You are on page 1of 13

Remedial Law Notes by Ralph H.

Villanueva

Trial Note: The above order of trial is only the general rule. The order of
trial is
Order of Trial (a) Subject to the provisions of Sec. 2 of Rule 31 (Consolidation or
Severance) and;
Order of trial. Subject to the provisions of section 2 of Rule 31, and (b) Unless, for special reasons, the court otherwise directs. (Sec. 5,
unless the court for special reasons otherwise directs, the trial shall be Rule 30 of ROC)
limited to the issues stated in the pre-trial order and shall proceed as
follows: Therefore, the normal order of trial may be modified if the court, in
furtherance of convenience and to avoid prejudice, orders a separate trial
Note: A provision was added that the trial shall be limited to the of any claim, cross-claim, counterclaim, or third-party complaint. It may
issues stated in the pre-trial order. (Feria) also order, for the same reasons, a separate trial of any separate issue or of
(a) The plaintif shall adduce evidence in support of his any number of claims, cross-claims, counter-claims, third-party complaints
or issues. (Sec. 2 Rule 31 of ROC)
complaint;
Under the same rule, the court may, likewise, order a modification
(b) The defendant shall then adduce evidence in support of his of the order of trial if it so directs for special reasons. (Riano)
defense, counterclaim, cross-claim and third-party complaints;
Note: Oral argument is no longer a MATTER OF RIGHT after the admission of
the evidence. The court has discretion to direct the parties to argue orally
Note: As corrected in another rule, third-party claim or to submit memoranda.
was changed to third-party complaint. (Feria)
After the plaintiff has completed the presentation of his evidence,
(c) The third-party defendant if any, shall adduce evidence of the defendant may:
his defense, counterclaim, cross-claim and fourth-party complaint;
a. File a motion to dismiss on the ground of insufficiency of
evidence or
(d) The fourth-party, and so forth, if any, shall adduce b. File a demurrer to evidence. (Feria citing Rule of Court Rule
evidence of the material facts pleaded by them; 33)

Note: Additional evidence may be allowed to be offered at the


(e) The parties against whom any counterclaim or cross-
rebuttal stage of the trial for good reasons in the furtherance of
claim has been pleaded, shall adduce evidence in support of justice. (Feria citing Director of Lands v Roman Archbishops of
their defense, in the order to be prescribed by the court; Manila)

(f) The parties may then respectively adduce rebutting Where the evidence is REBUTTAL in character, whose
evidence only, unless the court, for good reasons and in the necessity of evidence from one party to the other or where the
furtherance of justice, permits them to adduce evidence upon evidence sought to be presented is in the NATURE OF NEWLY
their original case; and DISCOVERED EVIDENCE, the partys right to introduce further
evidence must be recognized. Otherwise, the aggrieved party may
AVAIL of the remedy for certiorari. (Riano citing Republic vs
(g) Upon admission of the evidence, the case shall be deemed Sandiganbayan)
submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further It is generally, additional evidence is allowed
pleadings.
a. when it is NEWLY DISCOVERED, or
b. where it has been omitted through INADVERTENCE OR
If several defendants or third-party defendants, and so forth, having
MISTAKE, or
separate defenses appear by different counsel, the court shall determine
c. where the purpose of the evidence is to CORRECT EVIDENCE
the relative order of presentation of their evidence. (Sec. 5 Rule 30, ROC)
PREVOUSLY OFFERED. (Feria citing Lopez v. Liboro)
Remedial Law Notes by Ralph H. Villanueva

less than the petitioner, represented by the Office of the Solicitor General
Reverse trial when complaint is admitted (Custodio) through Special Attorney agreed to dispense with a full-blown trial.
(Republic vs Vda de Neri)
Since the answer admitted defendant's obligation as stated in the
complaint, albeit special defenses were pleaded, plaintiff had every right to That the absence of a party during trial constitutes waiver of his right to
insist that it was for defendant to come forward with evidence in support of present evidence and cross-examine the opponents witnesses is firmly
his special defenses. (Yu vs Magpayo) supported by jurisprudence. Although a defendant who answered the
complaint but fails to appear at the scheduled trial cannot be declared in
The Supreme Court in a collection case for the unpaid balance of Gray default, the trial, however, MAY PROCEED without his presence. And if the
Machine Engine by the respondent reversed the decision of the Court of absence of a party during the hearing was due to his own fault, he cannot
First Instance when the counsel for the plaintiff insists on refusal to the later on complain that he was deprived of his day in court. (Sps Calo vs Sps
order of presenting evidence after the defendant had presented theirs. The Tan)
defendant made an admission to the transaction filed by the plaintiff. As
enunciated in the former Rules of Court, admissions made by the parties in The Supreme Court find the contentions of the petitioners untenable.
the pleadings, or in the course of the trial or other proceedings do not Petitioners allege that the Court of Appeals erred in upholding the trial
require proof and cannot be contradicted unless previously shown to have courts denial of their right to due process. According to them, the trial
been made through palpable mistake. In the instant case, instead of calling court acted unreasonably and with undue haste when it ruled that they
his witnesses, the counsel for the plaintiff moved the Court to present them waived their right to present evidence in view of their failure to attend the
after the defendant had presented theirs. The court asked counsel twice hearing on 3 August 1992. They assert that they did show up in court for
whether he would present his evidence for the plaintiff, but said counsel the hearing, although they were late. Petitioners live in Butuan City, some
refused to do so and sticked to the demand that he would introduce his 300 kilometers from the RTC of Cagayan. They explain that they failed to
witnesses only in rebuttal. (Yu vs Magpayo) appear because they believed that their motion to dismiss and motion for
reconsideration would be heard first, i.e., respondent spouses would be
required to comment first on the motions before they would be resolved.
Reverse trial also in criminal cases (Custodio) They contend that there was no clear evidence of intent to abandon their
right. The absence of petitioners and their counsel at the aforesaid hearings
When trial dispensed with; Absence of Party cannot be justified by their belief that the trial court would first require
respondent spouses to comment to or oppose the motions before resolving
A party may waive its right to present testimonial evidence and opt to them. The Rules of Court requires only that the motion be heard; it does not
adduce documentary evidence and thereafter, submit the case for direct the court to order the filing of comments or oppositions to the motion
resolution based solely on their pleadings and documentary evidence. before the motion is resolved. During the hearing on the motion, the
(Republic vs Vda de Neri) opposition to the motion and the arguments of the parties may be
ventilated; thereafter, the court may rule on the motion. Petitioners and
The Supreme Court affirmed the decision of the Regional Trial Court when it their counsel should have known the significance of the hearing dates since
rendered a decision without conducting a full-blown trial, and based on its petitioners themselves chose one of the hearing dates and the hearing
ruling merely on the pleadings of the parties and the documents appended dates were accordingly fixed with due notice to all the parties. In the
to their respective memoranda for the judicial confirmation of imperfect or instant case, The reasons that petitioners have given for their failure to
incomplete title. The petitioner asserts that unde Rule 34 of the Rules of attend the hearing are contradictory. In one breath, they allege that they
Court, the court may render judgment on the pleadings only: came late to the hearing, but in another they confirm that they intentionally
1. When the respondents answer fails to tender an issue, or did not attend the hearing due to their mistaken belief that respondent
2. Admits the material allegations of the adverse partys pleadings. spouses would first be required to comment thereon before the trial court
Furthermore, it was not proper for the trial court to render summary would resolve said motions. A check of the RTC records shows that although
judgment under Rule 35 of the Rules of Court for the simple reason that the petitioners had chosen 1 July 1999 as the next hearing date in their Joint
private respondent, in their answer, tendered genuine issues of facts which Motion to Dismiss, the trial court had already previously scheduled the
called for the presentation of evidence. This finds for the Supreme Court continuation of trial on said date as well as on 2 July 1992. However, on 1
untenable because the trial court provided with a full-blown trial precisely, July 1992, only counsel for respondent spouses was present. Petitioners,
the parties themselves agreed on the claim that the issues raised may be DBP, and their counsel did not attend the hearing. The trial court denied
resolved on the basis of the pleadings, memoranda, and the appended the motion to dismiss for lack of notice and set the continuation of trial on 3
documents, without need of presenting witnesses thereon. In this case, no and 4 August 1992. When petitioners moved for reconsideration of the 1
July 1992 Order, they scheduled the hearing of said motion on 3 August
Remedial Law Notes by Ralph H. Villanueva

1992. Again, on the date set, petitioners and their counsel were absent and No recast and no consolidation = principal one is heard
only counsel for respondent spouses was in attendance. (Sps Calo vs Sps and the others are suspended until judgment has been
Tan) rendered in the first case.

Consolidation The court, in the exercise of its sound discretion, may adopt any of
these forms of consolidation whenever in it opinion, the proceeding is
It is a procedural device, granted to the court as an aid in deciding beneficial to and convenient for the parties. The power so exercises is
how cases in its docket are to be tried, so that the business of the court discretionary. (Feria)
may be dispatched expeditiously while providing justice to the parties. Consolidation is proper when:
(Riano citing Republic v Heirs of Oribello, Jr.)
a. A joint hearing becomes a matter of duty if two or more cases are
Consolidation Severance tried efore the same judge, or
Involves SEVERAL ACTIONS having Contemplates a SINGLE ACTION b. Even if filed with the different branches of the same court of first
a common question of law or fact having a number of claims, instance, provided of such one cases has not been partially tried.
which may be jointly tries counterclaims, cross-claims, third (Feria)
party complaints, or issues which
may be separately tried. General Rule: Consolidation applies only to cases pending before the
SAME JUDGE and not to cases pending in different branches of the same
court or in different courts.
Note: The word may provided in Sec. 1 Rule 31 of Rules of Court
indicates that consolidation or severance of cases is NOT mandatory and is Exception to the General Rule: Cases pending in different branches of
within the sound discretion of the court. (Riano) the court or in different courts may be consolidated consistent with the rule
in our jurisdiction that leans towards permitting consolidation of cases
Consolidation Permissive Joinder of parties whenever possible and irrespective of the diversity of the issues for
Before After resolutions.

Note: Consolidation is proper when SEVERAL ACTIONS which Hence, consolidation of cases is proper when
involve a COMMON QUESTION OF FACT OR LAW do not ARISE of the same a. the actions involve the same reliefs or
transaction or series of transactions so as to permit permissive joinder of b. the same parties and
parties under Section 6 Rule 3 of Rules of Court. (Feria) c. basically the same issues, or
d. when there is a real need to forestall the possibility of conflicting
Mode of consolidating actions or special proceedings: decisions being rendered in the cases, provided that the measure
will not give one party undue advantage over the other, or
1. Recasting the cases ALREADY instituted, conducting only one prejudice the substantial rights of any of the parties. (Feria citing
hearing and rendering only one decision. (Quasi-Consolidation) Bank of Commerce v Hon. Perla-Bernabe)

Recasting cases= one hearing + one decision Test is common questions OF FACT or OF LAW

2. The existing cases are consolidated, only one hearing is held and The consolidation of cases becomes mandatory because it involves the
only one decision is rendered. (Actual Consolidation) same parties and the same subject matter which is the same parcel of land.
Such consolidation is desirable to avoid confusion and unnecessary costs
Existing cases+ one hearing + one decision and expenses with the multiplicity of suits. The technical difference
between an action and a proceeding becomes insignificant and
3. Without recasting or consolidating the cases, the principal one is consolidation becomes a logical conclusion when such consolidation is
heard the hearing on the others being suspended until judgment desirable to avoid confusion and unnecessary costs and expenses with the
has been rendered in the first case. (Consolidation for Trial) multiplicity of suits. Thus the rules do not distinguish between cases filed
before the same branch or judge and those that are pending in different
branches, or before different judges of the same court, in order that
consolidation may be proper, as long as the cases involve the resolution of
questions of law or facts in common with each other. (Active vs CA)
Remedial Law Notes by Ralph H. Villanueva

the absence of manifest abuse of discretion. It is a time-honored principle


The Supreme Court reversed the decision of the Court of Appeals when it that when two or more cases involve the same parties and affect closely
denied the petition and ruled that the consolidation of cases is proper related subject matters, they must be consolidated and jointly tried, in
when they involve a common question of law or fact and they are pending order to serve the best interests of the parties and to settle expeditiously
before the court. The public respondent would like to impress that the issues involved. In other words, consolidation is proper wherever
consolidation is proper only when two or more cases are before the same the subject matter involved and relief demanded in the diferent
judge or branch and that consolidation is not allowed when the cases are suits make it expedient (easier) for the court to determine all of
pending before different courts or different branches of the same court. the issues involved and adjudicate the rights of the parties by
State Investment argues that the aforequoted provision of the rules hearing the suits together. (Steel Corporation of the Philippines vs
mention only actions, which means an ordinary suit in a court of justice by Equitale PCI Bank)
which one party prosecutes another for the enforcement or protection of a
right, or the prevention or redress of a wrong. Civil Case No. 6518-M is such The Supreme Court ruled that the Court of Appeals did not make a mistake
an action. On the other hand, LRC Case No. P-39-84 involving the Petition when it consolidated the cases pending before it. Petitioner SCP argues that
for a Writ of Possession is an ex-parte proceedings and does not require the CA deviated from its own Internal Rules when it failed to consolidate the
notice to be given to the other parties. The two, action and proceedings, four (4) appeals arising from the same decision of the rehabilitation court.
being different, cannot be consolidated. It is true that a petition for a writ of In fact, it points out to the fact that CA-G.R. SP No. 101913 had already
possession is made ex-parte to facilitate proceedings, being founded on a been consolidated with its own appeal in CA-G.R. SP No. 101732. However,
presumed right of ownership. Be that as it may, when this presumed right SCP says that the failure by the CA to consolidate the remaining two
of ownership is contested and made the basis of another action, then the appeals, namely CA-G.R. SP Nos. 101880 and 101881, with its own appeal
proceedings for writ of possession would also become seemingly indicates not only a deviation from the rules but also a disobedience to
groundless. The entire case must be litigated and if need be as in the case their plain language and obvious intent. On the other hand, BDO-EPCIB
at bar, must be consolidated with a related case so as to thresh out refutes SCPs arguments by saying that the consolidation of cases is only
thoroughly all related issues. In the instant case, the consolidation of cases discretionary, not mandatory, upon the court.
becomes mandatory because it involves the same parties and the same
subject matter which is the same parcel of land Therefore it appears that The Supreme Court agrees with SCP. Rule 3, Sec. 3 of the 2002 Internal
the respondent court in denying the motion for consolidation, has Rules of the CA:
sanctioned the departure of the trial court from the usual course of judicial
proceedings, thus calling for the exercise of the power of supervision of the Sec. 3. Consolidation of Cases. When related cases are assigned to
Supreme Court. The respondent court has, indeed, committed a reversible different Justices, they may be consolidated and assigned to one Justice.
error. (Active vs CA)
(a) At the instance of a party with notice to the other party; or at the
Considerations of judicial economy and administration, as well as the instance of the Justice to whom the case is assigned, and with the
convenience of the parties for which rules on procedure and venue were conformity of the Justice to whom the cases shall be consolidated,
formulated, dictate that it is the Cavitae court, rather than the Gumaca upon notice to the parties, consolidation may be allowed when the
Court, which serves as the more suitable forum for the determination of the cases involve the same parties and/or related questions of fact
rights and obligations of the parties concerned. (Superlines vs Victor) and/or law.

The Supreme Court held that consolidation of cases is proper as it deems to (b) Consolidated cases shall pertain to the Justice
be a more pragmatic solution to the controversy at bar. Hence, Gumaca
cased filed by Superlines should be consolidated to the Cavite case filed by
the private respondents. As filed by the latter on the ground of quasi-delict (1) To whom the case with the lowest docket number is assigned,
to Superlines, the latter filed a motion to dismiss the case on the ground if they are of the same kind;
that there is a pendency of an action to the Gumaca Branch in the Regional (2) To whom the criminal case with the lowest number is
Trial Court of Quezon since the incident of the collision happened there. assigned, if two or more of the cases are criminal and the
(Superlines vs Victor) others are civil or special;
(3) To whom the criminal case is assigned and the other are civil
When it becomes mandatory for the court to consolidate cases or special; and
(4) To whom the civil case is assigned, or to whom the civil case
Even though consolidation of actions is addressed to the sound discretion of with the lowest docket number is assigned, if the cases
the court and normally, its action in consolidating will not be disturbed in involved are civil and special.
Remedial Law Notes by Ralph H. Villanueva

(c) Notice of the consolidation and replacement shall be given to the EXCEPTION TO THE GENERAL RULE: When the exercise of such
Raffle Staff and the Judicial Records Division. discretion has been gravely abused (Feria citing People vs Sandiganbayan)

In the instant case, all four (4) cases involve identical parties, subject The Supreme Court ruled that the Court of Appeals erred when it
matter, and issues. In fact, all four (4) arose from the same decision consolidated the Deustche Bank and Vitarich petitions because neither are
rendered by the Rehabilitation Court. As such, it became imperative upon there interconnected transactions, nor identical subject matter in both
the CA to consolidate the cases. Even though consolidation of actions is cases. The former involved issue resulting from the assignment of credits of
addressed to the sound discretion of the court and normally, its action in RCBC to Deutsche Bank AG whereas the latter, the issue arose from the
consolidating will not be disturbed in the absence of manifest abuse of assignment of receivables of various creditors of Vitarich to several
discretion, in this instance, we find that the CA gravely erred in failing to corporations and special purpose vehicles Hence, the two petitions having
order the consolidation of the cases. By refusing to consolidate the cases, no factual relationship with and no interconnected transactions on the
the CA, in effect, dispensed a form of piecemeal judgment that has same subject matter, they cannot be deemed related cases. As such, the
veritably resulted in the multiplicity of suits. Such action is not regarded necessity to consolidate does not become imperative. The order of
with favor, because consolidation should always be ordered whenever it is consolidation of CA on the sole ground that the cases involved a common
possible. (Steel Corporation of the Philippines vs Equitale PCI Bank) question of law was, therefore, not in order. Here, considering that
Deustche Bank AG and Vitarich cases are not related, the risk of conflicting
Common question of law would not warrant consolidation alone decisions is a remote possibility. (Deustche Bank AG vs Court of Appeals)

Consolidation of cases is proper when there is a real need to forestall the Consolidation of petitions in the name of the defendant after respondent
possibility of conflicting decisions being rendered in the cases. Two cases failed to redeem the foreclosed property
involving the same parties and affecting closely related subject matters
must be ordered consolidated and jointly tried in court, where the earlier On 12 June 1989, petitioner executed an affidavit of consolidation over the
cases was filed. (Deustche Bank AG vs Court of Appeals) foreclosed properties after respondent failed to redeem the same. As a
result, the Register of Deeds of Marikina issued new certificates of title in
Highlighted Doctrines in the abovementioned case: the name of petitioner. On 24 April 1987, Kwang Ju Bank, Ltd. Notified
petitioner through cable that the Korean buyer refused to pay respondents
When consolidation thereof would complicate procedural requirements and export documents on account of typographical discrepancies. Kwang Ju
delay the resolution of the cases which raised dissimilar issues. Hence, Bank, Ltd. Returned to petitioner the export documents. Upon learning
fairness and due process might be hampered rather than helped if the about the Korean importers non-payment, respondent sent petitioner a
cases were consolidated. (Republic of the Philippines vs Hon. Mangrobang) letter dated 27 July 1987, informing the latter that respondent had brought
the matter before the Korea Trade Court and that it was ready to liquidate
When the motion for consolidation was filed merely to frustrate the right to its past due account with petitioner. Respondent sent another letter dated
immediate possession of property. It is a transparent ploy to delay from 08 September 1987, reiterating the same assurance. In a letter 05 October
taking the possession of the property it acquired at a public auction ten 1987, Kwang Ju Bank, Ltd. Informed petitioner that it would be returning the
years again. (Philippine National Bank vs Tyan Ming Development, Inc.) export documents on account of the non-acceptance by the importer.
Petitioner demanded from respondent the payment of the peso equivalent
Consolidation should be denied when prejudice would result to any of the of the export documents, plus interest and other charges, and also of the
parties or would case complications, delay, prejudice, cut-off, or restrict the other due and unpaid loans. Due to respondents failure to heed the
rights of a party. (De Vera vs Agloro) demand, petitioner moved for the extrajudicial foreclosure on the real
estate mortgage over respondents properties. (Producers Bank of the
Consolidation is not proper when it will not only defeat the very purpose of Philippines vs Excelsa Industries)
consolidation(which is to avoid unnecessary delay) be defeated but the
procedural matter of consolidation will also adversely affect the substantive The Supreme Court affirmed the decision of the Regional Trial Court when it
right of possession as an incident of ownership. (Espinoza vs United held that the sale was conducted according to the legal procedure. The
Overseas Bank Philippines) respondent here may not question the foreclosure sale. Plaintiff is estopped
from questioning the foreclosure. The plaintiff is guilty of laches and cannot
GENERAL RULE: Consolidation of actions is addressed to the sound at this point in time question the foreclosure of the subject properties.
discretion of the court and its action in consolidating will not be disturbed in Defendant bank made demands against the plaintiff for the payment of
the absence of manifest abuse of discretion. plaintiffs outstanding loans and advances with the defendant as early as
Remedial Law Notes by Ralph H. Villanueva

July 1997. Plaintiff acknowledged such outstanding loans and advances to it maintains that the RTC scheduled both cases for simultaneous trial and
the defendant bank and committed to liquidate the same. For failure of the hearing and all the conditions for consolidation are attendant herein. It
plaintiff to pay its obligations on maturity, defendant bank foreclosed the contends also that the RTC did not abuse its discretion when it dismissed
mortgage on subject properties on January 5, 1988 the certificate of sale SCC No. 4243 in order to avoid unnecessary cost and delay since the
was annotated on March 24, 1988 and there being no redemption made by ground for the dismissal of SCC No. 4242 is perfectly applicable to the
the plaintiff, title to said properties were consolidated in the name of former. Besides, it contends that, in dismissing SCC No. 4243, the RTC did
defendant in July 1989. Undeniably, subject foreclosure was done in not go beyond the averments of the complaint therein. As for respondent
accordance with the prescribed rules as may be borne out by the exhibits LBP, it submits that the RTC did not err, much less abuse its jurisdiction, in
submitted to this Court which are Exhibit 33, a notice of extrajudicial sale dismissing SCC No. 4243 upon a motion to dismiss directed against the
executed by the Sheriff of Antipolo, Exhibit 34 certificate posting of complaint in SCC No. 4242, since the two cases were consolidated and
extrajudicial sale, Exhibit 35 return card evidencing receipt by plaintiff of involved common questions of law and facts. It argues that dismissal of
the notice of extrajudicial sale and Exhibit 21 affidavit of publication. SCC No. 4243 for failure to state a cause of action is proper since petitioner
(Producers Bank of the Philippines vs Excelsa Industries) has no right to voluntarily offer the disputed properties because he was
never the owner of said properties. The Supreme Court ruled in favor of
When consolidation be denied petitioner. In the present case, although both cases which were raffled to
the same branch of RTC Masbate (Branch 48), involve the prayer for
Consolidation should be denied when prejudice would result to any of the determination and payment of just compensation, and petitioner and
parties or would cause complications, delay, cut off, or restrict the rights of Colarina are represented by the same counsel, Pejo Buenviaje & Associates,
a party. A court may order several actions pending before it to be tried and respondents LBP and DAR Secretary are common defendants, these
together where they arise from the same act, event or transaction, involve are not sufficient justifications for joint trial and joint order dismissing both
the same or like issues, and depend largely or substantially on the same cases. It cannot be denied that there is no real identity of parties, facts or
evidence, provided that the court has jurisdiction over the cases to be rights asserted. SCC No. 4242 was instituted by Colarina in his own name
consolidated and that a joint trial will not give one party an undue principally against GSIS and concerns fifteen parcels of agricultural land in
advantage or prejudice the substantial rights of any of the parties. The Barrio Malaran and Lamintao, Municipality of Dimasalong (now Uson),
obvious purpose of the rule allowing consolidation is to avoid multiplicity of Masbate, while SCC No. 4243 was instituted by petitioner represented by
suits to guard against oppression or abuse, to prevent delays, to clear Colarina principally against DBP and concerns two parcels of agricultural
congested dockets, to simplify the work of the trial court; in short the land in Barangay Lantangan, Mandaon, Masbate. Furthermore, a perusal of
attainment of justice with the least expense and vexation to the parties the complaints in SCC Nos. 4242 and 4243 plainly shows that Colarina
litigants. Consolidation of actions is addressed to the sound discretion of claims ownership as redemptioner while petitioner claims ownership as
the court and its action in consolidating will not be disturbed in the absence buyer. Clearly, the causes of action in the two cases arose from different
of manifest abuse of discretion. (Teston vs DBP) events or transactions, involve different issues, and ultimately will depend
on different evidence. (Teston vs DBP)
The Supreme Court ruled that the Regional Trial Court exceeded its
jurisdiction in setting the joint trial of the two cases. Petitioner submits that Proceedings for the issuance of a writ of possession should NOT be
no consolidation in contemplation of the Rules took place since there was consolidated with the case for the declaration of a nullity of a foreclosure
no order for consolidation; the RTC only scheduled both cases for sale
simultaneous hearing. He further argues that the RTC erred in dismissing in
one order both cases based on a motion to dismiss directed against one GENERAL RULE: The long-standing rule is that proceedings for the
case only. He maintains that failure to state a cause of action as ground of a issuance of a writ of possession are ex parte and non-litigious in
motion to dismiss solely applies to the complaint in SCC No. 4242 and it nature.
cannot extend to the complaint in SCC No. 4243, unless the allegations in
both complaints are entirely the same in all respects. Furthermore, he EXCEPTION TO THE GENERAL RULE: Where the consolidation of the
contends that the RTC, in finding that the complaint in SCC No. 4243 stated proceedings for the issuance of a writ of possession and nullification of
no cause of action, went beyond the allegations of the complaint. On the foreclosure proceedings was allowed following the provisions on
other hand, respondent DBP submits that petitioners argument regarding consolidation in the Rules of Court. (Active Woods vs Court of Appeals)
consolidation deals principally on technicalities and semantics. It avers that
it cannot be denied that the two cases involved are of the same nature and However, the circumstances in this case are substantially distinct from that
pray for the same relief, i.e., the determination and payment of just in Active Wood. Therefore, the exception granted in that case cannot be
compensation, which petitioner admits in his petition. While admitting that applied here.1avvphi1
there was no written order from the RTC expressly consolidating both cases,
Remedial Law Notes by Ralph H. Villanueva

In Active Wood, the petition for writ of possession was filed before the hand, by its nature, a petition for nullification or annulment of foreclosure
expiration of the one-year redemption period, while, in this case, the proceedings contests the presumed right of ownership of the buyer in a
petition for writ of possession was filed after the one-year redemption foreclosure sale and puts in issue such presumed right of ownership. Thus,
period had lapsed. Moreover, in Active Wood, title to the litigated property a party scheming to defeat the right to a writ of possession of a buyer in a
had not been consolidated in the name of the mortgagee. Therefore, in that foreclosure sale who had already consolidated his ownership over the
case, the mortgagee did not yet have an absolute right over the property. property subject of the foreclosure sale can simply resort to the subterfuge
In this case, title to the litigated property had already been consolidated in of filing a petition for nullification of foreclosure proceedings with motion
the name of respondent, making the issuance of a writ of possession a for consolidation of the petition for issuance of a writ of possession. This we
matter of right. Consequently, the consolidation of the petition for the cannot allow as it will render nugatory the presumed right of ownership, as
issuance of a writ of possession with the proceedings for nullification of well as the right of possession, of a buyer in a foreclosure sale, rights which
foreclosure would be highly improper. Otherwise, not only will the very are supposed to be implemented in an ex parte petition for issuance of a
purpose of consolidation (which is to avoid unnecessary delay) be defeated writ of possession. Besides, the mere fact that the presumed right of
but the procedural matter of consolidation will also adversely affect the ownership is contested and made the basis of another action does not by
substantive right of possession as an incident of ownership. (Gregorio itself mean that the proceedings for issuance of a writ of possession will
Espinoza vs UOB) become groundless. The presumed right of ownership and the right of
possession should be respected until and unless another party successfully
The Supreme Court ruled that a case for the issuance of a writ of rebuts that presumption in an action for nullification of the foreclosure
possession may not be consolidated with the proceedings for the proceedings. As such, and in connection with the issuance of a writ of
nullification of extra-judicial foreclosure. Petitioners contend that peculiar possession, the grant of a complaint for nullification of foreclosure
circumstances in the instant case make it an exception from the general proceedings is a resolutory condition, not a suspensive condition. (Gregorio
rule on the ministerial duty of courts to issue writs of possession. Given that Espinoza vs UOB)
the issuance of a writ of possession in this case must be litigated,
consolidation with the pending case on the nullification of extra-judicial Consolidation of civil and criminal cases
foreclosure is mandatory because both proceedings involve the same RULE 111
parties and subject matter. Respondent, on the other hand, insists that the
consolidation of the ex parte petition for the issuance of a writ of
Prosecution of Civil Action
possession with the complaint for nullification of extra-judicial foreclosure of
mortgage is highly improper and irregular because there are no common
questions of fact and law between the two cases. Respondent also argues Section 1. Institution of criminal and civil actions. (a) When a criminal
that any question regarding the validity of the mortgage or foreclosure action is instituted, the civil action for the recovery of civil liability arising
cannot be a ground for refusing the issuance of the writ of possession and from the offense charged shall be deemed instituted with the criminal
should, instead, be taken up in the proceedings for the nullification of the action unless the offended party waives the civil action, reserves the right
foreclosure. The Supreme Court ruled in favor of the respondents. The order to institute it separately or institutes the civil action prior to the criminal
for a writ of possession issues as a matter of course upon the filing of the
action.
proper motion and the approval of the corresponding bond if the
redemption period has not yet lapsed. If the redemption period has expired,
then the filing of the bond is no longer necessary. Any and all questions The reservation of the right to institute separately the civil action shall be
regarding the regularity and validity of the sale is left to be determined in a made before the prosecution starts presenting its evidence and under
subsequent proceeding and such questions may not be raised as a circumstances affording the offended party a reasonable opportunity to
justification for opposing the issuance of a writ of possession. The make such reservation.
proceeding in a petition for a writ of possession is ex parte and summary in
nature. It is a judicial proceeding brought for the benefit of one party only
and without notice by the court to any person adverse of interest. It is a When the offended party seeks to enforce civil liability against the accused
proceeding wherein relief is granted without giving the person against by way of moral, nominal, temperate, or exemplary damages without
whom the relief is sought an opportunity to be heard. By its very nature, an specifying the amount thereof in the complaint or information, the filing
ex parte petition for issuance of a writ of possession is a non-litigious fees thereof shall constitute a first lien on the judgment awarding such
proceeding. It is a judicial proceeding for the enforcement of ones right of damages.
possession as purchaser in a foreclosure sale. It is not an ordinary suit filed
in court, by which one party sues another for the enforcement of a wrong or
protection of a right, or the prevention or redress of a wrong. On the other
Remedial Law Notes by Ralph H. Villanueva

Where the amount of damages, other than actual, is specified in the adduced in the civil action shall be deemed automatically reproduced in the
complaint or information, the corresponding filing fees shall be paid by the criminal action without prejudice to the right of the prosecution to cross-
offended party upon the filing thereof in court. examine the witnesses presented by the offended party in the criminal case
and of the parties to present additional evidence. The consolidated criminal
and civil actions shall be tried and decided jointly.
Except as otherwise provided in these Rules, no filing fees shall be required
for actual damages.
During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or
No counterclaim, cross-claim or third-party complaint may be filed by the
whose proceeding has been suspended shall be tolled. (n)
accused in the criminal case, but any cause of action which could have
been the subject thereof may be litigated in a separate civil action. (1a)
The extinction of the penal action does not carry with it extinction of the
civil action. However, the civil action based on delict shall be deemed
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
extinguished if there is a finding in a final judgment in the criminal action
deemed to include the corresponding civil action. No reservation to file
that the act or omission from which the civil liability may arise did not exist.
such civil action separately shall be allowed.
(2a)

Upon filing of the aforesaid joint criminal and civil actions, the offended
Section 3. When civil action may proceeded independently. In the cases
party shall pay in full the filing fees based on the amount of the check
provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the
involved, which shall be considered as the actual damages claimed. Where
Philippines, the independent civil action may be brought by the offended
the complaint or information also seeks to recover liquidated, moral,
party. It shall proceed independently of the criminal action and shall require
nominal, temperate or exemplary damages, the offended party shall pay
only a preponderance of evidence. In no case, however, may the offended
additional filing fees based on the amounts alleged therein. If the amounts
party recover damages twice for the same act or omission charged in the
are not so alleged but any of these damages are subsequently awarded by
criminal action. (3a)
the court, the filing fees based on the amount awarded shall constitute a
first lien on the judgment.
Section 4. Effect of death on civil actions. The death of the accused
after arraignment and during the pendency of the criminal action shall
Where the civil action has been filed separately and trial thereof has not yet
extinguish the civil liability arising from the delict. However, the
commenced, it may be consolidated with the criminal action upon
independent civil action instituted under section 3 of this Rule or which
application with the court trying the latter case. If the application is
thereafter is instituted to enforce liability arising from other sources of
granted, the trial of both actions shall proceed in accordance with section 2
obligation may be continued against the estate or legal representative of
of this Rule governing consolidation of the civil and criminal actions. (cir.
the accused after proper substitution or against said estate, as the case
57-97)
may be. The heirs of the accused may be substituted for the deceased
without requiring the appointment of an executor or administrator and the
Section 2. When separate civil action is suspended. After the criminal court may appoint a guardian ad litem for the minor heirs.
action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal
The court shall forthwith order said legal representative or representatives
action.
to appear and be substituted within a period of thirty (30) days from notice.

If the criminal action is filed after the said civil action has already been
A final judgment entered in favor of the offended party shall be enforced in
instituted, the latter shall be suspended in whatever stage it may be found
the manner especially provided in these rules for prosecuting claims
before judgment on the merits. The suspension shall last until final
against the estate of the deceased.
judgment is rendered in the criminal action. Nevertheless, before judgment
on the merits is rendered in the civil action, the same may, upon motion of
the offended party, be consolidated with the criminal action in the court
trying the criminal action. In case of consolidation, the evidence already
Remedial Law Notes by Ralph H. Villanueva

If the accused dies before arraignment, the case shall be dismissed without indicates not only a deviation from the rules but also a disobedience to
prejudice to any civil action the offended party may file against the estate their plain language and obvious intent. On the other hand, BDO-EPCIB
of the deceased. (n) refutes SCPs arguments by saying that the consolidation of cases is only
discretionary, not mandatory, upon the court.

Section 5. Judgment in civil action not a bar. A final judgment rendered The Supreme Court agrees with SCP. Rule 3, Sec. 3 of the 2002 Internal
in a civil action absolving the defendant from civil liability is not a bar to a Rules of the CA:
criminal action against the defendant for the same act or omission subject
of the civil action. (4a) Sec. 3. Consolidation of Cases. When related cases are assigned to
different Justices, they may be consolidated and assigned to one Justice.
Section 6. Suspension by reason of prejudicial question. A petition for
(d) At the instance of a party with notice to the other party; or at the
suspension of the criminal action based upon the pendency of a prejudicial
instance of the Justice to whom the case is assigned, and with the
question in a civil action may be filed in the office of the prosecutor or the conformity of the Justice to whom the cases shall be consolidated,
court conducting the preliminary investigation. When the criminal action upon notice to the parties, consolidation may be allowed when the
has been filed in court for trial, the petition to suspend shall be filed in the cases involve the same parties and/or related questions of fact
same criminal action at any time before the prosecution rests. (6a) and/or law.

Section 7. Elements of prejudicial question. The elements of a (e) Consolidated cases shall pertain to the Justice
prejudicial question are: (a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised in the subsequent (5) To whom the case with the lowest docket number is assigned,
criminal action, and (b) the resolution of such issue determines whether or if they are of the same kind;
not the criminal action may proceed. (5a) (6) To whom the criminal case with the lowest number is
assigned, if two or more of the cases are criminal and the
others are civil or special;
Consolidation of cases on appeal (7) To whom the criminal case is assigned and the other are civil
or special; and
Even though consolidation of actions is addressed to the sound discretion of (8) To whom the civil case is assigned, or to whom the civil case
the court and normally, its action in consolidating will not be disturbed in with the lowest docket number is assigned, if the cases
the absence of manifest abuse of discretion. It is a time-honored principle involved are civil and special.
that when two or more cases involve the same parties and affect closely
related subject matters, they must be consolidated and jointly tried, in (f) Notice of the consolidation and replacement shall be given to the
order to serve the best interests of the parties and to settle expeditiously Raffle Staff and the Judicial Records Division.
the issues involved. In other words, consolidation is proper wherever
the subject matter involved and relief demanded in the diferent In the instant case, all four (4) cases involve identical parties, subject
suits make it expedient (easier) for the court to determine all of matter, and issues. In fact, all four (4) arose from the same decision
the issues involved and adjudicate the rights of the parties by rendered by the Rehabilitation Court. As such, it became imperative upon
hearing the suits together. (Steel Corporation of the Philippines vs the CA to consolidate the cases. Even though consolidation of actions is
Equitale PCI Bank) addressed to the sound discretion of the court and normally, its action in
consolidating will not be disturbed in the absence of manifest abuse of
The Supreme Court ruled that the Court of Appeals did not make a mistake discretion, in this instance, we find that the CA gravely erred in failing to
when it consolidated the cases pending before it. Petitioner SCP argues that order the consolidation of the cases. By refusing to consolidate the cases,
the CA deviated from its own Internal Rules when it failed to consolidate the the CA, in effect, dispensed a form of piecemeal judgment that has
four (4) appeals arising from the same decision of the rehabilitation court. veritably resulted in the multiplicity of suits. Such action is not regarded
In fact, it points out to the fact that CA-G.R. SP No. 101913 had already with favor, because consolidation should always be ordered whenever it is
been consolidated with its own appeal in CA-G.R. SP No. 101732. However, possible. (Steel Corporation of the Philippines vs Equitale PCI Bank)
SCP says that the failure by the CA to consolidate the remaining two
appeals, namely CA-G.R. SP Nos. 101880 and 101881, with its own appeal
Demurrer to Evidence
Remedial Law Notes by Ralph H. Villanueva

demurrer may be granted if, after the presentation of plaintiffs evidence, it


Concept of demurrer appears upon the facts and the law that the plaintiff has shown no right to
relief. In contrast, the ground for res judicata present themselves even
It is an objection or exception by one of the parties in an action at law, to BEFORE the presentation of evidence, and it should be invoked as a ground
the effect that the evidence which his adversary produced is INSUFFICIENT for dismissal. (Riano citing Republic v Tuvera)
in point of law, whether true or not, to make out his case or sustain an
issue. (Feria citing Heirs of Pasad v Sps Parocha) Effect of denial or grant of demurrer to evidence
Demurrer to evidence as "an objection by one of the parties in an action, to Effect of denial of the demurrer to Effect of granting the demurrer to
the effect that the evidence which his adversary produced is insufficient in evidence evidence
point of law, whether true or not, to make out a case or sustain the issue. If the demurrer is denied, the If the demurrer is granted, the
(Casent Realty vs Philbanking Corp citing Gutib vs CA) defendant shall have the right to case shall be dismissed. However,
present his evidence. (Sec. 1 Rule if, on appeal the order granting the
a. The regular order of trial requires the plaintiff to adduce 33 of ROC) This means that the motion is reversed, the defendant
evidence in support of his complaint. During the trial, he denial of the demurrer to evidence loses his right to present evidence.
presents all the pieces of evidence availabl to him- object, does not deprive the defendant of (Sec. 1Rule 33 of ROC and
documentary and testimonial. (Sec. 5(a), Rule 30 of Rules of the opportunity to adduce Republic v Tuvera)
Court) evidence in his behalf.
b. After the plaintiff has completed the presentation of his Where the court denies a demurrer It is not correcr for the appellate
evidence, the defendant shall, then, adduce evidence in to evidence, it should set the date court reversing the order granting
support of his defense, counterclaim or third-party complaint, for the reception of the the demurrer to remand the case
as the case may be. (Sec. 5(b) Rule 30 of Rules of Court) defendants evidence in chief. It to the trial court for further
should not proceed to grant the proceedings. The appellate court
The defendant, however, may sincerely feel that the relief demanded by the plaintiff. should, instead of remanding the
plaintiff has not lived up to his burden of proving the material (Riano citing Northwest Airlines, case, render judgment on the
allegations of his claim and is, therefore, not entitled to the Inc. vs CA) basis of the evidence submitted by
relief sought for in his complaint. the plaintiff. (Riano)
c. Instead of presenting his evidence, the defendant may move An order denying a demurrer to The trial court acting on the
for dismissal of the case on the ground that, upon facts and the evidence is interlocutory and respondents demurrer to
the law, the plaintiff has shown no right to relief (Sec. 1 Rule is, therefore, not appealable. It evidence, dismissed the complaint
33 of the Rules of Court. This motion for dismissal is called a can, however, be the subject of on the ground that the plaintiff had
demurrer to evidence. (Riano) discretion or an oppressive adduced mere HEARSAY evidence.
exercise of judicial authority. However, on appeal, the appellate
Motion to dismiss in Rule 16 Motion to dismiss under Rule (Riano citing Katigbak vs court reversed the trial court
33 as demurrer to evidence Sandiganbayan) because the genuineness ad due
Made before the filing of an answer Made after the plaintiff ests his execution of the disputed pieces of
case. e.g. after completion of the evidence had, in fact, been
presentation of his evidence. admitted by defendants. (Riano
There are several ground for a Only one ground (that upon the citing Radiowealth Finance
motion to dismiss facts and the law, the plaintiff has Corporation vs Del Rosario)
shown no right to relief) Note that a party who files a A demurrer to evidence
If denied, defendant may file his Defendant may present his
demurrer to evidence that is abbreviates judicial proceedings it
responsive pleading evidence subsequently denied in an election being an instrument for the
If granted, the complaint may be The complaint may not be refiled case cannot insists on the right to expeditious termination of an
refiled(without prejudice), and the remedy of the plaintiff is present evidence. The provision of action. Caution, however, must be
depending on the ground for to appeal for the order of the Rules of Court governing exercised by the party seeking the
dismissal dismissal demurrer to evidence does not dismissal of a case upon this
apply to election cases. (Riano ground, as under the rules, if the
Note: Res judicata is not a proper ground for sustaining a demurrer citing Gementiza vs Comelec) The movants plea for the dismissal n
to evidence even as it stands as a proper ground for a motion to dismiss. A Rules of Court, under the express demurrer to evidence is granted
Remedial Law Notes by Ralph H. Villanueva

dictum in Sec. 4 of Rule I shall not and the order of dismissal is BY COUNSEL individually filed demurers to the evidence, to which the
apply to election cases. xxx reversed on appeal, judgment is petitioner did not lose time to oppose. lt is uniformly maintained by said
rendered in favor of the adverse respondents that the evidence already adduced by the petitioner does not
party because the movant loses establish a good cause to proceed against them, for which reason the
his right to present evidence. The petition as against them should be dismiss. Petitioner disagreed, arguing
reviewing court cannot remand the otherwise. As decided by COMELEC, the demurers should be DENIED. The
case for further proceedings; Commission [Second Division] would rather have the complete facts and
rather, it should render judgment evidence of the parties upon which to reach a decision than prematurely go
on the basis of the evidence into it now upon the facts and evidence of the petitioner only. The rationale
presented by the plaintiff. (Riano behind such a procedure is to enable this Body to properly adjudicate the
citing Consolidated Bank and Trust case on its merits and to ventilate the adversary issues on the basis of all
Corporation vs Del Monte Motor the facts and evidence presented by the contending parties. The
Works. challenged order being merely an interlocutory order and not a final
judgment or decision, no abuse of discretion was committed by respondent
Demurrer in a civil case Demurrer in a criminal case Comelec in its failure to state the facts and the law on which its order
Leave of court is not required Demurrer is filed with or without denying petitioners' demurrer to evidence is based. (Nepomuceno vs
before filing a demurrer leave of court Comelec)
If demurrer if granted, the order of The order of dismissal is not
dismissal is appealable appealable because of the When a demurrer to evidence granted by a trial court is reversed on
constitutional policy against appeal, the reviewing court cannot remand the case for further
double jeopardy proceedings. Rather, it should render judgment on the basis of the evidence
If the demurrer is denied, the The accused may adduce his proffered by the plaintiff. Inasmuch as defendants in the present case
defendant may proceed to present evidence only if the demurrer is admitted the due execution of the Promissory Note both in their Answer
his evidence. (Sec. 1Rule 30 of the filed with leave of court. He cannot and during the pretrial, the appellate court should have rendered judgment
ROC) present his evidence if he filed the on the bases of that Note and on the other pieces of evidence adduced
demurrer without leave of court. during the trial. "The rationale behind the rule and doctrine is simple and
(Sec. 23 Rule 119 of the ROC) logical. The defendant is permitted, without waiving his right to offer
The court cannot on its own make The court may on its own make a evidence in the event that his motion is not granted, to move for a
a demurrer demurrer. (sec. 23, Rule 119 of the dismissal (i.e., demur to the plaintiffs evidence) on the ground that upon
ROC) the facts as thus established and the applicable law, the plaintiff has shown
no right to relief. If the trial court denies the dismissal motion, i.e., finds
that plaintiffs evidence is sufficient for an award of judgment in the
The Supreme Court stated that petitioners are obviously misled by the title
absence of contrary evidence, the case still remains before the trial court
of Rule 35 of the Rules of Court, "Judgment on Demurer to Evidence." Said
which should then proceed to hear and receive the defendants evidence so
Rule, consisting of only one section, allows the defendant to move for
that all the facts and evidence of the contending parties may be properly
dismissal of the case after the plaintiff has presented his evidence on the
placed before it for adjudication as well as before the appellate courts, in
ground of insufficiency of evidence, and provides for the effects of the
case of appeal. Nothing is lost. The doctrine is but in line with the
dismissal or non-dismissal, as the case may be, on the right of the
established procedural precepts in the conduct of trials that the trial court
defendant to present his cause. Otherwise stated, it authorizes a judgment
liberally receive all proffered evidence at the trial to enable it to render its
on the merits of the case without the defendant having to submit evidence
decision with all possibly relevant proofs in the record, thus assuring that
on his part as the relief sought. The demurrer, therefore, is an aid or
the appellate courts upon appeal have all the material before them
instrument for the expeditious termination of an action, similar to a motion
necessary to make a correct judgment, and avoiding the need of remanding
to dismiss, which the court or tribunal may either grant or deny. It is thus
the case for retrial or reception of improperly excluded evidence, with the
apparent that the requirement of Section 1 of Rule 36 would only apply if
possibility thereafter of still another appeal, with all the concomitant
the demurrer is granted, for in this event, there would in fact be an
delays. The rule, however, imposes the condition by the same token that if
adjudication on the merits of the case, leaving nothing more to be done,
his demurrer is granted by the trial court, and the order of dismissal is
except perhaps to interpose an appeal. However, a denial of the demurrer
reversed on appeal, the movant losses his right to present evidence in his
is not a final judgment, but merely interlocutory in character as it does not
behalf and he shall have been deemed to have elected to stand on the
finally dispose of the case, the defendant having yet the right to present his
insufficiency of plaintiffs case and evidence. In such event, the appellate
evidence, as provided for under Section 1 of Rule 35. Here, RESPONDENTS
court which reverses the order of dismissal shall proceed to render
Remedial Law Notes by Ralph H. Villanueva

judgment on the merits on the basis of plaintiffs evidence." (Underscoring admissions, matters of judicial notice, stipulations made during the pre-trial
supplied citing Villanueva Transit vs Javellana) In other words, defendants and trial, admissions, and presumptions, the only exclusion being the
who present a demurrer to the plaintiffs evidence retain the right to defendants evidence. (Casent Realty v Phil Banking)
present their own evidence, if the trial court disagrees with them; if the trial
court agrees with them, but on appeal, the appellate court disagrees with The Supreme Court affirmed the decision of the Court of Appeals where it
both of them and reverses the dismissal order, the defendants lose the found that under the Deed of Assignment, respondent clearly had the right
right to present their own evidence. The appellate court shall, in addition, to proceed against the promissory notes assigned by Rare Realty. Hence,
resolve the case and render judgment on the merits, inasmuch as a the Court of Appeals did not make a mistake in excluding the petitoners
demurrer aims to discourage prolonged litigations. (Radiowealth vs Sps Del affirmative defenses in its answer in resolving a demurrer to evidence.
Rosario) Petitioner points out that the defense of Dacion and Confirmation
Statement, which were submitted in the Answer, should have been
The Supreme Court held that the Court of Appeals correctly reversed the specifically denied under oath by respondent in accordance with Rule 8,
trial court, it erred in remanding the case for further proceedings. Petitioner Section 8 of the Rules of Court:
claims that respondents are liable for the whole amount of their debt and
the interest thereon, after they defaulted on the monthly installments. Section 8. How to contest such documents.When an action or defense is
Petitioner contends that if a demurrer to evidence is reversed on appeal, founded upon a written instrument, copied in or attached to the
the defendant should be deemed to have waived the right to present corresponding pleading as provided in the preceding section, the
evidence, and the appellate court should render judgment on the basis of genuineness and due execution of the instrument shall be deemed
the evidence submitted by the plaintiff. A remand to the trial court "for admitted unless the adverse party, under oath, specifically denies them,
further proceedings" would be an outright defiance of Rule 33, Section 1 of and sets forth, what he claims to be the facts; but the requirement of an
the 1997 Rules of Court. On the other hand, respondents argue that the oath does not apply when the adverse party does not appear to be a party
petitioner was not necessarily entitled to its claim, simply on the ground to the instrument or when compliance with an order for an inspection of the
that they lost their right to present evidence in support of their defense original instrument is refused.
when the Demurrer to Evidence was reversed on appeal. They stress that Since respondent failed to file a Reply, in effect, respondent admitted the
the CA merely found them indebted to petitioner, but was silent on when genuineness and due execution of said documents. This judicial admission
their obligation became due and demandable.In the case at bar, the trial should have been considered by the appellate court in resolving the
court, acting on respondents demurrer to evidence, dismissed the demurrer to evidence. Rule 129, Section 4 of the Rules of Court provides:
Complaint on the ground that the plaintiff had adduced mere hearsay Section 4. Judicial admissions.An admission, verbal or written, made by a
evidence. However, on appeal, the appellate court reversed the trial court party in the course of the proceeding in the same case, does not require
because the genuineness and the due execution of the disputed pieces of proof. The admission may be contradicted only by showing that it was
evidence had in fact been admitted by defendants Applying Rule 33, made through palpable mistake or that no such admission was made.
Section 1 of the 1997 Rules of Court, the CA should have rendered On appeal to the CA, respondent claimed that even though it failed to file a
judgment on the basis of the evidence submitted by the petitioner. While Reply, all the new matters alleged in the Answer are deemed controverted
the appellate court correctly ruled that "the documentary evidence anyway, pursuant to Rule 6, Section 10:
submitted by the [petitioner] should have been allowed and appreciated Section 10. Reply.A reply is a pleading, the office or function of which is to
xxx," and that "the petitioner presented quite a number of documentary deny, or allege facts in denial or avoidance of new matters alleged by way
exhibits xxx enumerated in the appealed order,"we agree with petitioner of defense in the answer and thereby join or make issue as to such new
that the CA had sufficient evidence on record to decide the collection suit. A matters. If a party does not file such reply, all the new matters alleged in
remand is not only frowned upon by the Rules, it is also logically the answer are deemed controverted. We agree with petitioner. Rule 8,
unnecessary on the basis of the facts on record. (Radiowealth vs Sps Del Section 8 specifically applies to actions or defenses founded upon a written
Rosario) instrument and provides the manner of denying it. It is more controlling
than Rule 6, Section 10 which merely provides the effect of failure to file a
What should be resolved in a motion to dismiss based on a demurrer to Reply. Thus, where the defense in the Answer is based on an actionable
evidence is whether the plaintiff is entitled to the relief based on the document, a Reply specifically denying it under oath must be made;
facts and the law. The evidence contemplated by the rule on demurrer is otherwise, the genuineness and due execution of the document will be
that which pertains to the merits of the case, excluding technical aspects deemed admitted. Since respondent failed to deny the genuineness and
such as capacity to sue. However, the plaintiffs evidence should not be the due execution of the Dacion and Confirmation Statement under oath, then
only basis in resolving a demurrer to evidence. The "facts" referred to in these are deemed admitted and must be considered by the court in
Section 8 should include all the means sanctioned by the Rules of Court in resolving the demurrer to evidence. We held in Philippine American General
ascertaining matters in judicial proceedings. These include judicial Insurance Co., Inc. v. Sweet Lines, Inc. that "[w]hen the due execution and
Remedial Law Notes by Ralph H. Villanueva

genuineness of an instrument are deemed admitted because of the adverse need not be presented formally in evidence for it may be considered an
partys failure to make a specific verified denial thereof, the instrument admitted fact."( Casent Realty v Phil Banking)