RULE 17 DISMISSAL OF ACTION Before the service of an answer of the service of a motion for summary judgment, a complaint may

ay be dismissed by the plaintiff by filing a notice of dismissal. Upon the filing of the notice of dismissal, the court shall issue an order confirming the dismissal. Filing without prejudice A dismissal made by the filing of a notice of dismissal is a dismissal without prejudice. (complaint can be refilled). The dismissal will however, be one with prejudice in any of the following situations: 1. Notice of dismissal by the plaintiff provides that the dismissal is with prejudice 2. Plaintiff has previously dismissed the same case in a court of competent jurisdiction Two-Dismissal Rule when the plaintiff has: a. Twice dismissed actions b. Based on or including the same claim c. In a court of competent jurisdiction The second dismissal shall be with prejudice. A complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon such terms and conditions as are just. If a counterclaim is pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval the court. The following are the grounds for the dismissal due to fault of plaintiff: 1. The plaintiff fails to appear on the date of presentation of his evidence-in-chief on the complaint for no justifiable reason or cause Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action 2. The plaintiff fails to prosecute his action for an unreasonable length of time for no justifiable reason or cause 3. The plaintiff fails to comply with the Rules of Court or any order of the court for no justifiable reason or cause The court could not dismiss the case upon its own initiative, because the grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect. Except: 1. Plaintiffs fault (Sec. 3)

When on its face, the complaint shows that the court has no jurisdiction over the subject matter 3. When there is litis pendencia or res adjudicate or prescription 4. Under the summary rules, the court is empowered to dismiss immediately without any motion Dismissal under Sec. 3 cannot be refilled and shall have the effect of adjudication upon the merits. (res judicata applies) Dismissal due to the fault of the plaintiff is with prejudice unless the court provides otherwise.

2.

RULE 18 PRE-TRIAL Pre-Trial it is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel. It is mandatory in civil and criminal cases Pre-trial conference is also mandatory in both civil and criminal cases under the Rules on Summary Procedure. Under the former rule, the court was authorized to render a judgment on the pleadings or a summary judgment if at the trial the court finds that facts exist to warrant the rendition of said judgments. The court may do so in its own motion. Under the current rule, the courts authority is confined to a mere determination of the propriety of rendering a judgment on the pleadings or a summary judgment. The requisite motion should be filed and heard pursuant to Rule 34 (judgment on pleadings) and Rule 35 (Summary Judgments). The conduct of a pre-trial is mandatory. Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to simplify, abbreviate and expedite trial, or totally dispense with it (Abubakar vs. Abubakar, 317 SCRA 264). It is a basic precept that the parties are bound to honor the stipulations made during the pre-trial Ordinarily, the answer is the last pleading, but when the defendants answer contains a counterclaim, plaintiffs answer to it is the last pleading. When the defendants answer has a cross-claim, the answer of the cross-defendant to it is the last pleading. Where the plaintiffs answer to a counterclaim contains a counterclaim against the opposing party or a cross-claim against a co-defendant, the answer of the opposing party to the counterclaim or the answer of the co-defendant to the cross-claim is the last pleading. Where the plaintiff files a reply alleging facts in denial or avoidance of new matter by way of defense in the answer, such reply constitutes the last pleading. The requirement that the pre-trial shall be scheduled after the last pleading has been filed is intended to fully apprise the court and the parties of all the issues in the case before the pre-trial is conducted

Reviewer in Civil Procedure By: Duke Sucgang

The ex parte motion to set the case for the pre-trial is to be made by the plaintiff after the last pleading has been served and filed. The motion is to be filed within 5 days after the last pleading joining the issues has been served and filed. If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial. Where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial. However, the last pleading need not be literally construed as on having been served and filed. For purposes of the pre-trial, the expiration of the period for filing the last pleading without having been served and filed is sufficient.

for failure of the defendant to appear before the pre-trial who did not receive through his counsel a notice of pre-trial. It shall be the duty of both the parties and their counsels to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents The failure of the plaintiff to appear shall be cause for the dismissal of the action. The dismissal shall be with prejudice except when the court orders otherwise. Since the dismissal is with prejudice, the same shall have the effect of an adjudication on the merits thus, final. The remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is appealable. The representative must fully authorized in writing (a) to enter into amicable settlement; (b) to submit to ADR; (c) to enter into stipulation or admissions of facts and of documents The failure of the plaintiff to appear when so required shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. The failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis of the evidence presented by the plaintiff. Former rule, the defendant who fails to appear in the pre-trial may be considered as in default. The order allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is merely interlocutory, hence, not appealable. If the defendant fails to appear, the plaintiff may be allowed to present his evidence ex parte How non-appearance is excused: 1. If a valid cause is shown for such non-appearance or a representative shall appear in his behalf fully authorized in writing to enter into any of the following matters: a. Amicable settlement b. Alternative modes of dispute resolution c. Stipulations and admissions of facts An incomplete authority does not satisfy the requirements of the Rules and should be deemed the equivalent of having no authority at all. 2. Having a written authority but without a justification for a partys absence or vice versa, would not be in accord with the spirit of the Rules. 3. The written authority must be in the form of a special power of attorney. Entering into an amicable for a client who is the principal in the atty-client relationship involves entering into a compromise. Substantive law (Art. 1878[3] of CC) is explicit: SPA are necessary to compromise to submit questions to arbitration.

Concept of pre-trial 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. A pre-trial is a procedural device held prior to the trial for the court to consider the following purposes: a. The possibility of an amicable settlement or a submission to alternative modes of dispute resolution b. The simplification of the issues c. The necessity or desirability of amendments to the pleadings d. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof e. The limitation of the number of witnesses f. The advisability of a preliminary reference of issues to a commissioner g. The proprietary of rendering judgment on the pleadings, or summary judgment or of dismissing the action should a valid ground therefore be found to exist h. The advisability or necessity of suspending the proceedings i. Such other matters as may aid in the prompt disposition of the action At the start of the preliminary conference, the judge is mandated to refer the parties and/or their counsels to the mediation unit of the PMC for purposes of mediation. If fails, the judge will schedule the continuance of preliminary conference. Purpose of pre-trial is to expedite trials or shorten the actual period of trials, to narrow or simplify the issues, eliminate the doing of useless things, and to facilitate the attainment of justice between the parties The notice of pre-trial shall be served on the counsel of the party if the latter is represented by counsel. Otherwise the notice shall be served on the party himself. The counsel is charged with the duty of notifying his client of the date, time and place of the pretrial. The present rule simplifies the procedure because the notice of pre-trial is served on the counsel and service is made on the party only if he has no counsel. Notice is so important that it would be grave abuse of discretion for the court to allow the plaintiff to present his evidence ex parte

Reviewer in Civil Procedure By: Duke Sucgang

Procedural rules (Sec. 23, Rules 138) likewise prohibit an attorney to compromise his clients litigation without a special authority. The parties shall file with the court their respective pre-trial briefs which shall be received at least 3 days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party. It shall contain the following: a. Statement of their willingness to enter into an amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; b. A summary of admitted facts and proposed stipulation of facts; c. The issues to be tried or resolved; d. The documents or exhibits to be presented, stating the purposes thereof; e. A manifestation of their having availed of or their intention to avail of the discovery procedures or referral to commissioners; and f. The number and names of the witnesses, and the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial

Should the action proceed to trial, the pre-trial order shall: a. Defines and limits the issues to be tried b. Controls the subsequent course of the action except if it is modified before trial to prevent manifest injustice. Pre-trial in civil cases Pre-trial is set when the plaintiff moves ex parte to set the case for pre-trial The motion to set the case for pre-trial is made after the last pleading has been served and filed Pre-trial in criminal cases Pre-trial is ordered by the court and no motion to set the case for pre-trial is required The motion to set the case for pre-trial is ordered by the court after arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused Does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes All agreements or admissions made or entered during pre-trial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused.

Considers the possibility of an amicable settlement as an important objective The agreements and admissions made are not required to be signed by both the parties and their counsels. They are instead to be contained in the record of pre-trial and pre-trial order. Now requires, the proceedings is to be recorded in the minutes of preliminary conference to be signed by both parties and/or counsel The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff and the defendant in a civil case A pre-trial brief is specifically required to be submitted

It is vital to have documents and exhibits identified and marked during the pre-trial. No evidence shall be presented and offered during the trial in support of a partys evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown. The parties are bound by the representations and statements in their respective pre-trial briefs. Hence, such representations and statements are in the nature of judicial admissions in relation to Sec. 4 Rule 129. Effect of failure to file a pre-trial brief: 1. Shall have the same effect as failure to appear at the pretrial. 2. The dismissal of a complaint for failure to file pre-trial brief is discretionary on the part of the trial court.

The sanctions in criminal cases are imposed upon the counsel for the accused or the prosecutor. Pre-trial brief is not specifically required to be submitted

During the pre-trial, the judge shall be the one to ask questions on issues raised by the parties and all questions or comments by counsel or parties must be directed to the judge to avoid hostilities between the parties. This order of the court is issued by the court upon the termination of the pre-trial. Such order shall be issued within 10 days after the termination of the pre-trial and shall recites in detail the following: a. Matters taken up in the conference; b. The action taken thereon; c. The amendments allowed to the pleadings; and d. The agreements or admissions made by the parties as to any matters considered.

The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. Pre-trial order is to make specific the legal theories on which each party is proceeding and to crystalize and formulate the issues to be tried; to make specific the legal theories contentions of fact on which each party to an action is proceeding

Alternative Dispute Resolution (ADR) (1) If the case has already filed a complaint with the trial court without prior recourse to arbitration, the proper procedure to enable an arbitration panel to resolve the parties dispute pursuant to the contract is for the trial court to stay the proceedings. After the arbitration proceeding has already been pursued and completed, then the trial court may confirm the award made by the arbitration panel (Fiesta World Mall Corp. vs. Linberg Phils. Inc., GR 152471, Aug. 18, 2006).

Reviewer in Civil Procedure By: Duke Sucgang

(2) A party has several judicial remedies available at its disposal after the Arbitration Committee denied its Motion for Reconsideration: (a) It may petition the proper RTC to issue an order vacating the award on the grounds provided for under Sec. 24 of the Arbitration Law; (b) File a petition for review under Rule 43 with the Court of Appeals on questions of fact, of law, or mixed questions of fact and law (Sec. 41, ADR); (c) File a petition for certiorari under Rule 65 on the ground that the Arbitration Committee acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction (Insular Savings Bank vs. Far East Bank and Trust Co., GR 141818, June 22, 2006).

An intervenor is a person who voluntarily interposes in an action or other proceeding with the leave of the court; one who, by leave of court, files his complaint or pleading asking for affirmative and independent relief from that of the plaintiff or defendant in the original action, or against either or both of them

The following persons may intervene in an action: a. Those who have a legal interest in the matter of litigation b. Those who have an interest in the success of either of the parties or an interest against both c. Those who are so situated as to be adversely affected by a destruction or other disposition of property in the custody of the court or an officer thereof Requisites for intervention

RULE 19 INTERVENTION 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 joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adverse to both of them. It is merely a collateral or accessory or ancillary to the principal action ad not an independent proceeding. With the final dismissal of the original action, the complaint in intervention can no longer be acted upon. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding. Right to intervene is not an absolute right. It is fixed by the rule or statute and can be secured only in accordance with the rule on intervention and addressed to the sound discretion of the court. It is not compulsory or mandatory but only optional and permissive. Using the word may. The purpose of intervention is not to obstruct or unnecessarily delay the trial but merely to afford one and the opportunity to appear and be joined so he could assert or protect such right or interest. Intervention is not an independent action but is auxiliary and supplemental to the existing litigation. An improper denial of a motion for intervention is correctible by appeal, but if there is grave abuse of discretion, writ of mandamus will lie, where there is no other plain, speedy and adequate remedy. Motion to intervene should be construed liberally
Reviewer in Civil Procedure By: Duke Sucgang

The following requisites must be complied with before a non -party may intervene in a pending action: (a) There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 1, Rule 19). A motion is necessary because leave of court is required before a person may be allowed to intervene. (b) The movant must show in his motion that he has: (1) A legal interest in the matter in litigation, the success of either of the parties in the action, or against both parties; (2) 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 of an officer thereof; and (3) That the intervention must not only unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenors rights may not be fully protected in a separate proceeding Intervention Ancilliary action Proper in any of the four situations on this Rule Interpleader Original action Presupposes that the plaintiff has no interest in the subject-matter of the action or has an interest therein which, in whole or in part, is not disputed by the other parties to the action The defendants are being sued precisely to implead them

The defendants are already original parties to the pending suit The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleadingin-intervention shall be attached to the motion and served on the original parties. Former rule, before or during a trial. A copy of the pleading attached cannot be made ex parte but should be made on notice. Remedy for the denial of motion to intervention

(1) The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion. The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answerin-intervention if he unites with the defending party in resisting a claim against the latter. (pleadings-in-intervention)

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

Complaint-in-intervention it is filed when the intervenor asserts a claim against either or all of the original parties Answer-in-intervention it is filed when the intervenor unites with the defendant in resisting a claim against the latter Examples where intervention was allowed: 1. Heir has a legal interest of a claim based upon a promissory note signed by his predecessor in interest, alleged to have been obtained through fraud and lack of consideration. 2. Action by one partner against his other partners and creditors of the partnership, to wind up the affairs, to sell the partnership property, to pay the debts and distribute the proceeds among the interested parties, and other partnership affairs. 3. When a judicial administrator of a testamentary estate, who is made a party defendant in an action on appeal for the recovery from the testator of a claim rejected by the committee on claims and appraisal does not interpose the necessary and effective legal defense, the heirs have the right to intervene 4. The person who has to pay the Attorneys fees for successful plaintiff for the amount to be determined 5. Action between owners of two steamships for damages due to collision, the owners of the merchandise lost may intervene 6. Where property sold subject to the right to repurchase, the vendee may intervene as owner of the attached property and have it dissolved.

hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties opportunity to be present.

RULE 21 SUBPOENA Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21).

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

Summons An order to answer complaint Served on the defendant Does not need tender of kilometrage and other fees

Subpoena ad testificandum 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. Subpoena duces tecum a process directed to a person requiring him to bring with him books, documents, or other things under his control

Examples where intervention not allowed: 1. FUED where the intervenor may raise questions over the jurisdiction of courts 2. Where the rights of the intervenor may be fully protected in a separate proceeding 3. Where the party desiring to intervene was not a party to the agreement between the original parties and where would unduly prejudice the adjudication of their right 4. Municipality which has no right in the plaza cannot intervene in cadastral proceeding 5. Oppositors-appellees who had not chosen to file their brief have no personalty to intervene 6. A person may at any period of the trial, be permitted by the court, in its discretion to intervene if he has legal interest in the matter in litigation. RULE 20 CALENDAR OF CASES The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, those whose trials were adjourned or postponed, and those with motions to set for
Reviewer in Civil Procedure By: Duke Sucgang

By whom issued: 1. The court before whom the witness is required to attend 2. Court of the place where the deposition is to be taken 3. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body 4. Any justice of the SC or of the CA in any case or investigation pending within the Philippines. Subpoena to a prisoner the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. If prisoner required to appear in court is sentenced to death, reclusion perpetua or life imprisonment and is confined in prison, it must be authorized by the SC. MTC may now issue a subpoena for the attendance before it of a prisoner even if he is not confined in a municipal jail, unless such prisoner has been sentenced to death, RP or life imprisonment and his desired appearance has not been authorized by the SC. Forms and Contents: 1. Shall state the name of the court and the title of the action or investigation 2. It shall be directed to the person whose attendance is required 3. In the case of a subpoena duces tecum, it shall contain a reasonable description of the books, documents or things

demanded which must appear to the court to be prima facie relevant. Quashing a subpoena Subpoena duces tecum: 1. Upon motion promptly made 2. Proof that: a. It is unreasonable and oppressive b. The articles sought to be produced do not appear prima facie to be relevant to the issues c. The person asking for the subpoena does not advance the cost for the production of the articles desired Subpoena ad testificandum may be quashed on the ground that the witness is not bound thereby In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. Proof of service of a notice to take a deposition shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not however, issue a subpoena duces tecum to any such person without an order of the court. Service of subpoena: 1. The original shall be exhibited and a copy thereof delivered to the person on whom it is served; 2. Tendering to him the fees for one days attendance or kilometrage allowed by the Rules; except that, when a subpoena is issued by or on behalf of the RP or an officer or agency thereof, the tender need not be made 3. The service myust be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance 4. If the subpoena is duces tecum, the reasonable cost of producing the books, documents, or things demanded shall also be tendered The service of subpoena shall be made in the same manner as personal or substituted service of summons A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer The court which issued the subpoena may 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 wilful and without just cause The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it. Exceptions: provisions regarding the compelling of attendance (sec. 8) and contempt (sec. 9) do not apply where:
Reviewer in Civil Procedure By: Duke Sucgang

1.

2.

Witness resides more than 100km from his residence to the place where he is to testify by the ordinary courts of travel (Viatory Right) and Permission of the court in which the detention prisoners case is pending was not obtained.

RULE 22 COMPUTATION OF TIME In computing the time, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on Saturday, Sunday or legal holiday in the place where the court sits, the time shall not run until the next working day. The computation of time shall be construed mandatory and absolutely indispensable to prevenet needless delay and to secure the orderly and speedy discharge of judicial cases. When the party seeks an extension and the same is granted, the due date ceases to be the last day and hence, the provision no longer applies. Any extension of time to file the required pleading should therefore be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday, or legal holiday. Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period. The act referred to include force majeure, fortuitous events or calamities. An express cause for the interruption since that fact would obviously be made known or notice thereof given to the party.

MODES OF DISCOVERY The following are the modes of discovery: 1. Depositions pending action 2. Depositions before action or pending appeal 3. Interrogatories to parties 4. Admission by adverse party 5. Production or inspection of documents and things 6. Physical and mental examination of persons.

Modes of discovery is a device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for the trial. The device may be used by all the parties to the case. Purpose: designed to serve as an additional device aside from a pre-trail, 1. To narrow and clarify the basic issues between the parties. 2. To ascertain the facts relative to the issues; and 3. To enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and this prevent the said trials to be carried on in the dark.

 It is intended to make certain that all issues necessary to the disposition of a case are properly raised. The basic purposes of the rules of discovery are: (a) To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions; (b) To obtain knowledge of material facts or admissions from the adverse party through written interrogatories; (c) To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions; (d) To inspect relevant documents or objects, and lands or other property in the possession and control of the adverse party; and (e) To determine the physical or mental condition of a party when such is in controversy RULE 23 DEPOSITIONS PENDING ACTION RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. a. This testimony is taken out of court. It may be either by an oral b. examination, or by a written interrogatory. (sec. 1. Rule 23). Deposition may be sought for use in a future action (24) during a pending action (23) or for use in a pending appeal (24). Deposition de benne esse If the deposition is for use during a pending trial action and is governed by Rule 23; one taken pending action. Deposition in perpetuam rei memoriam if it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action or for cases on appeal; one taken prior to the institution of an apprehended or intended action (Rule 134) Leave of court is required before the service of an answer but after jurisdiction has been acquired over the defendant or over the property subject of the action (sec. 1. Rule 23). When it is the deposition of a prisoner that is to be taken, his deposition may be taken only with leave of court and upon such terms as the court may prescribe.

3.

No deposition shall be taken before a person who is a relative th within the 6 degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (sec.23)

Examination of deponent 1. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined (sec.15). After the notice is served, the court may make any order for the protection of the parties and the deponents. sec.23 The attendance of witnesses may be compelled by the use of subpoenas (sec.1) The deponent may be examined or cross examined following the procedures for witnesses in a trial. He 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 because Secs. 3 to 18 of Rule 132 apply to a deponent. (sec.3) Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts. (sec.2) The officer before whom the deposition is taken has no authority to rule on the objections interposed during the course of the deposition although any objections shall be noted by the officer upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection.
(sec.17)

2. 3.

4.

5.

Use of depositions pending action 1. Any part or all of the deposition, so far as admissible under a. the rules of evidence, may be used against any party who was present or represented at the taking of the deposition, or b. against one who had due notice of the deposition. (sec.4) If the deposition is for use during a pending action, it is commonly called a deposition benne esse and is governed by Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam. Scope of examination Unless otherwise ordered by the court as provided by Sec. 16 or 18, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons

Before whom taken (deposition pending action) 1. Within the Philippines, a deposition need not be taken before a judge, although it may be taken one. It may also be taken before a notary public or before any person authorized to administer oaths if the parties so stipulate in writing. (sec. 14) Outside the Philippines, a deposition may be taken before 1. Secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent of the RP (sec. 11); 2. Such person or officer as may be appointed by commission or letters rogatory; or 3. A person authorized to administer oaths by written stipulation of the parties. (sec. 14)

2.

Reviewer in Civil Procedure By: Duke Sucgang

having knowledge of relevant facts (Sec. 2). 2. The deposition may be used for the following purposes: a. For contradicting or impeaching the testimony of the deponent as a witness b. For any purpose by the adverse party where the deponent is a party c. For any purpose by any party, where the deponent is a witness if the court finds that: i. The witness is dead ii. That the witness resides more than 100 km from the place of trial or hearing or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition iii. That the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or iv. That the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or v. When exceptional circumstances exists (sec.4) Deposition need not be conducted through an oral examination. May be conducted through written interrogatories which shall be served upon every other party. The pary may also serve cross-interrogatories upon the party proposing to take the deposition within 10 days from service of the written interrogatories. The latter may, within 5 days serve re-direct interrogatories and within 3 days the other pary may serve re-cross interrogatories.
sec.25,rule 23

Issued to a non-judicial foreign officer who will directly take the testimony

Applicable rules of procedure are those of the requesting court Resorted to if permission of the foreign country is given Leave of court is not necessary

Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary

When may taking of deposition be terminated or its scope limited (1) At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon showing that the examination is being conducted in bad faith or in such manner as reasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Sec. 16, Rule 23. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable (Sec. 18). RULE 25 INTERROGATORIES TO PARTIES Purpose: availed of by a party to the action is for the purpose of eliciting material and relevant facts from any adverse party. INTERROGATORIES TO PARTIES Designed to clarify ambiguities in a pleading or to state with sufficient definiteness in a allegations in a pleading Directed to a pleading BILL OF PARTICULARS Not directed to a particular pleading

Copies of all interrogatories shall be delivered to the officer before whom the deposition is taken and who shall take the responses and prepare the record. (sec.26,rule 23)

Perpetuation of testimony before action or pending appeal 1. The perpetuation of a testimony is done by filing a verified petition in the place of the residence of any expected adverse party. This petition is filed by a person who desires to perpetuate his own testimony or that of another regarding any matter that may be cognizable in any court sec.1,rule24 Notices shall be sent in accordance with Rules (sec.3). If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make the appropriate order for the taking of the deposition. (sec.4,rule24) The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter. (sec.6,R4) A deposition for the perpetuation of testimony in a case pending appeal may likewise be availed of under the same rules as those followed in perpetuation of testimony pending action those prescribed for depositions pending action.
(sec.7,R24)

They seek to disclose all material and relevant facts from a party

2.

Written interrogatories in a deposition are not served upon the adverse party directly. They are instead delivered to the officer before whom the deposition is to be taken Interrogatories to parties are served directly upon the adverse party

3.

Procedure: 1. The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, the written interrogatories shall be answered by any of its officers competent to testify in its behalf No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

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2. Letters Rogatory

Commission
8 Reviewer in Civil Procedure By: Duke Sucgang

3.

4.

The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within 15 days after service thereof. This time may, upon motion, be extended or shortened by the court The party against whom it is directed may make objections to the interrogatories. If he does so, said objections shall be presented to the court within 10 days after service of interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories

land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and) (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. 3, Rule 29). RULE 26 ADMISSION BY ADVERSE PARTY Purpose: to allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely to admit certain material and relevant trial. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: 1. 2. To admit the genuineness of any material and relevant document described in and exhibit with the request Admit the truth of any material and relevant matter of fact set forth in the request

Effect of Failure to Serve Written Interrogatories 1. A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give deposition pending appeal, unless allowed by the court or to prevent a failure of justice The provision encourages the use of written interrogatories and although a party is not compeeled to use this discopvery procedure, the rule imposes sanctions for his failure to serve written interrogatories by depriving him of the privilege to call the adverse party as a witness or to give a deposition pending appeal.

2.

Consequences of refusal to answer (1) If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorneys fees (Sec. 1, Rule 29). (2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (Sec. 2, Rule 29). (3) If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon
9 Reviewer in Civil Procedure By: Duke Sucgang

Filing of written request for admission A party, is advised to file and serve a written request for admission on the adverse party of those material and relevant facts at issue which are, or ought to be, within the personal knowledge of said party. The party who fails to file and serve the request shall not be permitted to present evidence on such facts, unless otherwise allowed by the court for the good cause shown and to prevent a failure of justice. (sec. 5) Filing and service of a sworn statement of admission or denial; effect of failure to file and serve 1. It is advisable for the party to whom the written request is directed to file and serve upon the party requesting the admission a sworn statement either: a. Specifically denying the matters of which admission is requested

b.

If he does not deny the same, to set forth in detail the reasons why he cannot truthfully admit or deny those matters.

matter. Books and papers which are confidential and privileged character, could not be received in evidence.

This sworn statement shall be filed and served within the period shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion. 2. If the party to whom the written request for admission does not file the required sworn statement each of the matters of which an admission is requested shall be deemed admitted Any admission made by a party as a consequence of the failure to comply with the request is only for the purpose of the pending action and shall not be deemed an admission for any other purpose. Likewise, the admission cannot be used against the admitting party in any other proceeding.

Requirements for the production or inspection of documents or things: (a) A motion must be filed by a party showing good cause therefor; (b) The motion must sufficiently describe the document or thing sought to be produced or inspected; (c) The motion must be given to all the other parties;

3.

(d) The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action; (e) The document or thing sought to be produced or inspected must not be privileged; and (f) The document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least under his control (Sec. 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175) The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.

Deferment of compliance To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement deferred. This deferment may be effected by the filing with the court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court. Withdrawal of admission Admissions made under this mode of discovery are not final and irrevocable. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just. To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission. RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS (1) Upon motion of any party showing good cause therefor, the court in which an action is pending may: (a) Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or (b) Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. The documents, papers, books, accounts, letters, photographs, objects or tangible things that may be produced and inspected should not be preivileged. The documents must not be privileged against disclosure. On the ground of public policy, the rules providing for production and inspection of books and papers do not authorize the production and inspection of books and papers do not authorize the production or inspection of privileged
Reviewer in Civil Procedure By: Duke Sucgang

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS This mode of discovery applies to an action in which the mental or physical condition of a party is in controversy. Requirements of physical and mental examination of persons: 1. 2. 3. An action for annulment of a contract where the ground relied upon is insanity or dementia A petition for guardianship of a person alleged to be insane An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.

Procedure: 1. The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.

2.

Examples: Rules governing the rights of parties on the report of the examining

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physician regarding the physical or mental condition of party examined: (a) The person examined shall, upon request, be entitled to a copy of the detailed written report of the examining physician setting out his findings and conclusions; (b) The party causing the examination to be made shall be entitled upon request to receive from the party examined, a like report of any examination previously or thereafter made, of the same physical or mental condition; (c) If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery; (d) If a physician fails or refuses to make such report, the court may exclude his testimony if offered at the trial; (e) The party examined who obtains a reports of the examination or takes the deposition of the examiner waives any privilege he may have in that action or any other action involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination (Sec. 4). Waiver of privilege Rule 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY The following are the consequences of a plaintiffs refusal to make discovery: (a) The examining party may complete the examination on the other matters or adjourn to the same (Sec. 1); (b) Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court of the province where the deposition is being taken for an order compelling answer; (c) If the court finds that the refusal was without substantial justification, it may order the refusing party or the attorney advising him or both of them to pay the examining party the amount of reasonable attorneys fees; (d) The refusal to answer may be considered as contempt of court (Sec. 2); Refusal to answer designated or particular questions or refusal to produce documents or things or to submit to physical or mental examination (e) The court may order that the facts sought to be established by the examining party shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order (Sec. 3[a]); (f) The court may issue an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony (Sec. 3[b]); (g) The court may order the striking out of pleadings or party thereof (Sec. 3[c]); (h) The court may stay further proceedings until the order is obeyed;

such matters or the genuineness of such document, reasonable expenses incurred in making such proof, including reasonable attorneys fees (Sec. 4). Refusal to be sworn A refusal of a party to be sworn after being directed by the court may be considered as contempt of court Refusal to admit If a party refuses to admit the genuineness of any document or the truth of any matter of fact and serves a sworn denial thereof and if the other party later on proves the genuineness of the document or the truth of such matter of fact, the court upon proper application, may order the former to pay the reasonable expenses in making such proof, including attorneys fees.

Failure to attend depositions or to serve answers to interrogatories 1. The court may: a. b. c. 2. Strike out all or any part of the pleading of that party, or dismiss the action or proceeding or any part thereof Enter a judgment by default against that party, and in its discretion Order him to pay reasonable expenses incurred by the other, including attorneys fees (sec. 5)

The consequences under Sec. 5 will apply if a party refuses to answer the whole set of written interrogatories, and not just a particular question. Where the party upon whom the written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order, Sec. 3, Rule 29 will apply. (Zepeda vs CHINABANK) While the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice.

3.

(i) The court may dismiss the action or proceeding or any party thereof, or render judgment by default against the disobedient party (Sec. 5); (j) The court may order the arrest of any party who refuses to admit the truth of any matter of fact or the genuineness of any document to pay the party who made the request and who proves the truth of any
11 Reviewer in Civil Procedure By: Duke Sucgang