari, prohibition, or
mandamus] shall be filed EXCLUSIVELY with
the Commission on Elections, in aid of its
appellate jurisdiction [Rule 65, sec. 4, par. 3
as amended by AM No. 07-7-12-SC (2007)]

mandamus/

When filed:
(a) Not later than 60 days from notice of
judgment/order/resolution
(b) If a motion for reconsideration/new trial
is filed, the 60-day period shall be
counted from notice of denial of motion.

E.8 WHEN AND WHERE TO FILE


PETITION

Rule on Extension of Time for Filing:


General Rule: The sixty (60)-day period
within which to file a petition for
certiorari under Rule 65 is non-extendible.

Petition And Contents


(1) A verified petition is filed in the proper
court accompanied by:

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Exceptions: Under the following exceptional


circumstances, the Court may extend the
period according to its sound discretion:
(1) Most persuasive and weighty reasons;
(2) To relieve a litigant from an injustice not
commensurate with his failure to comply
with the prescribed procedure;
(3) Good faith of the defaulting party by
immediately paying within a reasonable
time from the time of the default;
(4) The existence of special or compelling
circumstances;
(5) The merits of the case;
(6) A cause not entirely attributable to the
fault or negligence of the party favored
by the suspension of the rules;
(7) A lack of any showing that the review
sought is merely frivolous and dilatory;
(8) The other party will not be unjustly
prejudiced thereby;
(9) Fraud, accident, mistake or excusable
negligence without appellant's fault;
(10) Peculiar
legal
and
equitable
circumstances

REMEDIAL LAW

(2) A PUBLIC OFFICER who does or suffers


an act, which, by provision of law,
constitutes a ground for forfeiture of
office; or
(3) An ASSOCIATION which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority to act. [Rule 66,
Sec. 1]

JURISDICTION
(1) Original jurisdiction to issue the writ of
quo warranto is vested in the SC, CA, and
RTC. [CONST. art. VIII, sec. 5(1); B.P. Blg.
129, secs. 9 and 21]
(2) Actions for quo warranto against
corporations (as opposed to associations
without authority) with regard to
franchises and rights granted to them, as
well as the dissolution of corporations
now fall under the jurisdiction of the RTC
[P.D. No. 902-A, in relation to R.A. No.

8799, sec. 5.2. SEC. REG. CODE, sec. 5.2.;


Unilongo v. CA (1999)]
(3) Usurpation of an office in a private
corporation falls under the jurisdiction of
the SEC under P.D. No. 902-A, in relation
to R.A. No. 8799, sec. 5.2.

F. QUO WARRANTO
F.1. NATURE
Literally means by what authority; a
prerogative writ by which the court can call
upon any person to show by what warrant he
holds a public office or exercises a PUBLIC
franchise.

F.3. DISTINGUISHED FROM QUO


WARRANTO
IN
THE
OMNIBUS
ELECTION CODE
ROC Rule 66

When the inquiry is focused on the legal


existence of a body politic, the action is
reserved to the State in a proceeding for quo
warranto or any other direct proceeding.

OEC Sec. 253

Filed by whom
(11) Solicitor General
or
Public
Prosecutor, (a) in
behalf
of
the
Republic [Rule 66,
sec. 2] or (b) upon
the request or Any voter
relation of another
person [sec. 3]; or
(12) Individual
claiming to be
entitled to a public
office or position

Subject Matter: The subject matter of a quo


warranto may be a public office, franchise, or
position.

F.2. AGAINST WHOM MAY THE ACTION


BE BROUGHT
(1) A PERSON who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position, or franchise;
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REMEDIAL LAW

F.4. WHEN GOVERNMENT MAY


COMMENCE AN ACTION AGAINST
INDIVIDUALS

usurped
or
unlawfully held or
exercised
by
another [sec. 5]
Where filed
[Jurisdiction]
(1) If
against
election of a
[Venue]
Member
of
(1) Commenced
by
Congress,
Sol. Gen.: (a) RTC
Regional,
Manila, (b) CA or
Provincial
or
(c) SC;
City
Officer:
(2) Otherwise: (a) RTC
COMELEC
with
jurisdiction
(2) If against a
over
territorial
municipal
or
area
where
barangay
respondent
officer:
resides, (b) CA or
appropriate
(c) SC
RTC or MTC,
respectively.

The Government, through the Solicitor


General or public prosecutor commences the
action for quo warranto.
(1) Mandatory: When to commence:
(a) When directed by the President; OR
(b) When upon complaint or otherwise
he has good reason to believe that
any case in sec. 1 [supra] can be
established by proof. [sec. 2]
(2) Discretionary: When to commence:
(a) Upon permission of the court; AND
(b) At the request and upon the relation
of another person [ex relatione],
provided officer bringing it may
require an indemnity bond.

F.5.
WHEN
INDIVIDUAL
COMMENCE AN ACTION

Period for filing


Within 1 year from
Within 10 days
ouster or from the
after proclamation
time the right to the
of results
position arose. [sec. 11]
Grounds (against occupants of public
offices)
(1) A person, who
usurps, intrudes
into or unlawfully
holds or exercises
a public office,
position
or
franchise;
(1) Ineligibility; or
(2) A public officer, (2) Disloyalty
to
who
does
or
the Republic
suffers an act
which, by provision
of law, constitutes
a
ground
for
forfeiture of office.
[sec. 1]

MAY

An individual may commence the action if he


claims to be entitled to the office or position
usurped or unlawfully held or exercised by
another.
(1) He may institute the action in his own
name. [Sec. 5]
(a) He does not have to secure the
intervention of the Solicitor General
or public prosecutor.
(b) No leave of court necessary.
(2) He must aver and be able to show that he
is entitled to the office in dispute,
otherwise the action may be dismissed at
any stage. [General v. Urro (2011)]

F.6. PERIOD FOR PLEADINGS AND


PROCEEDINGS MAY BE REDUCED
Period to File: The action must be
commenced within 1 year from the date after
the cause of such ouster or the right of the
petitioner to hold such office or position
arose. [sec. 11]

In sum, Rule 66 applies to quo warranto IN


GENERAL while election law governs quo
warranto against SPECIFIED elective officials.

Laches does not attach and failure to file


quo-warranto proceedings does not operate
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adversely against a dismissed government


employee where it was the act of responsible
government official which contributed in the
delay of filing of complaint for reinstatement
[Cristobal v. Melchor (1980)]

REMEDIAL LAW

petitioners right to the office in question


[sec. 11]

G. EXPROPRIATION
G.1. NATURE

Reduction of Period: The court may reduce


the period for filing and for all other
proceedings in the action to secure most
expeditious determination of the matters
involved therein, consistent with the rights of
the parties. [sec. 8]

Eminent Domain is the right and authority of


the State, as sovereign, to take private
property for public use upon observance of
due process and payment of just
compensation.
It is in the nature of a compulsory sale to
the State.

F.7. JUDGMENT IN QUO WARRANTO


ACTION

G.2. REQUISITES FOR THE VALID


EXERCISE OF THE RIGHT

When respondent is found guilty of usurping,


intruding, or unlawfully holding or exercising
a public office, judgment shall be rendered:
(1) That such respondent is ousted and
altogether excluded therefrom; and
(2) That petitioner or relator, as the case
may be, recover his costs; and
(3) (Court may further determine the
respective rights in and to the public
office, position, or franchise of all
parties.) [sec. 9]

(a)
(b)
(c)
(d)
(e)

The property must be private


There must be due process of law
Payment of just compensation
Taking must be for public use
There must be genuine necessity
[Manapat v. CA (2007)]

G.3. MATTERS TO ALLEGE


COMPLAINT FOR EXPROPRIATION

IN

Contents of the Complaint: The complaint


shall
(1) State with certainty the right and
purpose of expropriation
N.B. Where the right of the plaintiff to
expropriate is conferred by law,
complaint does not have to state with
certainty the right of expropriation
[Manila Railroad Co. v. Mitchel (1923)]
(2) Describe the real or personal property
sought to be expropriated
(3) Join defendants
All persons owning or claiming to own, or
occupying, any part thereof or interest
therein, showing separate interest of
each defendant, as far as practicable
(4) Make the following averments, if needed:
(a) If title appears to be in the Republic,
although occupied by private
individuals

F.8. RIGHTS OF A PERSON ADJUDGED


ENTITLED TO PUBLIC OFFICE
Rights of persons adjudged entitled to office
[sec. 10]:
(1) Execution of the office
After taking oath of office and executing
any official bond required by the law
(2) Demand from respondent all the books
and papers appertaining to the office to
which judgment relates
Respondents neglect or refusal to
comply with the demand is punishable by
contempt
(3) Bring an action for damages against
respondent for damages sustained by
him by reason of the usurpation.
Must be commenced within 1 year after
entry
of
judgment
establishing

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Preliminary deposit [Rule 67, sec. 2]:

(b) If title is otherwise obscure or


doubtful so that plaintiff cannot with
accuracy or certainty specify who the
real owners are [Rule 67, sec. 1]

Where to File: RTC where property is located.


MTC has no jurisdiction since an action for
expropriation is incapable of pecuniary
estimation. [Barangay San Roque v. Heirs of
Pastor (2000)]

Purposes

Provide damages if court


finds that the plaintiff has no
right to expropriate
Advance payment for just
compensation, if property is
finally expropriated [Visayan
Refining Co. v. Camus (1919)]
If Real Property: Equivalent to the
assessed value of the property for
purposes of taxation.
If Personal Property: Value shall
be provisionally ascertained and
fixed by the court.

G.4. TWO STAGES IN EVERY ACTION


FOR EXPROPRIATION

Value

(First Stage) Propriety of Expropriation:


Determination of the authority of the plaintiff
to exercise the power of eminent domain and
the propriety of its exercise in the context of
the facts involved. This ends with either:
(1) An order of dismissal, or
(2) An order of expropriation

Where to depositary. (Amount is to be held


deposit
by such bank subject to the

With the authorized government

orders of the court.)


General Rule: Money.
Exception: In lieu of money, court
Form of authorizes deposit of a certificate
of deposit of a government bank
Deposit
of the Republic, payable on
demand to the authorized
government depositary.

(Second Stage) Just Compensation:


Determination of the just compensation for
the property sought to be taken.
N.B. Multiple appeals are allowed in
expropriation. Aggrieved party may appeal in
each stage separately.

After the deposit, court shall order sheriff or


proper officer to place plaintiff in possession
of the property. Such officer shall promptly
submit a report to the court with service of
copies to parties.

G.5.
WHEN
PLAINTIFF
CAN
IMMEDIATELY
ENTER
INTO
POSSESSION OF THE REAL PROPERTY,
IN RELATION TO R.A. NO. 8974

NOTE: Preliminary deposit is only necessary


if the plaintiff desires entry on the land upon
its institution of the action. Otherwise, he
could always wait until the order of
expropriation is issued before it enters upon
the land.

Plaintiff shall have the right to take or enter


upon possession of the real property upon:
(1) Filing of complaint or at any time
thereafter, and after due notice to
defendant
(2) Making preliminary deposit [Rule 67, sec.
2]

Once the preliminary deposit has been made,


the expropriator is entitled to a writ of
possession as a matter of right, and the
issuance of said writ becomes ministerial on
the part of the trial court. [Biglang-Awa v.
Bacalla (2000)]

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Republic Act No. 8974 (2000):


An Act to Facilitate the Acquisition of Rightof-Way, Site or Location for National
Government Infrastructure Projects and for
Other Purposes

RULE 67,
SEC. 2

Scope

Expropriation
in general,
for both real
and personal
properties

Government
For writ of is required to
possession make
to issue
preliminary
deposit

Equal
to
assessed
Amount of
value of real
payment or
property for
deposit
purposes of
taxation

REMEDIAL LAW

Applicable Special Laws:


(1) R.A. No. 8974 specifically governs
expropriation for national government
infrastructure projects
(2) Local Govt Code, sec. 19 governs the
exercise of the power of eminent domain
by LGUs through an enabling ordinance

RA 8974
Only
when
national
government
expropriates
real property
for
national
government
infrastructure
projects
Government is
required
to
make
immediate
payment
to
owner
upon
filing
of
complaint
Equal to the
market value
of the property
as stated in
the
tax
declaration or
current
relevant zonal
value of BIR,
whichever is
higher,
and
value
of
improvements
and/or
structures
using
replacement
cost method

G.6. NEW SYSTEM OF IMMEDIATE


PAYMENT
OF
INITIAL
JUST
COMPENSATION
For the acquisition of right-of-way, site or
location for any national government
infrastructure project through expropriation,
upon the filing of the filing of the complaint,
and after due notice to the defendant, the
implementing agency shall immediately pay
the owner of the property the amount
equivalent to the sum of:
(1) 100 percent of the value of the property
based on the current relevant zonal
valuation of the BIR; and
(2) The value of the improvements and/or
structures as determined under Sec. 7 of
R.A. 8974, supra [RA 8974, sec. 4]

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G.7. DEFENSES
[RULE 67, SEC. 3]
No Objection to or
Defense against
Taking

CIVIL PROCEDURE

AND

OBJECTIONS

REMEDIAL LAW

Effect of failure to file answer: Failure to file


answer does not produce all consequences of
default as in ordinary civil actions:
(1) There is default as to the first stage of
expropriation, supra; but
(2) Said judgment is without prejudice to the
second stage, i.e. defendant still has the
right to present evidence on the just
compensation and to share in the
distribution of the award. [See Robern

With Objection to or
Defense against
Taking

What to file and serve


Notice
of
Answer
to
the
appearance
and
complaint
manifestation
Period to file
Time stated in the summons
Contents
(1) Specifically
designating/iden
tifying
the
(1) Manifestation to
property in which
the effect that he
he claims to have
has no objection
an interest in;
or defense;
(2) Nature
and
(2) Specifically
extent of the
designating/ide
interest; and
ntifying
the
(3) ALL
his
property
in
objections
and
which he claims
defenses to the
to be interested
complaint or any
allegation
therein
Prohibited
Counterclaim, crossclaim, third party
complaint in any
pleading

Development Corporation v. Quitain


(1999)]

G.8. ORDER OF
[RULE 67, SEC. 4]

EXPROPRIATION

Order of Expropriation: It is the order


declaring that the plaintiff has lawful right to
take the property.
When Issued: It is issued when:
(1) Objections or defenses against the right
of plaintiff to expropriate are overruled;
or
(2) No party appears to defend the case
Contents of the Order: That the plaintiff has a
lawful right to take the property sought to be
expropriated:
(1) For the public use or purpose described
in the complaint; and
(2) Upon payment of just compensation
(a) To be determined as of the date of
taking, or
(b) The filing of the complaint, whichever
came first.

Amended answers: A defendant waives all


defenses and objections not so alleged, but
the court, in the interest of justice, may
permit amendments to the answer not to be
made later than ten (10) days from filing
thereof.

Remedy
of
Defendant:
Order
of
condemnation is final, not interlocutory.
Hence, it is appealable.
N.B. Appeal shall not prevent court a quo
from determining just compensation.

Just compensation may be proven with or


without objections/defense, and whether or
not defendant appeared/answered: In any
case, in the determination of just
compensation, defendant may present
evidence as to the amount of compensation
to be paid.
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Effects of the Order:


(1) Plaintiff not permitted to dismiss or
discontinue the proceeding, except on
such terms as the court deems just and
equitable; and
(2) Order forecloses any further objections to
the right to expropriate, including the
public purpose of the same. [Robern

REMEDIAL LAW

Market Value: Sum of money which a person


desirous but not compelled to buy, and an
owner willing but not compelled to sell,
would agree on as a price to be given and
received therefore. [BPI v. CA (2004)]
Time when market value should be fixed:
(1) When plaintiff takes possession before
institution of proceedings: value fixed as
of TIME OF TAKING; or
(2) When the taking coincides with or
subsequent to the commencement of
proceedings: value fixed as of DATE OF
FILING of the complaint

Development Corporation v. Quitain


(1999)]

G.9. ASCERTAINMENT OF JUST


COMPENSATION [RULE 67, SEC. 5]
Upon rendition of the Order of Expropriation,
the court issues an Order of Appointment.

G.10. APPOINTMENT OF
COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION UPON
REPORT

Order of Appointment:
(1) Court appoints not more than 3
commissioners to ascertain and report to
the court the just compensation for the
property
(2) Contents: Order shall
(a) Designate the time and place of the
first session of hearing to be held by
commissioner
(b) Specify the time within which their
report shall be submitted to court
(3) Procedures:
(a) Copies of the Order shall be served
on the parties
(4) Objections to appointment:
(a) Filed with the court within 10 days
from service
(b) Objections shall be served to all
commissioners
(c) Resolved within 30 days after all
commissioners shall have received
copies

Qualifications of the Commissioners: Must be


(1) Competent; and
(2) Disinterested
Proceedings by Commissioners [Rule 67, Sec.
6]
(1) Oath: Commissioners shall first take and
subscribe an oath that they will faithfully
perform their duties. Oath shall be filed
in court together with other proceedings.
(2) Introduction of evidence: Evidence may
be introduced by either party before the
commissioners who are authorized to
administer oaths on hearings before
them
Duties of Commissioners: Commissioners
shall:
(1) View and examine the property sought to
be expropriated and its surroundings,
and may measure the same.
(a) Parties may agree not to have the
property inspected.
(b) Due notice to parties to attend must
first be given.
(c) After this, each party may argue the
case.

Just Compensation: The full and fair


equivalent of the property taken from its
owner
by
the
expropriator.
Just
compensation means not only (1) the correct
determination of the amount to be paid but
also the (2) payment of the land within a
reasonable time from its taking. [Land Bank
of the Phils. v. Obias (2012)]

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(2) Assess the consequential damages to the


property not taken and deduct from such
the consequential benefits to be derived
by owner.
(a) Consequential benefits are those
proximately resulting from the
improvements consequent to the
expropriation and accruing to the
remaining portion of the land.
[REGALADO]
(b) In no case shall the consequential
benefits assessed exceed the
consequential damages. [Sec. 6]
(c) In no case shall the owner be
deprived of the actual value of his
property taken. [Sec. 6]

REMEDIAL LAW

(b) Recommit to commissioners for


further report of facts, for cause
shown;
(c) Set aside the report and appoint new
commissioners; OR
(d) Accept the report in part and reject in
part; AND
(e) Make such order or render such
judgment as shall secure the plaintiff
(as to its right to expropriate) and the
defendant (as to his right to just
compensation)

G.11. RIGHTS OF PLAINTIFF UPON


JUDGMENT AND PAYMENT [RULE 67,
SEC. 10]

Report by Commissioners [Rule 67, Sec. 7]


(1) Commissioners shall make a full and
accurate report to the court of all their
proceedings.
(2) Such proceeding shall not be effectual
until court has accepted their report and
rendered judgment in accordance with
their recommendations.
(3) Report shall be filed within 60 days from
date commissioners were notified of their
appointment. Time may be extended by
court discretion,
(4) Upon filing, clerk shall serve copies of the
Commissioners Report to all interested
parties. Clerk includes a notice that
parties are allowed to file objections to
the report within 10 days from notice.

Rights: Either:
(1) Right to retain: Applies when plaintiff
immediately entered upon the property
after making the required deposit (and
therefore already has possession of the
property), supra.
(2) Right to enter and appropriate: Applies
when plaintiff does not take immediate
possession of the property.
Appropriation must be for the public use
or purpose defined in the judgment.
Conditions for exercise:
(1) Upon payment by plaintiff to defendant
of compensation fixed by judgment, with
legal interest from taking; or
(2) After tender to defendant of the said
amount and payment of the costs.
N.B. If defendant or counsel absent
themselves from the court or decline the
amount tendered, the amount shall be
deposited in court and shall have the
effect of actual payment.

Action Upon Commissioners Report [Rule 67,


Sec. 8]
(1) When court renders judgment: Upon
(a) Filing of objections to the report or of
the agreement thereon of all
interested parties; OR
(b) Expiration of 10-day period to object
from the report
(2) Court may:
(a) After hearing, accept the report and
render judgment in accordance
therewith;

G.12. EFFECT OF RECORDING


JUDGMENT

OF

Contents of the Judgment


(1) Statement of the particular property or
interest therein expropriated, with
adequate description; and
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(2) Nature of the public use or purpose for


which it is expropriated. [Sec. 13]
When title to property vests:
(1) If personal property, upon payment of
just compensation [Sec. 10]
(2) If real property, upon (i) payment of just
compensation and (ii) registration of
property (by recording of the judgment in
the registry of deeds where the property
is situated.) [Sec. 13]

(2)
(3)

REMEDIAL LAW

(a) Date and due execution of the real


mortgage;
(b) Date of the note or other
documentary evidence of the
obligation secured by the mortgage;
Its assignments, if any;
The following names and residences:
(a) Of the mortgagor and mortgagee
(b) Of all persons having or claiming an
interest in the property subordinate
in the right to that of the holder of
the mortgage
Description of the mortgaged property
Amount claimed to be unpaid

H. FORECLOSURE OF REAL ESTATE


MORTGAGE

(4)
(5)

H.1. NATURE

Defendants in a judicial foreclosure:


(1) Persons obliged to pay the mortgage
debt
(2) Persons who own, occupy, or control the
mortgaged premises or any part thereof
(3) Transferee or grantee of the property
(4) Second
mortgagee
or
junior
encumbrancers or any person claiming a
right or interest in the property
subordinate to the mortgage sought to
be foreclosed to foreclose their equity of
redemption
But if the action is by the junior
encumbrancer, first mortgagee MAY also
be joined as defendant
(5) Mortgagor even if not owner of the
mortgaged property should be included
(to satisfy the deficiency).

Foreclosure of Mortgage is a proceeding by


which the mortgagee or his successors or one
who has by law succeeded to the rights and
liabilities of the mortgagee undertakes to
dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the
mortgagors or those who have succeeded to
the rights and liabilities of the mortgagor.
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
therein.
Foreclosure may be made:
(1) Judicially: governed by Rule 68
(2) Extrajudicially: proper only when so
provided in contracts in accordance with
Act. No. 3135; governed by A.M. No. 9910-05.

H.3. JUDGMENT ON FORECLOSURE


FOR PAYMENT OR SALE [RULE 68, SEC.
2]
Judgment on Foreclosure is the judgment of
the court ordering the debtor to pay within
90-120 days from entry of judgment after
ascertaining the amount due to plaintiff.

H.2. COMPLAINT IN AN ACTION FOR


FORECLOSURE [RULE 68, SEC. 1]
Venue: A foreclosure action must be brought
in the RTC of the province where the land or
any part thereof is situated.

Contents of judgment: If upon trial, the facts


set forth in the complaint are true, the court
shall:
(1) Ascertain the amount due to the plaintiff
upon the mortgage debt or obligation

Contents of the Complaint:


(1) The following dates:
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including interests, other charges


approved, and costs;
(2) Render judgment for the sum so found
due;
(3) Order that the amount be paid to the
court or to judgment obligee within a
period of not less than 90 days but not
more than 120 days from entry of
judgment
In default of such payment, property
shall be sold at public auction to satisfy
judgment

REMEDIAL LAW

operate to divest the rights in the property of


all the parties to the action and to vest their
rights in the purchaser, subject to such rights
of redemption as may be allowed by law.
[Sec. 3]
Confirmation of the sale of mortgaged
real property vests title in the purchaser
including the equity of redemption. It
retroacts to the date of the sale. It cuts
off all the rights or interests of the
mortgagor and of the mortgagee.
[Lozame v. Amores (1985)].
The motion for the confirmation of the
sale requires a hearing to grant an
opportunity to the mortgagor to show
cause why the sale should not be
confirmed [Tiglao v. Botones (1951)] (e.g.
by proof of irregularities therein, gross
inadequacy of the price, lack of notice
vitiates the confirmation of the sale).
[REGALADO]

Multiple appeals: Multiple appeals are


allowed under Rule 68.
(1) Judgment of foreclosure is appealable.
(2) Order confirming foreclosure sale is a
final disposition with respect to the issue
of validity and regularity of the sale.
(3) Deficiency judgment is a disposition on
the merits of the correctness of such
award. [REGALADO]

Writ of Possession: Upon the finality of the


order of confirmation or upon the expiration
of the period of redemption when allowed by
law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property.

H.4. SALE OF MORTGAGED PROPERTY;


EFFECT [RULE 68, SEC. 3]
When proper: When Defendant fails to pay
the amount of judgment within the period
specified, the court shall order the property
to be sold.

Exception: Third party is actually holding the


same adversely to the judgment obligor.

How: By motion and under the provisions of


Rule 39.
It is the ministerial duty of the court to
order the foreclosure of the property
when the debt is not paid within the
period specified.
A motion for such order of sale is nonlitigable and may be made ex parte.
[Govt of the Phil. Islands v. De las
Cajigas (1931)]
Limitation: Such sale shall not affect the
rights of persons holding prior
encumbrances upon the property or a
part thereof.

H.5. DISPOSITION OF PROCEEDS OF


SALE
(1) Amount realized from the foreclosure
sale, less costs of the sale, shall be paid
to the person foreclosing.
(2) When there is a balance or residue after
paying the mortgage debt, the same
shall be paid to junior encumbrancers in
the order of priority as ascertained by the
court.
(3) If there are no junior encumbrancers, the
residue goes to the mortgagor or his
authorized agent, or any other person
entitled to it. [Rule 68, Sec. 4]

Order of Confirmation: When confirmed by an


order of the court, also upon motion, it shall
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H.6.
DEFICIENCY
JUDGMENT;
INSTANCES WHEN COURT CANNOT
RENDER
DEFICIENCY
JUDGMENT
[RULE 68, SEC. 6]

REMEDIAL LAW

(4) If mortgagor is a third party mortgagor


but not solidarily liable with debtor. [Phil.
Trust Co. v. Tan Suisa (1929)]
(a) No deficiency judgment may be
rendered against owner who is not a
mortgagor and has not assumed
personal liability for the debt.
(b) Remedy is ordinary action against
debtor.
(5) In case of a mortgage debt due from the
estate of a deceased mortgagor and the
mortgage creditor availed of the third
remedy which is to rely upon his
mortgage alone and foreclosing the
same within the statute of limitations.
[Rule 86, sec. 7]
(6) When the deficiency arises under an
extrajudicial foreclosure. The mortgagee
can recover by action (not by motion) any
deficiency in the mortgage account which
was not realized in the foreclosure sale.
[PNB v. CA (1999)]

Deficiency Judgment is judgment rendered by


the court holding defendant liable for any
unpaid balance due to the mortgagee if the
proceeds from the foreclosure sale do not
satisfy the entire debt. [See sec. 6]
A motion for deficiency judgment may be
made only after the sale and after it becomes
known that a deficiency exists. [Governor of

the Philippine Islands v. Torralba Vda. de


Santos (1935)]
N.B. If the debtor dies, the deficiency may be
filed as a claim against his estate. [Rule 86,
Sec. 7]
How Done:
(1) Judgment creditor files motion for
deficiency judgment.
(2) Court shall then render judgment against
defendant for any such balance for which
he may personally be liable to plaintiff.
(3) Execution may then issue immediately if
balance is all due at the time of rendition
of judgment.
If not, plaintiff shall be entitled to
execution at such time as the balance
remaining becomes due. [Sec. 6]

H.7. JUDICIAL FORECLOSURE


EXTRAJUDICIAL FORECLOSURE
Judicial Foreclosure
Requires
court
intervention
There is only an
equity
of
redemption
Governed by Rule
68

When deficiency judgment cannot be


rendered:
(1) Under the Recto Law [CIVIL CODE, art.
1484, par. 3].
(2) When mortgagor is a non-resident and is
not found in the Philippines. (Rationale:
The proceeding would be procedurally
infeasible as a deficiency judgment is in
personam, and under this situation,
jurisdiction over the obligor cannot be
had. [RIANO])
(3) When mortgagor dies, mortgagee may
file his claim with the probate court.
[Rule 86, sec. 7]

VS.

Extrajudicial
Foreclosure
No court intervention
necessary
Right of redemption
exists
Governed by Act 3135

No
Deficiency
There could be a
Judgment
because
Deficiency
there is no judicial
Judgment.
proceeding.
Recovery
of
Recovery of deficiency
deficiency can be
is
through
an
done
by
mere
independent action.
motion.

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H.8. EQUITY OF REDEMPTION VS.


RIGHT OF REDEMPTION
Equity of Redemption
defendant mortgagor
mortgage and retain
property by paying the

REMEDIAL LAW

the 90 to 120 day period after entry of


judgment or even after the foreclosure sale
but prior to its confirmation

is the right of the


to extinguish the
ownership of the
secured debt within

Equity Of Redemption
Right of the defendant mortgagor to extinguish
the mortgage and retain ownership of the
property by paying the secured debt within the
90 to 120 day period after entry of judgment or
even after the foreclosure sale but prior to its
confirmation
Period is 90-120 days after entry of judgment
or even after foreclosure sale but prior to
confirmation
Governed by Rule 68

Right Of Redemption
Right of the debtor, his successor in interest, or
any judicial creditor of said debtor or any person
having a lien on the property subsequent to the
mortgage.
Period is 1 year from date of registration of
certificate of sale
Governed by Rule 39, sec. 29-31

Judicial Foreclosure

Extrajudicial Foreclosure

Mortgagor has a right to redeem the property


No right of redemption, only equity of
within one year from registration of the deed of
redemption
sale
Exception:
In case of extrajudicial foreclosure, juridical
Exception: Mortgagor may exercise right of persons shall have the right to redeem until, but
redemption within one year after the sale, when not after, the registration of the certificate of
the loan or credit accommodation is granted by foreclosure sale with the Register of Deeds
a bank. [General Banking Law (2000), sec. 47]
which in no case shall be more than 3 months
after foreclosure, whichever is earlier. [General
Banking Law (2000), sec. 47]
N.B. What Rule 68, secs. 2-3 provide for is the mortgagors EQUITY of redemption.
This may be exercised by him even beyond the period to pay the judgment obligation (i.e. 90120 days) and even after the foreclosure sale itself, provided it be before the order of the
confirmation of sale. [Rosales v. Alfonso (1999)]

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(3) When partition is prohibited by law (e.g.


ACP, party wall); [CIVIL CODE, art. 494]
(4) When the property is not subject to a
physical division and to do so would
render it unserviceable for the use for
which is it intended; [CIVIL CODE, art. 495]
or
(5) When the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled. [CIVIL
CODE, art. 1084]

I. PARTITION
I.1. NATURE
Partition is the process of dividing and
assigning the property owned in common
among the various co-owners thereof in
proportion to their respective interests in said
property.
Partition may be:
(1) Judicial Procedure is Rule 69
(2) Extrajudicial No court intervention
required

I.4. WHO MAY FILE COMPLAINT; WHO


SHOULD BE MADE DEFENDANTS
[RULE 69, SEC. 1]

The partition of property may be made


voluntarily (by agreement) or compulsorily
under the Rules. Even if the parties had
resorted to judicial partition, they may still
make an amicable partition of the property.
[Sec. 12]

Who May File: A person having the right to


compel partition of real estate, or of personal
property, or both real and personal property
[Sec. 1, Sec. 13]

An action for partition and accounting under


Rule 69 is in the nature of an action quasi in
rem. Such an action is essentially for the
purpose of affecting the defendants interest
in a specific property and not to render a
judgment against him.

Venue and Jurisdiction: An action for partition


should be filed in the RTC of the province
where the property or part thereof is situated.
An action for partition is not a conveyance
of property. [Heirs of Urieta, Sr. v. Heirs of
Urieta (2011)] Because the controversy in
partition is whether or not the plaintiff has a
right to partition, the issue is incapable of
pecuniary estimation. [RIANO]

I.2. WHEN CAN PARTITION BE MADE


General Rule: It can be made anytime. The
right to demand partition is imprescriptible.
(Rationale: Prescription does not run against
a co-owner.)
Exception: If a co-owner asserts adverse title
to the property, in which case, period of
prescription runs from such time of assertion
of adverse title. [De Castro v. Echarri (1911)]

Parties
(1) The plaintiff is the person who is
supposed to be a co-owner of the
property. [RIANO]
(2) Defendants are (i) all the co-owners, who
are indispensable parties, and (ii) all
other persons having an interest in the
property [Id., citing MORAN]

I.3. WHEN PARTITION CANNOT BE


MADE:

I.5. MATTERS TO ALLEGE IN THE


COMPLAINT FOR PARTITION

(1) When there is a stipulation against it, not


exceeding 10 years; [CIVIL CODE, art. 494]
(2) When partition is prohibited by the donor
or testator for a period not exceeding 20
years; [CIVIL CODE, arts. 494, 1083]

Contents of the Complaint:


(1) Nature and extent of his title
(2) Adequate description of the real estate
sought to be partitioned

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I.7. ORDER OF PARTITION


PARTITION BY AGREEMENT

(3) Joining of Defendants All other persons


interested in the property [Sec. 1]
(4) Demand for accounting of the rents,
profits, and other income from the
property to which he may be entitled to
as his share. [Sec. 8] Since these cannot
be demanded in another action (because
they are part of the cause of action for
partition), they are barred if not set up.
[RIANO]

AND

Order of Partition: The court issues an order


of partition AFTER the trial and the court
finds that the plaintiff has a right to partition.
The court orders the partition of the property.
The parties may make the partition proper
themselves, by agreement:
(1) After the issuance of the order of
partition, the parties will then be asked if
they agree to make partition of the
property among themselves.
(2) If they agree, proper instruments of
conveyance will be executed to effect the
partition.
(3) After the execution of instruments of
conveyance, the court shall confirm the
partition through a final order.
(4) The final order of partition and the
instruments of conveyance shall be
registered with the Registry of Deeds
where the property is situated. [Rule 69,
Sec. 2]

I.6. TWO STAGES IN EVERY ACTION


FOR PARTITION
First Stage: Determination of the propriety of
partition
This involves a determination of whether
the subject property is owned in common
and whether all the co-owners are made
parties in the case. [See Lacbayan v.
Samoy]
The order may also require an accounting
of rents and profits recovered by the
defendant. This order of partition is
appealable. [Miranda v. Court of Appeals
(1976)]
If not appealed, then the parties may
partition the common property in the way
they want. If they cannot agree, then the
case goes into the second stage.
However, the order of accounting may in
the meantime be executed. [De Mesa v.
CA (1994)]

I.8. PARTITION BY
APPOINTMENT OF
COMMISSIONERS
ACTION
UPON
REPORT

COMMISSIONERS;
COMMISSIONERS;
REPORT; COURT
COMMISSIONERS

When proper: If parties fail to agree on the


manner of partition, commissioners are
appointed to make partition.

Second Stage: Actual partitioning of the


subject property
This is also a complete proceeding and
the order or decision is appealable.
When there was a prior partition, the fact
that the share of each co-heir has not
been technically described and the title
over the whole lot remains uncancelled
does not negate such partition.
There can be no partition again because
there is no more common property.
[Noceda v. CA (1999)]

How Done: The court appoints not more than


3
competent
and
disinterested
commissioners to make the partition. [Sec. 3]
Oath of the Commissioners: Before entering
into their duties, commissioners must first
make an oath that they will faithfully perform
their duties as commissioners. Such oath is
to be filed in court. [Sec. 4]

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Hearing on the Report [Sec. 7]


(1) When Conducted:
(a) Upon expiration of the 10 day period
for filing objections; or
(b) Even before expiration but after the
interested parties have filed their
objections or their statement of
agreement therewith
(2) The court may:
(a) Accept the report and render
judgment in accordance therewith; or
(b) Recommit
the
same
to
commissioners for further report of
facts, for cause shown; or
(c) Set aside the report and appoint new
commissioners; or
(d) Accept the report in part and reject in
part; and
(e) Make such order and render such
judgment as shall effectuate a fair
and just partition of the real estate,
or of its value, if assigned or sold

Duties of the Commissioners:


(1) They shall view and examine real estate,
after due notice to parties to attend at
such view and examination;
(2) They shall hear the parties as to their
preference in the portion to be set apart
to them;
(3) They shall also determine the
comparative value thereof; and
(4) They shall set apart the same to the
parties in lots or parcels as will be most
advantageous and equitable considering
the improvements, situation, and quality
of the parts thereof.
Assignment of Real Estate to One Party
General Rule: If the commissioners should
determine that the real estate cannot be
divided without prejudice to the interests of
the parties, the court may order that the
property be assigned to one of the parties
willing to take the same provided he pays to
the other parties such amounts as the
commissioners deem equitable.

I.9. JUDGMENT AND ITS EFFECTS


[RULE 69, SEC. 11]

Exception: if one of the parties asks that the


property be sold instead of being so assigned,
then the court shall order the commissioners
to sell the real estate at public sale under
such conditions and within such time as the
court may determine [Sec. 5]

Contents of Judgment

Effects of Judgment

If actual partition is properly made


Judgment shall state
definitely, by metes Judgment shall vest
and bounds and in each party to the
adequate description, action in severalty
the particular portion the portion of the
of the real estate real estate assigned
assigned to each to him.
party.
If the whole property Is assigned to one of the
parties after payment
Judgment shall state Judgment shall vest
the fact of such in the party making
payment and of the the payment the
assignment of the whole of the real
real estate to the estate free from any
party making the interest on the part
payment.
of the other parties.

Commissioners Report: Commissioners shall


make a full accurate report to the court on
(1) All proceedings as to the partition, or
(2) The assignment of real estate to one of
the parties, or
(3) The sale of the same.
Upon filing of Commissioners Report:
(1) Clerk shall serve copies on all interested
parties with notice that they are allowed
to file objections
(2) Parties may file objections within 10 days
upon receipt of notice

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J.
FORCIBLE
ENTRY
UNLAWFUL DETAINER

If property is sold and sale is confirmed by


Judgment shall state
Judgment shall vest
the court
the name of the the real estate in the
purchaser
or purchaser(s),
purchasers and a making
the
definite description of payment(s)
free
the parcels of real from the claims of
estate sold to each any parties to the
purchaser
action.
A certified copy of the judgment shall in
either case be recorded in the registry of
deeds of the place in which the real estate is
situated. [Rule 69, Sec. 11]

I.10. PARTITION
PROPERTY

OF

REMEDIAL LAW

AND

J.1. NATURE
Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession of property.
[Tubiano v. Razo (2000)]
Rationale: The owners of property have no
authority to use force and violence to eject
alleged usurpers who were in prior physical
possession of it. They must file the
appropriate action in court and should not
take the law in their own hands.

PERSONAL

J.2. DEFINITIONS AND DISTINCTIONS


[RIANO]

The provisions of Rule 69 shall apply to


partitions of estates composed of personal
property, or of both real and personal
property, in so far as the same may be
applicable. [Sec. 13]

I.11. PRESCRIPTION OF ACTION


The right of action to demand partition does
not prescribe [De Castro v. Echarri (1911)],
except where one of the interested parties
openly and adversely occupies the property
without recognizing the co-ownership
[Cordova v. Cordova (1958)] in which case,
acquisitive prescription may set in.

Forcibly Entry
(Detentacion)

Unlaful Detainer
(Desahucio)

Possession of land
by defendant is
unlawful from the
beginning as he
acquires possession
by
force,
intimidation,
strategy, threat, or
stealth (FISTS).

Possession
is
inceptively
lawful
but
it
becomes
illegal by reason of
the termination of
his
right
to
possession of the
property under his
contract (express or
implied) with the
plaintiff.

No previous demand
for defendant to
vacate the premises
is necessary
Plaintiff must prove
that he was in prior
physical possession
of the premises until
he was deprived
thereof
by
defendant.
The 1-year period is
generally counted
from date of actual
entry on land.

If a co-owner repudiates the co-ownership


and makes known such repudiation to the
other co-owners, then partition is no longer a
proper remedy of the aggrieved co-owner. He
should file an accion reivindicatoria, which is
prescriptible. [Roque v. IAC (1988)]

195

Demand
jurisdictional.

is

Plaintiff need not


have been in prior
physical possession.

Period is counted
from the date of last
letter of demand.

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J.3. DISTINGUISHED FROM ACCION


PUBLICIANA,
ACCION
REINVINDICATORIA, AND ACCION
INTERDICTAL

The issue centers on


The issue centers on
whether
the
who was in prior
defendants right to
possession de facto.
possess has expired
or not.

The Three Kinds of Action for Recovery of Possession


Accion
Interdictal
Summary
action
for
recovery
of
physical
possession
where
the
dispossession has not
lasted for more than 1 year

Accion
Publiciana

Accion
Reinvindicatoria

A plenary action for


recovery of real right of An action for recovery of ownership,
possession
when which necessarily includes the
dispossession has lasted recovery of possession
for more than one year

involves
Issues is possession de Issue
Issue involves ownership
determination
of
who
has
facto
consequently, possession)
better right to possession
Real action
In personam
All cases of forcible entry
and unlawful detainer,
irrespective of the amount
of damages or unpaid
rentals sought to be
recovered
should
be
brought to the MTC.

Real action
In personam

(and

Real action
Quasi in rem

RTC has jurisdiction if value of the property exceeds P20,000


outside Metro Manila or P50,000 within Metro Manila.
MTC has jurisdiction if value of property does not exceed the above
amounts. [B.P. Blg. 129, as amended]

J.4. TO DETERMINE JURISDICTION IN


ACCION
PULICIANA,
ACCION
REINVINDICATORIA, AND ACCION
INTERDICTAL

In
accion
publiciana
and
accion
reinvindicatoria:
(1) RTC has jurisdiction where the assessed
value of the property exceeds P20,000 or,
in Metro Manila, P50,000;
(2) MTC has jurisdiction if the assessed value
does not exceed said amounts. [B.P. 129,
as amended, secs. 19, 33]

In Accion Interdictal: Exclusive original


jurisdiction over forcible entry and unlawful
detainer suits is with the proper Municipal
Trial Court. [B.P. Blg. 129 sec. 33(2)]
Amount of rents and damages claimed
does not affect the jurisdiction of the
MTC because they are only incidental or
accessory to the main action.
However, municipal courts have no
jurisdiction over a forcible entry/unlawful
detainer case involving agricultural
tenants. Jurisdiction is with the HLURB.

J.5. WHO MAY INSTITUTE THE ACTION


AND WHEN; AGAINST WHOM THE
ACTION MAY BE MAINTAINED
Who May Institute Proceedings
(1) In Forcible Entry:
A person deprived of possession of any
land or building by force, intimidation,
strategy, threat, or stealth.
(2) In Unlawful Detainer:
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J.6. PLEADINGS ALLOWED

(a) Lessor, vendor, vendee or other


person against whom any land or
building is unlawfully withheld; or
(b) His legal representatives or assigns.
[Rule 70, sec. 1]

ONLY allowed pleadings:


(1) Complaint
(2) Compulsory Counterclaim pleaded in the
answer
(3) Cross-claim pleaded in the answer
(4) Respective answers. [Rule 70, sec. 4]

Period of Filing: Within ONE (1) year after


such unlawful deprivation or withholding of
possession. [Sec. 1] Reckoning points:
(1) For forcible entry, it is counted from date
of entry or taking of possession;
(a) Exception: In case of stealth or
strategy, from the time plaintiff
learned of entry. [Vda. de Prieto v.
Reyes (1965)]
(2) For unlawful detainer, it is counted from:
(a) Date of last demand to vacate in case
of non-payment of rent or noncompliance with conditions of the
lease; or
(b) Date of notice to quit, in case of tacit
renewal of lease; or
(c) Date of revocation of the permit in
case of occupancy on mere tolerance
or under temporary permit.

N.B.
Pleadings must be VERIFIED. [Rule 70, Sec.
4)]
What must be alleged in the complaints:

Forcible Entry

Unlawful Detainer

(1) That
plaintiff (1) That defendant is
was in prior
unlawfully
physical
withholding
possession
of
possession from
the property in
plaintiff because
litigation until
his
right
to
he was deprived
possess
had
thereof
by
expired
defendant
(2) That landlord has
(2) That
the
made a demand
dispossession
upon tenant to
was
through
comply with the
FISTS.
[N.B.
terms
of
the
First
two
contract and to
requirements
return
the
are jurisdictional
possession of the
(Abad
v.
property, and that
Farrales (2011)]
the tenant failed
(3) That
the
to satisfy the
complaint was
demand within 15
filed within 1
or 5 days, in case
year
from
of buildings
dispossession.
(3) That
the
complaint is filed
within 1 year from
last
demand.
[RIANO,
citing

Against whom may the action be maintained:


Person or persons unlawfully withholding or
depriving of possession, or any person/s
claiming under them [Sec. 1].
Action may be maintained only against
one in possession at the commencement
of the action.
Tenant with right of [de facto] possession
may bring action against another tenant.
Vendor may bring action for ejectment
against vendee upon failure to pay
installments.
Action may lie against the very owner of
the property.
Action may be maintained against
government officials or agents acting in
behalf of the government, even if
government is not made a party to the
action. [REGALADO]

Romullo
v.
Samahang
Magkakapitbahay
(2010)]

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J.7. ACTION ON COMPLAINT


Contents of demand: The demand must be
two-fold:
(1) To (a) pay or (b) comply with the
conditions of the lease; and
(2) To vacate.

Motu
Proprio
dismissal:
From
the
examination of allegations in the complaint,
the court may dismiss the case outright on
any grounds mentioned in Rule 16. [Sec. 5]

Form of Demand: Demand may be


(1) By service of written notice of such
demand upon the person found on the
premises; [Sec. 2]
(2) By posting of the written notice on the
premises if no person is found there; [Sec.
2] or
(3) Oral. [Jakihaca v. Aquino (1990)]

Issuance of summons: If there is no ground


for dismissal, court issues summons. [Sec. 5]
Answer by defendant: Defendant shall file his
answer within 10 days from service of
summons. [Sec. 6]
Effect of Failure to Answer: Court shall render
judgment, motu proprio or upon motion. [Sec.
7]
(1) Judgment is limited to what is prayed for
in the complaint.
(2) Court may reduce the amount of
damages and attorneys fees claimed
(a) For being excessive or otherwise
unconscionable
(b) In the exercise of its discretion
(c) No prejudice to applicability of Sec.
3(c), Rule 9 if there are 2 or more
defendants

Period to comply with demand: Lessor may


file unlawful detainer suit if lessee fails to
comply with the demand:
(1) After 15 days in the case of lands; or
(2) After 5 days in case of buildings. [Sec. 2]
When demand not required:
(1) When parties stipulate that demand
shall not be necessary [Sec. 2]; or
(2) When the action is predicated on the
expiration of the lease. [Labastida v. CA
(1998)] (Since it is not based on failure to
pay or comply with the conditions [see
Sec. 2].)

Preliminary
Conference:
Preliminary
conference shall be held not later than 30
days after filing of last answer. [Sec. 8]

N.B.
It is only where defendant fails to comply
with the demand within the periods
provided by Sec. 2 will his possession
become unlawful.
A demand to pay or vacate does not give
rise to a cause of action for unlawful
detainer. [Peas v. CA (1994)]
A person who occupies the land of
another at the latter's tolerance or
permission, without any contract
between them is necessarily bound by an
implied promise that he will vacate upon
demand, failing which, an action for
unlawful detainer may be instituted
against him. [Dakudao v. Consolacion
(1983)]

Submission of Affidavits and Position Papers:


Affidavits and position papers are to be
submitted within 10 days from receipt of the
Order stating the matters taken in the
preliminary conference. [Sec. 10]
Rendition of Judgment: Court shall render
judgment within 30 days after receipt of
affidavits and position papers. [Sec. 11]

J.8. WHEN DEMAND NECESSARY


General Rule: In unlawful detainer cases, a
prior written demand against the lessee is
required before the lessor can proceed
against him. [Sec. 2]
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Demand is not required in forcible entry


suits.

J.10.
RESOLVING
OWNERSHIP

J.9. PRELIMINARY INJUNCTION AND


PRELIMINARY
MANDATORY
INJUNCTION

REMEDIAL LAW

DEFENSE

OF

Under B.P. Blg. 129, sec. 33(2), when in an


ejectment suit, the defendant raises the
question of ownership in his pleadings, and
the issue of ownership, the MTC nevertheless
has undoubted competence to resolve the
issue of ownership only to determine the
issue of possession. Hence:
(1) Primal rule is that the principal issue
must be that of possession.
(a) Ownership is merely ancillary.
(b) Issue of ownership may be resolved
but only for the purpose of
determining the issue of possession.
(2) It must sufficiently appear from
allegations of the complaint that what
plaintiff really and primarily seeks is
restoration of possession.
(3) Inferior court cannot adjudicate on the
nature of ownership where relationship
of lease has been sufficiently established
(a) Unless it be proven that there has
been a subsequent change in or
termination of that relationship
between parties.
(4) In forcible entry, a party who can prove
prior possession can recover such
possession even against the owner
himself.
(a) Hence, if prior possession may be
ascertained in some other way, the
inferior court cannot intrude into the
issue of ownership.
(5) Where the question of who has prior
possession hinges on the issue of who is
the real owner:
(a) The inferior court may resolve issue
of
ownership,
but
such
pronouncement is merely provisional.
(b) It does not bar or prejudice an action
between the same parties involving
title. [Refugia v. CA]

Court may grant preliminary injunction in


accordance with Rule 58 to prevent
defendant from committing further acts of
dispossession against plaintiff. [Rule 70, Sec.
15]
There is no distinction as to the type of
ejectment case involved.
A preventive injunction is governed by
Rule 58. A mandatory injunction is
governed by the rules in Rule 70.
Preliminary Mandatory Injunction:
Possessor may present a motion for
issuance of preliminary mandatory
injunction in the action for forcible
entry or unlawful detainer within 5
days from filing of complaint to
restore him in his possession. Court
shall decide the motion within 30
days from filing.
Preliminary mandatory injunction
shall be available:
(1) At the start of the action; [Sec.
15]
(2) On appeal to the RTC upon
motion of plaintiff within 10 days
from perfection of appeal. [Sec.
20]
N.B. The injunction on appeal is to
restore to plaintiff in possession:
(1) If the court is satisfied that the
defendants appeal is frivolous or
dilatory; or
(2) That the appeal of plaintiff is
prima facie meritorious. [Sec. 20]
Preliminary Preventive Injunction
Preliminary preventive injunction is available
in either case. Note that Sec. 15 makes the
provisions of Rule 58 applicable to Rule 70.
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Prohibited pleadings: [Sec. 13]


(1) Petition for relief from judgment
(2) Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
(3) Reply;
(4) Third-party complaints;

J.11. HOW TO STAY IMMEDIATE


EXECUTION OF JUDGMENT [RULE 70,
SEC. 19]
Judgment of the MTC:
General rule: Judgment of the MTC against
defendant in ejectment cases is immediately
executory.

Prohibited motions: [Sec. 13]


(1) Motion to dismiss; only to exceptions:
(a) Lack of jurisdiction over subject
matter; or
(b) Failure to comply with conciliation,
when such is required;
(2) Motion for bill of particulars;
(3) Motion for new trial, reconsideration of a
judgment, or reopening of trial;
(4) Motion for extension of time to file
pleadings, affidavits, or other paper;
(5) Memoranda;
(6) Motion to declare defendant in default;
(7) Dilatory motions for postponement;
(8) Interventions.

Exception: When the following concur:


(1) The defendant perfects his appeal;
(2) He files a sufficient supersedeas bond to
pay the rents, damages, and costs
accruing down to the time judgment
appealed from; and
(3) He deposits with the appellate court:
(a) The amount of rent due from time to
time under the contract, or
(b) In the absence of contract, the
reasonable value of the use and
occupation of premises for the
preceding
month
or
period
determined by judgment on or before
the 10th day of each succeeding
month or period [Chua v. CA (1998)]

K. CONTEMPT
K.1. NATURE

Judgment of the RTC:


The judgment of the Regional Trial Court
against the defendant shall be immediately
executory, without prejudice to a further
appeal that may be taken therefrom. [Rule
70, Sec. 21]

Contempt of court is disobedience to the


court by acting in opposition to its authority,
justice, and dignity. It signifies not only a
willful disregard or disobedience to the
courts orders but also conduct tending to
bring the authority of the court and
administration of law into disrepute, or, in
some manner, to impede the due
administration of justice.

J.12.
SUMMARY
PROCEDURE,
PROHIBITED PLEADINGS
General Rule: All actions for forcible entry
and unlawful detainer shall be governed by
the summary procedure of Rule 70,
irrespective of the amount of damages or
unpaid rentals sought to be recovered. [Sec.
3]

The power to declare person in contempt of


court and in dealing with him accordingly is
an inherent power of the court. It is used as a
means to protect and preserve the dignity of
the court, the solemnity of the proceedings,
and administration of justice. [See
Montenegro v. Montenegro (2004)]

Exceptions:
(1) In cases covered by the agricultural
tenancy laws; or
(2) When the law otherwise expressly
provides. [Sec. 3]
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court and justice. [Lorenzo Shipping Corp.

K.2. KINDS OF CONTEMPT; PURPOSE


AND NATURE OF EACH

v. Distribution Management Assoc. of the


Phils. (2011)]

According to Nature
(1) Criminal contempt: Conduct directed
against the authority and dignity of the
court or a judge acting judicially.
(2) Civil contempt: Failure to do something
ordered to be done by a court or by a
judge for the benefit of the opposing
party. [Burgos v. Macapagal-Arroyo
(2011)]

Criminal Contempt
Punitive in nature
Purpose
is
to
preserve the courts
authority and to
punish
for
disobedience of its
orders
Intent is necessary

State is the real


prosecutor

Proof required is
proof
beyond
reasonable doubt
If
accused
is
acquitted, there can
be no appeal

REMEDIAL LAW

Direct Contempt

Indirect Contempt

Committed in the Not


committed
presence of or so within the presence
near a court
of the court
There is charge and
Summary in nature
hearing
Punishment:
Punishment:
If committed against
If committed against
RTC:
Fine
not
the RTC: Fine of not
exceeding P30,000
exceeding P2,000
and/or
and/or
imprisonment
not
imprisonment not
exceeding 6 months
exceeding 10 days
If committed against
If committed against
MTC:
Fine
not
the MTC: Fine not
exceeding P5,000
exceeding P200 and
and/or
or imprisonment not
imprisonment
not
exceeding 1 day
exceeding 1 month
Remedy is certiorari
Remedy is appeal
or prohibition
Otherwise known as Otherwise known as
Contempt in Facie Constructive
Curiae
Contempt

Civil Contempt
Remedial in nature
Purpose is to provide
a remedy for an
injured suitor and to
coerce compliance
with an order; for the
preservation of the
rights of private
persons
Intent
is
not
necessary
Instituted by the
aggrieved party, or
his successor, or
someone who has a
pecuniary interest in
the right to be
protected
Proof required is
more than mere
preponderance
If judgment is for
respondent,
there
can be appeal

Contempt, whether direct or indirect, may be


civil or criminal depending on the nature and
effect of contemptuous act.
The real character of the proceedings in
contempt cases is to be determined by the
relief sought or by the dominant
purpose. The proceedings are to be regarded
as criminal when the purpose is primarily
punishment, and civil when the purpose is
primarily compensatory or remedial.
[Montenegro v. Montenegro (2004)]

According to Manner of Commission


(1) Direct contempt: Act committed in the
presence of or so near the court or judge
as to obstruct or interrupt the
proceedings before the same.
(2) Indirect contempt: One not committed in
the presence of the court. It is an act
done at a distance which tends to belittle,
degrade, obstruct, or embarrass the

K.3. DIRECT CONTEMPT


For a person to be adjudged guilty of direct
contempt, he must commit a misbehavior in
the presence of or so near a judge as to

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interrupt the administration of justice. [SBMA


v. Rodriguez (2010)]

REMEDIAL LAW

(a) He files a bond fixed by the court


which rendered judgment; and
(b) Conditioned that he will abide by and
perform the judgment should the
petition be decided against him.

Grounds for Direct Contempt


(1) Disrespect toward the court;
(2) Offensive personalities toward others;
(3) Refusal to be sworn or answer as witness
or subscribe an affidavit when lawfully
required to do so;
(4) Misbehavior in the presence of or so near
a court as to obstruct or interrupt the
proceedings; [Rule 71, Sec. 1] or
(5) When the counsel willfully and
deliberately engages in forum shopping.
[Rule 7, sec. 5]

K.4. INDIRECT CONTEMPT


Specific acts constituting indirect contempt:
(1) Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions.
(2) Abuse of or any unlawful interference
with processes or proceedings of a court
not constituting direct contempt.
(3) Disobedience or resistance to lawful writ,
process, order, or judgment of a court, or
any unlawful intrusion to any real
property after being ejected.
(4) Failure to obey subpoena duly served.
(5) Assuming to be an attorney or officer of a
court, and acting as such without
authority.
(6) Improper conduct tending to impede,
obstruct, or degrade administration of
justice.
(7) Rescue, or attempted rescue, of a person
or property in custody of an officer. [Rule
71, Sec. 3]
(8) Failure of counsel to inform the court of
the death of his client. [RIANO, since it
constitutes improper conduct tending to
impede the administration of justice.]

Procedure: Summarily adjudged in contempt


by such court.
By whom initiated:
(1) Generally, civil contempt proceedings
should be instituted by an aggrieved
party, or his successor, or someone who
has pecuniary interest in the right to be
protected;
(2) In criminal contempt proceedings, it is
generally held that the State is the real
prosecutor.
Penalties [Rule 71, sec. 1]:
Offense

Penalty
Fine not exceeding
If RTC or a court of
P2,000 and/or
equivalent or higher
Imprisonment
not
rank
exceeding 10 days
Fine not exceeding
P200 and/or
If lower court:
Imprisonment
not
exceeding 1 day

Procedural requisites for indirect contempt


proceedings:
(1) A charge in writing or an order of the
court to appear and explain; and
(2) An opportunity for respondent to
comment on the charge and to appear
and explain his conduct.

Remedy of a person adjudged in direct


contempt [Rule 71, Sec. 2]
(1) He cannot appeal, but he may file
certiorari or prohibition.
(2) Execution of judgment shall be
suspended pending resolution of such
petition, provided:

Two modes of commencing a proceeding for


indirect contempt
(1) Motu proprio by the court against which
contempt was committed: By order or
any other formal charge requiring
respondent to show why he should not be
punished for contempt; or
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(2) Independent action via verified petition in


all other cases: By a charge commenced
by a verified petition with supporting
particulars. [Rule 70, Sec. 4]

If
committed
against a person
or
entity
exercising quasijudicial functions

Where Charge is to be Filed


General rule: Proceeding for Indirect
Contempt shall be filed and tried by the court
against which the contumacious conduct was
committed.

K.5. WHEN IMPRISONMENT SHALL BE


IMPOSED
When the contempt consists in the refusal or
omission to do an act which is yet in the
power of the respondent to perform, he may
be imprisoned by order of the court
concerned until he performs it. [Rule 71, Sec.
8]

Penalties for indirect contempt [Rule 71, Sec.


7]

Offense

Penalty
Fine
not
exceeding
P30,000 and/or
Imprisonment
not
exceeding 6 months
Fine not exceeding P500,
and/or
Imprisonment
not
exceeding 1 month
Offender may also be
ordered
to
make
complete restitution to
the party injured by such
violation of the property
involved or such amount
as may be alleged and
proved.

If
committed
against
lower
court

If
contempt
consists
in
violation of a writ
of
injunction,
TRO, or status
quo order

equivalent to the lost


thing [Rosario Textile
Mills v. CA]
Penalty shall depend
upon the provisions of
the law which authorizes
penalty for contempt
against such persons or
entities

Remedy of a person adjudged in indirect


contempt: May be appealed to the proper
court as in criminal cases, but execution shall
not be suspended until bond is filed. [Rule 71,
Sec. 11]

Exceptions:
(1) If committed against a lower court, it
may be tried by the RTC, regardless of
the imposable penalty; or
(2) If committed against the SC, it may cause
it to be investigated by the prosecutor
and filed with the RTC, or for hearing and
recommendation where the charge
involves questions of fact [Rule 70, Sec.
5]

If against RTC, or
court
of
equivalent
or
higher rank

REMEDIAL LAW

The respondent carried the keys to his


prison in his own pocket. [Galvez v. Republic
Surety & Insurance Co., Inc. (1959)]
Only the judge who ordered the confinement
of the person for contempt of court can issue
the Order of Release. [Inoturan v Limsiaco, Jr.
(2005)]
Rule 71, Sec. 8 does not apply to tenants who
refused or failed to pay their rentals to the
special administratrix of the property. The
non-payment of rentals, which is a civil debt,
is covered by the constitutional guarantee
against imprisonment. [REGALADO]

K.6. CONTEMPT AGAINST QUASIJUDICIAL BODIES [RULE 71, SEC. 12]

If there is nothing more


to return, offender is
personally liable for the
restitution of the money

Rule 71 shall apply to contempt committed


against persons, entities, bodies, or agencies
exercising quasi-judicial functions or have
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suppletory effect to such rules as they may


have adopted.
RTC of the place where the contempt was
committed shall have jurisdiction.
It is not within the jurisdiction and
competence of quasi-judicial bodies to
decide indirect contempt cases. The
requirement for a verified petition must also
be complied with (e.g. DARAB has no power
to decide the contempt charge filed before it).
[Land Bank v. Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on
all Quasi-Judicial entities or supplements
their rules, unless the applicable law
provides otherwise.
Acts or violations against quasi-judicial
bodies punishable as contempt: Where a
person, without lawful excuse, fails to appear,
make oath, give testimony or produce
documents when required to do so by the
official or body exercising such powers. Other
acts or violations cannot be punished as
contempt unless specifically defined in the
governing law as contempt of court or if it
authorizes the quasi-judicial body to punish
for
contempt,
and
providing
the
corresponding penalty. [People v. Mendoza
(1953); ADMIN. CODE, Bk. VII, Ch. 3, sec. 13]

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REMEDIAL LAW

THE SPECIAL CIVIL ACTIONS


JURISDICTION
VENUE
Personal Property:
1. MTC: If value not more than P300,000 outside
Metro Manila, or not more than P400,000 in
Metro Manila [B.P. Blg. 129, sec. 33]
2. RTC: If value exceeds P300,000 outside Metro Apply Rule 4:
Manila, or P400,000 in Metro Manila, or if
incapable of pecuniary estimation [B.P. Blg. 129, Real action: If the action affects title to or possession of real property,
sec. 19]
venue is where the real property involved or a portion thereof is situated.
INTERPLEADER

DECLARATORY
RELIEF

Real Property:
Personal action: All other actionsAt the election of the plaintiff
1. MTC: assessed value not more than P20,000
1. Where plaintiff or any of the principal plaintiffs reside; or
outside Metro Manila or not more than P50,000
2. Where defendant or any of the principal defendants resides; or
in Metro Manila (Sec. 33, BP 129)
3. In case of an non-resident, where he may be found
2. RTC: value exceeds P20,000 if outside Metro
Manila, or P50,000 if in Metro Manila, or
incapable of pecuniary estimation (Sec. 19,
BP129)
General rule: In the appropriate RTC, since the subject in
declaratory relief is incapable of pecuniary estimation.
Exception: Where the action is a proceeding similar to
Apply Rule 4, i.e. personal action.
declaratory relief (e.g. quieting of title to real property),
jurisdiction will depend on the assessed value of the
property, supra.

REVIEW
OF
JUDGMENTS
AND
FINAL SC
ORDERS
OF
COMELEC/COA

SC

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CERTIORARI
PROHIBITION
MANDAMUS

CIVIL PROCEDURE

QUO WARRANTO

EXPROPRIATION

RTC

JUDICIAL
RTC
FORECLOSURE
PARTITION
RTC
FORCIBLE ENTRY
AND UNALWFUL MTC
DETAINER

RTC, CA, SC;


Sandiganbayan, in aid of its appellate jurisdiction;
RTC where the respondent is situated, where petition relates to an act or
COMELEC, in election cases involving an act or omission of a corporation, board, an officer, or person. [Rule 65, Sec. 4]
omission by MTC or RTC, in aid of its appellate
jurisdiction.
RTC, CA, SC
Sandiganbayan, which has exclusive original
jurisdiction over quo warranto cases filed by the
Generally, action can be brought in the SC, CA, or RTC
PCGG
exercising jurisdiction over the territorial area where respondent
resides or any of the respondent resides
COMELEC, exclusive jurisdiction over cases falling
under the Omnibus Election Code
If commenced by the SolGen, it may be filed with the RTC
Manila, CA, or SC
Special Commercial Courts, for quo warranto
against duly licensed associations. (CORP. CODE
rules apply, not the RULES OF COURT.)
Apply Rule 4, i.e. where the real property involved, or a portion thereof,
is situated
Apply Rule 4, i.e. where the real property involved, or a portion thereof,
is situated
Apply Rule 4
Apply Rule 4, i.e. where the real property involved, or a portion thereof,
is situated

CONTEMPT

REMEDIAL LAW

MTC, RTC, CA, SC

206

If committed against RTC or a court of equivalent or higher rank,


or against an officer appointed by it: File with such court
If committed against a first-level court: File with the RTC of the
place in which lower court is sitting
If act was committed against persons or entities exercising
quasi-judicial functions: File with the RTC of the place wherein
contempt was committed

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CIVIL PROCEDURE

IX. SPECIAL RULES

REMEDIAL LAW

Rule shall not apply:


(1) To a civil case where plaintiffs cause of
action is pleaded in the same complaint
with another cause of action subject to
ordinary procedure
(2) To a criminal case where offense charged is
necessarily related to another criminal case
subject to ordinary procedure

A. REVISED RULES ON SUMMARY


PROCEDURE
A.1. CASES COVERED BY THE RULE (SEC.
1)

A.2. EFFECT OF FAILURE TO ANSWER


(SEC. 6)

Rule shall govern the summary procedure in the


MTC, MTC in Cities, MCTC in the following cases
falling within their jurisdiction:

If defendant fail to answer the complaint within


the period provided, court (motu proprio or on
motion of plaintiff) shall render judgment

For Civil Cases:


(1) Cases of forcible entry and unlawful
detainer
(a) Irrespective of the amount of damages
or unpaid rentals sought to be
recovered
(b) Where attorneys fees are awarded, it
shall not exceed P20,000

The judgment:
(1) As may be warranted by the facts alleged in
the complaint and
(2) Limited to what is prayed for
The court may in its discretion reduce the
amount of damages and attorneys fees claimed
for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18
ROC, if there are 2 or more defendants

(2) All other civil cases where total amount of


plaintiffs claim does not exceed P100,000
or P200,000 in Metropolitan Manila,
exclusive of interest and costs
(a) EXCEPT: probate proceedings

A.3. PRELIMINARY CONFERENCE AND


APPEARANCES OF PARTIES (SEC. 7)

For Criminal Cases


(1) Traffic laws, rules, and regulations violation
(2) Rental law violations
(3) Municipal or city ordinance violations
(4) All other criminal cases where penalty
prescribed by law for offense charged is
imprisonment not exceeding 6 months
and/or a fine not exceeding P1,000
(a) Irrespective
of
other
imposable
penalties, accessory or otherwise, or of
civil liability arising therefrom
(b) In offenses involving damage to
property through criminal negligence,
this rule shall govern where imposable
fine does not exceed P10,000

A preliminary conference shall be held not later


than 30 days after the last answer is filed.
Rules on pre-trial in ordinary cases shall be
applicable unless inconsistent with the
provisions of this Rule
Failure of plaintiff to appear in preliminary
conference
(1) Cause for dismissal of complaint
(2) Defendant who appears in the absence of
plaintiff shall be entitled to judgment on his
counterclaim in accordance with Sec. 6
(3) All cross-claims shall be dismissed

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If sole defendant shall fail to appear


(1) Plaintiff entitled to judgment in accordance
with Sec. 6
(2) Rule shall not apply where one of 2 or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at preliminary conference

REMEDIAL LAW

(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 (P5,000.00);
(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 other classes of disputes which the
President may determine in the interest of
Justice or upon the recommendation of the
Secretary of Justice.

B. KATARUNGANG PAMBARANGAY
LAW (PD 1508; RA 7160 AS
AMENDED)
B.1. SCOPE AND APPLICABILITY OF THE
RULE
RA 7610 Sec. 399-422, and 515 is applicable.
The LGC is now the governing law on
Katarungang Pambarangay. PD 1508 was
expressly repealed

B.2. CASES COVERED


All disputes, civil and criminal in nature, where
parties actually reside in the SAME
CITY/MUNICIPALITY are subjected barangay
conciliation.

The court in which non-criminal cases not


falling within the authority of the lupon under
this Code are filed may, at any time before trial
motu propio refer the case to the lupon
concerned for amicable settlement.

B.3. SUBJECT MATTER FOR AMICABLE


SETTLEMENT (SEC. 408, RA 7160)

B.5. VENUE [RA 7610, SEC. 409]

The lupon of each barangay shall have authority


to bring together the parties actually residing in
the same city or municipality for amicable
settlement of all disputes.

Parties

Lupon

Between
actual
Lupon
of
said
residents of the same
barangay
barangay
Lupon of the barangay
Between
actual where the respondent
residents of different or
any
of
the
barangays but within respondents actually
same city/municipality resides at the option of
complainant
Involving real property Lupon of barangay
or any interest therein were the real property

B.4. WHEN PARTIES MAY GO DIRECTLY


TO COURT
In these cases, referral to barangay conciliation
is not a condition precedent for filing a case to
court:
(1) Where one party is the government, or any
subdivision or instrumentality thereof;

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REMEDIAL LAW

(1) Purely civil in nature where the claim or


relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of
money, and
(2) Civil aspect of criminal action, or reserved
upon the filing of the criminal action in
court, pursuant to Rule of 111 of the Revised
Rules of Criminal Procedure.

or the larger portion


thereof is located
Between
parties
Lupon of the barangay
arising
at
the
were the workplace or
workplace
or
at
institution is located
institutions of learning

B.6. EXECUTION

These claims or demands may be;


(1) For money owned under any of the
following;
(a) Contract of Lease;
(b) Contract of Loan;
(c) Contract of Services;
(d) Contract of Sale; or
(e) Contract of Mortgage;

The amicable settlement or arbitration award


may be enforced by execution by the lupon
within six (6) months from the date of the
settlement. After the lapse of such time, the
settlement may be enforced by action in the
appropriate city or municipal court. [Sec. 417,
RA 7160]

B.7. REPUDIATION

(2) For damages arising from any of the


following;
(a) Fault or negligence;
(b) Quasi-contract; or
(c) Contract;

Any party to the dispute may, within ten (10)


days from the date of the settlement, repudiate
the same by filing with the lupon chairman a
statement to that effect sworn to before him,
where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be
sufficient basis for the issuance of the
certification for filing a complaint as
hereinabove provided. [Sec. 418, RA 7160]

(3) The enforcement of a barangay amicable


settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417, LGC.

C. RULES OF PROCEDURE FOR


SMALL CLAIMS CASES (A.M. NO. 088-7-SC)

C.2. COMMENCEMENT OF SMALL CLAIMS


ACTION; RESPONSE [SEC. 5]

C.1. SCOPE AND APPLICABILITY OF THE


RULE

How commenced: By filing with the court an


accomplished and verified STATEMENT OF
CLAIM in duplicate

This Rule shall govern the procedure in actions


before the MeTC, MTC in Cities, MTC and MCTC
for payment of money where the value of the
claim does not exceed P100,000 exclusive of
interest and costs. [Sec. 2]

Attachments to the Statement of Claim:


(1) Certification of Non-forum Shopping
(2) Two (2) duly certified photocopies of the
actionable document/s subject of the claim
(3) Affidavits of witnesses and other evidence
to support the claim

This Rule is applicable in all actions which are;


[Sec. 4]
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C.3. PROHIBITED
MOTIONS [SEC. 14]

NOTE: No evidence shall be allowed during the


hearing which was not attached to or submitted
together with the Claim. UNLESS good cause is
shown for admission of additional evidence.

REMEDIAL LAW

PLEADINGS

AND

The following pleadings, motions, and petitions


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

No formal pleading, other than the Statement


of Claim, is necessary to initiate a small claims
action.
After examination of allegations of the Claim,
the court may dismiss outright the case for any
of the grounds apparent for the dismissal of a
civil action. [Sec. 9]
If no ground of dismissal is found, the court
shall issue Summons directing defendant to
submit a verified response. [Sec. 10]
The defendant shall file with the court and serve
on the plaintiff a duly accomplished and verified
Response within a non - extendible period of
ten (10) days from receipt of summons [Sec. 11].
Attachments:
(1) Certified photocopies of documents
(2) Affidavits of witnesses
(3) Evidence in support

C.4. APPEARANCES
The parties shall appear at the designated date
of hearing personally or through a
representative authorized under a Special
Power of Attorney to:
(1) Enter into an amicable settlement,
(2) Submit of Judicial Dispute Resolution (JDR)
and
(3) Enter into stipulations or admissions of
facts and of documentary exhibits [Sec. 16]

NOTE: No evidence shall be allowed during


hearing which was not attached or submitted
together with the Response.
Should the defendant fail to file his response
within the required period, the court by itself
shall render judgment as may be warranted by
the facts alleged in the Statement of claim
limited to what is prayed for. The court however,
may, in its discretion, reduce the amount of
damages for being excessive or unconscionable.
[Sec. 12]

No attorney shall appear in behalf of or


represent a party at the hearing, unless the
attorney is the plaintiff or defendant. [Sec. 17]
Failure to appear:
(1) If plaintiff fails to appear it shall be a
cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.
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REMEDIAL LAW

(2) If defendant fails to appear same effect as


failure to file Response.

The decision shall be final and unappealable.


[Sec. 23]

C.5. HEARING; DUTY OF THE JUDGE

D. EFFICIENT USE OF PAPER RULE


(A.M. NO. 11-9-4-SC)

At the beginning of the court session, the judge


shall read aloud a short statement explaining
the nature, purpose and the rule of procedure of
small claims cases. [Sec. 20]

D.1. FORMAT AND STYLE


All pleadings, motions and similar papers
intended for the court and quasi-judicial bodys
consideration and action (court-bound papers)
shall:
(1) Be written in single space with one-and-a
half space between paragraphs,
(2) Use an easily readable font style of the
partys choice, of 14-size font, and on a 13
inch by 8.5- inch white bond paper

At the hearing, the judge shall conduct JDR


through mediation, conciliation, early neutral
evaluation, or any other mode of JDR. [Sec. 21]
If JDR fails and the parties agree in writing that
the hearing of the case shall be presided over by
the judge who conducted the JDR, the hearing
shall so proceed in an informal and expeditious
manner and terminated within one (1) day. [Sec.
22]

All decisions, resolutions and orders issued by


courts and quasi-judicial bodies under the
administrative supervision of the Supreme
Court shall comply with these requirements.
Similarly covered are the reports submitted to
the courts and transcripts of stenographic notes.

Absent such agreement


(1) In case of a multi-sala court , the case shall,
on the same day, be transmitted to the
Office of the Clerk of Court for immediate
referral by the Executive Judge to the
pairing judge for hearing and decision
within five (5) working days from referral;
and
(2) In case of single sala court, the pairing
judge shall hear and decide the case in the
court of origin within five (5) working days
from referral by the JDR judge.

D.2. MARGINS AND PRINTS


The parties shall maintain the following
margins on all court-bound papers:
(1) Left hand margin of 1.5 inches from the
edge;
(2) Upper margin of 1.2 inches from the edge;
(3) Right hand margin of 1.0 inch from the
edge;
(4) Lower margin of 1.0 inch from the edge.
Every page must be consecutively numbered.

C.6. FINALITY OF JUDGMENT

D.3. COPIES TO BE FILED

After the hearing, the court shall render its


decision on the same day, based on the facts
established by the evidence.

Unless otherwise directed by the court, the


number of court- bound papers that a party is
required or desires to file shall be as follows:

The decision shall immediately be entered by


the Clerk of Court in the court docket for civil
cases and a copy thereof forthwith served on the
parties.

In the Supreme Court,


(1) One original (properly marked) and 4 copies

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(2) Two sets of annexes, one attached to the


original and an extra copy

REMEDIAL LAW

In other courts,
(1) One original (properly marked)
(2) With the stated annexes attached to it.

If the case is referred to the Court En Banc:


(1) Parties shall file 10 additional copies.
(2) For the En Banc, the parties need to submit
only 2 sets of annexes, one attached to the
original and an extra copy.

D.4. ANNEXES SERVED ON ADVERSE


PARTY
A party required by the rules to serve a copy of
his court-bound on the adverse party need not
enclose copies of those annexes that based on
the record of the court such party already has in
his possession.

All members of the Court shall share the extra


copies of annexes in the interest of economy of
paper.
In the Court of Appeals and the Sandiganbayan,
(1) One original (properly marked) and
(2) Two copies with their annexes;

In the event a party requests a set of the


annexes actually filed with the court, the part
who filed the paper shall comply with the
request within five days from receipt.

In the Court of Tax Appeals,


(1) One original (properly marked) and
(2) 2 copies with annexes

D.5. APPLICABILITY
This Rule applies to all courts and quasi-judicial
bodies under the administrative supervision of
the Supreme Court.

On appeal to the En Banc:


(1) One Original (properly marked)
(2) 8 copies with annexes; and

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SPECIAL PROCEEDINGS

REMEDIAL LAW

REMEDIAL LAW

SPECIAL PROCEEDINGS

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SPECIAL PROCEEDINGS

I. Special Proceedings

REMEDIAL LAW

APPLICABLE RULES
If special rules are provided, they shall apply.
But in the absence of special provisions, the
rules provided for in ordinary actions shall be,
as far as practicable, applicable in special
proceedings. [Rule 72, Sec. 2]

Rule 1 Sec 3(c). A special proceeding is a remedy


by which a party seeks to establish a status, a
right, or a particular fact.

A.
SUBJECT
MATTER
AND
APPLICABILITY OF GENERAL RULES

There are special proceedings which are not


part of the ROC but are provided for under
special laws and Supreme Court circulars (e.g.
Writs of amparo and habeas data)

Rule 72 Sec 1. Subject matter of special


proceedings. Rules of special proceedings are
provided for in the following cases:
(1) Settlement of estate of deceased
persons
(2) Escheat
(3) Guardianship and custody of children
(4) Trustees
(5) Adoption
(6) Rescission and revocation of adoption
(7) Hospitalization of insane persons
(8) Habeas corpus
(9) Change of name
(10) Voluntary dissolution of corporations
(11) Judicial
approval
of
voluntary
recognition of minor natural children
(12) Constitution of family home
(13) Declaration of absence and death
(14) Cancellation of correction of entries in
the civil registry.

The distinction between final and


interlocutory orders in civil actions for purposes
of determining the issue of applicability is not
strictly applicable to orders in special
proceedings. Rule 109 specifies the orders from
which appeals may be taken [REGALADO]
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings
[Matute v. CA (1969)].

DISTINCTION BETWEEN ORDINARY CIVIL


ACTION AND SPECIAL PROCEEDINGS
Ordinary Civil Action

NOTES

Special Proceeding

To protect or enforce a Text To establish a


right or prevent or right,
status,
or
redress a wrong
particular fact

Rule 99 on Adoption and Rule 100 on


Rescission and Revocation of Adoption had
been expressly repealed by the new Rules on
Adoption (effective August 22, 2002).
[FESTIN]
Rule 104 is likewise deemed repealed by Sec
119 of the Corporation Code and a Petition for
Voluntary Dissolution of Corporations is now
to be filed with the Securities and Exchange
Commission and not with the courts.
[BAUTISTA]
Rules 105 and Rule 106 are deemed obsolete
because under the Family Code, there are no
more natural children and a family home is
deemed automatically constituted.
List under Rule 72 is not exclusive [FESTIN]

Generally adversarial in May involve only one


nature, involves two or party
more parties
Governed by ordinary Governed by special
rules supplemented by rules, supplemented by
special rules
ordinary rules
Courts
of
jurisdiction

general Courts
of
jurisdiction

limited

Initiated by pleading, Initiated by petition,


and parties respond parties
respond
through an answer
through an opposition
Laws on pleadings Laws on
applicable: filing of an generally
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SPECIAL PROCEEDINGS

B. JURISDICTION

answer, counterclaim, applicable.


cross-claim, third-party
complaint

Exclusive original jurisdiction over all matters of


probate, both testate and intestate, shall lie
with:
MTC if gross value of the estate
Outside Metro
does not exceed P300,000; If
Manila
it exceeds such value then RTC
MTC if gross value of the estate
In
Metro
does not exceed P400,000;
Manila
Otherwise RTC

An action is a formal demand of ones right in a


court of justice in the manner prescribed by the
court or by the law. It is a method of applying
legal remedies according to definite established
rules.
A special proceeding is an application or
proceeding to establish the status or right of a
party or a particular fact. Usually, in special
proceedings, no formal pleadings are required
unless the statute expressly so provides. In
special proceedings the remedy is granted
generally upon an application or motion. It is in
the nature of a distinct and independent
proceeding for particular relief, such as may be
instituted independently of a pending action, by
petition or motion upon notice. [Natcher v. CA,
366 SCRA 385]

Court first taking cognizance shall exercise


jurisdiction to the exclusion of all other courts
and cannot be divested by subsequent act of
interested parties.
Testate proceedings take precedence over
intestate proceedings of the same estate.
[Sandoval v. Santiago (1949)]
Thus, if in the course of intestate proceedings
pending before a court of first instance, it is
found that the decedent had left a last will,
proceedings for the probate of the latter should
replace the intestate proceedings even if at that
stage an administrator had already been
appointed, the latter being required to render
final account and turn over the estate in his
possession to the executor subsequently
appointed. This, however, is understood to be
without prejudice that should the alleged last
will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
[Uriarte vs. CFI (1970]

II. Settlement of Estate of Deceased Persons

A. MODES
ESTATE

OF

SETTLEMENT

REMEDIAL LAW

OF

(1) Extrajudicial
(a) If only one heir: Affidavit of Selfadjudication
(b) If two or more heirs: Deed of
Extrajudicial Settlement or Partition
[Rule 74 Sec 1]
(2) Judicial
(a) Partition [Rule 69]
(b) Summary Settlement of Estate of Small
Value [Rule 74 Sec 2]
(c) Petition for Letters of Administration
[Rule 79]
(d) Probate of a Will [Rule 75-79]
(i) Petition for Letters Testamentary; or
(ii) Petition
for
Letters
of
Administration with the will
annexed (if no named executor)

C. VENUE
(1) If Inhabitant of the Philippines at the time of
death (citizen or alien) Court of the
province where decedent resided at time of
death
(2) If inhabitant of foreign country at the time of
death Court of any province where
decedent had an estate [Rule 73 Sec 1]
Residence
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In the application of venue statutes and rules,


residence rather than domicile is the significant
factor. The word resides means personal,
actual, or physical habitation of a person, or his
actual residence or place of abode. It does not
mean legal residence or domicile. [Fule v. CA, 74
SCRA 189]

REMEDIAL LAW

The court first taking cognizance of the


settlement of estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts. [Rule 73 Sec 1]
Under the rule of venue, the court with whom a
petition is first filed must also first take
cognizance of the petition in order to exclude
other courts. [BAUTISTA]

NOTE: Jurisdiction as used in Rule 73 means


venue.

E. POWERS AND DUITIES OF A


PROBATE COURT

If venue is improperly laid:


General Rule: Ordinary appeal
Exceptions: Certiorari may be resorted to if
impropriety of venue (due to residence or
location of estate) appears on the record. [Rule
73 Sec 1]

It is the duty of courts of probate jurisdiction to


guard jealously the estates of the deceased
person by intervening in the administration
thereof in order to remedy or repair any injury
that may be done thereto [Dariano vs.
Fernandez Fidalgo (1909)]

D. EXTENT OF JURISDICTION OF
PROBATE COURT

There seems, however, to be a general


tendency, in the absence of express and specific
restrictions to the contrary, to uphold the
exercise by the probate court of such incidental
powers as are, within the purview of their grant
of authority, reasonably necessary to enable
them to accomplish the objects for which they
were invested with jurisdiction and to perfect
the same. [In Re: Baldomero Cosme (1937)]

A probate court is of limited jurisdiction. It may


only determine and rule upon issues relating to
the settlement of estates namely:
(1) Liquidation of estate;
(2) Administration of the estate; and
(3) Distribution of the estate [HERRERA]
General rule: Questions as to title to property
cannot be passed upon on testate or intestate
proceedings.
Exceptions:
(1) In a provisional manner to determine
whether said property should be included or
excluded in the inventory, without prejudice
to final determination of title in a separate
action [Cuizon v Ramolete (1984)]
(2) With consent of all the parties, without
prejudice to third persons [Trinidad v. CA
(1991)]
(3) If the question is one of collation or
advancement [Coca v. Borromeo (1978)]
(4) When the estate consists of only one
property [Portugal v. Portugal-Beltran
(2005)]

Ancillary powers of a probate court


(1) Issue warrants and processes to compel
attendance of a witness and to carry into
effect their orders and judgments;
(2) Issue warrant for apprehension and
imprisonment of a person who refuses to
perform an order or judgment;
(3) All other powers granted to them by law
[Rule 73 Sec 3]

Not the court where petition is first filed but


court which first takes cognizance
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III. Summary Settlement


of Estates

REMEDIAL LAW

Modes:
(1) If sole heir: Affidavit of Self-adjudication (of
the whole estate)
(2) If more than one heir: Deed of Extrajudicial
Settlement or partition

General rule: The settlement of the estate of the


decedent should be judicially administered
through an administrator or executor.

Deed of Extrajudicial Settlement is resorted to if


there is no disagreement among the heirs.

Exception
Law allows heirs to resort to:
(1) Extrajudicial settlement of estate (decedent
died intestate and left no debt); or
(2) Summary settlement of estate (for estates of
small value)

If there is a disagreement, then they may resort


to an action for partition (which is judicial)
Procedure:
Division of estate in a public instrument or
affidavit of adjudication.

Ratio: When partition is possible, either in or


out of court, the estate should not be burdened
with an administration proceeding without
good and compelling reasons. [Pereira v. CA
(1989)]

Pubic instrument/affidavit filed with proper


Registry of Deeds and posting of a bond if
estate has personal property (bond
equivalent to amount of personal property).

No preclusion from instituting administrative


proceedings
While Section 1 allows the heirs to divide the
estate among themselves as they may see fit, or
to resort to an ordinary action for partition, the
said provision does not compel them to do so
(not precluded from instituting administration
proceedings) if they have good reasons to take a
different course of action. Good reasons
depend on circumstances of each case. [Ibid]

Publication of notice of the fact of


extrajudicial settlement once a week for 3
consecutive weeks in a newspaper of general
circulation in the province, and after such
other notice to interested persons as the
court may direct.

Extrajudicial settlement not binding on those


who did not participate or had no notice
The procedure outlined in Section 1 of Rule 74 is
an ex parte proceeding. The rule plainly states,
however, that persons who do not
participate or had no notice of an extrajudicial
settlement will not be bound thereby.

A. EXTRAJUDICIAL SETTLEMENT OF
ESTATES
Requisites [Rule 74 Sec 1]
(1) Decedent died intestate
(2) Left no debts or heirs have already paid such
at the time of partition
(3) Heirs are all of age, minors represented by
their legal or judicial representatives

The requirement of publication is geared for the


protection of creditors and was never intended
to deprive heirs of their lawful participation in
the decedent's estate. [Benatiro v. Heirs of Cuyos
(2008)]
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Oral partition is valid


Because there is no law that requires partition
among heirs to be in writing to be valid. [Pada
Kilario v. CA (2000)]

Procedural Requirements:
(1) Petition by an interested person
alleging fact that estate does exceed
P10,000
(2) Hearing which shall be
(a) Held not less than 1 month nor more
than 3 months
(b) Counted from the date of the last
publication of a notice
(3) Notice
(a) Which shall be published once a
week for 3 consecutive weeks
(b) In a newspaper of general
circulation in the province
(c) It is not required that publication be
for a complete 21 days. What is
required is that it be published for
once a week for 3 consecutive weeks.
(4) Other notice to interested persons as
the court may direct [Rule 74 Sec 2]
(5) Bond in an amount to be fixed by court
if personal property is to be distributed
[Rule 74 Sec 3]

Validity of compromise agreement


Such is VALID, binding upon the parties as
individuals, upon the perfection of the contract,
even without previous authority of the court to
enter into such agreement. [Borja v. Vda. De
Borja (1972)]

TWO-YEAR PERIOD
Disputable presumption of no debt
If within two years after the death of the
decedent no creditor files a petition for letters of
administration, then it shall be presumed that
decedent left no debt.
Two-year prescriptive period
Heirs or person deprived of lawful participation
in the estate may compel settlement of estate
within 2 years from settlement and distribution.

Upon fulfillment of the requisites, the court may


proceed summarily without the appointment of
an executor/administrator and without delay,
(1) to grant, if proper, allowance of the will,
if there be any
(2) to determine who are persons legally
entitled to participate in the estate
(3) to apportion and divide among them
after the payment of such debts of the
estate
(4) persons in own right if of lawful age, or
their guardians, will be entitled to
receive and enter into possession of the
portions of the estate so awarded to
them respectively. [Rule 74 Sec 2]

A lien shall be constituted on the real property


of the estate and together with the bond, it
shall be liable to creditors, heirs or other
persons for a full period of 2 years after such
distribution.
Such lien will be not cancelled before the lapse
of two years even if a distributee offers to post
bond to answer for contingent claims [Rebong v.
Ibanez (1947)]

B. SUMMARY SETTLEMENT
ESTATES OF SMALL VALUE

REMEDIAL LAW

OF

When allowed: Whenever the gross value of


estate of the decedent does not exceed P10, 000.

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PROCEDURE

Value of the estate is Gross value of the


immaterial
estate must not exceed
P10, 000

Death of the decedent

Petition for summary settlement with an


allegation that the gross value of the estate
does not exceed P10K

Publication of notice of the fact of summary


settlement once a week for 3 consecutive
weeks in a newspaper of general circulation in
the province, and after such other notice to
interested persons as the court may direct

Hearing to be held not less than 1 month nor


more than 3 months from the date of the last
publication of notice

Court to proceed summarily, without


appointing
an
executor/administrator
(executor/administrator), and to make orders
as may be necessary such as:
(1) Grant allowance of will, if any;
(2) Determine persons entitled to estate;
(3) Pay debts of estate which are due;

Filing of bond fixed by the court

Partition of estate

Bond filed with the


Register of Deeds in an
amount equal to the
value of the personal
property of the estate

WITHIN REGLAMENTARY PERIOD OF


TWO YEARS:
(1) Claim on the bond
(2) Claim on lien on real property
notwithstanding any transfers of real property
that may have been made.
(3) Reopening by intervention before rendition
of judgment
(4) Action to Annul Settlement
When applicable: there is an heir or other
person who
(1) has been unduly deprived of his lawful
participation in the estate:
a. He shall have a right to compel
the settlement of the estate in
the courts for the purpose of
satisfying
such
lawful
participation
(2) has been unduly deprived of his lawful
participation payable in money: The
court having jurisdiction of the estate
may, by order for that purpose, after
hearing,
a. settle the amount of such debts
or lawful participation, and
b. may issue execution against the
bond or against the real estate
belonging to the deceased, or
both. [Rule 74 Sec 4]

Extrajudicial Settlement Summary Settlement


Court intervention not Summary
judicial
required
adjudication needed
Decedent may or may
not have left a will
(died intestate/testate)

Decedent left no debt

Decedent may have left


debts

Bond filed with and


amount
to
be
determined by the
court

C.
REMEDIES
OF
AGGRIEVED
PARTIES AFTER EXTRA-JUDICIAL
SETTLEMENT OF ESTATE

COMPARISON

Decedent left no will

REMEDIAL LAW

Heirs are all of age or No such requirement


minors are represented
Instituted only at the May be instituted by
instance
and
by any interested party
agreement of all heirs even by a creditor
without consent of the
heirs
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When not applicable:


(1) To persons who have participated or
taken part or had notice of the
extrajudicial partition
(2) When the provisions of Sec. 1 of
Rule 74 have been strictly complied
with (all persons or heirs of the
decedent have taken part in the
extrajudicial settlement or are
represented by themselves or
through guardians)

REMEDIAL LAW

(3) Petition for Relief on ground of fraud,


accident, mistake, excusable negligence
within 60 days after petitioner learns of
judgment final order or other proceedings
to be set aside and not more than 6 months
after such judgment or order is entered or
taken [Rule 38]

IV. Production and


Probate of Will

Additional Period for Claim of Minor or


Incapacitated Person
If on the date of the expiration of the period of 2
years, the person authorized to file a claim is:
(1) a minor or mentally incapacitated,
(2) is in prison or
(3) outside the Philippines,

A.
NATURE
PROCEEDINGS

OF

PROBATE

(1) In rem proceedings


(2) Mandatory no will shall pass either real or
personal property unless it is proved and
allowed in the proper court [Rule 75 Sec 1]
(3) Right to ask for probate does not prescribe
[Guevara v. Guevara (1943)]
(4) Doctrine of estoppel does not apply
[Fernandez v. Dimagiba (1967)]

He may present his claim within 1 year after


such disability is removed. [Rule 74 Sec 5]
Within the reglementary period, the judge of a
probate court has the power to reopen estate
proceedings even after the issuance of an order
approving a project of partition and closing the
proceedings. Rather than requiring an allegedly
preterited party to air his grievances in a
separate and independent action, he may within
the reglementary period claim his relief sought
in the same case by reopening the same even
after a project of partition and final accounting
had been approved. This is proper to avoid
needless delay in the resolution of cases [Jerez v.
Nietes (1969)

Before any will can have force or validity, it must


be probated. Until admitted to probate, a will
has no effect whatsoever and no right can be
claimed thereunder. [Sps Pascual v. CA (2003)]
The presentation of the will for probate is
mandatory and is a matter of public policy.
Unless the will is probated, the right of a person
to dispose of his property may be rendered
nugatory. [Maninang v. CA (1982)]
Duty of custodian, executor
The person who has custody of the will shall
deliver the will to the court having jurisdiction or,
to the executor within 20 days after he knows of
the death of the testator. [ Rule 75 Sec 2]

OTHERS:
(1) Action for reconveyance of real property
based on an implied trust, reckoned 10
years from issuance of title [Marquez v. CA
(1998)]

The person named executor shall present the


will to the court having jurisdiction, unless the
will has reached it in any manner, and signify

(2) Rescission in case of preterition of


compulsory heir in partition tainted with
bad faith [Art 1104 NCC]
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acceptance/refusal of the trust within 20 days


after he knows of the death of the testator or
after he knows that he is named executor.[Rule
75 Sec 3]

there is clearly preterition and the said judge


still continues the probate proceedings)

Penalty for neglect without excuse satisfactory


to the court: Fine not exceeding P2,000 [Rule 75
Sec 4]

Due execution of the will means:


(1) That the will was executed strictly in
accordance with the formalities
required by law;
(2) That the testator was of sound and
disposing mind when the will was
executed;
(3) That there was no vitiation of consent
through duress, fear or threats;
(4) That it was not procured by undue and
improper pressure or influence on part
of beneficiary or other person for his
benefit;
(5) That the testators signature is genuine
(it was not procured through fraud and
that the testator intended that what he
executed was his last will and
testament)

Extrinsic validity - due execution of the will;

Person retaining will may be committed to


prison
if:
(1) Has custody of will
(2) There is a court order directing him to deliver
the will; and
(3) Neglects without reasonable cause to deliver
the same [Rule 75 Sec 5]

V. Allowance or
Disallowance of Will
Probate or allowance of wills is the act of
proving in court a document purporting to be
the last will and testament of the deceased for
the purpose of its official recognition,
registration and carrying out its provision in so
far as they are in accordance with law. [FESTIN]

A. WHO MAY PETITION FOR


PROBATE; PERSONS ENTITLED TO
NOTICE
TIMING AND WHO MAY PETITION
A will may be probated:
(1) Before the testators death - By testator
himself
Rationale: Easier for courts to determine
mental condition of testator. Fraud
intimidation and undue influence are
minimized. And if will does not comply with
requirements prescribed by law, they can be
easily corrected.
(2) After the testators death By executor,
devisee, or legatee named in the will or any
person interested in the estate

General Rule: A probate proceeding only looks


at extrinsic validity.
Exception:
Principle of Practical Consideration
The probate court may pass upon the intrinsic
validity of the will because there is apparent
defect in its face this is also known as the
principle
of
practical
consideration
[Nepomuceno v CA (1985)]. (Ex. When on the
face of the will the petitioner appears to be
preterited)

MEANING OF INTEREST IN ESTATE


An interested party is one who would be
benefited by the estate such as an heir or one
who has claim against the estate like a creditor.
[Sumilang v. Ramagosa (1967)]

But the remedy of certiorari is available, where


the grounds for dismissal are indubitable (e.g.
grave abuse of discretion of the judge when
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Persons entitled to notice


(1) Known heirs, legatees and devisees;
(2) Named executor his co-executor if they
are not the petitioner[Rule 76 Sec 4]
(3) Compulsory heirs, if the testator himself
asks for probate of his own will.

If testator files for probate of his will, no


publication is required and notice is only to the
compulsory heirs. [Rule 76 Sec 3]

Periods to give notice


(1) Personal service: At least 10 days before
hearing
(2) By mail: at least 20 days before hearing

Uncontested will
(1) Notarial Will Testimony of at least one
subscribing witness that the will was
executed as required by law. [Rule 76 Sec 5]
a. If all subscribing witnesses reside
outside of the province their testimony
can be taken through a deposition by
presenting a photocopy of the will and
propounding questions thereat. [Rule
76 Sec 7]
b. Other witnesses who are not
subscribing
witnesses
may
be
presented if all subscribing witnesses
are dead, insane or do not reside in the
Philippines. [Rule 76 Sec 8]

EVIDENCE REQUIRED IN SUPPORT OF A


WILL

B. CONTENTS OF PETITION FOR


ALLOWANCE OF WILL
(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the
province where the probate court is
sitting Or if he is an inhabitant of a
foreign country, his leaving his estate in
such province;
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
(3) Probable value and character of the
property of the estate
(4) Name of the person for whom letters are
prayed
(5) If the will has not been delivered to the
court, the name of the person having
custody of it. [Rule 76 Sec 2]

(2) Holographic wills At least one witness who


knows the handwriting and signature of the
testator who will explicitly declare that the
will and signature are in the handwriting of
the testator.
a. Expert Testimony may be resorted to
In the absence of such competent
witness, and if the court deem it
necessary.

EFFECTS OF DEFECT IN PETITION


No defect in petition shall render void the
allowance of will, or the issuance of letters
testamentary or of administration with the will
annexed. [Rule 76 Sec 2]

If the testator himself petitions for probate of


holographic will and it is not contested: The fact
that he affirms that the holographic will and the
signature are in his own handwriting shall be
sufficient evidence of genuineness and due
execution thereof. [Rule 76 Sec 12]

JURISDICTION, HOW ACQUIRED


It is not mandatory that witnesses be presented
first before expert testimony may be resorted to
unlike in notarial wills wherein attesting
witnesses must first be presented. [Azaola v.
Singson (1960)]

(1) Attaching a mere copy of will to the petition


or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and
compliance with Sec 3-4 Rule 76.
a) Publication for 3 weeks of the order
b) Notice to all interested persons (If by mail,
20 days before hearing; if through personal
service, 10 days before hearing)

Contested will
Anyone appearing to contest the will must state
in writing his grounds for opposing the
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allowance and serve a copy to petitioner and


other interested parties [Rule 76 Sec 10]

REMEDIAL LAW

testators lifetime without his


knowledge; and
iii. Provisions of the will (clearly and
distinctly proved by at least two
credible witnesses)

(1) Notarial Will All subscribing witness and


the notary if present in the Philippines and
not insane must be presented [Rule 76 Sec
11]
a. If dead, insane or absent said fact
must be satisfactorily shown in court.
b. If present in the Philippines but outside
the province deposition may be taken.

If lost will is proved, its provisions must be


distinctly stated and certified by the judge,
under seal of court, and the certificate must be
filed and recorded as other wills are filed and
recorded. [Rule 76 Sec 6]

Can testimony of the subscribing witnesses be


dispensed with in a contested will?
YES. If all or some of the subscribing witness
i) testify against the due execution of the will;
or ii) do not remember having attested to it; or
iii) are otherwise of doubtful credibility

(2) Holographic Wills


General Rule: If a holographic will has been lost
or destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will.

Court may allow the will if it is satisfied from


testimony of other witnesses and evidence
presented that the will was executed and
attested in the manner required by law. [Rule 76
Sec 11]

Exception: A photostatic copy or xerox of the


holographic will may be allowed because
comparison can be made with the standard
writings of the testator. [Rodelas v Aranza
(1982)]

(2) Holographic Will if at least 3 witnesses


who know the handwriting of the testator
explicitly declare that the will and the
signature are in the handwriting of the
testator.
a. Expert testimony may be resorted to in
the absence of such witnesses.

C. GROUNDS FOR DISALLOWING A


WILL
The will shall be disallowed in any of the
following cases:
(1) If not executed and attested as required by
law;
(2) If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution;
(3) If executed under duress, or the influence of
fear, or threats;
(4) If procured by undue and improper pressure
and influence, on the part of the beneficiary,
or of some other person for his benefit;
(5) If the signature of the testator was procured
by fraud or trick, and he did not intend that
the instrument should be his will at the time
of fixing his signature thereto [Rule 76 Sec
9]

If the testator himself petitions for probate of


holographic will and it is contested: Contestant
have the burden of disproving genuineness.
Testator may present additional proof to rebut
contestants evidence. [Rule 76 Sec 12]
Lost will
(1) Notarial Wills even if lost may be proved
Facts to be proved in order that lost or
destroyed will may be allowed:
i. Due execution and validity of the will;
and
ii. Existence at the time of testators
death or that it has been fraudulently
or accidentally destroyed during

The list is exclusive. [Sps Ajero v. CA (1994)]

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D. REPROBATE

F. EFFECTS OF PROBATE

Wills proved and allowed in a foreign country,


according to the laws of such country, may be
allowed, filed, and recorded by the proper Court
of First Instance in the Philippines (now RTC).
[Rule 77 Sec 1]

Effect of Probate of Will


Decree of probate is conclusive as to its due
execution, subject to the right of appeal. (Thus,
no suit for forgery of a will, which has been duly
probated and such order becoming final)
If decision admitting a will to probate becomes
final, there can no longer be any challenge to its
due execution and authenticity. Thus, criminal
action will not lie against an alleged forger of
the will. [Mercado v. Santos (1938)]

Requisites for Allowance


(1) Duly authenticated Copy of the will;
(2) Duly authenticated Order or decree of the
allowance in foreign country;
A petition for allowance in the Philippines may
be filed by executor or other person interested.
The Court having jurisdiction shall fix a time and
place for the hearing and cause notice thereof
to be given as in case of an original will
presented for allowance. [Rule 77 Sec 2]

Order allowing or disallowing may be the


subject of an appeal. [Rule 109 Sec 1]

Industrial Partner

Evidence necessary for reprobate


(1) the due execution of the will in accordance
with the foreign laws;
(2) the testator has his domicile in the foreign
country and not in the Philippines;
(3) the will has been admitted to probate in
such country;
(4) the fact that the foreign tribunal is a probate
court, and
(5) the laws of a foreign country on procedure
and allowance of wills [Vda. De Perez v. Tolete
(1994)]

Operates with
name
and
personality

Capitalist Partner

firm Operates without firm


legal name
and
legal
personality

Generally relates to a Usually limited to a


continuing business of single transaction
various transactions of
a certain kind
Corporations may not Corporations may enter
enter into a partnership into joint ventures

Effect
(1) The will shall have the same effect as if
originally proved and allowed in such court;
(2) Letters testamentary or administration with
a will annexed shall extend to all estates of
the testator in the Philippines;
(3) After payment of just debts and expenses of
administration the estate shall be disposed
of according to the will
(4) Residue disposed of in accordance with law
[Rule 77 Sec 4]

VI. Letters Testamentary


and of Administration
A. WHEN AND TO WHOM LETTERS OF
ADMINISTRATION ARE GRANTED
Who may administer the estate of a deceased
person?
(1) Executor
(2) Administrator

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Executor

Administrator

Person
named
expressly by deceased
person in his will to
administer estate and
subsequently
appointed by court

Appointed when:
1. Testator did not
appoint an executor
2. The appointment
was refused
3. The will was
disallowed
4. No will (intestate
succession)

REMEDIAL LAW

WHO ARE INCOMPETENT TO SERVE AS


EXECUTOR OR ADMINISTRATOR
(1) Minor;
(2) Non-resident
(3) One who, in the opinion of the court, is unfit
to exercise the duties of the trust by reason
of
a. Drunkenness
b. Improvidence
c. Want of understanding
d. Want of integrity; or
e. Conviction of an offense involving
moral turpitude. [Rule 78 Sec 1]
(4) Executor of an executor cannot, as such,
administer estate of the first testator [Rule
78 Sec 2]

Has duty to present the


will to court within 20
days after (1) he learns
of the death of testator
or (2) after he knew he No such duty
was appointed as
executor (if he obtained
such knowledge after
death
of testator)
unless will has reached
the court in any
manner

The list above is not exclusive.


In this jurisdiction, one is considered to be
unsuitable for appointment as administrator
when he has adverse interest of some kind or
hostility to those immediately interested in the
estate. [Lim v. Diaz-Millarez (1966)]

The
testator
may
provide that he may
serve without a bond Required to file bond
but the court shall unless exempted by
direct him to post a law
bond conditioned only
to pay debts.

WHEN ARE LETTERS TESTAMENTARY OR


OF ADMINISTRATION GRANTED
Letters testamentary it is an authority issued
to an executor named in the will to administer
the estate. It is issued once the will has been
proved and allowed and if the executor named
is competent, accepts the trust and gives bond.
[FESTIN; Rule 78 Sec 4]

Compensation
provided in the will
controls,
unless First part of Rule 85
renounced.
Sec 7 applies
If theres no provision
for compensation, Sec.
7 of Rule 85 shall
apply.

Letters administration authority issued by


court to a competent person to administer the
estate if:
(1) No executor is named in will
(2) Executor or executors named are
incompetent, refuse the trust, or fail to
give bond or
(3) Person dies intestate. [Rule 78 Sec 6]

Any competent person may serve as an executor


or administrator.
Married woman may serve as executor or
administrator and a marriage of a single woman
shall not affect her authority so to serve under a
previous appointment. [Rule 78 Sec 3]
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Court may reject order of preference when


circumstances warrant. [Villamor v. Court of
Appeals, (1988)]

B. ORDER OF PREFERENCE
Order of preference in the grant of
administration
(1) Surviving spouse or next of kin, or both, or
to such person as the surviving spouse, or
next of kin requests to have appointed, if
competent and willing to serve.
(2) If those enumerated above be incompetent
or unwilling, or if the husband or widow, or
next of kin, neglects for 30 days after the
death of the person to apply for
administration or to request that
administration be granted to some other
person, it may be granted to one or more of
the principal creditors, if competent and
willing to serve.
(3) If there is no (2), it may be granted to such
other person as the court may select. [Rule
78 Sec 6]

The order of preference is not absolute for it


depends on the attendant facts and
circumstances of each case. The selection of an
administrator lies in the sound discretion of the
trial court. [In Re Suntay, (2007)]

30-DAY PERIOD MAY BE WAIVED


Just as the order of preference is not absolute
and may be disregarded for valid cause, so may
the 30-day period be likewise waived under the
permissive tone in paragraph (b) of said rule
which merely provides that said letters as an
alternative, may be granted to one or more of
the principal creditors. [HERRERA]
Co-administrators may be appointed. [Matute v.
Court of Appeals (1969)]

Next of kin are those entitled by law to receive


the decedents properties. [Gonzalez v.
Aguinaldo, et al., (1990)]

C. OPPOSITION TO ISSUANCE OF
LETTERS
TESTAMENTARY;
SIMULTANEOUS FILING OF PETITION
FOR ADMINISTRATION

Reason for order of preference


Those who would reap the benefit of a wise,
speedy and economical administration of the
estate, or, on the other hand, suffer the
consequences of waste, improvidence or
mismanagement, have the highest interest and
most influential motive to administer the estate
correctly. [Gonzalez v. Aguinaldo, et al., (1990)]

Who may oppose


Any person interested in a will. [Rule 79 Sec 1]
Meaning of interested person
One who would be benefited by the estate, such
as an heir, or one who has a claim against the
estate, such as a creditor; thus interest must be
material and direct, not merely indirect or
contingent. [Saguinsin v. Lindayag, 6 SCRA 874]

Mere failure to apply for letters of


administration does not remove preference. [1
ALR 1247]
General Rule: The court cannot set aside order
of preference

Grounds
(1) Incompetency of the person/s named in the
will as executor/s, or
(2) Contestants
own
right
to
the
administration (ex. preferential right under
Rule 78 Sec 6) [Rule 79 Sec 4]

Exception:
If the person enjoying such preferential rights is
(1) Unsuitable
(2) Incompetent
(3) Unwilling
(4) Neglect to apply for letters 30 days after the
death of the decedent
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Form required
Grounds for opposition must be stated in
writing; court shall then hear and pass upon
sufficiency of such grounds. [Rule 79 Sec 1]

Order appointing regular administrator is


appealable. [Rule 109]

Contents of a Petition for Letters of


Administration
(1) Jurisdictional facts;
a. Death of testator;
b. Residence at time of death in the
province where probate court is
sitting; or
c. If he is an inhabitant of foreign
country, his having left his estate in
such province

If proven at a hearing that:

When Letters of Administration is issued:

(1) Notice has been given as required; and


(2) That decedent left no will or there is no
competent and willing executor [Rule 79 Sec
5]
One who is named as executor in the will or one
who enjoys preference under the rules is not
automatically entitled to the issuance of letters
testamentary/of administration. A hearing has
to be held in order to ascertain her fitness to act
as executor/administrator. [Baluyut v. Cruz
Pano (1976)]

(2) Name, age and residence of heirs and the


name and age of creditors;
(3) Probable value of the estate;
(4) Name of person to whom letter is prayed
[Rule 79 Sec 2]

Letters of administration may be granted to any


qualified applicant, though it appears that there
are other competent persons having better right
if such persons fail to appear when notified and
claim the issuance of letters to themselves.
[Rule 79 Sec 6]

Defect in petition would not render void


issuance of letters of administration.
Jurisdictional facts
(1) Death of the testator
(2) His/her residence at the time of death in the
province where the probate court is sitting
or,
(3) If an inhabitant of a foreign country, his/her
having left his estate in such province [Diez
v. Serra, (1927)]

D. POWERS AND DUTIES OF


EXECUTORS AND ADMINISTRATORS;
RESTRICTIONS ON THE POWERS

Publication and Notice


Publication of notice for 3 weeks successively
and notice to heirs, creditors and interested
persons, if place of residence is known, are
jurisdictional. [Rule 79 Sec 3 and Rule 76 Secs. 3
& 4]

Posting
of
bond
Before an executor or administrator enters upon
the execution of his trust, and letters
testamentary or of administration issue, he
shall give a bond in such sum as the court
directs.

Simultaneous filing of Opposition and Petition: A


petition may, at the same time, be filed for
letters of administration to himself, or to any
competent person or person named in the
opposition. [Rule 79 Sec 4]

Purpose
The bond posted by the administrators and
executors is intended as an indemnity to the
creditors, the heirs and the estate. [FESTIN]

Lack of interest in the proceedings is equal to


lack of legal capacity to institute proceedings.
NOT lack of jurisdiction on part of court.
[HERRERA]

How is liability on the bond enforced?


By motion or in a separate action. [FESTIN]

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Conditions on the bond


(1) Make a return to the court, within 3 months,
a true and complete inventory of all goods,
chattel, rights, credits, and estate of the
deceased which shall come to his
possession or knowledge or to the
possession of any other person for him;
(2) To administer according to these rules, and
if an executor, according to the will of the
testator, all the goods, chattel, rights,
credits, and estate of the deceased which
shall come to his possession or to the
possession of any other person for him and
from the proceeds to pay and discharge all
debts, legacies, charges, and dividends as
shall be decreed by court.
(3) Render a true and just account within 1 year
and when required by court; and
(4) Perform all orders of the court [Rule 81 Sec 1]

REMEDIAL LAW

(a) Have access to, and may examine and take


copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on
request, shall exhibit to him all such books,
papers, and property in their hands or
control. [Rule 84 Sec 1]
Failure to freely permit the exercise of the may
subject any partner for contempt.

KEEP BUILDINGS
REPAIR

IN

TENANTABLE

(a) Houses and other structures and fences


belonging to the estate, and
(b) Deliver the same in such repair to the heirs
or devisees when directed so to do by the
court. [Rule 84 Sec 2]

If the testator provides in his will that executor


shall serve without a bond, the court may still
require him to file a bond conditioned only to
pay debts of testator. [Rule 81 Sec 2]

RIGHT
TO
POSSESSION
MANAGEMENT OF THE REAL
PERSONAL PROPERTIES

Joint bond
Joint executors or administrators may be
required by court to file either a separate bond
from each or joint bond from all. [Rule 81 Sec 3]

AND
AND

(a) So long as it is necessary for the payment of


the debts and the expenses of
administration
(b) Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of
the other co-owners since this is not within
the powers of administrator. [Rule 84 Sec 3]

Special Administrator
Condition on the bond
(1) Make and return true inventory;
(2) Render accounting when required by
court;
(3) Deliver the estate of the deceased to the
person appointed as regular executor or
administrator, or other authorized person.
[Rule 81 Sec 4]

When the estate of a deceased is already


subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the
Court. [Estate of Olave v. Reyes (1983)]

D.2. RESTRICTIONS ON POWERS OF


EXECUTORS AND ADMINISTRATORS

D.1. GENERAL POWERS AND DUTIES


OF
EXECUTORS
AND
ADMINISTRATORS

EXECUTOR
OR
ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND
INCOME

HAVE ACCESS TO PARTNERSHIP BOOKS


AND PROPERTY AT ALL TIMES

Chargeable in his account with the whole of the


estate which has come into his possession, at
the value of the appraisement contained in the
inventory:
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(a)
(b)
(c)
(d)

SPECIAL PROCEEDINGS

REMEDIAL LAW

With all the interest,


Profit
Income of such estate and
With the proceeds of as much of the estate
as is sold by him, at the price at which it was
sold. [Rule 85 Sec 1]

(b) Damages sustained may be charge and


allowed against executor or administrator in
his/her account; liable on his/her bond.
[Rule 85 Sec 5]

PROHIBITED FROM PROFITING BY


INCREASE OR LOSING BY DECREASE IN
VALUE

(a) The
amount
paid
by
an
executor/administrator for costs awarded
against him shall be allowed in his
administration account [Rule 85 Sec 6]
(b) Unless it appears that the action or
proceeding in which the costs are taxed was
prosecuted or resisted without just cause,
and not in good faith.
(c) When the executor is an attorney, cannot
charge against estate any professional fees
for legal services rendered. [Rule 85 Sec 7]

ONLY NECESSARY EXPENSES SHALL BE


ALLOWED

(a) No executor/administrator shall profit by


the increase, or suffer loss by the decrease
or destruction, without his fault, of any part
of the estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if
justly made
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement [Rule 85 Sec
2]
(e) Not accountable for debts due the deceased
which remain uncollected without his fault
[Rule 85 Sec 3]

ACCOUNTABLE FOR
REALTY USED BY HIM

INCOME

Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for purpose of liquidation,
payment of debts, and distribution of the
residue among persons entitled thereto.
[Hermanos v. Abada (1919)]

FROM

Not considered as necessary expenses


(1) Expenses on death anniversary of
deceased because no connection with
care, management and settlement of
estate;
(2) Expenses for stenographic notes and
unexplained representation expenses;
(3) Expenses incurred by heir as occupant
of family home without paying rent (ex.
Salary of house helper, light, water bills,
gas etc. [De Guzman v. De GuzmanCarillo (1978)]

(a) If the executor/administrator uses or


occupies any part of the real estate himself,
he shall account for it as may be agreed
upon between him and the parties
interested, or adjusted by the court with
their assent and if the parties do not agree
upon the sum to be allowed, the same may
be ascertained by the court, whose
determination in this respect shall be final.
[Rule 85 Sec 4]

EXECUTOR OR ADMINISTRATOR TO
MAKE
INVENTORY
AND
RENDER
ACCOUNT

ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
(a) Neglects or unreasonably delays to raise
money, by collecting the debts or selling the
real or personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer
loss.

Inventory
Of all real and personal estate of the deceased
which has come into his possession or
knowledge within 3 months after his
appointment [Rule 83 Sec 1]

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SPECIAL PROCEEDINGS

Not included:
(1) Wearing apparel of surviving husband or
wife and minor children
(2) The marriage bed and bedding
(3) Such provisions and other articles as will
necessarily be consumed in the subsistence
of the family of the deceased [Rule 83 Sec 2]

(2) By any cause, including an appeal from


allowance or disallowance of a will. [Rule 80
Sec 1]
Rule 86 Sec 8 provides that a special
administrator may be appointed with respect to
the settlement of the claim of an
executor/regular administrator against the
estate.

Allowance to surviving spouse and children


The widow and minor or incapacitated children
shall, during the settlement of the estate,
receive such allowance under the direction of
the court [Rule 83 Sec 3]

Procedure for Appointment


There must first be notice and publication.
Notice through publication of the petition is a
jurisdictional requirement even in the
appointment of a special administrator. [De
guzman v. Angeles (1988)]

ACCOUNTING MANDATORY
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Rule 85 Sec 8]

Appointment of special administrator lies


entirely in the sound discretion of the court. [De
Gala v. Gonzales, 53 Phil. 104 (1929)]

The fact that the heirs of the estate have


entered into an extrajudicial settlement and
partition in order to put an end to their
differences cannot in any way be interpreted as
a waiver of the objections of the heirs to the
accounts submitted by the administrator. [Joson
v. Joson (1961)]

EXAMINATION ON OATH BY COURT


As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof

OF

Regular Administrator

Special Administrator

Appointed by the court


in
the
following
instances:
1. Testator did not
appoint an executor
2. The appointment
was refused
3. The will was
disallowed
4. No will (intestate
succession)

Appointed by the court


when:
1. there is DELAY in
granting
letters
testamentary
or
administration
2. when the executor is
a claimant of the estate
3. by any cause,
including an appeal
from allowance or
disallowance of a will

Should pay the debts Cannot pay debts of


of the estate
the
estate
unless
ordered by the court.

The heirs, legatees, distributees, and creditors


of the estate shall have the same privilege as
the executor/administrator of being examined
on oath on any matter relating to an
administration account. [Rule 85 Sec 9]

E. APPOINTMENT
ADMINISTRATOR

REMEDIAL LAW

Order of Appointment Order of Appointment


is final and appealable. is interlocutory and is
not appealable

SPECIAL
POWERS AND DUTIES
ADMINISTRATOR

When appointed
(1) When there is delay in granting letters
testamentary or administration, or

OF

SPECIAL

(1) Take possession and charge of the goods,


chattels, rights, credits, and estate of the
deceased, and
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(2) Preserve
the
same
for
the
executor/administrator
afterwards
appointed, and
(3) For that purpose may commence and
maintain suits as administrator.
(4) May sell only such perishable and other
property as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court. [Rule 80 Sec
2]

WHEN
SPECIAL
CEASES DUTIES

REMEDIAL LAW

(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to
discharge the trust. [Rule 82 Sec 2]
List enumerated is not exclusive. Court is
invested with ample discretion in removal of
administrator for as long as there is evidence of
act or omission part of administrator not
conformable to or in disregard of rules or orders
of court which it deems as sufficient or
substantial to warrant removal of administrator.
[FESTIN]

ADMINISTRATOR

Examples of valid removal of an administrator by


probate court
(1) Administrator who disbursed funds of
estate without judicial approval. [Cotia v.
Jimenez (1958)]
(2) False representation by administrator in
securing his appointment. [Cabarrubias
v. Dizon (1946)]
(3) Administrator who holds interest
adverse to that of the estate or his
conduct shows unfitness to discharge
the trust [Garcia v. Vasquez (1970)]
(4) Administrator who has physical inability
and consequent unsuitability to manage
the estate. [De Borja v. Tan (1955)]

When letters testamentary/administration are


granted on the estate of the deceased:
(1) He
shall
deliver
to
the
executor/administrator the goods, chattels,
money, and estate of the deceased in his
hands.
(2) The executor/administrator may prosecute
to final judgment suits commenced by such
SA[Rule 80 Sec 3]
Appointment of Special Administrator is
interlocutory and is not appealable. [Garcia v.
Flores, 101 Phil. 781 (1957)]

F.
REVOCATION,
DEATH,
RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS

Temporary absence in the state does not


disqualify one to be an administrator of the
estate [Gonzales v. Aguinaldo (1990)]

Revocation of administrator
When the decedents will is allowed and proved
after a letters of administration has been
issued, the administration is deemed revoked.

Removal of Special Administrators


The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness and
the application of the order of preference under
Section 6 of Rule 78, as would be proper in the
case of a regular administrator, do not obtain.
As long as the discretion is exercised without
grave abuse, and is based on reason, equity,
justice, and legal principles, interference by
higher courts is unwarranted. [Ocampo v
Ocampo (2010)]

Duty of administrator upon revocation of Letters


(1) Surrender the letters to court;
(2) Render his account within such time as
the court may direct [Rule 82 Sec 1]
Removal of executor or administrator
Grounds
(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the
court, or a duty expressly provided by
these rules
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SPECIAL PROCEEDINGS

EFFECT OF REMOVAL,
RESIGNATION

DEATH,

OR

(2) Executor/administrator will be able to


examine each claim, determine whether it is
a proper one which should be allowed.
(3) To appraise the administrator and the
probate court of the existence of the claim
so that a proper and timely arrangement
may be made for its payment in full or by
pro-rata portion in the due course of the
administration. [Estate of Olave v. Reyes
(1983)]

(1) The remaining executor/administrator may


administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If
there
is
no
remaining
executor/administrator, administration may
be to any suitable person. [Rule 82 Sec 2]
Validity of acts
Acts of the executor/administrator before
removal/resignation are valid. [Rule 82 Sec 3]

A. TIME WITHIN WHICH CLAIMS


SHALL BE FILED; EXCEPTIONS

Powers of new executor or administrator

General Rule: Claims must be filed within the


time specified by the court in its notice which
shall not be less than 6 months nor more than 12
months from the date of the first publication of
the notice. [Rule 86 Sec 2]

(1) Collect and settle the estate not


administered;
(2) Prosecute and defend actions commenced
by or against the former executor or
administrator; and
(3) Have execution on judgments recovered in
the name of the former executor or
administrator.

Exception
Belated claims
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed provided they are filed within 1
month from the expiration of such period but in
no case beyond the date of entry of the order of
distribution. [Danan v. Buencaminao (1981); Rule
86 Sec 2]

Authority to sell granted by court to former


executor or administrator may be renewed
without further notice or hearing. [Rule 82 Sec
4]

VII. Claims against the


Estate
ESTATE BURDENED
CREDITORS

WITH

LIEN

REMEDIAL LAW

Notice to creditors to be published; Affidavit of


publication
Executor/administrator shall cause publication
of notice for 3 consecutive weeks successively in
newspaper of general circulation in province
and its posting in 4 public places in the province
and in 2 public places in the municipality where
the decedent last resided. [Rule 86 Sec 3]

OF

Upon the death of the person, all his property is


burdened with all his debts, his debts creating
an equitable lien thereon for the benefit of the
creditors.
And such lien continues until the debts are
extinguished either by the
payment,
prescription, or satisfaction in one of the modes
recognized by law. [Suiliong & Co. v. Chio
Tayaan, 12 Phil. 13]

Printed copy of the published notice shall be


filed in court within 10 days after its publication
accompanied with affidavit setting forth the
dates of first and last publication and name of
newspaper where it was printed. [Rule 86 Sec 4]

PURPOSE OF PRESENTATION OF CLAIMS


AGAINST ESTATE
(1) To protect the estate of the deceased.
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SPECIAL PROCEEDINGS

Significance of Notice

REMEDIAL LAW

If disputed:
It may be proved and allowed or disallowed by
the court as the facts may warrant [Rule 88 Sec
5]

Publication of notice is constructive notice to


creditors and thus creditor would not be
permitted to file claim beyond the period fixed
in the notice on the bare ground that he had no
knowledge of the administration proceedings.
[Villanueva v. PNB (1963)]

Mutual claims may be set off against each other


in such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be
considered the true balance against the estate,
as though the claim had been presented
directly before the court in the administration
proceedings

Statute
of
non-claims
General Rule: Claim must be filed within the
time fixed by the notice otherwise they are
barred
forever.
[Rule
86
Sec
5]

The presentation of a money claim may be


waived. [Ignacio v. Pampanga Bus co., Inc.,
(1967)]

Purpose: to settle the estate with dispatch, so


that the residue may be delivered to the persons
entitled thereto without their being afterwards
called upon to respond in actions for claims.

If obligation solidary - file claim against


decedent as if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Rule 86 Sec 6]

Claims Covered (Exclusive)


(1) Claims for money against the decedent
arising from contract
- Express or implied
- Due or not
- Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent.

ALTERNATIVE
REMEDIES
OF
A
M0RTGAGE CREDITOR UPON DEATH OF
DEBTOR
(1) Waive the security and claim the entire debt
from the estate as an ordinary claim creditor is
deemed to have abandoned the mortgage and
he cannot thereafter file a foreclosure suit if he
fails to recover his money claim against the
estate

The period, once fixed by the courts, is


mandatory.
Statute of non-claims supersedes statute of
limitations when it comes to debts of deceased
persons.

(2) Foreclose mortgage judicially and prove any


deficiency as an ordinary claim suit should be
against the executor or administrator as party
defendant; Creditor may obtain deficiency
judgment if he fails to fully recover his claim

Exceptions:
(1) When set forth as counterclaims in any
action that the executor/administrator may
bring against the claimants [Rule 86 Sec 5]
(2) Belated claims (Sec. 2, Rule 86)

(3) Rely solely on the mortgage and foreclose it


before it is barred by prescription without right to
claim for deficiency includes extrajudicial
foreclosure of sale and its exercise precludes
one from recovery of any balance of debt
against the estate and frees the estate from
further liability. [Rule 86 Sec 7]

Contingent Claim When Allowed


(1) When it becomes absolute;
(2) Presented
to
the
court
or
executor/administrator within 2 years from
the time limited for other creditors to
present their claims; and
(3) Not disputed by executor/administrator

How to file for a claim:


(1) Deliver the claim with the necessary
vouchers to the clerk of court; and
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SPECIAL PROCEEDINGS

(2) Serve a copy thereof on the executor or


administrator. [Rule 86 Sec 9]

B. CLAIM OF
ADMINISTRATOR
ESTATE

Additional requirements:
(1) If the claim be founded on a bond, bill, note,
or any other instrument - the original need
not be filed, but a copy thereof with all
indorsements shall be attached to the
claim.

REMEDIAL LAW

EXECUTOR
AGAINST

OR
AN

Procedure to follow if the executor or


administrator has a claim against the estate he
represents
(1) Executor/Administrator shall give notice
thereof, in writing, to the court;
(2) The court shall appoint a special
administrator who shall have the same
powers and liabilities as the general
executor/administrator in the adjustment of
such claim.
(3) The court may order the executor or
administrator to pay to the special
administrator necessary funds to defend
such claim. [Rule 86 Sec 8]

On demand, however, of the executor or


administrator, or by order of the court or
judge, the original shall be exhibited, unless
it be list or destroyed, in which case the
claimant must accompany his claim with
affidavit or affidavits containing a copy or
particular description of the instrument and
stating its loss or destruction.

Case law provides that these remedies are


distinct, independent, and mutually exclusive
remedies that can be alternatively pursued by
the mortgage creditor for satisfaction of his
credit in case the mortgagor dies. [FESTIN]

(2) When the claim is due - it must be


supported by affidavit stating the amount
justly due, that no payments have been
made thereon which are not credited, and
that there are no offsets to the same, to the
knowledge of the affiant.

C. PAYMENT OF DEBTS
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and
ascertained; and
(2) It appears that there are sufficient assets to
pay the debts

(3) If the claim is not due, or is contingent,


when filed it must also be supported by
affidavits stating the particulars thereof.
(4) When the affidavit is made by a person
other than the claimant, he must set forth
therein the reason why it is not made by the
claimant.

Executor/administrator shall pay the same


within the time limited for that purpose. [Rule
88 Sec 1]

Answer by executor/administrator
Shall be filed within 15 days after copy of claim
has been served upon him. Executor or
administrator may interpose any counterclaim.
Said counterclaim is regarded as compulsory, as
the failure to file the same shall bar the claim
forever. [Rule 86 Sec 10]

The probate court may hold in abeyance


intestate proceedings pending determination of
a civil case against the administrator.
The heirs of the estate may not demand the
closing of an intestate proceeding at anytime
where there is a pending case against the
administrator of the estate. The court can
rightfully hold in abeyance until the civil case is
settled. [Dinglasan v. Chia, (1956)]

Judgment of court approving or disapproving a


claim shall be appealable as in ordinary cases.
[Rule 86 Sec 13; Rule 109]

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SPECIAL PROCEEDINGS

Part of Estate from Which Debt Paid (in order of


preference)

REMEDIAL LAW

(2) If estate insolvent - Retain a portion equal


to the dividend of the other creditors. [Rule
88 Sec 4]

PORTION OF PROPERTY DESIGNATED IN


THE WILL;
PERSONAL PROPERTY; THEN

PAYMENT OF CONTINGENT CLAIM


(1) If claim becomes absolute within 2 years
limited for creditors and allowed - Creditor
shall receive payment to the same extent as
the other creditors if the estate retained by
the executor/administrator is sufficient.
(2) Claim not presented after becoming
absolute within 2 year period and allowed
The assets retained in the hands of the
executor/administrator, not exhausted in
the payment of claims, shall be distributed
by the order of the court to the persons
entitled; But the assets so distributed may
still be applied to the payment of the claim
when established, and the creditor may
maintain an action against the distributees
to recover the debt, and such distributees
and their estates shall be liable for the debt
in proportion to the estate they have
respectively received. [Rule 88 Sec 5]

(1) Real property

IF TESTATOR DESIGNATES IN HIS WILL


PORTION OF ESTATE FOR PAYMENT OF
DEBT, EXPENSES OF ADMINISTRATION,
OR FAMILY EXPENSES, THEY SHALL BE
PAID ACCORDING TO SUCH PROVISIONS;
IF NOT SUFFICIENT THEN PART OF
ESTATE NOT DISPOSED OF BY WILL
SHALL BE APPROPRIATED.
GENERAL RULE: PERSONAL ESTATE NOT
DISPOSED OF BY WILL SHALL BE FIRST
CHARGEABLE
EXCEPTIONS:

Court to Fix Contributive Shares Where Devisees,


Legates, or Heirs Have Been in Possession

(1) Not sufficient for the purpose; or


(2) Its sale will redound to the detriment of the
participants for the estate

POSSESSION BEFORE
EXPENSES ARE PAID

DEBTS

AND

Court shall
- Hear and settle the amount of their
several liabilities
- Order how much and in what manner
each shall contribute
- May issue execution as circumstances
require. [Rule 88 Sec 6]

IN WHICH CASE
(1) The whole of the real estate not disposed of
by will, or so much thereof as is necessary,
may be sold, mortgaged, or otherwise
encumbered for that purpose by the
executor/administrator,
(2) Court approval must be obtained first, and
(3) Any deficiency shall be met by contributions
in accordance with the provisions of Sec. 6
of this rule.(contributive shares of devises,
legatees and heirs in possession) [Rule 88
sec 3]

LIABILITY OF HEIRS AND DISTRIBUTES


Heirs are not required to respond with their
own property for the debts of their deceased
ancestors. But after partition of an estate,
the heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively received
from the estate. [Govt of P.I. v. Pamintuan
(1930)]

Estate to Be Retained to Meet Contingent


Claims
If court is satisfied that a contingent claim is
valid:
(1) It may order the executor/administrator to
retain in his hands sufficient estate for the
purpose of paying the contingent claim
when such becomes absolute.

Order of Payment if Estate Is Insolvent


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SPECIAL PROCEEDINGS

Executor/administrator pays the debts against


the estate, observing the provisions of Articles
1059 and 2239 to 2251 of the Civil Code.
(Preference of credits) [Rule 88 Sec 7]

REMEDIAL LAW

assets received by the executor/administrator


for that purpose among the creditors, as the
circumstances of the estate require and in
accordance with the provisions of this rule [Rule
88 Sec 11]

Dividends to Be Paid in Proportion to Claims


If no assets sufficient to pay credits of any one
class of creditors after paying preferred credits,
Each creditor within such class shall be paid
dividend in proportion to his claim. No creditor
of any one class shall receive any payment until
those of the preceding class are paid. [Rule 88
Sec 8]

If Appeal Taken From a Decision of the Court


Concerning the Claim
The court may:
(1) Suspend the order for payment or order the
distribution among creditors whose claims
are definitely allowed
(2) Leave
in
the
hands
of
executor/administrator sufficient assets to
pay the claim disputed and appealed.

Insolvent Non-Resident
His estate found in the Philippines shall be so
disposed of that his creditors here and
elsewhere may receive each an equal share, in
proportion to their respective credits. [Rule 88
Sec 9]

When a disputed claim is finally settled, the


court shall order the claim to be paid out of the
assets retained to the same extent and in the
same proportion with the claims of other
creditors. [Rule 88 Sec 12]

Insolvent Resident with Foreign Creditors and


Foreign claims proven in another country
(1) Executor/administrator in the Philippines
had knowledge of the presentation of such
claims in such country; and
(2) Executor/administrator had opportunity to
contest such allowance

Instances when court may make further orders


for distribution of assets
(1) If whole of the debts not paid on first
distribution; and
(2) If the whole assets not distributed
(3) Other assets afterwards come to the hands
of executor/administrator. [Rule 88 Sec 13]

The court shall:


(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims
proved against the deceased person in the
Philippines
(3) So that a just distribution of the whole
estate may be made equally among all its
creditors. [Rule 88 Sec 10]

Creditors to be Paid in Accordance With Terms of


Order
When an order is made for the distribution of
assets among creditors, the executor or
administrator shall, as soon as the time of
payment arrives, pay the creditors the amounts
of their claims, or the dividend thereon, in
accordance with the terms of such order. [Rule
88 Sec 14]

Principle of Reciprocity
But the benefit of this and the preceding
sections shall not be extended to the creditors
in another country if the property of such
deceased person there found is not equally
apportioned to the creditors residing in the
Philippines and the other creditor, according to
their respective claims. [Rule 88 Sec 10]

Time for paying debts and legacies


General Rule: Not exceeding 1 year in the first
instance
Exception: Court may extend the period, after
hearing and notice, on the following conditions:
(1) Extension must not exceed 6 months for
a single extension; and
(2) The whole period allowed shall not
exceed 2 years.

Order for Payment of Debts


Before the expiration of the time limited for the
payment of the debts the court shall order the
payment thereof, and the distribution of the
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[RULE 88 SEC 15]

REMEDIAL LAW

(2) Written notice to all heirs, legatees,


devisees residing in the Philippines;
(3) Court orders sale of personal property or
sale or mortgage of real property;
(4) Proceeds of such sale shall be used to pay
debts and expenses.

Grounds for Extension


(1) Original executor/administrator dies
(2) New administrator appointed

REQUISITES
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
(3) Court must hear the application.

VIII. Actions by and


against executors and
administrators

Personal property may, upon order, be sold:


(1) To pay debts, expenses, legacies (Sec. 1,
Rule 89)
(2) If it appears necessary for the preservation
of the property (Sec. 1, Rule 89)
(3) If sale will be beneficial to the heirs,
devisees, legatees and other interested
persons and is not inconsistent with the
provisions of the will (Sec. 4, Rule 89)

A. ACTIONS
EXECUTORS

BY

AND

AGAINST

Actions that may be commenced directly against


executor or administrator
(1) Recovery of real or personal property or
interest therein
(2) Action to enforce a lien thereon and
(3) Actions to recover damages for an injury to
a person or property [Aguas v. Llenos (1962);
Rule 87 Sec 1]
The aforementioned instances are deemed
actions that survive the death of the decedent:
[FESTIN]

Real property may, upon order, be sold,


mortgaged, encumbered to pay debts when:
(1) Personal estate is insufficient to pay the
debts
(2) Sale of personal estate may injure the
business of persons interested in the estate
(3) Property appropriated by testator in his will
is insufficient to pay debts (Sec. 2, Rule 89)

Actions which may NOT brought against


Administrators
Claim for the recovery of money or debt or
interest
cannot
be
brought
against
executors/administrators. [Aguas v. Llenos
(1962)]

Writ of Execution
General Rule: The probate court does not have
the power to issue writs of execution. A writ of
execution is not the proper procedure for the
payment of claims against the estate. [Aldamiz
v. Judge of CFI-Mindoro (1949)]

Executor or Administrator may Bring or Defend


Actions Which Survive Death
For the recovery or protection of the property or
rights of the deceased in actions for causes
which survive death of decedent(Sec. 2, Rule
87)

Exceptions:
1. To satisfy the distributive shares of devisees,
legatees, and heirs in possession of the
decedents assets.
2. To enforce payment of expenses of the
partition.
3. To satisfy the costs when a person is cited for
examination in probate proceedings [FESTIN]

Covers injury to property i.e. not only limited to


injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished. [Javier v. Araneta, 93 Phil. 1115;
Aguas v. Llenos, supra]

Proper procedure for payment of debts


(1) Motion of administrator for sale;
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A mortgage belonging to the estate may be


foreclosed by the executor or administrator.
[Rule 87 Sec 5]

REMEDIAL LAW

Double Value Rule


A person who, before the granting of the letters
testamentary or administration of the estate,
embezzles or alienates any money, goods,
chattels or effects of the deceased, shall be
liable to an action in favor of executor or
administrator for double the value of the
property sold, embezzled or alienated.

General Rule: Heirs have no legal standing to


sue for the recovery of property of the estate
against the executor or administrator during the
pendency of the administration proceedings.
[rule 87 Sec 3]
Exception:
(1) If executor or administrator is unwilling to
bring a suit;
(2) When the executor or administrator is made
a party defendant where he is alleged to
have participated in the act complained of;
(3) Where there is no appointed administrator;
[FESTIN]

When executor or administrator may bring


action for recovery of property fraudulently
conveyed by deceased
(1) If there is deficiency of assets for payment of
debts and expenses of administration and
the deceased, in his lifetime, had conveyed
real or personal property, right or interest
therein, or debt or credit with intent to
defraud his creditors or avoid any right, debt
or duty; or
(2) Deceased had so conveyed such property,
right, interest, debt or credit that by law the
conveyance would be void as against the
creditors; and
(3) The subject of the attempted conveyance
would be liable to attachment by any of
them in his lifetime.

B.
RECOVERY
OF
PROPERTY
CONCELEAD,
EMBEZZLED
OR
FRADULENTLY CONVEYED
Proceedings
when
property
concealed,
embezzled or fraudulently conveyed
The court may cite any person suspected of
having concealed, embezzled, or conveyed
away any of the money, goods, or chattels of the
deceased, or that such person has in his
possession or has knowledge of any deed,
conveyance, bond, contract, or other writing
which contains evidence of or tends or discloses
the right, title, interest, or claim of the deceased,
to appear before it and be examined on oath
upon complaint by executor or administrator,
heir, legatee, creditor or other individual
interested in the estate of the deceased to the
court having jurisdiction of the estate; if the
person so cited refuses to appear, or to answer
on such examination or such interrogatories as
are put to him, the court may punish him for
contempt, and may commit him to prison until
he submits to the order of the court.

Process
of
recovery
by
the
executor/administrator of property fraudulently
conveyed
(1) Commence and prosecute to final judgment
an action for the recovery of such property,
right, interest, debt or credit for benefit of
the creditors
(2) Provided, creditors make an application and
pay such part of the costs and expenses or
give security therefor. [Rule 87 Sec 9]

WHEN RECOVERY BY CREDITOR OF


PROPERTY
FRAUDULENTLY
CONVEYED MAY BE DONE
Any creditor may commence and prosecute to
final judgment a like action for the recovery of
the subject of the conveyance or attempted
conveyance if the following requisites are
satisfied:

Purpose
To elicit information, secure evidence or to
investigate and take testimony for use in an
independent action. The court in such
proceedings lacks power to adjudicate titles or
determine controverted rights. [HERRERA]

(1) If
executor/administrator
commence such action
238

failed

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(a) With court permission


(b) In
the
name
of
the
executor/administrator
(c) He files a bond, conditioned to
indemnify the executor/administrator
against the cost and expenses incurred
by such action

REMEDIAL LAW

interested in the estate and where testator


has not otherwise made sufficient provision
for payment of debts, expenses and
legacies; [Rule 89 Sec 2]
B. Others:
(2) Where sale is beneficial to interested
persons, although not necessary to pay
debts, expenses, or legacies [Rule 89 Sec 4]
(3) To pay for debts, expenses or legacies of
estate of deceased in foreign country [Rule
89 Sec 5]
(4) If deceased was in his lifetime under
contract, binding in law, to deed real
property or interest therein [Rule 89 Sec 8]
(5) Where deceased held real property in trust
for another person [Rule 89 Sec 9]

(2) If conveyance or attempt is made in favor of


executor/administrator
(a) No need for court permission
(b) No need for Bond.
(c) Action shall be brought in the name
of all the creditors
Effect
Such creditor shall have a lien upon any
judgment recovered by him in the action for
such costs and other expenses incurred therein
as the court deems equitable. [Rule 87 Sec 10]

In (1) and (2), sale of real property may be done


in lieu of personal property of estate if it clearly
appears that such sale etc., would be beneficial
to persons interested.

C. SALES, MORTGAGES, AND OTHER


ENCUMBRANCES

In (3) the sale shall be authorized if not


inconsistent with provisions of the will and
proceeds of the sale shall be assigned to
persons entitled to the estate in the proper
proportions.

Order of Sale of personalty


The court upon the application of the executor
or administrator, and on written notice to the
heirs and other persons interested, may order
the whole or a part of the personal estate to be
sold, if it appears necessary for the purpose of
paying
(1) debts, expenses of administration, or
legacies, or
(2) expenses for the preservation of the
property. [Rule 89 Sec 1]

In (5), conveyance would not be authorized if


assets in the hands of the executor or
administrator will be reduced as to prevent
creditor from receiving debt or diminish his
dividend.
Persons interested may prevent such sale, etc. by
giving bond
No authority authority to sell, mortgage, or
otherwise encumber real or personal estate
shall be granted in (1) and (2) above if any
person interested in the estate gives a bond, in
a sum to be fixed by the court

When court may authorize sale, mortgage or


encumbrance of realty
A. Though personalty not exhausted:

WHEN PERSONAL ESTATE IS NOT


SUFFICIENT
TO
PAY
DEBTS,
EXPENSES OF ADMINISTRATION AND
LEGACIES; OR

Conditions of the bond: to pay the debts,


expenses of administration, and legacies within
such time as the court directs;

(1) If sale of personal estate may injure the


business or such other interests of those
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IX. Distribution
partition

Who may claim on the bond: Such bond shall be


for the security of the creditors, as well as of the
executor or administrator, and may be
prosecuted for the benefit of either. [Rule 89 Sec
3]

and

BEFORE
THERE
COULD
BE
A
DISTRIBUTION
OF
ESTATE,
THE
FOLLOWING
STAGES
MUST
BE
FOLLOWED:

Regulations for granting authority to sell,


mortgage or otherwise encumber estate
(1) The executor/administrator shall file a
written petition setting forth the following:
a. Debts due from the deceased, the
expenses for administration, the
legacies;
b. Value of the personal estate;
c. Situation of the estate to be sold,
mortgaged, encumbered; and
d. Such other facts showing sale etc.,
is necessary or beneficial;
(2) The court will fix a time and place for
hearing such petition and cause notice to be
given personally or by mail to persons
interested, and publication if deem proper;
(3) The
court
may
require
executor/administrator to give additional
bond conditioned on accounting for
proceeds of sale etc.;
(4) The court may authorize sale to be public or
private;
(5) If estate is to be sold at auction, the mode of
giving notice shall be governed by
provisions concerning notice of execution
sale;
(6) Certified copy of the order of the court, plus
deed of the executor or administrator for
real estate sold, mortgaged, or encumbered
shall be registered in registry of deeds
where property is located;[Rule 89 Sec 7]

(1) Liquidation of the estate i.e. payment of


obligations of the deceased.
(2) Collation and Declaration of heirs - to
determine to whom the residue of the estate
should be distributed.
- Determination the right of a natural child
- Determination of proportionate shares of
distributes.
Afterwards, the residue may be distributed and
delivered to the heirs. [HERRERA]
Powers of the court in distribution and partition
of estate:
(1) Collate;
(2) Determine the heirs; and
(3) Determine the share of each heirs.
Court may determine questions as to
advancement made by decedent
Advancements made or alleged to have been
made to heirs by decedent may be determined
by court having jurisdiction of estate; and the
final order of the court shall be binding on
person raising the questions and on the heir.
[Rule 90 Sec 2]

A. LIQUIDATION
General Rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral
expenses
and
expenses
of
administration, allowances, taxes, etc.,
chargeable to the estate have been paid.

Deed for sale, mortgaged or encumbrance


The deed executed by the executor or
administrator shall be valid as of executed by
deceased in his lifetime [Rule 89 Sec 7, 8]

Exception: If the distributees give a bond


conditioned on the payment of above
obligations [Rule 90 Sec 1]
The part distributed must not be subject to any
controversy or appeal. [Rule 109 Sec 2]

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mistake or inadvertence not imputable to


negligence. [Vda. De Alberto v. CA (1989)]

B. PROJECT OF PARTITION
A project of partition is merely a proposal for
the distribution of the hereditary estate which
the court may accept or reject. [Solivio v. CA,
(1990)]

C. REMEDY OF AN HEIR ENTITLED TO


RESIDUE BUT NOT GIVEN HIS SHARE
The better practice for the heir who has not
received his share is to:
(1) Demand his share through a proper motion
in the same probate or administrative
proceedings, or
(2) Motion for reopening of the probate or
administrative proceedings if it had already
been closed, and not through an
independent action. [Guilas v. Judge of the
CFI of Pampanga, (1972)]

The executor/administrator has no duty to


prepare and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the
condition of the estate. [3 Moran 541, 1980 Ed.]
It is the court that makes that distribution of the
estate and determines the persons entitled
thereto:
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing

D. INSTANCES WHEN PROBATE


COURT MAY ISSUE WRIT OF
EXECUTION

Court shall assign the residue of the estate to


the persons entitled to the same, naming them
and the proportions, or parts, to which each is
entitled.

General Rule: Writ of Execution is not allowed in


probate proceedings [Vda de Valera v. Ofilada,
59 SCRA 96]

Such persons may demand and recover their


respective
shares
from
the
executor/administrator, or any other person
having the same in his possession.

Exceptions:
(1) To satisfy the contributive shares of
devisees, legatees and heirs in possession of
the decedents assets (Sec. 6, Rule 88)
(2) To enforce payment of expenses of
partition; [Rule 90 Sec 3] and
(3) To satisfy the costs when a person is cited
for examination in probate proceedings
[Rule 142 Sec 13]

If there is a controversy as to who are heirs or


shares such shall be heard and decided as in
ordinary cases. [Rule 90 Sec 1]
Effect of Final Decree of Distribution
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject
matter involved, whether they are notified
or not, are equally bound. [Philippine
Savings Bank v. Lantin (1983)]
(3) The court acquires jurisdiction over all
persons interested, through the publication
of the notice prescribed and any order that
may be entered therein is binding against
all of them.[Ramon v. Ortuzar (1951)]

When does a probate court lose jurisdiction of an


estate under administration?
The probate court loses jurisdiction of an estate
under administration only after payment of all
debts, and the remaining estate delivered to the
heirs entitled to receive the same. [Guilas v.
Judge of CFI of Pampanga]

The only instance where a party interested in a


probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
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X. Escheat

Procedure
Solicitor General or his representative in behalf
of the Republic of the Philippines will file the
petition:
If deceased is a residentin the RTC of
the province where he last resided
If non-residentin the RTC of the
province in which he had an estate
Actions for reversion or escheat of
properties alienated in violation of the
Constitution or of any statutein the
province where the land lies in whole
or in part

If the petition is sufficient in form and


substance, the court shall make an order fixing
the date and place for the hearing (which shall
not be more than 6 months after entry of
order)

The court shall direct a copy of the order to be


published before the hearing at least once a
week for 6 consecutive weeks in some
newspaper of general circulation published in
the province, as the court shall deem best

The court shall hear the case and judge


whether or not the estate shall be escheated

To whom property escheated will be assigned:


If personal property to the
municipality or city where the
deceased last resided,
If real property to the
municipalities
or
cities,
respectively, in which the same is
situated.
If the deceased never resided in the
Philippines the whole estate may
be assigned to the respective
municipalities or cities where the
same is located.

Escheat is a proceeding where the real and


personal property of a person deceased in the
Philippines, who dies without leaving any will
and without any legal heirs, becomes the
property of the State.
It is an incident or attribute of sovereignty and
rests on the principle of ultimate ownership by
the state of all property within its jurisdiction.

A. WHEN TO FILE
Three instances of Escheats:
(1) When a person dies intestate leaving
property in the Philippines but leaving no
heir [Rule 91 Sec 1]
(2) Reversion proceedings in alienations in
violation of Constitution or other statute
[Rule 91 Sec 5]
(3) Unclaimed Balances Act (Act No. 3936 as
amended by PD 679) dormant accounts
for 10 years shall be escheated.
Where to file:
(1) If Resident RTC of the province where the
deceased last resided;
(2) If Non-resident RTC of the pace where his
estate is located. [Rule 91 Sec 1]

B. REQUISITES
PETITION

FOR

FILING

REMEDIAL LAW

OF

(1) A person died intestate


(2) He left no heirs or persons by law entitled to
the same
(3) Deceased left properties [City of Manila v.
Archbishop of Manila, 36 Phil. 815; Rule 91,
Sec.1]
Escheat proceedings must be initiated by the
Government through the Solicitor General.
The Court must fix a date and place for hearing,
which shall not be more than 6 months after the
entry of the order

Such estate shall be for the benefit of public


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schools, and public charitable institutions and


centers in said municipalities or cities.

XI. Trustees

Court may order, upon motion or motu propio,


that a permanent trust be established so that
only the income from the property shall be
used.

Note: This rule only applies to express trusts


and not implied trusts which arise by operation
of law. [REGALADO]

A.
DISTINGUISHED
FROM
EXECUTOR/ADMINISTRATOR

The right of escheat may be waived, either


expressly or impliedly. [Roman Catholic
Archbishop of Manila v. Monte de Peidad, et
al.,(1939)]

Trustee

Executor/Administrator

Accounts must be Accounts are not under


under
oath
and oath and shall be filed
annually filed
only at such times as
may be required by
court, except for initial
and final submission of
accounts

C.
REMEDY
OF
RESPONDENT
AGAINST PETITION; PERIOD FOR
FILING A CLAIM.
Period to file claim to the estate
A claim must be made within 5 years from date
of judgment; otherwise, barred forever [Rule 91
Sec 4]

Court
which
has
jurisdiction is RTC or
MTC if appointed to
carry into effect the Court
which
has
provisions of a will; If jurisdiction may be the
trustee dies, resigns, or RTC or MTC
removed
in
a
contractual trust, RTC
has jurisdiction to
appoint new trustee

By whom: Devisee, legatee, heir, surviving


spouse, or other person entitled to such estate.
[Rule 91 Sec 4]
Effect of claim
Possession and title to the estate shall be given.
If estate has already been sold, then the
city/municipality shall be accountable for the
proceeds, less reasonable charges for care of
the estate.

May sell or encumber


property of the estate
held
in
trust
if
necessary or expedient
upon order of the court

243

May sell, encumber, or


mortgage property if it
is necessary for the
purpose of 1)paying
debts, expenses of
administration
or
legacies, or 2) for the
preservation
of
property or if 3) sale
will be beneficial to
heirs, legatees, or
devisees
(upon
application to court
with written notice to
heirs)

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B. CONDITIONS OF THE BOND

Order of sale has no Order of sale has no


time limit
time limit

General Rule: Before entering the duties of his


trust a trustee shall file with the clerk of court
having jurisdiction of the trust a bond in the
amount fixed by court

Appointed to carry into Appointed by court to


effect the provisions of settle estate of a
a will or written decedent
instrument
May be exempted from
filing of bond if 1)
provided in the will or
2)beneficiaries
requested exemption

Not exempted from


filing of bond even if
such exemption is
provided in the will;
However bond is only
conditioned
upon
payment of debts.

Trusteeship
is
terminated
upon
turning
over
the
property
to
the
beneficiary
after
expiration of trust.

Services
of
executor/administrator
is terminated upon
payment of debts of
the estate and the
distribution of property
to the heirs

REMEDIAL LAW

Exception: The trustee may be exempted from


giving a bond when requested by:
1. Testator;
2. All persons beneficially interested in the
trust. [Rule 98 Sec 5]
Effect of neglect to file bond
A trustee who neglects to file a bond shall be
considered to have declined or resigned the
trust . [Rule 98 Sec 5]
Conditions
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have come
to his possession or knowledge.

No obligation to pay Must pay the debts of


debts of the beneficiary the estate.
or trustor

(2) Faithful management


That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will of
the testator or the provisions of the instrument
or order under which he is appointed

A trustee, like an executor/administrator, holds


an office of trust, particularly when the trustee
acts as such under judicial authority.

(3) Accounting
That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by the court, a true account
of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may
order

The duties of executor/administrator are


however, fixed and/or limited by law whereas
those of the trustee of an express trust are,
usually governed by the intention of the trustor
or the parties, if established by contract.
Besides, the duties of trustees may cover a
wider
range
than
those
of
executor/administrator of the estate of
deceased persons. [Araneta v. Perez (1962)]

(4) Settlement of account and delivery of estate.


That at the expiration of his trust he will settle
his account in court and pay over and deliver all
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the estate remaining in his hands, or due from


him on such settlement, to the person or
persons entitled to thereto. [Rule 98 Sec 6]

Territoriality of authority of trustee


The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic.

C. REQUISITES FOR THER REMOVAL


AND RESIGNATION OF A TRUSTEE

This is based on the principle that his authority


cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
[HERRERA]

(1) Petition by parties beneficially interested;


(2) Due notice to the trustee;
(3) Hearing.

XII. Guardianship

Who may file a petition: Parties beneficially


interested.

Rules 92-97 are now only applicable to


guardianship over incompetent persons who are
not minors.

D. GROUDS FOR REMOVAL AND


RESIGNATION OF A TRUSTEE

Guardianship over minors is governed by A.M.


No. 03-02-05 SC or Rule on Guardianship of
Minors.

Grounds for removal


(1) Removal appears essential in the interest of
petitioner;
(2) Trustee is insane;
(3) Otherwise incapable of discharging his
trust; or
(4) Evidently unsuitable. [Rule 98 Sec 8]

Guardianship
The power of protective authority given by law
and imposed on an individual who is free and in
the enjoyment of his rights, over one whose
weakness on account of his age or other
infirmity renders him unable to protect himself.
[HERRERA]

Resignation
He may resign but the court will determine if
resignation is proper. [Rule 98 Sec 8]

E. EXTENT
TRUSTEE

OF

AUTHORITY

REMEDIAL LAW

Guardian
A person lawfully invested with power and
charged with the duty of taking care of a person
who for some peculiarity or status or defect of
age, understanding or self-control is considered
incapable of administering his own affairs.
[HERRERA]

OF

Nature of Possession
The possession of the property by the trustee is
not an adverse possession, but only a
possession in the name and in behalf of the
owner of the same.

Basis: Parens Patriae


It is the States duty to protect the rights of
persons/individuals
who
because
of
age/incapacity are in an unfavorable position
vis--vis other parties [Nery v. Lorenzo (1972)].

A trustee may acquire the trust estate by


prescription provided there is a repudiation of
the trust, such repudiation being open, clear
and unequivocal, known to the cestui que trust
[Salinas v. Tuazon (1931)].

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SPECIAL PROCEEDINGS

Kinds of Guardians
(1) Legal Guardian deemed as guardian by
provision of law, without need of court
appointment (Art. 225, FC)
(2) Guardian ad Litem appointed by the court
to prosecute or defend a minor, insane or
person declared to be incompetent, in a
court action
(3) Judicial Guardian appointed by the court
in pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased
war veterans and other incompetent
persons.
a. Guardian over the person
b. Guardian of the property
c. General guardian (both person and
property) [REGALADO]

REMEDIAL LAW

Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the
income of the real property of
the ward, if the same is
sufficient
(b) Real property of the ward
upon obtaining an order for its
sale or encumbrance. [Rule 96
Sec 2]
(2) To settle all accounts of his ward [Rule 96
Sec 3]
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects [Rule 96
Sec 3]
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose [Rule 96 Sec 3]
(5) To manage the property of the ward frugally
and without waste, and apply the income
and profits thereon, insofar as may be
necessary, to the comfortable and suitable
maintenance of the ward. If such income
and profits be insufficient for that purpose,
to sell or encumber the real or personal
property, upon being authorized by the
court to do so [Rule 96 Sec 4]
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court
after hearing
(b) Notice to relatives of the ward,
and
(c) A careful investigation as to
the necessity and propriety of
the proposed action. [Rule 96
Sec 5]
(7) To submit to the court a verified inventory of
the property of the ward:

A. GUARDIANSHIP OF INCOMPETENT
PERSONS NOT MINORS
Procedure
Filing of Petition

Court issues order setting time for hearing

Notice to the incompetent and persons


mentioned in the petition
Publication only if incompetent is a nonresident

Hearing (alleged incompetent must be present


if able to attend)

If granted, service of judgment to the Local Civil


Registrar and payment of bond of the guardian.

GENERAL POWERS AND DUTIES OF


GUARDIANS
(1) Care and custody of the person of his ward
and management of his property; or
(2) Management of his property only;
(3) Management of property within the
Philippines (in case of non-resident ward).
[Rule 96 Sec 1]
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(a) Within three months after his


appointment
(b) Annually, and
(c) Whenever required upon the
application of an interested
person. [Rule 96 Sec 7]
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition [Rule
96 Sec 7]
(9) To render to the court for its approval an
accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required. [Rule
96 Secs 7 & 8]
Reimbursement of Reasonable Expenses
The court may authorize reimbursement to the
guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
[Rule 96 Sec 8]

REMEDIAL LAW

guardian to institute the appropriate action to


obtain the possession of and secure title to said
property. [Cui v. Piccio (1952)]
Exception: Court may direct delivery of property
to the guardian only in extreme cases, where
property clearly belongs to the ward or where
his title thereto has already been judicially
decided. [Cui v. Piccio (1952)]
Selling and Encumbering the Property of the
Ward
Court may order that his personal or real
property or any part thereof be sold, mortgaged
or otherwise encumbered, and the proceeds
invested in safe and productive security, or in
the improvement or security of other real
property
Grounds
(1) When the income of a property under
guardianship is insufficient to maintain the
ward and his family; or
(2) When it is for the benefit of the ward [Rule
95 Sec 1]

Payment of Compensation
Court may order payment of reasonable
compensation not exceeding 15% of the net
income of the ward. [Rule 96 Sec 8]

Sale must first be confirmed by the court and


that until such confirmation, not even equitable
title passes. [HERRERA]

Embezzlement, Concealment, or Conveyance of


Wards Properties

Order for Sale or Encumbrance


Contents:
(1) Causes why sale or encumbrance is
necessary or beneficial;
(2) Manner of sale (public or private);
(3) Time and manner of payment;
(4) Security, if payment deferred;
(5) Additional bond from guardian, if
required. [Rule 95 Sec 4]

Upon complaint by the:


(1) The guardian or ward, or
(2) Any person having actual or prospective
interest in the property of the ward;
The court may cite the suspected person to
appear for examination and make such orders
for the security of the estate. [Rule 96 Sec 6]
General Rule: Purpose of the proceeding is to
secure evidence from persons suspected of
embezzling, concealing or conveying any
property of the ward so as to enable the

Duration of Order of Sale or Encumbrance


No order of sale granted in pursuance of this
section shall continue in force for more than 1

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year after granting of the same, without a sale


being had. [Rule 95 Sec 4]

REMEDIAL LAW

monies remaining in his hands, or due from


him on such settlement, to the person
lawfully entitled thereto;
(4) To perform all orders of the court and such
other duties as may be required by law.
[Rule 94 Sec 1; Sec. 14 AM 03-02-05]

Investment of Proceeds and Management of


Property
The court may authorize and require the
guardian to invest the proceeds of sales or
encumbrances, and any other money of his ward
in his hands, in real or personal property, for the
best interests of the ward.

B. RULE IN GUARDIANSHIP OVER


MINOR (A.M. NO. 03-02-05-SC)

The court may make such other orders for the


management, investment, and disposition of
the property and effects, as circumstances may
warrant. [Rule 95 Sec 5]

General Rule: The father and the mother shall


jointly exercise legal guardianship over the
property of their unemancipated common child
without the necessity of a court appointment.
[Sec. 3; also Art. 225, FC]
In case of disagreement, the fathers decision
shall prevail, unless there is a judicial order to
the contrary. [Art. 225, FC]

CONDITIONS OF THE BOND OF THE


GUARDIAN

However, if the market value of the property or


the annual Income of the child exceeds
P50,000.00, the parent concerned shall furnish
a bond.

(Applicable for both Guardianship of Minors


and incompetents)
(1) To make and return to the court, within
three months after the issuance of his
letters of guardianship, a true and complete
inventory of all the real and personal
property of his ward which shall come to his
possession or knowledge or to the
possession or knowledge of any other
person in his behalf;
(2) To faithfully execute the duties of his trust,
to manage and dispose the property
according to this rule for the best interests
of the ward, and to provide for his proper
care, custody and education;
(3) To render a true and just account of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and
of the management and disposition of the
same, at the time designated by this rule
and such other times as the court directs
and at the expiration of his trust, to settle
his accounts with the court and deliver and
pay over all the property, effects, and

Petition for Appointment of Guardian


Who may file
(1) Resident minor:
(a) Any relative; or
(b) Other person on behalf of a minor; or
(c) The minor himself, if 14 years of age or
over; or
(d) The Secretary of DSWD or the Secretary
of DOH, in the case of an insane minor
who needs to be hospitalized. [Sec. 2]
(2) Non-resident minor who has property in the
Philippines:
(a) Any relative or friend of such minor; or

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(b) Anyone interested in his property, in


expectancy or otherwise. [Sec. 12]

REMEDIAL LAW

Order of Preference in Appointment (in default


of parents or a court-approved guardian)

Where to file

(1) The surviving grandparent. In case several


grandparents survive, the court shall select
any of them taking into account all relevant
considerations.

Resident minor - Family Court of the province or


city where the minor actually resides.
Non-resident minor - Family Court of the
province or city where his property or any part
thereof is situated [Sec. 3]

(2) The oldest brother or sister of the minor over


21 years of age, unless unfit or disqualified.
(3) The actual custodian of the minor over 21
years of age, unless unfit or disqualified.

Grounds for filing

(4) Any other person, who in the sound


discretion of the court, would serve the best
interests of the minor. [Sec 6]

(1) Death, continued absence, or incapacity of


his parents;

Contents of petition

(2) Suspension, deprivation or termination of


parental authority;

(1) Jurisdictional facts;

(3) Remarriage of his surviving parent, if the


latter is found unsuitable to exercise
parental authority; or

(2) Name, age and residence of the


prospective ward;

(4) When the best interests of the minor so


require. [Sec 4]

(3) Ground rendering the appointment


necessary or convenient;

Qualifications of Guardians

(4) Death of the parents of the minor or the


termination, deprivation or suspension
of their parental authority;

The court shall consider the guardians:


(1) Moral character;
(2) Physical,
condition;

mental

and

(5) Remarriage of the minors surviving


parent;

psychological

(6) Names, ages, and residences of


relatives within the 4th civil degree of
the minor, and of persons having him in
their care and custody;

(3) Financial status;


(4) Relationship of trust with the minor;
(5) Availability to exercise the powers and
duties of a guardian for the full period of the
guardianship;

(7) Probable value, character and location


of the property of the minor;

(6) Lack of conflict of interest with the minor;

(8) Name, age and residence of the person


for whom letters of guardianship are
prayed. [Sec 7]

(7) Ability to manage the property of the minor.


[Sec 5]
Grounds are not exhaustive. [HERRERA]
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The petition shall be verified and accompanied


by a certification against forum shopping. No
defect in the petition or verification shall render
void the issuance of letters of guardianship. [Sec
7

REMEDIAL LAW

special notice to be given.

Case Study Report


Court shall order a social worker to conduct a
case study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance
before the scheduled hearing.

Who may file Opposition


(1) Any interested person by written opposition
[Sec. 10]
(2) The social worker ordered to make the case
study report, may intervene on behalf of the
minor if he finds that the petition for
guardianship should be denied [Sec. 9]

Hearing

Grounds for Opposition


(1) Majority of the minor;

Compliance with notice requirement


must be shown.

The prospective ward shall be


presented to the court. If the minor is
non-resident, the court may dispense
with his presence.

At the discretion of the court, the


hearing on guardianship may be closed
to the public.

The records of the case shall not be


released without court approval.

(2) Unsuitability of the person for whom letters


are prayed. [Sec. 10]
Procedure
Filing of petition.

Court shall fix a time and place for hearing.

Notice requirement

Issuance or denial of letters of guardianship.

Court shall cause reasonable notice to be given


to:

The persons mentioned in the petition

The minor, if he is 14 years of age or


over
-

Service of final and executory judgment or


order upon the Local Civil Registrar of the
municipality or city where the minor resides
and the Register of Deeds of the place where
his property or part thereof is situated, who
shall annotate the same in the corresponding
title, and report to the court their compliance
within fifteen days from receipt of the order.

For non-resident minors, notice


shall be given to the minor by
publication or any other means
as the court may deem proper.

The court may also direct other general or

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Powers and Duties

REMEDIAL LAW

(3) Wasted or mismanaged the property of the


ward; or

In general

(4) Failed to render an account or make a


return for thirty days after it is due. [Sec. 14]

(1) Guardian of resident minor: Care and


custody of the person of his ward and the
management of his property, or only the
management of his property.

Resignation
Ground: Any justifiable cause.

(2) Guardian
of
non-resident
minor:
Management of all his property within the
Philippines [Sec. 17]

Upon the removal or resignation of the


guardian, the court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same. [Sec. 24]

Bonds of Guardians
Before a guardian enters upon the execution of
his trust, or letters of guardianship issue, he
must file a bond as determined by the Court.
[Sec. 14]

Termination
Grounds

*Conditions of the bond are similar to those for


guardians of incompetent persons.

(1) The ward has come of age; or


(2) The ward has died.

Whenever necessary, the court may require the


guardian to post a new bond and may discharge
from further liability the sureties on the old
bond. [Sec. 15]

How Terminated:
(1) Court
motu
proprio
guardianship; or

Liability: In case of breach of any of its


conditions, the guardian may be prosecuted in
the same proceeding for the benefit of the ward
or of any other person legally interested in the
property. [Sec. 15]

terminates

(2) Upon verified motion of any person


allowed to file a petition for
guardianship.
The guardian shall notify the court of the fact of
coming of age or death of the ward within 10
days of its occurrence. [Sec. 25]

Removal, Resignation, and Termination of


Guardianship

The final and executory judgment or order


removing a guardian or terminating the
guardianship shall be served upon the Local
Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of
the province or city where his property or any
part thereof is situated, who shall enter the final
and executory judgment or order in the
appropriate books in their offices. [Sec. 26]

Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust; or
(2) Is found to be unsuitable;
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REMEDIAL LAW

XIII. Adoption
A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Domestic Adoption (RA 8552)

Inter-country Adoption (RA 8043)

Kind of proceedings
Judicial Adoption

Extra-judicial Adoption

What it governs
RA 8552 amended Art. 183 193 of the Family RA 8043 governs adoption of Filipinos by
Code and is the governing law for Filipino citizens foreigners and non-resident citizen and is
adopting other Filipinos (whether relatives or implemented by the Inter-Country Adoption Board
strangers) with some exceptions.
Rescission of adoption is no longer allowed.
Definition of child
Child is a person below 18 years of age [Sec. 3(a)] Child means a person below fifteen (15) years of
age unless sooner emancipated by law [Sec 3 (b)]
Who may adopt
(1) Any Filipino citizen;
(2) Any alien possessing the same qualifications An alien or Filipino citizen permanently residing
for Filipino nationals;
abroad may file an application for inter-country
(3) The guardian with respect to the ward [Sec. 7] adoption of a Filipino child. [Sec. 9]

Qualifications
Filipino Citizen
(a) legal age, in possession of full civil
capacity and legal rights;
(b) of good moral character, has not been
convicted of any crime involving moral
turpitude;
(c) emotionally and psychologically capable
of caring for children;
(d) at least sixteen (16) years older than the
adoptee (waived when adopter is the
biological parent of the adoptee, or is the
spouse of the adoptees parent) [Sec. 7(a)]
Alien
(a) same as qualifications of Filipino citizens;
and
(b) His/her country has diplomatic relations
with the Republic of the Philippines;
252

(a) is at least twenty-seven (27) years of age


and at least sixteen (16) years older than
the child to be adopted, at the time of
application unless the adopter is the
parent by nature of the child to be adopted
or the spouse of such parent;
(b) if married, his/her spouse must jointly file
for the adoption;
(c) has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and has
undergone the appropriate counseling
from an accredited counselor in his/her
country;
(d) has not been convicted of a crime
involving moral turpitude;
(e) is eligible to adopt under his/her national

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(c) He/she has been living in the Philippines


for at least 3 continuous years prior to
filing of application and maintains such
residence until adoption decree is entered;
(d) That he/she has been certified by his/her
diplomatic/consular
office
or
any
appropriate government agency that
he/she has legal capacity to adopt in
his/her country;
(e) His/her government allows the adoptee to
enter the country as his/her adopted child.
Residency and certification of qualification may be
waived if:
i.
former Filipino citizen who seeks to adopt
a relative within the 4th degree of
consanguinity or affinity; or
ii.
one who seeks to adopt legitimate child of
his/her Filipino spouse; or
iii.
one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse
a relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse. [Sec. 7(b)]

REMEDIAL LAW

law;
(f) is in a position to provide the proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
(g) agrees to uphold the basic rights of the
child as embodied under Philippine laws,
the U.N. Convention on the Rights of the
Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
(h) comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and
that adoption is allowed under his/her
national laws; and
(i) possesses all the qualifications and none
of the disqualifications provided herein
and in other applicable Philippine laws.
[Sec. 9]

Who may be adopted


The following may be adopted:
(a) Any person below 18 years of age who has
been administratively or judicially declared
available for adoption;
(b) The legitimate son/daughter of one
spouse by the other spouse;
(c) An illegitimate son/daughter by a
qualified adopter to improve his/her
status to that of legitimacy;
(d) A person of legal age if, prior to adoption,
said person has been consistently
considered and treated by the adopter(s)
as his/her own child since minority;
(e) A child whose adoption has been
previously rescinded; or
(f) A child whose biological or adoptive
parent(s) has died: provided that no
proceedings shall be initiated within 6
months from time of death of said parents.
[Sec. 8]

Only a legally free child may be the subject of


inter-country adoption. [Sec 8]
Legally-free child means a child who has been
voluntarily or involuntarily committed to the
Department, in accordance with the Child and
Youth Welfare Code.[Sec. 3(f)]

Where to file application


Family Court of the place where adopter resides

Either with the Philippine Regional Trial Court


having jurisdiction over the child, or with the InterCountry Adoption Board, through an intermediate
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REMEDIAL LAW

agency, whether governmental or an authorized


and accredited agency, in the country of the
prospective adoptive parents, [Sec. 10]
What the petition for adoption may include
May include prayer for change of name, Only petition for adoption
rectification of simulated birth or declaration that
the child is foundling, abandoned, dependent or
neglected child

Annexes
RA 8552 does not provide for any annexes but Sec Application must be supported by the following
11 AM 02-6-02-SC Rule on Domestic and documents (written and officially translated in
Intercountry Adoption, requires the following to be English):
annexed to the petition
(a) Birth certificate of applicant(s);
(a) Birth, baptismal or foundling certificate, as (b) Marriage contract, if married, and divorce
decree, if applicable;
the case may be, and school records
showing the name, age and residence of (c) Written consent of their biological or adoptive
children above ten (10) years of age, in the
the adoptee;
form of sworn statement;
(b) Affidavit of consent of the following:
(d)
Physical,
medical and psychological evaluation
1. The adoptee, if ten (10) years of age
by
a
duly
licensed physician and psychologist;
or over;
(e) Income tax returns or any document showing
2. The biological parents of the child, if
the financial capability of the applicant(s);
known, or the legal guardian or the (f) Police clearance of applicant(s);
child-placement agency, child-caring (g) Character
reference
from
the
local
agency, or the proper government
church/minister, the applicant's employer and
a member of the immediate community who
instrumentality which ahs legal
have known the applicant(s) for at least five (5)
custody of the child;
years; and
3. The legitimate and adopted children
(h) Recent postcard-size pictures of the
of the adopter and of the adoptee, if
applicant(s) and his immediate family; [Sec.
any, who are ten (10) years of age or
10]
over;
4. The illegitimate children of the
adopter living with him who are ten
(10) years of age or over; and
5. The spose, if any, of the adopter or
adoptee.
(c) Child study report on the adoptee and his
biological parents;
(d) If the petitioner is an alien, certification by
his diplomatic or consular office or any
appropriate government agency that he
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REMEDIAL LAW

has the legal capacity to adopt in his


country and that his country and that his
government allows to adoptee to enter his
country as his own adopted child unless
exempted under Section 4 (2);
(e) Home study report on the adopters. If the
adopter is an alien or residing abroad but
qualified to adopt, the home study report
by a foreign adoption agency duly
accredited by the Inter-Country Adoption
Board; and
(f) Decree of annulment, nullity or legal
separation of the adopter as well as that of
his biological parents of the adoptee, if
any.
Publication
Petition must be published at least once a week No publication requirement.
for 3 consecutive weeks in a newspaper of general
circulation in the province or city where the court is
situated;
Rescission of adoption is no longer allowed.
Supervised Trial Custody
For at least six (6) months within which the parties Trial period for 6 months in country of adopter for
are expected to adjust psychologically and at least 6 months; Only after lapse of period shall a
emotionally to each other and establish a bonding decree of adoption be issued. [Sec. 14]
relationship. During said period, temporary
parental authority shall be vested in the
adopter(s).
Period may be reduced by court if in the best
interest of adoptee. [Sec 12]
Penalties
Any govt official, employee or functionary who
shall be found guilty of violating any of the Same [Sec. 17]
provisions shall automatically suffer suspension
until resolution of the case.

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Pertinent statutes and rules:


RA 8552 (Domestic Adoption Act)
RA 8043 (Inter-Country Adoption Act)
A.M. 02-6-02-SC (Rule on Domestic and
Inter-Country Adoption)
A.M. 02-1-19-SC (Re Proposed Rule on
Commitment of Children)
A.M. 03-04-04-SC (Rule on Custody of
Minors and Writ of Habeas Corpus in Relation
to Custody of Minors)

REMEDIAL LAW

authority of his biological parents, or in case of


rescission of adoption, his guardian or
adopter(s). [Sec. 3]
General Rule: Husband and wife shall adopt
jointly
Exceptions:
1) If one spouse seeks to adopt the legitimate
child of other
2) If one spouse seeks to adopt his own
illegitimate child, provided the other spouse
has signified his/her consent
3) If spouses are legally separated [Sec 7(c)]

Adoption
A juridical act which creates between two
persons a relation similar to that which results
from filiation. [Prasnick v. Republic, 98 Phil. 669
(1956)]

PROCEDURE
Order of hearing

It is a proceeding in rem.
Objective: Best interest of the child

Publication at least once a week for three


consecutive weeks in newspaper of
general circulation in province or city
where the court is situated. Court shall
notify the Solicitor General if the petition
prays for a change of name.

Only an adoption made in pursuance with the


procedures laid down under the Rules on
Domestic and Inter-Country Adoption is valid in
this jurisdiction.
Adoption is strictly personal between the
adopter and the adopted. [Teotico v. Del Val
(1965)]

Child and Home Study Report

Construction of adoption statutes:


All sections are designed to protect the best
interests of the adoptee.

Hearing within six months from issuance of


Order

B. DOMESTIC ADOPTION ACT

Supervised Trial Custody for at least six (6)


months

RA 8552 (Domestic Adoption Act) and the Rule


on Adoption govern the domestic adoption of
Filipino children.

Decree of Adoption

A child legally available for adoption


It refers to a child who has been voluntarily or
involuntarily committed to the DSWD or to a
duly licensed and accredited child-placing or
child caring agency, freed of the parental

Venue: The petition for adoption shall be filed


with the Family Court of the province or city
where the prospective adoptive parents reside.

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[Sec. 6 AM 02-6-02 Rule on Domestic and InterCountry Adoption]

REMEDIAL LAW

Where to file petition for rescission: Family Court


of the city or province where the adoptee resides.
[Sec. 20 A.M. 02-6-02-SC, Rule on Domestic and
Inter-Country Adoption]

EFFECTS OF ADOPTION
(1) Adopters shall exercise parental authority.
(2) All legal ties between biological parent(s)
and adoptee shall be severed (except in
cases where the biological parent is the
spouse of the adopter); and the same shall
be vested on the adopter(s); [Sec. 16]
(3) Adoptee shall be considered the legitimate
child of the adopter(s) for all intents and
purposes; [Sec. 17]
(4) Adopters shall have reciprocal rights of
succession without distinction from
legitimate filiation; [Sec. 18]

When to file:
(1) Within 5 years after reaching age of majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery from
such incompetency. [Sec. 21 A.M. 02-6-02SC, Rule on Domestic and Inter-Country
Adoption]
EFFECTS OF RESCISSION OF ADOPTION
(1) Restoration of parental authority to
biological parent if adoptee is a minor if
know, or legal custody to the DSWD;
(2) Reciprocal rights and obligations of adopter
and adoptee are extinguished;
(3) Cancellation of amended birth certificate
and restore original;
(4) Successional rights shall revert to its status
prior to adoption, as of the date of final
judgment of rescission.
(5) Vested rights shall be respected [Sec. 20,
RA 8552]

INSTANCES WHEN ADOPTION MAY BE


RESCINDED; EFFECTS OF RESCISSION OF
ADOPTION
Rescission may only be at the petition of