Civil Proc Reviewer

REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002
CIVIL PROCEDURE
RULE 1 GENERAL PROVISIONS
1. 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; may be ordinary or special Criminal action one by which the state prosecutes a person for an act or omission punishable by law Special proceeding remedy by which a party seeks to establish a status, a right, or a particular fact 2. Rules of Court shall NOT be applicable to the following , except by analogy or in a suppletory character, and whenever practicable and convenient a. b. c. d. e. Election cases; Land registration; adastral proceedings; !aturali"ation proceedings; and #nsolvency proceedings
RULE 2 CAUSE OF ACTION

1. Cause of action an act or omission by which a party violates the right of another 2. REQUISITES O !OIN"ER O C#USES O #CTION$ a. $he party %oining the causes of action shall comply with the rules on %oinder of parties; b. $he %oinder shall !&$ include special civil action or actions governed by special rules; c. 'here the causes of action are between the same parties but pertain to different venues or %urisdiction, the %oinder may be allowed in the ($ provided one of the causes of action falls within the %urisdiction of the ($ and the venue lies therein; ). Where the claims in all the causes of action are principally for recovery of money , the aggregate amount claimed shall be the test of %urisdiction. *. Misjoinder of causes of action NOT a ground for dismissal ; the action may, on motion or motu proprio, be severed and proceeded with separately.
RULE 3 PARTIES TO CIVIL ACTIONS

1. C%#I&S T'#T SUR(I(E T'E "E#T' O # )#RT*$ a. +ctions to recover real and personal property against the estate; b. +ctions to enforce liens thereon; c. +ctions to recover for in%ury to persons or property by reason of tort; d. +ctions to recover money arising from contract, e,press or implied. 2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground for dismissal. +ction continues until entry of final %udgment. +ny %udgment against estate of deceased will be enforced as money claim. 'rit of preliminary attachment, if any, not dissolved. ). REQUISITES O )ER&ISSI(E !OIN"ER O )#RTIES$ 1
a. (ight to relief arises out of the same transaction or series of transactions, whether %ointly, severally, or in the alternative b. $here is a -uestion of law or fact common to all the plaintiffs and defendants; c. .uch %oinder is not otherwise proscribed by the provisions of the (ules on %urisdiction and venue. *. REQUISITES O # C%#SS SUIT$ a. .ub%ect matter of the controversy is one of common or general interest to many persons; b. /arties affected are so numerous that it is impracticable to bring them all to the court; c. /arties bringing the class suit are sufficiently numerous or representative of the class and have the legal capacity to file the action. 0. TR#NS ER O INTEREST +ction may be continued by or against the original party, unless the court, on motion, directs the transferee to be substituted in the action or %oined with the original party; however, if transfer is made before commencement of the action, the transferee must necessarily be the party, since only he is the real party in interest.
RULE 4 VENUE OF ACTIONS + Uniform rule on venue in RTC and &TC 1. VENUE OF REAL ACTIONS in the proper court which has %urisdiction over the area wherein real property involved or a portion thereof is situated. 2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS in the 1$ the real property or a portion thereof is situated of the municipality or city wherein
). VENUE OF PERSONAL ACTIONS where the plaintiff or any of the principal plaintiffs resides , or where the defendant or any of the principal defendants resides, or in the case of a non2 resident defendant !here he may be found, at the election of the plaintiff. NOTE$ 3residence4 means place where party actually resides at time of action; does !&$ mean permanent home or domicile. *. #ction against non,resident not found in the )hilippines a. #CTION # ECTS T'E )%#INTI -S )ERSON#% ST#TUS 2 in the court of the place where the plaintiff resides. b. #CTION # ECTS #N* )RO)ERT* O T'E "E EN"#NT IN T'E )'I%I))INES 2 where the property or any portion thereof is situated or found. 0. Rules on (enue shall NOT appl.$ a. #n those case where a specific rule or law provides otherwise 5 e g " civil case for damages in cases of libel, where +rticle )67 of (/ provides specific rules on venue8; &( b. 'here the parties have validly agreed #! '(#$#!9 before the filing of the action on the E: L;.#<E venue thereof. #n this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved.
RULE 5
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002 UNIFORM PROCEDURE IN TRIAL COURTS
1. $he procedure in the 1$ s shall be the same as that in the ($ . 2. Uniform )rocedure shall NOT be applicable$ a. 'here a particular provision e,pressly or impliedly applies only to either of said courts. b. #n civil cases governed by the (ule on .ummary /rocedure.
RULE 6
INDS OF
PLEADINGS
1. Negative "efense specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause of action. 2. #ffirmative defense an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. #ncludes= a. >raud b. .tatute of limitations c. (elease d. /ayment e. #llegality f. .tatue of frauds g. Estoppel h. >ormer recovery i. ?ischarge in bankruptcy %. +ny other matter by way of confession or avoidance. ). Compulsor. counterclaim RE!UISITES" a. +rises out of or is necessarily connected with the transaction or occurrence which is the sub%ect matter of the opposing party@s claim; b. ?oes not re-uire for its ad%udication the presence of ) rd parties of whom the court cannot ac-uire %urisdiction; and c. 1ust be within the %urisdiction of the court both as to the nature and the amount, except that in an &(#9#!+L action in the ($ , the counterclaim may be considered regardless of the amount. #gustin vs $acalang + court 5if 1$ 8 has no %urisdiction to hear and determine a set2off or counterclaim in e,cess of its %urisdiction. + counterclaim beyond the court@s %urisdiction may only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff@s claim, but !&$ to obtain affirmative relief. 1&(E&<E(, the amount of %udgment obtained by the defendant on appeal cannot e,ceed the %urisdiction of the court in which the action began. .ince the trial court did not ac-uire %urisdiction over the counterclaim in e,cess of the %urisdictional amount, the appellate court likewise did not have %urisdiction over the same. #n such a case, the award in e,cess of the %urisdiction of the trial court is void. Calo vs #jax + counterclaim, even if otherwise compulsory, but amount e,ceeds the %urisdiction of the inferior court, will only be considered permissive. Aence, fact that it is not set2up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it.
RULE # PARTS
OF A
PLEADING
)
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002 1.
OR&#%
REQUIRE&ENTS O )%E#"IN/S$
a.
aption
b. $itle c. Body divided into headings and paragraphs d. .ignature and address e. <erification in some cases
2. Signature of the law.er constitutes a certification b. him that$
a. Ae has read pleading b. $o the best of his knowledge, information, and belief, there is good ground to support it c. #t is not interposed for delay. ). $OW A PLEADING IS VERIFIED" By an affidavit stating that a. +ffiant 5person verifying8 has read the pleading b. +llegations therein are true and correct as of his personal %no!ledge or based on authentic records. 5. ircular *C22777, effective 1ay 1, 27778 *. # pleading re0uired to be verified which$ a. b. ontains a verification based on 3information and belief4, &( ontains a verification based on 3knowledge, information and belief,4 &(
c. Lacks a proper verification Shall be treated as an unsigned pleading1

0. 2hat pleadings have to be verified$
a. /etition for relief from %udgment 5)C.)8 b. +ppeal by certiorari from + to . 5*0.18 c. d. e. f. omplaint with prayer for preliminary attachment 50D. )8 omplaint for in%unction 50C.*8 omplaint for replevin 567.28 /etition for certiorari 560.18
g. /etition for prohibition 560.28 h. /etition for mandamus 560.)8 i. %. omplaint for forcible entry or unlawful detainer 5D7.*8 /etition for appointment of general guardian 5E).28
k. /etition for leave to sell or encumber property of estate or guardian 5E0.18 l. /etition for declaration of competency of the ward 5ED.18 *
m. /etition for habeas corpus 5172.)8 n. /etition for change of name 517).28 o. /etition for voluntary dissolution of a corporation 517*.18 p. /etition for cancellation or correction of entries in the civil registry 517C.18 -. /etition to take deposition in perpetuam rei memoriam 5before action or pending appeal8 52*.28 r. 1otion to set aside a default order of an inferior court
s. 1otion for dissolution of preliminary in%unction on the ground of irreparable damage to the movant while the adverse party can be fully compensated t. /etition for appointment of receiver
u. /etition for review of the decision of an ($ in cases within the e,clusive original %urisdiction of the inferior court, by and elevated to the +. v. /leadings that need not be verified but must be under oath= w. ?enial of the genuineness and due e,ecution of an actionable document 5C.C8 ,. ?enial of allegations of usury 5C.118 y. +nswer to written interrogatories 520.28 ". +nswer to re-uest for admission 526.28 aa. !otice of appeal from administrative tribunals to the +
6. Supporting affidavits of merit re0uired$ a. 1otion to postpone for absence of evidence 5)7.)8 b. 1otion to postpone for illness of a party or counsel 5)7.*8 c. 1otion for summary %udgment or opposition thereto 5)0.1,2,),08 d. 1otion for new trial on the ground of >+1E or opposition thereto 5)D.28 e. /etition for relief from %udgment 5)C.)8 f. $hird2party claim 5)E.168
g. /roof re-uired of a redemptioner 5)E.)78 h. 1otion for preliminary attachment 50D.)8 i. %. k. l. 1otion for dissolution of preliminary in%unction 50C.68 +pplication for writ of replevin 567.28 laim against the estate of the decedent 5C6.E8 1otion for new trial based on newly discovered evidence in criminal cases 5121.*8
D. CERTIFICATION AGAINST FORUM%S$OPPING"
/laintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification anne,ed and filed therewith= a. $hat he has not commenced any action or filed any claim involving the same issues in any court, tribunal or -uasi2%udicial agency; to the best of his knowledge no such other claim or action pending; b. #f there is such other pending action, a complete statement of the present status thereof; c. #f he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 0 days therefrom to the court where he filed his complaint. NOTE$ >+#L;(E $& &1/LF !&$ ;(+BLE BF 1E(E +1E!?1E!$ &> $AE &1/L+#!$ &( /LE+?#!9 B;$ .A+LL BE +;.E >&( ?#.1#..+L &> $AE +.E '#$A&;$ /(EG;?# E; #> $AE + $. &> /+($F &( &;!.EL LE+(LF &!.$#$;$E '#LL>;L H ?EL#BE(+$E >&(;1 .A&//#!9, 9(&;!? >&( .;11+(F ?#.1#..+L '#$A /(EG;?# E +!? &!.$#$;$E ?#(E $ &!$E1/$. i. or orum,Shopping to e3ist4 there must be$ .ame transactions involved;
ii. .ame essential facts and circumstances; and iii. +ctions raise identical cause of action, sub%ect matter, and issues
RULE & MANNER OF MA
ING
ALLEGATIONS IN PLEADINGS
1. +llegations of capacity a. apacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal e,istence of an organi"ed association that is made a party must be averred; b. $o raise an issue as to the legal e,istence of a party or the capacity of a party in a representative capacity, do so by specific denial, including such supporting particulars as are peculiarly within the pleader@s knowledge. 2. +ction or defense based on document a. .ubstance of such document set forth in the pleading; b. &riginal or copy attached to the pleading as e,hibit and deemed to be part of the pleading; &( c. opy may be set forth in the pleading with like effect. ). Aow to contest actionable document= 9enuineness and due e,ecution of instrument deemed admitted unless adverse party= a. .pecifically denies them under oath; b. .ets forth what he claims to be the facts. (e-uirement of an oath does !&$ apply= i. 'hen diverse party does not appear to be a party to the instrument; or ii. 'hen compliance with an order for an inspection of the original instrument is refused. +dmission of genuineness and due e,ecution= i. /arty whose signature appears admits that he signed it, or that it was signed by another with his authority ii. 'as in words and figures as set out at the time it was signed iii. ?ocument was delivered iv. +ny formal re-uisites re-uired by law which it lacks are waived by him $he following defenses are cut2off by admission of genuineness and due e,ecution of the document= i. .ignature is a forgery ii. .ignature is unauthori"ed iii. orporation is not authori"ed under its charter to sign the instrument iv. /arty charged signed the instrument in some other capacity than that alleged in the pleading setting it out v. ?ocument was never delivered. *. ./E #># ?E!#+L 6
a. ?efendant must specify each material allegation of fact the truth of which he does not admit; b. ?efendant must set forth the substance of the matters upon which he relies to support his denial, whenever practicable; c. #f denying only part of an averment, he shall specify so much of it as is true and material and shall deny the remainder; d. #f defendant does not have knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state and this has effect of denial. Negative pregnant a denial which at the same time involves an admission of the substantial facts in the pleading responded to. 0. +llegations not specifically denied, other than those as to amount of unli-uidated damages deemed admitted. RULE ' EFFECT OF FAILURE TO PLEAD 1. 9eneral (ule= ?efenses and ob%ections not pleaded in answer or motion to dismiss are deemed waived 5&mnibus 1otion (ule8. &xception' ourt shall dismiss the claim, even without allegation in answer or motion to dismiss, if any of the following appear from the pleadings or the evidence on record= a. Lack of %urisdiction over the sub%ect matter; b. (itis pendentia between same parties for the same cause; c Res judicata d. +ction barred by statute of limitations. 2. ?E L+(+$#&! &> ?E>+;L$ a. ?efendant entitled to notice of motion to declare him in default and of order of default; b. 1otion to set aside order of default may be filed after notice and before %udgment; c. /arty may make motion, under oath, to set aside order of default upon proper showing that failure to answer was due to >+1E; d. Effect of order of default party in default entitled to notice of subse-uent proceedings but not to take part in trial; e. /artial default if several defending parties and not all in default, the court shall try the case against all upon the answers thus filed and evidence presented; f. +fter declaration of default, court may render %udgment on the basis of the complaint or re-uire claimant to submit evidence; g. Gudgment against party in default shall not e,ceed the amount or differ in kind from that prayed for nor award unli-uidated damages; h. !o defaults in action for annulment or declaration of nullity of marriage or for legal separation. RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS 1. +mendments of pleadings may be made once as a matter of right= a. +t any time before responsive pleading is served b. #n the case of a reply, anytime within 17 days after service. /laintiff may amend complaint as a matter of right even after defendant files a 1otion to ?ismiss, since the same is not a 3responsive pleading.4 2. .ubstantial amendments may be made only with leave of court, except as provided above. ). +n amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. 5!&$ %udicial admissions anymore; thus, must be formally offered8 *. laims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived. 0. +mended and .upplemental pleadings distinguished= AMENDED SUPPLEMENTAL (efers to facts e,isting at the time of the (efers to facts arising after the filing of the commencement of the action original pleading (esults in the withdrawal of the original 1erely an addition, and does !&$ result in pleading the withdrawal of, the original pleading an sometimes be made as a matter of +lways filed with leave of court right RULE 11 W$EN TO FILE RESPONSIVE PLEADINGS 1. +nswer to complaint 10 days from service, unless different period fi,ed by the courts; 2. +nswer of defendant foreign private %uridical entity when service of summons is made on the government official designated by law, answer to be filed within )7 days from receipt of summons by such entity. D
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002 ). +nswer to amended complaint if amended as a matter of right, 10 days from being served with
copy thereof #f amended not as a matter of right, 17 days from notice of order admitting the same +nswer earlier filed may be answer to amended complaint, if no new answer is filed +pplicable to amended counterclaim, cross, third, etc, *. +nswer to counterclaim or cross2claim within 17 days from service. 0. +nswer to )rd party complaint 10 days from service 6. (eply may be filed within 17 days from service of the pleading responded to RULE 12 BILL OF PARTICULARS 1. Bill of particulars a. /eriod of filing motion before responding to a pleading; if pleading is a reply, within 17 days from service thereof; b. &rder for bill must be complied with in 17 days from notice &( period fi,ed by court c. +fter service of bill or denial of motion party has balance of time he was entitled to file responsive pleading, but not less than 0 days 1otion for Bill of /articulars may !&$ call for matters which form part of the proof of the complaint. $hus, motion should not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. RULE 13 FILING AND SERVICE OF PLEADINGS( )UDGMENTS AND OT$ER PAPERS 1. Iinds of service of pleadings= a. /ersonal service to be done whenever practicable 51ost preferred mode8 b. .ervice by mail 5ordinary if no registered mail8 c. .ubstituted service 5delivering copy to clerk of court with proof of failure of 1st 2 modes8 &xcept with respect to papers emanating from the court, a resort to other modes must be accompanied by a written e,planation why the service or filing was not done personally. <iolation of rule may be cause to consider the paper as not filed. 2. Iinds of service of final orders= a. /ersonal b. (egistered mail c. /ublication 5if summons by publication8 ). /roof of personal service a. 'ritten admission of party served; b. &fficial return of the server; or c. +ffidavit of party serving, containing a full statement of the date, place and manner of service. RULE 14 SUMMONS 1. ontents of summons a. .igned by the clerk under the seal of the court b. !ame of the court and the parties to the action c. ?irection that the defendant answer within the time fi,ed by these rules d. !otice that unless defendant so answers, plaintiff will take %udgment by default 2. Iinds of service of summons= +. /E(.&!+L= i. Aanding a copy to the defendant in person; &( ii. #f he refuses to receive and sign for it, by tendering it to him B. .;B.$#$;$E?= i. Leave copies at his residence, with person of suitable age and discretion residing therein; &( ii. Leave copies at defendant@s officeJregular place of business, with competent person in charge thereof. c. By publication ). By whom served= a. .heriff b. &ther proper court officer c. +ny suitable person specially authori"ed by the %udge *. 'hen e,traterritorial service allowed= a. ?efendant is a non2resident and is not found in the /hilippines and action affects plaintiff@s personal status b. .ub%ect of action is property within the /hilippines in which the defendant has or claims a lien or interest C
0.
6.
D.
C.
E.
c. 'here relief demanded consists in whole or in part in e,cluding the defendant from any interest in such property d. 'hen property of defendant has been attached within the /hilippines Iinds of e,tra territorial service a. /ersonal service b. /ublication and summons sent by registered mail to last known address c. +ny other matter the court may deem sufficient 'hen service by publication in a newspaper of general publication allowed= a. #dentity of defendant unknown b. 'hereabouts of defendant unknown and cannot be ascertained by diligent in-uiry 5a8 and 5b8, applies to +!F action, even actions in personam c. ?efendant is non2resident and the suit is )uasi in rem d. ?efendant is temporarily out of the country and the suit is )uasi in rem .ervice upon private domestic %uridical entity refers to corporation, partnership, or association organi"ed under /hil. Laws with a %uridical personality= a. /resident b. 1anaging partner c. 9eneral manager d. orporate secretary e. $reasurer f. #n2house counsel .ervice upon private foreign %uridical entity transacting business in the /hils= a. (esident agent designated in accord with Law b. #f no such agent, on government official designated by law &( c. &n any of its officers or agents within the /hils NOT&' #> !& (E.#?E!$ +9E!$, .E(<# E &> .;11&!.E. +!? /(& E..E. &! $AE .E . !ewspaper of general circulation 5(+ *CC), /? 17DE8 a. /ublished for the dissemination of local news and general information b. Aas a bona fide subscription list of subscribers c. /ublished at regular intervals d. !ot published for nor devoted to the interest of a particular group of persons e. 1ust have been regularly published for at least 2 years before the date of the publication in -uestion. 1ere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. #t should be noted that when the appearance of the defendant is precisely to ob%ect to the %urisdiction of the court over his person, it cannot be considered as an appearance in court.
RULE 15 MOTIONS 1. +ll motions must be in writing except= a. $hose made in open court; &( b. $hose made in the course of a hearing or trial. 2. &xceptions to the three2day notice rule= a. &x parte motion b. ;rgent motion c. 'hen court sets hearing on shorter notice for good cause d. 1otion for summary %udgment 5must be served at least 17 days before the hearing8 + prudent %udge would, in the absence of the opposing party in the hearing of a motion, in-uire from the other party or in-uire from the records the proof of the service of notice rather than proceed with the hearing. Ae should not rely on a party@s undertaking to notify the adverse party of a scheduled hearing. $he %udge must demand what the rule re-uires, i e , proof of such notice on the adverse party. &therwise, a contentious motion should be considered a mere scrap of paper which should not have even been received for filing. .ubse-uent service of the motion on the adverse party may be considered substantial compliance with the (ule 10, K 6. >ailure to attach to the motion proof of service thereof to the adverse party is not fatal when the adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard. RULE 16 MOTION TO DISMISS 1. 1otion to ?ismiss must be filed within the time for and before the filing of an answer to complaint. 2. 9rounds for motion to dismiss= E
a.
).
*. 0.
6.
ourt has no %urisdiction over the person of the defendant2 unlike old rule, inclusion in motion to dismiss of other grounds aside from lack of %urisdiction over the person does !&$ constitute a waiver of the said ground or voluntary appearance; b. ourt has no %urisdiction over the sub%ect matter of the claim; c. <enue is improperly laid; d. /laintiff has no legal capacity to sue; e. $here is another action pending between the same parties for the same cause; (e-uisites of litis pendentia= i. #dentity of partiesJinterest ii. #dentity of rights asserted and prayed forJrelief founded on the same facts; iii. #dentity of the 2 cases 5such that %udgment in one would amount to res %udicata in the other8 f. ause of action is barred by a prior %udgment or by statute of limitations; (e-uisites of res judicata= i. >inal %udgment or order ii. (endered by court of competent %urisdiction iii. &n the merits 5even without trial, such as cases decided by Gudgment on the /leadings, .ummary Gudgment, or dismissed for failure to prosecute or for refusal to obey an order of the court8 iv. #dentity of the parties g. /leading asserting claim states no cause of action; h. laim or demand in the plaintiff@s pleading has been paid, waived, abandoned, e,tinguished; i. laim on which action is founded is unenforceable under the statute of frauds; %. ondition precedent for filing has not been complied with 5this includes prior recourse to barangay conciliation, or failure to make attempts to reach a compromise in cases between members of the same family8 $he court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. +ctions that court may take on a 1otion to ?ismiss= a. 9rant it remedy= appeal b. ?eny !&$ appealable; but may avail of certiorari, prohibition and mandamus c. &rder amendment of the pleading #f denied, defendant must file answer within the balance of the 102day period, but not less than 0 days from the time he received notice of the denial; .ub%ect to the right to appeal, dismissal based on the following grounds will be bar to refiling= a Res judicata b.E,tinguishment of claim or demand c./rescription d.;nenforceability under the .tatute of >rauds $he dismissal of the complaint shall be without pre%udice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. + motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. $he admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. $he demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.
RULE 1# DISMISSAL OF ACTIONS 1. ?ismissal by the plaintiff a. !otice of dismissal any time before service of the answer or a motion for summary %udgment; ?ismissal is without pre%udice &*C&+T on 2nd notice of dismissal, which operates as ad%udication on the merits when filed by same plaintiff who has once dismissed an action based on or including said claim. b. #f answer or motion for summary %udgment already served, dismissal by a 1otion for ?ismissal, which shall re-uire approval of the court; shall be without pre%udice unless otherwise specified by the court #f counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff@s motion to dismiss, dismissal is limited to the complaint; dismissal is without pre%udice to defendant@s right to prosecute counterclaim in a separate action or, if he makes a manifestation within 10 days from notice of the motion, to prosecute in same action. 2. ?ismissal due to plaintiff@s fault 2 the following must be without %ustifiable cause a. #f plaintiff fails to appear on the date of presentation of his evidence in chief; 17
b. /laintiff fails to prosecute claim for an unreasonable length of time c. /laintiff fails to comply with the (ules of ourt or any order of the court omplaint may be dismissed upon defendant@s motion or motu proprio ;nless otherwise declared by the court, dismissal has effect of ad%udication upon the merits. R,(& ON -&.&R#NC& O/ COM+,(-OR0 CC' ?ismissal of principal action upon plaintiff@s motion or due to plaintiff@s fault does not necessarily carry with it the dismissal of the compulsory ; defendant is also given option to prosecute the same in same or separate action. ). ?ismissal of counterclaim, cross2claim, or )rd2party complaint must be made by claimant before a responsive pleading or a motion for summary %udgment is served, or if there is none, before the introduction of evidence. RULE 1& PRE%TRIAL 1. 'hat to consider in pre2trial 5with notice to counsel or party without counsel8 a. /ossibility of amicable settlement or arbitration b. .implification of the issues c. +mendments to the pleadings d. .tipulations or admissions of facts and documents e. Limitation of number of witnesses f. /reliminary reference of issues to a commissioner g. /ropriety of %udgment on the pleadings, summary %udgments, or dismissal of action h. &ther matters for the prompt disposition of the action 2. #t is the duty of the plaintiff to move ex parte for the setting of the case for pre2trial. Aowever, if plaintiff answers the defendant@s counterclaim, it will be the latter@s duty to set the pre2trial. ). >ailure of plaintiff to appear shall be cause for dismissal of the action. !on2appearance of defendant is cause to allow plaintiff to present evidence ex parte and the court to render %udgment on basis thereof. *. !on2appearance of party e,cused only if= a. + valid cause is shown therefor &( b. #f representative shall appear in his behalf fully authori"ed 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, 0. 1ust file pre2trial brief so as to ensure that other party receives it at least ) days before pre2trial. >ailure to file brief has same effects as failure to appear at pre2trial. 6. /roceedings recorded, and court shall issue an order reciting in detail matters taken up. RULE 1' INTERVENTION 1. 9rounds for intervention a. Legal interest in the matter in litigation b. #nterest in the success of either or both parties or interest against both c. /arty is so situated as to be adversely affected by the distribution of the court d. ?isposition of property in the custody of the court or of an officer thereof. 2. 1otion may be filed at any time before rendition of %udgment. ). +nswer to complaint2in2intervention must be filed within 10 days from notice of court admitting the complaint. *. 1otion for intervention will be granted if it will not unduly delay or pre%udice ad%udication of rights of original parties and if the intervenor@s rights may be fully protected in separate proceedings. 0. omplaint in intervention is merely collateral to the principal action. Aence, it will be dismissed if main action is dismissed. 6. + complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. .uch a case is not sub%ect to dismissal upon intervenor@s petition showing him to be entitled to affirmative relief. $he petition will be preserved and heard regardless of the disposition of the main action. RULE 20 CALENDAR OF CASES 1. alendar of cases to be kept by clerk of court for cases set for pre2trial, trial, those whose trials ad%ourned or postponed and those with motions set for hearings. 2. /reference given to habeas corpus, election cases, special civil actions and those so re-uired by law. RULE 21 SUBPOENA 1. .ubpoena issued by= a. $he court before whom witness is re-uired to attend; b. $he court of the place where the deposition is to be taken; 11
2.
).
*.
0. 6. D.
c. $he officer or body authori"ed by law to do so in connection with its investigations; d. +ny Gustice of the . or + in any case or investigation pending within the /hils !o prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal institution shall be brought outside said institution for appearance or attendance in any court unless authori"ed by the . . 9rounds for -uashing subpoena duces tecum a. #t is unreasonable or oppressive b. $he articles sought to be produced do not appear to be relevant c. /erson asking for subpoena does not advance cost of production 9round for -uashing subpoena ad testificandum a. $he witness is not bound thereby if witness resides more than 177 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending $his is known as the 3viatory right4 of the witness; NOT&, however, that the right is available only in #<#L cases b. 'itness fees and kilometrage allowed by rules not tendered when subpoena served. .ervice of subpoena made in the same manner as personal or substituted service of summons. /erson present in court before a %udicial officer may be re-uired to testify as if he were in attendance upon a subpoena. >ailure by any person without ade-uate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which subpoena issued.
RULE 22 COMPUTATION OF TIME 1. omputing for any period of time= day of the act or event from which designated period of time begins to run is to be e,cluded and the date of performance included. 2. #f last day of period falls on .aturday, .unday or legal holiday in place where court sits, the time shall not run until the ne,t working day. ). #f there is effective interruption of period, it shall start to run on the day after notice of the cessation of the cause of the interruption. $he day of the act that caused the interruption is e,cluded in the computation of the period. RULE 23 DEPOSITIONS PENDING ACTION ?E/&.#$#&!. D& $&N& &--& 1 taken for purposes of pending action 1. ?epositions pending action a. $aken by leave of court after court obtains %urisdiction over any defendant or property sub%ect of the action b. $aken without leave after an answer has been served c. ;pon the instance of any party d. 1ay be deposition upon oral e,amination or written interrogatories 2. .cope of e,amination deponent may be e,amined regarding any matter not privileged relevant to the sub%ect of the action ). E,amination and cross2e,amination proceeds as in trials *. ?epositions and +ffidavits distinguished DEPOSITIONS AFFIDAVITS 'ritten testimony of witness in course of 1ere sworn written statements %udicial proceedings, in advance of trial and hearing &pportunity for cross2e,amination !o cross2e,amination an be competent testimonial evidence Little probative value 5hearsay8 0. ;se of depositions +ny part or all of a deposition which is admissible in evidence may be used against any party who was present or represented during the taking of the deposition or who had notice thereof as follows= DEPOSITION OF MAY BE USED BY PURPOSE + witness +ny party $o contradict or impeach the deponent@s testimony as a witness +ny party, or anyone who +n adverse party >or any purpose at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation &f any witness, whether a +ny party >or any purpose, #> court finds that= 12
party or not
6.
D.
C.
E.
a. 'itness is dead; b. 'itness resides at a distance more than 177 km from place of trial, ;!LE.. absence procured by party offering the deposition c. 'itness is unable to testify because of age, sickness, infirmity, or imprisonment; d. /arty offering the deposition has been unable to procure the attendance of the witness by subpoena; &( e. &ther e,ceptional circumstances make it desirable to allow deposition to be used. ?eponent is made the witness of the party offering the deposition. #f only part of the deposition is introduced, adverse party may re-uire that all of it which is relevant to the part introduced be introduced. /ersons before whom depositions may be taken a. 'ithin the /hilippines i. Gudge ii. !otary public iii. +ny person authori"ed to administer oaths if the parties so stipulate in writing b. #n foreign countries i. &n notice, before a secretary of any embassy or legation, consul2general, consul, vice2 consul, consular agent of the /hils ii. Before such person or officer as may be appointed by commission or under letters2 rogatories iii. +ny person authori"ed to administer oaths if the parties so stipulate. Commission addressed to any authority in a foreign country authori"ed therein to take down depositions; the taking of such depositions is sub%ect to the rules laid down by the court issuing the commission (etters Rogatory addressed to %udicial authority in the foreign country; the taking of the depositions is sub%ect to the rules laid down by such foreign %udicial authority. /ersons dis-ualified to take depositions a. (elative within 6th degree of consanguinity or affinity of any party b. Employee of any party c. ounsel of any party d. (elative within the same degree of party@s counsel e. Employee of party@s counsel f. +nyone financially interested in the action ?epositions upon written interrogatories /arty desiring to take such deposition shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name and descriptive title of the officer before whom the deposition is to be taken; /arty so served may serve cross2interrogatories upon the proponent within 17 days thereafter (e2direct interrogatories served within 0 days (e2cross interrogatories served within ) days Effects of errors and irregularities in the depositions a. +s to notice waived unless written ob%ection is promptly served upon the party giving the notice b. +s to dis-ualification of officer waived unless made before the taking of the deposition begins or as soon thereafter as the dis-ualification becomes known or could be discovered with reasonable diligence c. +s to competency or relevancy of evidence 2 !&$ waived by failure to make them before or during the taking of the deposition, unless ground is one which might have been obviated or removed if presented at that time d. +s to oral e,am and other particulars 2 Errors occurring at the oral e,am in the manner of taking the deposition, in the form of -uestions and answers, in oath or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable ob%ection is made at the taking of the deposition.
1)
e. +s to form of written interrogatories 2 waived unless served in writing upon party propounding them within the time allowed for serving succeeding cross or other interrogatories and within ) days after the service of the last interrogatories authori"ed. f. +s to manner of preparation 2 errors as to manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. + deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. #! fact, the rules on criminal practice particularly on the defense of alibi states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witness within the time provided for filing a pre2trial motion. RULE 24 DEPOSITIONS PENDING ACTION ?E/&.#$#&!. 2N +&R+&T,#M R&2 M&MOR2#M 1 taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal. 1. ?epositions before action + person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cogni"able in any court of the /hils may file a verified petition in the court of the place of the residence of any e,pected adverse party, which petition shall be entitled in the name of the petitioner and shall show= a. $hat petitioner e,pects to be a party to an action in a court of the /hils but is presently unable to bring it or cause it to be brought; b. $he sub%ect matter of the e,pected action and his interest therein; c. $he facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; d. $he names or description of the persons he e,pects will be the adverse parties and their addresses so far as known; e. $he name and addresses of the persons to be e,amined and the substance of the testimony which he e,pects to elicit from each. 2. ;se of deposition #f deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving the same sub%ect matter subse-uent brought in accordance with the provisions of (ule 2). RULE 25 INTERROGATORIES TO PARTIES 1. #nterrogatories and the answers thereto should be filed in court and served on adverse parties, so that the answers may constitute %udicial admissions. 2. Effect of failure to serve written interrogatories a party not served with such may !&$ be compelled by the adverse party to give testimony in open court or deposition pending appeal. RULE 26 ADMISSION BY ADVERSE PARTY 1. (e-uest for admission + written re-uest for the admission of the other party of the genuineness of any material or document or re-uest for the truth of any material and relevant matter of fact set forth in the re-uest may be filed and served upon the other party at any time after issues have been %oined. 2. #mplied admission Each of the matter re-uested to be admitted shall be deemed admitted within a period designated in the re-uest, which shall not be less than 10 days after service thereof or within such further time as the court may allow on motion, ;!LE.., party re-uested serves upon the party re-uesting a sworn statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. ). Effect of admission +dmission is only for the purpose of the pending action and shall !&$ constitute an admission for any other person nor may it be used against him in any other proceeding. *. + party who fails to file and serve a re-uest for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon, RULE 2# PRODUCTION OR INSPECTION OF DOCUMENTS OR T$INGS 1. +ny party may move for the court in which the action is pending to order any party to= a. /roduce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, ob%ects or tangible things, not privileged, which= 1*
i. onstitute or contain evidence material to any matter involved in the action +!? ii. +re in his possession, custody or control. b. /ermit 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 ob%ect or operation thereon. 2. $he order= a. .hall specify the time, place and manner of making the inspection and taking copies +!? b. 1ay prescribe such terms and conditions which are %ust. RULE 2& P$YSICAL AND MENTAL E*AMINATION OF PERSONS 1. #f the mental or physical condition of a party is in controversy, the court may order him to submit to a physical or mental e,amination by a physician. 2. $he party e,amined waives any privilege he may have in that action regarding the testimony of the person who has e,amined or may e,amine him with respect to that same mental or physical e,amination by= a. (e-uesting and obtaining a report of the e,amination so ordered &( b. $aking the deposition of the e,aminer. RULE 2' REFUSAL TO COMPLY WIT$ T$E MODES OF DISCOVERY 1. #f a partyJdeponent refused to answer= a. $he e,amination may be completed on other matters b. $he e,amination may be ad%ourned c. $he proponent may apply to the court for order to compel answer $he court may then order= i. $he refusing party or his counsel to pay the e,penses incurred in obtaining the order, including the attorney@s fees 5if it finds the refusal to answer without substantial %ustification8 ii. $he proponent or his counsel to pay the e,penses incurred in opposing the application, including attorney@s fees 5if it finds the application to be without substantial %ustification8 2. #f a partyJwitness refuses to be sworn or to answer after being directed to do so by the court, the refusal may be considered a contempt of that court. ). #f a partyJofficer or managing agent of a party refuses to obey an order re-uiring him= a. $o answer designated -uestions b. $o produce a thing for inspection or to permit entry upon property c. $o submit to a physical or mental e,amination the court may order= i. $hat the matters regarding which the -uestions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established. ii. $he disallowance of the disobedient party@s claims iii. $he prohibition of the disobedient party to present evidence iv. $he striking out of the pleadings or parts thereof v. $he dismissal of the action or parts thereof vi. (endering %udgment by default against the disobedient party &( vii. $he arrest of any party or agent &*C&+T in disobeying an order to submit to a physical or mental e,amination. *. #f a party refuses to attend or serve answers, the court may= a. .trike out all or any part of any pleading of that party. b. ?ismiss the action or any part thereof. c. Enter a %udgment by default against that party, &(J+!? d. &rder that party to pay reasonable e,penses incurred, including attorney@s fees. 0. $he (epublic of the /hilippines cannot be re-uired to pay e,penses and attorney@s fees under this (ule. RULE 30 TRIAL 1. &rder of trial $rial shall be limited to the issues stated in the pre2trial order and shall proceed as follows= a. $he plaintiff shall adduce evidence in support of his complaint; b. $he defendant shall adduce evidence in support of his defense, counterclaim, cross2claim, and third2party complaint; c. $he )rd2party defendant, if any, shall adduce evidence of his defense, counterclaim, cross2 claim, and *th party complaint; d. $he *th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;
10
e. $he parties against whom any counterclaim or cross2claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; f. $he parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of %ustice, permits them to adduce evidence upon their original case; and g. ;pon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. 2. Gudge should personally receive evidence &*C&+T that in default or ex parte hearings and in any case where the parties so agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. $he clerk shall have no power to rule on ob%ections to any -uestion or to the admission of e,hibits, which ob%ections shall be resolved by the court upon submission of his report and the transcripts within 17 days from the termination of the hearing. RULE 31 CONSOLIDATION OR SEVERANCE 1. &!.&L#?+$#&! the court may order a %oint hearing or trial of any or all matters in issue when actions involving a common -uestion of law or fact are pending before the court. 2. B;$ the court may order a separate trial of any claim, cross2claim, counterclaim, or third2party complaint, in furtherance of convenience or in the interest of %ustice. RULE 32 TRIAL BY COMMISSIONER $rial by commissioner= 1. (eference by consent of both parties 2. (eference by motion of one of the parties or motu proprio= a. $rial re-uires e,amination of a long account of either side b. $aking of an account is necessary for the information of the court before %udgment or for carrying a %udgment order into effect c. Luestion of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case. RULE 33 DEMURRER TO EVIDENCE ?emurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. 1. #f motion denied defendant has the right to present evidence 2. #f motion granted, but reversed on appeal defendant deemed to have waived the right to present evidence. RULE 34 )UDGMENT ON T$E PLEADINGS 1. Gudgment on the /leadings is proper= a. #f answer fails to tender an issue; or b. #f answer otherwise admits the material allegations of the adverse party@s pleading $hen court may, on motion of that party, direct %udgment on the pleadings 2. Aowever, the material facts alleged in the complaint shall always be proved in actions for= a. ?eclaration of nullity of marriage b. +nnulment of marriage c. Legal separation RULE 35 SUMMARY )UDGMENTS .ummary %udgment= 1. /roper if no genuine issue as to any material fact 5 except as to damages recoverable8 and if moving party is entitled to a %udgment as a matter of law 2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue. ). 1otion shall be served at least 17 days before the time specified for the hearing. *. 1ay be asked for by a party seeking to recover upon a claim, counterclaim, cross2claim or to obtain a declaratory relief. 0. +lthough (ule does not specifically provide, also unavailable in actions for annulment of and declaration of nullity of marriage, and for legal separation since .ec. 1 refers to actions 3to recover upon a claim4, or to recover a debt or a li-uidated demand for money, or 3to obtain declaratory relief.4 6. Gudgment on the pleadings and summary %udgment distinguished=
16
)+,-./01 20 13/ 45/6,70-8 /roper when there is no genuine issue between the parties Based e,clusively on the pleadings without introduction of evidence
S+..69: ;+,-./01 /roper even if there is an issue as to the damages recoverable Based not only on pleadings but also on affidavits, depositions and admissions of the parties +vailable in any action, except the ) /roper only in actions to recover a debt, or e,ceptions for a li-uidated sum of money, or for declaratory relief 1otions for summary %udgment may be filed by the claimant or by the defending party. $he defending party may file such motion, pursuant to (ule )0, K23at any time4, as distinguished from K1 where the claimant may file the motion at any time after the answer is filed. RULE 36 )UDGMENTS( FINAL ORDERS AND ENTRY T$EREOF 1. $he date of the finality of the %udgment or final order shall be deemed to be the date of its entry. $he %udgment or final order shall be entered by the clerk in the book of entries of %udgments if no appeal or motion for new trial or consideration is filed within 10 days 2. .everal Gudgments #n action against several defendants, the court may render %udgment against one or more of them, leaving the action to proceed against the others. ). .eparate %udgments Gudgment rendered to dispose of one of the several claims for relief presented in an action, made at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the sub%ect matter of the claim, which terminates such claim. +ction shall proceed as to other claims RULE 3# NEW TRIAL OR RECONSIDERATION 1. 1otion for new trial or reconsideration filed within 10 days from notice of %udgment and resolved by the court within )7 days from submission for resolution. 2. 9rounds= 1otion for !ew $rial a. >raud, accident, mistake, or e,cusable negligence; b. !ewly discovered evidence (e-uisites= i. ?iscovered after trial ii. ould not have been discovered and produced at trial despite the e,ercise of reasonable diligence iii. #f presented, could probably alter the result of the action ). 9rounds= 1otion for (econsideration a. ?amages awarded are e,cessive b. Evidence is insufficient to %ustify the decision or final order c. ?ecision is contrary to law *. 1otion for new trial shall be in writing, and supported by affidavits of merit if the ground is >+1E; for newly2discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is e,pected to be given, or by duly authenticated documents to be introduced. 1otion for reconsideration shall specifically point out the findings or conclusions of the %udgment which are unsupported by evidence or contrary to law, with e,press reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings. 0. +ro forma motion for new trial or reconsideration shall not toll the period for appeal. 6. !o second motion for reconsideration allowed. .econd motion for new trial must be based on a ground not e,isting or available when the first motion was made, which may be filed during the remainder of the 102day period. RULE 3& RELIEF FROM )UDGMENTS( ORDERS( OR OT$ER PROCEEDINGS 1. /etition for relief from %udgment filed within 67 days after learning of %udgment and not more than 6 months after such %udgment 1ust be supported by affidavit showing the >+1E and the facts constituting the petitioner@s good or substantial cause of action or defense 2. /arty who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. $he two remedies are e,clusive of one another. ). 9rounds= a. Gudgment or final order entered against a party by >+1E; or 1D
b. Gudgment or final order is rendered and party has been prevented by >+1E from taking an appeal >or fraud to be e,trinsic, the losing party must never have had a chance to controvert the adverse party@s evidence. ;niform procedure for relief from %udgments of 1$ and ($ *. +fter petition is filed, court shall order adverse parties to answer within 10 days from receipt. +fter answer is filed or e,piration of period therefor, court shall hear the petition. 0. #f granted, %udgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give due course to appeal. RULE 3' E*ECUTION( SATISFACTION AND EFFECT OF )UDGMENTS 1. E,ecution as a matter of right &n motion with notice, upon a %udgment or order that disposes of the action or proceeding upon the e,piration of the period to appeal therefrom if no appeal has been duly perfected. >or so long as there is a certificate of entry of %udgment, e,ecution may already be issued by the court of origin or directed to do so by the +. 2. ?iscretionary e,ecution pending period to appeal or during appeal; may issue only upon good reasons to be stated in a special order after hearing. a. By trial court even after the perfection of the appeal for so long as the motion for e,ecution was filed while the $ has %urisdiction over the case and is in possession of the records, upon motion of the prevailing party with notice to the adverse party b. +ppellate court after the $ has lost %urisdiction E,ample= / receives %udgment= Gune ) ? receives %udgment= Gune 1 ? files notice of appeal= Gune 0 'hen does trial court lose %urisdictionM Gune 1C B;$, if / also files a notice of appeal on Gune 17, trial court loses %urisdiction on that date. E,ecution with respect to appealed cases2 there is no need to await remand of the records. E,ecution with respect to conse-uential and e,emplary damages should be postponed until such time as the merits of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite pending resolution. ). a. 1otion for e,ecution of final and e,ecutory %udgment should be served on adverse party and set for hearing; b. #n case of appeal, motion is filed with court of origin supported by certified true copies of final %udgment of appellate court. c. +ppellate court may on motion order court of origin to issue writ of e,ecution 5. ircular !o. 2*2E*, *J1CJE*8 *. Gudgments !&$ stayed by appeal 5immediately e,ecutory, unless court provides otherwise8 a. +ctions for in%unction b. (eceivership c. +ccounting d. .upport e. Gudgments declared immediately e,ecutory 0. + final and e,ecutory %udgment may be e,ecuted on motion within 0 years from entry. 1ay be revived and enforced by action after lapse of 0 years but before 17 years from entry. (evived %udgment may be enforced by motion within 0 years from entry and thereafter by action before barred by statute of limitations file motion within 17 years from the finality of the revived %udgment. 6. E,ecution in case of party@s death= a. ?eath of %udgment obligee 2 application of his e,ecutor or administrator or successor2in2 interest b. ?eath of %udgment obligor 2 i. +gainst his e,ecutor, etc if the %udgment be for recovery of real or personal property or the enforcement of a lien thereon. ii. #f death after e,ecution is actually levied upon his property, it may be sold for satisfaction of the obligation. #f the %udgment obligor dies after the entry but before levy, e,ecution will issue if it be for the recovery of real or personal property. Aowever, if %udgment is for a sum of money, and the %udgment obligor dies before levy, such %udgment cannot be enforced by writ of e,ecution but must be filed as a claim against his estate. D. 'rit of e,ecution= a. .hall issue in the name of the (epublic of the /hils from court which granted the motion 1C
b. .tate the name of the court, case number and title, dispositive portion of the %udgment order c. (e-uire the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms C. 1anner of e,ecuting writ= a. #f %udgment against property of the %udgment obligor out of real or personal property with interest b. #f against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the %udgment obligor out of that property, with interest c. #f for sale of real or personal property to sell property, describing it and apply the proceeds in conformity with %udgment. d. #f for delivery of possession of property deliver possession of the same to the party entitled to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the %udgment out of the personal property of the person against whom it was rendered, and out of real property if sufficient personal property cannot be found. e. #n all cases, writ of e,ecution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of date of issuance of writ, aside from principal obligation. Gudgment obligor is given option to choose which property may be levied on sufficient to satisfy the %udgment. E. /roperty e,empt from e,ecution a. >amily home as provided by law, homestead in which he resides, and land necessarily used in connection therewith; b. $ools and implements used in trade, employment, or livelihood; c. ) horses, cows, or carabaos or other beasts of burden used in his ordinary occupation; d. !ecessary clothing and articles for ordinary personal use, e,cluding %ewelry; e. Aousehold furniture and utensils necessary for housekeeping not e,ceeding /),777; f. /rofessional libraries and e-uipment of %udges, lawyers, physicians, etc. not e,ceeding /)77,777; g. &ne fishing boat and accessories not more than /177,777 owned by a fisherman and by which he earns his living; h. .alaries, wages, or earnings for personal services within the * months preceding the levy which are necessary for the support of the family; i. Lettered gravestones; %. 1oney, benefits, annuities accruing or in any manner growing out of any life insurance; k. (ight to receive legal support or any pension or gratuity from the government; l. /roperties especially e,empted by law. E,emption does not apply if e,ecution is upon a %udgment for its purchase price or for foreclosure of mortgage. (ight of E,emption is a personal right granted to the %udgment creditor. $he sheriff may thus not claim it. 17. $hird party claims= a. /urpose of bond filed by %udgment obligee or plaintiff is to indemnify third2party claimant, not the sheriff or officer; b. +mount of bond not less than value of property levied on; c. .heriff not liable for damages if bond is filed; d. Gudgment obligee or plaintiff may claim damages against third2party claimant in the same or a separate action. e. )rd /arty claimant may vindicate his claim to property levied in a separate action because intervention is no longer allowed since %udgment already e,ecutory; in preliminary attachment and replevin, )rd party claimant may vindicate his claim to the property by intervention since the action is still pending. 11. 'ho may redeem real property sold= a. Gudgment obligor or his successor in interest in the whole or any part of the property; b. reditor having lien by virtue of an attachment, %udgment, or mortgage on the property sold subse-uent to the lien under which the property was sold. 5(edeeming creditor is termed a redemptioner8. 12. Gudgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase, with 1N per month interest plus any assessments or ta,es which he may have paid thereon after purchase with interest on said amount at 1N per month. (edemptioners have one year to redeem from the date of registration of the certificate of sale. $hey may also redeem beyond one2year period within 67 days after the last redemption, with 2 N interest on the sum to be paid on the last redemption. $he %udgment obligor@s right to 1E
redeem within 67 days from last redemption is limited to the one2year period, beyond which he can no longer redeem. /urchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as these belong to the %udgment obligor until the e,piration of the period of redemption. 1). Effect of %udgment or final orders a. #n case of %udgment against a specified thing, probate of will, or administration of estate or legal condition or status, it is conclusive on the title or condition, status, relationship, will or administration. b. #n other casesJmatters directly ad%udged, or matters relating thereto that could have been raised subse-uent to commencement of action, %udgment is conclusive between parties and their successors in interest. c. #n any other litigation, that only is deemed to have been ad%udged in a former %udgment or which was actually and necessarily included therein. 1*. Effect of foreign %udgment a. Gudgment upon a specific thing, conclusive upon title to the thing; b. #f against a person, %udgment is presumptive evidence of a right as between the parties and their successors in interest; 10. 'hen foreign %udgment may be repelled a. Evidence of want of %urisdiction b. 'ant of notice to party c. ollusion d. >raud e. lear mistake of law. 16. (e-uisites for res judicata a. >inal former %udgment b. Gudgment is on the merits c. (endered by a court of competent %urisdiction d. Between first and second actions, identity of sub%ect matter, parties and cause of action. 1D. 'hen -uashal of writ of e,ecution proper a. #mproperly issued b. ?efective in substance c. #ssued against the wrong party d. Gudgment was already satisfied e. #ssued without authority f. hange of the situation of the parties renders e,ecution ine-uitable g. ontroversy was never validly submitted to the court h. 'rit varies the terms of the %udgment i. 'rit sought to be enforced against property e,empt from e,ecution %. +mbiguity in the terms of the %udgment 1C. ./E #+L G;?91E!$ 2 re-uires the performance of any other act than the payment of money or the sale or delivery of real or personal property. 1E. (emedies against e,ecutory %udgments or orders= a. /etition for relief b. ?irect attack c. ollateral attack 2 %udgment is null on its face or court had no %urisdiction 27. 'hen court may order e,ecution even before an e,ecutory %udgment and pending an appeal a. Lapse of time would make the ultimate %udgment ineffective; b. +ppeal is clearly dilatory; c. Gudgment is for support and the beneficiary is in need thereof; d. +rticles sub%ect of the case are perishable; e. ?efendants are e,hausting their income and have no other property aside from the proceeds from the subdivision of lots sub%ect of the action; f. 1ovants were in e,treme need of the premises sub%ect of the suit and the bond to answer for damages in case of reversal on appeal 5supersedeas bond8 was posted by them; g. Gudgment debtor is in imminent danger of insolvency; h. /revailing party is of advanced age and in a precarious state of health and the right in the %udgment is non2transmissible being for support; i. /revailing party posts sufficient bond to answer for damages in case of reversal of %udgment But in most cases, the mere filing of a bond is not sufficient %ustification for discretionary e,ecution. 21. &rder granting writ of e,ecution &!LF appealable when= a. &rder varies the terms of the %udgment b. 'hen vague and court renders what is believed to be wrong interpretation. 27
22. 3arnishment act of appropriation by the sheriff if the property involved is money, stocks, or other incorporeal property in the hands of third persons; merely sets apart such funds but does not constitute the creditor the owner of the garnished property. 2). /ersons dis-ualified from participating in the e,ecution sale= a. &fficer conducting the e,ecution sale or his deputy; b. 9uardian with respect to the property under his guardianship; c. +gents, the property entrusted to them, unless with principal@s consent; d. E,ecutors and administrators, the property of the estate under administration; e. /ublic officers and employees, the property of the .tate or any subdivision thereof, or any 9& , the administration of which has been entrusted to them; f. Gustices, %udges, prosecuting attorneys, clerks of courts, and other officers and employees connected with the administration of %ustice, the property and rights in litigation or levied upon an e,ecution before the court within whose %urisdiction or territory they e,ercise their respective functions; g. Lawyers, the property and rights which may be the sub%ect of litigation in which they take part by virtue of their profession; h. &thers specifically dis-ualified by law. 5e g seller of goods who e,ercise right of resale of goods8. RULE 40 APPEAL FROM MTC TO RTC 1. +ppeal from %udgment or final order of 1$ taken to ($ e,ercising %urisdiction over the area to which 1$ pertains. >ile notice of appeal with the 1$ which rendered decision appealed from within 10 days after notice of such %udgment. 2. (ecord on appeal is filed within )7 days and re-uired only for special proceedings ). +ppellate docket fees paid to clerk of court of 1$ 2 payment not a condition precedent for perfection of appeal but must nonetheless be paid within the period for taking appeal; *. /rocedure for appeal from cases dismissed without trial for lack of %urisdiction= a. #f affirmed because the 1$ has no %urisdiction, ($ will try case on the merits as if it has original %urisdiction; b. #f reversed, the case shall be remanded to the 1$ ; c. #f the first level court tried the case on the merits without %urisdiction, the ($ should not dismiss the case but shall decide it in the e,ercise of original %urisdiction. RULE 41 APPEAL FROM T$E RTC 1. +ppeal may be taken from a %udgment or final order that completely disposes of the case or of a particular matter therein. 2. !o appeal may be taken from= a. &rder denying a motion for new trial or recon; b. &rder denying a petition for relief or any similar motion seeking relief from %udgment; c. #nterlocutory order; d. &rder disallowing or dismissing an appeal; e. &rder denying a motion to set aside a %udgment by consent, confession, compromise on the ground of fraud, mistake, or duress, or any other ground vitiating consent; f. &rder of e,ecution; !ot appealable because e,ecution is only the result of the %udgment. #f order of e,ecution is not in accord with the dispositive portion, remedy is certiorari under (ule 60. g. Gudgment or final order for or against one or more of several parties or in separate claims, while the main case is pending, unless the court allows an appeal therefrom; h. &rder dismissing an action without pre%udice; #n all these cases, aggrieved party may file an appropriate civil action under (ule 60. ). &rdinary appeal from ($ 5in the e,ercise of original %urisdiction8 to + is by filing notice of appeal with the ($ within 10 days from notice of its %udgment. (ecord on appeal re-uired only for special proceedings and where multiple appeals allowed filed within )7 days. *. 1otion for e,tension of time to file a motion for new trial or reconsideration is prohibited. 0. ontents of !otice on appeal= a. !ames of the parties to the appeal; b. .pecify %udgment or final order or part thereof appealed from; c. ourt to which the appeal is being taken; d. 1aterial dates showing timeliness of appeal; 6. ontents of (ecord on appeal= a. >ull names of all parties to the proceedings shall be stated in the caption; b. #nclude %udgment or final order from which appeal is taken;
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c. #n chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders as are related to the appealed %udgment; d. ?ata showing that appeal perfected in time 2 material data rule; e. #f an issue of fact is to be raised, include by reference all the evidence, oral or documentary, taken upon the issues involved. D. +ppeal from decision of ($ in appellate %urisdiction is by petition for review filed with +. C. 'here only -uestions of law are raised, by petition for review on certiorari with . . E. !otice of +ppeal and (ecord of +ppeal distinguished= N217</ 2= A44/65 R/<29, 2= A44/65 /arty@s appeal by notice of appeal deemed ?eemed perfected as to appellant with perfected as to him upon the filing of the respect to the sub%ect matter upon the notice of appeal in due time approval of the record on appeal filed in due time ourt loses %urisdiction over case upon ourt loses %urisdiction only over sub%ect perfection of the appeals filed in due time matter upon approval of records on appeal and e,piration of time to appeal of other filed in due time and e,piration of the time parties to appeal of other parties. 17. >ailure to pay appellate docket fees within the reglementary period is ground for dismissal of appeal. 11. 9eneral (ule= +n ordinary appeal stays the e,ecution of a %udgment &xceptions' a. ?ecisions of -uasi2%udicial body appealed to the + b. E,ecutions pending appeal c. ases covered by .ummary /rocedure RULE 42 PETITION FOR REVIEW FROM T$E RTC TO T$E CA 1. >orm and contents of petition for review 5from ($ to +8 #n D legible copies= a. >ull names of parties to case, without impleading the lower courts or %udges thereof; b. #ndicate specific material dates showing it was filed on time; c. oncise statement of matters involved, issues raised, specification of errors of fact or law, or both allegedly committed by the ($ , and the reasons or arguments relied upon for the allowance of the appeal; d. +ccompanied by clearly legible duplicate originals or true copies of the %udgments or final order of both 1$ and ($ ; e. ertification under oath of non2forum shopping. 2. ontents of comment #n D legible copies, accompanied by certified true copies of material portions of record and other supporting papers= a. .tate whether or not appellee accepts the statement of matters involved in the petition; b. /oint out such insufficiencies or inaccuracies as he believes e,ists in petitioner@s statement of matters; c. .tate reasons why petition should not be given due course. ). + may= a. (e-uire respondent to file a comment; or b. ?ismiss the petition if it finds= i. /atently without merit ii. /rosecuted manifestly for delay iii. Luestions raised are to insubstantial to re-uire consideration RULE 43 APPEALS FROM T$E CTA AND !UASI%)UDICIAL AGENCIES TO T$E CA ourt of $a, +ppeals and -uasi2%udicial agencies in e,ercise of -uasi2%udicial functions 5unless otherwise provided by law and the Labor ode O!L( decisionsP8 shall be by petition for review to the +, to be taken within 10 days from notice of award or %udgment or from notice of the denial of the motion for reconsideration. &nly 1 1otion for reconsideration allowed 2. Luasi2%udicial agencies covered= a. ivil .ervice ommission; b. entral Board of +ssessment +ppeals; c. .ecurities and E,change ommission; d. &ffice of the /resident; e. Land (egistration +uthority; f. .ocial .ecurity ommission;
1. +ppeals from %udgments and final orders of the
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g. h. i. %. k. l. m. n. o. p. -. r.
ivil +eronautics Board; Bureau of /atents, $rademarks and $echnology $ransfer; !ational Electrification +dministration; Energy (egulatory Board; !ational $elecommunications ommission; ?epartment of +grarian (eform under (+ !o. 660D; 9.#.; Employees ompensation ommission; +gricultural #nventions Board; #nsurance ommission; onstruction #ndustry +rbitration ommission; <oluntary arbitrators -t Martin4s /uneral 5ome vs N(RC 2 ?E #.#&!. &> $AE !L( &(#9#!+L + $#&! >&( E($#&(+(# ;!?E( (;LE 60 >#LE? '#$A $AE +, !&$ . /abian vs Desierto +ppeals from decisions of the &ffice of the &mbudsman in administrative disciplinary cases should be taken to the + under (ule *). +ccording to +.1. no. EE222722. 5promulgated >ebruary E, 1EEE8, any appeal by way of petition for review from a decision, final resolution or order of the &mbudsman, or special civil action relative to such decision, filed with the . after 1arch 10, 1EEE shall no longer be referred to the +, but shall be dismissed RULE 44 PROCEDURE IN T$E COURT OF APPEALS IN ORDINARY APPEALED CASES 1. +ny -uestion of law or fact that 5a8 has been raised in the lower court and 5b8 is within the issues framed by the parties may be raised on appeal. 9eneral (ule= #ssues not raisedJventilated in the lower court cannot be raised for the first time on appeal. E,ceptions= a. the issue is closely related to or intimately interwoven with the error properly assigned b. -uestions on %urisdiction c. -uestions concerning mere incidents of the action, e g , cancellation of notices of lis pendens or the grant of dissolution of provisional remedies. 2. 9round for dismissal of the appeal= unauthori"ed alteration, omission, or addition in the approved record on appeal. ). +ppellant@s Brief a. /eriod for filing= within *0 days from receipt of the notice of the clerk that all the evidence are attached to the record. Tan v C# $he filing of motion for new trial does not suspend the period for filing appellant@s brief. b. D copies c. 'ith proof of service thereof to appellee d. ontents= 51;.$ BE #! $AE >&LL&'#!9 &(?E(8 i. + sub%ect inde, ii. +ssignment of Errors iii. .tatement of the ase iv. .tatement ofr >acts v. .tatement of the #ssues of >act or Law vi. +rgument vii. (eliefJ/rayer viii. #f the case is not brought up by record on appeal, a copy of the %udgment or final order appealed from should be attached as an appendi,. *. +ppellee@s Brief a. /eriod for filing= within *0 days from receipt of the apellant@s brief b. D copies c. 'ith proof of service upon the appellant d. ontents= 51;.$ BE #! $AE >&LL&'#!9 &(?E(8 i. + sub%ect inde, ii. .tatement of >acts if appellee accepts the statement of facts in the appellant@s brief ounter2.tatement of >acts if appellee wants to point out such inefficiences or inaccuracies as he believes e,ist in the appelant@s statement of facts iii. +rgument 0. +ppellant@s (eply Brief optional, in order for appellant to answer points in the appellee@s brief not covered in his main brief 2)
/eriod for filing= within 27 days from receipt of the appellee@s brief 6. 1emoranda a. 1emoranda are filed, in lieu of briefs, in cases of= i. certiorari ii. prohibition iii. mandamus iv. -uo warranto and v. habeas corpus b. /eriod for >iling= within )7 days from receipt of the notice issued by the clerk that all the evidence is already attached to the record. c. >ailure of appellant to file his memorandum within the period may be a ground for dismissal of the appeal. RULE 45 APPEAL BY CERTIORARI TO T$E SUPREME COURT 1. Luestion of Law e,ists when doubt or difference arises as to what the law is, based on a certain state of facts Luestion of >act e,ists when doubt or difference arises as to the truth or the falsehood of alleged facts 2. >indings of fact of the + may be reviewed by the . on appeal by certiorari when= a. $he conclusion is a finding grounded entirely on speculations, surmises, or con%ectures; b. $he inference made is manifestly mistaken, absurd, or impossible; c. $here is grave abuse of discretion; d. $he %udgment is based on misapprehension of facts; e. >indings of fact of trial court and + are conflicting; f. $he +, in making its findings, went beyond the issues of the case and the same is contrary to the admissions made; g. + manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would %ustify a different conclusion. ). ertiorari as mode of appeal= >rom %udgment or final order of the +, .andiganbayan, ($ on pure -uestions of law, or other courts whenever authori"ed by law, by filing a petition for review on certiorari with the . within 10 days from notice of %udgment. *. (ule *0 and (ule 60 distinguished= R+5/ 45 R+5/ 65 !o need for 1otion for (econ 1otion for (econ generally re-uired (elates to final %udgments +pplies to interlocutory orders rendered in e,cessJlack of %urisdiction +n appeal !ot an appeal in the strict sense 10 days from notice of %udgment 67 days from notice of %udgment 6ho vs Camacho= +n ($ %udge has no right to disapprove a notice of appeal on the ground that the issues raised involve a pure -uestion of law, and that the mode of appeal is erroneous. $hat is the prerogative of the +, not the ($ %udge. + notice of appeal need not be approved by the %udge, unlike a record on appeal. RULE 46 ORIGINAL CASES IN T$E COURT OF APPEALS 1. +pplies to original actions for certiorari, prohibition, mandamus, and -uo warranto. 5E,cept as otherwise provided, actions for annulment of %udgment shall be governed by (ule *D, for certiorari, prohibition and mandamus by (ule 60, and for -uo warranto by (ule 668 2. (e-uirements= a. ontents= i. full names and actual addresses of all petitioners and respondents ii. concise statement of the matters involved iii. factual background of the case iv. grounds relied upon v. relief prayed for #n actions filed under (ule 60, the material dates must be indicated showing when the final order was received, etc. b. >iled in D copies c. +ccompanied by a clearly legible duplicate original or certified true copy of the %udgment, order, resolution or ruling, and other documents relevant thereto. d. ertification of !on2forum shopping e. /ayment of docket and other lawful fees and deposit /077 for costs 2*
). >ailure to comply with re-uirements shall be sufficient ground for dismissal of the petition. *. /rocedural &utline in &riginal ases in the + a. >iling of /etition; b. &utright ?ismissal; c. &rder to ac-uire %urisdiction over the respondent 5by service on him of the order or resolution indicating its initial action on the petition. Gurisdiction is also ac-uired by voluntary submission thereto.8; d. omment; e. $he court may re-uire the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper; f. ?etermination of ?ue ourse; g. ?etermination of factual issues $he court may conduct hearings thereon or delegate the reception of evidence to any of its members or to an appropriate court, agency or office; h. .ubmission of memoranda. RULE 4# ANNULMENT OF )UDGMENTS OR FINAL ORDERS AND RESOLUTIONS 1. 9rounds for annulment of %udgment of ($ in civil cases= a. E,trinsic fraud not available as a ground if availed of earlier in a motion for new trial or petition for relief b. Lack of %urisdiction. 2. /etition for annulment available only if ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies no longer available through no fault of the /etitioner. ). /eriods= a. >or e,trinsic fraud four years from discovery; b. Lack of %urisdiction must be filed before action barred by laches. *. Effects of %udgment of annulment gives the + authority to order the trial court on motion to try the case if the ground for annulment is e,trinsic fraud, but not if it is lack of %urisdiction. /rescriptive period for refiling the original action is suspended unless the e,trinsic fraud is attributable to the plaintiff in the original action. RULE 4& PRELIMINARY CONFERENCE 1. >ailure of the appellant to appear at the preliminary conference is a ground to dismis the appeal. 5.ee K1OhP, (ule 07 and K 0OeP, (ule 068 2. (ule *C is applicable to the . in original and appealed cases. 5.ee KK 2 and *, (ule 068 RULE 4' ORAL ARGUMENT 1&$#&!. .A+LL !&$ BE .E$ >&( AE+(#!9; unless the court otherwise directs, no hearing or oral argument shall be alowed in support thereof. 5$hus, motions filed in the + need not contain a notice of hearing anymore8 RULE 50 DISMISSAL OF APPEAL 1. 9rounds for dismissal of appeal by the += a. >ailure of the record on appeal to show on its face that the appeal was taken within the reglementary period; b. >ailure to file the notice of appeal or record on appeal within the period; c. >ailure of the appellant to pay the docket and other lawful fees; d. ;nauthori"ed alterations, omissions, or additions in the approved record on appeal; e. >ailure of the appellant to serve and file the re-uired number of copies of his brief or memorandum within the time provided; f. +bsence of specific assignment of errors in appellant@s brief or page references to the record; g. >ailure of the appellant to take necessary steps for the completion or correction of the record within the time limited by the order; h. >ailure of appellant to appear at the preliminary conference or to comply with orders, circulars, or directives of the court without %ustifiable cause i. Gudgment or order appealed from is not appealable. RULE 51 )UDGMENT 1. 1emorandum decisions are permitted in the +. 2. +fter %udgment or final resolution of the + and dissenting or separate opinions if any, are signed by the Gustices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies to be served upon parties or counsel. ). ?ate when %udgment or final resolution becomes e,ecutory shall be deemed as date of entry.
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RULE 52 MOTION FOR RECONSIDERATION 1. /eriod for filing= 'ithin 10 days from notice of %udgment or final resolution 2. $here must be proof of service on the adverse party. ). /E!?E! F &> + 1&$#&! >&( (E &!.#?E(+$#&! .$+F. $AE E:E ;$#&! &> G;?91E!$ unless the court, for good reasons, directs otherwise. RULE 53 NEW TRIAL 1. 'hen to file= +ny time after the appeal from the lower court has been perfected +!? before the + loses %urisdiction over the case 2. 9round= newly discovered evidence &!LF ). 1ust be accompanied by affidavits of merit *. .ame procedure followed as in new trials before the ($ RULE 54 INTERNAL BUSINESS 1. ases of the + are allotted among different divisions. 2. 'hen + should sit en banc= a. to make proper orders or rules to govern the allotment of cases among divisions; b. to make rules on the constitution of divisions; c. to make rules on the regular rotation of Gustices; d. to make rules on the filling of vacancies; and e. to make rules on other matters relating to the business of the court. ). 'hat constitutes -uorum= a. en banc ma%ority of actual members of the court shall constitute a -uorum b. division ) members shall constitute a -uorum. *. !umber of affirmative votes necessary to pass a resolutionJpronounce %udgment= a. en banc affirmative votes of the ma%ority of the members of those present b. division affirmative votes of ) members. RULE 55 PUBLICATION OF )UDGMENTS AND FINAL RESOLUTIONS Gudgments and final resolutions of the court shall be published in the &fficial 9a"ette and in the (eports officially authori"ed by the court 5/hilippine (eportsJ. (+8. RULE 56 PROCEDURE IN T$E SUPREME COURT 1. &riginal cases cogni"able e,clusive list= a. /etitions for certiorari, prohibition, mandamus, )uo !arranto" habeas corpus; b. ?isciplinary proceedings against %udges and attorneys; c. ases affecting ambassadors, other public ministers, and consuls. 2. +n appeal to . can only be taken by petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua" or life imprisonment. ). 9rounds for dismissal of appeal by . a. >ailure to take appeal within the reglementary period; b. Lack of merit in the petition; c. >ailure to pay the re-uisite docket fee and other lawful fees or to make deposit for costs; d. >ailure to comply with the re-uirements regarding proof of service and contents of and the documents which should accompany the petition; e. >ailure to comply with any circular, directive or order of the . without %ustifiable cause; f. Error in choice or mode of appeal g. ase is not appealable to the . . *. ?iscretionary upon . 5and +8 to call for preliminary conference similar to pre2trial. 0. 9eneral (ule= +ppeal to . by notice of appeal shall be dismissed. &xception' #n criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed 5.ection ), (ule 1228 6. +ppeal by certiorari from ($ to . submitting issues of fact may be referred to the + for decision or appropriate action, without pre%udice to considerations on whether or not to give due course to the appeal as provided in (ule *0. PROVISIONAL REMEDIES /rovisional remedies 5ancillaryJau,iliary8 'rits and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect rights and interests therein pending rendition, and for the purpose of ultimately affecting a final %udgment in the case. 26
/(&<#.#&!+L 2 constituting temporary measures availed of during the pendency of the action. +! #LL#+(F 2 incidents in and dependent on the result of the main action. RULE 5# PRELIMINARY ATTAC$MENT 1. /reliminary +ttachment a. +vailable even if the recovery of personal property is only an incidental relief sought in the action; b. 1ay be resorted to even if the personal property is in the custody of a third person; c. E,tends to all kinds of property, real or personal or incorporeal; d. $o recover possession of personal property un%ustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant; e. an still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one in which he has proprietary interests, +!? with permission of the court 2. 9rounds a. (ecovery of specified amount of money and damages, except moral or e,emplary, where party is about to depart from the /hils with intent to defraud creditors; b. +ction for money or property embe""led or for willful violation of duty by public officers, officers of corporation, agent, or fiduciary; c. (ecovery of possession of property 5both real and personal8 un%ustly detained, when the property is concealed or disposed of to prevent its being found or taken; d. +ction against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof; e. +ction against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors; f. +ction against party who is not a resident of the /hils and cannot be found therein or upon whom service by publication can be made. ). /(#! #/LE &> /(#&( &( &!$E1/&(+(F G;(#.?# $#&!= Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party; B;$ the re-uirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the /hils temporarily absent therefrom, or the defendant is a non2resident of the /hils or the action is in rem or )uasi in rem. *. 'hen preliminary attachment is discharged a. ?ebtor posts a counterbond or makes re-uisite cash deposit2 if attachment to be discharged is with respect to particular property, counterbond or deposit shall be e-ual to the value of the property as determined by the court; in all other cases, amount of counterbond should be e-ual to the amount fi,ed in the order of attachment. +.A ?E/&.#$ &( &;!$E(B&!? .A+LL .E ;(E $AE /+F1E!$ &> +!F G;?91E!$ $A+$ +$$+ A#!9 /+($F 1+F (E &<E( b. +pplicant@s bond is insufficient or sureties fail to %ustify; c. +ttachment was improperly or irregularly issued; d. /roperty attached is e,empt from e,ecution; e. Gudgment is rendered against attaching party; f. +ttachment is e,cessive discharge is with respect to the e,cess 0. +pplication for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. 6. 'hen to apply for damages against the attachment bond a. Before trial; b. Before appeal is perfected; c. Before %udgment becomes e,ecutory; d. #n the appellate court for damages pending appeal, before %udgment becomes e,ecutory. D. 'hen %udgment becomes e,ecutory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of %udgment and costs upon notice and summary hearing. $here is no need to first e,ecute %udgment against the %udgment obligor before proceeding against sureties. C. laims for damages cannot be sub%ect of independent action except= a. 'hen principal case is dismissed by the trial court for lack of %urisdiction without giving the claiming party opportunity to prove claim for damages; b. 'hen damages sustained by a third person not a party to the action. RULE 5& PRELIMINARY IN)UNCTION 2D
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002 1. /reliminary in%unction distinguished from /rohibition
P9/57.7069: I0;+0<1720 P9237>71720 9enerally directed against party to the ?irected against a court, tribunal, or person action but may be against any person e,ercising %udicial powers ?oes !&$ involve the %urisdiction of the 1ay be on the ground that the court court against whom the writ is sought acted without or in e,cess of %urisdiction; 1ay be main action itself or %ust a +lways a main action provisional remedy in the main action 2. 9rounds for /reliminary #n%unction a. /laintiff is entitled to relief sought which consists in restraining or re-uiring the performance of acts 5latter is preliminary mandatory in%unction8; b. $he commission of acts or non2performance during pendency of litigation would probably work in%ustice to the plaintiff; c. ?efendant is doing or about to do an act violating plaintiff@s rights respecting the sub%ect of the action and tending to render %udgment ineffectual. ). #n%unction may be refused or dissolved when= a. omplaint is insufficient; b. ?efendant is permitted to post a counterbond it appearing that he would sustain great and irreparable in%ury if in%unction granted or continued while plaintiff can be fully compensated; c. /laintiff@s bond is insufficient or defective *. !o /reliminary #n%unction or $(& may be issued without posting of bond and notice to adverse party and hearing. 0. /(#! #/LE &> /(#&( &( &!$E1/&(+(F G;(#.?# $#&!= 'hen an application for a writ of preliminary in%unction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple2sala court, shall be raffled only after !&$# E to and #! $AE /(E.E! E of the adverse party or the person to be en%oined. #n any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant@s affidavit and bond, upon the adverse party in the /hils; B;$ the re-uirement of prior or contemporaneous service of summons shall !&$ apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the /hils temporarily absent therefrom, or the defendant is a non2resident of the /hils Difference !ith principle in preliminary attachment #n attachment, the principle applies only in the implementation of the writ, while in applications for in%unction or $(&, this principle applies before the raffle and issuance of the writs or $(&. 6. $(& good for only 27 days from service; 67 days for +; until further orders from . . D. $(& can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave in%ustice and irreparable in%ury. 9ood for D2 hours from issuance, within which %udge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether $(& should be e,tended for 27 days. #n no case can $(& be longer than 27 days including D2 hours. C. !o $(&, preliminary in%unction or preliminary mandatory in%unction may issue against the government in cases involving implementation of government infrastructure pro%ects. 5 3arcia vs $urgos, reiterated in +dministrative ircular no. D2EE, promulgated Gune 20,1EEE8 RULE 5' RECEIVERS$IP 1. 'hen receiver may be appointed= a. /arty has an interest in the property or fund sub%ect of the action and such is in danger of being lost, removed, or materially in%ured; b. +ction by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially in%ured and that its value is probably insufficient to discharge the mortgage debt, &( that the parties have stipulated in the contract of mortgage; c. +fter %udgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in e,ecution when e,ecution has been returned unsatisfied or the %udgment debtor refuses to apply his property to satisfy %udgment, or to carry out the %udgment. d. 'hen appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation. 2. 'hen receivership may be deniedJlifted a. +ppointment sought is without sufficient cause; b. +dverse party files sufficient bond for damages; c. +pplicant or receiver@s bond is insufficient. ). Both the applicant for the receivership and the receiver appointed must file separate bonds. 2C
*. #n claims against the bond, it shall be filed, ascertained and granted under the same procedure as .ection 27, (ule 0D, whether it be damages against the applicant@s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver@s bond by reason of the receiver@s management 5in the latter case, no longer need to file a separate action8. RULE 60 REPLEVIN 1. (eplevin a. +vailable only where the principal relief sought in the action is the recovery of possession of personal property; b. an be sought only where the defendant is in the actual or constructive possession of the personal property involved. c. E,tends only to personal property capable of manual delivery; d. +vailable to recover personal property even if the same is !&$ being concealed, removed, or disposed of; e. annot be availed of if property is in custodia legis, as where is it under attachment, or was sei"ed under a search warrant or distrained for ta, assessment. 2. ?efendant entitled to return of property taken under writ if= a. Ae seasonably posts redelivery bond b. /laintiff@s bond is insufficient or defective c. /roperty is not delivered to plaintiff for any reason. (eplevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. $hus, surety is not liable for payment of %udgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant@s deprivation of possession by the plaintiff. RULE 61 SUPPORT ?PENDENTE LITE@ 1. 'hen filed= a. +t the commencement of the proper action or proceeding &( b. +t any time prior to the %udgment or final order 2. +pplication= a. <erified b. >iled by any party c. .tate the grounds for the claim and financial conditions of both parties d. +ccompanied by affidavits, depositions or other authentic documents in support thereof. ). /rocess= a. +pplication filed in court and served with adverse party b. +dverse party files comment within 0 days 5unless different period is fi,ed8 from service of application. c. +pplication is set for hearing not more than ) days after comment is filed, or after the e,piration of the period for its filing. *. 'hat court shall do= a. ?etermine provisionally the pertinent facts, +!? b. (ender such orders as %ustice and e-uity may re-uire, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the -uestion involved. 0. #f application is granted= court shall fi, the amount of money to be provisionally paid or such other forms of support as should be provided. what court shall take into account= a. necessities of the applicant b. resources or means of the adverse party c. terms of payment or mode for providing support. 6. #f application is denied= principal case shall be tried and decided as early as possible. D. Enforcement of order= a. #f the adverse party fails to comply with an order granting support pendent elite= order of e,ecution, without pre%udice to liability for contempt b. #f the person ordered to give support pendent elite refuses or fails to do so and a ) rd party furnished that support to the applicant= )rd party may, after due notice and hearing in the same case, obtain a writ of e,ecution to enforce his right of reimbursement. C. .upport in criminal cases a. when applicable=
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in criminal actions where the civil liability includes support for the offspring as a conse-uence of the crime +!? ii. the civil aspect thereof has not been waived, reserved or instituted prior to its filing b. who may file= 5in successive order8 i. offended party ii. her parents iii. grandparents or guardian iv. .tate E. (estitution a. 'hen applicable= when the %udgment or final order of the court finds that the person who has been providing support pendent elite is not liable therefore b. 'hat court may order recipient= return the amounts already paid with legal interest from the dates of actual payment without pre%udice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. c. #f recipient fail to reimburse= person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give support. SPECIAL CIVIL ACTIONS 1. $ypes of .pecial ivil +ctions a. 1andamus b. #nterpleader c. ertiorari d. ontempt e. /rohibition f. Eminent ?omain g. ?eclaratory (elief h. Luo warranto i. /artition of real estate %. >oreclosure of mortgage k. ;nlawful detainer l. >orcible Entry RULE 62 INTERPLEADER 1. #nterpleader a. &riginal action b. /resupposes that the plaintiff has no interest in the sub%ect matter of the action or has an interest therein which, in whole or part, is not disputed by the other parties to the action; c. omplaint in interpleader must be answered 10 days from service of summons RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES 1. (e-uisites for action for declaratory relief= a. .ub%ect matter of controversy is a deed, will, contract, or other written instrument, statute, e,ecutive order, or regulation, or ordinance; ourt may refuse to ad%udicate where decision would not terminate the uncertainty or controversy which gave rise to the action &( where the declaration is not necessary and proper at the time; b. $erms and validity thereof are doubtful and re-uire %udicial construction; c. !o breach of the document, otherwise ordinary civil action is the remedy; 1ust be before breach is committed, as in the case where the petitioner paid under protest the fees imposed by an ordinance. ?eclaratory relief still proper because the applicability of the ordinance to future transactions still remains to be resolved, although the matter could be threshed out in an ordinary suit for the recovery of the fees paid. d. $here is an actual %usticiable controversy between persons whose interests are adverse; e. $he same is ripe for ad%udication; f. +de-uate relief is not available through other means or other forms of action or proceeding. RULE 64 REVIEW OF )UDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF T$E COMMISSION ON ELECTIONS AND T$E COMMISSION ON AUDIT >or petition for review of %udgments and final orders of the &1ELE and &+ period to file is )7 days to be counted from notice of the %udgment or final order or resolution sought to be reviewed and not from the receipt of the denial of the 1otion for (econsideration; the period to file )7
i.
petition is merely interrupted by the filing of the 1otion for (econsideration and continues to run again for the remaining period !hich shall not be less than 7 days from notice of denial RULE 65 CERTIORARI( PRO$IBITION AND MANDAMUS 1. ertiorari a. /urpose to correct an act performed by respondent; b. +ct sought to be controlled discretionary acts; c. (espondent one who e,ercises %udicial functions and acted with grave abuse of discretion or in lack or e,cess of %urisdiction. d. 9enerally directed against an interlocutory order of the court prior to appeal from the %udgment in the main case; e. !eed merely be filed seasonably 5within 67 days8, without undue delay and before the act, order, or proceedings, sought to be reviewed or set aside has become fait accompli such that any reversal thereof shall have become academic; f. ;nless a writ of preliminary in%unction shall have issued, does !&$ stay the challenged order; g. /arties are the aggrieved parties against the lower court or -uasi2%udicial agency and the prevailing parties; h. 1otion for reconsideration is a condition precedent, sub%ect to certain e,ceptions; i. Aigher court e,ercises original %urisdiction under its power of control and supervision over the orders of lower courts. #f + reverses the %udge, the latter may not go the . via a petition for certiorari. Ae is merely a nominal party, and he should not seek the reversal of a decision that is unfavorable to the action taken by him. +rofessional Regulation Commission vs C# #t is well settled that the remedies of ordinary appeal and certiorari are mutually e,clusive, not alternative or successive. Aowever, it has also been held that after a %udgment has been rendered and an appeal therefrom had been perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be a plain, speedy and ade-uate remedy. #n this case, the . noted that, while petitioners tried to %ustify their recourse to both an appeal and to a petition for certiorari by claiming that their appeal would not constitute a plain, speedy and ade-uate remedy, they did not see fit to withdraw or abandon said appeal after filing the petition. $hus, both the + and . are reviewing the same decision of the ($ at the same time. .uch a situation would lead to absurdity and confusion in the ultimate disposition of the case. 2. /rohibition a. /urpose to prevent the commission or carrying out of an act; b. +ct sought to be controlled discretionary and ministerial acts; c. (espondent one who e,ercises %udicial or non2%udicial functions. ). 1andamus a. /urpose to compel the performance of the act desired; b. +ct sought to be controlled ministerial act; c. (espondent one who performs %udicial or non2%udicial functions. *. 'hen . allows the writ of certiorari even when appeal is available and proper= a. +ppeal does not constitute a speedy and ade-uate remedy; b. &rders were issued either in e,cess of or without %urisdiction; c. >or certain special considerations, such as public welfare or policy; d. 'here in criminal actions, the court re%ects rebuttal evidence for the prosecution, as in ac-uittal; e. 'here the order is a patent nullity; f. 'here the decision in the certiorari case will avoid future litigation. 0. ases where 1otion for (econsideration is !&$ condition precedent for certiorari= a. &rder is a patent nullity; b. Luestions raised in the certiorari proceeding were duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; c. ;rgent necessity for the resolution of the -uestion and any further delay would pre%udice the interests of the government; d. ;nder the circumstances, a motion for recon would be useless; e. /etitioner was deprived of due process and there is e,treme urgency for relief; f. 'here in a criminal case, relief from order or arrest is urgent and the granting of such relief by the trial court is improbable; g. /roceedings in the lower court are null for lack of due process; h. /roceeding was ex parte or in which petitioner had no opportunity to ob%ect; i. #ssue raised is one purely of law or where public interest is involved. )1
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002 6. $he period for filing any of the ) actions is not later than 67 days from notice of %udgment, order, or
resolution sought to be reviewed. #n case a motion for reconsideration or new trial is timely filed, whether such motion is re-uired or not, the 672day period shall be counted from notice of the denial of said motion. 5. ircular 0622777, effective .eptember 1, 27778 !o e,tension of time to file the petition shall be granted except for compelling reason and in no case e,ceeding 10 days. 5. ircular 06227778 RULE 66 !UO WARRANTO 1. Luo 'arranto distinguished from Election ontest= !+2 W6996012 E5/<1720 C201/81 Basis is that occupant is dis-ualified from hallenge rights of a person to hold office holding office by reason of ineligibility or on the ground of irregularities in the disloyalty conduct of the election #f successful, respondent is ousted but .uccessful protestant will assume office if petitioner shall not automatically assume he had obtained plurality of valid votes the office vacated RULE 6# E*PROPRIATION 1. #n e,propriation, the complaint must be verified. 2. $he defendant can only file an answer instead of a motion to dismiss ). $he final order of e,propriation is appealable, but the lower court may determine the %ust compensation to be paid. $he power of eminent domain is e,ercised by the filing of a complaint which shall %oin as defendants all persons owning or claiming to own, or occupying, any part of the e,propriated land or interest therein. #f a known owner is not %oined as defendant, he is entitled to intervene in the proceedings; or if he is %oined but not served with process and the proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for damages. RULE 6& FORECLOSURE OF REAL ESTATE MORTGAGE 1. 'hat complaint shall set forth= a. date and due e,ecution of the mortgage b. its assignments, if any c. the names and residences of the mortgagor and the mortgagee d. a description of the mortgaged property e. a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage f. the amount claimed to be unpaid thereon g. the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. 2. 'hat the court shall do, if upon trial, it find the facts set forth in the complaint to be true= d. +scertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs +!? e. (ender %udgment for the sum so found due and order that the same be paid to the court or to %udgment obligee i. within what period= within a period of not less than E7 days nor more than 127 days from entry of %udgment ii. in default of such payment= such property shall be sold at public auction to satisfy the %udgment. ). Effect when defendant fails to pay the amount of the %udgment within the period specified a. ourt, upon motion, shall order the property to be sold in the manner and under the provisions of (ule )E and other regulations governing sales of real estate under e,ecution. b. .ale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof c. 'hen confirmed by an order of the court, upon motion, sale shall operate to= i. divest the rights in the property of all the parties to the action and to ii. vest their rights in the purchaser, sub%ect to such rights of redemption as may be allowed by law. *. /ossession a. 9eneral (ule= 'hen purchaser at the auction sale or last redemptioner entitled to possession= i. upon finality of the order of confirmation &( )2
ii. upon e,piration of the period of redemption when allowed by law b. ;nless= a )rd party is actually holding the same adversely to the %udgment obligor c. .aid purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. *. Aow proceeds of sale to be disposed= a. osts of sale b. 1ortgaged debt due c. Gunior encumbrances in the order of their priority to be ascertained by the court d. $o the mortgagor or his duly authori"ed agent or to the person entitled to it. 0. Aow sale to proceed in case the debt is not all due a. 9eneral (ule= i. + sufficient portion of the property is sold to pay the total amount and the costs due ii. $hereafter sale shall terminate iii. +fterwards, court may, on motion, order more to be sold as often as more becomes due for the principal or interest and other valid charges b. E,cept= if property cannot be sold in portions without pre%udice to the parties= i. 'hole shall be ordered to be sold in the first instance ii. $he entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefore, there being a rebate of interest where such rebate is proper. 6. ?eficiency %udgment ourt, upon motion, shall render %udgment against the defendant for any balance for which, by the record of the case, he may be personally liable to the plaintiff if balance is all due at the time of the rendition of the %udgment= e,ecution may issue immediately otherwise= plaintiff shall be entitled to e,ecution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the %udgment D. #f no right of redemption e,ists= the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser. C. #f right of redemption e,ists= a. ertificate of title in the name of the mortgagor shall not be cancelled b. ertificate of sale and the order confirming the sale shall be registered c. + brief memorandum thereof shall be made by the registrar of deeds upon the certificate of title. E. #f property is redeemed= a. ?eed of redemption shall be registered with the registry of deeds b. + brief memorandum thereof shall be made by the registrar of deeds 17. #f property is not redeemed= a. $he final deed of sale shall be registered with the registry of deeds b. $he certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser RULE 6' PARTITION 1. omplaint a. .hall set forth nature and e,tent of title and an ade-uate description of the real estate of which partition is demanded b. .hall %oin as defendants all persons interested in the property 2. &rder of partition a. #ssued if after trial the court finds that the plaintiff has the right thereto b. $hereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance $he court shall confirm the partition so agreed upon by all the parties .uch partition, and the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. c. 1ay be appealed by any aggrieved party d. #f parties unable to agree upon partition= court shall appoint not more than ) commissioners to make the partition ). ?uties of commissioners a. <iew and e,amine the real estate, after due notice to the parties to attend at such view and e,amination b. Aear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof ))
c. .et apart the same to the parties in lots or parcels as will be most advantageous and e-uitable, having due regard to the improvements, situation and -uality of the different parts thereof. RULE #0 FORCIBLE ENTRY AND UNLAWFUL DETAINER 1. >orcible entry distinguished from ;nlawful detainer F29<7>5/ /019: U056A=+5 ,/1670/9 /ossession of land is unlawful from the /ossession of defendant is inceptively beginning due to force, intimidation, threat, lawful but becomes illegal by reason of strategy or stealth termination of right of possession !o re-uirement of previous demand for ?emand is %urisdictional defendant to vacate premises /laintiff must prove that he was in prior /laintiff need not have been in prior physical possession until he was deprived physical possession thereof by defendant 12year period counted from date of actual 12year period from date of last demand entry or when plaintiff learned thereof. 2. 'hen prior demand in unlawful detainer actions not re-uired; a. 'hen purpose of action is to terminate lease because of e,piry of term and not because of failure to pay rental or to comply with terms of lease contract; b. /urpose of suit is not for e%ectment but for enforcement of terms of contract; c. 'hen defendant is not a tenant but a pure intruder #n all other cases, there must be a demand= i. $o pay or to comply with the conditions of the lease; +!? ii. $o vacate by written notice on the person in the premises or by posting such notice on the premises if no person is found thereon and this is a condition precedent to the filing of the case; &(+L demand is not permitted. iii. #f demand is in the alternative 5pay &( vacate8, this is !&$ the demand contemplated by the (ules. ). 'hen the defendant raises the issue of ownership in his pleadings and the -uestion of possession cannot be resolved without deciding the issue of ownership, the latter issue shall be resolved only to determine the issue of possession. + forcible entryJunlawful detainer action has an entirely different sub%ect matter from that of an action for reconveyance. $he former involves material possession, and the latter, ownership. $hus, the pendency of an action for reconveyance does not divest the 1$ of its %urisdiction over an action for >EJ;?, nor will it preclude e,ecution of %udgment in the e%ectment case where the only issue involved is material possession. RULE #1 CONTEMPT 1. riminal contempt a. /urpose is to vindicate public authority; b. onduct directed against the dignity or authority of the court. 2. ivil ontempt a. /urpose is to protect and enforce civil rights and remedies for the litigants; b. >ailure to do something ordered by the court for the benefit of a party. ). ?irect ontempt 5contempt in facie curiae8 a. ommitted in the presence of or so near a court or %udge; b. /unished summarily without hearing; c. !o appeal may be taken but the party ad%udged in contempt may avail himself of actions of certiorari or prohibition which shall stay the e,ecution of the %udgment, provided a bond fi,ed by the court is filed. *. #ndirect ontempt a. !ot committed in the presence of the court; b. /unished only after hearing complaint in writing or motion or party or order of court re-uiring person to appear and e,plain, opportunity to appear and show cause.
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REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPER AT ION S 2002

RULE 2 CAUSE OF ACTION

RULE 3 PARTIES TO CIVIL ACTIONS

c. Lacks a proper verification Shall be treated as an unsigned pleading1

D. CERTIFICATION AGAINST FORUM%S$OPPING"

RULE & MANNER OF MA

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