Lecture Notes On Civil Procedure

LECTURE NOTES ON CIVIL PROCEDURE
WHAT IS CIVIL PROCEDURE

It is the procedure governing the filing,
processing and adjudication of civil actions.
It essentially is the lawyers law that defines
the rules of the game that lawyers and
judges play.
It is embraced in Rules 1 to 71 of the Rules
of Court and after its revision, is now
commonly known as the 1997 Rules of Civil
Procedure. It is divided into the following
topics: General Provisions (Rule 1),
Ordinary Civil Actions (Rules 2-5),
Procedure in Regional Trial Courts (Rules 639), Appeals (Rules 40-43), Procedure in the
Court of Appeals (Rules 44-55), Procedure
in the Supreme Court (Rule 56), Provisional
Remedies (Rules 57-61), and Special Civil
Actions (Rules 62-71).
Included within its scope are the 1991 Rules
on Summary Procedure and Local
Government Code provisions on the
Katarungang Pambarangay.
JURISDICTION
Any discussion of procedural rules should
always be preceded by a discussion of
jurisdiction.
The presence of jurisdiction gives rise to the
application of the rules for the purpose of
resolving the action that is brought before a
court. Absent jurisdiction, the only thing a
court can do as provided by the rules is to
dismiss the action. If a court acts without
jurisdiction, all its acts are null and void.
Further, any decision it may render is not a
decision in contemplation of law and cannot
be executory. See: Abbain v. Chua 22 SCRA
748, Estoesta vs. CA 179 SCRA 203, Dava
v. People 202 SCRA 62
Simply defined JURISDICTION refers to the
power and authority of a court or tribunal to
hear, try and decide a case. It has also been
defined as the authority by which courts and
judicial officers take cognizance of and
decide cases.
REQUISITES FOR A VALID EXERCISE OF

JURISDICTION
1.It must have jurisdiction over the persons
of the parties. It is acquired over the plaintiff
upon his filing of a complaint. On the other
hand, it is acquired over the defendant by
his voluntary appearance before the court or
the employment of the coercive power of
legal process.
2.It must also have jurisdiction over the
subject matter in controversy Jurisdiction
over the subject matter of the compliant as
determined by the allegations in the
complaint and the law in force at the time of
the commencement of the action.
2.1
Determined by allegations in the
complaint
2.1.a The facts allege dispossession of
the property by force the allegations make
out a case for forcible entry The law
provides that such cases fall within the
jurisdiction of the MTC.
2.1.b The allegation is for recovery or
payment of the sum of 500,000, subject
matter jurisdiction is with the RTC
2.1.c The plaintiff claims PHP 500,000 but
after trial he is only entitled to PHP 100,000,
subject matter jurisdiction is with the RTC.
See: Ratilla v. Tapucar, 75 SCRA 64
2.1.d It cannot be made to depend on the
defenses interposed in an answer or a
motion to dismiss AS IT IS THE
COMPLAINT, PETITION OR INITIATORY
PLEADING THAT BRINGS THE CASE FOR
TRIAL AND JUDGMENT ALTHOUGH THE
DEFENDANT MAY IN HIS ANSWER OR
MOTION ATTACK JURISDICTION if the
Rule were otherwise NO ACTION CAN
PROSPER as all the defendant has to do is
to allege that jurisdiction is vested in another
court. The EXCEPTION is the defense of
agricultural tenancy. See Section 3, Rule 70
2.2
Determined by the law in force at
the time of the commencement of the action
2.2.a If action for payment of a sum of
money is filed after the effectivity of RA 7961
on April 15, 1994 (Expanding the jurisdiction
of the MTC and implemented by Adm.
Circular 9-94-June 14, 1994) interest,
damages of whatever kind ( as long as
incidental),
attorneys
fees,
litigation
2
expenses and costs are not to be

considered in fixing the jurisdictional
amount, but must be specifically alleged and
filing fees paid thereon
2.2.b There is a shipment of goods from
HK to Manila. The shipment was short.
Consignee sued in Manila, carrier moved to
dismiss for lack of jurisdiction since the Bill
of Lading provided that in case of dispute,
suit must be brought in HK. Motion will not
prosper as jurisdiction is conferred by law
and cannot be stipulated by the parties.
DISTINCTIONS BETWEEN THE NATURE
OF JURISDICTION EXERCISED BY THE
COURTS
1.AS TO THE NATURE OF THE EXERCISE
OF JURISDICTION it is General, meaning
it is exercised over all kinds of cases or
Limited, meaning it exercised over and
extends only to a particular or specified
cases
2.AS TO THE NATURE OF THE CAUSE
OR THE ACTION it is Original, meaning it
is exercised by courts in the first instance or
Appellate, meaning it is exercised by a
superior court to review and decide a cause
or action previously decided by a lower
court.
3.AS TO THE EXTENT OF THE EXERCISE
OF JURISIDICTION it is Exclusive,
meaning it is confined to a particular court or
CONCURRENT, meaning two or more
courts have jurisdiction at the same time and
place. In this instance, the court which has
first validly acquired jurisdiction takes it to
the exclusion of the others. NOTE THOUGH
the DOCTRINE OF HIERARCHY OF
COURTS which requires litigants to initially
seek proper relief from the lower courts in
those cases where the Supreme Court has
concurrent jurisdiction with the Court of
Appeals and the Regional Trial Court to
issue the extraordinary writs of certiorari,
prohibition or mandamus. The Supreme
Court is a court of last resort and its
jurisdiction to issue extra-ordinary writs
should be exercised only when absolutely
necessary, or where serious and important
reasons therefor exist. See Pearson v. IAC,
295 SCRA 27. Also, concurrence of
jurisdiction does not grant any party seeking
any of the extra-ordinary writs the absolute
freedom to file the petition with the court of
his choice. See: Ouano vs. PGTT
3
International Investment Corporation, 384

SCRA 587
4.AS TO SITUS it is Territorial, meaning it
is exercised within the limits of the place
where the court is located or Extra-Territorial
meaning it is exercised beyond the confines
of the territory where the court is located.
WHAT HAPPENS WHEN JURISDICTION IS

ACQUIRED
Jurisdiction once acquired continues until
the case is terminated. It is not affected by
subsequent legislation placing jurisdiction in
another tribunal. See Mercado vs. Ubay, 187
SCRA 719. The exception is when the
expressly provides for retroactivity. See
Latchme Motoomull v. Dela Paz, 187 SCRA
743
DOCTRINE OF PRIMARY JURISDICTION
That which vests in an administrative
tribunal the jurisdiction to determine a
controversy requiring the exercise of sound
administrative discretion stated otherwise
if jurisdiction is vested upon an
administrative body, no resort to courts can
be made until the administrative body shall
have acted on the matter.
WHEN
CAN
THE
ABSENCE
JURISDICTION BE QUESTIONED
OF
The general rule is jurisdiction may be

questioned at any stage of the proceedings,
even on appeal, BUT a party may be barred
from raising it on the ground of laches or
estoppel when he has actually invoked the
jurisdiction of the court by participating in the
proceedings, then belatedly questions lack
of jurisdiction after judgment has gone
against him. See: Tijam v. Sibonghanoy, 23
SCRA 29, Lopez v. Northwest 223 SCRA
469, Soliven v. FastForms Phil. Inc, GR No.
139091, October 18, 2004, citing PNOC v.
CA,. 297 SCRA 402, APT v. CA 300 SCRA
597 and Producers Bank v. NLRC, 298
SCRA 517. See also: Sections 2 and 3, Rule
47 Annulment of Judgment based on
extrinsic fraud or lack of jurisdiction.If based
on lack of jurisdiction before it is barred by
laches or estoppel.
PROBLEM
AREAS
JURISDICTION
AFFECTING
1.
ACTIONS
INCAPABLE
PECUNIARY ESTIMATION
OF
1.1
Generally, it is one where the basic
issue is something other than the right to
recover money, where the money claim is
incidental to or is a consequence of the
principal relief being sought. It is a claim, the
subject of which cannot be estimated in
terms of money.
1.2
Examples: Action for specific
performance although damages are being
sought BUT if damages are part of an
alternative prayer, jurisdiction should be
based on the amount. OTHERS: Action for
appointment of receivers, expropriation,
interpleader, support, and rescission
1.3
In determining which court has
jurisdiction, the applicable test is the
NATURE
OF
THE
ACTION
TEST
(Determination as to whether or not the
action is capable of pecuniary estimation. If
not capable, jurisdiction is with the RTC. If
capable-jurisdiction is determined by the
amount claimed/value of the personal
property) BUT this test must yield to the
PRIMARY OBJECTIVE TEST (where
notwithstanding the fact that the action
appears to be incapable of pecuniary
estimation, if the primary objective is to
recover real property, jurisdiction will be
determined by the assessed value of the
real property)
2.
DETERMINATION OF AMOUNTS
OF
THE
CLAIM
TO
DETERMINE
JURISDICTION
AND
PAYMENT
OF
DOCKET FEES 2.1
Foreclosure of chattel to collect
100K but actual value is 500K MTC
RULE: Jurisdiction is determined by the
amount claimed by the plaintiff.
2.2
Action for removal of improvements
with prayer for 10,000 for attorneys fees
RTC incapable of pecuniary estimation.
2.3
Action to collect sum of money
within jurisdiction of the MTC but with
accessory prayer for damages beyond MTC
jurisdiction MTC - if action is personal,
5
damages are to be excluded (Adm Circ.

09-94 June 14, 1994) for determining
jurisdiction but payment is still to
be
collected Damages, Interest, Attorneys
fees and Litigation costs.
BUT if action is for damages over 400K
RTC because it is the main cause of action
or one of the causes of action.
3.IF DOCKET FEES ARE INCORRECT
The trial court should allow the plaintiff to
pay within a reasonable period of time
before the expiration of the applicable
prescriptive or reglamentary period
EFFECT defendant must move to dismiss
the complaint on the ground of lack of
jurisdiction if not he may be considered to
be in estoppel. See NSC v. CA GR
123215, Feb 2, 1999)
4. DOCKET FEES FOR MAIN/REAL
ACTION PAID BUT THOSE FOR RELATED
DAMAGES ARE NOT PAID Trial court may
expunge the claims or allow on motion, a
reasonable time for amendment of the
complaint or accept payment of the requisite
legal fees.
5.IF CLAIMS ARE UNSPECIFIED BUT
ARISE AFTER FILING The required
additional fee shall constitute a lien on the
judgment
LEVELS
OF
JURISDICTION
SUBJECT
1.JURISDICTION
COURT
OF
THE
MATTER
SUPREME
The jurisdiction of the Supreme Court in

civil cases of which it cannot be deprived
and which cannot be diminished by
Congress is to review, revise, reverse,
modify, or affirm on appeal or certiorari as
the law or the Rules of Court may provide,
final judgments and orders of lower courts
in: (a) all cases in which the constitutionality
or validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question; (b) all
cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto; (c) all cases in
which the jurisdiction of any lower court is in
issue; and (d) all cases in which only an
error or question of law is involved.
6
The foregoing Constitutional definition is of

appellate jurisdiction. Congress, however, is
not prohibited from increasing or adding to
this Constitutionally-defined jurisdiction. And
so Congress has given the Supreme Court
original jurisdiction over cases affecting
ambassadors, other public ministers, and
consuls and petitions for the issuance of
writs of certiorari, prohibition and mandamus
against the Court of Appeals. Congress has
also vested the Supreme Court with
jurisdiction, concurrent with the RTCs, over
petitions for the issuance of the writs of
certiorari, prohibition, habeas corpus, and in
actions brought to prevent and restrain
violations of law concerning monopolies and
combinations in restraint of trade.
The appellate jurisdiction in civil cases of
the Supreme Court as defined in the
Constitution had been revised and
expanded a little bit more by law to include
all cases involving petitions for naturalization
or denaturalization, all decisions of the
Auditor General, if the appellant is a private
person or entity, and final judgments or
orders of the Commission on Elections.
2.JURISDICTION OF THE COURT OF
APPEALS
The Court of Appeals has both original
and appellate jurisdiction. Its original
jurisdiction, which is exclusive, is over
actions for annulment of RTC judgments. Its
original jurisdiction, which is concurrent with
the Supreme Court and the RTCs, is to
issue writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto,
and auxiliary writs or processes, whether or
not in aid of its appellate jurisdiction.
The appellate jurisdiction of the Court of
Appeals, which is exclusive, is over final
judgments or resolutions of RTCs and quasijudicial agencies, such as the Securities and
Exchange Commission, Sandiganbayan an
National Labor Relations Commission.
3.JURISDICTION OF REGIONAL TRIAL
COURTS
The RTCs are our second-level trial
courts. As the Supreme Court and the Court
of Appeals, RTCs have both original and
appellate jurisdiction in civil cases.
Their original jurisdiction is concurrent with
the Supreme Court and the Court of Appeals
in the issuance of writs of certiorari,
7
prohibition, mandamus, quo warranto,

habeas corpus and injunctions but, as
issued by RTCs, these writs may be
enforced only within their respective regions,
and over actions affecting ambassadors and
other public ministers and consuls. The
original jurisdiction of RTCs, which is
exclusive, is broad and covers the following
cases: (1) all civil actions in which the
subject of the litigation is incapable of
pecuniary estimation; (2) all civil actions
which involve the title to, or possession of,
real property, or any interest therein, where
the assessed value of the property involved
exceeds Two hundred thousand pesos
(P200,000.00) or for civil actions in Metro
Manila, where such value exceeds Four
hundred thousand pesos (P400,000.00)
except actions for forcible entry into and
unlawful detainer of lands or buildings,
original jurisdiction over which is conferred
upon the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit
Trial Courts; (3) all actions in admiralty and
maritime jurisdiction where the demand or
claim exceeds Two hundred thousand pesos
(P200,000.00) or in Metro Manila, where
such demand or claim exceeds Four
hundred thousand pesos (P400,000.00); (4)
all matters of probate, both testate and
intestate, where the gross value of the
estate exceeds Two hundred thousand
pesos (P200,000.00) or, in probate, both
testate and intestate, where the gross value
of the estate exceeds Two hundred
thousand pesos (P200,000.00) or, in probate
matters in Metro Manila, where such gross
value exceeds Four hundred thousand
pesos (P400,000.00); (5) all actions
involving the contact of marriage and marital
relations; (6) all cases not within the
exclusive jurisdiction of any court, tribunal,
person or body exercising jurisdiction of any
court, tribunal, person or body exercising
judicial or quasi-judicial functions; (7) all civil
actions and special proceedings falling
within the exclusive jurisdiction of a Juvenile
and Domestic Relations Court and of the
Court of Agrarian Relations as then provided
by law; and (8) all other cases in which the
demand, exclusive of interest, damages of
whatever kind, attorneys fees, litigation
expenses, and costs or the value of the
property in controversy exceeds Two
hundred thousand pesos (P200,000.00) or,
in such other cases in Metro Manila, where
the demand, exclusive of the abovementioned items exceeds For hundred
thousand pesos (P400,000.00).
The appellate jurisdiction of the RTCs is

over all cases decided by Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in their respective
territorial jurisdiction.
The term damages of whatever kind has
been specially defined by the Supreme
Court for purposes of determining the
jurisdictional amount in respect to the
jurisdiction of the RTC. This term is
understood to apply only to cases when the
damages are merely incidental to or a
consequence of the main cause of action,
and that therefore where the claim for
damages is the main cause of action or one
of the causes of action, the amount of the
claim shall be considered in determining the
jurisdiction of the court.
The Supreme Court has however
designated certain branches of the RTCs to
handle exclusively certain cases as
corporate and intellectual property cases.
4.JURISDICTION OF METROPOLITAN
TRIAL COURTS, MUNICIPAL TRIAL
COURTS AND MUNICIPAL CIRCUIT TRIAL
COURTS
The MTCs are the first-level trial courts in
this country. They have therefore no
appellate jurisdiction and all their jurisdiction
is exclusive and encompasses the following
cases: (1) all civil actions and probate
proceedings, testate and intestate, including
the grant of provisional remedies in proper
cases, where the value of the personal
property, estate, or amount of the demand
does not exceed Two hundred thousand
pesos (P200,000.00) or, in Metro Manila
where such personal property, estate, or
amount of the demand does not exceed
Four
hundred
thousand
pesos
(P400,000.00),
exclusive
of
interest,
damages of whatever kind, attorneys fees,
litigation expenses, and costs, the amount of
which must be specifically alleged:
Provided, That where there are several
claims or causes of actions between the
same or different parties, embodied in the
same complaint, the amount of the demand
shall be the totality of the claims in all the
causes of action irrespective of whether the
causes of action arose out of the same or
different transactions; (2) cases of forcible
entry and unlawful detainer: Provided, That
when, in such cases, the defendant raises
the question of ownership in his pleadings
and the question of possession cannot be
resolved without deciding the issue of
9
ownership, the issue of ownership shall be

resolved only to determine the issue of
possession; and (3) all civil actions which
involve title to, or possession of, real
property or any interest therein where the
assessed value of the property or interest
therein does not exceed Two hundred
thousand pesos (P200,000.00) or, in civil
actions in Metro Manila, where such
assessed value does not exceed Four
hundred thousand pesos (P400,000.00)
exclusive of interest, damages of whatever
kind, attorneys fees, litigation expenses and
costs.
The MTCs may however be assigned by
the Supreme Court to hear and determine
certain cadastral cases and petitions for
habeas corpus.
RULE I GENERAL PROVISIONS

The Rules shall be known and cited as the
Rules of Court.1 They shall apply in all
courts, except as otherwise provided by the
Supreme Court2 in civil, criminal and special
proceedings.3They do not apply to election
cases,
land
registration,
cadastral,
naturalization and insolvency, and other
cases not herein provided, except by
analogy or in suppletory character and
whenever practicable and convenient.4
For purposes of the subject matter, only
Rules 1 to 71 or the 1997 Rules of Civil
Procedure shall be discussed herein.
1.A Civil Action is one by which a party sues
another for the enforcement or protection of
a right or the prevention or redress of a
wrong. Examples: To enforce payment of a
loan or to eject an intruder on ones property.
1.1
A Civil Actions may be:
1.1.a ORDINARY or SPECIAL both are

governed by the rules for ordinary civil
actions, subject to specific rules prescribed
for a special civil action.
1.1.b IN PERSONAM- brought against a
person based on personal liability to the
person bringing the action
1 Section 1, Rule 1, 1997 Rules of Civil Procedure

2 Supra, Section 2, Rule 1
4 Supra,,Section 4, Rule 1
10
1.1.c IN REM- it is directed against the

thing itself rather than the person
1.1.d QUASI IN REM names a person
as a defendant but its object is to subject the
persons interest in property to a
corresponding lien or obligation (Ramos vs.
Ramos, 399 SCRA 43)
1.2
Distinguishing it from other kinds of
actions:
1.2.a CRIMINAL - one by which the state
prosecutes a person for an act or omission
punishable by law.
1.2.b SPECIAL PROCEEDING remedy
by which a party seeks to establish a status,
right or a particular fact.
1.3
DISTINCTIONS
BETWEEN
A
CIVIL
ACTION AND SPECIAL PROCEEDINGS
CIVIL ACTION
Adversarial-between plaintiff and
and defendant
formal demand of a right by one
against the other
SPECIAL PROCEEDINGS
not necessarily as it may involve only 1
party
declaration of a status, right or a parti
cular fact
WHEN AN ACTION IS COMMENCED
An action is commenced upon the filing of
the original complaint in court. If an
additional defendant is impleaded in a later
pleading it is commenced on the date of
the
filing
of
the
later
pleading
IRRESPECTIVE OF WHETHER THE
MOTION FOR ITS ADMISSION, IF
NECESSARY, IS DENIED BY THE COURT.5
1.Note though that FILING IS DEEMED
DONE ONLY UPON PAYMENT OF THE
DOCKET FEE REGARDLESS OF ACTUAL
DATE OF THE FILING OF THE

11
COMPLAINT6 (MAGASPI V. RAMOLETE

115 S 193)
EXCEPT if the plaintiff is authorized to
litigate as a pauper litigant he is exempt
from filing fees.
2.Note that the commencement of the action
interrupts the period of prescription as to the
parties to the action.7
HOW
SHOULD
CONSTRUED
THE
RULES
BE
The rules shall be construed liberally in

order to promote their objective of securing
a just speedy and inexpensive disposition of
every action or proceeding.8
1.Liberal construction is the controlling
principle to effect substantial justice.
Litigation should as much as possible, be
decided on their merits, and not on
technicalities. It does not mean, however,
that procedural rules are to be ignored or
disdained at will to suit the convenience of a
party.9
2.Liberal construction of the rules should be
made by the courts in cases: (1) a rigid
application will result in manifest failure or
miscarriage of justice, especially if a party
successfully shows that the alleged defect in
the questioned final and executory judgment
is not apparent on its face or from the
recitals contained therein (2) where the
interest of substantial justice will be served
(3) where the resolution of the motion is
addressed solely to the sound and judicious
discretion of the court (4) where justice to
the adverse party is not commensurate with
the degree of this thoughtlessness in not
complying with the procedure prescribed.10
3.Note that in doing so, substantial justice

and equity considerations must not be
sacrificed. Periods for filing are as a matter
of practice, strictly construed. Neither can
liberality of the rules be invoked if it will
result in the wanton disregard of the rules or
cause needless delay in the administration
of justice.11
6 Magaspi v Ramolete, 115 SCRA 193

7 Cabrera v Tiano,8 SCRA 542
8 Supra,Section 6, Rule 1
9 Vda De Toledo v Toleda, 417 SCRA 260
10 Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
11 El Reyno Homes v Ong, 397 SCRA 563
12
4.Concommitant to a liberal application of

the rules of procedure should be an effort on
the part of the party invoking liberality to
adequately explain his failure to abide by the
rules.12
5.The rules and procedure laid down for the
trial court and the adjudication of cases are
matters of public policy. They are matters of
public order or interest which can in no wise
be changed or regulated by agreements
between or stipulations by parties to an
action for their singular convenience.13
(Republic vs. Hernandez, 253 SCRA 509)
6.The Supreme Court has the power to
suspend or set aside its rules in the higher
interest of justice.14
RULE 2CAUSE OF ACTION

The basis of an ordinary civil action is a
cause of action.15 A cause of action is the act
or omission by which a party violates a right
of another.16
WHAT ARE THE REQUISITES OF A
CAUSE OF ACTION
The requisites for a cause of action are: (1)
a right in favor of the plaintiff by whatever
means and under whatever law it arises or is
created (2) an obligation on the part of the
defendant to respect and not to violate such
right (3) an act or omission on the part of the
defendant constituting a violation of the
plaintiffs right.17
DISTINGUISHING IT FROM RIGHT OF
ACTION
RIGHT OF ACTION is the right to
commence and maintain an action, it is a
remedial right that depends on substantive
law, while a CAUSE OF ACTION is a formal
statement of the operative factsthat give rise
to such remedial right which is a matter of
statement and is governed by procedural
law. WHEN ALL ELEMENTS OF A CAUSE
OF ACTION ARE PRESENT, THERE WILL
BE A RIGHT OF ACTION
12 Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
13 Republic v Hernandez, 253 SCRA 509
14 Fortica v Corona, GR No. 131457, April 24, 1998
17 Navao v CA, 251 SCRA 545
13
The distinction is best used to explain the

principle that the existence of a cause of
action may only be ascertained from the
allegations of the complaint.18
HOW MANY SUITS CAN BE FILED FOR A
CAUSE OF ACTION
A party may not institute more than one suit
for a single cause of action.19
1. If a party institutes more than one suit,
the filing of one or a judgment upon the
merits in anyone is available as a ground for
the dismissal of the others.20 This is also
known as SPLITTING A CAUSE OF
ACTION.
2.The
SINGLENESS OF CAUSE OF
ACTION of a cause of action is determined
as follows:
2.1
In an action EX DELICTO, the
singleness of a cause of action lies in the
singleness of the delict or wrong violating
the right of a person. If however, one injury
results from several wrongful acts, only one
cause of action arises. Example: A party
who is injured could not maintain an action
for damages based on a breach of the
contract of carriage against the owner of the
vehicle in which he was riding and another
action for
quasi-delict against the
driver/owner of the offending vehicle. The
recovery under one remedy necessarily
should bar recovery under another. This, in
essence, is the rationale for the proscription
in our law againt double recovery for the
same act or omission which, obviously
stems from the fundamental rule against
unjust enrichment.21
2.2In an action EX CONTRACTU, the rules
are as follows:
2.2.a In a single or indivisible contract,
only one cause of action arises from a single
or several breaches. Example: In a contract
of sale of personal property by installments,
the remedies of the unpaid seller is
alternative, they are: (1) elect fulfillment (2)
cancel the sale, should the vendees failure
to pay cover two or more installments, and
18 Equitable Bank v CA, 425 SCRA 544

21 Joseph v Bautista, 170 SCRA 540
14
(3) foreclose the mortgage on the thing sold

if one has been constituted should the
vendee fail to pay two or more installments.
22
2.2.bIf the contract provides for several

obligations, each obligation not performed
gives rise to a single cause of action. But if
upon filing of the complaint several
obligations have already matured, all of
them shall be integrated into a single cause
of action. Example: Contract for delivery of
goods in part or over a period.
2.2.c If the contract is divisible in its
performance, and the future performance is
not yet due, but the obligor has already
manifested his refusal to comply, the
contract is entire and the breach is total.
Thus, there can only be one action.23
IF A PARTY HAS SEVERAL CAUSES OF
ACTION
He can join his causes of action 24 as he may
in one pleading assert, in the alternative or
otherwise, as many causes of action as he
may have against the opposing party,
subject to the following conditions:
1.party joining the causes of action shall
comply with the rule on joinder of parties,
which provides that : All persons in whom or
against whom any right to relief is respect to
or arising out of the same transaction is
alleged to exist, whether jointly, severally or
in the alternative, may except as otherwise
provided in these rules, join as plaintiffs or
be joined as defendants in one complaint,
where any question of law or fact common
to all such plaintiffs or to all such defendants
may arise in the action.25
2.joinder does not allow the inclusion of
special civil actions or actions governed by
special rules . Example: An action for a sum
of money cannot be joined with an action for
iIlegal detainer
3.where causes of action are between same
parties but pertain to different venues or
jurisdictions, joinder may be allowed in the
RTC provided one of the causes of action
falls within its jurisdiction and venue lies
therein.
22 Articles 1484,1486, NCC

23 Blossom & Co v Manila Gas Corporation, 55 Phil 226
15
4.when the claims in all causes of action are

principally for recovery of money, the
aggregate amount shall be the test of
jurisdiction.
EFFECT OF MISJOINDER
Upon motion of a party or on the initiative of
the court, a misjoined cause of action may
be severed and proceeded with separately.26
RULE 3PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL
ACTION
Only natural or juridical persons or entitles
authorized by law may be parties in a civil
action.27 They are called: PLAINTIFF he is
one who has interest in the subject of the
action and obtaining the relied demanded.
He may be the claimant in the original
complaint, the counter-claimant in the
counter claim, or cross-claimant in a crossclaim or the third party plaintiff and the
DEFENDANT he is one who has an
interest in the controversy adverse to the
plaintiff. He may be the original defending
party, the defendant in a counter-claim, or
cross-defendant in a cross-claim.
For ready reference, a COUNTER-CLAIM
is any claim which a defending party may
have against an opposing party.28A CROSSCLAIM is a claim by one party against a coparty arising out of the transaction or
occurrence that is the subject matter either
of the original action or of a counter-claim
therein.29A THIRD PARTY CLAIM is a claim
that a defending party may, with leave of
court, file against a person not party to an
action
for
contribution,
indemnity,
subrogation or any other relief, in respect to
his opponents claim.30
1.The state or any of its political
subdivisions, while considered as juridical
entities, they can sue but as a general rule,
they cannot be sued without its consent.

27 Supra,,Section 1, Rule 3
16
2.
A foreign corporation cannot be a
plaintiff in suit when it is transacting
business in the Philippines without a license.
3.Entities authorized by law are recognized
labor organizations and entities without legal
personality referring to 2 or more persons
not organized as an entity with juridical
personality enter into a transaction, they
may be sued under the name by which they
are generally or commonly known but in
their answer to the complaint, their names
and addresses must be revealed.31
4.A sole proprietorship may not be a party
as it is neither a natural, juridical or entity
allowed or authorized by law. If one sues as
such, the action may be dismissed on the
ground of lack of capacity to sue. It does not
possess a juridical personality separate and
distinct from the personality of the owner of
the enterprise.32It cannot sue or file or
defend an action in court.33
PARTIES IN INTEREST
A real party in interest in the party who
stands to be benefited or injured by the
judgment or party entitled to the avails of the
suit. UNLESS OTHERWISE AUTHORIZED
BY LAW OR THE RULES all actions must
be prosecuted or defended in the name of
the real party in interest.34
1.A real party in interest-plaintiff is one who
has a legal right, while a real party in
interest-defendant is one who has a
correlative obligation, whose act or omission
violates the legal rights of the former.35
2.WHEN A SUIT IS NOT BROUGHT IN THE
NAME OF THE REAL PARTY IN
INTEREST,it may be dismissed on the
ground that the complaint states no cause of
action.36 Note that the dismissal is not due to
lack of or no legal capacity to sue nor lack of
legal personality, as the latter is not ground
for dismissal for dismissal under the 1997
Rules of Civil Procedure.
2.1It states
BECAUSE
NO
IT
CAUSE OF ACTION
IS
NOT
BEING

32 Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA
763
33 Juasing Hardware v Mendoza, 115 SCRA 783
35 Gan Hock v. Court of Appeals, 197 SCRA 223
36 Tankiko v Cesar, 302 SCRA 559
17
PROSECUTED IN THE NAME OF THE

REAL PARTY IN INTEREST.
2.2
LACK OF LEGAL CAPACITY TO
SUE means that the plaintiff is not in
exercise of his civil rights, does not have the
necessary qualification to appear or does
not have the character or representation he
claims. Example: Trustee or Minor, AS
DISTINGUISHED FROM LACK OF LEGAL
PERSONALITY means that the plaintiff is
not the real party in interest. Dismissal is
based on the fact that the complaint states
no cause of action
3.Legal standing means a personal and
substantial interest in the case such that the
party has sustained or will sustain direct
injury as a result of the act being challenged.
The term interest is material interest, an
interest in issue, and to be affected by the
decree, as distinguished from mere interest
in the question involved, or a mere incidental
interest. Moreover, the interest must be
personal and not one based on a desire to
vindicate the constitutional right of some
third or unrelated party.
CLASSIFICATION OF REAL PARTIES IN
INTEREST
1.INDISPENSABLE PARTY
is a party
without whom no final determination can be
had of an action.37 They are those with such
an interest in the controversy that a final
decree would necessarily affect their rights,
so that the courts cannot proceed without
their presence. Example: owners of property
over which reconveyance is asserted are
indispensable parties without whom no relief
is available and without whom the court can
render no valid judgment.38
1.1Without the presence of indispensable
parties to the suit, the judgment of the court
cannot attain real finality.39
2. NECESSARY PARTY is a party who is
not indispensable but who ought to be joined
as a party if complete relief is to be
accorded as to those already parties or for a
complete determination or settlement of the
claim subject of the action.40 A necessary
partys presence is necessary to adjudicate
the whole controversy but whose interests

38 Valenzuela v Court of Appeals, 363 SCRA 779
39 Domingo v Scheer, 421 SCRA 468
18
are so far separable that a final decree can

be made in their absence without affecting
them. Example: If the plaintiff only sues a
one of his joint debtors, the joint debtor who
is not sued is merely a necessary party. As a
consequence, the plaintiff only recovers the
share of the debt due from the joint debtor
defendant.
2.2A necessary party is to be impleaded
a party for complete determination of
action, while an indispensable party
impleaded for a final determination of
action.
as
an
is
an
PERSONS WHO CAN SUE IN BEHALF OF

A REAL PARTY IN INTEREST
The following may sue in behalf of a real
party in interest
1.REPRESENTATIVES- actions are allowed
to be prosecuted / defended by a
representative or by one acting in a fiduciary
capacity BUT the BENEFICIARY SHALL BE
INCLUDED IN THE TITLE and shall be
deemed to be the REAL PARTY IN
INTEREST.41
1.1Examples of representatives are: (1)
trustee of an express trust (2) a guardian,
executor or administrator, or (3) a party
authorized by law or the Rules.
1.2
An agent acting in his own name
and for the benefit of an unknown principal
may sue or be sued without joining the
principal except when the contract involves
things belonging to the principal. This refers
to an AGENCY WITH AN UNDISCLOSED
PRINCIPAL.42
2.HUSBAND AND WIFE- as a general rule
shall sue or be sued jointly, except as
provided by law.43 Non joinder of partys
husband is not fatal. It is a mere formal
defect.44
2.1They are required to sue and be sued
jointly as they are joint administrators of the
Absolute Community or the Conjugal
Partnership.45

42 Article 1883, NCC
44 Miranda v Besa, 435 SCRA 532
45 Articles 96 and 124, Family Code
19
2.2The exceptions provided by law are when

the property relations of husband and wife
are governed by the rules on separation of
property46 or one is disposing of exclusive
property.47
2.3NOTE that the legal provision against the
disposition of conjugal property by one
spouse without the consent of the other has
been established for the benefit, not of third
persons, but only for the spouse for whom
the law desires to save the conjugal
partnership from damages that might be
caused. No other party can avail of the
remedy other than the aggrieved spouse.48
3.MINORS OR INCOMPETENTS- may sue
or be sued with the assistance of father,
mother, guardian or, if he has none, a
guardian ad litem.49
3.1A guardian ad litem is a special guardian
appointed by the court in which a particular
litigation is pending to represent or assist a
minor or an incompetent person involved in
or has interest in the property subject of
litigation. His status as such exists only in
that particular litigation in which the
appointment occurs.
3.2
Note that the appointment of a
guardian ad litem may occur in the following:
for minor heirs when substituting for a
deceased
party50,
incompetency
or
incapacity of a party51, service of summons
on a minor or incompetent52, and when the
best interest of the child require it.53
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting
several parties in a single suit either as
plaintiffs or defendants.
1.The rule on joinder of parties states that:
All persons in whom or against whom any
right to relief in respect to or arising out of
the same transaction is alleged to exist,
whether jointly, severally or in the
alternative, may except as otherwise
provided in these rules, join as plaintiffs or
46 Article 145, Family Code

48 Villaranda v Villaranda, 423 SCRA 571
20
be joined as defendants in one complaint,

where any question of law or fact common
to all such plaintiffs or to all such defendants
may arise in the action.54
2.Joinder of Parties, as a rule, is permissive
when there is a question of law or fact
common to all the plaintiffs or defendants.
This means that the right to relief or to resist
the action arises out of the same transaction
or event or series of transactions or events.
Example: action by passengers of a
common carrier for injuries sustained in an
accident, there is no community of interest,
the extent of the interest is limited to the
extent of damages being claimed by each.
3.It becomes compulsory when the parties
to be joined are indispensable parties.55
4.The exception to compulsory joinder of
parties is when the subject of the action is
proper for a class suit. The subject matter of
the controversy is proper for a class suit
when it is one of common or general interest
to many persons so numerous that it is
impractical to join all as parties.56 All the
parties who are interested in the action as
plaintiffs or defendants are all indispensable
parties but not all need to be joined.
4.1The requisites of a class suit are:
1.The subject matter of the controversy is
one of common or general interest to many
persons. There must be an INDIVISIBLE
RIGHT AFFECTING MANY INDIVIDUALS
WHOSE PARTICULAR INTEREST IS OF
INDETERMINATE
EXTENT
AND
IS
INCAPABLE OF SEPARATION. This
requires that the benefit to one is a benefit to
all. Examples: stockholder derivative suits
and taxpayer suits.
1.1
Improper for a class suit is when a
claimant is interested only in collecting his
claims and has no concern in protecting the
interests of the others.57
2.The parties affected are so numerous that
it is impracticable to join all as parties
3.The parties bringing or defending the class
suit are found by the court to be sufficiently

57 Cadalin v POEA Administrator, 238 SCRA 721
21
numerous and representative as to fully

protect the interest of all.
To comply with the 2nd and 3rd requisite, the
Complaint most allege: (1) existence of a
subject matter which is of common or
general interest to many persons, and (2)
existence of a class and the number of
persons belonging to that class
4.2
It can be brought by the plaintiffs as
a class or may be filed against the
defendants as a class
4.3
Any party in interest shall have the
right to intervene to protect his individual
interest.
4.4
The general rule, is that the party
bringing the suit in his own name and that of
others similarly situated has the right to
control the suit, BUT, it shall not be
dismissed or compromised without the
approval of the court.58
5.If there is a failure to join an indispensable
party, the court must order the plaintiff to
amend his complaint for the purpose of
impleading the indispensable party. If the
plaintiff fails, refuses or the party cannot be
sued because he is a non-resident
defendant in a personal action, the
complaint must be dismissed.59
6.If there is a failure to join a necessary
party, the pleader in the pleading in which a
claim is asserted without joining a necessary
party shall (1) set forth the name of the
necessary party, if known and (2) state the
reason for omission. If the court finds the
reason for the omission is not meritorious, it
may order the inclusion of the omitted
necessary party if jurisdiction over his
person is obtained.
If pleader fails to comply with order for
inclusion without justifiable cause, it shall be
deemed a waiver of the claim against the
party, BUT the non-inclusion does not
prevent the court from proceeding in the
action, and the judgment therein shall be
without prejudice to rights of such necessary
party.60

59 NDC v Court of Appeals, 211 SCRA 422
22
7.MISJOINDER OR NON JOINDER NOT A

GROUND FOR DISMISSAL.Parties may be
dropped or added by order of the court on
motion of any party or on its own initiative at
any stage of the action and on such terms
that are just. Any claim against a misjoined
party may be severed and proceeded
against separately.61
NOTE HOWEVER that if the party to be
joined is indispensable and the plaintiff fails
or refuses or such party cannot be sued
the complaint must be dismissed (NDC v.
CA 211 S 422)
8.IF A PARTY TO BE JOINED AS A
PLAINTIFF DOES NOT CONSENT OR
CANNOT BE OBTAINED he may be made a
defendant and the reason therefor shall be
stated in the complaint.62
DISTINCTIONS BETWEEN
Indispensable party
Necessary party
if not joined action cannot proceed
not joinedaction proceeds judgment
judgment is not valid
voted but does not resolve the contro-
if
is
versy.
-non joinder dismissed
non joinder waiver of claim
WHO WILL PLAINTIFF SUE IF HE IS

UNCERTAIN
If he (plaintiff) uncertain against who of
several persons he is entitled to relief HE
MAY JOIN ANY OR ALL OF THEM AS
DEFENDANTS in the ALTERNATIVE
although a right to relief against one may be
inconsistent with a right of relief against the
other.63
EXAMPLE: An action where the owner of
goods is not sure whether they were lost in
transit or while it was on deposit in the
warehouse of the arrastre operator He
may sue the shipper or the operator of the

23
warehouse in the ALTERNATIVE although

the right against the SHIPPER is based on
ADMIRALITY, while that against the
OPERATOR is based on CONTRACT.
Action for damages arising from loss of
goods due to a collision.
IF THE IDENTITY/NAME
DEFENDANT IS UNKNOWN
OF
THE
He may be sued as the unknown owner,

heir, devisee or by such other designation as
the case may require WHEN THE
IDENTITY OR NAME IS DISCOVERED
the
pleading
must
be
amended
accordingly.64 EXAMPLE: Action to recover
real property from several unknown heirs of
a common ancestor.
EFFECT OF DEATH OF A PARTY (Sec 16)

When a party dies and his claim is not
extinguished it shall be the duty of counsel
to inform the court within 30 days after
such death of the : (1) FACT OF DEATH (2)
NAME AND ADDRESS OF LEGAL
REP/REPS
IF NOT, Counsel may be subject to
disciplinary action.
ONCE NOTICE IS GIVEN The COURT
SHALL ORDER THE LEGAL REP/S TO
APPEAR AND BE SUBSTITUTED WITHIN
30 DAYS FROM NOTICE.
Note: Heirs may be allowed to be
substituted for the deceased without
requiring the appointment of an executor or
administrator and the court can appoint a
guardian ad litem for minor heirs.
IF LEGAL REP/S DO NOT APPEAR OR
NOTICE IS NOT GIVENThe court can order the opposing party,
within a specified time to procure the
appointment of an executor or administrator
to appear for and in behalf of the deceased
Expenses if paid by opposing party can
be recovered as costs
IF DEATH/SEPARATION OF A PUBLIC
OFFICER (Sec 17)
If sued in his public capacity and he dies,
resigns or otherwise ceases to hold office

24
The action may be MAINTAINED AND

CONTINUED by or against his successor, if
within 30 days after successor assumes the
office or such time as granted by the court
it is SATISFECTORILY SHOWN by a party
that there is a substantial need for
continuing and maintaining it and that the
successor ADOPTS or CONTINUES OR
THREATENS to adopt or continue the action
of his predecessor.
BEFORE SUBSTITUTION IF NO
EXPRESS ASSENT, the public officer shall
be given reasonable notice of the application
and be accorded an opportunity to be heard.
EFFECT OF DEATH OF DEFENDANT ON
A CONTRACTUAL MONEY CLAIM
If the action is for the recovery of money that
arises from a CONTRACT, express or
implied, and the defendant dies BEFORE
ENTRY OF A FINAL JUDGMENT, the RULE
is it will not be dismissed but shall be
allowed to continue until entry of judgment, a
favorable judgment obtained shall be
enforced in the manner provided by the
rules for prosecuting claims against the
ESTATE OF A DECEASED PERSON.65
1.RULES TO BE OBSERVED IN CASE OF
DEATH OF OBLIGOR are: (a) If he dies
before the action is filed, a money claim
must be filed in the testate or intestate
proceedings (b) if he dies during the
pendency of an action, the action continues
until entry of judgment, and the judgment
claim is then filed with the testate or
intestate proceedings. It must be noted that
a money claim judgment need not be proven
because it is conclusive. NOTE FURTHER,
that if property has been levied upon before
death. It can disposed of in the manner
provided by the rules on execution of
judgments because it has already been
segregated from estate. If there is a
deficiency, a money claim can be filed
subsequently.
2.IF IT DOES NOT ARISE FROM

CONTRACT,
RE:
CLAIMS
FOR
RECOVERY, ENFORCEMENT OF A LIEN
OR DAMAGES DUE TO TORT, the rules
are: (a) if he dies before the action is filed, it
may be filed against the executor or
administrator (b) if already filed , it continues

25
to final judgment and may be executed on

as against the executor or administrator.66
3.In a case for ejectment where the
defendant died before the case could be
decided and without being able to testify on
his counterclaim for damages. The trial court
dismissed the ejectment suit and ordered
the plaintiff to pay the wife of the defendant
moral damages and attorneys fees. The
plaintiff contends on appeal that the
counterclaim should have been dismissed
pursuant to Rule 3, Section 21 (old rule).
HELD: The argument is misplaced,
defendant was the plaintiff in his
counterclaim, the rule is not applicable as it
pertains to a defendant who dies before final
judgment. In this case, it is the plaintiff who
died and all that is required is a timely
motion for substitution. No recovery though
can be allowed as no evidence was
adduced.67
4.If a claim involves a conjugal debt that was
not brought and one of the spouses die
before filing, the claim must be brought in
the testate or intestate proceedings of the
deceased spouse.68 ( Alipio v. CA, GR.
134100, 9-29-2000)
5.IF IT IS THE PLAINTIFF WHO DIES: (a) if
action is purely personal to him, the action is
abated (b) if action is not purely personal, it
continues but counsel must give notice of
death.
EFFECT
INCOMPETENCY/INCAPACITY
ACTION
ON
ON
AN
1.The court, upon motion with notice, may

allow the action to be continued by or
against the incompetent or incapacitated
person assisted by his guardian or guardian
ad litem.69
EFFECT OF A TRANSFER OF INTEREST
PENDING LITIGATION
1.The
action may be continued by or
against the original party, unless the court
upon motion directs the person to whom

67 UST v Court of Appeals, GR No. 124250, October 18, 2004
68 Alipio v Court of Appeals, GR No. 134100, September 29, 2000
69 Supra, Section 3 and 18, Rule 3
26
interest is transferred to be substituted in the

action or joined with the original party.70
2.The rule refers to a transfer pendente lite.
The transferee pendente lite shall stand
exactly in the shoes of the transferor.
Consequently, any judgment will be binding
upon him.
3.A transferee pendent elite does not have
to be included or impleaded by name in
order to be bound by the judgment because
the action or suit may be continued for or
against the original party or the transferor
and still binding on the transferee.71
4.In a case on appeal where the transferee
pendente lite did not appeal, he
nevertheless was benefited by the appeal of
the transferor pendent elite.72
INDIGENT/PAUPER LITIGANT
1.An indigent or pauper litigant Is one who
litigates on a claim that he has no money, or
property sufficient and available for food,
shelter and basic necessities for himself and
his family.73
2.An indigent or pauper litigant must file an
ex-parte application for authority to litigate
as an indigent that is too be resolved by the
court after hearing. Attached to the motion is
an affidavit attesting to the fact that he does
not earn a gross income of PHP 4000.00 in
Metro-Manila, or PHP 3,000.00 elesewhere
and has no real property with a fair market
value of PHP 50,000.00. Said affidavit must
be supported by another affidavit of a
disinterested person. Note that recently, an
indigent litigant has been defined as one (a)
whose gross income and that of their
immediate family does not exceed an
amount double the monthly minimum wage
of an employee and (b) who does not own
real property with a fair market value as
stated in the current tax declaration of more
than PHP 300,000.00. If there is any falsity
in the affidavit or that of the disinterested
person, it shall constitute sufficient ground to
dismiss the action or strike out the pleading,
without prejudice to whatever criminal
liability is incurred.74

71 State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
72 Jocson v Court of Appeals, GR 88297, March 22, 1990
73 Supra, Section 21
74 Section 19, Rule 141, Rules of Court
27
3.The effect of being allowed to litigate as an

indigent or pauper litigant are: (1) exemption
from the payment of docket fees and other
lawful fees (2) exemption from TSN fees
which the Court may order to be furnished
BUT, the amounts due shall be a LIEN on a
favorable judgment unless the Court orders
otherwise.
4.The allowance to litigate as an indigent or
pauper litigant can be contested at any time
before judgment is rendered by any adverse
party. If found to be meritorious, the proper
fees are assessed and are to be collected.
IF NOT PAID, execution shall issue on the
payment thereof without prejudice to other
sanctions.
5.On appeal, a motion to litigate as an
indigent or pauper litigant is allowed.
WHEN
SOLICITOR
REQUIRED TO APPEAR
GENERAL
IS
In any action involving the validity of any

treaty, law, ordinance, executive order,
presidential decree, rule or regulation, the
court, in its discretion, may require the
appearance of the SOLGEN, who may be
heard in person or through a representative
duly designated by him.75
RULE 4 VENUE OF ACTIONS
1.Venue is the place where the action is to
be commenced and tried. It has also been
defined as the proper location for the trial of
a case.
2.Distinguishing it from jurisidiction: (a)
venue is the
place where action is
commenced and tried, jurisdiction is the
authority of a court to hear
and
decide the action (b) venue may be waived,
jurisdiction over the subject matter cannot
be waived, but that over the person can be
waived (c) venue may be the subject of a
written agreement, jurisdiction cannot be
subject of a written agreement (d) a court
cannot motu-propio
dismiss on improper
venue, while when there is no jurisdiction, a
court can motu-propio dismiss the action.
3.The following are the rules on venue:
3.1
IF IT IS A REAL ACTION or one that
affects title to or possession of real property,
or interest therein, it shall be commenced

28
and tried in the proper court which has

jurisdiction over the area wherein the real
property involved or a portion thereof is
situated. Forcible Entry and Detainer actions
are to be commenced and tried in the
Municipal Trial Court which has jurisdiction
over the area wherein the real property
involved, or any portion thereof, is situated.76
2.IF IT IS A PERSONAL ACTION or one that
is brought for the recovery of personal
property, for the enforcement of a contract or
recovery of damages for its breach of for the
recovery of damages due to injury to person
or property or such all other actions shall be
commenced or tried where the plaintiff or
ANY OF THE PRINCIPAL PLAINTIFFS
reside or any of the defendants reside, or if
a NON-RESIDENT DEFENDANT, where he
may be FOUND at the election of the
plaintiff77
2.1RESIDE means the place of abode,
whether permanent or temporary as
distinguished from domicile fixed
permanent residence, where if one is absent
he intends to return.
2.2
Is the complaint for cancellation of a
real estate mortgage with damages, a real
or personal action? It is a real action, the
controlling factor in determining venue of
such a case is the primary objective for
which it is filed. An action for cancellation of
a real estate mortgage is necessarily an
action affecting title to real properties since
the primary objective is to recover the
properties that the bank had foreclosed on.78
2.3In personal actions, it is the residence of
the proprietor, not the business address of
the sole proprietorship that is considered to
determine venue as a sole proprietorship
has no legal personality.79
2.4R engaged the services of L as geodetic
surveyor to subdivide two parcels of land
located in Batangas. As payment for Ls
services, R agreed to given him one lot.
After the survey, R delivered to L possession
of one lot as payment for his services.
However, R failed to deliver to L the tile of
the lot. L, who resides in Quezon City, filed
with the RTC of Quezon City an action

78 Go v UCPB, GR No. 156187, November 11, 2004
79 Mangila v Court of Appeals, 387 SCRA 162
29
against R for specific performance to compel

R to deliver to him the title to the lot. R
moved to dismiss on the ground of improper
venue, contending that since his is a real
action, the complaint must be filed in the
RTC of Batangas where the lot is situated. Is
R correct? No, R is not correct. This action
for specific performance is a personal
action. The venue therefore, was properly
laid in Quezon City where the plaintiff
resides. It is not a real action because
plaintiff L is not seeking the recovery of the
lot as he is already in possession thereof.
He is merely asking the delivery of the title
to him, which is a personal action.80
3.IF DEFENDANT IS A NON-RESIDENT or
one who does not reside and is not found in
the Philippines, and the action affects the
personal status of the plaintiff , or any
property of said defendant located in the
Philippines, the action may be commenced
and tried in the court of the place where the
plaintiff resides, or where the property or any
portion thereof is situated or found.81
3.1The provision refers to a Quasi in Rem
action in which an individual is named as a
defendant, and the purpose of the action is
to subject his interest therein to an obligation
or lien burdening the property.
3.2
A non-resident alien who cannot be
found can sue and be sued as by filing his
complaint, he submits to the jurisdiction of
the Court, even if he has never been able to
enter the Philippines.82 (Dilweg vs. Philipps,
12 S 243)
THE RULES
APPLICABLE
ON
VENUE
ARE
NOT
The rules on venue will not apply if: (1) in

cases where a specific rule or law provides
otherwise (2) Where the parties have validly
agreed in writing BEFORE FILING OF THE
ACTION ON EXCLUSIVE VENUE83
80 Dimo Realty & Development, Inc. et al. v. Dimaculangan, G.R. NO. 130991, March 11, 2004

82 Dilweg v Philipps, 12 SCRA 243
30
1.EXAMPLES:
(1)
Quo
Warranto
proceedings may be instituted in the
Supreme Court, Court of Appeals or the
Regional Trial Court exercising territorial
jurisdiction over the area where the
respondent/s reside. If the Solicitor General
commences the action, he may do so in the
Supreme Court, Court of Appeals or the
Regional Trial Court of Manila.84 The criminal
or civil action for damages due to libel can
only be instituted either in Regional Trial
Court of the place where he holds office or
in the place where the alleged libelous
article was printed and first published; and if
the offended parties are private individuals,
the venue shall be in the Regional Trial
Court of the place where the libelous article
was printed and first published or where any
of the offended parties actually resides at
the time of the commission of the offense85
or 2.Art 360, RPC. Libel Civil and Criminal
action to be distributed in the RTC where
public official holds office or where libelous
article was first printed or published (3)
Intracorporate Controversies are to be filed
in the Regional Trial Court where principal
office corporation is located.86
2.Any agreement as to venue must be in
writing and for exclusivity, the intent must be
clear, otherwise, it will be interpreted to allow
for an additional venue.
2.1
The freedom of the parties to
stipulate on the venue is however subject to
the usual rules on contract interpretation.
Where the provision appears to be onesided as to amount to a contract of
adhesion, the consent of the parties thereto
may well be vitiated and the venue
stipulation will not be given effect.87
2.2Venue as stipulated in the promissory
note shall govern notwithstanding the
absence of a stipulation as to venue in an
accompanying surety agreement as the
latter can only be enforced in conjunction
with the former.88
HOW VENUE IS QUESTIONED
Venue may be questioned in (1) in a motion
to dismiss89, or (2) in an answer by way of

85 Article 360, Revised Penal Code
86 RA 8799, and A.M. 01-02-04-CS, March 13, 2001
87 Sweet Lines v Teves, 83 SCRA 361
88 Philippine Bank of Communications v Lim, 455 SCRA 714
89 Supra, Section 1 (c) ,Rule 16
31
an affirmative defense90. If NOT SO MADE,

it is deemed waived.
RULE 5-UNIFORM PROCEDURE IN TRIAL
COURTS
The procedure in Municipal Trial Court shall
be the same as in the Regional Trial Court,
except when (1) a provision applies only,
expressly or impliedly, to a particular court,
or (2) In civil cases covered by the Rules on
Summary Procedure
1.An example of a provision that applies
only to a Municipal Trial Court is that which
refers to an appeal taken from an order of
the lower court dismissing the case without
trial on the merits.91
PROCEDURE
COURTS
IN
REGIONAL
TRIAL
RULE 6- KINDS OF PLEADINGS

PLEADING DEFINED is a written statement
of the respective claims and defenses of the
parties submitted to the court for appropriate
judgment.92
1.The pleadings that are allowed are: (a)
Claims of a party are asserted in the
complaint, counterclaim, cross-claim, 3rd
party complaint (4th..), or complaint in
intervention (2) Defenses of a party are
alleged in the answer to the pleading
asserting a claim against him (3) Reply to
the answer93
2.The specific KINDS OF PLEADINGS are:
(a) COMPLAINT, which is the pleading
alleging the plaintiffs cause of action or
causes of action. The names/residences of
the plaintiffs and defendants must be stated
in the complaint94 (b) ANSWER, which is a
pleading in which a defending party sets
forth his defenses95. Its essential purpose is
to secure joinder of the issues and not to lay
down evidentiary matter.96

96 Naga Development Corporation v Court of Appeals, 41 SCRA 105
32
2.1The following are the kinds of defenses 97

that may be interposed in an answer:
2.1.1NEGATIVE DEFENSE which is a
specific denial of a material fact or facts
alleged in the pleading of a claimant
essential to his cause/s of action. A specific
denial is made98 by: (a) Specifically denying
the material averment in the pleading of the
adverse party and setting forth the
substance of the matter upon which he
relies for such denial (b)Deny only a part of
the averment by specifying that so much of it
is true and deny the remainder (c)
Allegation of lack of knowledge or
information sufficient to form a belief as to
the truth of the material averment in the
pleading of the adverse party.
2.1.2 AFFIRMATIVE DEFENSE which is
an allegation of new matter, which although
hypothetically
admitting
the
material
allegations
in
the
pleading
would
nevertheless bar or prevent recovery. They
include fraud, statute of limitations, release,
payment, illegality, statute of frauds,
estoppel, former recovery, discharge in
bankruptcy, or any other matter by way of
confession and avoidance.
Any of the grounds for a motion to dismiss
may be pleaded as an affirmative defense.
He may then move for a preliminary hearing
as if a timely motion to dismiss has been
filed.99
NOTE that the rule that a defending party
who sets up an affirmative defense
HYPHOTHETICALLY
ADMITS
the
allegations does not apply if the defense set
up is any of the grounds for extinguishment
of the obligation. The EFFECT is that the
defending party is deemed to have admitted
the validity of the obligation, and if the
motion to dismiss is denied, what is left to be
proven is the fact of payment or nonpayment.
3.COUNTERCLAIM, which is any claim which a defending party may have against an opposing party.100
3.1KINDS OF COUNTERCLAIMS
COMPULSORY
(1) Arises out of or is connected
w/ the transaction or occurrence
constituting the subject matter of

33
the opposing partys claim

(2) barred if not set up in the
answer
(3) plaintiff need not answer
(4) if not answered no default
(5) does not require a certification
as to non-forum shopping
PERMISSIVE
1. does not arise out of or is not connected
with the transaction or occurrence constituting the subject matter of the opposing
partys claim
2. not barred even if not set up in the
answer
3. plaintiff must answer once docket fees are
paid
4. if not answered default lies
5. being an initiatory pleading it requires a
certification as to non-forum shopping
3.2
The
REQUISITES
OF
A
COMPULSORY COUNTER-CLAIM are:(a) It
arises out of or is necessarily connected
w/the transaction or occurrence that in the
subject matter of the partys claim (b)It does
not require for adjudication the presence of
3rd parties over whom the court cannot
acquire transaction (c) It must be cognizable
by the regular courts of justice (d) It must be
within the jurisdiction of the court both as to
amount and the nature thereof, except that
in an original action before the RTC,
counterclaim is considered compulsory
regardless of amount (e)
It
must
already be existing at the time defending
party files his answer (Rule 6, Sec. 7, Rule
11, Sec. 8)
See Reyes De leon v Del Rosario, 435
SCRA 232, test to determine whether
counterclaim is compulsory or not.
3.2.1 A compulsory counterclaim that is
not yet in existence at the time of the filing of
an answer may be presented or set-up by a
supplemental pleading before judgment.101
101 Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
34
3.2.2A compulsory counterclaim may

implead persons not parties to the original
complaint as their presence is required for
granting complete relief in the determination
of a counter-claim or cross claim, the court
shall order them brought in as defendants, if
jurisdiction over them can be obtained. 102
Summons must thus be served upon them
as they must answer the counterclaim as
they cannot rely on the rule that the
defendant in the counterclaim is deemed to
have adopted the allegations of the
complaint in his answer.103
3.3The REQUISITES OF A PERMISSIVE
COUNTERCLAIM
are: (a) It does not
require for adjudication the presence of 3rd
parties over whom the court cannot acquire
jurisdiction (b) It must be cognizable by the
regular courts of justice (c) It must be within
the jurisdiction of the court both as to
amount and the nature thereof, except that
in an original action before the RTC,
counterclaim is considered compulsory
regardless of amount
4.A CROSS-CLAIM is a claim by one party
against a co-party arising out of a
transaction/occurrence that is the subject
matter either of the original action or the
counter-claim.
It may include a claim that a party against
whom it is asserted is or may be liable to the
cross claimant for all or part of a claim
asserted in the action against the crossclaimant. 104
NOTE that counterclaims may be asserted
against an original counter-claimant and that
cross-claims may also be filed against an
original cross-claimant.105
5.A REPLY is a pleading, the office or
function of which is to deny or allege facts in
denial or avoidance of new matters alleged
by way of defense in the answer and
thereby join or make an issue as to such
matters.
5.1
If a reply is not filed, all new matters
are deemed controverted. If plaintiff wishes
to interpose any claims arising out of the

103 Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
35
new matters so alleged, such claims shall be

set forth in an amended/supplemental
complaint.
5.2
If the defense is based on an
actionable document, it must be replied to,
otherwise it is admitted.
6.A 3RD PARTY COMPLAINT is a claim that
a defending party may, WITH LEAVE OF
COURT, file against a person, NOT A
PARTY, called 3RD party defendant. FOR
CONTRIBUTION
INDEMNITY,
SUBROGATION, OR ANY OTHER RELIEF
in respect of his opponents claim.106
6.1EXAMPLES:
CONTRIBUTION- A sues X for collection of
money based on a promissory note signed
jointly and severally with Y. X may file a
complaint against Y for contribution
INDEMNITY S, as surety, is sued for
recovery of the obligation of M. S may file a
complaint against M for whatever amount he
may be adjudged to pay as surety
SUBROGATION X, as lessor, sues Y, as
lessee for repairs. Y may file a complaint
against his sub-lessee who filed to comply
with the obligation to repair
OTHER RELIEF X bought land from Y.
Later X is sued by A for recovery of the land.
X may file a complaint against Y for his
warranty against eviction.
6.2
An ANSWER TO 3RD PARTY
COMPLAINT may include (a)DEFENSES
COUNTERCLAIMS OR CROSS-CLAIMS
including such defenses that the 3RD PARTY
PLAINTIFF may have against the original
plaintiffs claim, and (b) IN PR0PER CASES,
he may assert a counter-claim against the
ORIGINAL PLAINTIFF in respect to his
claim against the 3rd party plaintiff.107
EXAMPLE: a REINSURER (3 rd party
defendant) may set up in his answer the
defense alleged by defendant insurer that
loss is caused by plaintiff insured. However
3rd party defendant cannot file a
counterclaim against the original plaintiff as
there is no privity of contract.
WHEN NEW PARTIES CAN BE BROUGHT

36
If the presence of others besides the parties

is required for the granting of full relief in the
determination of a counter-claim or crossclaim the court shall order them to be
brought in as defendants, if jurisdiction over
them can be obtained108.
RULE 7 PARTS OF A PLEADING

The PARTS OF A PLEADING of a pleading
are CAPTION, BODY, SIGNATURE,
ADDRESS,
VERIFICATION,
AND
CERTIFICATION
AGAINST
FORUM
SHOPPING.
1. CAPTION it sets forth the (a) NAME OF
THE COURT (b) THE TITLE OF THE
ACTION- this includes an indication of the
NAME of the PARTIES, who are REQUIRED
to be NAMED in the ORIGINAL
COMPLAINT OR PETITION. In subsequent
pleadings, the name of the first party on
each side is sufficient with an appropriate
indication when there are other parties.
NOTE: In an appeal, Sections 5 and 6, Rule
41 requires all names to be indicated in the
NOTICE OF APPEAL and RECORD ON
APPEAL (c) DOCKET NUMBER , if one has
already been assigned.109
2.BODY - sets forth its designation, the
allegations or a partys claims / defenses,
the relief prayed for, and the date of the
pleading
2.1
The allegations in the body shall be
divided unto paragraphs so NUMBERED to
be readily IDENTIFIED. Each shall contain
STATEMENT OF A SINGLE SET OF
CIRCUMSTANCES so far as it can be done
with convenience. A paragraph may be
referred to by its number in all succeeding
pleadings.
2.2
Headings must be used when 2 or
more causes of action are joined, the
statement of the first shall be prefaced by :
FIRST CAUSE OF ACTION etc. WHEN: 2 or
more paragraphs are addressed to one or
several causes of action in the complaint,
they shall be prefaced by: ANSWER TO
THE FIRST CAUSE OF ACTION and so
on. If it addresses several causes of action,
the
paragraphs
shall
be
prefaced
accordingly.

37
2.3
Relief should be specified but it may
add a general prayer for such further or
other relief as may be deemed just and
equitable.
2.4
Date every pleading is required to
be dated.
3.SIGNATURE AND ADDRESS- every
pleading must be signed by the party OR
counsel representing him, stating in either
case his ADDRESS which should not be a
post office box.
3.1
NOTE the word OR because a party
may litigate / defend PRO SE or for himself
without aid or counsel. This applies even if a
party is already represented by counsel.
3.2
AN ADDRESS IS REQUIRED for
service of pleadings or judgments
3.3
SIGNIFICANCE OF COUNSELS
SIGNATURE it is a CERTIFICATE BY
HIM THAT: (a) He has read the pleading
(b)To the best of his information, knowledge
and belief there is good ground to support it
(c)
It is not interposed for delay
3.4
IF PLEADING IS UNSIGNED It
produces NO LEGAL EFFECT. However, the
court in its discretion can allow the
deficiency to be remedied if: it SHALL
APPEAR THAT THE SAME IS DUE TO
INADVERTENCE AND NOT INTENDED
FOR DELAY
3.5
COUNSEL
SUBJECT
TO
DISCIPLINARY ACTION IN RELATION TO
the Rule when (a) He deliberately files an
unsigned pleading (b) Signs a pleading in
violation of the Rule (c) Alleges scandalous
or indecent matter (d) Fails to promptly
report to the court a change in his address
4.VERIFICATION is an affidavit that the
affiant has read the pleading and that the
allegations
therein
are
TRUE
and
CORRECT
of
his
PERSONAL
KNOWLEDGE AND/OR IS BASED ON
AUTHENTIC RECORDS.
4.1
IF A PLEADING REQUIRED TO BE
VERIFIED CONTAINS A VERIFICATION
BASED ON INFORMATION AND BELIEF,
OR UPON KNOWLEDGE INFORMATION
AND BELIEF, OR LACKS A PROPER
VERIFICATION, it shall be treated as an
UNSIGNED PLEADING.
38
4.2
A pleading need not be verified,
except when otherwise specifically required
by LAW OR RULES110.
4.3A VERIFICATION IS REQUIRED under
rules governing (a) cases covered by the
Rules on Summary Procedure (b) Petition
for relief from judgment / order 111 (c) Petition
for review112 (d) Appeal by certiorari 113
(e)Petition for annulment of judgment 114 (f)
Injunction115
(g)
Receivership116
(h)
Support117 (i) 69) Certiorari, Prohibition or
Mandamus118 (j) Quo Warranto119 (k)
Expropriation120
(l) Forcible Entry /
Detainer121 (m) Indirect Contempt 122
4.4An improper verification is cured by
amending the pleading with the CORRECT
VERIFICATION
5.CERTIFICATION
AGAINST
FORUM
SHOPPING is executed by the plaintiff or
principal party who shall certify under OATH
in the COMPLAINT or INITIATORY
PLEADING ASSERTING A CLAIM OR
RELIEF
OR
IN
A
SWORN
CERTIFICATION ANNEXED THERETO
AND
SIMULTANEOUSLY
FILE
THEREWITH: (1)
That he has not
therefore commenced any action or filed any
claim involving the same issues in any
COURT, TRIBUNAL OR QUASI-JUDICIAL
AGENCY, AND to the best of his knowledge,
no such other claim or action is pending
therein (2) If there is such other pending
action or claim, a complete statement of the
present status thereof (3)
That if he
should thereafter learn that the same or
similar action has been filed or is pending,
he shall report that fact within 5 days
therefrom to the court wherein his

118 Supra, Sections 1,2,3, Rule 65

39
complaint / initiatory pleading has been

filed.123
5.1The lack of a certification is not curable
by amendment, but such shall be cause for
dismissal of the complaint. The dismissal
shall be without PREJUDICE unless
otherwise provided, upon motion and after
hearing.124
5.2The NON-COMPLIANCE WITH ANY OF
THE UNDERTAKINGS OR SUBMISSION
OF A FALSE CERTIFICATE shall constitute
indirect contempt without prejudice to
corresponding administrative and criminal
actions. PROVIDED, that if the acts of the
party or counsel clearly constitute WILLFUL
and DELIBERATE forum shopping, it shall
then be ground for SUMMARY DISMISSAL
WITH PREJUDICE, and shall constitute
DIRECT CONTEMPT as well as cause for
administrative sanctions.
5.3
Forum Shopping exists when as a
result of an adverse opinion in one forum, a
party seeks a favorable opinion, other than
by appeal or certiorari, in another, or when
he institutes two or more actions or
proceedings grounded on the same cause,
on the gamble that one or the other court
would make a favorable disposition. The
most important factor in determining the
existence of forum shopping is the vaxation
caused the courts and parties-litigants by a
party who asks different courts to rule on the
same or substantially the same reliefs.125
5.3.1It also occurs when a party attempts to
have his action tried in a particular court or
jurisdiction where he feels he will receive the
most favorable judgment.
5.3.2 It has been said to exist also where
the elements of litis pendentia are present or
where a final judgment in one case will
amount to res judicata in another. Hence,
the following requisites concur: (a) identity of
parties, or at least such parties represent the
same interests in both actions (b)
identity of rights asserted and relief prayed
for, the relief being founded on the same
facts, and (c) identity of the two preceding
particulars is such that any judgment
rendered in the other action will, regardless,
of which party is successful, amount to res
judicata in the action under consideration. 126

124 Castillo v Court of Appeals, 426 SCRA 369
125 Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
126 TADI v Solilapsi, 394 SCRA 269
40
5.4The purpose of the certification against

forum shopping is to prohibit and penalize
the evils of forum shopping. 127 Forum
Shopping is a deplorable practice because it
results in unnecessarily clogging of the
already heavily burdened docket of the
courts.128
5.5The execution of the certification is
required to be accomplished by the
petitioner himself as it is the petitioner
himself who has actual knowledge of
whether or not he has initiated similar
actions or proceedings in different courts or
agencies.
5.5.1 If there are several plaintiffs, the
general rule is that all of them must sign
BUT IT MUST BE NOTED that there is
jurisprudence to the effect that: (1) the
execution by one of the petitioners or
plaintiffs in a case constitutes substantial
compliance where all the petitioners, being
relatives and co-owners of the properties in
dispute, share a common interest in the
subject matter of the case.129 (2) the case is
filed as a collective raising only one cause of
action or defense130 (3) the signing by 1
spouse substantially complies as they have
a common interest in the property131 or is
signed by husband alone is substantial
compliance as subject of case is recovery of
conjugal property132 (4) 2 of the parties did
not sign as they were abroad. It was
considered reasonable cause to exempt
them from compliance with the requirement
that they personally execute the certificate133
5.5.2If the plaintiff or petitioner is a juridical
person, the Board may pass a specific
resolution allowing a representative to sign.
5.5.3 Counsel has been allowed to sign
the certification in the following instances:
(a) Where the counsel is the Solicitor
General has been deemed to be substantial
compliance134 (b)Certification by acting
regional counsel of NPC was accepted
because it was his basic function to prepare
127 BA Savings Bank v Sia, 336 SCRA 484

128 Ruiz v Drilon, 209 SCRA 695
129 Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
130 HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners
Association, 411 SCRA 504
131 Dar v Alonso Legasto, 339 SCRA 306
132 Docena v Lapesura, 355 SCRA 658
133 Hamilton v Levy, 344 SCRA 821
134 Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
41
pleadings and to represent NPC Mindanao

as such he was in the best position to
know and certify if a similar action was
pleading or had been filed135 (c) Certification
was signed by counsel. The procedural
lapse may be overlooked in the interest of
substantial justice.136 (d) Certification was
executed by an in house counsel is sufficient
compliance with the Rules137
SEE: Ateneo de Naga vs. Bernal, GR

160455, May 9, 2005
The rule in Section 1, Rule 17 is that the
plaintiff may dismiss his complaint by filing a
notice of dismissal at any time before
service of the answer or of a motion for
summary judgment. As a general rule, such
dismissal is without prejudice. Suppose P
filed a complaint against D, and before
service of the answer or of motion for
summary judgment, P caused the dismissal
of his complaint by filing a notice of
dismissal. Months later, P filed the same
complaint against D. In the certification on
non-forum shopping appended to the
second complaint, P failed to mention about
the prior filing and dismissal of the first case.
Is Ps failure to mention about the prior filing
and dismissal of the first case fatal?
No. An omission in the certification on nonforum shopping about any event or case
which would not constitute res judicata or
litis pendentia is not fatal. In the problem
presented, the dismissal of the first case
would not constitute res judicata precisely
because such dismissal is without prejudice
to the refilling of the case. (Roxas v. CA,
G.R. No. 139337, Aug. 15, 2001.)
To be included as 4th paragraph of the
answer in Q&A No. 13; p. 62:
Also, a case pending before the
Ombudsman cannot be considered for
purposes of determining forum shopping as
the power of the Ombudsman is only
investigative in character and its resolution
cannot constitute a valid and final judgment
because its duty is to file the appropriate
case before the Sandiganbayan. (Sevilla v.
135 Robern Development Corporation v Quitain, 315 SCRA 150

136 Sy Chin v Court of Appeals, 345 SCRA 673
137 Mercury Drug Corporation v Libunao, 434 SCRA 404
42
Laggui, A.M. No. RTJ-01-1612, Aug. 14,

2001.)
CAN THE CERTIFICATION BE FILED

LATERGeneral Rule NO Note Uy v. Land Bank
GR
136100
July
24,
2000REINSTATEMENT OF THE CASE AFTER
MOTION TO ADMIT CERTIFICATION
BUT: Loyola v. CA 245 S 477 one day
after, Roadway Express v. CA 264 S 696
14 days before the CA dismissed Petition for
Review.
Shipside v. Ca GR 143377, Feb 20, 2001
motion for reconsideration showing
authority of petitioner to execute certification
prior to filing.
REASON special or compelling reasons
justified relaxation of the Rule IN Shipside
merits of case justified deviation.
DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

Verification
-allegations are true and correct
based on personal knowledge /
authentic records
-required in complaints, initiatory
pleadings and in some responsive
pleadings.
-may be cured by amendment or
order to verify
-may not result in dismissal
-may be signed by counsel
Certification
-no action/claim involving the same
no action/claim involving the same
- required only in complaints/initiatory
pleadings.
- cannot be cured by amendment
- results in dismissal
- by the party himself
43
RULE 8 MANNER OF
ALLEGATIONS IN PLEADINGS
MAKING
HOW ALLEGATIONS ARE MADE IN A

PLEADING
In general, a pleading must contain in a
METHODICAL and LOGICAL form a PLAIN,
CONCISE, and DIRECT statement of the
ULTIMATE FACTS on which the party
pleading relies for his claim or defense138
1.ULTIMATE FACTS are the essential facts
constituting the plaintiffs cause of action. A
fact is essential if it cannot be stricken out
without leaving the statement of the cause of
action insufficient. Examples: (a) That an
obligation has been constituted, that party
must comply, that there is no compliance
(b)That party is the owner of property, that
he has a right to its use/possession, that he
has been dispossessed
2.Mere EVIDENTIARY FACTS or those that
are necessary for the determination of the
ultimate facts are to be omitted. Evidentiary
facts are the premises upon which
conclusions of ultimate facts are based.
Examples: (a)That obligation as covered by
promissory note was executed before
specified persons, that defendant has
several letters indicating intention to/or not
to pay (b) How property was acquired
3.LAWS may be pleaded only if the pleading
is an Answer.
PLEADING ALTERNATIVE CAUSES OF
ACTION OR DEFENSES
1.A party may set forth two or more
statements of a claim or a defense
alternatively or hypothetically, either in one
cause of action or defense or in separate
causes of actions or defenses. If two or
more statements are made in the alternative
and if one of them if made independently
would be sufficient, the pleading is not made
insufficient by the insufficiency of one or
more
of
the
alternative
statements.139Example: (a) allegations for
breach of contract of carriage and tort (b)
allegations for breach of contract and fraud
(c) defense of failure to repurchase by

44
plaintiff and that property was inherited are

inconsistent defenses.
2.Overruling of one does not bar other
defense. However, if not set up,
determination of one shall bar the
determination of the other.
3.The OBJECT OF PROVISION is to relieve
a party from making a definite election in
cases where his claim or defense might fall
within two different substantive classes. SO,
a party may state as many claims/defenses
as he has regardless of inconsistency.
HOW
TO
PRECEDENT
PLEAD
CONDITIONS
A general averment of the performance or

occurrence of all conditions precedent is
sufficient.140 (a) that earnest efforts at a
compromise have been exerted, the suit
being one between members of the same
family (b) that prior resort to conciliation has
been undertaken to no avail
PLEADING CAPACITY TO SUE AND TO BE
SUED
The following must be averred: (1) capacity
to sue or be sued (2) authority of a party to
sue or be sued in a representative capacity
(3) legal existence of an organized
association of persons that is made a
party.141
1.Note the cross reference to Sections 1 and
3, Rule 3 referring to who may be parties
and representative parties, and to Section
1(d), Rule 16 referring to a motion to dismiss
on the ground of lack of legal capacity to
sue, meaning that a party is not in
possession of his civil rights, does not have
the qualification to appear, or does not have
the character or representation claimed.
2.A party desiring to raise the issue of lack
of legal capacity shall do so by specific
denial, which shall include such supporting
particulars as peculiarly within the pleaders
knowledge.
HOW TO AVER FRAUD,
CONDITION OF MIND
MISTAKE,
Fraud and mistake must be stated with

particularity. Condition of mind, such as

45
malice, intent, knowledge may be averred

generally.142
HOW
TO
AVER/
PLEAD
A
JUDGMENT/DECISION
OF
A
DOMESTIC/FOREIGN
COURT,
JUDICIAL/QUASI-JUDICIAL
OFFICER
TRIBUNAL BOARD
It is sufficient that a general allegation of the
existence of the judgment is made, without
setting forth matter showing jurisdiction to
render it.143 Jurisdiction in this case is
presumed.
IF ACTION/DEFENSE IS BASED ON AN
ACTIONABLE DOCUMENT
1.Where the action or defense is based on a
written document ( an actionable document)
it is pleaded by (a) setting forth the
substance of such document in the pleading
and attaching the original/copy as an annex
OR (b) setting it forth verbatim in the
pleading.144
2.AN
ACTIONABLE
DOCUMENT
IS
CONTESTED by specifically denying it
under oath and setting forth what he claims
to be the fact.
2.1
The requirement DOES NOT APPLY
IF: (a) adverse party is not/does not appear
to be a party to the actionable document.
Example: Heirs are sued on a document
executed by a person they will inherit from
(b) when compliance with an order for an
inspection of the original document is
refused.145 (c) when the document is not an
actionable document but is merely evidence
of the claim or existence of the actionable
document . Example: demand letters (d)
when the party who has the benefit of an
implied admission waives the benefit
Example: he presents evidence as to
genuineness and due execution
3.The EFFECT of not SPECIFICALLY
DENYING AN ACTIONABLE DOCUMENT
UNDER OATH is that the genuineness and
due execution is admitted. MEANING, that it
was executed by him/by someone
authorized by him, it was in the
words/figures set forth in the pleading, and
that the formal requirements of law have

46
been observed. THUS, there is no need to

present it formally in evidence because it is
an admitted fact.
3.1
A PARTY THOUGH IS NOT
BARRED FROM INTERPOSING OTHER
DEFENSES as long as it is not inconsistent
with the implied admission. Example: (a) the
defense of forgery would be inconsistent,
ON THE OTHER HAND (b) Fraud/Payment
are not inconsistent and may be allowed.
HOW ARE OFFICIAL ACT/DOCUMENTS

AVERRED
It is sufficient to aver that document was
issued or act done in compliance with law.146
Example: issuance of certification to file
action by Lupon Tagapayapa chair.
HOW ARE SPECIFIC DENIALS MADE
A specific denial is made147 by: (a)
Specifically denying the material averment in
the pleading of the adverse party and setting
forth the substance of the matter upon which
he relies for such denial (b)Deny only a part
of the averment by specifying that so much
of it is true and deny the remainder (c)
Allegation of lack of knowledge or
information sufficient to form a belief as to
the truth of the material averment in the
pleading of the adverse party.
1.If allegations are not denied in the
prescribed manner, a party is deemed to
have made a GENERAL DENIAL which is
TANTAMOUNT TO AN ADMISSION.148
(Section 11)
1.1An exception to the rule are allegations
that pertain to UNLIQUIDATED DAMAGES
1.2
Note that when the allegations
pertain to (a) allegations of usury in a
complaint to recover usurious interest,OR
(b) genuineness and due execution of an
actionable document are required to be
made UNDER OATH OTHERWISE THEY
ARE ADMITTED.
STRIKING OUT OF A PLEADING OR
MATTER CONTAINED THEREIN

47
If the pleading or any matter therein is

SHAM,
FALSE,
REDUNDANT,
IMMATERIAL,
IMPERTINENT
OR
SCANDALOUS, the court can order the
pleading or matter contained therein to be
stricken therefrom (a) upon motion made by
a party before responding to a pleading (b) if
no responsive pleading is allowed /
permitted by the Rules, upon motion by a
party within 20 days after service of the
pleading, OR (c) upon the Courts own
initiative149
RULE 9 EFFECTS OF FAILURE TO

PLEAD
The general effect of the failure to plead is
that the defenses / objections not so
pleaded in an Answer or a Motion to Dismiss
are deemed waived. HOWEVER, if it
appears from the pleadings or evidence on
record that (a) the Court has no jurisdiction
over the subject matter (b) there is another
action pending between the same parties for
the same cause, or (c) the action is barred
by prior judgment or statute of limitations,
the court shall DISMISS the claim. 150 These
defenses are not barred if not set up
(Section 1)
1.A compulsory counterclaim or a crossclaim not set up shall also be barred.151 Note
that this is in consonance with the
requirement of the Rules that a
a
compulsory counterclaim or cross claim
existing at the time of the filing of the answer
must be contained therein152 BUT if it arises
after the filing of an answer, it may be set up
in a supplemental pleading before
judgment153 OR if failure is due to oversight,
inadvertence, excusable neglect or when
justice requires, it may be set up by
amendment with leave of court before
judgment.154
WHAT RESULTS IF DEFENDANT /
DEFENDING PARTY FAILS TO ANSWER
WITHIN THE TIME ALLOWED
If there is failure to plead within the time
allowed, the defendant may be declared in

48
default upon compliance with the following:

(a) the plaintiff must file a motion to declare
the defendant in default (b) serve notice of
his motion to defendant, which must include
a notice of hearing (c) at the hearing, show
proof of failure on the part of the defendant
to file his answer within the reglamentary
period.155 Note that a court cannot motu
propio declare a defendant in default.
ONCE DECLARED IN DEFAULT
The court can proceed to render judgment
granting the claimant such relief as his
pleading may warrant, UNLESS, the Court
in its discretion requires the claimant to
submit the evidence. Such reception may be
delegated to the Clerk of Court, who must
be a member of the BAR
1.In addition, the defaulted defendant is
entitled to NOTICE OF SUBSEQUENT
PROCEEDINGS but HE CANNOT TAKE
PART IN THE TRIAL.156
2.EFFECT OF A PARTIAL DEFAULT, where
a pleading asserting a claim states a
common cause of action against several
defending parties, some of whom answer
while others do not , THE COURT SHALL
TRY THE CASE AGAINST ALL UPON THE
ANSWERS THUS FILED AND RENDER
JUDGMENT UPON THE EVIDENCE
PRESENTED.157
3.THE EXTENT OF RELIEF THAT MAY BE
AWARDED shall not exceed the amount or
be different in kind from that prayed for nor
award unliquidated damages.158
WHAT ARE THE REMEDIES
DEFAULTED DEFENDANT
OF
The available remedies of a defendant who

is declared in default are as follows:
1.MOTION TO SET ASIDE ORDER OF
DEFAULT- under oath, filed at any time after
notice of declaration in default and before
judgment. Defendant must show by an
AFFIDAVIT OF MERIT that failure to file an
answer was due to FAME and that he has a
meritorious defense

156 Supra, Section 3 (a), Rule 9
157 Supra, Section 3 (c), Rule 9
158 Supra, Section 3 (d), Rule 9
49
2.
MOTION FOR NEW TRIAL on the
ground of FAME if the trial court has
rendered judgment but it has not yet
become final
3.
APPEAL the judgment by default
(not the order as it is interlocutory, and
cannot be appealed) within 15 days from
notice of judgment. Note: that if in the
meantime, a motion to set aside order of
defendant has been denied, it can be
assigned as an error in the appeal. THE
NON FILING THOUGH DOES NOT BAR
APPEAL
4.
PETITION FOR RELIEF FROM
JUDGMENT based on FAME provided
no appeal has been taken within 60 days
from notice and 6 months from entry of
judgment.159
5. ACTION TO ANNUL JUDGMENT based
on EXTRINSIC / COLLATERAL FRAUD
within 4 years from discovery of the fraud
(ONE THAT INDUCES ONE NOT TO
PRESENT HIS CASE/PREVENTS FULL
AND FAIR HEARING)
6.
CERTIORARI if improperly declared
in default OR motion to set aside was
denied and is tainted with grave abuse of
discretion. Filed within 60 days from notice
or judgment order resolution or 60 days from
denial
(notice)
of
motion
for
reconsideration.160
CASES WHERE NO DEFAULT LIES
In the following cases, default does not lie:
(a) annulment of marriage (b)declaration of
nullity of marriage (c) legal separation (d)
expropriation, and (e) forcible entry, illegal
detainer and the other actions covered by
the Rules on Summary Procedure. In the
first three cases, the court shall order the
prosecuting attorney to investigate whether
or not collusion exists, and if there is no
collusion, to intervene for the state in order
to see that the evidence so presented is not
fabricated.161
159 Supra, Rule 38

160 Supra, Rule 65
161 Supra, Section 3,(e), Rule 9
50
RULE
10
AMENDED
SUPPLEMENTAL PLEADINGS
AND
WHAT ARE AMENDMENTS

Amendments consist of: (1)Adding or
striking out an allegation or the name of any
party (2) Corrections of mistakes in the
name of a party or mistaken or inadequate
allegation or description in any other
respect.
PURPOSE
AMENDMENTS
FOR
ALLOWING
Actual merits of the controversy may

speedily be determined without regard to
technicalities and in the most expeditious
and inexpensive manner. 162
KINDS OF AMENDMENTS
The kinds of amendments are:
1.Formal Amendments which are defects in
the designation of the parties, other clerical
or typographical errors that may summarily
be corrected provided no prejudice is
caused the adverse party and are allowed at
any stage, at the Courts own initiative or on
motion.163
2.ALL
OTHER
AMENDMENTS
considered as SUBSTANTIAL.
ARE
WHEN AMENDMENTS CAN BE MADE

1.Formal and Substantial amendments can
be made once as a matter of right before a
responsive pleading is served, or in case of
a Reply, at any time within 10 days after it is
served.164
1.1Note that the FILING OF MOTION TO
DISMISS does not bar an amendment as it
is not a responsive pleading, but can no
longer be made if the order dismissing the
complaint has become final.
1.2
Prior to the filing of an answer, the
plaintiff has the absolute right to amend the
complaint whether a new cause of action or
change in theory is introduced.165

165 Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
51
2.After the filing of a responsive pleading,

Substantial amendments require leave of
court, but leave may be refused if it appears
to the court that the motion was on made
with INTENT TO DELAY. Orders related to
leave shall be made upon motion filed in
court, with notice to the adverse party and
opportunity to be heard.166
2.1That the amendments should not
substantially alter the cause of action or
defense is NO LONGER THE RULE as the
Rules now allow the pleading of alternative
causes of action/defenses167 and that all
such causes or defenses must be pleaded in
accordance with the rule on waiver.168
2.2The Trial Court may refuse leave or
amendments when: (a) a responsive
pleading has been filed and the motion for
leave to amend is made with intent to delay
(b) purpose is to confer jurisdiction as the
court must first acquire jurisdiction before it
can act169 (c) purpose is to cure the defect of
a non-existent cause of action. Example: An
amendment of the complaint to correct its
having been filed prematurely or when the
obligation was not yet due.
2.3IF NO LEAVE IS OBTAINED, the
pleading it has no standing and may be
stricken from records
2.4
PROBLEM: Complaint is filed
against
several
defendants.
Some
defendants answer, the others have not yet
filed their answers. Amendments will be
allowed as a matter of right against those
who have not filed answers, and with leave
of court, as against those who have filed
their answers.170
3.Substantial amendments can also be
made when it is necessary to conform to the
evidence. This occurs when issues are tried
with the express or implied consent of
parties. If such, they are treated in all
respects as if they have been raised in the
pleadings171, thus paving the way for an
amendment of the pleadings to conform to
the evidence. This is made upon motion of
any party, even after judgment THOUGH

169 Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
170 Siasoco v Court of Appeals, 303 SCRA 186
171 Bernardo v Court of Appeals, 263 SCRA 660
52
FAILURE TO AMEND DOES NOT AFFECT

THE RESULT OF THE TRIAL. Example:
Increased claim for the payment of damages
OR made to authorize presentation of
evidence. This occurs when evidence is
objected to at the trial on the ground that it is
not within the issues made by the pleadings,
the court may allow the pleadings amended
and shall do so with liberality to authorize
presentation of evidence.172
3.1THUS, the failure of a complaint to state
a cause of action may be cured by (1)
Presentation of evidence to prove that cause
of action followed by an amendment to
conform to evidence, OR (2) Evidence is
objected to and the trial court sustains the
objection, this is then followed by an
amendment with leave of court to authorize
presentation of evidence. Same remedies
may be resorted to WHEN A PARTY FAILS
TO RAISE A DEFENSE IN HIS PLEADING.
THE EFFECTS
PLEADING
OF
AN
AMENDED
1.
It supersedes the pleading that it
amends
2.
Admissions in the superseded
pleading may be received in evidence
against the pleader because it is not
expunged from the records and admissions
in the superseded pleading are in the nature
of judicial admissions made by a party in the
course of the proceedings which do not
require proof and ordinarily cannot be
contradicted except by showing that it was
made through palpable mistake or that no
such admission was made.173
3. Claims or defenses alleged in the
superseded pleading but not incorporated in
the amended pleading shall be deemed
waived.174
HOW IS AN AMENDED PLEADING FILED
A new copy of the entire pleading
incorporating the amendments which shall
be indicated by appropriate marks shall be
filed.175
1.NOTE that the date of filing of amended
pleadings does not retroact to the date of
the filing of the original pleading. Hence, the

53
statute of limitations runs until the filing of

the amendment, but, an amendment that
merely supplements and amplifies facts
originally alleged in the complaint relates
back to the date of the commencement of
the action and is not barred by the statute of
limitations that expired after service of the
original complaint. Example: The statement
of a cause of action is imperfect and is
corrected by an amended complaint, the
plea of prescription relates to the time of
filing BUT the rule will not apply if a new
defendant is impleaded in the amended
complaint and prior to its filing prescription
has set in.
WHAT IS A SUPPLEMENTAL PLEADING
A supplemental pleading setting forth
transactions, occurrences or events which
have happened since the date of the
pleading sought to be supplemented
Example: Setting up counterclaims after an
answer has been filed.176
1.A supplemental pleading is always upon
motion, and on such terms as are just and
upon reasonable notice and the ADVERSE
PARTY IS GIVEN 10 DAYS FROM NOTICE
OF
ORDER
ADMITTING
THE
SUPPLEMENTAL PLEADING TO PLEAD
THERETO.177
2.A supplemental pleading is meant to
supply deficiencies in aid of an original
pleading, not to entirely substitute the
latter.178 Thus, when the cause of action
stated in the supplemental complaint is
different from the cause of action mentioned
in the original complaint, the court should
not admit the supplemental complaint.179
DISTINCTIONS BETWEEN AN AMENDED
PLEADING AND A SUPPLEMENTAL
PLEADING
(1) An amended pleading is filed either as a
matter of right or with leave, a supplemental
pleading is always with leave (2) An
amended pleading alleges matters occurring
before the filing of the original pleading,
while a supplemental pleading
alleges
matters occurring after the filing of the
original pleading (3) An amended pleading
supersedes the original pleading, while a
176 Supra, Section 9, Rule 11 and Section 2, Rule 9

178 Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
179 APT v Court of Appeals, 324 SCRA 533
54
supplemental pleading allows the

pleading to stand.
original
RULE
11:
WHEN
RESPONSIVE
PLEADINGS ARE TO BE FILED
ANSWER TO THE COMPLAINT
1.Within 15 days after service of summons
unless a different period is fixed by the
Court.180 The same period applies to third
party complaints.181
2.If covered by the Rules on Summary
Procedure, it is 10 days
3.If the complaint is amended: (a) as a
matter of right, within 15 days from being
served with a copy (b) if with leave of court,
within 10 days from notice of order admitting
the same. If no new answer is filed, a
previously filed answer may serve as the
answer.HOLDS ALSO FOR ANSWERS TO
AMENDED COUNTER-CLAIMS, CROSS
CLAIMS, THIRD PARTY (ETC) CLAIM OR
COMPLAINTS IN INTERVENTION.182
4.If defendant is a foreign private juridical
entity, within 15 days if service of summons
is made on the resident agent, within 30
days from receipt of summons by the entity
at its home office if received by the
government office designated by law.183
5.If it is a complaint in- intervention, within
15 days from notice of the order admitting
the complaint in intervention
6.If it is a supplemental complaint, within 10
days from notice of the order admitting the
supplemental complaint. The answer to the
complaint shall serve as the answer to the
supplemental complaint if no new or
supplemental answer is filed.184
7.If it involves a complaint served on a nonresident defendant who is not in the
Philippines through any of the modes of
extra-territorial
service,
including
by
publication, within a reasonable time which
shall not be less than 60 days after notice as
the court may specify in its order granting
leave to effect extra-territorial service of
summons

183 Supra, Section 2, Rule 11, Section 128, Corporation Code
55
ANSWER TO A CROSS
COUNTER CLAIM
CLAIM
OR
The answer to a cross claim or a counterclaim shall be filed within 10 days from
service.185
NOTE that compulsory
counterclaims need not be answered unless
it raises issues not covered by the complaint
.
NOTE that it is required that a compulsory
counterclaim or a cross claim existing at the
filing of defendants answer must be
included therein BUT, if it matures / or is
acquired after serving of answer, it may with
the courts permission be presented as such
in a supplemental pleading. If already
existing and not set up through oversight,
inadvertence, or excusable neglect, it may,
by leave of court be set up as such by
amendment before judgment.186
REPLY
It must be filed within 10 days from service
of the pleading responded to.187 Altough the
filing of a reply is optional as if one is not
filed, all new matters are deemed
controverted.188
MAY THE TIME TO PLEAD BE EXTENDED
Upon motion and on terms as may be just,
the Court it may extend or allow it to be filed
after the time fixed by the Rules. 189 The court
may also, upon like terms, allow an answer
or other pleading t be filed after the time
fixed by these Rules.
1.NOTE that in cases covered by the Rules
on Summary Procedure, the period cannot
be extended nor shortened.
2.In quo warranto cases, the period may be
shortened.190
3.A lawyer shall not, after obtaining
extensions of time to file pleadings,
memoranda, or briefs, let the period lapse

186 Supra, Sections 8,9, and 10, Rule 11
56
without submitting the same or offering an

explanation for failure to do so.191
WHEN A COMPLAINT SHOULD BE FILED
A complaint is not a responsive pleading. It
is to be filed upon accrual of the cause of
action or any time thereafter but before it is
barred by prescription.
RULE 12 BILL OF PARTICULARS
WHAT IS A BILL OF PARTICULARS
It is a definitive statement of any matter
which is not covered with sufficient
definiteness or particularity to enable him to
properly prepare his responsive pleading.192
1.The PURPOSE of which is to make more
particular or definite the ultimate facts in a
pleading but is NOT INTENDED TO
SUPPLY EVIDENTIARY MATTERS
2.It is to be resorted to when the complaint
is deficient in details with respect to the
factual basis of each and every item
claimed, but such deficiency is not such as
to amount to a failure to state a cause of
action as the remedy then is to file a motion
to dismiss.193
WHEN SHOULD IT BE FILED
Before filing or responding to a pleading or
before filing an answer. If pleading is a reply,
within 10 days from service thereof
WHEN WILL OR WHEN CAN COURT ACT
UPON IT
Upon filing of the motion that points out the
defects complained of, the paragraphs
wherein they are contained, and the details
desired (it is a litigated motion, thus requires
a notice of hearing) the CLERK OF
COURT must IMMEDIATELY BRING IT TO
THE ATTENTION OF THE COURT, who
may deny or grant the motion OUTRIGHT or
allow the parties an opportunity to be
heard.194
1.IF GRANTED, whether in WHOLE or in
PART, the compliance therewith must be
effected within 10 days from notice of order,
191 Rabanal v Tugade, 383 SCRA 484

193 Sabangan v Manila Railroad Company, 28 SCRA 772
57
unless a different period is fixed by the

Court.
2.The BILL OF PARTICULARS may be
filed either in a separate or in an amended
pleading, serving a copy on the adverse
party.195 ONCE filed, it becomes part of the
pleading for which it is intended.196
EFFECT OF NON-COMPLIANCE
ORDER
WITH
In case of failure to obey or insufficient

compliance, the Court may order the
pleading or portions thereof to which the
order was directed to be stricken out OR
make such order as it deems just. 197
HENCE, it may also dismiss for failure of the
plaintiff to obey order of the Court.198 The
striking out of a complaint by the lower court
upon motion of the defendant for failure of
the plaintiff to comply with an order requiring
him to submit a bill of particulars as a
ground for dismissal is equivalent to an
adjudication on the merits unless otherwise
provided by the court.199
WHEN MUST A RESPONSE / ANSWER BE

FILED
After service of a bill / definitive pleading OR
notice of denial of the motion for a bill of
particulars, the moving party has the
remaining period that he was entitled to at
the time of the filing of the motion, which
shall not be less then 5 days in any event.200
RULE 13 FILING / SERVICE OF
PLEADINGS JUDGMENTS / OTHER
PAPERS
The Rule applies to all pleadings / papers as
well as service thereof, except those for
which a different mode of service is
prescribed.201
FILING / SERVICE DEFINED
FILING is the act of presenting the pleading
or other paper to the clerk of court, while

199 Vda. De Quillosa v Salazar, 14 SCRA 656
58
SERVICE is the act of providing a party with

a copy of the pleading / paper
IF A PARTY IS REPRESENTED BY
COUNSEL service is made upon counsel or
one of them UNLESS service is ordered to
be made upon the party by the Court.
If there is one counsel for several parties, he
is entitled to only one copy served by the
opposite side. 202
MODES OF FILING
The modes of filing are (1) Presenting the
original copies of pleadings, appearances,
motions, notices, orders, judgments and all
other papers to the clerk of court, OR (2) By
registered mail.203
1.The clerk of court shall if filing be
PERSONAL, endorse on the pleading, the
date and the hour of filing. If it BY MAIL, the
date appearing on the post office stamp /
registry receipt shall be date of the filing /
deposit of court. The envelope shall be
attached to the record. It bears stressing
that it is the date of mailing, not the date of
receipt of the mail matter, which shall be
considered as the date of filing.204 This has
been the practice since mail is considered
an agent of the Government.205This is also
known as the MAILBOX RULE.
2.The PAPERS that are to served or ARE
TO BE FILED / SERVED are JUDGMENTS,
RESOLUTIONS, ORDERS, PLEADINGS
SUBSEQUENT TO THE COMPLAINT,
WRITTEN
MOTIONS,
NOTICE,
APPEARANCES, REMAND, OFFER OF
JUDGMENT OR SIMILAR PAPERS SHALL
BE
FILED
AND
SERVED
UPON
AFFECTED PARTIES206
WHAT ARE THE MODES OF SERVICE
The general rule is that PLEADINGS,
MOTION,
NOTICES,
ORDERS,
JUDGMENTS AND OTHER PAPERS shall
be served PERSONALLY or by MAIL.207
1.IF PERSONALLY served, it may done: (a)
by delivering personally a copy to party or
his counsel, OR (b) leaving it in his office
with a clerk or person having charge thereof,

204 Ansel v Aledo, 420 SCRA 645
205 Supra, Mintu v Court of Appeals, 53 SCRA 114
59
OR (3) IF NO PERSON IS FOUND IN THE

OFFICE OR HE HAS NO OFFICE, by
leaving a copy between the hours of 8am to
6pm at partys / counsels residence, if
known, with a person of sufficient age and
discretion residing therein.208
2.IF BY MAIL, by depositing a copy in the
post office in a sealed envelope, plainly
addressed to the party or counsel, if known,
at his address / office, OTHERWISE, at his
residence, if known, postage prepaid and
with instructions to the postmaster to return
the mail to sender after 10 days if
UNDELIVERED. If no registry service is
available in the locality of the addressee or
sender, service may be by ordinary mail.209
2.1If mailed by PRIVATE CARRIER, the
date of actual receipt by the court of such
pleading and not date of delivery to the
carrier is deemed the date of filing of that
pleading.210
3.NOTE THOUGH THAT JUDGMENTS,
FINAL ORDERS OR RESOLUTIONS shall
be served personally or by registered mail.
3.1
ALSO, if a party is summoned by
publication, and he has failed to appear,
judgments, final orders / resolutions shall
also be served upon him by publication at
the expense of the prevailing party.211
4.IF SERVICE CANNOT BE MADE
personally or by mail, SUBSTITUTED
SERVICE MAY BE AVAILED OF as long as
the office and place of residence of the party
or his counsel is also unknown, service may
be made by delivering a copy to the clerk of
court, with proof of failure of both personal
service and service by mail. The service is
complete at the time of such delivery.212
WHEN SERVICE IS COMPLETE
Service will be deemed complete: (a) Upon
actual delivery if undertaken personally (b)
Upon expiration of 10 days after mailing,
unless the Court orders otherwise if
undertaken by ordinary mail (c) Upon actual
receipt by addressee or after 5 days from
the date he received the 1 st notice of the
postmaster, whichever date is EARLIER, if

210 Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
60
undertaken by registered mail213 (d) At the

time of delivery to the clerk of court, if
undertaken by substituted service
WHAT IS THE RULE ON PRIORITY OF
SERVICE
Whenever practicable, service and filing of
pleadings and other papers shall be done
personally EXCEPT, with papers emanating
from the court. A resort to other modes must
be accompanied by an explanation why
service or filing was not done personally. IF
NOT, it may be cause to consider the paper
as not filed. 214
1.Where the address of the respondents
counsel is 83 kilometers away from the
address of petitioners counsel, such
distance
makes
personal
service
impracticable, and a written explanation why
service was not done personally might have
been superfluous. Liberal construction has
been allowed in cases where the injustice to
the adverse party is not commensurate with
the degree of thoughtlessness in not
complying with the procedure prescribed.215
WHAT CONSTITUTES PROOF OF FILING

Proof of filing is shown by: (a) existence of
the pleading or other paper in the records of
the case (b) If not in the record, but is
claimed to be: (1) FILED PERSONALLY by
the written / stamped acknowledgment of its
filing by the Clerk of Court on a copy, and (2)
FILED BY REGISTERED MAIL by the
registry receipt and the affidavit of the
person who did the mailing containing a
FULL STATEMENT OF: (a) Date and place
of depositing in the post office in a sealed
envelope addressed to the Court, with
postage prepaid, and (b) Instructions are
given to the postmaster to return the mail to
sender after 10 days, if undelivered.216
WHAT
CONSTITUTES
SERVICE
PROOF
OF
Proof of service is shown by: (a) Written

admission of the party served OR official
return of the server, or affidavit of the party
serving, containing a full statement of the
DATE, PLACE, MANNER OR SERVICE if

215 Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
61
served personally (b) An affidavit of the

person mailing of facts showing compliance
with Section 7 of the Rule if served by
ordinary mail (c) An affidavit and registry
receipt issued by the mailing office. The
registry return card shall be filed
immediately upon its receipt by the sender,
or in lieu thereof, the unclaimed letter
together of the sworn / certified copy of the
notice given by the postmaster to the
addressee.217
1.If service is by registered mail, proof of
service consists of the affidavit of the person
mailing and the registry receipt, both of
which must be appended to the motion.
Absent one or the other, or both, there is no
proof of service.218
2.Late filing of the affidavit of service may be
considered as substantial compliance with
the Rules.219
3.Failure of a party to comply with the
required proof of service may be excused
where the motion is not a contentious
motion and therefore, no right of the adverse
party would be affected by the admission
thereof.220
NOTICE OF LIS PENDENS
Is an announcement to the world that a
particular property (real) is in litigation,
serving as a warning that one who acquires
the property or an interest therein does at
his own risk which is filed with the Office of
the Register of Deeds of the place where the
property is located.
1.It shall contain (a) the names of the parties
(b) object of the action or defense (c)
description of the property.221
2.It is only from the time of the filing of the
notice for record shall a purchaser or
encumbrancer of the property affected
thereby, be deemed to have constructive
notice of the pendency of the action and
only of its pendency against parties
designated by their real names
3.It is available only in an action affecting
title or right of possession of real property.

218 Cruz v Court of Appeals, 388 SCRA 72
219 Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
220 PEA v Caoibes, Jr., 312 SCRA 767
62
Specifically in actions (a) to

recover
possession of real estate
(b)to quiet
title (c) to remove a cloud (d) for partition (e)
other proceeding of any kind in court directly
affecting title to the land or the use or
occupation thereof or buildings thereon.222
WHO MAY AVAIL OF IT
The plaintiff or the defendant when
affirmative relief is claimed in the answer
WHEN MAY IT BE CANCELLED
Upon order of the court when: It is shown
that it has for the purpose of molesting the
adverse party or it is not necessary to
protect the rights of the party who caused it
to be recorded.223
RULE 14 SUMMONS
DEFINED
It is a writ issued sealed and signed by the
clerk of court upon filing of a complaint and
payment of requisite legal fees224 ISSUED to
and DIRECTED to the defendant containing
the following: (a) name of the court and of
the parties (b) a direction that the defendant
answer within the time fixed by the Rules,
and (c)
notice that unless defendant
answers, plaintiff will take judgment by
default and may be granted the relief prayed
for. ATTACHED THERETO IS A COPY OF
THE COMPLAINT AND ORDER FOR THE
APPOINTMENT OF A GUARDIAN AD
LITEM, IF ANY.225
1.It shall also contain a reminder to the
defendant to observe restraint in filing a
motion to dismiss and instead allege the
grounds thereof as defenses in the
answer.226
WHO SERVES SUMMONS
The sheriff, his deputy, or other proper Court
Officer, or for justifiable reasons by any
suitable person authorized by the court
issuing the summons.227
222 Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals,
334 SCRA 756
223 Lim v Vera Cruz, 356 SCRA 386
226 A.M. No. 03-1-09-SC
63
1.An Officer having management of a jail or

institution, if a defendant is a prisoner
therein is deputized as a special sheriff for
service of summons.228
SIGNIFICANCE OF SUMMONS
The significance of summons is that it is the
primary means by which a Court is able to
acquire jurisdiction over the person of the
defendant and to give notice that an action
has been commenced against him.
1.Jurisdiction cannot be acquired over the
person of the defendant even if he knows of
the case against him unless he is validly
served with summons229 OR the defendant
voluntarily appears in the action.
2.Voluntary appearance shall be equivalent
to service of summons. The inclusion in a
motion to dismiss of other grounds aside
from lack of jurisdiction over the person of
the defendant shall not be deemed a
voluntary appearance.230
2.1The rule abandons previous rulings of the
Supreme Court that a motion to dismiss on
the ground of lack of jurisdiction over the
person be based solely on that ground,
otherwise, it is a voluntary appearance. This
is so because of the OMNIBUS MOTION
RULE231 that all objections then available be
included otherwise they are waived, as the
only exceptions are (1) the Court has no
jurisdiction over the subject matter; (2) there
is another action pending between the same
parties for the same cause; (3) or, the action
is barred by prior judgment or statute of
limitations.232 These defenses are not barred
if not set up.
WHAT ARE THE MODES OF SERVICE
1. Service in person on the defendant by
handling a copy thereof to the defendant in
person, or if he refuses to receive and sign
for it, by tendering it to him233
2. Substituted service by leaving a copy of
the summons at defendants residence with
some person of suitable age and discretion,

229 UCPB v Ongpin, 368 SCRA 464
230 Supra, Section 20, Rules 14
64
then residing therein or leaving it at

defendants office or regular place of
business with some competent person in
charge thereof.234
2.1BUT, it may only be resorted to, if for
justifiable causes, the defendant cannot be
served personally within a reasonable time.
The impossibility of service in person must
be indicated in the return, otherwise,
substituted service is void. 235
2.2Service of summons on the defendant
shall be by personal service first and only
when the defendant cannot promptly be
served in person will substituted service be
availed of.236
3. Service by publication with leave of court,
obtained by the filing of a motion in writing,
supported by an affidavit of the plaintiff or
some person in his behalf, setting forth the
ground that allows resort to it.237
3.1The grounds that allow service of
summons by publication are: (a) Identity of
the defendant is unknown OR whereabouts
of the defendant is unknown and cannot be
ascertained
by
diligent
inquiry238
(b)Defendant does not reside and is not
found in the Philippines but the suit can be
maintained against him because it is in REM
OR QUASI IN REM239 (c) Defendant is a
Philippine resident but is temporarily out of
the country.240 Note the cross reference with
Section 15 and the fact that SUBSTITUTED
SERVICE MAY ALSO BE AVAILED OF.
4.Extra-Territorial Service is allowed in suits
against a non-resident defendant not found
in the Philippines can be made by:
4.1
(a) Personal service (b) Publication
in a newspaper of general circulation in such
places and for such time as the court may
order, in which case a copy of the summons
and order of the court shall be sent by
registered mail to the last known address
(c) Or any other manner the court may

235 Hamilton v Rey, GR 139283, November 15, 2000
236 Samartino v Raon, 383 SCRA 664
65
deem sufficient.241 Resort to registered mail

has been deemed appropriate.242
4.2EXTRA-TERRITORIAL SERVICE CAN
BE AVAILED OF when: (a)
Action
affects the personal status of the plaintiff (b)
Action relates to, or the subject of which is
property within the Philippines in which the
defendant has or claims a lien or interest,
actual or contingent (c) When the relief
demanded, in whole or in part consists of
excluding the defendant from any interest in
property located in the Philippines (d) When
the defendants property has been attached
in the Philippines.243
4.3Resort to extra-territorial service requires
leave of court.
UPON WHOM MAY
SUMMONS BE MADE
SERVICE
OF
Service of summons is to be made upon the

defendant. If the defendant is: (a) AN
ENTITY
WITHOUT
JURIDICAL
PERSONALITY it is to be served upon any
one of them or upon person in charge of the
office or place of business maintained in
such name BUT such shall not bind
individually any person whose connection
with the entity has, UPON DUE NOTICE,
been severed before the action has
brought244 (b) MINOR, INSANE OR
OTHERWISE INCOMPETENT it is to be
served upon him personally and his
guardian / or guardian ad litem. In addition,
in case of a minor, service may also be
made on his father or mother 245 (c)
REPUBLIC OF THE PHILIPPINES it is to be
served on the Solicitor General 246 (d)
PROVINCE,
CITY,MUNICIPALITY
OR
SIMILAR PUBLIC CORPORATION it is to
be served on the executive head, or on such
other officers as the law or court may
direct247
(e)
DOMESTIC
PRIVATE
JURIDICAL ENTITY its is to be served on
the president, managing partner, general
manager, corporate secretary, treasurer or
in house counsel.248 Note the abandonment
of doctrine of substantial compliance. 249 (f)
FOREIGN PRIVATE JURIDICAL ENTITY it
241 Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
242 Cariaga v Malaya, 143 SCRA 441
66
is to be served upon its resident agent. If

there be no resident agent, the Government
official designated by law such as the SEC,
Insurance Commissioner, Superintendent of
Banks. If none, any of its officers or agents
in the Philippines. Note the required
sequence of service. In addition, if a lawyer
enters an appearance without proof of
having been engaged by the foreign
corporation, no voluntary appearance can
be inferred.250
AFTER SERVICE IS COMPLETE, WHAT
MUST SERVER DO
1.Within 5 days after completion, a copy of
the return must be served, personally or by
registered mail, to plaintiffs counsel, and he
shall return the summons to the clerk of
court who issued it together with proof of
service.251
2.PROOF OF SERVICE is the writing
executed by the server setting forth (1) the
manner, place and date of service; (2) the
paper/s which have been served with the
process and name of the person who
received the same. IT SHALL BE SWORN
TO WHEN MADE BY A PERSON OTHER
THAN THE SHERIFF / DEPUTY.252
2.1IF SUMMON IS BY PUBLICATION,
PROOF OF SERVICE CONSISTS OF: (a)
Affidavit of printer, foreman, principal clerk
editor, business manager or advertising
manager,
COPY
OF
PUBLICATION
ATTACHED, and (b) Affidavit showing the
deposit of a copy of the summons and order
for publication in the post office, postage
prepaid directed to the defendant by
registered mail at / to his last known
address.253
RULE 15 MOTIONS
DEFINED
A motion is an application for relief other
than a pleading.254
REQUISITES OF A VALID MOTION
249 Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312
SCRA 65
250 Litton Mills v Court of Appeals, 256 SCRA 696
254 Supra, Section 1, Rule 15,
67
1. Shall be in writing except when made in

open court or in the course of the hearing or
trial.255 Example: a motion for continuance
made in presence of adverse party.
2. It must state the relief sought to be
obtained and the grounds on which it is
based, and if required by the rules or
necessary to prove facts alleged therein, it
shall be supported by affidavits or other
papers.256
3. It shall be set for hearing by the applicant
except when the motion can be acted upon
by the court without prejudicing the rights of
the adverse party.257 Example: Motion for
extension of time to plead
4. It must contain a notice of hearing
addressed to all parties concerned,
specifying the time, date of the hearing
which must not be later than 10 days after
the filing thereof. 258
4.1A motion without a notice of hearing is
pro-forma or a mere scrap of paper. It
presents no question which the court should
decide. The rationale behind the rule is
plain: unless the movant sets the time and
place of hearing, the court will be unable to
determine whether the adverse party agrees
or objects to the motion, and if he objects, to
hear him on his objection. The objective is to
avoid a capricious change of mind in order
to provide due process to both parties and
ensure impartiality.259
4.2The absence of the notice of hearing will
not toll the running of the reglementary
period for appeal.260
5. It must be served, together with the notice
of hearing on the adverse party at least 3
days before the date of hearing UNLESS
THE COURT FOR GOOD CAUSE SETS
THE HEARING EARLIER.261
5.1The purpose of the three day notice rule
is to avoid surprise upon the opposite party

259 Fajardo v Court of Appeals, 354 SCRA 736
260 Cledera v Sarmiento, 39 SCRA 553
68
and to give him time to study and meet the

arguments of the motion.262
6. There must be proof of service of every
written motion set for hearing otherwise it
shall not be acted upon.263
6.1As a general rule, proof of service is
mandatory.264
6.2A judge can act ex-parte on a motion
where the rights of the adverse party are not
affected.265
WHEN SHOULD MOTIONS BE SET
All motions must be scheduled for hearing
on Friday afternoons or if it be a nonworking holiday, in the afternoon of the next
working day UNLESS THE MOTION
REQUIRES IMMEDIATE ACTION.266This
day is MOTION DAY.
WHAT SHOULD A MOTION CONTAIN
1.A motion attacking a pleading (motion to
dismiss) order, judgment, or proceedings
(motion for reconsideration) shall include all
objections then available, and all objections
not so included are deemed waived
EXCEPT the defenses of Lack of
Jurisdiction, Litis Pendentia, Res Judicata,
Statute of Limitations.267
1.1This is the OMNIBUS MOTION RULE.268
1.2The purpose of the Rule is to obviate
multiplicity of motions as well as discourage
dilatory pleadings.269 Litigants should not be
allowed to reiterate identical motions
speculating on the possible change of
opinion of the court or judges thereof.270
1.3
It requires the movant to raise all
available exceptions in a single opportunity
to avoid multiple piecemeal objections. But
to apply the statutory norm, THE
OBJECTIONS MUST BE AVAILABLE TO
262 Remonte v. Bonto, 16 SCRA 257

264 Cruz v Court of Appeals, 388 SCRA 72
265 Sumadchat v Court of Appeals, 111 SCRA 488
269 Dacanay v Alvendia, 30 SCRA 31
270 Miranda v Court of Appeals, 71 SCRA 295
69
THE PARTY AT THE TIME THE MOTION

WAS FILED.271
2.IF MOTION IS ONE FOR LEAVE TO FILE
A PLEADING OR MOTION, IT SHALL BE
ACCOMPANIED BY THE PLEADING /
MOTION SOUGHT TO BE ADMITTED.272
Example: Motion for leave to admit
amended complaint.
3.As to FORM, the Rules applicable to
pleadings shall apply to written motions as
far as it concerns captions, designation,
signature and other matters.273
RULE 16 MOTION TO DISMISS
WHEN AND HOW IT CAN BE FILED
1.By Motion, within the time for the filing of
an answer but before the filing of an answer.
1.1
The rule is not absolute as a motion
to dismiss may still be filed after answer on
the ground of (a) lack of jurisdiction (b) litis
pendentia (c) lack of a cause of action, and
(d) discovery during trial of evidence that
would constitute ground for dismissal.274
2.AS AN AFFIRMATIVE DEFENSE IN THE
ANSWER, and in the discretion of the court,
a preliminary hearing may be had as if a
motion to dismiss has been filed. IF ACTION
IS DISMISSED, it shall be without prejudice
to the prosecution in the same / separate
action of a counter-claim pleaded in the
answer.275
WHAT GROUNDS ARE AVAILABLE
A motion to dismiss may be made on any of
the following grounds:276
1. The court has no jurisdiction over the
person of the defending party
2.
The court has not jurisdiction over
the subject matter of the claims
3.
Venue is improperly laid
271 PH Credit Corporation v Court of Appeals, 370 SCRA 155

274 Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
70
3.1
An objection to improper venue
must be made before a responsive pleading
is filed, otherwise it is deemed waived.277
4. Plaintiff has no legal capacity to sue
4.1
This means that he is not in
exercise of his civil rights, or does not have
the necessary qualification to appear or
does not have the character / representation
he claims AS OPPOSED TO the LACK OF
PERSONALITY TO SUE which means that
he is NOT the real party in interest, and the
basis for dismissal then is NO CAUSE OF
ACTION or FAILURE TO STATE A CAUSE
OF ACTION.278
5. There is another action pending between
the same parties for the same cause
5.1
This is known as litis pendentia
5.2
The REQUISITES for its application
are: (a) Identity of the parties, or at least
such as representing the same interests in
both actions (b) Identity of rights asserted
and reliefs prayed for, the relief being
founded on the same facts. Identity in both
cases, is such that judgment in the pending
case would, regardless of which party is
successful amount to res judicata in the
other.279
5.3BETWEEN THE FIRST OR SECOND
ACTION / OR LATTER ACTIONS APPLY
THE PRIORITY IN TIME RULE BUT RULE
MUST
YIELD
TO
THE
MORE
APPROPRIATE ACTION. Example: An
action for declaratory relief to interpret a
lease contract was filed before an ejectment
case, where the Supreme Court held that
the ejectment case is the more appropriate
action.280
5.4There is a 3RD TEST: INTEREST OF
JUSTICE RULE which is a determination of
which court would be in a better position to
serve the interest of justice considering : (a)
nature of the controversy; (b) comparative
accessibility of the court to the parties; (c)
other similar factors.281
277 Fernandez v ICB, 316 SCRA 326

278 Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v.
Court of Appeals, 199 SCRA 205
279 Victronics Computer v RTC, 217 SCRA 517
280 Teodoro v Mirasol, 99 Phil 150
281 Roa-Magsaysay v Magsaysay, 98 SCRA 592
71
6. The cause of action is barred by a prior

judgment or by the statute of limitations
6.1
The
REQUISITES
OF
RES
JUDICATA are: (a)
Former
judgment
must be FINAL (b) Rendered by a court
having jurisdiction over the subject matter
and the parties (c) It must be a judgment or
order on the merits (d)There must be
between 1st / 2nd action, identity of parties /
subject matter / causes of action
6.2
The DOCTRINE IS FOUNDED ON
2 GROUNDS: (a)
Public policy and
necessity which makes it in the interest of
the state that there should be an end to
litigation (b) Litigant should be spared the
hardship of being vexed twice for the same
cause
6.3
NOTE that there can be no res
judicata in support cases as future support
cannot be compromised.282
6.4Statute of Limitations or prescription is a
statute establishing a period of time from the
accrual of a cause of action within which a
right of action must be exercised. If the
action is not brought within the period, then
it is barred.
7.
The pleading asserting the claim
states no cause of action.
7.1
The TEST OF SUFFICIENCY OF A
CAUSE OF ACTION is: Whether accepting
the veracity of the facts alleged in the
complaint, the Court can render judgment
(valid) upon the same in accordance with
the prayer in complaint.
7.2
NO
PRESENTATION
OF
EVIDENCE IS REQUIRED AS THERE IS A
HYPOTHETICAL ADMISSION OF THE
FACTS ALLEGED IN THE COMPLAINT
7.3
FAILURE TO STATE A CAUSE OF
ACTION/NO
CAUSE
OF
ACTION
DISTINGUISHED FROM LACK OF A
CAUSE OF ACTION283: (a) The former
refers to insufficiency of allegations, while
the latter refers to insufficiency of factual
basis (b) The former is raised only in a in a
motion to dismiss before responding to a
complaint, while the latter can be raised at
any time (c) The former allows dismissal to
be had at the early stages of the action,
282 De Asis v Court of Appeals, 303 SCRA 176

283 Supra, Rule 33
72
while the latter allows dismissal

after
questions of fact have been resolved after
evidence is presented or stipulations /
admissions are had.
8. Claim or demand set forth in plaintiffs
pleading
has
been
paid,
waived,
abandoned, or otherwise extinguished
9.
Claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds.
9.1
Statute of Frauds is statute/s that
deals
with
the
enforcement
and
requirements of agreements in particular
circumstances. It is descriptive of statutes
which require certain classes of contracts to
be in writing.284
10. A condition precedent for filing the claim
has not been complied with
10.1
In certain cases, referral of a case to
the Lupon is a condition precedent for filing
a complaint in court. It is not jurisdictional. 285
It may be waived if not raised seasonably in
a motion to dismiss.286
RESOLUTION OF A MOTION TO DISMISS
1.It shall BE HEARD 287, at the hearing, the
parties shall submit arguments on the
questions of law and evidence on the
questions of law and fact involved EXCEPT
THOSE NOT AVAILABLE AT THAT TIME.
SHOULD THE CASE GO TO TRIAL,
EVIDENCE DURING THE HEARINGS
SHALL AUTOMATICALLY BE PART OF
THE EVIDENCE OF PARTY PRESENTING
THE SAME.
2.After the hearing, Court shall either
DISMISS THE ACTION, DENY THE
MOTION OR ORDER AMENDMENT OF
THE PLEADING, stating clearly and
distinctly the reasons for the action taken.288
2.1It is now mandated that the Court cannot
defer resolution of the motion based on the
reason that the ground relied upon does not
appear to be indubitable or sure
284 Litonjua v Fernandez, 427 SCRA 478

285 Junson v martinez, 405 SCRA 390
286 Banares v Balising, 328 SCRA 36
73
3.IF MOTION IS DENIED, the movant shall

file an answer within the balance of the
period prescribed by Rule 11, which he was
entitled to at the time of serving the motion,
but not less than 5 days in any event,
COUNTED FROM NOTICE OF DENIAL. IF
ORDERED AMENDED, an answer is to be
filed within period prescribed by Rule 11,
counted from service of amended pleading,
unless the court provides a longer period.
Note that it is 15 days as no answer has of
yet been filed. Hence the amendment is one
that is a matter of right.289
3.1The EFFECT OF DISMISSAL is that
subject to the right to appeal, an order
granting a motion to dismiss on the grounds
of (a) prior judgment or statute of limitations
(b) claim / demand has been paid, waived
abandoned or otherwise extinguished, or (c)
is unenforceable under the statute of frauds
SHALL bar refiling of the same.290
RULE 17 - DISMISSAL OF ACTIONS
PLAINTIFF DISMISSAL OF HIS
COMPLAINT
OWN
A plaintiff may cause the dismissal of his

complaint by:
1.Filing of a notice of dismissal at anytime
before service of an answer or motion for
summary judgment. Once filed, the court
shall issue an order confirming the
dismissal, which is without PREJUDICE,
unless stated otherwise. BUT, such
dismissal will operate as adjudication on the
merits when filed by a plaintiff who has once
dismissed in a competent court, his action
based on or including the same claim.291
This is known as the 2 dismissal rule.
2.Filing a motion to dismiss but such will not
result in dismissal without the approval of
the court and upon terms and conditions as
the court deems proper. BUT, if a
counterclaim has been pleaded before
service of motion to dismiss the dismissal
is limited to the complaint. If shall be without
PREJUDICE TO RIGHT OF DEFENDANT
to prosecute his counterclaim in a separate
action unless within 15 days from notice of
the motion he manifests a preference to

74
have it resolved in the same action.

UNLESS specified, a dismissal is without
prejudice. NOTE also that a CLASS SUIT
shall not be dismissed or compromised
without the approval of the Court.292
COURT DISMISSAL ON ITS MOTION OR
THAT OF DEFENDANT
The court can motu propio or upon motion of
the defendant dismiss a complaint when:
(a)If, for no justifiable reason, the plaintiff
fails to appear on the date of the
presentation of his evidence in chief on the
complaint (b) If, for no justifiable reason,
plaintiff fails to prosecute his action for an
unreasonable length of time (c) If, for no
justifiable reason, plaintiff fails to comply
with Rules of Court or any order of the
Court.
DISMISSAL
IS
WITHOUT
PREJUDICE
TO
RIGHT
OF
THE
DEFENDANT TO PROSECUTE HIS
COUNTERCLAIM IN THE SAME OR
SEPARATE ACTION and SHALL HAVE THE
EFFECT OF ADJUDICATION ON THE
MERITS,
UNLESS
OTHERWISE
DECLARED BY THE COURT.293
1.The REMEDIES OF THE PLAINTIFF are:
(a) Appeal the dismissal as it is a FINAL
ORDER, or (b) If without prejudice, REFILE
THE ACTION
as an order dismissing
without prejudice is not subject to appeal.
2.At the pre-trial, the court ordered the
parties to submit a compromise agreement
within a ten day period. The parties were
unable
to
submit
the
compromise
agreement, thus leading to a dismissal.
There is nothing in the rules that imposes a
sanction for failure to submit a compromise
agreement.294
APPLICABILITY OF THE RULE
Rule applies to dismissal by the
DEFENDANT of his counterclaims crossclaims or 3rd party claims. Voluntary
dismissal by the claimant by notice as under
Section 1 of the Rule shall be made before a
responsive pleading, motion for summary
judgment is served, or if there be none,
before introduction of evidence at the trial or
hearing.295

294 Ruiz, Jr v CA, 212 SCRA 660
75
RULE 18 PRE-TRIAL
WHAT IS PRE-TRIAL
It is a procedural devise intended to clarify
and limit the basic issues between the
parties. Its main objective is to simplify,
abbreviate and expedite trial, or otherwise
dispense with it.296
It is a conference or hearing at which the
court, with the cooperation of the parties,
seek to determine definitively what precisely
are the factual issues to be tried and how
each party intends to establish his position
on each disputed factual issue.
WHEN CONDUCTED
After the last pleading has been served and
filed. It shall be the duty of the plaintiff to
move ex-parte that the case be set for pretrial.297
1.SC Adm. Circular 3-99 dated January 15,
1999 defined promptly as 5 days.
2.SC Administrative Matter No. 03-1-09, SC,
Section A (1.2) Should the plaintiff fail to
move ex-parte to set case for pre-trial, the
branch clerk of court should issue a notice of
pre-trial.
2.1
The same circular also requires that
the presiding judge direct the parties to
mediation, if possible. If it fails it will
schedule the pre-trial BUT IT MAY ALSO
SCHEDULE
A
PRELIMINARY
CONFERENCE before the branch clerk of
court to assist them in REACHING A
SETTLEMENT,
PRE-MARKING
OF
DOCUMENTS AND EXHIBITS AND TO
CONSIDER OTHER MATTERS THAT WILL
AID IN PROMPT DISPOSITION. The
JUDGE is also directed to consider assisting
the parties in effecting a settlement given
the evidence of the parties.
3.The last pleading is the answer to the
original complaint, cross claim, or, third party
complaint AND the reply.
NATURE AND PURPOSE
296 Interlining v Philippine Trust Company, 378 SCRA 521

76
Pre-trial is by nature mandatory and the

purpose for its conduct is to take up the
following matters:298
1.Possibility of amicable settlement / or

submission to alternative modes of dispute
resolution
2.Simplification of the issues
3.Necessity / desirability of amendment to
the pleadings
4.Possibility of obtaining stipulations or
admissions of fact and of documents to
avoid unnecessary proof
5.Limitation of number of witnesses
6.Advisability of a preliminary reference of
issues to a commissioner
7.Propriety of judgment on the pleadings,
summary judgment, or dismissing the action
if a valid ground therefor be found to exist
8.Advisability of suspending the proceedings
9.Such other matter as may aid in the
prompt disposition of the action
UPON WHOM NOTICE OF PRE-TRIAL IS
TO BE SERVED
It shall be served on counsel, or party if not
represented by counsel. Counsel is charged
with the duty to notify the party.299
WHOSE PRESENCE IS REQUIRED AT
PRE-TRIAL
The parties and counsel are required to be
present during the pre-trial. A party may be
excused if: (a) A valid cause is shown
therefore (b)A representative shall appear
duly authorized in writing to do the following:
(1) enter into amicable settlement; (2)
submit to alternative modes of dispute
resolution; (3) enter into stipulations /
admissions of fact / documents.300
EFFECT OF FAILURE TO APPEAR
1.If plaintiff fails to appear despite DUE
NOTICE, he may be declared NON SUITED

77
and the complaint DISMISSED. The

dismissal shall be with prejudice, unless
otherwise ordered by the court.
HIS
REMEDY is to appeal order of dismissal
because it is a FINAL resolution. If
dismissed without prejudice, he can REFILE
the complaint
2.If defendant fails to appear despite due
notice, plaintiff IS ALLOWED to present his
evidence ex-parte and the court may render
judgment on the basis thereof. 301
3.AS A RULE, THERE CAN BE NO
SECOND PRE-TRIAL UNLESS BOTH
PARTIES CONSENT.302
WHAT MUST BE FILED BEFORE PRETRIAL

A pre-trial brief must be filed and served on
the adverse party at least 3 days before the
pre-trial containing:303
1.Statement of willingness to enter into an
amicable settlement, the desired terms or to
submit to alternative modes of dispute
resolution
2.Summary of admitted facts / proposed
stipulation of facts
3.Issues to be tried or resolved
4.Number of witnesses / names, abstract of
testimonies, approximate number of hours
that will be required for presentation of their
respective evidence
5.Copies of all documents intended to be
presented which statement of the purposes
of their offer
6.Manifestation of their having availed of or
their intention to avail of discovery
procedure, or need for referral of any issues
to commissioners
7.Applicable law / jurisprudence
8.Available trial dates of counsel for
complete presentation of evidence which
must be within a period 3 months from the
first day of trial.304

302 Young v Court of Appeals, 204 SCRA 584
304 Section 6, SC Adm. Circular 3-99, January 15, 1999
78
FAILURE TO FILE A PRE-TRIAL BRIEF

SHALL HAVE THE SAME EFFECT AS
FAILURE TO APPEAR
PRE-TRIAL ORDER
Proceedings shall be recorded. Upon
termination, court shall issue an order which
shall recite in detail: (a) matters taken up (b)
action taken thereon (c) amendments
allowed to the pleadings (d) agreements /
admissions made by the parties as to any of
the matters taken (e) explicitly defining and
limiting the issues to be tried. OBJECT it
shall control the subsequent course of the
action, UNLESS MODIFIED TO PREVENT
MANIFEST INJUSTICE. 305
1.Pre-trial is primarily intended to make
certain that all issues necessary to the
disposition of a case are properly raised.
Thus, to obviate the element of surprise,
parties are expected to disclose at a pre-trial
conference all issues of law and fact which
they intend to raise at the trial, except such
as may involve privileged or impeaching
matters. The determination of issues at a
pretrial conference bars the consideration of
other questions on appeal.306
2.NOTE THAT TRIAL SHALL BE LIMITED
TO ISSUES STATED IN THE PRE-TRIAL
ORDER.307
3.Notwithstanding, courts are not required to
resolve all issues raised in pleading unless
necessary for the resolution of the case.308
RULE 19 INTERVENTION
WHO MAY INTERVENE
A person who has a (a) legal interest in the
matter in litigation (b) has legal interest in
the success of either of the parties (c) has
an interest against both or (d) is so situated
as to be adversely affected by a distribution
or other disposition of property in the
custody of the court or an officer thereof.309

306 Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
308 IBAA vs. IAC, 167 SCRA 450
79
1.Examples are (a)an action for payment of

money, where personal property of the
defendant is attached, a 3rd person claiming
the attached property can intervene (b)
action by alleged owners of the land sought
to be foreclosed.
2.The interest which entitles a person to
intervene in a suit must be in the matter in
litigation and of SUCH DIRECT OR/AND
IMMEDIATE CHARACTER that intervenor
will either GAIN or LOSE by direct legal
operation and effect of judgment. 310
3.Intervention does not lie for a transferee
pendente lite.311
HOW AND WHEN
INTERVENE
CAN
A PERSON
Filing of a motion for leave of court to

intervene, attaching thereto a copy of the
pleading in intervention, which is then
served on the original parties at any time
before rendition of judgment by the trial
court.312
1.The COURT MAY REFUSE TO GRANT
LEAVE WHEN (a) It will unduly delay or
prejudice the adjudication of the rights of the
original parties. Example: Delay or laches in
bringing intervention, OR (b)
Intervenors
rights may be fully protected in a separate
proceeding. Example: Attachment of real
property subject of a mortgage
2.The pleadings in intervention are (a)
Complaint in Intervention, if he asserts a
claim against either or all of the original
parties, OR (b) Answer in Intervention, if he
unites with the defending party in resisting
the claim of the plaintiff. 313
3.If granted, a complaint in intervention is to
be replied to within 15 days from notice of
the order admitting the same unless a
different period is fixed by the court.
4.NO INTERVENTION IS ALLOWED IN
LAND REGISTRATION CASES as the
remedy is to file an OPPOSITION. Neither is
it allowed in cases covered by the Rules on
Summary Procedure.
5.Intervention is merely collateral or
accessory or ancillary to the principal action
310 Roxas v Dinglasan, 28 SCRA 430

80
and not an independent proceeding. Hence,

with the final dismissal of the original action,
the complaint in intervention can no longer
be acted upon.314
6.An order denying a motion for intervention
is appealable.315
RULE 20 CALENDAR OF CASES
MAINTENANCE
CALENDAR
OF
THE
COURT
The clerk of court, under the direct

supervision of a judge, shall keep a calendar
for PRE-TRIAL, TRIAL, TRIALS THAT
WERE ADJOURNED OR POSTPONED,
THOSE WITH MOTIONS TO SET FOR
HEARING.
In
fixing
the
calendar,
PREFERENCE IS GIVEN TO HABEAS
CORPUS, ELECTION CASES, SPECIAL
CIVIL ACTIONS, AND THOSE REQUIRED
BY LAW.316
ASSIGNMENT OF CASES
The assignment of cases shall always by
raffle done in open session of which
adequate notice shall be given to afford
interested parties the opportunity to be
present.317 The purpose is to obviate public
suspicion regarding assignment of cases to
predetermined judges.318
RULE 21 SUBPOENA
WHAT IS A SUBPOENA
A process directed to a person requiring him
to attend and testify at the hearing or trial of
an action, or at any investigation conducted
by competent authority, or the taking of his
deposition
KINDS OF SUBPOENA
The kinds of subpoena are: (a) SUBPOENA
AD TESTIFICANDUM if it directs and
requires a person to attend and testify, OR
(b) DUCES TECUM if it requires him to bring
books/documents/or other things under his
control.319
314 Barangay Matictic v Elbinias, 148 SCRA 83

315 Foster-Gallego v Galang, 435 SCRA 275
318 Ang v Bello, 163 SCRA 358
81
BY WHOM ISSUED
A subpoena is issued by (a) The court
before whom the witness is required to
attend (b) The court where deposition is to
be taken (c) Officer or body authorized by
law to do so in connection with
investigations that it may conduct (d) Any
justice of the Supreme Court/Court of
Appeals in any case or investigation pending
within the Philippines320
1.A request by a party for the issuance of a
subpoena does not require notice to other
parties to the action.321
2.In taking depositions, the clerk of court
shall not issue a subpoena duces tecum
without a court order.322
3.Absent any proceeding, suit or action,
commenced or pending before a court, a
subpoena may not issue.323
WHEN IS A WITNESS NOT BOUND BY A
SUBPOENA
1.Witness resides more than 100 kilometers
from his residence to the place where he is
to testify by the ordinary course of travel. 324
This is also called the VIATORY RIGHT OF
A WITNESS or the right not to be compelled
to testify in a civil case if he lives more than
100 kilometers from his residence to the
place where he is to testify by ordinary
course of travel.
1.1If the viatory right is invoked, a witness
can still be compelled to testify by the taking
of his deposition in a place within 100
kilometers from where he resides, observing
the following steps: (a) Party desiring to take
deposition shall give reasonable notice in
writing to every other party in the action
stating
the
TIME,
PLACE
AND
NAME/ADDRESS OF PERSON WHOSE
DEPOSITION IS TO BE TAKEN. There
should be proof of service of the notice (b)
Proof of service of notice to take deposition
shall be presented to the clerk of court of the
place where deposition is to be taken (c) On
the basis of such proof of service, the clerk
upon authority and under seal of the court,
shall issue the subpoena BUT a subpoena

321 Adorio v Bersamin, 273 SCRA 217
323 Collado v Bravo, 356 SCRA 411
82
duces tecum cannot be issued without an

order of the Court (4) Subpoena is to be
served on witness whose deposition is to be
taken.325
2.Witness is a detention prisoner, if no
permission of the court in which his case is
pending is obtained or if the witness is a
prisoner sentenced to death, reclusion
perpetua or life imprisonment and is
confined in a penal institution, if authority of
the SC to bring out the prisoner has not
been obtained. The court should examine
and study the application properly to
determine if it is being made for a valid
purpose.326
FORM AND CONTENTS OF SUBPOENA
A subpoena must contain the following: (a)
Name of the court (b) Title of
action/investigation AND IS TO BE
DIRECTED to the person whose attendance
is required. IF DUCES TECUM, in addition,
it must contain a reasonable description of
the books, documents, things demanded
which is must appear to the Court to be
PRIMA FACIE relevant.327
WHAT ARE THE GROUNDS TO QUASH A
SUBPOENA
1.If DUCES TECUM, it may be quashed on
the following grounds: (a)
It
is
unreasonable
and
oppressive
(b)
Relevancy of the books, documents or
things do not appear (c) Person in whose
behalf subpoena is issued fails to advance
the reasonable costs of the production
thereof (d) The witness fees and kilometrage
allowed by the rules were not tendered
when subpoena was served. Under A.M.
No. 04-2-04-SC, witness fees shall be PHP
200.00 a day inclusive of all expenses
2.If AD TESIFICANDUM, it may be quashed
on the following grounds: (a) Witness is not
bound by the subpoena (b) Witness fees
and kilometrage allowed by rules were not
tendered when the subpoena was served.328
HOW IS A SUBPOENA SERVED
In the same manner as personal or
substituted service of summons, original is

83
to be exhibited and delivered to person on

whom it is served tendering the fees for
one day attendance at the kilometrage
allowed by Rules EXCEPT if subpoena is
issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof.
Tender must be made so as to allow the
witness a reasonable time for preparation or
travel to the place of attendance.329
1.If DUCES TECUM, the cost of production
of books, papers or things must also be
tendered.
2.Under A.M. No. 04-2-04-SC, the fee for
service of summons is PHP 100.00 per
witness.
CAN A PERSON BE COMPELLED TO
APPEAR AND TESTIFY WITHOUT A
SUBPOENA
Yes, when he is PRESENT IN COURT, in
which event it is as if he were in attendance
upon subpoena issued by the Court.330
WHAT ARE THE CONSEQUENCES OF
DISOBEDIENCE TO A SUBPOENA
The consequences of disobedience are: (a)
He may be arrested and brought before the
Court where his attendance is required, the
cost of warrant and seizure shall be paid by
the witness if the Court finds disobedience
to be willful and without just excuse. 331 (b)
Citation in contempt by the court from which
the subpoena is issued. It not issued by a
Court, then in accordance with the
applicable rule / law.332
RULE 22 COMPUTATION OF TIME
HOW COMPUTED
The day of the act / event from which the
designated period of time begins to run is
excluded and date of performance included.
If the last day falls on a Saturday, Sunday or
legal holiday in the place where the Court
sits, the time shall not run until the next
working day.333
EFFECT OF INTERUPTIONS

84
Allowable period after interruption shall start

to run on the day after, notice of the
cessation of the cause thereof. The day of
the act that caused cessation shall be
excluded in the computation of the period.
1.RULE ON COMPUTATION OF TIME
DOES NOT APPLY TO PRESCRIPTION OF
OFFENSES
or
PRESCRIPTION
OF
CAUSES OF ACTION. Hence, if the last day
falls on a Saturday, Sunday or legal holiday,
it prescribes on the said date.
RULES 23
DISCOVERY
TO
29
MODES
OF
WHAT IS DISCOVERY
The methods used by the parties to a civil
action to obtain information held by the other
party that is relevant to the action.
PURPOSES OF DISCOVERY
The purposes of resort to discovery are: (a)
It is a device to narrow down / clarify the
basic issues between the parties (b) It is a
device to ascertain the facts relative to the
issues
WHAT ARE THE MODES OF DISCOVERY
The modes of discovery (a) Deposition
pending action334 (b) Deposition before
335
action
or
pending
appeal
(c)
Interrogatories to parties336 (d) Request for
admission by adverse party337 (e)Production
or inspection of documents / things338 (f)
Physical / mental examination of persons339
WHEN CAN DEPOSITIONS
ACTIONS BE TAKEN
PENDING
1.WITH LEAVE OF COURT, after jurisdiction

has been acquired / obtained over any
defendant or over property which is the
subject of the action as the issues are not
yet joined and disputed facts are not yet
clear OR if a person is confined in a prison
with LEAVE OF COURT ONLY, on such
terms that the Court may prescribe.
334 Supra, Rule 23

335 Supra, Rule 24
336 Supra, Rule 25
337 Supra, Rule 26
338 Supra, Rule 27
339 Supra, Rule 28
85
2.WITHOUT LEAVE OF COURT, after an

answer has been served.340
WHOSE DEPOSITION MAY BE TAKEN,
HOW TAKEN, BY WHOM
Any person, whether a party or not, upon
ORAL EXAMINATION OR WRITTEN
INTERROGATORIES upon the initiative of
ANY PARTY.
SCOPE OF A DEPOSITION
GENERALLY, the deponent may be
examined regarding any matter, NOT
PRIVILEGED, which is RELEVANT TO THE
SUBJECT OF THE PENDING ACTION
whether it RELATES TO CLAIM OR
DEFENSE of any other party. INCLUDING
THE
EXISTENCE,
DESCRIPTION,
NATURE,
CUSTODY,
CONDITION,
LOCATION of any BOOKS, DOCUMENTS
OR OTHER TANGIBLE THINGS and the
IDENTITY and LOCATION of persons
having knowledge of relevant facts.341
1.The limitation as to the taking and scope
of a deposition after notice is served for its
taking by oral examination, UPON MOTION
SEASONABLY FILED by a PARTY OR of
the PERSON to be examined, and for
GOOD CAUSE shown, the court in which
the action is pending may order: (a)
Deposition not be taken (b)It be taken only
at some designated place other than that
stated in the notice (c)It be taken only on
written interrogatories (d)
That certain
matters shall not be inquired into (e) That
scope of the examination shall be held
without anyone present except the parties to
the action, and their officers of counsel
(f)That after depositions are sealed, they
shall be opened only by order of the court
(g)That secret processes, developments or
research need not be disclosed (h)That
parties shall simultaneously file specified
documents or information enclosed in
sealed envelopes to be opened as directed
by the Court (i) That court may make any
order which justice requires to protect the
party or witnesses from annoyance
embarrassment or oppression.342
2.During the taking of the deposition, it shall
be taken subject to the following limitations:

86
2.1
During the taking of the deposition,
on motion or petition of any party or the
deponent
upon
showing
that
the
examination is being conducted in BAD
FAITH on IN SUCH MANNER as
UNREASONABLY to ANNOY EMBARRASS
OR OPPRESS the DEPONENT, or a party
the COURT where the action is pending or
the RTC of the place where deposition is
being taken may ORDER the officer taking
the examination to cease forthwith or limit
the scope as provided in Section 16.
2.2
If terminated, it shall be resumed
thereafter only upon order of the Court in
which the action is pending. UPON
DEMAND
of
the
OBJECTING
PARTY/DEPONENT, the taking shall be
suspended for the time necessary to make a
notice for an order. In granting/refusing such
order, the court may impose upon either
party or upon the witness the requirement to
pay costs/expenses as the Court may deem
reasonable.343
BEFORE WHOM MAY DEPOSITIONS BE
TAKEN
1.WITHIN THE PHILIPPINES: a judge,
notary public, or person authorized to
administer oaths, at any time or place if so
stipulated in writing by the parties.344
2.IN FOREIGN COUNTRIES: On notice
before a secretary of the embassy or
legation or the diplomatic minister and his
staff, consul general, consul, vice consul or
consular agent of the Republic of the
Philippines, or before such person or officer
as may be appointed by commission or
letters rogatory.345
2.1A Commission is an instrument issued by
a court of justice or other competent tribunal
to authorize persons to take a deposition or
do any other act by authority of such court or
tribunal. A Commission is addressed to
officers designated by name or descriptive
title.
2.2
Letters Rogatory is an instrument
sent in the name and by authority of a judge
or court to another, requesting the latter to
cause to be examined, upon interrogatories
filed in a case pending before the former, a
witness who is within the jurisdiction of the
judge or court to whom such letters are

344 Supra, Sections 10 and 14, Rule 23
345 Supra, Sections 11, 12, and 14, Rule 23
87
addressed. Letters Rogatory are addressed

to a judicial authority in a foreign country
AND may be applied for and issued only
after a commission has been returned
unexecuted.
WHO ARE DISQUALIFIED
DEPOSITIONS
TO
TAKE
Person who is a relative within the 6 th

degree of consanguinity / affinity OR
employee or counsel of any of the parties
OR relative within the same degree or
employee of counsel OR is financially
interested in the action.346
KINDS OF DEPOSITIONS HOW TAKEN
A.DEPOSITION
EXAMINATION
UPON
ORAL
1.Giving of reasonable notice in writing to

every other party to the action, which must
state the time / place of the taking of the
deposition and the name and address of the
person to be examined, if known, IF NOT
KNOWN, a general description sufficient to
identify him or the particular class or group
to which he belongs. ON MOTION OF
PARTY UPON WHOM NOTICE IS
SERVED, the COURT, for CAUSE, may
ENLARGE OR SHORTEN THE TIME.347
2.Officer taking the deposition shall put the
witness under oath and shall personally, or
by someone acting under his direction and
his presence record the testimony of the
witness stenographically unless the parties
agree otherwise.
All objections as to QUALIFICATION OR
OFFICER TAKING DEPOSITION, MANNER
OF TAKING EVIDENCE PRESENTED,
CONDUCT OF PARTIES OR ANY OTHER
OBJECTION shall be NOTED ANY
EVIDENCE OBJECTED TO SHALL BE
TAKEN SUBJECT TO OBJECTIONS.
PARTIES SERVED WITH NOTICE, IN LIEU
OF PARTICIPATING IN THE TAKING OF
DEPOSITION,
may
submit
written
interrogatories which the officer taking the
deposition shall propound to the witness and
record the answers VERBATIM.348
3.After the taking of the deposition and
testimony is transcribed it is submitted to

88
the witness for examination and shall be

read to or by him, unless such is waived by
the witness and the parties. IF THERE ARE
CHANGES IN FORM / SUBSTANCE
which the witness desires to make it shall
be entered upon the deposition by the officer
with a statement as to the reason given by
the witness as why they are being made.
The deposition is then SIGNED BY THE
WITNESS, unless the parties by stipulation
waive the signing, or the witness is ill OR
cannot be found OR refuses to sign.
IF NOT SIGNED, officer shall sign it and
state on the record why it was not signed
together with reasons. If there is refusal to
sign, the EFFECT is that the deposition then
may be used fully as though signed, unless
on a motion to suppress under Sec 29 (f)
{errors or irregularities in preparation}, the
Court holds that the reason for refusal to
sign require rejection of the deposition in
whole or in part.349
4.Once signed, the officer shall certify on the
deposition that the witness was duly sworn
to by him and that the deposition is a true
record of the testimony of the witness. He
shall then securely seal the deposition in an
envelope endorsed with the title of the action
and marked deposition of _______ to be
promptly FILED WITH THE COURT
WHERE ACTION IS PENDING OR SENT
BY REGISTERED MAIL TO THE CLERK
THEREOF FOR FILING.350
5.Notice of filing shall then promptly be
given by the officer to all parties 351 and upon
payment of reasonable charges, he is to
furnish copies of the deposition to any party
or the deponent. 352
EFFECT OF NON-APPEARANCE
1.IF PARTY GIVING NOTICE FAILS TO
APPEAR AND ANOTHER ATTENDS IN
PERSON OR BY COUNSEL, the Court
may order the party giving notice to pay
reasonable expenses incurred to attend,
including reasonable attorneys fees. 353
2.IF PARTY GIVING NOTICE DOES NOT
SERVE SUBPOENA AND WITNESS DOES
NOT APPEAR, Court can order party giving

89
notice to pay reasonable expenses for

attendance plus attorneys fees to a party
who appears in person or by counsel354
(Section 24)
B.DEPOSITION
UPON
INTERROGATORIES
WRITTEN
1.Party desiring to take the deposition upon

WRITTEN INTERROGATORIES shall serve
them upon every other party with notice
stating: (1) name and address of the person
who will answer them (2) descriptive title
and address of the person who will take the
deposition (3) Within 10 days, party served
may serve cross-interrogatories on the party
proposing to take the deposition (4) Within 5
days thereafter, the latter may serve redirect INTERROGATORIES upon the party
serving crossinterrogatories (5) within 3
days after being served of re-direct
INTERROGATORIES, a party may serve recross interrogatories upon party proposing
to take deposition.355
2.A copy of the notice and copies of all
interrogatories shall be delivered by the
party taking the deposition to officer
designated in the notice, who shall proceed
promptly in the manner provided by Sections
17, 19 and 20 to take the testimony of the
witness in response to the interrogatories
and to prepare, certify, and file / mail the
deposition attaching copies of the notice and
interrogatories.356
3.Officer must promptly give notice of filing /
and may furnish copies to parties and
deponent upon payment of reasonable
charges.357
NOTE: that Sections 15, 16 and 18 are
applicable and that by motion, it can be
asked that the deposition be upon oral
examination.
4.SEE: Gerochi vs. Dept of Energy GR
159796, April 5, 2005
DISTINGUISHED
FROM
INTERROGATORIES TO PARTIES UNDER
RULE 25

90
An interrogatory under Rule 25 is allowed

UNDER THE SAME CONDITIONS AS
SPECIFIED IN SECTION 1, RULE 23 as to
when it is to be had and is for the purpose of
enabling any party desiring to elicit material
facts / relevant facts from any ADVERSE
PARTY by the filing and service upon the
latter of a written interrogatory to be
answered by the party served or if party is
public / private corporation or a partnership /
association by any officer thereof competent
to testify in its behalf.358
HOW AND WHEN ANSWERED
Responses, which must be signed and
sworn to, must be filed within 15 days from
service, unless the Court on motion and for
good cause shown extends or shortens the
time359
CAN THEY BE OBJECTED TO
Yes, objections may be presented to the
court within 10 day after service of notice as
in the case of a motion, answers shall then
be deferred until objections are resolved,
which shall be as early a time as is
practicable.360
HOW MANY INTERROGATORIES
No party may, without leave of court, serve
more than one set of interrogatories to be
answered by the same party.361
SCOPE AND USE
It may relate to any matters that can be
inquired into under Section 2, Rule 23 and
the answers used for the same purpose
provided for by Section 4, Rule 23362
EFFECT OF FAILURE TO
WRITTEN INTERROGATORIES
SERVE
Unless thereafter allowed by the court for

good cause shown and to prevent failure of
justice, a party not served with written
interrogatories may not be compelled by the
adverse party to give testimony in open
court or give a deposition pending appeal.363

91
FURTHER DISTINGUISHING DEPOSITION

UPON WRITTEN INTERROGATORIES
AND WRITTEN INTERROGATORIES
1.Any person, party or not can be required
to or compelled to give a deposition upon
written interrogatories, while only the
adverse party may be compelled to
answer a written interrogatory.
2.A deposition upon written interrogatory is
taken before an officer, while an adverse
party without appearing before an officer
shall answer them in writing and under oath.
C.
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL UNDER RULE 24
(IN PERPETUAM REI MEMORIAM)
HOW IS A DEPOSITION BEFORE ACTION
OBTAINED
By the filing of a verified petition by a person
desiring to perpetuate his testimony or that
of any person in relation to any matter
cognizable in any court in the Philippines in
the Court in the place of residence of the
expected adverse party. 364
1.The CONTENTS OF THE PETITION
which shall be entitled in the name of the
petitioner and should show: (a) That
petitioner expects to be a party to an action
in a Court in the Philippines but is presently
unable to bring it or cause it to be brought
(b) The subject matter of the expected
action and his interest therein (c) The facts
that he desires to establish by the proposed
testimony and his reasons for desiring to
perpetuate it (d) The names or description of
the person he expects will be adverse
parties and their addresses so far as known
(e) The names and addresses of the
persons to be examined and the substance
of the testimony which he expects to elicit
from each AND SHALL THEN ASK FOR AN
ORDER authorizing the petitioner to take the
depositions of the persons to be examined
named in the petition for the purpose of
perpetuating their testimony.365
2.To Perpetuate means to preserve or make
available testimony for later use at a trial by
means of deposition.
WHAT IS DONE AFTER PETITION IS
COMPLETED

92
Petitioner shall serve a notice upon each

person named in the petition as an expected
adverse party, together with a copy of the
petition stating that: he will apply to the
Court at a time and place stated therein, for
the order described in the petition. At least
20 days before the date of the hearing, the
Court shall cause notice thereof to be
served on the parties and prospective
deponents in the manner provided for
service of summons.366
WHAT WILL OCCUR THEREAFTER
If the Court is satisfied that the perpetuation
of testimony may prevent a failure of justice
or delay of justice, it shall make an order
designating or describing the persons whose
depositions are to be taken, specifying the
subject and whether it will be upon oral
execution or written interrogatories under
Rule 23.367For purposes of applying Rule 23,
references to the court in which the action is
pending shall be deemed to refer to thecourt
in which petition for such deposition is filed.
368
USE OF DEPOSITION
Deposition taken under the Rule or although
not so taken, it would be admissible in
evidence, it may be used in any action
involving the same subject matter contained
in petition subsequently brought in
accordance with Sections 4 and 5 of Rule
23.369
WHEN DEPOSITIONS PENDING APPEAL
ARE TAKEN
If appeal is taken from a judgment of a Court
including the CA in proper cases or before
the taking of an appeal if the time therefore
has not yet expired. The Court in which
judgment was rendered may allow taking of
depositions of witnesses to perpetuate their
testimony for use in the event of further
proceedings in the said Court.
HOW TAKEN
Party makes a motion in said Court for leave
to take depositions upon the said notice
and service thereof as if the action was
pending therein MOTION states (1) name

93
and addresses of persons to be examined

and substance of testimony to be elicited (2)
reasons for perpetuating testimony.
If Court finds that it is proper to avoid failure
or delay of justice it may allow the
depositions to be taken and used in the
same manner and under same conditions as
prescribed for depositions in pending
actions.370
EFFECT OF TAKING DEPOSITIONS
A party shall not be deemed to make a
person his own witness by taking his
deposition.371
EFFECT OF USING DEPOSITIONS
If introduced in evidence in whole/part for
any purpose OTHER THAN contradicting or
impeaching the deponent, such makes the
deponent the witness of the party
introducing the deposition BUT it does not
apply to the use of an adverse party of a
deposition as described in Par. (b) Section 4
of Rule 23.372
USE OF DEPOSITION
When can it be used? at the trial, upon the
hearing of a motion or an interlocutory
proceeding ANY PART or ALL OF A
DEPOSITION, so far as admissible under
the rules of evidence may be used
AGAINST any party who was present, or
represented at the taking or had due notice
thereof, in ACCORDANCE WITH THE
FOLLOWING:
a.May be used by any party for the purpose
of contradicting or impeaching the testimony
of deponent as a witness
b.Deposition of a party or any one who at
the time of the taking was an officer, director,
or managing agent of a public/private
corporation partnership/association which is
a party may be used by an adverse party for
any purpose
c. Deposition of a witness, party or not, may
be used by any party for any purpose if the
court finds that:
(1) witness is dead
(2)witness resides more than 100 kilometers

94
from the place of trial/hearing or is out of

the Philippines UNLESS, it appears that his
absence is procured by the party offering the
deposition (3) witness is unable to
attend/testify because of age, sickness,
infirmity or imprisonment (4) party offering
the deposition has been unable to procure
the attendance of the witness by subpoena
(5) upon application and notice, exceptional
circumstances exist as to make it desirable
in the interest of justice and with due regard
to the importance of presenting the
testimony of witness in open court, to allow
the deposition to be used.
d.If only a part of the deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of which is
relevant to the part introduced, and any
party may introduce the other parts.373
WHEN DOES THE DEPOSITION BECOME
EVIDENCE OR WHEN CAN IT BE USED
AS EVIDENCE
1.If the deponent is a party, the opposing
party can use it to prove his claim or
defense. It may also be used to impeach or
contradict the party deponent if he testifies.
2.If the deponent is only a witness, his
deposition
can
only
be
used
to
impeach/contradict him if he testifies BUT if
Paragraph (c ) of Section 4 applies, it can be
used for any purpose.
WHEN DEPOSITIONS ARE PRESENTED
CAN THEY BE OBJECTED TO- WHEN
Subject to the provisions of Section 29,
OBJECTION may be made at the TRIAL or
HEARING to receive in evidence any
deposition or part thereof for any reason
which would require the exclusion of the
evidence if the witness were then present
and testifying.
1.As to notice are waived unless written
objection is promptly served upon the party
giving the notice
2.As to disqualification of the officer is
waived unless make before the taking of the
deposition or as soon thereafter as the
disqualification becomes known or could be
discovered with reasonable diligence.
3.As to competency relevancy of evidence
objections as to competency of the witness

95
or competence, relevancy or materiality of

the evidence/testimony are not waived by
the failure to make them before or during the
taking of the deposition UNLESS the
ground of the objection is one which a right
have been OBVIATED or REMOVED IF
PRESENTED AT THAT TIME
4.As to oral examination and other
particulars Errors and irregularities
occurring at the oral examination in the
manner of taking, the form of the questions
and answers, in the oath/affirmation, or the
conduct of the parties and errors of any kind
which might be obviated, removed or cured
it promptly, prosecuted, are WAIVED, unless
reasonable objection thereto is made at the
taking of the deposition.
5.As to from of written interrogatories
objections are waived unless served in
writing upon party propounding them within
the time allowed for the serving of
succeeding cross or other interrogatories
and within 3 days after service of the last
interrogatory authorized.
6.As to manner of preparation objections
as to the 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 part thereof is
made with reasonable promptness after
such defect is, or with due diligence, might
have been ascertained.374
HOW IS A DEPOSITION ACTUALLY USED
AND ONCE A DEPOSITION HAS BEEN
USED, WHAT CAN ADVERSE/ OTHER
PARTIES DO
1. Generally, the deponent is called to testify.
Hence he may be examined/cross-examined
as permitted at the trial under Sections 3 to
18, Rule 132.375
2. At the trial or hearing, any party may
rebut any relevant evidence contained in a
deposition whether introduced by him or by
any other party.376 This is called rebutting a
deposition.

96
IS USE OF THE DEPOSITION LIMITED TO

THE ACTION/PENDING ACTION WHEN IT
WAS TAKEN
No, because substitution of parties does not
affect the right to use depositions previously
taken, when the action is DISMISSED and
another action involving the same subject is
afterward brought between the same parties
or their representatives or successors in
interest, all depositions lawfully taken and
duly filed in the former action may be used
in the latter as if originally taken therefor.377
RULE 26 REQUESTS FOR ADMISSIONS
WHAT IS A REQUEST FOR ADMISSION
It is a written request for the (1) admission of
the genuiness of any material and relevant
document described in and exhibited with
the request or (2) the truth of any material or
relevant matter of fact set forth in the
request. A party may file and serve a request
for admission upon any other party at any
time after the issues have been joined.378
EFFECT OF FILING AND SERVICE UPON
ANY OTHER PARTY
Each of the matters of which an admission is
requested shall be deemed admitted
UNLESS, within a period designated in the
request, which shall not be less than 15
days after service thereof or such period
which the Court will allow on motion, the
party served files and serves upon the
requesting party a sworn statement, either
denying specifically the matters is setting
forth in detail the reason why he cannot
truthfully either admit / deny.
Objections if any shall be submitted to the
Court within the period for complying and
prior to filing of the Sworn Statement
compliance is then deferred until objections
are resolved which should be done as early
as practicable.379
EFFECT OF ADMISSIONS
It is for the purpose of the pending action
only and shall not constitute an admission
by him for any purpose or used against him
in any other proceeding380

97
THOUGH any admission, express or implied

may be allowed by the court to be withdrawn
or amended upon such terms as may be
just.381
EFFECT OF FAILURE TO SERVE
Unless otherwise allowed by the Court for
good cause and to prevent failure of justice,
a party who fails to serve a request for
admission of material / relevant facts at
issue on the adverse party, which are or
ought to be within the latters personal
knowledge, shall not be permitted to present
evidence on such facts.382
RULE
27
INSPECTION
THINGS
PRODUCTION
OF DOCUMENTS
OR
ON
HOW
On motion of any party showing GOOD
CAUSE, the COURT where the action is
pending MAY ORDER, specifying the time,
place and manner AND prescribing such
terms and conditions as are just:
1.Any party to produce and permit the
inspection, copying, photographing, by or on
behalf of a having party of any designated
DOCUMENT,
PAPERS,
BOOKS,
ACCOUNTS, LETTERS, PHOTOGRAPHS,
OBJECTS OR TANGIBLE THINGS NOT
PRIVILEGED which CONSTITUTE OR
CONTAIN EVIDENCE MATERIAL TO ANY
MATTER INVOLVED IN THE ACTION which
are in his possession and control, OR
2.Permit entry upon designated land or
other property in his possession / control for
the purpose of INSPECTING, MEASURING,
SURVEYING, TAKING PHOTOGRAPHS of
the property or any designated RELEVANT
OBJECT or OPERATION thereon.383
RESORTED TO DETERMINE CONTENTS,
STATUS OR PRESERVATION OF THE
SAME.
RULE 28 PHYSICAL /
EXAMINATION OF PERSONS
MENTAL
WHEN AVAILED OF

98
In an action in which the MENTAL /

PHYSICAL condition of a party is in
controversy, a court in its discretion, can
order him to submit to physical / mental
examination by a physician.384
1.It can be ordered ONLY upon motion for
good cause shown, with NOTICE to the
party to be examined and to all other parties,
specifying the time, place, manner, condition
and scope of the examination and person/s
by whom it is to be made.385
2.ONCE EXAMINATION IS COMPLETED,
the party examined may request that a
detailed written report of the examining
physician setting forth his findings /
conclusions.
2.1
If requested and delivered, the party
causing examination to be made is entitled
to request and receive from examined party
a like report of the same mental / physical
examination / condition PREVIOUSLY OR
THEREAFTER MADE.
2.2
If request is refused, the court on
motion may order delivery by the party
examined on such terms as are just. If the
physician fails / refuses to make such report,
his testimony may be excluded if his
testimony is offered at trial. 386
2.3NOTE a WAIVER OF PRIVILEGE that is
caused by requesting and obtaining a report
of the examination ordered or by taking the
deposition of the examiner, party examined
WAIVES ANY PRIVILEGE he may have in
that action or any other involving the same
controversy regarding the testimony of every
other person who has examined or may
thereafter examine him in respect of the
same mental / physical examination. 387 This
refers primarily to the privilege between
doctor and patient.
RULE 29 REFUSAL TO COMPLY WITH
MODES OF DISCOVERY
1. If he refuses to answer upon being
directed to do so or refuses to be sworn, it
will constitute CONTEMPT OF COURT. A
citation in contempt shall ensue after the
following steps have been followed or
observed:

99
a.If the party/deponent refuses to answer

any question upon oral examination, the
deposition may be completed on other
matters or adjourned as the proponent may
prefer.
b.The proponent may then apply for an
order to compel an answer in the proper
court where the deposition is being taken.
This is also applicable to interrogatories.
c. If granted, the court can order that answer
be made and if it finds that refusal is without
substantial justification it may impose upon
deponent / counsel advising that no answer
be given or both reasonable expenses and
attorneys fees in obtaining the order. If
denied and the court finds application was
filed
without
substantial
justification
proponent / counsel advising application or
both may in the same manner be
sanctioned.388
2. Other consequences (applicable to Sec
1, Rule 29, Rule 27 and Rule 28) the Court
may issue an:
a.order that the matters regarding which the
questions are asked, character / description
of thing or land / contents of a paper or
physical / mental condition of a party shall
be taken to be established in accordance
with the claim of the party obtaining the
order.
b.order refusing to allow the disobedient
party to support / oppose designated
claims / defenses or prohibiting him from
introducing in evidence the designated
things / documents or items of testimony or
from introducing evidence of physical /
mental condition.
c. order striking out pleadings or parts
thereof or staying proceedings until the
order is obeyed, dismissing the action or
proceeding or any part thereof, or rendering
judgment by default against the disobedient
party.
d.In lieu or in addition to orders, the
disobedient party can be ordered arrested
except in relation to a physical / mental
examination.389
OTHER SANCTIONS

100
1.Expenses on refusal to admit if

requested party serves a sworn denial and
party serving request proves genuineness /
truth, he may apply for an order directing the
requested party to pay expenses incurred in
making proof plus attorneys fees. Order is
issued except if court finds good reasons for
denial or admissions were of no substantial
importance. 390
2.Failure of a party to willfully appear before
the officer taking the deposition, after being
served with a proper notice, or fails to serve
answers to written interrogatories properly
served, court may on motion and notice:
(a)Strike out all or any part of the pleading of
that party (b) Dismiss the action /
proceeding / part thereof (c) Enter judgment
by default against that party, (d) and ,in its
discretion, order payment of reasonable
expenses and attorneys fees391 BUT no
expenses or fees are to be assessed
against the Republic of the Philippines. 392
RULE 30 TRIAL
NOTICE OF TRIAL
Upon entry of a case in the trial calendar
the clerk shall notify the parties of the date
of the trial in such manner as to ensure
receipt of the notice at least 5 days before
such date.393
MAY
TRIAL
ADJOURNED
BE
POSTPONED
Courts may adjourn a trial from day to day,

and to any stated time as the expeditious
and convenient transaction of business may
require but it shall have no power to
adjourn for a longer period than one month
for each adjournment, nor more than three
months in all, except when authorized in
writing by the Court Administrator of the
Supreme Court.394
IF MOTION TO POSTPONE IS DUE TO
ABSENCE OF EVIDENCE

101
Can only be granted upon affidavit showing

the materiality / relevancy of the evidence
and that due diligence has been used to
procure it, BUT, if the adverse party admits
the facts to be given in evidence, or even if
he objects or reserves the right to object to
their admissibility, the trial shall not be
postponed.395
IF DUE TO ILLNESS OF PARTY OR
COUNSEL
May be granted, if it appears upon affidavit
or sworn certification that the presence of
party / counsel at the trial is indispensable
and that character of illness is such as to
render non-appearance excusable.396
WHAT IS THE ORDER OF TRIAL
Subject to Section 2, Rule 31 on separate
trials and unless the court orders for special
reasons, it shall be limited to the issues
stated in the pre-trial order and shall
proceed as follows:
1.Plaintiff adduces evidence in support of his
complaint
2.Defendant adduces evidence in support of
his defense, counterclaim, crossclaim and
3rd party complaint
3.Third party defendant, if any, shall adduce
evidence of his defense, counterclaim,
crossclaim and 4th party complaint.
4.Fourth party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them.
5.Parties
against
whom
any
counterclaim/crossclaim has been pleaded
shall adduce evidence in support of their
defense, in the order prescribed by the
Court.
6.The parties may then respectively adduce
rebutting evidence, unless the Court, for
good reasons and in the furtherance of
justice, permits them to adduce evidence
upon their original case.
7.Upon admission of the evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to argue
or submit memoranda or any further
pleadings.
If several defendants or 3rd party defendants
and so forth, having separate defenses
appear by different counsel, the court shall

102
determine the relative order of presentation

of their evidence.397
MAY THERE BE AN AGREEMENT UPON
THE FACTS AND SUBMISSION OF THE
CASE
FOR
JUDGMENT
WITHOUT
INTRODUCTION OF EVIDENCE
Yes, provided it be in writing. If the parties
agree only on some facts, trial shall be held
as to the disputed facts398 BUT, no judgment
based on stipulation of facts is allowed in
legal separation, annulment of marriage and
declaration of nullity. NOTE: that in the same
cases, neither is there judgment by default,
judgment on the pleadings, summary
judgment, judgment upon confession,
judgment upon compromise, judgment
based on stipulation of facts.
WHAT ARE TO BE MADE OF RECORD
All proceedings, including any statement
made by the judge with reference to the
case, or to any of the parties, witnesses or
counsel shall be made of record in the
stenographic notes.399
WHO IS TO RECEIVE EVIDENCE
The judge is required to personally receive
the evidence. But in default / ex-parte or
when parties agree in writing it may be
delegated to the clerk of court who is
member of the bar though he has no power
to resolve objections to any question or
admission of exhibits . Such shall be
resolved by the court upon submission of his
report and transcripts within 10 days from
termination of the hearing.400
CAN ACTIONS BE SUSPENDED
Actions may be suspended as governed by
the provisions of the Civil Code 401: (a)if
willingness to discuss a compromise is
expressed by one or both parties (b)if it
appears that one of the parties, before the
commencement of an action / proceeding,

103
offered to discuss a possible compromise

but the other party refused the offer.402
RULE 31
SEVERANCE
WHEN CAN
PLACE?
CONSOLIDATION
CONSOLIDATION
OR
TAKE
When actions involving a common question

of law or fact are pending before the court, it
may order joint hearing or trial of any or all
the matters in issue in the actions, it may
order all actions consolidated. Then it may
make such orders concerning proceedings
therein as may tend to avoid unnecessary
costs / delay403
MAY
THERE
BE
CONSOLIDATION
ALTHOUGH ACTIONS ARE PENDING IN
DIFFERENT COURTS
Yes, involving the consolidation of civil
action WITH criminal action, if filed before
criminal action and trial has not yet
commenced.404
PURPOSE
OF
CONSOLIDATION
ALLOWING
The purpose of allowing consolidation is to

avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clearing
of dockets, simplify the work of trial court,
save unnecessary expenses / costs.
1.NOTE though that if actions involve a
common question of law or fact because
they arise from a single cause of action
between the same parties, the remedy is
dismissal
on
litis
pendentia,
not
consolidation.
WHEN CAN SEPARATION TAKE PLACE
AND WHAT DOES IT COVER
Covers any claim, cross-claim, counterclaim
or third party claim or any separate issue or
of any number of claims, cross-claims,
counter claims, third party complaints, or
issues in furtherance of convenience or to
avoid prejudice.405
RULE 32 TRIAL BY COMMISSIONER
402 Civil Code, Article 2030

404 Section 1, Rule 111 of the Rules on Criminal Procedure
104
WHEN RESORTED TO
Trial by commissioners may be resorted to
upon order of the court, which will then refer
any or all issues when: (a)Parties agree in
writing and the commissioner may either be
agreed upon or appointed by the Court (b)
When parties do not consent, on courts own
motion or upon application of either party, if
may be directed in the following: (1)Trial of
an issue of fact requires examination of a
long account (2)The taking of an account is
necessary for the information of the court
before judgment or for carrying judgment / or
order into effect (3)A question of fact, other
than upon the pleadings arises upon motion
or otherwise, in any stage of the case, or for
carrying a judgment or order into effect.406
1.The term commissioner may include a
referee, an auditor or examiner407
2.A commissioner is designated or
authorized
by
an
ORDER
OF
REFERENCE which will specify or limit his
powers, direct him to report only on or upon
particular issues or do or perform particular
acts, receive or report evidence only and fix
date for beginning / closing hearings and for
the filing of the report.
2.1
He shall then have and exercise the
power to: (a)Regulate the proceeding before
him (b)Do all acts and take all measures
necessary or proper for the efficient
performance of his duties upon the order
(c)Issue subpoenas (d) Swear
witnesses
(e)Unless otherwise provided, rule upon the
admissibility of evidence408
3.THE
TRIAL
/
HEARING
SHALL
PROCEED IN ALL RESPECTS AS IT
WOULD BE HELD IN COURT.
PROCEDURE
1.Commissioner takes oath and be sworn to
a faithful and honest performance of his
duties409
2.Upon receipt of the Order of Reference,
and unless otherwise stipulated he shall
forthwith set a time and place for the first
meeting of the parties and counsel within 10

105
days after the date of the order of reference,

and shall notify parties / counsel410
3.If parties / counsel fail to appear, he may
proceed ex-parte or in his discretion, adjourn
the proceedings, giving notice to the absent
party or counsel of the adjournment411
4.He shall avoid delay as he is duty bound
to proceed with all reasonable diligence.
Either party on notice to other parties and
the commissioner may apply for a court
order to expedite proceedings / report412
5.If witness refuses to obey a subpoena or
give evidence. It shall constitute contempt of
the appointing court 413
6.Upon completion of trial / hearing /
proceeding he shall file with the court has
report in writing upon the matters submitted
to him by the order of reference. When
powers are not specified or limited, he shall
set forth his findings of fact and conclusions
of law in his report. He shall also attach all
exhibits, affidavits, depositions, paper and
transcripts of the testimonial evidence
given414
7.Notice is then given by the clerk to the
parties of the filing of the report, they shall
then be allowed 10 days within which to
signify objections to the findings in the
report, is so desired.
7.1
NOTE: Objections to the report
based on grounds available to the parties
during the proceedings before the
commissioner, other than as to the findings /
conclusions, shall not be considered unless
made before the commissioner.415
8.Upon expiration of the period, the report
shall be set for hearing, after which the court
shall issue an order adopting, modifying,
or rejecting the report in whole or in part or
recommitting it with instructions or requiring
the parties to present further evidence to the
commissioner416
9.If the parties stipulate that the
commissioners findings of facts shall be

106
final, only questions of

thereafter considered. 417
law
shall
be
9.1Note
that
the
findings
of
the
commissioner are merely advisory and are
not absolutely binding upon the court.418
EXPENSES / COMPENSATION
They shall be reasonable as warranted by
the circumstances and are to be taxed as
costs against the defeated party or
apportioned as justice requires419
WHEN
REFERENCE
TO
COMMISSIONERS IS REQUIRED BY THE
RULES
Reference to commissioners is required in
the following cases: (a)Expropriation under
Rule 67 to determine just compensation
(b)Partition under Rule 69, when parties
cannot agree as to the manner of partition.
RULE 33
EVIDENCE
DEMURRER
TO
THE
WHO FILES AND WHEN FILED

The defendant is the party who may move
for the dismissal of the action after
presentation by the plaintiff of evidence ON
THE GROUND that upon the facts and the
law, plaintiff has shown no right to relief.420
EFFECTS OF FILING AND RESOLUTION
1.If granted, the action is dismissed, BUT if
appealed and reversed, he loses his right to
prevent evidence and judgment is rendered
in favor of the plaintiff421
1.1An order dismissing a case for
insufficiency of evidence is a judgment on
the merits, it is imperative that it be a
reasoned decision and distinctly stating
therein the facts and the law on which it is
based.422
2.If denied, defendant may present his
evidence as it does not constitute a waiver
of right to do so.

418 Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
421 Quebral v Court of Appeals, 252 SCRA 353
422 Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
107
3.It is an error on the part of the Court of

Appeals to order REMAND, if dismissal is
elevated to it on appeal, it must decide on
the evidence adduced by the plaintiff.423
DISTINGUISHED FROM CRIMINAL CASES
(a) In both civil and criminal actions, the
basis for both is the insufficiency of
evidence. (b) In a civil action, dismissal by
demurrer is by motion only, while in a
criminal action, dismissal by demurrer is
upon the courts initiative or motion giving
the prosecution an opportunityto be heard.
(c) In a civil action, leave is not required
prior to filing, while in a criminal action leave
may / may not be obtained. If obtained no
waiver of right to present evidence if
denied and if there is no leave, it is a
waiver (d) In a civil action, if granted,
plaintiffs remedy is appeal, while in a
criminal action, if granted, there is no appeal
as such will constitute double jeopardy.
RULE 34
PLEADINGS
JUDGMENT
ON
THE
JUDGMENT ON THE PLEADINGS

Can be had if the ANSWER fails to tender
an issue or otherwise admits the material
allegations of the complaint 424
1.There is no MOTU PROPIO RENDITION
OF JUDGMENT as it is always by motion.
2.An answer fails to tender an issue when it
fails to comply with the requirements of
specific denial or is deemed to have
admitted the allegations in the complaint425
3.An answer admits the material allegations
when it expressly confesses the truthfulness
thereof or where it omits to deal with them
all.
4.NOTE that when an answer raises factual
issues involving damages, it is not proper to
render judgment on the pleadings as
presentation of evidence is required.
WHO MAY MOVE FOR JUDGMENT ON
THE PLEADINGS
423 Radiowealth Finance Company v Del Rosario, 335 SCRA 288

425 Supra, Sections 8,9 and 11, Rule 8
108
Only the plaintiff in original complaint, or of

the counter-claim, or of the cross claim, or of
the third party complaint may so move for
judgment on the pleadings.
WHEN NOT ALLOWED
Judgment on the pleadings is not allowed in
cases of: (a)Declaration of nullity of
marriage (b)
Annulment of marriage (c)
Legal separation. In these cases, the
plaintiff is required to prove the material
facts regardless of whether the answer
tenders an issue.
RULE 35 SUMMARY JUDGMENT
WHAT IS SUMMARY JUDGMENT
Is a devise for weeding out sham claims or
defenses at an early stage of the litigation
thereby avoiding the expense / loss of time
involved in a trial. Its very object is to
separate what is formal or pretended in
denial or averment from what is genuine and
substantial so that only the latter may
subject a suitor to the burden of trial.
1.This is also known as ACCELERATED
JUDGMENT426
WHO MAY MOVE FOR
JUDGMENT AND WHEN
SUMMARY
Either plaintiff or defendant may move for a

summary judgment:
1.If plaintiff or claimant (of original
complaint / counterclaim / cross-claim), he
may file the motion at any time after the
pleading in answer to his claim has been
filed on the ground that although there is an
apparent issue, the same is SHAM /
FALSE427
.Example:
Answer
admits
obligation but states that the amount is
wrong or less than that claimed. If plaintiff
has
proof
that
there
is
written
acknowledgment that as of a date or period
prior to that of the filing, the defendant was
aware of the true amount, there can be
summary judgment.
2.If movant is the defending party, he may
file the motion at any time before or after he
files his answer on the ground that plaintiffs
claim against him is SHAM or FALSE 428
426 Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
109
3.An issue is sham or false if it is not

genuine. GENUINE means that the issue of
fact is one that calls for the presentation of
evidence.429
4.In either case, the motion must be filed
along with supporting affidavits, depositions
or admissions.
5.The PROCEDURE for the filing and
resolution of a motion for summary judgment
is as follows:
1.Plaintiff/Defendant
serves
on
the
defendant/plaintiff a copy of the motion at
least 10 days before the date of hearing
specified in the motion.
2.The
defendant/plaintiff
MAY
serve
opposing
affidavits,
depositions
or
admissions at least 3 days before the date
of the hearing.
3.Court hears the motion.
4.If after hearing, it finds that the motion filed
by PLAINTIFF justified, thus there is no
genuine issue as to any material fact, it will
render summary judgment for the plaintiff. If
not, it will deny, set the case for pre-trial,
then trial. If filed by the defendant and is
justified, the complaint is dismissed,
otherwise the case proceeds with the filing
of answer or pre-trial is set and conducted.
FORM OF AFFIDAVITS / SUPPORTING
DOCUMENTS
1.They shall be made on personal
knowledge, setting forth such facts as would
be admissible in evidence and shall show
affirmatively that the affiant is competent to
testify to the matters stated therein. Certified
copies of all papers / parts thereof shall be
attached and served therewith.430
2.If affidavits have been determined to the
satisfaction of the court that they are
presented in bad faith or solely for the
purpose of delay, the Court may forthwith
order the offending party to pay reasonable
expenses which may have been incurred by
the other party, including attorneys fees. It
may also find / adjudge, after hearing, that
attending party / counsel are guilty of
contempt.431
429 Excelsa Industries v Court of Appeals, 247 SCRA 560

110
EFFECT OF THE RENDITION

SUMMARY JUDGMENT
OF
1.The aggrieved party may appeal the

summary judgment as such is final judgment
as defined by Section 1, Rule 41.
2.IF DENIED, it is not appealable as order of
denial of motion is interlocutory THOUGH
certiorari may lie if the rendering of a
summary judgment is clear, plain and patent
but the court refuses or declines to render it.
WHEN CAN THERE BE
SUMMARY JUDGMENT
A PARTIAL
When the Court finds that a judgment

cannot be rendered upon the whole case or
for all the reliefs because there are
controverted facts which require trial. A
PARTIAL SUMMARY JUDGMENT is not
appealable and shall be taken together with
the judgment that a trial court will render
after trial. Thus it cannot be executed.432
DISTINGUISHED FROM JUDGMENT ON
THE PLEADINGS
(a) A Judgment on the Pleadings is available
when there is no genuine issue as answer
fails to tender an issue or otherwise admits
material
allegations,
while
Summary
Judgment is available when there is an
apparent issue but is a sham, fictitious or
false (b) A Judgment on the Pleadings is
based exclusively on the pleadings
(complaint / answer), while Summary
Judgment is based not only on pleadings
but also on affidavits, depositions and
admissions, showing that except as to
damages there is no genuine issue (c) A
Judgment on the Pleadings can be filed only
after an answer has been filed, while in
Summary Judgment, there may or may not
be an answer (d) A Judgment on the
Pleadings can only be had by the plaintiff,
while in Summary Judgment, either plaintiff
or defendant may move for it (e) a motion for
Judgment on the Pleadings is required to
be served on adverse party at least 3 days
prior to the hearing, while a motion for
Summary Judgment requires service at least
10 days prior to the hearing
1.Judgment on the Pleadings is a judgment
on facts as pleaded, Summary Judgment is
a judgment as summarily proven by
affidavits, depositions, admissions. If an

111
answer tenders an issue, there can be no

Judgment on the Pleadings but there can be
Summary Judgment, if issue/s is later shown
to be false, sham or fictitious.
RULE 36 JUDGMENTS,
ORDERS, AND ENTRY THEREOF
REQUISITES
ORDER
OF
FINAL
A JUDGMENT/FINAL
The requisites of a judgment or final order

are: (1) It must be in writing (2) It must be
personally and directly prepared by the
judge (3)
It must state clearly and
distinctly the facts and the law on which it is
based (4)
It must be signed by the
judge (5) It must be filed with the clerk of
court.433
1.NOTE that a judge who has been
reassigned can pen a decision as long he is
still an incumbent judge.434
WHEN IS JUDGMENT RENDERED
Ordinarily after trial, except in judgment on
the pleadings, summary judgment, judgment
by compromise, judgment based on
stipulation of facts, judgment upon
confession, order of dismissal in instances
when it considered as an adjudication on the
merits, judgment in cases covered by the
Rules of Summary Procedure.
1.It is the filing of the judgment or final order
with the clerk of court that constitutes
RENDITION OF JUDGMENT, not the date
of the writing of the decision or judgment,
nor the signing thereof or even promulgation
thereof.435
2.A MEMORANDUM DECISION is one
which adopts by references findings of facts
and conclusions of law contained in the
decision of an inferior tribunal. Note that this
does not violate the rule as to statement of
the facts and law. This kind of a decision can
only be rendered by an appellate court.
3.A SIN PERJUICIO JUDGMENT is one
which is without a statement of facts and is
to be supplemented later by the final
judgment. Such a judgment is void.

434 ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
435 Castro v Malazo, 99 SCRA 164
112
DUTY OF THE CLERK OF COURT WHEN

JUDGMENT BECOMES FINAL
If no appeal or motion for reconsideration or
new trial is brought within the time provided,
the judgment / final order shall forthwith be
entered by the clerk in the BOOK OF
ENTRIES OF JUDGMENT. The date of
finality shall be deemed the date of entry
and shall contain the dispositive portion and
signed by the clerk which a certificate that
such judgment / final order has become final
and executory.436
1.Note that date of entry retroacts to date of
finality. Hence, both occur simultaneously by
operation of law.
2.JUDGMENTS THAT ARE FINAL AND
EXECUTORY CAN BE CORRECTED but
limited only to NUNC PRO TUNC
amendments or those that are merely
clerical or typographical.
3.Correction or amendment is also allowed if
purpose is to clarify an ambiguity caused by
an omission or mistake, judgment / final
order.
4.A COMPROMISE after finality of a
judgment is allowed. The basis of the
allowance is the principle of novation, which
is a mode of extinguishing an obligation.437
Pet for extraordinary relief- GR 167651, San
Pablo vs. marina May 10, 2005
JUDGMENTS MAY BE
1.Given for or against one or more several
plaintiffs or for or against one or more
several defendants. Courts, when justice
demands require parties on each side to file
adversary
proceedings
as
between
themselves to determine their ultimate rights
/ obligations.438
2.In an action against several defendants,
the courts if proper may render judgment
against one or more, leaving the action to
proceed against the others.439 Example:
Judgment against a surety for admitted
liability.

437 Magbanua v. Uy, 458 SCRA 185
113
3.Separate judgments may be rendered

when more than one claim for relief is
presented, the court at any stage upon
determination of the issues material to a
particular claim and all counter claims
arising therefrom may render a separate
judgment disposing of the claim and
proceeding with the others. BUT, it may stay
execution or enforcement until rendition of
subsequent judgment/s and may prescribe
such conditions to secure benefit thereof to
the party in whose favor the judgment is
rendered.440 Example: It may occur when
causes of action have been joined
4.Judgment against entity without juridical
personality it shall set forth the individual
names / proper names if known of persons
composing it.441
RULE
37
NEW
RECONSIDERATION
TRIAL
OR
WHEN FILED
A motion for new trial or reconsideration may
be filed within the period for taking an
appeal.442
GROUNDS FOR A MOTION FOR NEW
TRIAL
1. Fraud, Accident, Mistake, Excusable
Negligence which ordinary prudence could
not have guarded against and by reason of
which the aggrieved party was probably
impaired in his rights.
1.1
Fraud should be extrinsic or
collateral, which refers to such acts that
prevents a party from having a trial /
presenting his case in court. It refers to all
kinds of deceptions, whether through
insidious machination, manipulation or
concealment or misrepresentation that leads
another party to error.443 Examples are: false
promise to compromise or connivance of
lawyer with adverse party. This does not
include INTRINSIC FRAUD or acts of a
party at trial that prevents fair determination.
Examples are: perjury, falsification.
1.2Accident
is
circumstance, or
a
fortuitous
event,
happening; an event

443 Maestrado v Court of Appeals, 327 SCRA 678
114
happening without any human agency or if

happening wholly or partly through human
agency, is an event which under the
circumstances is unusual or unexpected by
the person to whom it happens. 444 sickness
of a party, lack of notice when sent to
other address.
1.3Mistake refers to some unintentional act,
omission, or error arising from ignorance,
surprise,
imposition,
or
misplaced
confidence. It pertains generally to mistake
of fact, not of law.445 failure to answer / act
because he believed it unnecessary
because of a compromise or other
document.
1.4Excusable 446Negligence is an excusable
omission to do something which a
reasonable
man,
guided
by
those
considerations which ordinarily regulate the
conduct of human affiants, would do; or the
reasonable doing of something which a
prudent or reasonable man would not do.
failure is really that of the party or counsel
non submission on time because of distance
traveled.
2. Newly Discovered Evidence, which the
aggrieved party could not with reasonable
diligence, have discovered or produced at
the trial and which would probably alter the
result.
2.1
Hence,
the
requisites
are:
(a)Evidence is discovered after trial (b)Such
could not have been discovered and
produced at the trial with reasonable
diligence (c)
Evidence is material NOT
cumulative, corroborative, or impeaching,
and is of such weight that, if admitted, could
probably change the judgment.447
GROUNDS
FOR
RECONSIDERATION
MOTION
FOR
The grounds for a motion for reconsideration

are: (a)Award of excessive damages (b)
Insufficiency of evidence to justify the
decision or final order (c) Decision / final
order is contrary to law
HOW FILED / CONTENTS
444 Jarco Marketing v Court of Appeals, 321 SCRA 375

445 Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
446 Mckee v Intermediate Appellate Court, 211 SCRA 517
447 Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
115
It shall be made in writing stating the

ground/s, written notice of which shall be
served by the movant on the adverse party.
1.If the Motion for New Trial is based on
Fraud, Accident, Mistake or Excusable
Negligence, it should be supported by
affidavits of merit, which may be rebutted by
affidavits. The requirement of an affidavit is
essential because obviously a new trial
would be a waste of the courts time if the
complaint turns out to be groundless or the
defense ineffective.448
2.If based on NEWLY DISCOVERED
EVIDENCE it should be supported by
affidavits of the witnesses by whom such
evidence is expected to be given or by duly
authenticated
documents
which
are
proposed to be introduced as evidence.
3.If MOTION FOR RECONSIDERATION, it
should point out specifically the finding /
conclusions which are not supported by the
evidence / contrary to law, making express
reference to testimonial / documentary
evidence or provisions alleged to be
contrary to such findings or conclusions.
3.1
IF NOT, the motion is considered a
PRO FORMA MOTION. It does not toll the
reglementary period of appeal.449 Note also
that such a motion without notice of hearing
and proof of service has the same effect450
IF A MOTION FOR NEW TRIAL IS FILED,
WHAT ENSUES
Court may either deny or set aside the
judgment or final order and grant a new
trial451
1.IF denied, another motion be filed, if it is
based on a ground NOT EXISTING NOR
AVAILABLE when the first motion has
filed.452 Note that a motion for new trial is an
omnibus motion, thus it should include all
grounds then available as those not included
are deemed waived.
2.IF granted, the effects are (a) original
order / judgment is vacated (b) the action
shall stand trial de novo (c) recorded
448 Yap v Tanada, 163 SCRA 464

449 Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39
SCRA 552
450 Firme v Reyes, 92 SCRA 713
116
evidence, insofar as material or competent

to establish the issues, shall be used at the
new trial without need to retake therein453
IF MOTION FOR RECONSIDERATION IS
FILED WHAT ENSUES
Court may deny or amend its judgment /
final order if it finds that excessive damages
are awarded, or that it is contrary to the
evidence or the law454
1.If denied no second motion for
reconsideration is allowed of the judgment
or final order. NOTE THOUGH that if the
subject is not a judgment / final order or is
an interlocutory order which does not
dispose of a case completely but leaves
something more to be done upon its merits,
a 2nd motion for reconsideration may be
allowed.
2.The filing of a second motion for
reconsideration is a prohibited pleading.
Thus it does not toll the running of the
reglementary period of appeal.455
OTHERS
1.The periods for resolving the motions are:
(a) MTC / RTC within 30 days from the
time it is submitted for resolution 456 (b) Court
of Appeals- within 60 days after if declares it
submitted for resolution (c) Supreme Courtno period is prescribed
2.THE DENIAL OF BOTH MOTIONS IS
NOT
APPEALABLE,
IT
IS
THE
JUDGMENT / FINAL ORDER THAT IS
APPEALABLE.457
RULE 38 RELIEF FROM JUDGMENT,
ORDERS OR OTHER PROCEEDINGS
GROUNDS UPON WHICH IT IS TO BE
BASED
Judgment / final order is entered, or
proceeding is thereafter taken against him
through FRAUD, ACCIDENT, MISTAKE,
EXCUSABLE NEGLIGENCE. This means
that the FAILURE TO ACT ON JUDGMENT /
FINAL ORDER / PROCEEDING ARE DUE

455 Hongria v Hongria-Juarde, 425 SCRA 504
457 Barnes v Reyes, 411 SCRA 538
117
TO Fraud, Accident, Mistake or Excusable

Negligence. This also applies to a failure to
take an appeal is due.
1.The object to the petition is that the
judgment, order, or proceeding be set aside
or that the appeal be given due course.
2. The petition must be VERIFIED.458
3.The other ways by which a final and
executory judgment may be set aside is by
Petition for Certiorari under Rule 65 and
Rule 46 and by Annulment of Judgment
under Rule 47.459
4.The petition is premised on equity. It
should therefore be granted only in
exceptional cases. Petitioner must be able
to prove fraud, accident, mistake or
excusable negligence and the existence of
a good and substantial cause of action or
defense, as the case may be.460
5.It cannot be availed of if there is another
remedy in law461and is available only against
a final and executory judgment.462
6.Note though that is the case is covered by
the Rules on Summary Procedure, a petition
for relief is a prohibited pleading.463
WHEN AND WHERE FILED
1.It is to be filed within 60 days after he
learns of the judgment final order /
proceeding but not more than 6 month after
such judgment / final order was entered or
such proceeding taken.464
1.1A few days after expiration of the 60 day
period is not entirely fatal as long as it is still
filed within the 6 months period.465
1.2But if it is a judgment by compromise, the
6 months period runs from date of rendition,
because a judgment upon a compromise is
immediately executory and considered to
have been entered on the date it was
approved by the trial court.466

459 Arcelona v Court of Appeals, 280 SCRA 20
460 Torno v Intermediate Appellate Court, 166 SCRA 742
461 Alquesa v Cavada, Jr. 3 SCRA 428
462 Valencia v Court of Appeals, 352 SCRA 72
463 Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
465 Mago v Court of Appeals, 303 SCRA 600
466 Manipor v Ricafort, 407 SCRA 298
118
1.3The 6 months period is reckoned from

entry of judgment or final order, not from its
rendition or finality467while from learning
means from notice of judgment or final
order468
2.It is to be filed in the same case and in the
same court where the judgment / final order
was entered or where proceeding is taken.
PROCEDURE
1.Filing of verified petition accompanied by
affidavits showing FAME and the facts
showing
the petitioners good
and
substantial cause of action or defense, as
the case may be (grounds constituting his
cause of action / defense)
2.Order issued requiring adverse party to
answer within 15 days from receipt 469 and if
warranted a writ of preliminary Injunction
may be issued.470
3.Adverse party answers, but if he does not,
he cannot be declared in default.
4.Court hears and may grant relief if the
allegations are true or deny if not true.
4.1
If granted, the assailed final order /
judgment / proceeding is set aside and
proceedings taken as if a timely motion for
new trial has been granted.471 There are in
effect two hearings: the first is as to the
merits of the petition, the second is as the
merits of the principal case.
4.2If denied, the order is not appealable 472
but may be subject of certiorari under Rule
65
5.Court hears the case as if a timely motion
for new trial or reconsideration has granted.
If the subject is denial of an appeal, the
lower court shall be required to give due
course to the appeal and elevate the records
as if a timely and proper appeal has been
made.473
6.Judgment is rendered and is appealable
467 Bayog v Natino, 258 SCRA 378

468 Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
472 Supra, Section 1(b), Rule 41
119
DISTINGUISHED FROM A MOTION FOR

NEW TRIAL
They are distinguished as follows: (a) a
motion for new trial is filed before judgment
becomes final, while a petition for relies if
filed after a judgment becomes final (b) a
motion for new trial applies to judgments /
final
orders, while a petition for relief
includes proceedings (c) the grounds for a
motion for new trial includes newly
discovered evidence, while a petition for
relief is limited to FAME (d) a motion for new
trial is filed within the period for perfecting
an appeal, while a petition for relief is filed
within 60 days from knowledge but
within 6 months from entry of judgment (e)
a motion for new trial if denied allows an
appeal, while a petition for relief from
judgment does not allow an appeal (f) a
motion for new trial is a legal remedy, while
a petition for relief is a remedy in equity (g)
a motion for new trial requires no
verification, while a petition for relief needs
to be verified.
RULE 39 EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS
TWO KINDS OF EXECUTION
1.
COMPULSORY is one which issues
as a matter of right, or motion, upon a
judgment or order that disposes of the action
or proceeding UPON EXPIRATION of the
period to appeal, if no appeal is taken
therefrom / is perfected. It also issues when
appeal is duly perfected and finally resolved.
a.It may be applied for in the court of origin,
on motion of judgment obligee submitting
certified true copies of the judgment / final
orders / orders sought to be enforced and
ENTRY thereof, with notice to the adverse
party. There is no need for return of records.
b.It may also be applied for in the appellate
court, on motion in the same case, when the
interest of justice so requires, direct the
court of origin to issue the writ of execution
in the event of the refusal of the court of
origin to issue the writ. 474
c.A motion is required as there may be
questions / disputes as to finality or amounts
to be stated in the writ.

120
2.
DISCRETIONARY is one that is
issued, on motion, of the prevailing party for
good reasons. This is also known as
EXECUTION
PENDING
APPEAL
/
EXCEPTIONAL EXECUTION 475
a.It is filed in the trial court while it has
jurisdiction over the case and is in
possession of either the original record or
the record on appeal, as the case may be, at
the time of the filing of the motion.476 The
COURT, may in its discretion, order
execution of judgment / final order even
before the expiration of the period to appeal.
If the trial court has lost jurisdiction, it is to
be filed with the appellate court.
a.1A court LOSES JURISDICTION when
there is perfected appeal and the period to
appeal has expired. When a record on
appeal is required, it loses jurisdiction OVER
THE SUBJECT OF THE APPEAL upon
perfection of the appeal and expiration of
the period to appeal.
a.2
The REQUISITES OF EXECUTION
PENDING APPEAL are: (1) A motion by the
prevailing party with notice to the adverse
party (2)There must be good reason for
execution pending appeal (3)
The good
reason must be stated in a special order.
They must constitute superior circumstances
demanding urgency which will outweigh the
injury or damage should the losing party
secure a reversal of the judgment on
appeal.477EXAMPLES
OF
GOOD
REASONS are: deterioration of the goods,
prevailing partys inability to enjoy the
decision, or its becoming illusory. In a recent
case, OLD AGE was found to be a good
reason.478 NOTE: corporations financial
distress was not considered a good reason.
b.DISCRETIONARY
EXECUTION
BE
STAYED upon approval by the proper court
of a sufficient supersedeas bond filed by the
party against whom it is directed
CONDITIONED
UPON
THE
PERFORMANCE OF THE JUDGMENT /
FINAL ORDER allowed to be executed in
case finally sustained in whole in part. The
bond may then be proceeded against on

476 Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
477 Jaca v Davao Lumber Company, 113 SCRA 107
478 FEBTC v Toh, Sr. 404 SCRA 590
121
motion with notice to the surety.479 BUT, the

mere filing of a bond by a successful party
allow execution pending appeal nor
constitute good ground.480
b.1There are JUDGMENTS NOT STAYED
BY APPEAL such as judgments in
injunction, to include a judgment dissolving
it481 receivership, accounting and support
and such other judgments as are now or
hereafter be declared to be immediately
executory, shall be enforceable upon their
rendition, they shall not be stayed by an
appeal taken therefrom, unless otherwise
ordered by the trial court. IF STAYED, it shall
be upon such terms as to bond or otherwise
as may be considered proper for the security
/ protection of the rights of the adverse party.
ON APPEAL THOUGH, the appellate court
may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting or award
of support.482
b.2Judgments in Forcible Entry / Illegal
Detainer, if against the defendant are
immediately executory.483 The same is true
of a judgment by compromise.484
b.3IF
THERE
ARE
SEPARATE
JUDGMENTS / OR SEVERAL OR PARTIAL
JUDGMENTS, they may executed under the
same terms and conditions as execution of a
judgment / final order pending appeal.485
b.4IF EXECUTION IS GRANTED BUT
JUDGMENT
/
FINAL
ORDER
IS
REVERSED ON APPEAL totally / partially
or annulled, on appeal or otherwise, the trial
court, on motion, may issue orders of
reparation or restitution of damages as
equity and justice may warrant under the
circumstances.486 The phrase or otherwise
applies to reversal after a petition for relief
has been granted under Rule 38 and upon a
favorable judgment in a petition for
annulment of judgment under Rule 47
b.5The Court of Appeals has no authority to
issue immediate execution pending appeal
of its own decision. Discretionary execution

480 International School v. Court of Appeals, 309 SCRA 474
481 ITC v PTA, 341 SCRA 90
484 Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
485 Supra, Section 2 (b), Rule 39
122
applies only to a judgment or final order of

the trial court.487
WHAT ARE / OR MAY BE THE SUBJECT
OF EXECUTION
Only judgments or final orders, or one which
disposes of the whole subject matter or
terminates a particular proceeding or action,
leaving nothing to be done but to enforce by
execution that which has been determined.
AS OPPOSED TO -Interlocutory orders
which cannot be enforced by execution, one
that does not dispose of a case completely,
but leaves something to be done on the
merits.
1.An
EXCEPTION is
support pendente lite.488
a judgment for
2.Distinguishing a final judgment or order

from one which has become final and
executory. A final judgment is one that
finally disposes of a case, leaving nothing
more to be done by the court in respect
thereto. It is an adjudication on the merits.
Once rendered, the task of the court is
ended, as far deciding the controversy or
determining rights and liabilities of litigants.
Nothing more is to be done but to await the
parties next move, and ultimately, to cause
execution of the judgment once it becomes
final and executory.489
HOW CAN A FINAL JUDGMENT / ORDER
BE ENFORCED
A final and executory judgment may be
enforced by (1) By motion within 5 years
from date of entry of judgment (2)By action
after the lapse of 5 yrs from date of entry of
judgment but before barred by statute of
limitations, which is 10 years. This is known
as action to revive judgment.490
1.The revived judgment may also be
enforced by motion within 5 yrs from date of
entry, and thereafter by action before it is
barred by the statute of limitations. The
purpose of the action is not to re-examine
the issues as the cause of action is the
judgment itself and not the merits of the
original action.491
487 Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
489 Denso Philippines, Incorporated v IAC, 148 SCRA 280
491 Laperal v Ocampo, 410 SCRA 339
123
2.RECONCILING WITH ACTIONS UPON A

JUDGMENT under Article 1144, NCC
WHICH PRESCRIBES IN 10 YEARS. The
Rules of Court refer to the manner of
execution of the judgment.
3.Note that this is not applicable in land
registration cases or other special
proceedings, IN CIVIL ACTIONS ONLY.
4.There are however instances when
judgment / final order can still be enforced
by motion even after lapse of 5 years when
the delay is caused or occasioned by the
actions of the judgment obligee or incurred
for his benefit or advantage. 492 The liberal
construction of the rule resulting in non
inclusion of the period of delay occasioned
by the acts of the judgment oblige in the
counting of the period was resorted to as
strict adherence to the letter of the law
would result in absurdity and manifest
injustice.493
ISSUANCE, FORM, CONTENTS OF A
WRIT OF EXECUTION
A writ of execution shall (1)Issue in the
name of RP from the Court that granted the
judgment (2)State the name of court, case
number, title, and dispositive portion (3)
Require the sheriff or other proper officer
to whom it is directed to enforce the writ
according to its terms, in the manner herein
provided: (a) execution be against property
of judgment obligor, to satisfy judgment with
interest, out of his real or personal property
(b)
if against real or personal property,
in the hands of personal representatives,
heirs, devisees, legatees, tenants trustees
of the judgment obligor, to satisfy the
judgment, with interest, out of such property
(c)
if it be for sale of real / personal
property, to sell it, describing it, and apply
the proceeds in conformity with the
judgment, the material parts of which shall
be recited in the writ (d) if it be for delivery of
the possession of real / personal property, to
deliver the possession of the same,
describing it, to the party entitled thereto and
to satisfy any costs, damages, rents, profits
covered by the judgment out of the personal
property of the person against whom it was
rendered, and if no sufficient personal
property be present, out of real property (e)
in all cases, the writ shall specifically state
the amount of interest, costs damages,
492 Camacho v Court of Appeals, 287 SCRA 611

493 Republic v Court of Appeals, 260 SCRA 344
124
rents, profits due as of the date of issuance

of the writ aside from the principal obligation
under judgment494
MANNER OF EXECUTION
I.FOR SUMS OF MONEY
1.Immediate payment on demand from
judgment obligor payable in cash of certified
bank check payable to the obligee or any
form acceptable to him plus lawful fees to be
turned over to the clerk of court of the court
that issued the writ.
If judgment obligee is not present to receive
the amounts, it shall be delivered by
judgment obligor to the sheriff, turning in all
amounts on the same day to the clerk of
court or if not practicable, to deposit in the
nearest government depository bank of
Regional Trial Court in the locality, then
arrangements are then made for remittance
to clerk of court issuing the writ for delivery
to the judgment obligee. IN NO CASE
SHALL SHERIFF DEMAND PAYMENT BY
CHECK PAYABLE TO HIM
2.Satisfaction by levy if not paid in cash,
the sheriff shall levy on the properties of
judgment obligor of any kind / nature which
may be disposed of for value and not
otherwise exempt from execution giving
obligor the option to immediately choose
which property or part thereof may be levied
upon to satisfy judgment. If not sheriff shall
levy on personal properties first, if any, then
on real properties if insufficient to answer for
judgment. Sheriff can only sell sufficient
portion of the personal / real property levied
upon when there is more property then is
sufficient to satisfy judgment, on so much of
it to satisfy judgment is to be sold. The
conduct of the SALE SHALL FOLLOW THE
PROCEDURE LAID DOWN BY THE RULES
TO IMPLEMENT SALE OF PROPERTY.
2.1
EFFECT OF LEVY. A levy on
execution shall create lien in favor of the
judgment obligee over the right, title and
interest of the judgment obligor in such
property at the time of levy subject to
liens / encumbrances then existing effect
then on 3rd persons depends on when their
liens / encumbrances if any, was
annotated or interposed.495

125
2.2PROBLEM if LEVY is made beyond the

period of 5 years from entry of judgment.
The same is NOT VALID as lifetime or a writ
of execution is 5 years from date of entry of
judgment.496
3.Garnishment of debts and credits. The

officer may levy on debts due the judgment
obligor and other credits. Examples: bank
deposits, financial interests, royalties,
commissions, and other personal property.
These are not capable of normal delivery
and are in the possession and control of
third parties.
3.1
Levy shall be made by serving
notice on the person owing such debts or
having in his possession or control such
credits to which the judgment obligor is
entitled.
3.2
The garnishee, shall then make a
written report to the court from service of
notice stating whether or not the judgment
obligor has sufficient funds or credits to
satisfy the judgment the garnished amount
shall then be delivered directly to the
judgment obligee within 10 working days
from service of notice on him requiring
delivery less lawful fees to be paid directly
to the Court.
3.3
If there are 2 or more garnishees
the judgment obligor shall have the right to
indicate the garnishee/s who shall deliver,
otherwise it shall be the choice of the
judgment obligee.497 (Section 9)
4.Writ is to be returned to the Court issuing it
immediately after judgment has been
satisfied in part or in whole. If not / cannot
be satisfied in full within 30 days from
receipt of the writ, the officer shall report to
the court and state the reason therefor. Such
writ will continue to be in effect during the
period within which judgment may be
enforced by motion, the officer shall then
make a report to the Court every 30 days on
the proceedings taken thereon until the
judgment is satisfied in full or its effectivity
expires. The returns / reports shall set forth
the proceedings taken, filed with the court
and copies promptly furnished parties.498

126
II.FOR SPECIFIC ACTS499

1.If CONVEYANCE, DELIVERY OF DEEDS
OR OTHER SPECIFIC ACTS party is
directed to comply if he fails to do so within
the period specified, court may direct the act
to be done at the cost of the disobedient
party, by some other person appointed by
the court and when so done it is as if done
by the disobedient party. If it involves real /
personal property located in the Philippines,
the court in lieu of directing a conveyance
thereof may by an order divest title and vest
it in others, which shall have the force and
effect of a conveyance executed in due form
of law.
2.If for SALE OF REAL/PERSONAL
PROPERTY the property is to be sold,
describing it, and apply the proceeds in
conformity with the judgment.
2.1
The procedure is as follows:
a.Notice must be given as follows:

1.Perishable property posting of written
notice (of time, place, sale) in 3 public
places preferably in conspicuous areas of
the municipal/city hall, post office, public
market, for such a time as may be
reasonable depending on circumstances.
2.Personal property posting of written
notice in 3 public places for not less than 5
days.
3.Real property posting of written notice in
3 public places for at least 20 days,
describing the property, where it is to be
sold, and if assessed value is in excess of
PHP 50,000.00, publishing the notice in a
newspaper of general circulation once a
week for 2 consecutive weeks.
IN ALL CASES written notice is also given
to judgment obligor at least 3 days before
the sale except in (a) notice is given at any
time in the same manner as personal
service of pleadings. 500
4.The CONTENTS OF NOTICE are the
place, date exact time not earlier than 9:00
am or later than 2:00 pm. The place may be
agreed upon, if not, Real/Personal property
not capable of manual delivery shall be sold
at the Office of the Clerk of Court of
Regional or Municipal Trial Court issuing the

127
writ. If capable of manual delivery, where

personal property is located.
5.If there is a sale WITHOUT NOTICE, the
officer is liable for punitive damages in the
amount of PHP 5,000 in addition to actual
damages sustained by injured person. IF
DEFACED / REMOVED before the sale /
satisfaction of the judgment, the person so
defacing or removing shall be liable to pay
PHP 5,000.00 plus actual damages. These
are recoverable upon motion.501
b.All sales shall be by public auction. This
applies also when property is levied upon.
Sale is made to the highest bidder, to start at
the exact time stated in the notice.
1.If sufficient property has been sold, no
more shall be sold and any excess
property / proceeds shall be delivered to the
judgment obligor or his representative,
unless otherwise directed by the court
EXAMPLE- other debts due to be paid
2.If sale is of real property consisting of
several known lots they must be sold
separately or if claimed by a 3rd person, he
may require it to be sold separately.
3.Personal property capable of manual
delivery it must be sold within view of
those attending and in such parcels so as to
bring the highest price.
4.The judgment obligor, if present may direct
the order in which the property is to be sold
when such property consists of several
parcels / known lots which can be sold to
advantage separately.
5.No officer or his deputies, can be a
purchaser, nor be interested directly or
indirectly in any purchase at such sale.502
6.By written consent of both judgment
obligor / obligee or their duly authorized
representatives, the auction sale may be
adjourned to any date or time agreed by
them. Without an agreement officer may
adjourn from day to day if it becomes
necessary.503
WHAT HAPPENS WHEN A PURCHASER
REFUSES TO PAY

128
Officer may again sell the property to the

highest bidder and shall not be responsible
for any loss occasioned thereby, like when it
is resold for less. But, the court may order
the refusing purchaser to pay unto the Court
such loss, and punish him with contempt if
he disobeys. Payment shall inure to the
benefit of party entitled to execution, unless
he has been satisfied, in which case to the
judgment obligor. IN ADDITION: officer may
thereafter reject all bids of such
purchaser.504
CAN JUDGMENT OBLIGEE PURCHASE
Yes, and if no 3rd party claim has been filed,
he need not pay the amount if it does not
exceed the amount of his judgment. If it
does he shall only pay the excess. 505
EFFECT OF PAYMENT BY JUDGMENT
OBLIGOR BEFORE SALE OF PROPERTY
ON EXECUTION
Sale is prevented by the payment required
by execution and cost incurred therein506
WHAT HAPPENS IF PROPERTY
CLAIMED BY THIRD PERSON
IS
Third person is called a third party claimant.

He is one who claims title to, or right of
possession of the property levied upon by
the sheriff. NOTE: there may be a 3 rd party
claimant
in
execution,
preliminary
attachment and replevin.
WHAT DOES 3RD PARTY CLAIMANT DO
He can file a 3rd party claim or a terceria by
executing an affidavit showing his title
thereto, or right of possession over the
property being levied upon, stating therein
the grounds of such title or right, serving a
copy thereof to the sheriff and judgment
obligee. If filed, sheriff is not obliged to
proceed unless the judgment obligee files an
indemnity bond in an amount not less than
value of the property. No action on the bond
may enforced by the third party claimant
unless filed within 120 days from date of the
filing of the bond. If bond is filed 3 rd party
claimant may vindicate his claim within the
period OR he may institute a separate
action to vindicate his claim BUT nothing

129
also prevents the judgment obligee from

claiming damages in the same or separate
action against a 3rd party claimant who files
a frivolous / spurious claim.
If writ is issued in the name of the RP, no
bond is required. Officer is to be represented
by the SOLGEN, and if damages are
assessed, it is to be paid out of the National
Treasury. 507
C.AFTER SALE, CONVEYANCE MADE AS
FOLLOWS
I. REAL PROPERTY a certificate of sale is
given stating the description of the property,
price paid for each distinct lot / parcel, whole
price paid and a statement that the right of
redemption shall or will expire one year
from date of registration of the certificate. 508
MAKING MENTION OF THE EXISTENCE
OF A 3RD PARTY CLAIM, IF ANY509 Note: the
requirement of mentioning a 3 rd party claim,
if any, applies also to conveyance over
personal property.
THE PARTIES ENTITLED TO REDEEM
ARE:
a.Judgment obligor, or his successor in
interest, in whole or any part of the property
b.A creditor having a lien by virtue of an
attachment, judgment, mortgage on the
property sold or on some part thereof,
subsequent to the lien under which the
property is sold. Such redeeming creditor is
called a REDEMPTIONER.510
TIME AND MANNER OF REDEMPTION
The judgment obligor / redemptioner may
redeem the property from the purchaser at
any time within 1 year from registration by
paying the amount of purchase, plus 1%
interest per month at the time of redemption,
together with the amounts of assessments /
taxes paid at the purchase and interest on
the same at the same rate, AND, if the
purchaser be also a creditor having a prior
lien to that of the redemptioner, other than
the judgment, the amount of the lien plus
interest.

130
Property so redeemed may be redeemed

within 60 days after the last redemption
upon payment of the sum paid, w/ 2%
interest thereon plus taxes / assessments
paid, and amount of liens held by
redemptioner prior to his own. AND SO
FORTH.
Written notice however of redemption must
be given to the officer who made the sale
and duplicate with the Registry of Deeds
and if any assessments / taxes / prior liens
are paid, notice must also be given to above
parties OTHERWISE, redemption can be
effected without paying taxes / assessments
/ liens. NOTE: Proof required of redemption
under Section 30
PROOF REQUIRED OF REDEMPTION
A redemptioner must produce to the officer,
or person from whom he seeks to redeem,
and serve with notice to the officer- a copy
of judgment or final order, certified by the
clerk of court. Mortgage / other lien
certified copy by the Register of Deeds / or
memorandum thereof and affidavit showing
amount due on the lien.511
IF JUDGMENT OBLIGOR REDEEMS
He must make all the payments required to
effect a redemption by a redemptioner.
Thereupon, no further redemption is allowed
and he is restored to his estate. The person
upon whom redemption payment is made
shall execute a Certificate of Redemption
after payment. Certificate is then filed with
the Office of the Registry of Deeds.512
WHO IS ENTITLED TO THE USE OF REAL
PROPERTY PENDING REDEMPTION
1.Person in possession at the time of sale or
entitled to possession afterwards may
continue to use it in the same manner as it
was previously used, or to use in the
ordinary course of husbandry or to make
necessary repairs to buildings thereon while
he occupies the property, BUT the court in
proper cases, may restrain the commission
of waste on the property by injunction on the
application of the purchaser / judgment
obligee with or without notice. 513

131
2.Rents, earnings and income shall belong

to the judgment obligor until the expiration of
his period for redemption. Neither shall the
purchaser or judgment obligee be entitled to
the same when such property is in the
possession of a tenant.514
IF NO REDEMPTION IS MADE
If no redemption is made within one year
from date of registration, the purchaser is
entitled to possession and conveyance; OR
if so redeemed whenever 60 days has
elapsed and no other redemption is made
and the time for redemption has expired, the
last redemptioner is entitled to possession
and conveyance. BUT, in all cases the
judgment obligor is entitled to have the
entire period of one year.
Officer shall execute the deed / or his
successor in interest with the same effect.
Once done, the purchaser / redemptioner
shall be substituted to and acquire all the
rights title and interest and claim of the
judgment obligor to the property as of the
time of the levy. Possession shall then be
given unless property is held by a 3rd party
adverse to the judgment obligor.515 Manner
of effecting transfer of possession is by writ
of possession.516
IF THE SALE IS SUBSEQUENTLY
RENDERED INFFECTIVE
If the purchaser of real property or his
successor in interest fails to recover
possession or is evicted therefrom AS A
CONSEQUENCE OF: irregularities in the
proceedings concerning the sale, judgment
has been reversed or set aside (RE:
RELIEF),property is exempt from execution ,
or, 3rd person has vindicated his right to the
property
HE MAY on motion in the same action OR
in a separate action recover from the
judgment obligee the price paid with interest,
or so much thereof as has not been
delivered to the judgment obligor OR, he
may on motion have the judgment revived in
his name (if redemptioner) for the whole
price with interest, or so much thereof as
has been delivered to the judgment obligor
Judgment revived shall have the same force
and effect as an original judgment would

516 Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
132
have as of the date of revived and no

more.517
II.PERSONAL PROPERTY a.
If capable of Manual Delivery, the
officer must deliver the property and if
desired, execute and deliver a certificate of
sale, which shall conveys all right with the
judgment obligor had in such property as of
date of levy on execution or preliminary
attachment. 518
b. If Incapable of Manual Delivery, the officer
must execute and deliver a certificate of sale
and such shall convey all rights to purchaser
as of the date of levy on execution or
preliminary attachment. 519
3.If for DELIVERY OR RESTITUTION OF
REAL PROPERTY officer shall demand of
the person against whom judgment is
rendered and all persons claiming rights
under him to peaceably vacate the property
within 3 working days and restore
possession thereof to the judgment obligee
OTHERWISE, officer shall oust all such
persons thereon, with assistance from
peace officers employing reasonable means
and place the judgment obligee in
possession. Any costs, damages, rents,
profits shall be satisfied in the same manner
as a judgment for money.
4.If for REMOVAL OF IMPROVEMENTS
officer shall not destroy, demolish or remove
except upon special order of the court,
issued upon motion / hearing and after the
judgment obligee had failed to remove within
a reasonable time fixed by the rules.
5.If for DELIVERY OF PERSONAL
PROPERTY officer shall take possession
and forthwith deliver it to party entitled
thereto and satisfy any judgment for money
as herein provided. 520
EXECUTION OF SPECIAL JUDGMENTS
Performance of an act other than those
enumerated in Section 9 and 10, a certified
copy of the judgment shall be attached to
the writ of execution and served upon party
against whom it is rendered, or upon any
person required thereby, or by law, to obey
the same if such party / person disobeys

133
they may be punished for contempt. 521

EXAMPLE: Injunction, Quo warranto
WHAT ARE THE PROPERTIES EXEMPT
FROM EXECUTION
Except as otherwise expressly provided by
law, the following property, and no other,
shall be exempt from execution:
(a)
The judgment obligors family home
as provided by law, or the homestead in
which he resides, and land necessarily used
in connection therewith;
(b)
Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
(c)
Three horses, or three cows, or
three carabaos, or other beasts of burden,
such as the judgment obligor may select
necessarily used by him in his ordinary
occupation;
(d)
His necessary clothing and articles
for ordinary personal use, excluding jewelry;
(e)
Household furniture and utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and his
family, such as the judgment obligor may
select, of a value not exceeding one
hundred thousand pesos;
(f)
Provisions for individual libraries
and equipment of judges, lawyers,
physicians,
pharmacists,
dentists,
engineers, surveyors, clergymen, teachers,
and other professionals, not exceeding three
hundred thousand pesos in value;
(h)
One fishing boat and accessories
not exceeding the total value of one hundred
thousand pesos owned by a fisherman and
by the lawful use of which he earns his
livelihood;
(i)
So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four months
preceding the levy as are necessary for the
support of his family;
(j)
Lettered gravestones;
(k)
Monies, benefits, privileges, or
annuities accruing or in any manner growing
out of any life insurance;

134
(l)
The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from the
Government;
(m)
law.
Properties specially exempted by
But no article or species of property

mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a judgment of
foreclosure of a mortgage thereon.522
Claims for exemption from execution of
properties must be presented before its sale
on execution by the sheriff.523
WHAT HAPPENS TO EXECUTION UPON
THE DEATH OF A PARTY
It may issue or be enforced:
a. In case of death of judgment obligee,
upon application of his executor or
administrator
b.
In case of death of judgment obligor,
against his executor, administrator, or
successor in interest, IF it be for recovery of
real or personal property or enforcement of
a lien.
c.
Death of judgment obligor after
execution is actually levied upon any of his
property, the same may be sold for the
satisfaction of the judgment obligation and
the officer must account to the executor or
administrator for any surplus, if any. 524
AS BETWEEN SEVERAL PERSONS
AGAINST
WHOM
EXECUTION
IS
DIRECTED
There is a right to contribution or
reimbursement if: more than a due portion of
the judgment is satisfied out of the proceeds
of the sale of the property of one of them,
OR, one pays, without sale, more than his
proportion.
AND, if judgment is upon an obligation of
one of them, as security for another, and the
surety pays the amount, or any part thereof,
either by sale of property or before a sale,

523 Gomez v Gealone, 203 SCRA 474
135
he may compel
principal.525
repayment
from
the
WHAT ARE THE OTHER REMEDIES OF

THE JUDGMENT OBLIGEE IF EXECUTION
IS NOT CARRIED OUT OR JUDGMENT IS
NOT SATISFIED
1.Examination of the judgment obligor
concerning his property and income before
the court or a commissioner and
proceedings may thereafter may be had for
the application of his property or income
towards satisfaction of judgment BUT no
obligor can be required to appear before a
court or commissioner outside the province
or city where he resides.526
2.Examination of the obligor of the judgment
obligor upon proof shown to the satisfaction
of the court that a person, corporation or
other juridical entity has property of the
judgment obligor or is indebted to him, the
Court may by order require the person,
corporation or juridical entity to appear
before the Court / commissioner and be
examined concerning the same.
The service of the order shall bind all credits
due the judgment obligor and all money /
property of the judgment obligor in the
possession / control of the person,
corporation or juridical entity.
Notice of all proceedings may also be
required by the court.527
Obligor of judgment obligor may thereafter
pay after writ of execution on property has
been issued, the amount of his debt or so
much thereof as may be necessary to satisfy
the judgment and the sheriffs receipt shall
constitute sufficient discharge for the
amount so paid or directed to be credited by
the judgment obligee on the execution528
In relation to both remedies party or other
person may be compelled to appear by
subpoena and failure to obey an order,
subpoena or be sworn or answer as a
witness or subscribe to a deposition is
punishable by contempt. 529

136
3.Order for application of property and

income to satisfaction of judgment. it may
include his property or money due the
judgment obligor, not exempt from
execution, in his hands or other person,
corporation or juridical entity may be applied
to satisfaction of judgment subject to any
prior rights over such property. ALSO, if
upon investigation of current income and
expenses, the earnings of judgment obligor
are more than necessary for the support of
his family, the court may order that judgment
be paid by monthly installments, failing in
which he may be punished for indirect
contempt.530
4.Appointment of a receiver for the
property of the judgment obligor, it may also
forbid a transfer or other disposition of or
interference with the property of the
judgment
obligor not
exempt
from
execution.531 Thereafter, there can be a sale
by the receiver upon order of ascertainable
interest (or the real estate itself) of a
judgment obligor in real estate in the place
where proceedings are had as mortgagor /
mortgagee or otherwise and if his interest
can be ascertained without controversy, the
receiver may be ordered to sell and convey
such interest or real estate or the interest of
the obligor therein. All proceedings to be
approved by the Court before execution of
the deed.532
In relation to the foregoing, IF IT APPEARS
THAT A PERSON OR CORPORATION,
ALLEGED TO HAVE PROPERTY OF THE
JUDGMENT OBLIGOR DENIES
OR
CLAIMS INTEREST IN THE PROPERTY
ADVERSE TO HIM, The Court may: (1)
order judgment obligee to institute an action
against such person or corporation for the
recovery of such interest or debt (2) forbid a
transfer / disposition of such interest / debt
within 120 days from notice of the order (3)
punish disobedience of such order as for
contempt. The order may be modified or
vacated at any time by the court that issued
it, or by the court in which the action is
brought, upon terms as may be just.533
WHAT IS TO BE DONE
JUDGMENT IS SATISFIED
AFTER
Entry of satisfaction of judgment by the

Clerk of Court in Court Docket and

137
Execution Book upon RETURN OF WRIT

INDICATING
SATISFACTION
/
ON
ADMISSION OF SATISFACTION BY
JUDGMENT OBLIGEE / COUNSEL534
It can also be entered upon demand of
judgment obligor when judgment is satisfied
in fact OR upon notice / motion court
may order entry without admission535
EFFECT OF JUDGMENTS
ORDERS
OR FINAL
1.Effect of a judgment / final order rendered

by a court in the Philippines, having
jurisdiction to pronounce the same.
(a)
In case of a judgment / final order
against a specific thing, or in respect to
probate of a will or administration of the
estate of a deceased person, or in respect to
personal, political or legal condition / status
of a particular person or his relationship to
another, the judgment or final order is
conclusive upon the title to the thing, the will,
administration status or relationship of the
person. HOWEVER, probate or granting of
letters of administration shall only be prima
facie evidence of the death of the testator.536
(b) Other cases, judgment / final order is
with RESPECT TO THE MATTER
DIRECTLY ADJUDGED OR AS TO ANY
MATTER THAT COULD HAVE BEEN
RAISED IN RELATION THERETO
is
CONCLUSIVE BETWEEN THE PARTIES
AND THEIR SUCCESSORS IN INTEREST
BY TITLE SUBSEQUENT TO THE
COMMENCEMENT OF THE ACTION OR
SPECIAL PROCEEDING LITIGATING FOR
THE SAME THING, UNDER THE SAME
TITLE AND IN THE SAME CAPACITY.537
(c) In any other litigation between the same
parties or their successors in interest, that
only is deemed to have been adjudged in a
former judgment / final order which appears
on its face to have been so adjudged or
which was actually and necessarily included
therein or necessary thereto.538
1.1Paragraphs (a) and (b) are illustrative of
the concept of res judicata that is also
known as bar by prior judgment. This

536 Supra, Section 47 (a), Rule 39
537 Supra, Section 47 (b), Rule 39
538 Supra, Section 47 (c), Rule 39
138
exists when between the first case where

judgment is rendered, and the second case
where such judgment is invoked, there is
identity of parties, subject matter, and cause
of action. When all three are present, the
judgment on the merits rendered in the first
constitutes an absolute bar to the
subsequent action.
1.2
Paragraph (c) is illustrative of what
is known as conclusiveness of judgment,
when between the first case wherein
judgment was rendered and the second
case wherein such judgment is invoked,
there is only identity of parties, but there is
no identity of cause of action, the judgment
is thus conclusive in the second case, only
as to the matters actually and directly
controverted and determined, and not as to
matters merely involved therein.539
1.3CONCLUSIVENESS OF JUDGMENT,
also known as PRECLUSION OF ISSUES
or COLLATERAL ESTOPPEL espouses that
issues actually and directly resolved in a
former suit cannot again be raised in any
future case between the same parties
involving a different cause of action.540
1.4The doctrine of The law of the case
states that whatever has once been
irrevocably established as the controlling
legal rule of decision between the same
parties, whether correct on general
principles or not, so long as the facts on
which the decision was predicated continue
to be the facts of the case before the
court.541
2.Effect of a foreign judgment/final order
(a)
If upon a specific thing, the
judgment / final order is conclusive upon title
to the thing
(b)
If against a person it is
presumptive evidence of a right between the
parties and their successors in interest by
subsequent title.
In either case, judgment / final order may be
repelled by evidence of want of jurisdiction,
want of notice, collusion, fraud, clear
mistake of fact / law.542
3.Effect of judgment against a surety
539 Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
540 Tan v Court of Appeals, 363 SCRA 444
541 Boiser v NTC, 169 SCRA
139
When a judgment is rendered against a

party who stands as surety for another, the
latter (principal) is also bound from the time
he has notice of the action or proceeding,
and an opportunity at the suretys request to
join in the defense.543
APPEALS
Rule 40 Appeals from MTC to RTC

WHERE CAN AN MTC DECISION BE
APPEALED
A judgment / final order of the Municipal Trial
Court is appealable to the Regional Trial
Court exercising jurisdiction over the area to
which the Municipal Trial Court pertains.
1.In the appeal, the case title remains, but
party appealing is designated as appellant,
while the adverse party is designated as the
party-appellee.544
WHEN CAN APPEAL BE TAKEN
15 days after notice to the appellant. If
record on appeal is required 30 days after
notice BUT period can be interrupted by a
motion for reconsideration or for new trial,
though no motion to extend time for its filing
is allowed. 545
1.Note the fresh period rule that is now
applicable to an appeal under Rule 40, Rule
41, Rule 43 and Rule 45, which allows a
party intending to appeal another 15 days
from receipt of an order denying a motion for
reconsideration or new trial to file an appeal
546
HOW IS APPEAL TAKEN

1. By notice of appeal indicating parties,
judgment or final order appealed from
statement of the material dates showing
timeliness of the appeal.

546 Neypes v Court of Appeals, GR 141524, September 14, 2005
140
2.
By record on appeal in special
proceedings or cases allowing for multiple
appeals, like probate or partition. The record
on appeal shall contain the following:
a.Full name of the parties stated in the
caption including the judgment / final order
from which appeal is taken
b.In chronological order, copies of all
pleadings, petitions, motions, and all
interlocutory orders as are related to the
appealed judgment / final order for proper
understanding of the issue.
c. Data to show that appeal was filed on time
d.If issue of fact is to be raised, it should
include reference the documentary evidence
by exhibit taken on the issue specifying
the documentary evidence by exhibit nos. or
letters and testimonial evidence by the
names of the witnesses. If the whole of it is
included, a statement to such effect is
sufficient.
e.If more than 20 pages include a subject
index 547
NOTE that the requirement for a Approval of
record on appeal548 the trial court may
approve it, if no objection is filed by the
appellee or upon its motion / appellee
direct its amendment by the inclusion of
omitted matters which are deemed essential
to the determination of the issue of law or
facts involved is the appeal.If amendment is
ordered, which the appellant must comply
with within the period stated, any extension
or if none, within 10 days, submitting the
redrafted record for the approval of the
Court. Where both parties are appellants,
they may file a joint record on appeal.549
3.Regardless of the mode of appeal, the
adverse party is to be furnished with a copy.
WHEN PERFECTED
As determined by Section 9, Rule 41:
1.If by notice of appeal, it is perfected upon
the filing of the notice in due time. The court
loses jurisdiction upon perfection and
expiration of the time of appeal of other
parties.
2.If by record on appeal, it is perfected upon
approval of record on appeal filed in due
time. Court loses jurisdiction upon approval

141
and expiration of time to appeal of other

parties.
In either case, prior to transmittal of the
records, the court may issue orders:
(a)protection and preservation of the rights
of the parties not involving any matter
litigated
by
the
appeal
(b)approve
compromises (c) permit appeals of indigent
litigants (d)order execution pending appeal
(e) allow withdrawal of appeal. 550 This is
power
is
known
as
RESIDUAL
JURISDICTION
3.In both cases, DOCKET FEES / OTHER
FEES are also to be paid to the clerk of
court of the court that rendered judgment.
Proof payment of the same shall be
transmitted to the appellant court together
with the records / record on appeal. 551
a.Late payment of docket fees may be
admitted when a party shows a willingness
to abide by the Rules by immediately paying
the docket fee six days after filing a notice of
appeal and beyond the period for perfecting
an appeal.552
b.Where delay in the payment of docket fee
was not due to a desire to delay or defeat
the ends of justice, late payment thereof
which causes no prejudice to anyone should
not result in the dismissal of the appeal.553
a.THE RECORD/RECORD ON APPEAL IS
TRANSMITTED by the clerk of court within
15 days from perfection, together with
transcripts / exhibits, which he will certify as
complete. A copy of the transmittal shall be
furnished the parties.554
WHAT HAPPENS UPON TRANSMITTAL TO
THE RTC
Within 15 days from notice, appellant shall
submit a memorandum briefly discussing
errors imputed to the lower court, copy
furnished the adverse party. Within 15 days
from receipt of appellants memorandum,
appellee may file his own memorandum.
Failure of appellant shall be ground for
dismissal of the appeal. Upon filing /
expiration, the case is submitted for decision
on the basis of the record in Municipal Trial

552 Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
553 Lopez v Court of Appeals, 75 SCRA 401
142
Court and the memoranda submitted by the

parties.555
1.NOTE that if an appeal is taken from an
order of the lower Court dismissing the case
without trial on the merits, the Regional Trial
Court may affirm or reverse it as the case
may be:
a.In case it is affirmed and ground of
dismissal is lack of jurisdiction over the
subject matter of the case, the Regional Trial
Court, if it has jurisdiction, shall try the case
on the merits as if the case was originally
filed with it. In case of reversal, it shall be
remanded back for further proceedings.
b.If it was tried on the merits, without
jurisdiction, the RTC on appeal shall not
dismiss the case if it has original jurisdiction,
but shall decide the case in accordance with
Section 7, without prejudice to the admission
of amended pleadings and additional
evidence in the interest of justice.556
RULE 41 APPEALS FROM REGIONAL
TRIAL COURTS
An appeal may be taken from a judgment
/final order that completely disposes of a
case, or a particular matter therein when
declared by the Rules to be appealable
BUT NO APPEAL CAN BE TAKEN FROM:
(a) Order denying a motion for new trial or
reconsideration. An appeal of judgment/final
order is remedy or certiorari under Rule 65
(b)
Order denying a petition for relief
from judgment or similar motion. Certiorari
under Rule 65 is remedy
(c)
Interlocutory order. Certiorari under
Rule 65 or mandamus is remedy
(d)
Order disallowing or dismissing an
appeal. Mandamus or petition for relief from
judgment is the remedy
(e)
Order denying a motion to set aside
judgment
by
consent
confession,
compromise on the ground of fraud,
mistake, duress or any ground vitiating
consent. A petition for relief or a petition to
annul judgment under Rule 47 or Certiorari
under Rule 65 is the remedy

143
(f)
Order of execution. Certiorari under
Rule 65 is the remedy
(g)
Judgment / final order in separate
claims, counterclaims, cross claims 3rd
party claims, while main case is pending,
unless the court allows an appeal therefrom.
The object is facilitate the trial of all issues.
(h)
Order dismissing an action without
prejudice. The remedy is to refile or
certiorari under Rule 65.557
NOTE: That declaration of presumptive
death not appealable by the state, neither by
other party. Remedy of the spouse declared
presumptively dead is to file affidavit of
reappearance. See Article 41, Family Code
WHAT ARE THE MODES OF APPEAL OF A

JUDGMENT OR FINAL ORDER OF A
REGIONAL TRIAL COURT558
(a) Ordinary appeal refers to an appeal by
notice of appeal of the decision of the
Regional Trial Court in cases decided in the
exercise of its original jurisdiction raising
question of fact or mixed questions of law
and fact
1.The period of ordinary appeal is 15 days
from notice of judgment / final order
appealed from. If requiring a record on
appeal, it is 30 days. Said periods are
interrupted by a motion for new trial or
reconsideration but no extension of time for
their filing is allowed. NOTE: That in habeas
corpus cases the period is 48 hours from
notice of judgment or final order559 NOTE
ALSO: The application of the fresh period
rule.
2.Appellate court docket fees / lawful fees
shall be paid within the period for taking an
appeal to the clerk of court of the court that
rendered judgment BUT failure to pay is a
ground for dismissal of the complaint560
3.If Appeal is by NOTICE OF APPEAL, it
must indicate parties, judgment or final order
appealed from, and include a statement of
the material dates showing timeliness of the
appeal.561 or if by RECORD ON APPEAL it
must comply with the requirements as

144
previously discussed in an appeal from the

Municipal Trial Court to the Regional Trial
Court.562
4.PERFECTION OF APPEAL IS
AS
DISCUSSED
under
Rule
40.563
Subsequently, it is the DUTY OF CLERK
OF COURT OF THE LOWER COURT within
30 days after perfection of all appeals to: (a)
verify correctness of the original record /
record on appeal and make a certification as
to correctness (b) verify completeness of
records transmitted to appellate court (c) If
incomplete, take necessary measures as
may be required to complete the records,
availing of the authority that he or the court
may exercise for this purpose. (d) transmit
the records to the appellate court. (e) then
furnish parties of his transmittal. 564
4.1IF EFFORTS TO COMPLETE FAIL, it
shall be indicated in the letter of transmittal
which exhibits / transcripts are not included,
the reasons why they were not transmitted
and the steps taken to make them available.
4.2
It is likewise required that the
transcripts be transcribed565 and that the
transmittal to include proof of payment of
docket fees.
4.3Prior to transmittal of record / record on
appeal, the court may motu propio or on
motion to dismiss the appeal for having
been take out of time OR for non payment of
docket and other lawful fees within the
reglementary period.566 If transmitted
already, the Court of Appeals may dismiss.
5.Other procedural requirements and
disposition of the appeal are governed by
Rule 44:
5.1
The title of the case shall remain,
party appealing shall be referred to as
appellant / adverse party-appellee.567
Counsel / guardians ad litem of parties shall
likewise be considered as such in Court of
Appeals, when others appear or are
appointed, notice shall be filed and furnished
adverse parties.568

562 Supra, Sections 6,7,8, Rule 41
565 Supra, Section 11 and 12, Rule 41
145
5.2If the RECORDS are not transmitted to

the Court of Appeals within 30 days after
perfection of the appeal, either party may file
a motion with the Regional Trial Court, with
notice to the other, for transmittal.569
5.3UPON RECEIPT BY THE COURT OF
APPEALS, the clerk shall docket the case
and notify the parties. If appeal is by record
on appeal, within 10 days from receipt of
notice, appellant must file with the clerk of
court 7 clearly legible copies of approved
record on appeal and proof of service
thereof to adverse party of 2 copies. Any
unauthorized,
alteration,
omission
or
addition shall be ground for dismissal of the
appeal.570
The Clerk of the CA should also ascertain
the completeness of the records. If
incomplete, he shall inform the court and
recommend measures to complete the
record within the shortest possible time BUT
if it cannot be completed due to insuperable
or extremely difficult circumstances. The
court, on its own or upon motion, may
declare the record sufficient to decide issues
and explain reason for such declaration.571
5.4ONCE DONE, Briefs are to be filed: (a)
The Appellants Brief must be filed within 45
days from notice that all evidence,
documentary / testimonial are attached to
the record, 7 copies of the brief are to be
filed attaching proof of service of 2 copies to
adverse party.572 Where there are several
parties, each counsel representing one or
more but not all may be served with 1 copy.
If several counsel represent one party,
service may be made on any one of them. 573
The CONTENTS OF THE APPELLANTS
BRIEF are: (1) subject index (2)assignment
of errors (3) statement of the case
(4)statement of facts (5)statement of issues
(6) arguments (7) relief (8) if not by record
on appeal, an appendix, copy of judgment /
final order appealed. 574 (b) The Appellees
Brief is to be filed within 45 days from
receipt of Appellants Brief. It is required that
7 copies be filed with proof of service of 2
copies on appellant. The CONTENTS OF
APPELLEES BRIEF are: (1) subject index

146
(2) statement of facts, either a statement of

acceptance or counter-statement of facts (3)
Arguments575 (c) A Reply Brief may be filed
by appellant within 20 days from receipt of
the Appellees Brief.576 NO EXTENSION OF
TIME TO FILE BRIEFS is allowed except
for good and sufficient cause, and only if
filed before expiration of the time sought to
be extended577
IN LIEU OF BRIEFS,
MEMORANDA is required in certiorari,
prohibition, madamus, quo warranto, hebeas
corpus within a non-extendible period of 30
days from notice that all evidence is
attached to the record. Failure of appellant
to file his memoranda is ground to dismiss
the appeal.578
5.5QUESTIONS OF LAW OR FACT MAY
BE RAISED in the appeal, whether or not a
motion for new trial has been filed and must
within the issues framed by the parties.579
As a rule, a party who deliberately adopts a
certain theory upon which the case is tried
and decided by the lower court will not be
permitted to change his theory on appeal.
Points of law, theories, issues, and
arguments not brought to the attention of the
lower court need not be , and ordinarily not
be, considered by a reviewing court, as
these cannot be raised for the first time at
such late stage. Basic considerations of due
process underlie this rule.580
6.In Criminal Cases, note the possibility of
the filing of two notices of appeal when the
penalty imposed by the Regional Trial Court
is life imprisonment or reclusion perpetua,
appeal is by notice to the Court of Appeals,
and by notice again to the Supreme Court. If
the penalty is death, it is automatically
reviewed by the Supreme Court, but such
shall be made by the Court of Appeals,
which shall render judgment, then certify it to
the Supreme Court, who will then enter the
same.581
(b) Petition for Review is an appeal to the
Court of Appeals of judgment / final order of
the Regional Trial Court in the exercise of its
appellate jurisdiction under Rule 42

580 BPI v Leobrera, 416 SCRA 15
581 People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
147
1.It is initiated by the filing of a Verified

Petition for Review
with the Court of
Appeals, paying at the same time to the
Clerk of Court of Appeals the corresponding
docket fees and lawful fees, depositing 500
for costs, furnishing the Regional Trial Court
and adverse party with a copy of the
Petition.
2.It is to be filed within 15 days from notice
of decision sought to be reviewed or denial
of motion for new trial or motion for
reconsideration. UPON PAYMENT OF
DOCKET FEES AND DEPOSIT AND
BEFORE EXPIRATION OF THE PERIOD,
the Court of Appeals
may grant an
extension of 15 days. No further extension
can be given unless for the most compelling
reason, but in no case to exceed 15 days. 582
3.FORM, CONTENTS, NUMBER OF
COPIES. 7 copies are to be filed, indicating
the original copy intended for the Court of
Appeals containing (a)full names of parties,
without impleading the lower court / judges
(b)specific material dates indicating that it is
filed on time (c) statement of matters,
issues, specification of errors of fact / law
and reasons / arguments relied upon
(d)accompanied by clearly legible duplicate
copies or true copies of judgment of the
lower courts, certified correct by Regional
Trial Court clerk of court, pleadings and
other material portions supporting the
allegations of the petition (e) certification
against forum shopping / verification. NOTE:
Failure to pay fees or comply with the
requirements shall be sufficient ground for
dismissal.583
4.The appeal is deemed PERFECTED upon
timely filing of the petition and payment of
docket fees. The RTC loses jurisdiction upon
perfection of the appeal and lapse of time to
appeal by the other parties. The Regional
Trial Court continues to have RESIDUAL
JURISDICTION until the same has been
given DUE COURSE.584
5.NOTE that except in cases covered by the
Rule on Summary Procedure, appeal shall
stay the judgment / final order unless Court
of Appeals or the Rules provide otherwise
6.ONCE FILED, the Court of Appeals may:
(a) Require the respondent to file a
comment, not a motion to dismiss, within 10

148
days from notice (b)Dismiss the petition if

found to be patently without merit,
prosecuted manifestly for delay, or questions
raised therein are too unsubstantial to
require consideration.585
7.The COMMENT should be filed in 7
copies, accompanied by certified true copies
of such MATERIAL PORTIONS OF THE
RECORD AND OTHER SUPPORTING
DOCUMENTS, stating: (a)Statement of
whether or not he accepts the statement of
matters (b)
Point
out
the
insufficiencies / inaccuracies (c) State
reasons why it should not be given due
course. Copy of which must be served on
adverse party.586
8.A petition is given DUE COURSE when
upon the filing of the comment or expiration
of the period to file, the Court of Appeals
finds PRIMA FACIE that the lower court has
committed an error of fact / law that will
warrant
a
reversal
/
dismissal.
CONSEQUENTLY, the Court of Appeals, if it
deems necessary, will order the elevation by
the clerk of the Regional Trial Court of the
entire record within 15 days from notice.587
9.IT IS SUBMITTED FOR DECISION after
the filing of last pleading or memorandum.
Prior to that though, the Court of Appeals
may set it for oral argument / or require
memoranda to be submitted within a period
of 15 days from notice.588
(c) Appeal by Certiorari or Petition for
Review on Certiorari which should involve a
pure question of law direct to the Supreme
Court under Rule 45
1.A Question of Law is one that requires
interpretation or application of a law, while a
Question of Fact is one that pertains to a
resolution of a factual dispute.
1.1
There is a question of law in a given
case when the doubt or difference arises as
to what the law is pertaining to a state of
acts, and there is a question of fact when
the doubt arises as to the truth or falsity of
alleged facts.589

589 Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
149
2.This is initiated by the filing of a Verified

Petition for Review on Certiorari raising only
questions of law. This mode of appeal is
available to question judgment / resolutions
of
the
Court
of
Appeals,
the
Sandiganbayan, a Regional Trial Court, and
other Courts whenever authorized by law.590
3.The TIME FOR FILING is 15 days from
notice of the judgment, final / order, or
resolution or of denial of petitioners motion
for new trial / reconsideration. On motion
and with full payment of docket fees and
deposit of costs, the Supreme Court on
justifiable reason may grant an extension of
30 days within which to file the petition.
Docket fees and proof of service of the
petition on the lower court and adverse party
must accompany the filing of the petition.591
4.18 copies of the petition are required to be
filed, indicating the original copy for the
court. It should contain: (a) full names of
parties (petitioner / respondent) without
impleading court / judge (b) indicate material
dates (c)concise statements of the matters
involved and the reason / arguments relied
upon for the allowance of the petition (d)
clearly legible copies of judgment / final
order / reconsideration or certified true copy
and other material portion supporting the
record (e) Certificate against forum shopping
and verification592
5.UPON FILING, the Supreme Court can:
5.1
DISMISS (1) for failure to comply
with the requirements regarding payment,
proof of service, contents and documents (2)
on its own initiative because it is without
merit, prosecuted for delay, or issues are too
unsubstantial to require consideration, OR
5.2
ALLOW REVIEW, which is not a
matter of right but is discretionary, when
there are special / important reasons
therefor: EXAMPLES- (1) when the court a
quo has decided a matter of substance not
therefore determined by the Supreme Court
or decided in a way not in accord with the
law or applicable decisions of the Supreme
Court (2) when court a quo has so far
departed from the accepted and usual
course judicial proceedings, or so far
sanctioned such departure by a lower court,

150
as to call for an exercise of the power of

supervision.593
6.If given DUE COURSE, the Supreme
Court can: (a) Require elevation of the
records / or specified portions thereof within
15 days from notice 594 (b) Require filing of
pleadings, briefs, memoranda or documents
as it may deem necessary within periods /
conditions it may consider appropriate and
impose sanctions for non-filing / noncompliance or unauthorized filing. This
ALSO applies to a determination as to
whether it should be dismissed or denied. 595
The RULE APPLIES TO BOTH CIVIL /
CRIMINAL ACTIONS, except in cases
where penalty is death, reclusion perpetua /
life imprisonment.596
7.The exceptions to the general rule that
only questions of law may be raised in a
petition for review are:(a) when the
conclusion is a finding grounded entirely on
speculation, surmises, or conjectures; (b)
when the inference made is manifestly
mistaken, absurd, or impossible; (c) where
there is a grave abuse of discretion; (d)
when the judgment is based on a
misapprehension of facts; (e) when the
findings of fact are conflicting; (f) when the
Court of Appeals, in making its findings,
went beyond the issue of the case and the
same is contrary to the admissions of both
appellant and appellee; (g) when the
findings of the Court of Appeals are contrary
to those of the trial courts; (h) when the
findings of facts are conclusions without
citation of specific evidence on which they
are based; (i) when the facts set forth in the
petition as well as in the petitioners main
and reply briefs are not disputed by the
respondents; (j) when the finding of fact of
the Court of Appeals is premised on the
supposed absence of evidence but is
contradicted by the evidence on record; and
(k) when the Court of Appeals manifestly
overlooked certain relevant facts not
disputed by the parties and which, if properly
considered, would justify a different
conclusion.597

597 Martinez v Court of Appeals, 358 SCRA 38
151
(d)By Petition for Review under Rule 43 in a

case decided by the Regional Trial Court
sitting as a commercial court.598
1.Applies primarily to appeals from the Court
of Tax Appeals and other quasi-judicial
agencies to the Court of Appeals, but is not
applicable to judgments / final orders under
the Labor Code.599
2.The appeal can include questions of fact,
law or mixed questions of law and fact.600
3.The appeal shall be taken within fifteen
(15) days from notice if the award, judgment,
and final order of resolution, or from the date
of its last publication, if publication is
required by law for its effectivity, or of the
denial of the petitioners motion for new trial
or reconsideration duly filed in accordance
with the governing law of the court or
agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon
proper motion and the payment of the
payment of the full amount of the docket fee
before the expiration of the reglementary
period, the Court of Appeals may grant an
additional period of fifteen (15) days only
within which to file the petition for review. No
further extension shall be granted except for
the most compelling reason and in no case
to exceed fifteen (15) days.601
4.All other procedural matters and
requirements are similar to a Petition for
Review under Rule 42 EXCEPT that an
appeal under this Rule shall not stay the
award, judgment, final order or resolution
unless the Court of Appeals deems
otherwise.602
7.In summary judicial proceedings under the
Family Code, there is no reglementary
period within which to perfect an appeal,
precisely because judgments rendered
thereunder, by express provision of Section
247 of the Family Code, are immediately
final and executory.603 Appeal by notice of
appeal is erroneous. The Court of Appeals
should have dismissed as it had no
jurisdiction to review on appeal. Per Justice
Panganiban, Certiorari under Rule 65 is the
remedy of the State.
598 A.M. No. 04-9-07-SC, September 14, 2004

603 Republic v Bernardez-Lorino, 449 SCRA 57
152
PROCEDURE WITH THE COURT OF

APPEALS
RULE 46 ORIGINAL CASES FILED
WITH THE COURT OF APPEALS
Parties are to be designated as petitioner /
respondent604 and is to apply to cases of
Certiorari, Prohibition, Mandamus, Quo
Warranto and to petitions for annulment of
judgment under Rule 47605
CONTENTS OF PETITION FILING
EFFECTS OF NON COMPLIANCE
Petitions filed before the Court of Appeals
must contain the following: (1) identification
of the parties, a concise statement of
matters involved, the factual background of
the case, and the grounds relied upon for
the relief prayed for (2)statement of material
dates, AND IN A PETITION UNDER RULE
65, material dates are dates of notice of
judgment or final order, when a motion for
new trial or reconsideration was filed, if any,
and when notice of denial was received (3)
clearly legible duplicate originals or certified
true copy of the attachments (4)certification
against forum shopping (5)docket fees /
deposit for cost.606 FAILURE TO COMPLY IS
SUFFICIENT GROUND FOR DISMISSAL
OF PETITIONS
A certified true copy is one the certification
of which is made by the proper clerk of court
or his duly authorized representative.607
HOW DOES THE
JURISIDICTION
COURT
ACQUIRE
Jurisdiction over the person or the

respondent is acquired by service of order or
resolution indicating initial action on the
petition or voluntary submission to
jurisdiction.608
ACTION TO BE TAKEN BY THE COURT
OF APPEALS
1.The COURT may dismiss the petition
outright with specific reasons OR require the
filing of a comment within 10 days from
notice. ONLY PLEADINGS REQUIRED CAN

607 Paras v Baldado, 354 SCRA 141
153
BE FILED OTHERS CAN ONLY BE FILED

WITH LEAVE OF COURT.609
2.If factual issues are to be resolved, the
Court of Appeals can conduct hearings or
delegate reception of evidence on such
issues to any of its members or to an
appropriate court / agency / office.
610
(Section 6, Rule 46)
3.If comment is not filed, it may be decided
on the basis of the record without prejudice
to any disciplinary action against disobedient
party.611
4.The COURT, IF THE PETITION IS NOT
DISMISSED OUTRIGHT:
4.1
Can call the parties / counsel to a
preliminary conference, the object of which
is to : (a) consider compromise agreements,
except when case is not allowed to be
compromised (b)
define, simplify and
clarify issues (c)formulate stipulation of facts
and admissions of documentary exhibits,
limit the number of witnesses in cases falling
within its original jurisdiction or those within
its appellate jurisdiction where a motion for
new trial is granted on newly discovered
evidence (d)
other matters that may aid
in prompt disposition of the case.612
4.2Record of proceedings is made and a
RESOLUTION embodying actions shall be
issued613 which shall be binding upon parties
and control subsequent proceedings unless
within 5 days from notice, it can be shown
by valid cause why it should not be followed
or there is need for modifications to prevent
manifest injustice614
4.3At it own instance or by motion, to hear
the parties in oral argument on the merits of
the case or on any material incident AND is
limited to such matters as the court may
specify in its order or resolution.615
4.4In the conduct of oral arguments, unless
authorized, only 1 counsel may argue for a
party. Duration, sequence and all related
matters shall be as directed by the Court.616

154
4.5MOTIONS THOUGH ARE NOT TO BE

SET FOR HEARING, AND UNLESS
DIRECTED BY THE COURT, NO HEARING
OR ORAL ARGUMENTS shall be allowed in
support thereof. The adverse party may file
objections within 5 days from notice, then
upon expiration of the period, it is submitted
for resolution.617
RULE 50 - GROUNDS FOR DISMISSAL
BY THE COURT OF APPEALS
In ALL CASES THAT COME BEFORE IT,
and besides on a finding that the case is
without merit, prosecuted for delay or issue
is too unsubstantial to merit consideration,
ON MOTION OF THE COURT OR OF THE
APPELLEE, it may dismiss the petition on
the basis of:
1.Failure of record on appeal to show on its
face that appeal was taken within period
fixed by the Rules.
2.Failure to file notice of appeal or record on
appeal within period within the period
prescribed by the Rules.
3.Failure to pay docket fees as provided
under Section 5, Rule 40 and Section 4,
Rule 41.
4.Unauthorized
alterations,
omissions,
additions on record on appeal as provided
under Section 4, Rule 44
5.Failure of appellant to serve and file
required number briefs or memoranda within
provided time by these Rules
6.Absence of specific assignment of errors
or page references to the record as required
by Section 13, paragraphs a,c,d, and f of
Rule 44
7.Failure of appellant to take necessary
steps for the correction or completion of the
records within time limited by the Court
8.Failure
to
appear
at
preliminary
conference under Rule 48, or comply with
orders, circulars or directives of the Court
without justifiable cause
9.The fact that order / judgment appealed
from is not appealable.618

155
DISMISSAL OF IMPROPER APPEAL

1.An appeal under Rule 41 from the
Regional Trial Court to the Court of Appeals
raising only questions of law shall be
dismissed as issues purely of law are not
reviewable by the Court of Appeals
2.An appeal by notice of appeal instead of
petition for review from a Regional Trial
Court exercising appellate jurisdiction shall
be dismissed
3.An appeal erroneously taken to Court of
Appeals shall not be transferred but shall be
dismissed outright.619
WITHDRAWAL OF AN APPEAL
An appeal may be withdrawn as of right at
any time before the filing of the appellees
brief. Thereafter, only upon discretion of the
Court.620
RULE 51 - JUDGMENT
When submitted for judgment:
1. IN ORDINARY APPEALS:
a.Where no hearing on merits is held, upon
filing of the last pleading, brief, memoranda
or expiration of period to file.
b.Where a hearing is held, upon termination
of hearing or upon filing of the last pleading,
memoranda as may be required or
permitted, or expiration of period to file
2.
IN
ORIGINAL
PETITIONS FOR REVIEW
ACTIONS
a.Where no comment is filed, upon

expiration of the period to file comment
b.Where no hearing, same as 1 (a)
c. Where hearing is held, same as 1 (b)621
3.Judgment is rendered by members of the
court who participated in the deliberations
on the merits before assignment to a
member for writing of the decision.622
4.Participation of all 3 justices shall be
necessary at deliberation and unanimous
vote shall be required for pronouncement. If
not, the clerk shall enter the vote of

156
dissenting justices in the record. Thereafter,

Chairman of the division refers it to the
Presiding Justice, who will designate 2
justices by raffle to sit temporarily and to
form a special division of five (5) justices.
The participation of all is required for
deliberation. Concurrence of majority is
required for pronouncement.623
Note: That in rendering judgment, harmless
errors or those which do not affect the
substantial rights of the parties624 or errors
that are not assigned will not be considered
unless they affect jurisdiction, validity of
judgment, and of proceedings.625
4.1HARMLESS ERROR DOCTRINE means
that any error or defect which does not affect
substantial rights will be disregarded by the
reviewing court or tribunal. It is followed to
deal with evidence improperly admitted
during trial wherein its damaging quality and
impact to the substantial rights of the litigant
are examined. If deemed slight and
insignificant, the error is disregarded.626 It is
not a ground for granting of a new trial or for
setting aside, modifying, or disturbing a
judgment or final order unless the refusal
appears to the Court inconsistent with
substantial justice.
5.JUDGMENTS OF THE COURT OF
APPEALS IN THE EXERCISE OF
APPELLATE JURISDICTION MAY affirm,
reverse, or modify the judgment or final
order appealed from. It may also order or
direct a new trial to be held or that further
proceedings be taken.627 The decision must
state clearly and distinctly the findings of fact
and conclusions of law on which it is based,
which may be contained in the resolution
itself or adopted from those set forth in the
judgment, final order appealed from.628
6.PROCEDURE AFTER JUDGMENT IS:
6.1
After signing by the justices, it shall
be delivered to the clerk of court, who shall
indicate thereon the date of promulgation
and cause true copies thereof to be served
upon the parties or counsel.629

626 People v Teehankee, 269 SCRA 54.
157
2.If no appeal, or motion for new trial or

reconsideration is filed within the period, the
judgment or final resolution shall be entered
in the book of Entries of Judgment.
Judgment or final resolution shall be
deemed executory as of the date of entry.
The record shall contain the dispositive
portion, signed by the clerk with a statement
that it is final and executory.630
3.Execution shall as a rule issue upon a
motion in the proper court upon its entry. In
appealed cases, where the motion is filed
with the Court of Appeals at the time that it is
in possession of the original records or
record on appeal, the resolution granting the
motion shall be transmitted to the lower
court from which the case originated,
together with certified copy of the judgment
to be executed, with a directive to said court
to issue the proper writ for its enforcement.
In original actions, the writ shall be
accompanied by a certified true copy of the
entry of judgment and addressed to
appropriate officer for enforcement.631
RULE
52MOTIONS
FOR
RECONSIDERATION BEFORE THE CA
Judgments of the Court of Appeals can be
the subject of reconsideration within fifteen
(15) days from notice thereof, with proof of
service to the adverse party. 632
1.No second motion for reconsideration will
be entertained.633
2.It is to be resolved within sixty (60) days
from submission for resolution 634 and while
pending, shall stay the execution unless for
good reason, court directs otherwise.635
RULE 53- MOTION FOR NEW TRIAL
It can be filed at any time after appeal from
the lower court has been perfected and
before the Court of Appeals loses
jurisdiction, on the ground of newly
discovered evidence WHICH COULD NOT
HAVE BEEN DISCOVERED PRIOR TO
THE TRIAL IN THE COURT BELOW BY
THE EXERCISE OF DUE DILIGENCE AND

158
WHICH IS OF SUCH A CHARACTER AS

WOULD
PROBABLY CHANGE
THE
RESULT. The motion must be accompanied
by affidavits showing the facts constituting
the grounds and the newly discovered
evidence.636
The Court of Appeals shall then consider the
evidence and that adduced at the trial, to
determine if it will grant or refuse a new trial,
or make such order, with notice to both
parties, as to the taking of further testimony,
either orally in court, by depositions, or
render such other judgment as ought to be
rendered upon terms it may deem just. 637 IF
GRANTED, the procedure shall be the same
as that granted by a Regional Trial Court.638
Motion should be resolved within 90 days
from the date it is declared to be
submitted.639
OTHER MATTERS
RULE 54 Internal Business
Allotment of cases shall be among the
different divisions for hearing and decision.
The Court of Appeals En Banc shall make
proper orders or rules to govern allotment,
the constitution of such divisions, the regular
rotation of justices, filling of vacancies, and
other matters. Such will continue in force
and repealed or altered by it or the Supreme
Court.640
A majority of the court shall constitute a
quorum for sessions en banc and a majority
of the members present shall be necessary
to pass a resolution. Three members of a
division shall constitute a quorum for
sessions of a division and the affirmative
vote of three members shall be necessary
for pronouncement of judgment/resolution,
which shall be reached in consultation
among them before the writing of the opinion
by any member of the division.641
RULE 55 Publication of Judgment/Final
Order/Resolution

159
Judgments and Final Resolutions shall be

published in the Official Gazette and in the
Reports officially authorized by the Court, in
the language originally written, together with
a syllabi. If not so published, a memoranda
shall be made and published in the like
manner. 642 The publication is to be prepared
by the Reporter. 643 Those of the Supreme
Court are called Philippine Reports, while
those of the Court of Appeals are called
Court of Appeals Reports. 644
RULE 47-ANNULMENT OF JUDGMENT

Annulment of judgment covers judgments of
the Regional Trial Court for which the
ordinary remedies of new trial, appeal,
petition for relief or other appropriate
remedies ARE NO LONGER AVAILABLE
THROUGH
NO
FAULT
OF
THE
PETITIONER645
1.An important condition for the availment is
that the petitioner failed to move for new
trial, or appeal from, or file a petition for
relief against, or take other appropriate
remedies through no fault attributable to
him. If he failed to avail of the other
remedies through his own fault, he would
then benefit from his inaction or
negligence.646 He must allege non availment
of other remedies through no fault of the
petitioner, otherwise the petition will be
dismissed.647
1.1Note that the correctness of the judgment
is not in issue as a petition for annulment is
not in issue.648
1.2It is a remedy that may be availed of by
those who are not even parties to the
judgment or to annul even judgments that
have been fully executed.649
2.It is available only on grounds of: (a)
EXTRINSIC FRAUD but only when it was
not availed of or could have been availed of

646 Manipor v Ricafort, 407 SCRA 298
647 Ancheta v Ancheta, 424 SCRA 725
648 Republic v Heirs of Sancho Magdato, 340 SCRA 115
649 Malolos v Dy, 325 SCRA 827
160
in a motion for new trial or petition for relief

OR (b) LACK OF JURISDICTION
2.1
There is extrinsic fraud when the
unsuccessful party had been prevented from
exhibiting fully his case, by fraud or
deception practice upon him by his
opponent, as keeping him away from the
court, or where the defendant never had
knowledge of the suit, being kept in
ignorance by the acts of the plaintiff.650
3.The period for its filing if based on
extrinsic fraud is within 4 years from its
discovery, or if based on lack of jurisdiction
before it is barred by laches or estoppel.651
FILING / CONTENTS OF THE PETITION
Filing is by verified petition alleging therein
with particularity, the facts and the law relied
upon for annulment as well as supporting
petitioners good and substantial cause of
action / defense, as the case may be.
Containing (1) certified true copy of
judgment / final order / resolution shall be
attached to the original copy intended for the
court (2) affidavits of witnesses (3)
certification against forum shopping652
WHAT THE COURT OF APPEALS WILL DO
UPON FILING
1.If no substantial merit, it will be
dismissed outright with specific reasons for
such dismissal.
2.If prima facie merit be found, it shall be
given due course and summons shall be
served on the respondent. IF SO, procedure
in ordinary civil cases shall be followed but
reception may be referred to a member of
the Court or a Regional Trial Court judge.653
EFFECT OF JUDGMENT IN A PETITION
FOR ANNULMENT
It shall set aside the questioned judgment /
final order / resolution and render the same
null and void without prejudice to the
refiling of the original action in the proper
court . However, where it is set aside by
reason of extrinsic fraud, the court on
motion, may order the trial court to try the
650 Leonardo v ST Best, 422 SCRA 347

161
case again as if a timely motion for new trial

has been granted therein.654
The prescriptive period for the refiling of the
original action shall be deemed suspended
from the filing of such original action until
finality of the judgment of annulment.
HOWEVER, the prescriptive period is or
shall not be suspended where extrinsic fraud
is attributable to the plaintiff is original
action.655
SCOPE OF RELIEF
It may include award of damages, attorneys
fees and other relief. If already executed,
restitution or other relief as justice / equity
may warrant.656
IF ALSO APPLIES TO A PETITION TO
ANNUL JUDGMENT / FINAL ORDER OF A
MUNICIPAL TRIAL COURT BUT IS FILED
WITH REGIONAL TRIAL COURT and
treated as an ordinary civil action.657 All
sections except Section 5 pertaining to
dismissal or determination of prima facie
merit shall apply.
RULE 65- CERTIORARI / PROHIBITION
AND MANDAMUS
WHAT IS CERTIORARI
Special Civil Action against a tribunal board
or officer exercising judicial or quasi-judicial
function which is alleged in a verified petition
filed by an aggrieved party to have acted
without jurisdiction or in excess of its
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction,
AND there is no appeal, or any plain speedy
and adequate remedy in the ordinary course
of law, praying for the judgment annulling /
modifying the proceedings of such, tribunal
board officer, tribunal and granting such
incidental reliefs as law and justice may
require.658
DISTINGUISHED FROM PETITION FOR
REVIEW ON CERTIORARI
Certiorari as distinguished from a Petition for
Review on Certiorari: (a) In the former, the
issue iswhether the lower court acted

162
without, in excess of or with grave abuse of

discretion, while in the latter the issue is
based on questions of law (b) in the former,
it is addresses an interlocutory order prior to
appeal of a judgment when there is no
appeal or any other speedy or adequate
remedy, while the latter involves a review of
judgment/final order/ resolution on the merits
(c) the former is filed within 15 days from
notice of judgment / order, while the latter is
filed not later than 60 days from notice of the
resolution sought to be assailed or denial
of a motion for reconsideration (d) the
former shall stay the judgment /final order or
award, while the latter does not stay the
order or resolution unless a temporary
restraining order or preliminary injunction is
issued
(e)
In
the
former,
the
petitioner/respondent are the original parties
in the case and the lower court is not
impleaded, while in the latter, the aggrieved
party is the petitioner against the against the
lower court, agency and the prevailing party
(f) the former does not require the filing of a
motion for reconsideration prior to filing,
while the latter requires a
motion for
reconsideration prior to filing (g) in the
former, the court is exercising appellate
jurisdiction, while in latter, it is exercising
original jurisdiction (h) the former can only
be filed in the Supreme court, while the latter
may be filed with Supreme Court, Court of
Appeals, or the Regional Trial Court
EXCEPTIONS TO REQUIREMENT AS TO
MOTION FOR RECONSIDERATION PRIOR
TO FILING A PETITION FOR CERTIORARI
UNDER RULE 65
(1)order is a patent nullity court a quo has
no jurisdiction (2) questions have been
raised in certiorari have been duly raised
and passed upon by lower court (3)urgent
necessity for resolution (4)where a motion
for reconsideration will be useless
(5)petitioner is deprived of due process,
there is extreme urgency for relief (6) in
criminal case, relief from order of arrest is
urgent, and grant of relief by trial court is not
probable (7) proceedings in lower court are
a nullity for lack of due process (8) issue is
purely of law or where public interest is
involved.
WHAT IS PROHIBITION
Special civil action against a tribunal,
corporation, board, or person exercising
JUDICIAL
QUASI
JUDICIAL
163
MINISTERIAL FUNCTION which is alleged

by an aggrieved party to be acting or about
to act without jurisdiction, in excess of its
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction
and there is no appeal, or any plain, speedy
and adequate remedy in the ordinary course
of the law praying that judgment be
rendered commanding the respondent to
desist from further proceeding in the action
or proceeding therein or otherwise granting
such incidental reliefs as law and justice
may require.659
DISTINGUISHED FROM CERTIORARI
In CERTIORARI the object is to correct the
respondents acts by annulling proceedings,
while in PROHIBITION it is to prevent the
commission of an act by stopping
proceedings. In the former, the assailed acts
have already been done, while in the latter
the assailed acts are about to be done or
are being done. In the former, the
respondent performs judicial or quasijudicial, while in the latter, the respondent
performs judicial, quasi-judicial functions or
ministerial functions.
WHAT CONSTITUTES JUDICIAL
QUASI-JUDICIAL POWER
AND
1.The exercise of judicial function is to

determine what the law is, and what the
legal rights of parties are, with respect to a
matter is controversy; and whenever an
office is clothed with that authority, and
undertakes to determine those questions, he
acts judicially.660
2.A quasi-judicial act or function is a judicial
act or function performed by one who is not
a judge.
WHAT CONSTITUTES GRAVE ABUSE OF

DISCRETION
Capricious and whimsical exercise of
judgment as may be equivalent to lack or
excess of jurisdiction.
WHAT IS MANDAMUS

660 Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
164
A special civil action against a tribunal,

corporation, board, or officer alleged in a
verified petition filed by an aggrieved party
to
have
unlawfully
neglected
the
performance of an act which the law
specifically enjoins as a duty resulting from
an office, trust or station, or unlawfully
excluded another from the use and
enjoyment of a right or office to which such
other is entitled, and there is no plain,
speedy or adequate remedy in the ordinary
course of the law, praying that judgment be
rendered commanding the respondent,
immediately or at some other time specified
by the Court to do the act required to be
done to protect the rights of the petitioner,
pay damages sustained by reason of the
wrongful acts.
2 ASPECTS OF MANDAMUS
The aspects of Mandamus are: (a)
respondent
unlawfully
neglects
the
performance of an act which the law
specifically enjoins as a duty resulting from
an office, trust or station OR (b) respondent
unlawfully excludes another from the use
and enjoyment of a right or office to which
such other is entitled.
1.The legal right of the plaintiff (petitioner) to
the thing demanded must be well defined,
clear and certain. The corresponding duty of
the defendant (respondent) to perform the
required act must also be clear and
specific.661
2.Mandamus
lies
only
to
compel
performance of a ministerial duty but not to
compel performance of a discretionary
duty.662 In granting mandamus, respondent
is commanded to perform the particular act
or required to be done and to pay the
damages sustained by the petitioner by
reason of the wrongful acts of the
respondent.
3.An act is ministerial when officer or
tribunal performs in a given state of facts, in
a prescribed manner in obedience to the
mandate of a legal authority without regard
to the exercise of his own judgment. If given
the authority to decide how and when, it is
discretionary.
4.Mandamus does not lie to correct /
enforce contractual obligations.
661 Enriquez, Jr v Bidin, 47 SCRA 183

662 Calderon v Sol, 215 SCRA 876
165
HOW
DISTINGUISHED
CERTIORARI/PROHIBITION
FROM
In MANDAMUS, the respondent is

exercising ministerial power and he has
unlawfully neglected to perform it or
excluded a party from occupying or enjoying
the privilege of an office to which he is
lawfully entitled and the object is to
COMPEL action, while in CERTIORARI, the
respondent is exercising judicial or quasijudicial powers without jurisdiction or with
grave abuse of discretion amounting to an
excess or lack of jurisdiction and the object
is to CORRECT. In PROHIBITION , the
respondent is exercising judicial, quasijudicial or ministerial powers and he is acting
or about to act without jurisdiction or with
grave abuse of discretion amounting to an
excess or lack of jurisdiction, and the object
is to PREVENT
WHEN MAY IT BE FILED
Not later than 60 days from notice of the
assailed judgment, order or resolution. BUT
if a timely motion for reconsideration is filed,
whether required or not, the 60 days period
shall be counted from notice of the denial of
the motion.663 An extension may be granted
for compelling reasons but in no case to
exceed 15 days.
WHERE ELSE CAN BE FILED OTHER
THAN THE COURT OF APPEALS
The petition may be filed in the Supreme
Court, the Regional Trial Court if relates to
an act / omission of a lower court,
corporation, board, officer or person within
its
territorial
jurisdiction,
or
the
Sandiganbayan, if in aid of its appellate
jurisdiction
IT IS FILED WITH THE COURT OF
APPEALS
Whether or not in aid of its appellate
jurisdiction, when it involves acts / omissions
of quasi-judicial body, unless otherwise
provided.
PARTIES TO BE IMPLEADED
In addition to the public respondents, the
petition shall also join the person/s
interested in sustaining the proceedings and
663 Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC

166
it shall be the duty of the private respondent

to appear and defend both in his behalf and
that of the public respondents and cost
awarded shall be against private respondent
only.
Unless otherwise directed by the court, the
public respondents shall not appear or file
an answer or comment. If elevated to a
higher court the public respondents shall be
nominal parties, and unless directed shall
not appear or participate in the proceedings
therein.664
ORDER TO COMMENT
If petition is sufficient in form or substance, a
comment will be required, not a motion to
dismiss.665 Orders expediting proceedings /
temporary restraining order / injunctions for
the preservation of the rights of the parties
may be issued BUT the filing of the petition
shall not interrupt the course of the principal
case unless a Temporary Restraining Order
or Injunction is granted enjoining the public
respondent from further proceeding.666
ACTIONS
THAT
SUSBEQUENTLY
MAY
BE
TAKEN
Court may hear or require filing of

memoranda. If it finds the allegations to be
true, it shall render judgment for the relief
prayed for or to which petitioner is entitled.
It may also dismiss if patently without merit,
prosecuted manifestly for delay or issues
are
too
unsubstantial
to
require
consideration.667 (Section 8)
SERVICE
/
JUDGMENT
ENFORCEMENT
OF
Certified copy of judgment shall be served in

such manger as the court may direct and
disobedience thereto shall be punished as
contempt. Execution may issue for any
damages / cost in accordance with Section
1, Rule 39.668
RULE 66 -QUO WARRANTO
Quo Warranto is a special civil action
brought by verified petition in the name of

167
the Republic of the Philippines against: (a)

person who usurps, intrudes into or
unlawfully holds or exercises a public office,
positions or franchise (b) public officer who
performs an act that constitutes a ground fro
forfeiture of his office (c) an association that
acts as a corporation within the Philippines
without legally being incorporated or without
lawful authority to act.669
1.It literally means by what authority.670
2.An individual can bring a quo warranto
action in his name when he is claiming to
be entitled to a public office or position
usurped or exercised by another may bring
an action.671
3.A quo warranto action MUST be
commenced by the Solicitor General or
Public Prosecutor when directed by the
President or upon complaint or otherwise he
has good reason to believe that a cause can
be established by proof.672 If by complaint, a
request for indemnity for expenses and
costs may be required to be deposited.673
3.BESIDES the Court of Appeals, the action
can be brought before the Supreme Court, a
Regional Trial Court exercising jurisdiction
over the area where the respondent/s reside
BUT, if the Solicitor General commences
the action, he may bring it before
a
Regional Trial Court in Manila, the Court of
Appeals or the Supreme Court.674
4.WHEN FILED: within 1 year from accrual
of the cause of action (ouster or right to hold
position) Damages if recoverable must be in
another action filed within 1 year from entry
of judgment.675
5.PARTIES and CONTENTS of the petition:
When the action is against the person for
usurping a public office, position or
franchise, the petition shall set forth the
name of the person who claims to be
entitled thereto, if any with an averment of
his right to the same and that the
respondent is unlawfully in possession
thereof. All persons who claim to be entitled
may be made parties, and their respective

670 Tecson v Comelec, 424 SCRA 277
168
rights may be determined in the same

action.676
6.REDUCTION OF TIME for pleadings and
other proceedings may be directed by the
Court to secure the most expeditious
determination of the matters involved therein
consistent with the rights of the parties. It
can also take precedence over other civil
matters pending before the Court.677
7.A JUDGMENT where the respondent is
found guilty of usurping, intruding into, or
unlawfully holding or exercising a public
office, position or franchise shall state that
he be OUSTED AND ALTOGETHER
EXCLUDED THEREFROM, and that the
rights of the PETITIONER OR RELATOR,
meaning the real party in interest, be
determined as justice requires. 678 It can also
include a judgment for costs679
8.The RIGHTS of a person entitled to public
office include the right to demand of the
respondent all books and papers in his
custody or control appertaining to the office,
otherwise he may be punished for
contempt.680Note: the damages aspect must
be brought in another action.
DISTINGUISH
BETWEEN
QUO
WARRANTO AND ELECTION PROTEST
In QUO WARRANTO the issue is the
disqualification
/
ineligibility
of
the
proclaimed candidate, in a PROTEST the
issue is an irregularity in the election. If in
the former, if the respondent is ineligible, the
petitioner does not occupy the position,
while in the latter, the protestant can occupy
the position if he obtains a plurality of the
votes.
DISTINGUISH
BETWEEN
QUO
WARRANTO AS TO NATURE
OF
POSITION
In quo warranto involving an ELECTIVE
POST the issue is the eligibility of candidate
elected, while in that involving an
APPOINTIVE POST the issue is the legality
of appointment. In the former, if the
respondent is found ineligible, the found
ineligible, 2nd highest vote getter, even if

169
eligible cannot be declared elected, while in

the latter, the resolution shall determine who
has been legally
appointed and declare
who is entitled to occupy the office.
RULE 56 PROCEDURE
SUPREME COURT
IN
THE
ORIGINAL CASES
The cases cognizable by the Supreme Court
are Certiorari, Mandamus, Prohibition, Quo
Warranto, Habeas Corpus, Disciplinary
Actions against members of the Judiciary
and
Attorneys,
Cases
affecting
Ambassadors,
Public
Ministers
or
Consuls.681
In resolving the cases, applicable rules in
the Court of Appeals are also applicable in
the Supreme Court.682
APPEALED CASES
The only mode of appeal to the Supreme
Court is by Petition for Review on Certiorari,
except in criminal cases where penalty is
death, reclusion perpetua, and life
imprisonment683 NOTE: Except in appeal of
criminal cases where penalty is death,
reclusion perpetua, life imprisonment,
appeal by Notice of Appeal,
will be
dismissed684 AND if by certiorari from the
Regional Trial Court to the Supreme Court,
raising issues of fact may be referred to the
Court of Appeals for decision or appropriate
action. Determination of the Supreme Court
as to whether or not there are issues of fact
is FINAL.
All appealed cases shall be governed by
and disposed of in accordance with the
applicable provisions of the Constitution,
Rule 45 (Petition for Review on Certiorari)
Rule 48 (Preliminary Conference), Sections
1 (When submitted) 2 (Who renders
judgment) and 5 to 11 ( Form to Execution)
Rule
51,
Rule
52
(Motion
for
Reconsideration) and Rule 56.685
GROUNDS
APPEAL
FOR
DISMISSAL
OF
AN

170
Motu propio or upon motion of respondent, it

may be dismissed on (1) failure to take
appeal within the reglementary period (2)
lack of merit (3) failure to pay docket and
lawful fees (4) failure to comply with
requirements of proof of service and
documents (5) failure to comply with any
circular, directive or order of the Supreme
Court without justifiable cause (6) error in
the choice or mode of appeal (7) that it is not
appealable to the Supreme Court686
IF SUPREME COURT
OPINION IS
EQUALLY DIVIDED OR NECESSARY
MAJORITY CANNOT BE OBTAINED
It will be deliberated further. If after
deliberation, no decision is reached, the
original action commenced in the court shall
be dismissed. If appealed, it shall stand
affirmed. If on incidental matters, it shall be
denied.687
PROVISIONAL REMEDIES
RULE 57 PRELIMINARY ATTACHMENT
WHAT IS PRELIMINARY ATTACHMENT
It is a provisional remedy issued upon order
of the court where the action is pending to
LEVY upon the properties of the defendant
therein, the same to be held thereafter by
the sheriff as security for the satisfaction of
whatever judgment might be rendered in
favor of the attaching creditor.
It can also extend to property of the
defendant in the hands of 3rd persons or
money owed by 3rd persons to the
defendant. This is also known as
GARNISHMENT
If judgment has become final and executory,
there is a final attachment which is also
known as Levy on Execution
WHEN CAN IT BE AVAILED OF
At any time before entry of judgment.
DISTINCTIONS BETWEEN PRELIMINARY
ATTACHMENT AND GARNISHMENT
In PRELIMINARY ATTACHMENT there are
two parties, the plaintiff or proper party and

171
the defendant, while inGARNISHMENT,

there is an additional party in the person of
the garnishee. In the former, property is
actually seized and a lien is created thereon,
while in the latter, there is no actual seizure.
GROUNDS
1.Action for recovery of money or damages
other than moral / exemplary, on a cause of
action that arise from law, contract, quasi
contract, delict, or quasi-delict against a
party who is about to depart from the
Philippines with intent to defraud creditors.
2.Action for money or property embezzled or
fraudulently misapplied or converted to his
own use by a public officer, an officer of a
corporation, or an attorney, factor, broker,
agent or clerk in the COURSE OF HIS
EMPLOYMENT as such, or by any person in
a FIDUCIARY CAPACITY, or for WILLFUL
VIOLATION of such duty.
3.Action to recover possession of property
unjustly or fraudulently taken, detained or
converted when the property, or any part
thereof, has been concealed, removed or
disposed of to prevent its being found or
taken by the applicant or authorized person.
4.Action against a party guilty of fraud in
contracting the debt or incurring the
obligation upon which the action is brought
or in the performance thereof.
4.1
The fraud should be committed
either upon contracting the debt or incurring
the obligation sued upon or in the
performance thereof. A debt is fraudulently
contracted if at the time of contracting it, the
debtor has a preconceived plan or intention
not to pay.688
5.Action against a party who has removed or
disposed of his property, or is about to do
so, with intent to defraud creditors.
6.Action against a party who does not reside
and is not found in the PI or on whom
summons may be served by publication.689
HOW APPLIED FOR
1.Generally, by motion or is incorporated in
the complaint, accompanied by an affidavit,
containing the following: (a) It is executed by
688 FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
172
the applicant / or some person who is aware

or personally knows the facts (b)A sufficient
cause of action exists (c) That ground/s as
stated in Section 1 (d) There is no other
sufficient security for the claim sought to be
enforced by the action (e)
The amount
due the applicant or value of the property
that he is entitled to recover, IS AS MUCH
AS THE SUM for which the ORDER is
granted, above all legal counterclaims690
2.A BOND must then be executed to the
adverse party in the amount fixed by the
court, CONDITIONED that the latter will pay
all costs which may be adjudged and all
damages sustained by reason of the
attachment, if the court shall finally adjudge
that the applicant was not entitled thereto.691
WHEN ISSUED / BY WHOM
Either ex parte or on motion with notice and
hearing, by the court in which action is
pending, by the Court of Appeals or the
Supreme Court and must require the Sheriff
to attach so much of the property in the
Philppines of the party against whom it is
issued NOT EXEMPT FROM EXECUTION
as may be sufficient to satisfy claim
UNLESS other party makes a deposit or
gives a bond in an amount equal to that
fixed in the order, exclusive of costs. Note:
that several writs may be issued at the same
time to the sheriffs of the courts of different
judicial regions.692
1.IT IS ISSUED
EX-PARTE when the
ground is justified further by the fact that the
defendant might abscond or dispose of his
property before the writ is issued. It CAN
TAKE PLACE even before he is summoned
BUT note that it cannot be enforced unless it
is
preceded
or
contemporaneously
accompanied by SERVICE OF SUMMONS,
together with complaint, application for
attachment, affidavit, bond, order and the
writ itself. This is the PRIOR OR
CONTEMPORANEOUS RULE. NOTE: An
Alias summons belatedly filed cannot be
deemed to have cured the FATAL DEFECT
in the enforcement of the writ of preliminary
attachment.693
2.The prior or contemporaneous rule does
not apply when: (a) Summons could not be
served personally or by substituted service

693 Mangila v Court of Appeals, 387 SCRA 162
173
despite diligent efforts (b) Defendant is a

resident but temporarily out of the
PhiIippines (c) Defendant is a non-resident
of the Philippines (d) It is an action in rem
or quasi in rem
2.1
An IN REM action is directly against
the thing to determine title to or affect its
interest, while a QUASI-IN-REM
is a
proceeding against the thing for satisfaction
a claim against a person by adjudication of
rights against
property over which
jurisdiction can be obtained
BY WHOM / HOW ENFORCED
1.
By the sheriff, without delay and
with all reasonable diligence
1.1
Note that Rule 57 does not provide
any lifetime for a writ of preliminary
attachment unlike a writ of execution. 694
What the law provides are enforcing the writ
without delay and making sheriffs return
thereon without delay.
2. He may attach only such property not
exempt from execution, as may be sufficient
to satisfy the demand UNLESS defendant
makes a deposit or give a counter bond in
an amount equal to the bond fixed by the
court or to the value of the property
attached. 695 NOTE: That the attachment
shall proceed nevertheless until there have
been proceedings undertaken to discharge
the attachment. If found to be insufficient / or
is not filed, a NEW ORDER OF
ATTACHMENT MAY BE APPLIED FOR.696
3.Attachment should be in accordance with
the following:
a.If real property, it requires the filing with
the Office of the Register of Deeds of a
copy of the order together with notice that
property or interest therein is attached.
b.If personal property capable of manual
delivery taking it and safely keeping it in
custody after issuance of proper receipt.
c. If stocks / shares / interest in companies,
by leaving with the president or managing
agent a copy of the writ and notice.
694 Roque v Court of Appeals, 93 SCRA 540

174
d.If debts, credits, bank deposits and other

like personal properties not capable of
manual delivery leaving with such persons
owing debt, holding credits or in possession
a copy of the writ and notice.
e.If interest is in the estate of a decedent, by
virtue of his being an heir, legatee, or
devisee, by serving the writ / notice on
executor or administrator.
f. If in custodia legis copy of writ is filed if
the proper court or quasi-judicial agency and
notice served on the custodian of the
property. 697
3.1Effect of attachment of debts, credits and
similar personal property persons who
have them are liable to the applicant for the
amount of such credits UNTIL the
attachment is discharged, judgment is
satisfied or debts are paid698 (Section 8)
3.2Effect if on property belonging the estate
of the decedent, it will not impair the powers
of the executor / administrator or
representative BUT they shall report the
attachment to the court when any petition for
distribution is filed and in the order made
upon such petition the property may be
awarded to the heir / legatee / devisee , but
the property attached shall be delivered to
the sheriff, subject to the claim of the heir,
legatee, devisee or person claiming under
him.699 (Section 9)
3.3THERE CAN ALSO BE EXAMINATION
OF THESE PERSONS TO DETERMINE IF
THERE ARE PROPERTIES THAT MAY BE
ATTACHED IN THEIR POSSESSION700
4.Sheriff shall also make a RETURN without
delay, containing full statement of his
proceedings under the writ and a complete
inventory of property attached, together with
a copy of a counter-bond if one has been
filed, furnishing copies thereof on the
applicant.701
5.Property is to be held and disposed of in
the following manner:
a.If judgment is recovered by the attaching
party

175
1.
Paying to obligee proceeds of all
sales of perishable property or others sold
pursuant to order of the court as shall be
necessary to satisfy the judgment.
2.
If there is a balance, selling so much
of the real or personal property as may be
necessary to satisfy the balance, if enough
for that purpose, remains in the hands of the
sheriff or clerk of court. Note that there can
be an EARLY SALE if it is made to appear to
the court in which the action is pending that
the property attached is perishable, or that
the interest of all the parties to the action will
be subserved by the sale of the properties at
public auction, the proceeds to be deposited
with the court to abide the judgment.702
3. Collecting from all persons having in their
possession credits belonging to the obligor
or debts due him
A REPORT / RETURN of all proceedings
must be filed with the court and copies
furnished all parties.703
4. If there be a balance, he proceeds to
collect as upon ordinary execution. If there
be a surplus, it must be returned.
5.If judgment becomes executory, the
surety/ies shall become charged on the
counter-bond and bound to pay the
judgment obligee upon demand, the amount
due on the judgment, which amount can be
recovered after notice and summary hearing
in the same action.704
6. If money was deposited in LIEU of a
bond, it is applied under direction of the
Court and if judgment is against attaching
party, the whole sum deposited is refunded.
705
b.If judgment is for adverse party

1.
All proceeds of sales or money
collected by the sheriff and property
attached shall be delivered to the party
whose properties were attached and the
order of attachment discharged.
2.Claim for damages before trial, perfection
of appeal, or judgment becomes executory,

176
with due notice to the attaching party and

surety setting forth the facts showing his
right to damages in instances where there is
improper, irregular or excessive attachment,
are to be awarded after hearing and is to be
included in the judgment in the main case.
2.1
If the judgment favorable to him is
rendered by the appellate court, he must
claim the damages during the pendency of
the appeal by filing the application in the
appellate court, before the judgment
becomes executory. The appellate court
may allow the application to be heard and
decided by the trial court.
2.2
NOTHING, likewise, prevents the
party against whom attachment is issued
from recovering in the same action the
damages awarded to him from any property
of the attaching party not exempt from
execution should the bond or deposit be
insufficient.706
WHAT ARE THE REMEDIES OF A PARTY
WHOSE PROPERTIES ARE ATTACHED
1. Discharge the attachment by making a
cash deposit or counter bond. 707 NOTE:
That bond may be subject to RECOVERY by
attaching party;
2. Discharge or set aside the attachment on
the ground that it was improperly issued or
irregularly enforced, OR bond is insufficient
OR what has been attached is excessive,
the discharge is only for the excess.708
3. Claim for damages on account of
improper, irregular, or excessive attachment.
709
NOTE: a motion to discharge / dissolve is

not allowed if the preliminary attachment is
issued on a ground which is at the same
time the applicants cause of action as that
is TANTAMOUNT TO TRIAL ON MERITS.
Example: action for money, property
embezzled, party guilty of fraud in incurring
the obligation
WHAT HAPPENS IF PROPERTY
CLAIMED BY A 3RD PERSON
IS

177
Claim is to be initiated by affidavit. Upon

filing, the sheriff not under obligation to keep
the property, unless attaching party files a
bond. No claim for damages for the taking or
keeping of the property may be filed /
enforced against the bond unless the action
is filed within 120 days from date of the filing
of the bond. 710
RULE 58 PRELIMINARY INJUNCTION
A Preliminary Injunction isan order granted
at any stage of an action or proceeding prior
to judgment or final order, requiring a party
or a court, agency, person to refrain from a
particular act or acts. It may also require the
performance of an act, if such it is called a
preliminary mandatory injunction.711
1.Note that Injunction may also exist as a
cause of action. This is best illustrated by
the appropriate remedies for obligations to
do or not to do. Obligations to do, the
remedy is specific performance. Obligation
not to do, remedy is injunction.
PRIMARY PURPOSE OF INJUNCTION
Is to preserve the status quo or the last
actual, peaceable, uncontested status which
precedes the pending controversy.
WHO MAY GRANT
Court where the action is pending. If
pending in the Court of Appeals or the
Supreme Court, it may be issued by the
Court or any member thereof.712
GROUNDS FOR ISSUANCE
1. The applicant is entitled to the relief
demanded, and the whole or part of the
relief
consists
in
restraining
the
commission / continuance of the act/s
complained of, or in requiring the
performance of an act/s, for a limited period
or perpetually.
2.
The commission / continuance / non
performance of the act/s during litigation will
probably work injustice to the applicant, OR
3.
That a party, court, agency or a
person is doing, threatening, or is attempting

178
to do or is procuring or suffering to be done,

some act/s in violation of the rights of the
applicant respecting the subject of the action
and
tending
to
render
judgment
ineffectual.713
REQUISITES FOR ISSUANCE OF AN
INJUNCTION
1.Existence of a right to be protected
2.Acts against which the injunction is to be
directed are violative of the right
These must clearly appear in the allegations
in the complaint OTHERWISE it may be
ground for its outright denial for
INSUFFICIENCY, which is apparent in the
application itself OR if already granted, may
be dissolved.714
MAY IT BE ISSUED EX-PARTE
Its issuance requires (1) a hearing (2)
reception of evidence with opportunity to
cross (3) finding that prohibited acts are
threatened to be committed or that
irreparable injury would be inflicted upon the
applicant.
IF GREAT / IRREPARABLE INJURY
WOULD RESULT BEFORE THEN: the
Court BY WAY OF EXCEPTION TO THE
RULE ON NON EX-PARTE ISSUANCE (1)
can issue a Temporary Restraining Order for
20 days after a summary hearing OR If it is
of extreme urgency, it may issue ex-parte a
72 hour Temporary Restraining Order. The
lifetime of a Temporary Restraining Order is
20 days if issued by a trial court, 60 days if
issued by the Court of Appeals, and until
further orders if issued by the Supreme
Court. Note that within the 20 day effectivity
period of the Temporary Restraining Order,
the court must order the party or person to
show cause why the injunction should not be
granted, determine also whether or not the
preliminary injunction should be granted,
and accordingly issue the order. 715
HOW OBTAINED
A preliminary injunction or temporary
restraining order is obtained upon (1) filing
of a verified application showing facts
entitling the applicant to the relief
demanded, (2) unless exempted, filing of a

179
bond in an amount fixed by the court, to the

effect that applicant will pay all damages
that may be sustained if the court should
finally decide that applicant was not entitled
thereto (3) if included in a complaint /
initiatory pleading it shall be raffled only after
notice to and in the presence of the adverse
party. In any event, notice shall be
preceeded by or contemporaneously
accompanied by service of summons,
together with affidavit and bond (PRIOR OR
CONTEMPORANEOUS RULE) but such will
not be applicable if defendant / adverse
party cannot be served personally /
substituted service, temporarily absent or is
a non-resident. The matter shall thereafter
be acted upon only after all parties are
heard in a summary hearing, conducted
within 24 hours after sheriffs return of
service.716
GROUNDS
FOR
DISSOLUTION
OBJECTION
1.The application may be denied or if

granted, dissolved, upon showing of
insufficiency, or while
entitled to an
injunction, the issuance or continuance
thereof will cause irreparable damage to the
person enjoined while the applicant can be
compensated for the damages and a bond is
filed OR if it appears that extent is too great,
it may be modified. 717
2.It may also be dissolved on objection to
the sufficiency of the bond, or upon finding
of insufficiency, the failure of surety to justify
or filing of a sufficient bond. If it the objection
is to the bond of the party enjoined, the
injunction shall be granted or restored. 718
JUDGMENTS
INJUNCTION
OR
ORDERS
1.ORDER
DISCHARGING
IMMEDIATELY EFFECTIVE
IN
IS
2.A Final Injunction is granted if it appears

that the applicant is entitled to have the act/s
permanently enjoined or confirming the
preliminary mandatory injunction.719
3.Judgments eventually rendered may
include damages against a party and
sureties. 720

180
4.No injunction can issue against the acts of

a co-equal court, except in a 3 rd party claim
where claimant vindicates his right by a
separate action.
RULE 59 RECIEVERSHIP
WHEN IS A RECEIVER APPOINTED
1.When it appears from a verified
application, and as such other proof as the
court may require, that the party applying for
the appointment of a receiver has an interest
in the property or fund which is the subject
of the action or proceeding as such
property / fund is in danger of being lost,
removed or materially injured unless a
receiver be appointed to administer and
preserve it.
2.When it appears in an action by the
mortgagee for the foreclosure of mortgagee
that the property is in danger of being
wasted, dissipated or materially injured
and that its value is probably insufficient to
discharge the mortgage debt or that the
parties have so stipulated in the mortgage
contract.
3.When after judgment, to preserve the
property during the pendency of an appeal,
or to dispose of it according to the judgment,
or to aid in execution when the execution is
returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction
of the judgment or otherwise carry the
judgment into effect.
4.Whenever in other cases, it appears that
the appointment of a receiver is the most
convenient
and
feasible
means of
preserving, administering or disposing of
property in litigation.
WHO APPOINTS A RECEIVER
The court where action is pending or the
Court of Appeals, the Supreme Court or a
member thereof. During appeal, the
appellate court may allow the application for
the appointment to be filed in the court of
origin, which can also decide on the same to
be subject to the control of said court.721
1.A receiver of real or personal property,
which is the subject of the action, may be
appointed by the court when it appears from
the pleadings or such other proof as the

181
judge may require, that the party applying

for such appointment has:
(a) an actual interest in it, and (b) that (a)
such property is in danger of being lost,
removed, or materially injured; or whenever
it appears to be the most convenient and
feasible
means
of
preserving
or
administering the property in litigation.722
2.A receiver is a person appointed by the
court or by a quasi-judicial administrative
agency, in behalf of all the parties for the
purpose of preserving and conserving the
property and preventing its possible
destruction or dissipation, if it were left in the
possession of any of the parties. It is the
duty of the receiver to administer the assets
of the receivership estate; and in the
management and disposition of the property
committed to his possession, he acts in a
fiduciary capacity and with impartiality
toward all interested persons.723
3.A receiver is not an agent or
representative of any party to the action. He
is an officer of the court exercising his
functions in the interest of neither plaintiff
nor defendant, but for the common benefit of
al the parties in interest. He performs his
duties subject to the control of the Court,
and every question involved in the
receivership may be determined by the court
taking cognizance of the receivership
proceedings. Thus, unauthorized contracts
of a receiver do not bind the court in charge
of receivership. They are the receivers own
contracts and not recognized by the court as
contracts of the receivership.724
WHAT ARE
RECIEVER
THE
POWERS
OF
THE
Subject to the control of the court, HE CAN:

(a)Bring and defend actions in his own name
(b)Take and keep possession of the
properties in controversy (c)To receive rent
(d)Collect debts, including power to
compound and compromise them, to pay
debts (e)Make transfers (f)
To
divide
money or other property (g) Other acts as
may be authorized by the court
1.Funds though may only be invested by
order of the court upon written consent of all
parties. No action may be filed by or against
722 Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
723 Arranza versus B.F. Homes, Inc., 333 SCRA 799
724 Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
182
the receiver without leave of court to prevent

harassment.725
2.Should there be refusal / neglect to deliver
property to a receiver it is punishable by
contempt and shall be liable for the money
or value of the property, plus damages
sustained as a consequence of the refusal /
neglect.726
HOW APPLIED FOR
1.By verified application. Note that more
than 1 receiver may be applied for and
appointed by the court. NOTE: That
receivership may be a principal action or an
ancillary remedy.
2.If application is granted the receiver
shall await the filing by the applicant of a
bond executed to the party against whom
the application is presented in an amount
fixed by the Court to the effect that the
applicant will pay such party all damages
that he may sustain by reason of the
appointment in case the same has been
procured without SUFFICIENT CAUSE
and the court in its discretion may require an
additional bond to be filed as further security
for damages.727
3.The APPLICATION may be denied or
receiver discharged when the adverse party
files a bond executed to the APPLICANT to
the effect that such party will pay to the
applicant all damages he may suffer by
reason of acts, omissions or other matters
specified as grounds in the application If
may also be discharged if it is shown that
appointment was obtained without sufficient
cause.728
4.BEFORE entering upon his duties, the
receiver shall be sworn to perform them
faithfully and shall file a bond executed to
such person and in amount fixed by the
court, to the effect that he will faithfully
discharge his duties and obey orders from
the Court.729
5.Copies of bonds ( Applicant and Reciever
OR Adverse Party) shall be served on each
interested party who may except to its
sufficiency or the surety. If found to be

183
insufficient or is not justified and a bond

sufficient in amount and surety is not filed,
the application shall be denied and the
receiver discharged. If adverse partys bond
is the one excepted to or found insufficient,
the receiver shall be appointed or
reappointed as the case may be.730
WHEN TERMINATED
When the court, motu propio or upon
motion, shall determine that the necessity
for a receiver no longer exists, it shall alter
due notice, settle all accounts, direct
delivery of the funds / property in his
possession to the person adjudged to be
entitled to receive them and order the
discharge of the receiver from further duty.
He is to be allowed compensation as
circumstances will warrant to be taxed
against defeated party or apportioned as
justice may require.731
Any judgment may include the amount, if
any, to be awarded any party upon any
bond.732
RULE 60 REPLEVIN
WHAT IS REPLEVIN
It is a form of a principal remedy and
provisional remedy / relief. It is also a mixed
action partly in rem as far as the claim for
recovery of personal property and in
persona as far as the claim of damages, the
object of which is recovery of possession of
personal property applied for at the
commencement of the action or at any time
before answer by the party praying for
recovery of personal property.733
HOW
1.Filing of Affidavit containing the following:
(a) that applicant is the owner of the
property claimed, particularly describing it,
or is entitled to possession of the same
(b)that property is a wrongfully detained by
the adverse party, alleging the cause of
detention according to the best of his
knowledge, information or belief (c) that
property has not been distrained or taken for
a tax assessment or payment of fine or
seized
under
execution,
preliminary
attachment or in custodia legis, or if so

184
seized, it is exempt from seizure / custody

(d) actual market value NOTE: Not the
probable value as declared by the applicant.
Should there be a dispute, it is to be
resolved by the Court.
2.Filing of bond in double the value of the
property for return of the property to the
adverse party and payment of such sum as
he may recover from the applicant
3.UPON FILING OF AFFIDAVIT AND
BOND, the writ of replevin shall issue
requiring the sheriff to forthwith take the
property in custody.734
3.1IN TAKING CUSTODY if concealed, he
may demand delivery, if not delivered, he
may cause the building / enclosure to be
broken. Once in possession, it must be kept
in a secure place and shall be responsible
for its delivery to the party entitled thereto
upon receipt of his fees and expenses.735
REMEDIES FOR RETURN OF PROPERTY
1.Objection to the sufficiency of the bond /
surety but he cannot immediately require
delivery OR at any time before delivery to
the applicant, by filing a bond (redelivery
bond) executed to the applicant in double
the value of the property as stated in the
applicants affidavit.
MANNER OF DISPOSITION BY SHERIFF
1.
If within 5 days after taking of the
property, the adverse party does not object
to sufficiency of the bond / sureties OR he
objects and the court affirms its approval of
the bond or approves a new bond OR if he
requires return but his bond is objected to
(adverse party) and he does not forthwith file
an approved bond THE SHERIFF SHALL
DELIVER THE PROPERTY TO THE
APPLICANT IF FOR ANY REASON IT IS
NOT
DELIVERED,
IT
MUST
BE
RETURNED TO ADVERSE PARTY.736
2. If claimed by a 3rd PARTY by affidavit, the
sheriff is not bound to keep and deliver the
property unless applicant / agent on demand
of the sheriff files a bond approved by the
Court to indemnify the 3rd party claimant in a
sum not less than the value of the property
under replevin. In case of disagreement as
to value, the court shall determine the same.

185
Note that no action on the bond may be

enforced unless filed within 120 days from
filing.
The sheriff shall not be liable for damages
for the taking and keeping of the property to
any such 3rd party if the bond is filed.
Nothing also prevents the 3rd party claimant
or the applicant from vindicating their rights
or claims in the same action or in a separate
action.
If writ is issued in the name of RP, no bond
is required and the sheriff is to be
represented by the SOLGEN and damages
so adjudged are paid out of the National
Treasury. 737
3.SHERIFF must make return within 10 days
after taking of the property.738
4.The JUDGMENT BY THE COURT shall
include a determination who has a better
right of possession to and value of the
property and render judgment in the
alternative for delivery thereof to the party
entitled or its value in case delivery cannot
be made, and also for damages as either
party may prove, with costs. Any amount
awarded a party upon any bond shall be
claimed, ascertained and granted as
provided by Section 20 of Rule 57.739
5.A WRIT OF REPLEVIN may be served
anywhere in the PI
RULE 61 SUPPORT PENDENTE LITE
WHEN FILED AND HOW
At the commencement of the proper action
or proceeding or at any time prior to a
judgment or final order a verified
application may be filed by a party stating
the grounds for the claim and the financial
conditions of both parties, accompanied by
affidavits, depositions, or other authentic
documents in support thereof.740
1.It is also available in criminal cases when:
(a) child is born to offended party allegedly
because of the crime (b) civil liability arising
from the criminal action includes support for
the offspring (c) civil aspect has not been
waived, reserved or instituted prior to filing

186
of criminal action. This application may be

filed successively by the offended party, her
parents, grandparents, guardian or the State
in the corresponding criminal case during its
pendency.741
PROCEDURE:
1. Upon filing of verified application it shall
be served on the adverse party, who shall
have 5 days to comment unless a different
period is fixed by the court. It shall also be
verified and accompanied by affidavits,
depositions, authentic documents.742
2. Hearing shall then be conducted no more
than 3 days after comment is filed or the
period expires.743
3. Court shall determine provisionally the
pertinent facts and render such orders as
justice and equity may require, having due
regard to the probable outcome of the case
and such other circumstances.
3.1
IF GRANTED, it shall fix the amount
of money to be provisionally paid or such
other forms or support as should be
provided taking into account the
necessities of the applicant AND resources
or means of the adverse party AND the
terms or mode for providing support.
3.2
IF DENIED, the principal case shall
be tried and decided as early as possible.744
HOW ENFORCED
If adverse party fails to comply, the court
shall, motu propio or on motion, issue an
order of execution without prejudice to his
liability for contempt. ALSO, if support be
paid by a 3rd person, after due notice and
hearing in the same case, he may obtain a
writ of execution to enforce his right of
reimbursement against the person ordered
to provide support.745
RESTITUTION
IF upon judgment / final order
finds that the person who
providing support is not liable
shall order the recipient to
The court
has been
therefor it
return the

187
amounts paid plus interest from dates of

actual payment without prejudice to the right
of the recipient to obtain reimbursement in a
separate action from the person legally
obliged to give support. Should the recipient
fail to reimburse, the person who provided
the same, may, in a separate action, seek
reimbursement thereof from the person
obliged to give support.746
SPECIAL CIVIL ACTIONS
RULE 62 - INTERPLEADER
WHEN PROPER
Whenever conflicting claims upon the same
subject matter are or may be made against
a person who claims no interest whatever in
the subject matter, or an interest which in
whole or in part is not disputed by the
claimants, he may bring an action against
the conflicting claimants to interplead and
litigate their several claims among
themselves.747
PROCEDURE:
1. Upon filing of the complaint, the court
shall issue an order requiring the conflicting
claimants to interplead with one another. If
the interest of justice requires, it may order
the subject matter be paid or delivered to the
court.748
2. Summons shall then issued to claimants,
together with a copy of the complaint and
order.749
3. Within the time for the filing of an answer,
motions to dismiss may be filed, if denied
the claimant must file an answer within the
period remaining but in no case less than 5
days. If not, he may be declared in default
and thereafter the court may render
judgment barring him from any claim in
respect of the subject matter. They may also
file counter-claims, cross-claims, 3rd party
claims, and other responsive pleadings.750
4. After the pleadings of the conflicting
claimants have been filed, pre-trial
conducted, the court shall proceed to
determination and adjudication of their

188
respective claims. The docket and other

lawful fees paid by a party who filed the
complaint, as well as costs / expenses of
litigation shall constitute a lien or charge
upon the subject matter, unless the court
orders otherwise.751
RULE 63 DECLARATORY RELIEF AND
SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
It is a special civil action brought before the
Regional Trial Court ONLY by a person
interested in a DEED, WILL, CONTRACT or
OTHER WRITTEN INSTRUMENT, or whose
rights are affected by a STATUTE,
EXECUTIVE ORDER OR REGULATION,
ORDINANCE or any government regulation
BEFORE BREACH THEREOF, asking the
court to DETERMINE ANY QUESTION OF
CONSTRUCTION OR VALIDITY arising,
and for a declaration of his rights OR duties
thereunder.752
1.ACTIONS
for
REFORMATION
OF
INSTRUMENT, TO QUIET TITLE OR
REMOVE CLOUDS THEREFROM, or to
CONSOLIDATE OWNERSHIP UNDER Art
1607 NCC may be brought as civil actions
for declaratory relief.
2.NOTE
THAT
AN
ACTION
FOR
DECLARATORY RELIEF may be brought
only before a breach / violation of the statute
or instrument. If already brought AND a
breach / violation is committed before final
termination, it is converted into an ordinary
civil action. The parties may then file such
pleading as may be necessary or proper.753
WHO ARE THE ALLOWED PARTIES
1.All persons who have or claim an interest
which would be affected by the declaration
shall be made parties
and NO
DECLARATION shall as except as
otherwise provided in these RULES
prejudice the rights of persons not parties to
the action.
2.If involving validity of a statute, executive
order, regulation, or any other government
regulation. The solicitor general shall be

189
notified and is entitled to be heard upon

such question.754
3.If local government ordinance, the
corresponding attorney / prosecutor of the
Local Government Unit shall be similarly
notified and heard. If alleged to be
unconstitutional, the Solicitor General shall
be notified and heard.755
ACTION BY THE COURT
Except in actions falling under the 2 nd
paragraph of Section 1, the court, motu
propio, or on motion, may refuse to exercise
the power to declare rights and to construe
instruments in any case WHERE A
DECISION WOULD NOT TERMINATE THE
CONTROVERSY ON UNCERTAINTY THAT
GAVE RISE TO THE ACTION, or in any
case, WHERE THE DECLARATION /
CONSTRUCTION is not NECESSARY and
PROPER under the circumstances.756
RULE 64 REVIEW OR JUDGMENTS /
FINAL ORDER OF THE COMELEC AND
COA
A judgment / final order of COMELEC / COA
is to be brought by the aggrieved party to
the Supreme Court under Rule 65 but the
period for filing is 30 days from notice of the
judgment or final order sought to be
reviewed. The filing of a motion for new
trial / recon if allowed under the procedural
rules of the COMELEC / COA will toll the
period. If denied, the aggrieved party only
has the remaining period which is no case
shall be less than 5 days in any event,
reckoned from notice of denial.757
1.Note that only judgments/final orders of
the COMELEC en banc can be brought to
the SC. What is exercised is the power of
review.
2.The bringing of a petition, shall not stay
the execution of the judgment, final order or
resolution unless directed otherwise by the
Supreme Court.758
RULE 67 EXPROPRIATION

757 Supra, Sections 1,2, and 3, Rule 64
190
SEE RP vs. Gingoyon GR 166429, Jan 14,

2005
Rule 67 contemplates two (2) separate final
orders, namely:
1.
2.
order
of
expropriation
(Section 4, Rule 67) and
order of just compensation
(Section 8, Rule 67).
An expropriation suit is incapable of

pecuniary estimation and falls within the
jurisdiction of the Regional Trial Courts.
(Barangay San Roque vs. Heirs of Francisco
Pastor, 334 SCRA 127).
Public
purpose
which
will
justify
expropriation of property generally means
such activity which will serve as
convenience, safety, welfare, advantage, or
benefit to the entire community, and not to a
particular individual, class or group of
persons.
Public use is one which confers some
benefit or advantage to the public. It is not
confined to actual use by the public. It
includes the right of use by the public,
whether it is exercised by one or some or
many members of the public.
Public use contemplates indirect public
benefit or advantage (Estate of Salud
Jimenez vs. Phil. Export Processing Zone,
349 SCRA 240). It must be considered in its
general concept of meeting a public need or
a public exigency. Manosca vs. CA, 252
SCRA 412).
At present, whatever may be beneficially
employed for the general welfare satisfies
the requirement of public use. (Reyes vs.
NHA, 395 SCRA 494).
WHAT IS EXPROPRIATION
The taking of private property for public
purpose upon the payment of just
compensation. It is also known as exercise
of the power of eminent domain.
HOW EXERCISED
Filing of a verified complaint which shall
state with certainty the right and the purpose
of expropriation, describing the real /
personal property sought to be expropriated,
joining as defendants all persons claiming /
owning or occupying any part thereof or
191
interest therein. Note that the subject can be

either real / personal property.759
WHERE FILED
Regional Trial Court, regardless of value as
it is an action which is incapable of
pecuniary estimation.
UPON FILING, MAY PLAINTIFF TAKE
POSSESSION
Plaintiff, upon making a deposit in or with an
authorized government depository of an
amount equal to the assessed value of the
property for purposes of taxation may take
possession of the real property. If it involves
personal property, its value as provisionally
ascertained.760
1.Note that under Section 19 of the Local
Government Code, the LGU can take
possession upon deposit with the court of
FIFTEEN PERCENT of the Fair Market
Value based on the current tax declaration.
UPON FILING AND SERVICE
1.The DEFENDANT MAY FILE: (a)
A
Manifestation that he has no objection or
defense to the action, OR (b)
An Answer
stating all objections and defenses to the
taking of the property. No, counterclaim,
cross claim or 3rd party complaint shall be
allowed in the answer or any subsequent
pleading.761
2.AFTER, the case now proceeds to a
determination of:
2.1
Authority
of
the
plaintiff
to
expropriate. Thereafter, the court may
dismiss the petition or issue an order of
expropriation. The order is appealable BUT
SHALL NOT PREVENT DETERMINATION
OF JUST COMPENSATION,IF GRANTED
AND PLAINTIFF CANNOT DISMISS OR
DISCONTINUE EXCEPT ON TERMS THAT
COURT DEEMS JUST AND EQUITABLE as
there is entry already.762
2.2NOTE the right of plaintiff to enter into
the property and appropriate shall not be
DELAYED by an APPEAL. But if appellate
court determines that no right of
expropriation exists. It shall order the RTC to

192
enforce restoration and determine the

damages that the defendant sustained.763
3. Just compensation is then determined by
no more than 3 court appointed
commissioners. If the Court accepts their
report, it will render judgment based
thereon.
Such
judgment
is
also
appealable.764
3.1IF
upon
determination
of
just
compensation, the ownership is uncertain or
claims are conflicting, the court may order
sum / sums paid to be given to the Court for
the benefit of the person adjudged in the
same proceeding to be entitled thereto BUT,
payment will be required to be given to the
defendant or the court before plaintiff can
enter into or retain the property.765
4.The JUDGMENT shall state definitely, by
an adequate description, the particular
property or interest therein expropriated and
the nature of the public use or purpose for
which it is expropriated, a certified copy of
which judgment shall be recorded in the
registry of deeds and its effect shall to be
shall to be vest in the plaintiff title to the real
estate for public use or purpose.766
RIGHT OF PLAINTIFF UPON PAYMENT /
TENDER
The plaintiff shall have the right to enter into
the property and expropriate for public use
or retain it if already entered. If defendant or
counsel absent themselves from the court or
decline to receive the amount, it shall be
deposited in the court and shall have the
effect of ACTUAL PAYMENT.767
WHO PAYS FOR COSTS
All costs, except that incurred by rival
claimants, shall be paid by the plaintiff
unless an appeal is taken therefrom by the
owner of the property and the judgment is
affirmed. Costs shall include the fees of the
commissioners.768

764 Supra, Sections 5,6,7, and 8, Rule 67
193
RULE 68 FORECLOSURE OF REAL

ESTATE
WHAT SHOULD BE STATED IN THE
COMPLAINT/PETITION
The complaint in foreclosure of a mortgage
or other encumbrance shall set forth:
(a)Date and due execution of the mortgage
(b)Its
assignments,
if
any
(c)Names/residences
of
mortgagor/mortgagee (d)Description of the
mortgaged property (e) Statement of the
date of the note or other documentary
evidence of the obligation secured by the
mortgage (f)Amount claimed to be unpaid
(g)Name/residences of 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.769
WHAT COURT CAN DO
After trial, if the court shall find the facts to
be true, it shall ASCERTAIN THE AMOUNT
DUE THE PLAINTIFF AND RENDER
JUDGMENT FOR THE SUM WITH AN
ORDER FOR IT TO BE PAID BY ADVERSE
PARTY TO THE COURT OR JUDGMENT
OBLIGEE WITHIN A PERIOD OF NOT
LESS THAN NINETY (90) DAYS NOR
MORE THAN ONE HUNDRED TWENTY
DAYS (120) FROM ENTRY OF JUDGMENT,
AND THAT IN DEFAULT, THE PROPERTY
SHALL BE SOLD AT PUBLIC AUCTION.
This period is known as MORTGAGORS
EQUITY OF REDEMPTION. 770
DISTINGUISHING
EQUITY
REDEMPTION
FROM
RIGHT
REDEMPTION
OF
OF
Equity of Redemption is the equitable right

of the mortgagor to redeem, while Right of
Redemption is the statutory right of the
mortgagor to redeem. The former is
available before auction sale, while the latter
is available after auction sale. The former is
available only judicial foreclosure, while the
latter is available only in extra-judicial
foreclosure, but by exception is allowed in
judicial foreclosure when the mortgagee is
the PNB or a bank or a banking institution.
The period for the exercise of the former is
within 90 days but no more than 120 days
from entry of foreclosure judgment, while in

194
the latter it is one year from redemption is

within one year from date of registration of
the sheriffs certificate of sale, except when
the mortgagor is a juridical person, in which
case, the right to redeem must be exercised
until, but not after, the registration of the
certificate of sale with the applicable register
of deeds which in no case shall be more
than three months after foreclosure,
whichever is earlier.771
WHAT HAPPENS IF NOT PAID
1.Upon motion, the court shall order the
property sold in the manner prescribed
under Rule 39, such SALE shall not affect
the rights of persons holding prior
liens/encumbrances on the property or parts
thereof.
2.Upon motion, sale shall be CONFIRMED,
and such shall operate to divest the rights in
the property of all the parties to the action
and to vest their rights in the purchaser,
subject to such rights of redemption as may
be allowed by law.
2.1
Note that when judicial foreclosure
is resorted to there is no right of redemption
EXCEPT when the law allows a redemption.
EXAMPLE: Section 47 of the Philippine
General Banking Law which allows a one
year period for redemption.
3.Upon finality of the order of confirmation or
upon expiration of the period of redemption
when allowed by law, the purchaser at
auction is entitled to possession unless a
third party is holding it adversely to the
judgment obligor, in which case, the
purchaser at the auction sale may secure a
writ of possession from the Court ordering
the sale.772
3.1What is to be registered is the order of
confirmation. If there is no right of
redemption, the title of the mortgagor is
cancelled and a new one issued in the name
of the purchaser.
3.2
If with right of redemption, the
annotation is to await final deed of sale
executed by Sheriff.773 (Section 7)
4.PROCEEDS OF THE SALE shall, after
deducting the costs, be paid to the persons
771 Section 47, Philippine General Banking Law

195
foreclosing the mortgage. If there be a

balance or residue, it shall be paid to the
junior encumbrancers, in the order of priority
ascertained by the Court, if none or there
still be a balance or residue after payment,
to the mortgagor.774
5.If debt is not all due, as soon as a
sufficient portion of the property has been
sold to pay the total amount, the sale shall
terminate. Afterwards, no more shall be sold,
BUT if property cannot be sold in portions,
the entire property is to be sold with rebate
of interest if proper when the full debt is
paid.775
6.Deficiency judgments, if there is a
balance, upon motion, the court shall render
judgment against the defendant for the
balance, upon which execution may issue. If
balance is due at the time of rendition of
judgment OR at such time as the remaining
balance becomes due under the terms of
the original contract, which time shall be
stated in the judgment.776
7.Note that the provisions of Section 31 as
to use of premises by obligor, Section 32 as
to rents still due the obligor, and Section 34
as to recovery of price if sale is not effective
of Rule 39 are applicable as far as the
former are not inconsistent.777
RULE 69 PARTITION
OBJECT OF PARTITION
Separate, divide and assign a thing that is
held in common among those to whom it
may belong. The remedy may be availed of
regardless of whether it involves real or
personal property, or both
WHO CAN FILE AND HOW
Any person, having the right to compel
partition of real estate may file, setting forth
therein the nature and extent of his title,
adequate description of the property, joining
as defendants all other persons interested in
the property.778

196
1.An action for partition and accounting

under Rule 69 is in the nature of a quasi in
rem779.
PROCEDURE
1.
If after trial, it finds for the plaintiff, it
will order partition. Thereupon, if they
AGREE, the parties may undertake the
partition among themselves by proper
instruments. The court shall thereupon
confirm the partition so agreed by the
parties. Such partition and order of
confirmation shall then be recorded in the
registry of deed of the place where the
property is situated.
A final order decreeing partition and
accounting may be appealed by the party
aggrieved thereby.780
2. If they fail to agree, the Court shall
appoint not more than 3 commissioners,
commanding them to set-off to the plaintiff
and each party in interest such part and
proportion of the property as the court will
direct.781
2.1Before discharging their duties, the
commissioners shall take an oath that they
will faithfully discharge their duties, and in so
doing they shall view and examine the real
property , shall hear the preferences of the
parties, determine the comparative value of
the property, and shall set apart the same to
the parties in lots or parcels as will be most
advantageous and equitable, having due
regard to the improvements, situation and
quality of the different parts thereof.782
2.2If the property cannot be divided without
prejudice to the interest of the parties, the
court may order it assigned to one of the
parties willing to take the same, provided he
pays to the other parties such amount as
determined by the commissioners to be
equitable, unless one of the interested
parties asks that the property be sold
instead.783
2.3A report should thereupon be made by
the commissioners and filed with the court,
which shall then give the parties 10 days
within which to file heir objections to the
779 Valmonte v Court of Appeals, 52 SCRA 92

197
findings. No proceeding shall pass title to

the property or bind the parties until the
court shall have accepted the report and
rendered judgment thereon. Note though
that the court has the option to accept or recommit the matter to the commissioners.784
3.If actual partition of the property is made,
judgment shall state definitely the metes and
bounds and adequate description of the
property, the particular portion allocated to
each party and its effect is to vest to each
party in the action in severalty the portion of
real estate assigned to him. If the whole
property is assigned to one after payment to
the others, judgment has the effect of
vesting in the party making payment the
whole of the real estate free from any
interest of the other parties. If the property is
sold and proceeds divided, judgment has
the effect of vesting the property or portion
sold in the purchaser free from any interest
of the parties to the action. 785Judgment may
include recovery from the other of just share
of rents and profits received by the other
from the real estate in question 786 and costs
equitably apportioned among the parties.787
DISTINGUISHING BETWEEN ORDER OF

PARTITION
AND
JUDGMENT
OF
PARTITION
The Order of Partition finding that plaintiff is
entitled to partition, and after which, if the
parties agree, they may partition subject to
confirmation by the court, while Judgment of
Partition is the judgment rendered pursuant
to the commissioners report after it is
accepted by the court. BOTH THOUGH
ARE APPEALABLE

198
RULE
70FORCIBLE
ENTRY,
ILLEGAL/UNLAWFUL DETAINER
WHAT IS FORCIBLE ENTRY
An action brought when a person is deprived
of possession of land/building by FORCE,
INTIMIDATION, THREAT, STRATEGY, OR
STEALTH.
WHAT IS UNLAWFUL DETAINER
An action brought by a lessor, vendor,
vendee or other person against whom
possession of land/building is unlawfully
withheld after expiration or termination of the
right to hold possession, by virtue of a
contract, express or unpaid. Such action
must be brought within one year after
withholding such possession. Also known as
an accion interdictal which seeks to recover
possession de facto or physical, actual or
material possession.
199
Note that it is the character or nature of the

defendants possession which will determine
which of the two actions is appropriate.
UNLAWFUL DETAINER OR FORCIBLE
ENTRY
OR
ACCION
INTERDICTAL
DISTINGUISHED
From Accion Publiciana which is a plenary
action to recover right of possession that is
brought after one year from accrual of the
cause of action in a Regional Trial Court and
Accion Reivindicatoria which is an action to
recover ownership, including possession.
Note: In addition to restitution of possession,
damages and costs may also be
recovered.788
WHAT IS REQUIRED FOR THE ACTION
TO BE FILED
1.In Illegal Detainer ,unless otherwise
stipulated, the lessor can proceed against
lessee only after demand to pay or comply
with the conditions of the lease and to
vacate is made upon the lessee, or by
serving written notice of such demand upon
the person found within the premises, or by
posting such notice on the premises if no
person is found thereon and the lessee fails
to comply within 15 days in the case of land
or 5 days in case of building.789
1.1If action is terminate the lease due to the
expiration of its term, demand is not a
prerequisite.790
2.No demand is required in Forcible Entry

cases.
WHEN, WHERE FILED AND NATURE OF
PROCEEDINGS

790 Lanuza v Munoz, 429 SCRA 562
200
Cases of Forcible Entry/Unlawful Detainer

are to be filed within one year from date of
actual entry or date of last demand before
the Municipal Trial Court and shall be
covered by the Rules on Summary
Procedure, irrespective of the amount of
damages or unpaid rentals, unless they are
covered by agricultural tenancy laws or
otherwise provided by law.791
PROCEDURE TO BE FOLLOWED
1.The only allowable pleadings are the
complaint, compulsory counterclaim and
cross-claim pleaded in the answers and
answers thereto. All pleadings are to be
verified.792
2.Upon filing of the complaint, the court may,
from an examination of the allegations in the
complaint and such evidence attached
thereto, dismiss the complaint on any of the
grounds for a motion to dismiss which are
apparent therein. If not dismissed, it shall
proceed to issue summons.793
3.If summons is issued, the defendant shall
file his answer within 10 days from receipt,
serving a copy thereof to the plaintiff.
Affirmative or negative defenses not pleaded
are deemed waived, except lack of
jurisdiction over the subject matter.
Crossclaims or counterclaims not asserted
are barred. If the answer contains
crossclaims or counterclaims, answers
thereto are to be filed within 10 days from
service of the answer in which they are
pleaded.794
4.Failure to answer the complaint within the
period above provided, the court, motu
proprio, or on motion of the plaintiff, shall
render judgment as may be prayed for
therein: Provided, however, That the court
may in its discretion reduce the amount of
damages and attorneys fees claimed for

792 Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
793 Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
201
being
excessive
or
otherwise
unconscionable. This is without prejudice to
the applicability of Section 3, Rule 9 of the
Rules of Court, if there are two or more
defendants.795
5.A preliminary conference is then
scheduled not later than 30 days after the
last answer is filed. The provision of Rule 18
on pre-trial shall be applicable to the
preliminary conference unless inconsistent
with the provisions of this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for
the dismissal of his complaint. The
defendant who appears in the absence of
the plaintiff shall be entitled to judgment on
his counterclaim in accordance with Section
6 hereof. All cross-claims shall be
dismissed.
If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Section 6 hereof. This Rule
shall not apply where one of two or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at the preliminary conference.
No postponement shall be granted except
for highly meritorious grounds and without
prejudice to sanctions which the court may
deem to impose.796
6. Within 5 days after the termination of the
preliminary conference, an order shall be
issued by the court stating the following
matters: (a) Whether the parties have
arrived at an amicable settlement, and if so,
the terms thereof (b)The stipulations or
admissions entered into by the parties (c)
Whether, on the basis of the pleadings and
the stipulations and admissions made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered within
thirty (30) days from issuance of the order
202
(d) A clear specification of material facts

which remain controverted; and (e) Such
other matters intended to expedite the
disposition of the case.797
7.Within 10 days from receipt of the order,
the parties shall submit the affidavits of their
witnesses, evidences and position papers
setting forth the law and the facts relied
upon.798 The affidavits submitted shall only
state the facts of direct personal knowledge
of the affiant which are admissible in
evidence
and
must
indicate
their
competence to testify. A violation may
subject the party or counsel to disciplinary
action and will be cause to expunge the
inadmissible affidavit or portion thereof from
the record.799
8.The following petitions, motions, or
pleadings are PROHIBITED and shall not be
allowed to be filed:
(a) Motion to dismiss the complaint except
on the ground of lack of jurisdiction over the
subject matter, or failure to comply with the
preceding section pertaining to referral to
the Lupon for conciliation. The case may
then be dismissed WITHOUT PREJUDICE
and may be revived upon showing of
compliance.800 The filing of a motion to
dismiss after an answer is filed does not
violate the rules. What is proscribed is a
motion to dismiss that stops the running of
the period for the filing of an answer and
cause undue delay.801
(b) Motion for a bill of particulars;
(c) Motion for new trial, or
reconsideration of a judgment, or
reopening of trial;
for
for
(e) Motion for extension of time to file

pleadings, affidavits or any other paper;
800 Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
801 Heirs of Olivas v Flor, 161 SCRA 393
203
(f) Memoranda;
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in
default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.802
9.Note that a PRELIMINARY MANDATORY

INJUNCTION may be granted by the court
upon motion presented within 5 days from
the filing of the complaint to restore him in
possession, which should be decided by the
court within 30 days from filing thereof 803
AND upon motion of the plaintiff, within 10
days from perfection of an appeal to the
Regional Trial Court to restore him in
possession if the court is satisfied that the
appeal of the defendant is FRIVOLOUS or
DILATORY, or that his (plaintiffs) appeal is
prima facie meritorious.804
10.The court shall then render judgment
within 30 days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the same.
However, should the court find it
necessary to clarify certain material facts, it
may, during the said period, issue an order
specifying the matters to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen
(15) days after the receipt of the last
802 Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
803 Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
204
clarificatory affidavits, or the expiration of the

period for filing the same.
The court shall not resort to the
clarificatory procedure to gain time for the
rendition of the judgment.805
11.Should the defense of OWNERSHIP be
raised, the court shall only consider the
same if the issue of possession cannot be
resolved without deciding the issue of
ownership. It shall thus be resolved only to
determine possession and any judgment
shall be conclusive only on possession and
shall not be a bar to another action between
the parties respecting the title to the land or
building806
12.The judgment to be rendered by the court
in favor of the plaintiff shall include
restitution of the premises, the sum justly
due as arrears of rent or as reasonable
compensation for the use of the premises,
attorneys fees and costs. If the allegations
are not true, it shall render judgment for the
defendant for recovery of cost. If a
counterclaim is established, the court shall
render judgment for the sum found in
arrears from either party and award costs as
justice requires.807 The judgment is
APPEALABLE to the appropriate Regional
Trial Court, which shall decide the case on
the basis of the entire record of the
proceedings in the court of origin and such
memoranda or brief as may be submitted or
required808
Note the ruling in the case of Azcuna Jr. vs.
CA, GR No. 116665, March 20, 1996
allowing recovery of liquidated damages.
13.If judgment is rendered against the

defendant, the execution shall issue
immediately upon motion, unless an appeal
has been perfected AND the defendant to
805 Supra, Section 11, Rule 70, Article

205
stay execution files a sufficient supersedeas

bond if there are rentals in arrears 809,
approved by the court and executed in favor
of the defendant to pay rents, damages and
costs accruing down to the time of the
judgment appealed from, AND UNLESS,
during the pendency of the appeal, he
deposits with the appellate court the amount
of the rent due from time to time under the
contract or the reasonable value for use and
occupation adjudged by the court on or
before the 10th day of each succeeding
month or period.810
Note that there is no necessity for a motion
for the court to fix the supersedeas bond as
the amount of the same can be ascertained
from the judgment. Also, if the records of the
case have already been transmitted to the
appellate court, the supersedeas bond may
be filed with the appellate court.811
14.The judgment of the appellate court shall
however be subject to immediate execution
without prejudice to a further appeal812
SALIENT PORTIONS OF KATARUNGANG

PAMBARANGAY LAW
All DISPUTES require conciliation except in
the following: (1) where one party is the
government
or
any
subdivision
or
instrumentality thereof (2) where one party is
a public officer or employee, and the dispute
relates to the performance of his official
functions (3) offenses punishable by
imprisonment exceeding 1 year or a fine
exceeding P 5000.00 (4) offenses where
there is no private offended party (5) where
the dispute is brought by or against a
corporation, partnership or juridical entity (6)
where the dispute involves real properties
located in different cities or municipalities
UNLESS the parties agree to submit their
differences to amicable settlement by an
appropriate lupon (7) where dispute involves
parties who actually reside in barangays of
809 Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146

811 Chua v Court of Appeals, 286 SCRA 437
206
different cities or municipalities, EXCEPT

when the barangays actually adjoin each
other and the parties agree to submit their
differences to amicable settlement by an
appropriate lupon (8) such other classes of
disputes which the President may determine
in the interest of justice or upon
recommendation by the Secretary of Justice
(Section 408, PD 1508). (9) disputes arising
from the implementation of the CARP (10)
Employer-Employee disputes (11) action to
annul a judgment upon a compromise. Note
however that while no petition, complaint,
action or proceeding within the authority of
the lupon shall be filed directly with the court
or any government office for adjudication
UNLESS there has been a confrontation
before the lupon chairman or pangkat, and
that no conciliation or settlement has been
reached as certified by the lupon secretary
or pangkat secretary, or unless the
settlement has been repudiated within 10
days from its date by a statement sworn
before the punong barangay to the effect
that his consent is vitiated by fraud violence
or intimidation ( Section 418, PD 1508), the
following cases may be filed directly: (1)
accused in under detention (2) person has
otherwise been deprived of personal liberty
calling for habeas corpus proceedings (3)
when action is coupled with a provisional
remedy (4) where action may otherwise be
barred by prescription (Section 412, PD
1508)
The proper VENUE for conciliation is as

follows: (1) if between persons actually
residing in the same barangay-before the
lupon of the said barangay (2) if between
actual residents of different barangays within
the same city of municipality- before the
lupon where the respondent resides, if there
be several respondents- before the lupon
where anyone of them resides at the
election of the complainant (3) if involving
real property or any interest therein- the
barangay lupon where the property or larger
portion is located (4) if arising in the
workplace where the contending parties are
employed or at the institution where such
207
parties are enrolled for study- before the

lupon of the barangay where the workplace
or institution is located. Any OBJECTIONS
TO VENUE shall be raised before the
Punong Barangay, otherwise they are
waived. Legal questions may be submitted
to the Secretary of Justice or his duly
designated representative whose ruling
thereon shall be binding.
The procedure for settlement is (1) initiation
of complaint, orally or in writing, to the lupon
chairman of the barangay (2) mediation by
lupon chairman on the next working day
from receipt of the complaint, failing in which
within 15 days from the first meeting, he
shall forthwith set a date for the constitution
of the pangkat (3) the pangkat shall convene
not later than 3 days from constitution to
hear the parties and explore the possibility
of an amicable settlement within 15 days
from the day it convenes, which period is
extendible for another 15 days, except in
clearly meritorious cases. Note however,
that while prescription does not run upon
filing of the complaint and shall resume only
upon receipt of the complaint or certificate of
repudiation, or certification to file action, the
interruption shall not exceed 60 days from
filing of the complaint with the punong
barangay. (Section 410, PD 1508)
The FORM of the amicable settlement shall
be in writing, in a language/dialect known to
the parties, signed by them and attested by
the lupon/pangkat chairman (Section 411,
PD 1508). This shall have the force and
effect of a final judgment of a court upon
expiration of 10 days from date thereof
unless repudiation has been made or a
petition to nullify the award has been filed
before the proper court. This does not apply
to cases already pending but subsequently
referred to the lupon for amicable settlement
under the last paragraph of Section 408,as
the same is submitted back to the court to
serve as basis for rendition of judgment.
(Section 416, PD 1508). The award or
settlement may be enforced by execution by
the lupon within 6 months from the date of
the settlement. After the lapse of the said
208
period, by action in the appropriate city of

municipal court. (Section 417, PD 1508)
Note however that if a settlement is not

complied with, the injured party may bring
an action against the offending party to
recover the original amount of his claim,
thereby rescinding the compromise under
Article 2041 of the Civil Code which was
held to qualify Article 2037 of the Civil Code
as to the effect of a compromise being
considered as constituting res judicata.813
REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC
DATED OCTOBER 15, 1991 PROVIDING
FOR THE REVISED RULE ON SUMMARY
PROCEDURE
FOR
METROPOLITAN
TRIAL COURTS, MUNICIPAL TRIAL
COURTS IN CITIES, MUNICIPAL TRIAL
COURTS AND MUNICIPAL CIRCUIT TRIAL
COURTS.
Pursuant to Section 36 of the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129)
and to achieve an expeditious and
inexpensive determination of the cases
referred to herein, the Court Resolved to
promulgate the following Revised Rule on
Summary Procedure:
I
APPLICABILITY
SECTION 1. Scope: - This rule shall govern
the summary procedure in the Metropolitan
Trial Courts in Cities, the Municipal Trial
Courts, and the Municipal Circuit Trial
Courts in the following cases falling within
their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered. Where attorneys fees are
813 Chavez v Court of Appeals, GR 159411, March 18, 2005

209
awarded, the same shall not exceed twenty

thousand pesos (P20,000).
(2)
All other cases, except probate
proceedings, where the total amount of
plaintiffs claim does not exceed one
hundred thousand pesos (P100,000) or, two
hundred thousand pesos (P200,000) in
Metropolitan Manila, exclusive of interest
and costs. (As amended by A.M. No. 02-1109-SC, dated Nov. 12, 2002; this amended
took effect on November 25, 2002)
B. Criminal Cases:
(1)
Violations of traffic laws, rules and
regulations;
(2)
Violations of the rental law;
(3)
Violations of municipal or city
ordinances;
(4)
Violations of Batas Pambansa Blg
22814
(5) All other criminal cases where the
penalty prescribed by law for the offense
charged is imprisonment not exceeding six
months, or a fine not exceeding one
thousand pesos (P1,000), or both,
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, That
in offenses involving damage to property
through criminal negligence, this Rule shall
govern where the imposable fine does not
exceed ten thousand pesos (P10,000).
This rule shall not apply to a civil case
where the plaintiffs cause of action is
pleaded in the same complaint with another
cause of action subject to the ordinary
procedure; nor to a criminal case where the
offense charged is necessarily related to
another criminal case subject to ordinary
procedure.
SEC. 2. Determination of applicability.
Upon the filing of a civil or criminal action,
the court shall issue an order declaring
whether or not the case shall be governed
by this Rule.
814 A.M. 00-11-01-SC, April 15, 2003

210
A patently erroneous determination to

avoid the application of the Rule of
Summary Procedure is a ground for
disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings.
A.
Pleadings, allowed. The only
pleadings allowed to be filed are the
complaints, compulsory counterclaims and
cross-claims pleaded in the answer, and the
answers thereto.
B.
Verification. All pleadings shall be
verified.
SEC. A. Duty of court. After the court
determines that the case falls under
summary procedure, it may, from an
examination of the allegations therein and
such evidence as may be attached thereto,
dismiss the case outright on any of the
grounds apparent therefrom for the
dismissal of a civil action.
If no ground for dismissal is found, it shall
forthwith issue summons which shall state
that the summary procedure under this Rule
shall apply.
NOTE: That any of the grounds for dismissal
under Rule 16 apply although no motion to
dismiss can be filed except on the grounds
of lack of jurisdiction and non-compliance
with the requirement on conciliation.
NOTE: That the prohibition as to the filing of
a motion to dismiss exists prior to the filing
of an answer but a dismissal grounded on
any of the causes stated in Rule 16 can
only be effected prior to the issuance of the
court of summons and not after an answer
has been filed (Heirs of Ricardo Olivas vs.
Flor, 161 SCRA 393)
211
SEC. 5. Answer. Within ten (10) days

from service of summons, the defendant
shall file his answer to the complaint and
serve a copy thereof on the plaintiff.
Affirmative and negative defenses not
pleaded therein shall be deemed waived,
except for lack of jurisdiction over the
subject
matter.
Cross-claims
and
compulsory counterclaims not asserted in
the answer shall be considered barred. The
answer to counterclaims or cross-claims
shall be filed and served within ten (10) days
from service of the answer in which they are
pleaded.
SEC. 6. Effect of failure to answer.
Should the defendant fail to answer the
complaint within the period above provided,
the court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be
prayed for therein: Provided, however, That
the court may in its discretion reduce the
amount of damages and attorneys fees
claimed for being excessive or otherwise
unconscionable. This is without prejudice to
the applicability of Section 4, Rule 18 of the
Rules of Court, if there are two or more
defendants.
NOTE: Rendition by the court of judgment
on account of failure to file an answer or to
appear during the preliminary conference
may not require a motion (Sordan vs. De
Guzman, A.M. No. MTJ-00-1296, October 5,
2000)
SEC.
7.
Preliminary
conference;
appearance of parties. Not later than thirty
(30) days after the last answer is filed, a
preliminary conference shall be held. The
rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference
unless inconsistent with the provisions of
this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for
the dismissal of his complaint. The
defendant who appears in the absence of
the plaintiff shall be entitled to judgment on
212
his counterclaim in accordance with Section

6 hereof. All cross-claims shall be
dismissed.
If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Section 6 hereof. This Rule
shall not apply where one of two or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at the preliminary conference.
SEC. 8. Record of preliminary conference.
Within five (5) days after the termination of
the preliminary conference, the court shall
issue an order stating the matters taken up
therein, including but not limited to:
(a) Whether the parties have arrived at an
amicable settlement, and if so, the terms
thereof;
(b) The stipulations or admissions entered
into by the parties;
(c) Whether, on the basis of the pleadings
and the stipulations and admissions made
by the parties, judgment may be rendered
without the need of further proceedings, in
which event the judgment shall be rendered
within thirty (30) days from issuance of the
order;
(d) A clear specification of material facts
which remain controverted; and
(e) Such other matters intended
expedite the disposition of the case.
to
SEC. 9. Submission of affidavits and

position papers. Within ten (10) days from
receipt of the order mentioned in the next
preceding section, the parties shall submit
the affidavits of their witnesses and other
evidence on the factual issues defined in the
order, together with their position papers
setting forth the law and the facts relied
upon by them.
SEC. 10. Rendition of judgment. Within
thirty (30) days after receipt of the last
213
affidavits and position papers, or the

expiration of the period for filing the same,
the court shall render judgment.
However, should the court find it
necessary to clarify certain material facts, it
may, during the said period, issue an order
specifying the matters to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen
(15) days after the receipt of the last
clarificatory affidavits, or the expiration of the
period for filing the same.
The court shall not resort to the
clarificatory procedure to gain time for the
rendition of the judgment.
NOTE: That hearings are not necessary
unless for the purpose of clarifying certain
material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. The filing of

criminal cases falling within the scope of this
Rule shall be either by complaint or by
information; Provided, however, That in
Metropolitan Manila and in Chartered Cities,
such cases shall be commenced only by
information, except when the offense cannot
be prosecuted de officio.
The complaint or information shall be
accompanied by the affidavits of the
complainant and of his witnesses in such
number of copies as there are accused plus
two (2) copies of the courts files. If this
requirement is not complied with within five
(5) days from date of filing, the case may be
dismissed.
Sec. 12 Duty of court.
(a)
If commenced by complaint. On
the basis of the complaint and the affidavits
214
and other evidence accompanying the

same, the court may dismiss the case
outright for being patently without basis or
merit and order the release of the accused if
in custody.
(b)
If commenced by information.
When the case is commenced by
information, or is not dismissed pursuant to
the next preceding paragraph, the court
shall issue an order which, together with
copies of the affidavits and other evidence
submitted by the prosecution, shall require
the accused to submit his counter-affidavit
and the affidavits of his witnesses as well as
any evidence in his behalf, serving copies
thereof on the complainant or prosecutor not
later than ten (10) days from receipt of said
order.
The prosecution may file reply
affidavits within ten (10) days after receipt of
the counter-affidavits of the defense.
Sec. 13 Arraignment and trial. Should the
court, upon a consideration of the complaint
or information and the affidavits submitted
by both parties, find no cause or ground to
hold the accused for trial, it shall order the
dismissal of the case; otherwise, the court
shall set the case for arraignment and trial.
If the accused is in custody for the crime
charged, he shall be immediately arraigned
and if he enters a plea of guilty, he shall
forthwith be sentenced.
Sec. 14 Preliminary conference. Before
conducting the trial, the court shall call the
parties to a preliminary conference during
which a stipulation of facts may be entered
into, or the propriety of allowing the accused
to enter a plea of guilty to a lesser offense
may be considered, or such other matters
may be taken up to clarify the issues and to
ensure a speedy disposition of the case.
However, no admission by the accused shall
be used against him unless reduced to
writing and signed by the accused and his
counsel. A refusal or failure to stipulate shall
not prejudice the accused.
Sec. 15 Procedure of trial. At the trial, the
affidavits submitted by the parties shall
215
constitute the direct testimonies of the

witnesses who executed the same.
Witnesses who testified may be subjected to
cross-examination, redirect or re-crossexamination. Should the affiant fail to testify,
his affidavit shall not be considered as
competent evidence for the party presenting
the affidavit, but the adverse party may
utilize the same for any admissible purpose.
Except on rebuttal or surrebuttal, no witness
shall be allowed to testify unless his affidavit
was previously submitted to the court in
accordance with Section 12 hereof.
However, should a party desire to present
additional affidavits or counter-affidavits as
part of his direct evidence, he shall so
manifest during the preliminary conference,
stating the purpose thereof. If allowed by
the court, the additional affidavits of the
prosecution or the counter-affidavits of the
defense shall be submitted to the court and
served on the adverse party not later than
three (3) days after the termination of the
preliminary conference. If the additional
affidavits are presented by the prosecution,
the accused may file his counter-affidavits
and serve the same on the prosecution
within three (3) days from such service.
Sec. 16. Arrest of accused. The court shall
not order the arrest of the accused except
for failure to appear whenever required.
Release of the person arrested shall either
be on bail or on recognizance by a
responsible citizen acceptable to the court.
Sec. 17 Judgment. Where a trial has been
conducted, the court shall promulgate the
judgment not later than thirty (30) days after
the termination of trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. Cases
requiring referral to the Lupon for
conciliation under the provisions of
Presidential Decree No. 1508 where there is
216
no showing of compliance with such

requirement, shall be dismissed without
prejudice, and may be revived only after
such requirement shall have been complied
with. This provision shall not apply to
criminal cases where the accused was
arrested without a warrant.
SEC. 19. Prohibited pleadings and
motions. The following pleadings, motions,
or petitions shall not be allowed in the cases
covered by this Rule:
(a) Motion to dismiss the complaint or to
quash the complaint or information except
on the ground of lack of jurisdiction over the
subject matter, or failure to comply with the
preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or
reconsideration of a judgment, or
reopening of trial;
for
for
NOTES: A motion for reconsideration can be

filed when the case is already pending
before the appellate court. (Jakihaca
vs.Aquino, 181 SCRA 67). A motion for
reconsideration of rulings or pertaining to
other incidents, NOT OF THE JUDGMENT,
is allowed ( Lucas vs. Fabros, 324 SCRA 1)
(e) Motion for extension of time to file

pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in
default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be
allowed.
217
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. The affidavits
required to be submitted under this Rule
shall state only facts of direct personal
knowledge of the affiants which are
admissible in evidence, and shall show their
competence to testify to the matters stated
therein.
A violation of this requirement may subject
the party or the counsel who submits the
same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit
or portion thereof from the record.
SEC. 21. Appeal. The judgment or final
order shall be appealable to the appropriate
regional trial court which shall decide the
same in accordance with Section 22 of
Batas Pambansa Blg. 129. The decision of
the regional trial court in civil cases
governed by this Rule, including forcible
entry and unlawful detainer, shall be
immediately executory, without prejudice to
a further appeal that may be taken
therefrom.
NOTE: That immediate execution requires
proof that the losing party has been served
with notice of judgment (Dy vs. CA, 191
SCRA 585) and that notice of the motion for
execution to the adverse party is required
( Limpo vs. CA, 333 SCRA 575)
SEC. 22. Applicability of the regular rules.
The regular procedure prescribed in the
Rules of Court shall apply to the special
cases herein provided for in a suppletory
capacity insofar as they are not inconsistent
herewith.
SEC. 23. Effectivity. This revised Rule
on Summary Procedure shall be effective on
November 15, 1991.
218
RULE 71 CONTEMPT
WHAT IS CONTEMPT
Willful disobedience or open disrespect of
the orders, authority, or dignity of a court or
judge acting in judicial capacity by disruptive
language or conduct or by failure to obey the
orders of the court
KINDS OF CONTEMPT
1.DIRECT CONTEMPT consists of
misbehaviour in the presence of or so near a
court as to obstruct or interfere with the
proceedings before the same, it includes,
disrespect, offensive personalities against
others, refusal to be sworn or answer as a
witness,
or
to
subscribe
to
an
affidavit/deposition when lawfully required to
do so.
This kind of contempt may be SUMMARILY
ADJUDGED and be punished by a fine not
exceeding P 2,000.00 or imprisonment of
not exceeding 10 days or BOTH if it be by a
Regional Trial Court or a fine not exceeding
P 200.00 or imprisonment not exceeding 1
day or BOTH if it be by a Municipal Trial
Court.
The remedy therefrom is certiorari/
prohibition, in which case the judgment is
suspended pending the petition provided the
petitioner files a bond fixed by the court
which
rendered
the
judgment
and
conditioned that he will abide by and
perform the judgment should the petition be
decided against him. 815
1.1It is direct contempt if a pleading contains
derogatory,
offensive
or
malicious
statements against a particular judge when
submitted in the same court where the judge
is presiding. If submitted elsewhere, it is
indirect contempt.816

816 Ang v Castro, 136 SCRA 453
219
2.INDIRECT CONTEMPT consists of (a)

Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions; (b) Disobedience of or
resistance to a lawful writ, process, order, or
judgment of a court, including the act of a
person who, after being dispossessed or
ejected from any real property by the
judgment or process of any court of
competent jurisdiction, enters or attempts or
induces another to enter into or upon such
real property for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to the
person adjudged to be entitled thereto; (c)
Any abuse of or any unlawful interference
with the processes or proceedings of a court
not constituting direct contempt under
Section 1 of this Rule; (d) Any improper
conduct tending, directly or indirectly to
impede,
obstruct,
or
degrade
the
administration of justice; (e) Assuming to be
an attorney or an officer of a court, and
acting as such without authority; (f) Failure
to obey a subpoena duly served; (g) The
rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue
of an order or process of a court held by
him.
But nothing in this section shall be so
construed as to prevent the court from
issuing process to bring the respondent into
court, or from holding him in custody
pending such proceedings.817
2.1This kind of contempt may be initiated
motu propio by the court against which the
contempt was committed by an order or any
formal charge requiring the respondent to
show cause why he should not be punished
for contempt. In other cases, it shall be
commenced by verified petition with
supporting particulars and certified true
copies of documents or papers involved
therein, and upon FULL COMPLIANCE
WITH REQUIREMENTS FOR FILING
INITIATORY PLEADINGS in the court
concerned. If the charges are related to the

220
principal action pending before the court, the

petition shall so allege such fact but it shall
be DOCKETED, HEARD AND DECIDED
SEPARATELY, unless the court in its
discretion orders consolidation of the charge
and principal action for joint hearing and
decision.818
2.2The charge shall be filed in the Regional
Trial Court if the contempt is committed
against it or a court of equal or higher rank
or against an officer appointed by it. If
against a lower court, it may be filed in the
Regional Trial Court in the place where the
lower court sits or in such lower court,
subject to appeal to the Regional Trial
Court.819
This kind of contempt is punishable by a fine
not exceeding P 30,000.00 or imprisonment
not exceeding 6 months or both, if
committed against a Regional Trial Court. If
against a Municipal Trial Court, by a fine not
exceeding P 5,000.00 or imprisonment not
exceeding 1 month. If it consists in a
violation of a writ of injunction, TRO or
status quo order, he may also be ordered to
make complete restitution. A writ of
execution may be issued to enforce a fine.820
If it consists in refusal or omission to do an
act within his power to perform, he may be
imprisoned by order of the court until it is
performed.821
2.3A judgment for indirect contempt is
appealable to the Regional Trial Court, but
execution shall not be suspended without
the filing of a bond.822
2.4An order dismissing a contempt charge
or exoneration from such, is not
appealable.823
OTHERS
1.If no hearings are held forthwith and the
respondent has been taken into custody, he
may be released upon payment of a bond,
but if he fails to appear on the hearing of the

823 In Re, Mison, Jr, 33 SCRA 30
221
charge, he may be ordered arrested and the

bond forfeited.824
2.If already imprisoned, the court may
discharge the respondent if public interest
will not be prejudiced by the release.825
APPLICABILITY OF THE RULE
The rules apply to persons, entities, bodies
or agencies exercising quasi-judicial powers
or shall have suppletory effect to their rules.
The RTC of the place where the contempt is
committed shall have jurisdiction.826
DEFINING
CONTEMPT
CRIMINAL
AND
CIVIL
It is criminal contempt when the purpose is

to vindicate the authority of the court and
protect its outraged dignity. It is civil
contempt when there is failure to do
something ordered by the court to be done
for the benefit of another party.827
In fact, it has been declared that the motion

for extension of time within which a party
may plead is not a litigated motion where
notice to the adverse party is necessary to
afford the latter an opportunity to resist the
application, but an ex parte motion made to
the court in behalf of one or the other of the
parties to the action, in the absence and
usually without the knowledge of the other
party or parties. (Commercial Union
Assurance Company Limited, et. al. vs.
Lepanto Consolidated Mining Company, et.
al., L-43342. October 30, 1978, 86 SCRA
79, 95-96; Amante vs. Sunga, et. al., L40491, May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the
period sought to be extended, a request for
extension of time may be filed ex parte and
granted without the usual formalities
applicable to motions in general. (Moya vs.
Barton, 76 Phil. 831)

827 Yasay v Recto, 313 SCRA 739
222

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LECTURE NOTES ON CIVIL PROCEDURE

WHAT IS CIVIL PROCEDURE

REQUISITES FOR A VALID EXERCISE OF

expenses and costs are not to be

International Investment Corporation, 384

WHAT HAPPENS WHEN JURISDICTION IS

The general rule is jurisdiction may be

damages are to be excluded (Adm Circ.

The jurisdiction of the Supreme Court in

The foregoing Constitutional definition is of

prohibition, mandamus, quo warranto,

The appellate jurisdiction of the RTCs is

ownership, the issue of ownership shall be

RULE I GENERAL PROVISIONS

A Civil Actions may be:

1.1.a ORDINARY or SPECIAL both are

1 Section 1, Rule 1, 1997 Rules of Civil Procedure

1.1.c IN REM- it is directed against the

5 Supra, Section 5, Rule 1

COMPLAINT6 (MAGASPI V. RAMOLETE

The rules shall be construed liberally in

3.Note that in doing so, substantial justice

6 Magaspi v Ramolete, 115 SCRA 193

4.Concommitant to a liberal application of

RULE 2CAUSE OF ACTION

The distinction is best used to explain the

18 Equitable Bank v CA, 425 SCRA 544

(3) foreclose the mortgage on the thing sold

2.2.bIf the contract provides for several

22 Articles 1484,1486, NCC

4.when the claims in all causes of action are

26 Supra, Section 6, Rule 2

31 Supra, Section 15, Rule 3

PROSECUTED IN THE NAME OF THE

37 Supra, Section 7, Rule 3

are so far separable that a final decree can

PERSONS WHO CAN SUE IN BEHALF OF

41 Supra, Section 3, Rule 3

2.2The exceptions provided by law are when

46 Article 145, Family Code

be joined as defendants in one complaint,

54 Supra, Section 6, Rule 3

numerous and representative as to fully

58 Supra, Section 2, Rule 17

7.MISJOINDER OR NON JOINDER NOT A

WHO WILL PLAINTIFF SUE IF HE IS

61 Supra, Section 11, Rule 3

warehouse in the ALTERNATIVE although

He may be sued as the unknown owner,

EFFECT OF DEATH OF A PARTY (Sec 16)

64 Supra, Section 14, Rule 3

The action may be MAINTAINED AND

2.IF IT DOES NOT ARISE FROM

65 Supra, Section 20, Rule 3

to final judgment and may be executed on

1.The court, upon motion with notice, may

66 Supra, Section 7, Rule 39

interest is transferred to be substituted in the

70 Supra, Section 19, Rule 3

3.The effect of being allowed to litigate as an

In any action involving the validity of any

75 Supra, Section 22, Rule 3

and tried in the proper court which has