Beruflich Dokumente
Kultur Dokumente
DEC 19
Posted by Magz
Rule 62 Interpleader
1. Interpleader
1. Original action
2. Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which, in whole or part, is not disputed by the other
parties to the action;
3. Complaint in interpleader must be answered 15 days from service of summons.
1. Subject matter of controversy is a deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance;
à Court may refuse to adjudicate where decision would not terminate the uncertainty or controversy which gave rise to the action OR where the declaration is not
necessary and proper at the time;
2. Terms and validity thereof are doubtful and require judicial construction;
3. No breach of the document, otherwise ordinary civil action is the remedy;
à Must be before breach is committed, as in the case where the petitioner paid under protest the fees imposed by an ordinance. Declaratory relief still proper because
the applicability of the ordinance to future transactions still remains to be resolved, although the matter could be threshed out in an ordinary suit for the recovery of
the fees paid.
4. There is an actual justiciable controversy between persons whose interests are adverse;
5. The same is ripe for adjudication;
6. Adequate relief is not available through other means or other forms of action or proceeding.
Rule 64 Review of Judgments and Final Orders or Resolutions of the Commission on Elections and The Commission on Audit
à For petition for review of judgments and final orders of the COMELEC and COA – period to file is 30 days to be counted from notice of the judgment or final order or
resolution sought to be reviewed and not from the receipt of the denial of the Motion for Reconsideration; the period to file petition is merely interrupted by the filing
of the Motion for Reconsideration and continues to run again for the remaining period which shall not be less than 5 days from notice of denial.
1. 1. Certiorari
à If CA reverses the judge, the latter may not go the SC via a petition for certiorari. He is merely a nominal party, and he should not seek the reversal of a decision that
is unfavorable to the action taken by him.
à Professional Regulation Commission vs. CA – It is well settled that the remedies of ordinary appeal and certiorari are mutually exclusive, not alternative or
successive. However, it has also been held that after a judgment has been rendered and an appeal therefrom had been perfected, a petition for certiorari relating to
certain incidents therein may prosper where the appeal does not appear to be a plain, speedy and adequate remedy. In this case, the SC noted that, while petitioners
tried to justify their recourse to both an appeal and to a petition for certiorari by claiming that their appeal would not constitute a plain, speedy and adequate remedy,
they did not see fit to withdraw or abandon said appeal after filing the petition. Thus, both the CA and SC are reviewing the same decision of the RTC at the same
time. Such a situation would lead to absurdity and confusion in the ultimate disposition of the case.
1. 2. Prohibition
2. 3. Mandamus
3. 4. When SC allows the writ of certiorari even when appeal is available and proper:
4. 5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari:
1. 6. The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order, or resolution sought to be reviewed.
à No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15
days. (SC Circular 56-2000)
à The power of eminent domain is exercised by the filing of a complaint which shall join as defendants all persons owning or claiming to own, or occupying, any party
of the expropriated land or interest therein. If a known owner is not joined as defendant, he is entitled to intervene in the proceedings; or if he is joined but not
served with process and the proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for damages.
1. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract;
2. Purpose of suit is not for ejectment but for enforcement of terms of contract;
3. When defendant is not a tenant but a pure intruder
3. When the defendant raises the issue of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the
latter issue shall be resolved only to determine the issue of possession.
à A forcible entry/unlawful detainer action has an entirely different subject matter from that of an action for reconveyance. The former involves material possession,
and the latter, ownership. Thus, the pendency of an action for reconveyance does not divest the MTC of its jurisdiction over an action for FE/UD, nor will it preclude
execution of judgment in the ejectment case where the only issue involved is material possession.
1. 1. Criminal contempt
2. 2. Civil Contempt
3. 3. Direct Contempt (contempt in facie curiae)
4. 4. Indirect Contempt
1. Purpose is to protect and enforce civil rights and remedies for the litigants;
2. Failure to do something ordered by the court for the benefit of a party.
Reference:
DEC 19
Posted by Magz
Rule 51 Judgment
2. An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua, or life
imprisonment.
1. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.
2. General Rule: Appeal to SC by notice of appeal shall be dismissed.
Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same
occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Section 3,
Rule 122)
1. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision or appropriate action, without prejudice to considerations on
whether or not to give due course to the appeal as provided in Rule 45.
Provisional Remedies
à Writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect rights and interests therein pending
rendition, and for the purpose of ultimately affecting a final judgment in the case.
à PROVISIONAL – constituting temporary measures availed of during the pendency of the action.
1. 1. Preliminary Attachment
1. Available even if the recovery of personal property is only an incidental relief sought in the action;
2. May be resorted to even if the personal property is in the custody of a third person;
3. Extends to all kinds of property, real or personal or incorporeal;
4. To recover possession of personal property unjustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or
taken by the applicant;
5. Can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one in which he has proprietary interests,
AND with permission of the court
2. Grounds
1. Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Phils with intent to defraud creditors;
2. Action for money or property embezzled or for willful violation of duty by public officers, officers of corporation, agent, or fiduciary;
3. Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent is being found or taken;
4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;
5. Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;
6. Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can be made.
Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and
affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the
summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of
the Phils or the action is in rem or quasi in rem.
à CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER
5. Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has
been an order of attachment.
1. Before trial;
2. Before appeal perfected;
3. Before judgment becomes executory;
4. In the appellate court for damages pending appeal, before judgment becomes executory.
1. 7. When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon
notice and summary hearing. There is no need to first execute judgment against the judgment obligor before proceeding against sureties.
2. 8. Claims for damages cannot be subject of independent action except:
1. a. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages;
2. b. When damages sustained by a third person not a party to the action.
1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction);
2. The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff;
3. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual.
1. Complaint is insufficient;
2. Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can
be fully compensated;
3. Plaintiff’s bond is insufficient or defective
4. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing.
à When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s affidavit and bond, upon the adverse
party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall NOT apply where the summons could not be served despite diligent
efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils
à Difference with principle in preliminary attachment – In attachment, the principle applies only in the implementation of the writ, while in applications for injunction
or TRO, this principle applies before the raffle and issuance of the writs or TRO.
6. TRO good for only 20 days from service; 60 days for CA; until further orders from SC.
7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury. Good for 72 hours from issuance, within
which judge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether TRO should be extended for 20
days. In no case can TRO be longer than 20 days including 72 hours.
8. No TRO, preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving implementation of government
infrastructure projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)
1. Party has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or materially injured;
2. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to
discharge the mortgage debt, OR that the parties have stipulated in the contract of mortgage;
3. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in execution when execution has been returned unsatisfied
or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment.
4. When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.
3. Both the applicant for the receivership and the receiver appointed must file separate bonds.
4. In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether is be damages against the applicant’s
bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the
latter case, no longer need to file a separate action).
Rule 60 Replevin
1. 1. Replevin
2. 2. Defendant entitled to return of property taken under writ if:
1. Available only where the principal relief sought in the action is the recovery of possession of personal property;
2. Can be sought only where the defendant is in the actual or constructive possession of the personal property involved.
3. Extends only to personal property capable of manual delivery;
4. Available to recover personal property even if the same is NOT being concealed, removed, or disposed of;
5. Cannot be availed of if property is in custodia legis, as where is it under attachment, or was seized under a search warrant or distrained for tax assessment.
à Replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property
pending trial of the action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for
fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaintiff.
1. Mandamus
2. Interpleader
3. Certiorari
4. Contempt
5. Prohibition
6. Eminent Domain
7. Declaratory Relief
8. Quo warranto
9. Partition of real estate
10. Foreclosure of mortgage
11. Unlawful detainer
12. Forcible Entry
Reference:
DEC 19
Posted by Magz
Rule 41 Appeal from the RTC
1. Appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein.
2. No appeal may be taken from:
à Not appealable because execution is only the result of the judgment. If order of execution is not in accord with the dispositive portion, remedy is certiorari under
Rule 65.
7. Judgment or final order for or against one or more of several parties or in separate claims, while the main case is pending, unless the court allows an appeal
therefrom;
8. Order dismissing an action without prejudice;
à In all these cases, aggrieved party may file an appropriate civil action under Rule 65.
1. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal with the RTC within 15 days from notice of its judgment.
Record on appeal required only for special proceedings and where multiple appeals allowed filed within 30 days.
2. Motion for extension of time to file a motion for new trial or reconsideration is prohibited.
3. Contents of Notice on appeal:
1. Full names of all parties to the proceedings shall be stated in the caption;
2. Include judgment or final order from which appeal taken;
3. In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders as are related to the appealed judgment;
4. Data showing that appeal perfected in time – material data rule;
5. If an issue of fact is to be raised, include by reference all the evidence, oral or documentary, taken upon the issues involved.
7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA.
8. Where only questions of law are raised, by petition for review on certiorari with SC.
10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of appeal.
In 7 legible copies:
1. Full names of parties to case, without impleading the lower courts or judges thereof;
2. Indicate specific material dates showing it was filed on time;
3. Concise statement of matters involved, issues raised, specification of errors of fact or law, or both allegedly committed by the RTC, and the reasons or arguments
relied upon for the allowance of the appeal;
4. Accompanied by clearly legible duplicate originals or true copies of the judgments or final order of both MTC and RTC;
5. Certification under oath of non-forum shopping.
1. 2. Contents of comment
In 7 legible copies, accompanied by certified true copies of material portions of record and other supporting papers:
1. State whether or not appellee accepts the statement of matters involved in the petition;
2. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of matters;
3. State reasons why petition should not be give due course.
3. CA may:
Rule 43 Appeals from the CTA and Quasi-Judicial Agencies to the CA
1. 1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-judicial agencies in exercise of quasi-judicial functions (unless otherwise
provided by law and the Labor Code [NLRC decisions]) shall be by petition for review to the CA, to be taken within 15 days from notice of award or judgment or
from notice of the denial of the motion for reconsideration. Only 1 Motion for reconsideration allowed
2. 2. Quasi-judicial agencies covered:
à St. Martin’s Funeral Home vs. NLRC – DECISIONS OF THE NLRC – ORIGINAL ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC
à Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under Rule 43.
Æ According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any appeal by way of petition for review from a decision, final resolution or order of the
Ombudsman, or special civil action relative to such decision, filed with the SC after March 15, 1999 shall no longer be referred to the CA, but shall be dismissed.
1. Question of Law – exists when doubt or difference arises as to what the law is, based on a certain state of facts
Question of Fact – exists when doubt or difference arises as to the truth or the falsehood of alleged facts
2. Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:
From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law, or other courts whenever authorized by law, by filing a petition for review on
certiorari with the SC within 15 days from notice of judgment.
Rule 45 Rule 65
No need for Motion for Recon Motion for Recon generally required
Relates to final judgments Applies to interlocutory orders
rendered in excess/lack of jurisdiction
An appeal Not an appeal in the strict sense
15 days from notice of judgment 60 days from notice of judgment
à Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that the issues raised involve a pure question of law, and that the mode
of appeal is erroneous. That is the prerogative of the CA, not the RTC judge. A notice of appeal need not be approved by the judge, unlike a record on appeal.
1. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or petition for relief
2. Lack of jurisdiction.
3. Periods:
4. Effects of judgment of annulment – gives the CA authority to order the trial court on motion to try the case if the ground for annulment is extrinsic fraud, but not if
it is lack of jurisdiction.
à Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is attributable to the plaintiff in the original action.
1. Failure of the record on appeal to show on its face that the appeal was taken within the reglamentary period;
2. Failure to file the notice of appeal or record on appeal within the period;
3. Failure of the appellant to pay the docket and other lawful fees;
4. Unauthorized alterations, omissions, or additions in the approved record on appeal;
5. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided;
6. Absence of specific assignment of errors in appellants brief or page references to the record;
7. Failure of the appellant to take necessary steps for the completion or correction of the record within the time limited by the order;
8. Failure of appellant to appear at the preliminary conference or to comply with orders, circulars, or directives of the court without justifiable cause
9. Judgment or order appealed from is not appealable.
Reference:
DEC 19
Posted by Magz
Rule 31 Consolidation or Severance
1. 1. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue when actions involving a common question of law or fact are
pending before the court.
2. 2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in furtherance of convenience or in the interest of
justice.
Trial by commissioner:
Demurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to relief.
2. If motion granted, but reversed on appeal – defendant deemed to have waived the right to present evidence.
Rule 34 Judgment on the Pleadings
à Then court may, on motion of that party, direct judgment on the pleadings
2. However, the material facts alleged in the complaint shall always be proved in actions for:
Summary judgment:
1. 1. Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law
2. 2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, except as to the amount of damages, there is no
genuine issue.
3. 3. Motion shall be served at least 10 days before the time specified for the hearing.
1. 4. May be asked for by a party seeking to recover upon a claim, counterclaim, cross-claim or to obtain a declaratory relief.
5. Although Rule does not specifically provide, also unavailable in actions for annulment of and declaration of nullity of marriage, and for legal separation since Sec. 1
refers to actions “to recover upon a claim”, or to recover a debt or a liquidated demand for money, or “to obtain declaratory relief.”
1. 1. The date of the finality of the judgment or final order shall be deemed to be the date of its entry. The judgment or final order shall be entered by the clerk in
the book of entries of judgments if no appeal or motion for new trial or consideration is filed within 15 days
2. 2. Several Judgments
In action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others.
1. 3. Separate judgments
Judgment rendered to dispose of one of the several claims for relief presented in an action, made at any stage, upon a determination of the issues material to a
particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, which terminates such claim. Action shall
proceed as to other claims
1. 1. Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution.
2. 2. Grounds: Motion for New Trial
à Requisites:
Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law, with express
reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings.
5. Pro forma motion for new trial or reconsideration shall not toll the period for appeal.
6. No second motion for reconsideration allowed. Second motion for new trial must be based on a ground not existing or available when the first motion was made,
which may be filed during the remainder of the 15-day period.
1. 1. Petition for relief from judgment filed within 60 days after learning of judgment and not more than 6 months after such judgment
à Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s good or substantial cause of action or defense
1. 2. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another.
2. 3. Grounds:
1. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal
à For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party’s evidence.
1. 4. After petition is filed, court shall order adverse parties to answer within 15 days from receipt. After answer is filed or expiration of period therefor, court shall
hear the petition.
2. 5. If granted, judgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give
due course to appeal.
On motion with notice, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been
duly perfected.
à For so long as there is a certificate of entry of judgment, execution may already be issued by the court of origin or directed to do so by the CA.
1. 2. Discretionary execution – pending period to appeal or during appeal; may issue only upon good reasons to be stated in a special order after hearing.
1. By trial court – even after the perfection of the appeal for so long as the motion for execution was filed while the TC has jurisdiction over the case and is in
possession or the records, upon motion of the prevailing party with notice to the adverse party
2. Appellate court – after the TC has lost jurisdiction
à Example:
BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.
à Execution with respect to appealed cases- there is no need to await remand of the records.
à Execution with respect to consequential and exemplary damages should be postponed until such time as the merits of the case have been finally determined in the
regular appeal, as the amounts remain uncertain and indefinite pending resolution.
3. a. Motion for execution of final and executory judgment should be served on adverse party and set for hearing;
b. In case of appeal, motion is filed with court of origin supported by certified true copies of final judgment of appellate court.
3. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. 24-94, 4/18/94)
4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)
5. A final and executory judgment may be executed on motion within 5 years from entry. May be revived and enforced by action after lapse of 5 years but before 10
years from entry. Revived judgment may be enforced by motion within 5 years from entry and thereafter by action before barred by statute of limitations – file
motion within 10 years from the finality of the revived judgment.
6. Execution in case of party’s death:
1. Against his executor, etc. if the judgment be for recovery of real or personal property or the enforcement of a lien thereon.
2. If death after execution is actually levied upon his property, it may be sold for satisfaction of the obligation.
à If the judgment obligor dies after the entry but before levy, execution will issue if it be for the recovery of real or personal property. However, if judgment is for a
sum of money, and the judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate.
1. Shall issue in the name of the Republic of the Phils from court which granted the motion
2. State the name of the court, case number and title, dispositive portion of the judgment order
3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms
1. If judgment against property of the judgment obligor – out of real or personal property with interest
2. If against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor – out of
that property, with interest
3. If for sale of real or personal property – to sell property, describing it and apply the proceeds in conformity with judgment.
4. If for delivery of possession of property – deliver possession of the same to the party entitled to it, describing it, and to satisfy any costs, damages, rents, or profits
covered by the judgment out of the personal property of the person against whom it was rendered, and out of real property if sufficient personal property cannot
be found.
5. In all cases, writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of date of issuance of writ, aside from
principal obligation.
à Judgment obligor is given option to choose which property may be levied on sufficient to satisfy the judgment.
1. Family home as provided by law, homestead in which he resides, and land necessarily used in connection therewith;
2. Tools and implements used in trade, employment, or livelihood;
3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;
4. Necessary clothing and articles for ordinary personal use, excluding jewelry;
5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;
6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding P300,000;
7. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he earns his living;
8. Salaries, wages, or earnings for personal services within the 4 months preceding the levy which are necessary for the support of the family;
9. Lettered gravestones;
10. Money, benefits, annuities accruing or in any manner growing out of any life insurance;
11. Right to receive legal support or any pension or gratuity from the government;
12. Properties especially exempted by law.
à Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of mortgage.
à Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thus not claim it.
1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the sheriff or officer;
2. Amount of bond not less than value of property levied on;
3. Sheriff not liable for damages if bond is filed;
4. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a separate action.
rd
5. 3 Party claimant may vindicate his claim to property levied in a separate action because intervention is no longer allowed since judgment already executory; in
rd
preliminary attachment and replevin, 3 party claimant may vindicate his claim to the property by intervention since the action is still pending.
1. Judgment obligor or his successor in interest in the whole or any part of the property;
2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold subsequent to the lien under which the property was sold. (Redeeming
creditor is termed a redemptioner).
12. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his
purchase, with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest on said amount at 1% per month.
Redemptioners have one year to redeem from the date of registration of the certificate of sale. They may also redeem beyond one-year period within 60 days after the
last redemption, with 2 % interest on the sum to be paid on the last redemption. The judgment obligor’s right to redeem within 60 days from last redemption is
limited to the one-year period, beyond which he can no longer redeem.
à Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as these belong to the judgment obligor until the expiration of the
period of redemption.
1. Improperly issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties renders execution inequitable
7. Controversy was never validly submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against property exempt from execution
10. Ambiguity in the terms of the judgment
18. SPECIAL JUDGMENT – requires the performance of any other act than the payment of money or the sale or delivery of real or personal property.
20. When court may order execution even before an executory judgment and pending an appeal
1. a. Lapse of time would make the ultimate judgment ineffective;
2. b. Appeal is clearly dilatory;
3. c. Judgment is for support and the beneficiary is in need thereof;
4. d. Articles subject of the case are perishable;
5. e. Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the action;
6. f. Movants were in extreme need of the premises subject of the suit and the bond to answer for damages in case of reversal on appeal (supersedeas bond)
was posted by them;
7. g. Judgment debtor is in imminent danger of insolvency;
8. h. Prevailing party is of advanced age and in a precarious state of health and the right in the judgment is non-transmissible being for support;
9. i. Prevailing party posts sufficient bond to answer for damages in case of reversal of judgment
à But in most cases, the mere filing of a bond is not sufficient justification for discretionary execution.
22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or other incorporeal property in the hands of third persons; merely sets
apart such funds but does not constitute the creditor the owner of the garnished property.
1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to which MTC pertains. File notice of appeal with the MTC which
rendered decision appealed from within 15 days after notice of such judgment.
2. Record on appeal is filed within 30 days and required only for special proceedings
3. Appellate docket fees paid to clerk of court of MTC – payment not a condition precedent for perfection of appeal but must nonetheless be paid within the period for
taking appeal;
4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:
1. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has original jurisdiction;
2. If reversed, the case shall be remanded to the MTC;
3. If the first level court tried the case on the merits without jurisdiction, the RTC should not dismiss the case but shall decide it in the exercise of original jurisdiction.
Reference:
DEC 19
Posted by Magz
Rule 21 Subpoena
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal institution shall be brought outside said institution for
appearance or attendance in any court unless authorized by the SC.
1. It is unreasonable or oppressive
2. The articles sought to be produced do not appear to be relevant
3. Person asking for subpoena does not advance cost of production
1. The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention
prisoner and no permission is obtained from the court in which his case is pending
à This is known as the “viatory right” of the witness; NOTE, however, that the right is available only in CIVIL cases
2. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
1. 5. Service of subpoena made in the same manner as personal or substituted service of summons.
2. 6. Person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena.
3. 7. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which subpoena issued.
1. 1. Computing for any period of time: day of the act or event from which designated period of time begins to run is to be excluded and the date of performance
included.
2. 2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, the time shall not run until the next working day.
3. 3. If there is effective interruption of period, it shall start to run on the day after notice of the cessation of the cause of the interruption. The day of the act that
caused the interruption is excluded in the computation of the period.
1. Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the action
2. Taken without leave after an answer has been served
3. Upon the instance of any party
4. May be deposition upon oral examination or written interrogatories
Depositions Affidavits
à Any part or all of a deposition which is admissible in evidence may be used against any party who was present or represented during the taking of the deposition or
who had notice thereof as follows:
1. Witness is dead;
2. b. Witness resides at a
distance more than 100 km
from place of trial, UNLESS
absence procured by party
offering the deposition
3. c. Witness is unable to
testify because of age, sickness,
infirmity, or imprisonment;
4. d. Party offering the
deposition has been unable to
procure the attendance of the
witness by subpoena; OR
5. e. Other exceptional
circumstances make it
desirable to allow deposition to
be used.
à If only part of the deposition is introduced, adverse party may require that all of it which is relevant to the part introduced be introduced.
1. Judge
2. Notary public
3. Any person authorized to administer oaths if the parties so stipulate in writing
1. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul, consular agent of the Phils
1. Before such person or officer as may be appointed by commission or under letters-rogatories
2. Any person authorized to administer oaths if the parties so stipulate.
Commission – addressed to any authority in a foreign country authorized therein to take down depositions; the taking of such depositions is subject to the rules laid
down by the court issuing the commission
Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the depositions is subject to the rules laid down by such foreign judicial
authority.
à Party desiring to take such deposition shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and
the name and descriptive title of the officer before whom the deposition is to be taken;
à Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter
1. As to notice – waived unless written objection is promptly served upon the party giving the notice
2. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence
3. As to competency or relevancy of evidence – NOT waived by failure to make them before or during the taking of the deposition, unless ground is one which might
have been obviated or removed if presented at that time
4. As to oral exam and other particulars – Errors occurring at the oral exam in the manner of taking the deposition, in the form of questions and answers, in oath or
affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable
objection is made at the taking of the deposition.
5. As to form of written interrogatories – waived unless served in writing upon party propounding them within the time allowed for serving succeeding cross or other
interrogatories and within 3 days after the service of the last interrogatories authorized.
6. As to manner of preparation – errors as to manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable
promptness after such defect is, or with due diligence might have been, ascertained.
à A deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. IN fact, the rules on criminal practice – particularly on
the defense of alibi – states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witness within the time
provided for filing a pre-trial motion.
DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal.
A person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Phils may file a verified
petition in the court of the place of the residence of any expected adverse party, which petition shall be entitled in the name of the petitioner and shall show:
1. That petitioner expects to be a party to an action in a court of the Phils but is presently unable to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;
4. The names or description of the persons he expects will be the adverse parties and their addresses so far as known;
5. The name and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each.
1. 2. Use of deposition
If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving the same subject
matter subsequent brought in accordance with the provisions of Rule 23.
1. Interrogatories and the answers thereto should be filed in court and served on adverse parties, so that the answers may constitute judicial admissions.
2. Effect of failure to serve written interrogatories – a party not served with such may NOT be compelled by the adverse party to give testimony in open court or
deposition pending appeal.
A written request for the admission of the other party of the genuineness of any material or document or request for the truth of any material and relevant matter of
fact set forth in the request may be filed and served upon the other party at any time after issues have been joined.
1. 2. Implied admission
Each of the matter requested to be admitted shall be deemed admitted within a period designated in the request, which shall not be less than 15 days after service
thereof or within such further time as the court may allow on motion, UNLESS, party requested serves upon the party requesting a sworn statement either specifically
denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.
1. 3. Effect of admission
Admission is only for the purpose of the pending action and shall NOT constitute an admission for any other person nor may it be used against him in any other
proceeding.
1. 4. A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be
permitted to present evidence thereon,
1. Any party may move for the court in which the action is pending to order any party to:
1. Produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, not privileged, which:
1. Constitute or contain evidence material to any matter involved in the action AND
2. Are in his possession, custody or control.
3. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation thereon.
2. The order:
1. Shall specify the time, place and manner of making the inspection and taking copies AND
2. May prescribe such terms and conditions which are just.
1. The refusing party or his counsel to pay the expenses incurred in obtaining the order, including the attorney’s fees (if it finds the refusal to answer without
substantial justification)
2. The proponent or his counsel to pay the expenses incurred in opposing the application, including attorney’s fees (if it finds the application to be without substantial
justification)
2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court, the refusal may be considered contempt of that court.
1. That the matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to
be established.
2. The disallowance of the disobedient party’s claims
3. The prohibition of the disobedient party to present evidence
4. The striking out of the pleadings or parts thereof
5. The dismissal of the action or parts thereof
6. Rendering judgment by default against the disobedient party OR
7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination.
5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule.
1. 1. Order of trial
Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:
1. 2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the parties so agree in writing, the court may
delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk shall have no power to rule on objections to any question or to the
admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from the termination of the
hearing.
Reference:
DEC 19
Posted by Magz
Rule 11 When to File Responsive Pleadings
1. 1. Answer to complaint – 15 days from service, unless different period fixed by the courts;
2. 2. Answer of defendant foreign private juridical entity – when service of summons is made on the government official designated by law, answer to be filed
within 30 days from receipt of summons by such entity.
3. 3. Answer to amended complaint – if amended as a matter of right, 15 days from being served with copy thereof
à If amended not as a matter of right, 10 days from notice of order admitting the same
à Answer earlier filed may be answer to amended complaint, if no new answer is filed
1. 1. Bill of particulars
1. Period of filing motion – before responding to a pleading; if pleading is a reply, within 10 days from service thereof;
2. Order for bill must be complied with in 10 days from notice OR period fixed by court
3. After service of bill or denial of motion – party has balance of time he was entitled to file responsive pleading, but not less than 5 days
à Motion for Bill of Particulars may NOT call for matters which form part of the proof of the complaint. Thus, motion should not be granted if the complaint, while not
very definite, nonetheless already states a sufficient cause of action.
Rule 13 Filing and Service of Pleadings, Judgments and Other Papers
à Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not
done personally.
1. Personal
2. Registered mail
3. Publication (if summons by publication)
1. 1. Contents of summons
2. 2. Kinds of service of summons:
3. Handing a copy to the defendant in person; OR
1. If he refuses to receive and sign for it, by tendering it to him
2. Substituted:
1. Leave copies at his residence, with person of suitable age and discretion residing therein; OR
2. Leave copies at defendant’s office/regular place of business, with competent person in charge thereof.
3. 3. By whom served:
4. 4. When extraterritorial service allowed:
5. 5. Kinds of extra territorial service
6. 6. When service by publication in a newspaper of general publication allowed:
1. Personal:
3. By publication
1. Sheriff
2. Other proper court officer
3. Any suitable person specially authorized by the judge
1. Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s personal status
2. Subject of action is property within the Philippines in which the defendant has or claims a lien or interest
3. Where relief demanded consists in whole or in part in excluding the defendant from any interest in such property
4. When property of defendant has been attached within the Philippines
1. Personal service
2. Publication and summons sent by registered mail to last known address
3. Any other matter the court may deem sufficient
1. 7. Service upon private domestic juridical entity – refers to corporation, partnership, or association organized under Phil. Laws with a juridical personality:
2. 8. Service upon private foreign juridical entity transacting business in the Phils:
1. President
2. Managing partner
3. General manager
4. Corporate secretary
5. Treasurer
6. In-house counsel
à Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. It should be noted that
when the appearance of the defendant is precisely to object to the jurisdiction of the court over his person, it cannot be considered as an appearance in court.
1. Ex parte motion
2. Urgent motion
3. When court sets hearing on shorter notice for good cause
4. Motion for summary judgment (must be served at least 10 days before the hearing)
à A prudent judge would, in the absence of the opposing party in the hearing of a motion, inquire from the other party or inquire from the records the proof of
the service of notice rather than proceed with the hearing. He should not rely on a party’s undertaking to notify the adverse party of a scheduled hearing. The judge
must demand what the rule requires, i.e., proof of such notice on the adverse party. Otherwise, a contentious motion should be considered a mere scrap of paper
which should not have even been received for filing.
à Subsequent service of the motion on the adverse party may be considered substantial compliance with the Rule 15, § 6. Failure to attach to the motion proof of
service thereof to the adverse party is not fatal when the adverse party had actually received a copy of the motion and was in fact present in court when the motion
was heard.
1. 1. Motion to Dismiss must be filed within the time for and before the filing of an answer to complaint.
2. 2. Grounds for motion to dismiss:
1. Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in motion to dismiss of other grounds aside from lack of jurisdiction over the
person does NOT constitute a waiver of the said ground or voluntary appearance;
2. Court has no jurisdiction over the subject matter of the claim;
3. Venue is improperly laid;
4. Plaintiff has no legal capacity to sue;
5. There is another action pending between the same parties for the same cause;
1. Identity of parties/interest
2. Identity of rights asserted and prayed for/relief founded on the same facts;
3. Identity of the 2 cases (such that judgment in one would amount to res judicata in the other)
à The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.
3. Actions that court may take on a Motion to Dismiss:
4. If denied, defendant must file answer within the balance of the 15-day period, but not less than 5 days from the time he received notice of the denial;
5. Subject to the right to appeal, dismissal based on the following grounds will be bar to refiling:
6. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.
à A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The
admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere
epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.
1. Notice of dismissal any time before service of the answer or a motion for summary judgment;
nd
à Dismissal is without prejudice EXCEPT on 2 notice of dismissal, which operates as adjudication on the merits when filed by same plaintiff who has once dismissed
an action based on or including said claim.
1. If answer or motion for summary judgment already served, dismissal by a Motion for Dismissal, which shall require approval of the court; shall be without
prejudice unless otherwise specified by the court
à If counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion to dismiss, dismissal is limited to the complaint; dismissal is
without prejudice to defendant’s right to prosecute counterclaim in a separate action or, if he makes a manifestation within 15 days from notice of the motion, to
prosecute CC in same action.
1. 2. Dismissal due to plaintiff’s fault – the following must be without justifiable cause
1. If plaintiff fails to appear on the date of presentation of his evidence in chief;
2. Plaintiff fails to prosecute claim for an unreasonable length of time
3. Plaintiff fails to comply with the Rules of Court or any order of the court
à Unless otherwise declared by the court, dismissal has effect of adjudication upon the merits.
RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s motion or due to plaintiff’s fault does not necessarily carry with it the
dismissal of the compulsory CC; defendant is also given option to prosecute the same in same or separate action.
rd
1. 3. Dismissal of counterclaim, cross-claim, or 3 -party complaint – must be made by claimant before a responsive pleading or a motion for summary judgment is
served, or if there is none, before the introduction of evidence.
1. What to consider in pre-trial (with notice to counsel or party without counsel)
1. 2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendant’s counterclaim, it will be the
latter’s duty to set the pre-trial.
2. 3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte and
the court to render judgment on basis thereof.
3. 4. Non-appearance of party excused only if:
1. 5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial. Failure to file brief has same effects as failure to appear at
pre-trial.
2. 6. Proceedings recorded, and court shall issue an order reciting in detail matters taken up.
1. Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose trials adjourned or postponed and those with motions set for hearings.
1. 2. Preference given to habeas corpus, election cases, special civil actions and those so required by law.
Reference:
DEC 19
Posted by Magz
Rule 1 General Provisions
1. Civil action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong; may be ordinary or special
Criminal action – one by which the state prosecutes a person for an act or omission punishable by law
Special proceeding – remedy by which a party seeks to establish a status, a right, or a particular fact
2. Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory character, and whenever practicable and convenient
1. Election cases;
2. Land registration;
3. Cadastral proceedings;
4. Naturalization proceedings; and
5. Insolvency proceedings
1. Cause of action – an act or omission by which a party violates the right of another
1. The party joining the causes of action shall comply with the rules on joinder of parties;
2. The joinder shall NOT include special civil action or actions governed by special rules;
3. Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the RTC provided one of the
causes of action falls within the jurisdiction of the RTC and the venue lies therein;
3. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
4. Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion or motu proprio, be severed and proceeded with separately.
Rule 3 Parties to Civil Actions
2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground for dismissal. Action continues until entry of final judgment. Any
judgment against estate of deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved.
1. Right to relief arises out of the same transaction or series of transactions, whether jointly, severally, or in the alternative;
2. There is a question of law or fact common to all the plaintiffs and defendants;
3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.
1. Subject matter of the controversy is one of common or general interest to many persons;
2. Parties affected are so numerous that it is impracticable to bring them all to the court;
3. Parties bringing the class suit are sufficiently numerous or representative of the class and have the legal capacity to file the action.
5. Transfer of Interest
à Action may be continued by or against the original party, unless the court, on motion, directs the transferee to be substituted in the action or joined with the
original party; however, if transfer is made before commencement of the action, the transferee must necessarily be the party, since only he is the real party in interest.
1. Venue of real actions – in the proper court which has jurisdiction over the area wherein real property involved or a portion thereof is situated.
2. Venue for forcible entry and detainer actions – in the MTC of the municipality or city wherein the real property or a portion thereof is situated.
3. Venue of personal actions – where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the
case of a non-resident defendant where he may be found, at the election of the plaintiff.
NOTE: “residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.
1. Action Affects the Plaintiff’s Personal Status – in the court of the place where the plaintiff resides.
2. Action Affects Any Property of the Defendant in the Philippines – where the property or any portion thereof is situated or found.
1. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article 360 of RPC provides specific rules on
venue); OR
2. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.
à In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real
property involved.
1. The procedure in the MTCs shall be the same as that in the RTC.
1. Where a particular provision expressly or impliedly applies only to either of said courts.
2. In civil cases governed by the Rule on Summary Procedure.
1. Negative Defense – specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause of action.
2. Affirmative defense – an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him. Includes:
1. Fraud
2. Statute of limitations
3. Release
4. Payment
5. Illegality
6. Statue of frauds
7. Estoppel
8. Former recovery
9. Discharge in bankruptcy
10. Any other matter by way of confession or avoidance.
1. Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim;
rd
2. Does not require for its adjudication the presence of 3 parties of whom the court cannot acquire jurisdiction; and
3. Must be within the jurisdiction of the court both as to the nature and the amount, except that in an ORIGINAL action in the RTC, the counterclaim may be
considered regardless of the amount.
A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may
only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief. MOREOVER, the amount of
judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction
over the counterclaim in excess of the jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess
of the jurisdiction of the trial court is void.
A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior court, will only be considered permissive. Hence, fact that it is not
set-up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it.
1. Caption
2. Title
3. Body divided into headings and paragraphs
4. Body divided into headings and paragraphs
5. Signature and address
6. Verification in some cases
7. Certification against Forum-Shopping: Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification
annexed and filed therewith:
1. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency; to the best of his knowledge no
such other claim or action pending;
2. If there is such other pending action, a complete statement of the present status thereof;
3. If he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 5 days therefrom to the court where he filed
his complaint.
NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE
WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL
WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT.
1. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association that is
made a party must be averred;
2. To raise an issue as to the legal existence of a party or the capacity of a party in a representative capacity, do so by specific denial, including such supporting
particulars as are peculiarly within the pleader’s knowledge.
1. 3. How to contest actionable document: Genuineness and due execution of instrument deemed admitted unless adverse party:
1. Party whose signature appears admits that he signed it, or that it was signed by another with his authority
2. Was in words and figures as set out at the time it was signed
3. Document was delivered
4. Any formal requisites required by law which it lacks are waived by him
à The following defenses are cut-off by admission of genuineness and due execution of the document:
1. Signature is a forgery
2. Signature is unauthorized
3. Corporation is not authorized under its charter to sign the instrument
1. Party charged signed the instrument in some other capacity than that alleged in the pleading setting it out
2. Document was never delivered.
3. 4. Specific Denial
1. Defendant must specify each material allegation of fact the truth of which he does not admit;
2. Defendant must set forth the substance of the matters upon which he relies to support his denial, whenever practicable;
3. If denying only part of an averment, he shall specify so much of it as is true and material and shall deny the remainder;
4. If defendant does not have knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state and this has effect of denial.
à Negative pregnant – a denial which at the same time involves an admission of the substantial facts in the pleading responded to.
5. Allegations not specifically denied, other than those as to amount of unliquidated damages deemed admitted.
1. General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived (Omnibus Motion Rule).
Exception: Court shall dismiss the claim, even without allegation in answer or motion to dismiss, if any of the following appear from the pleadings or the evidence on
record:
1. 2. Declaration of Default
1. Defendant entitled to notice of motion to declare him in default and of order of default;
2. Motion to set aside order of default may be filed after notice and before judgment;
3. Party may make motion, under oath, to set aside order of default upon proper showing that failure to answer was due to FAME;
4. Effect of order of default – party in default entitled to notice of subsequent proceedings but not to take part in trial;
5. Partial default – if several defending parties and not all in default, the court shall try the case against all upon the answers thus filed and evidence presented;
6. After declaration of default, court may render judgment on the basis of the complaint or require claimant to submit evidence;
7. Judgment against party in default shall not exceed the amount or differ in kind from that prayed for nor award unliquidated damages;
8. No defaults in action for annulment or declaration of nullity of marriage or for legal separation.
à Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss, since the same is not a “responsive pleading.”
1. 2. Substantial amendments may be made only with leave of court, except as provided above.
2. 3. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. (NOT
judicial admissions anymore; thus, must be formally offered)
3. 4. Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived.
Amended Supplemental
Refers to facts existing at the time of Refers to facts arising after the filing
the commencement of the action of the original pleading
Results in the withdrawal of the Merely an addition, and does NOT
original pleading result in the withdrawal of, the
original pleading
Can sometimes be made as a matter of Always filed with leave of court
right
Reference:
DEC 19
Posted by Magz
Appeals
Rules 40 – 56
NOTES ON APPEAL:
Appeal is a matter of right created by statutes. Once denied, one can avail of the constitutional right to due process
As the case goes higher in court hierarchy, court deal with evidence as part of record, hence becomes farther and farther from the source. For this reason, Trial
courts are accorded high respect in their findings of questions of fact.
Questions of law: characterization of facts as shown by the evidence, correct characterization of fact based on a provision of law. Which law is applicable given a set
of circumstances
Normally:
Third appeal – discretionary (however, if originating fr. MTC, may not be discretionary)
Questions of jurisdiction – file an entirely new case; subject matter of special civil actions
Issue of jurisdiction – file entirely a different case by filing special civil action attaching as a ground, abuse of discretion
Rule 39
Rules 62 – 71
Special civil action for certiorari – Rule 65 – title does not change because it is an entirely different case
On old rule, the Record on Appeal are merely summary of proceedings while the new in the rules, the entire records are elevated to the appellate court, esp. if only
one appeal is possible.
Remedies where more than 1 appeal is allowed e.g., Special Civil Action of Eminent Domain (Mun of Biñan)
2 orders:
(1) condemnation of the property, Q of just taking, RTC original and exclusive jurisdiction
Note: In the appeal of the 1st order, the court cannot elevate the entire records since the court must still rule on the 2nd order. The appellant summarizes records on
appeal which must be approved by the RTC then such will be elevated with exhibits and relevant documents. Therefore Record on Appeal (in Eminent Domain)
substitutes the entire records.
b. records on appeal – 30 days appellee can object within 5 days only upon approval of record.
Ordinary civil actions – record on appeal; in situations when you can take multiple appeals
SC
Original jurisdiction MTC- mode: only appeals by certiorari Rule 45; discretionary on the part of the SC; raise only questions of law
Stay the judgment of the CA; [15] extendible for compelling reasons for 30 days
CA
Mode: Petition for review by cert; [15] extendible for 15 days and no second extension unless compelling reasons [15 days]; must raise questions of fact with questions
of law or questions of fact alone (Habaluyas case: a Bar Q, classmates).
Rule 42- file petition not with court of origin but with the CA; summarizes the case, facts, the issues and puts in the arguments.
RTC
Ordinary
Avail; raise Q fact & Q law Special civil actions- eminent domain
partition
now: an appeals bond is not Special proceedings- only under Rule 109
required
MTC
Rule 43; in cases originating from Quasi-Judicial Agency, the CA having appellate jurisdiction, the CA does not stay the execution of Judgment
Quasi-judicial
Agency
From RTC to SC possible only when questions of law are raised. [15] days extendible for 30 days
SC
CA
Appeal by certiorari
CA – Court of origin
Or Annulment of judgment
Nullification of judgment
Habeas corpus
SC
Mode: Appeal by cert.; raise only Ql; [15] extension [30 days;
RTC
45
QJA CA SC
43 45
APPEAL (PROCESS)
MTC } Ordinary appeal by filing notice of appeal with court of origin within
RTC } 15 days from notice of order Rule 41
Ordinary appeal
For defendants that did not file an appeal: when the period to appeal had lapsed
From date of perfection of appeal- court loses jurisdiction over the parties
After appeal is perfected- court of origin may still act prior to transmission of records
Approve compromises
Appellate Court – has jurisdiction to dismiss the case only for reasons provided in ROC, it is nor discretionary on their part
Nothing is filed at the court of origin; always filed with the appellate court; summarizes facts
Court has the option to dismiss the petition outright not on the procedural ground but on the merits because grounds are not substantions (Rule 42, Rule 43)
Should be written by the judge; but burden of drafting the record falls on the appellant
TC losses jurisdiction, with respect to the party filing the appeal, upon its approval of the Record of Appeal
Other party may object within 5 days from receipt of record on appeal
After approval; notice, record on appeal, exhibits, etc. are elevated to the appellate court
Eminent Domain
Concept of Record of Appeal (Summary of the case, looks like a Pre-Trial Brief)- should be written by the Judge but the burden falls on the appellant, subject to
approval of the court. Period: within 30 days
MODES OF APPEAL
43
Appeal by Certiorari
Concept of an APPEAL
Subject matter
Of jurisdiction
It is not available if there is already a final judgment (Eternal Gardens) or a final order
PROVISIONAL REMEDIES
Purpose To have property of To require a party or a To place the property To recover possession of To compel adverse party to
adverse party attached as court, agency or a person subject of an action or personal property provide support while
security for the to refrain from doing a proceeding under the action is pending in court
satisfaction of judgment particular act or acts or to control of a third party for
that may be recovered in require the performance of its preservation and
cases falling under Sec 1, a particular act or acts. administration litis
Rule 57. pendentia
When At the commencement of At any stage prior to the At any time prior to At the commencement of At the commencement of
applied/granted the action or at any time judgment or final order satisfaction of judgment the action but before the action or at any time
prior to the entry of answer is filed prior to the judgment or
judgment final order
How applied File affidavits and File verified application File verified application File affidavits and File verified application;
for applicant’s bond and applicant’s bond; if and applicant’s bond; applicant’s bond bond not required
application is included in application may also be
the initiatory pleading, the included in initiatory
adverse party should be pleading in actions for
served with summons foreclosure of mortgage
together with a copy of the
initiatory pleading and the
applicant’s bond
Who may grant Court where action is Only the Court where the Court where action is Only in the court where Court of origin and
pending, the CA or the SC action is pending; Lower pending, the CA or the SC action is pending appellate court. (See Ramos
even if action is pending in Court, Ca or SC provided even if action is pending in v. CA)
the lower court. action is pending in the the lower court. Appellate
same court which issues court may allow
the injunction. application for
receivership be decided by
the court of origin.
Requisites for Sufficient cause of
granting action
application Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite
Injunction/Preliminary
Mandatory Injunction
Case is covered by
section 1 Rule 57
No other sufficient
security for the claim
exists
Amount due to
applicant or value of
property he is entitled
to recover is equal to
the sum for which the
order of attachment is
granted
Applicant is entitled to
the relief demanded
Act/s complained of
would work injustice to
the applicant if not
enjoined
Acts sought to be
enjoined probably
violates applicants
rights respecting the
subject of the action or
proceeding
Applicant has interest
in the property or fund
subject matter of the
action or proceeding
Property or fund is in
danger of being lost
removed or materially
injured
Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite
Injunction/Preliminary
Mandatory Injunction
Appointment of
receiver is the most
convenient and feasible
means of preserving,
administering or
disposing of the
property in litigation
Applicant is the owner
of the property claimed
or is entitled to the
possession of the same
Property is wrongfully
detained by the adverse
party
Property is not
distrained or taken for
a tax assessment or a
fine pursuant to law
Affidavits, depositions
or other documents
should show, at least
provisionally, that the
applicant is entitled to
receive support
Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite
Injunction/Preliminary
Mandatory Injunction
Bond Bond executed to the adverse party in the amount fixed by the court to cover the costs Bond executed to the No bond required
requirement which may be adjudged to the adverse party and all damages which he may sustain by adverse party in double
reason of the granting of provisional remedy prayed for, if the court shall finally the value of the property
adjudge that the applicant was not entitled thereto for the return of the
property to the adverse
party if such return be
adjudged, and for the
payment to the adverse
party of such sum as he
may recover from the
applicant of the action
Discharge of By counter-bond: Party against whom the provisional remedy is availed of, may move for the discharge of the Not applicable.
remedy provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or equal to the
value of the property if with respect to a particular property to secure the payment of any judgment that the
adverse party may recover in the action
Cash deposit may be made Filing of counter-bond Amount of counter-bond
in lieu of the counter-bond made only upon showing should also be double the
that the issuance or value of the property
continuance thereof would
cause irreparable damage
to the party or person
enjoined while the
applicant can be fully
compensated for such
damages as he may suffer ;
counter-bond alone will
not suffice to discharge the
injunction.
Preliminary Attachment Preliminary Receivership Replevin Support Pendente Lite
Injunction/Preliminary
Mandatory Injunction
Damages in Owner of property attached must file before trial or before perfection of appeal application for damages When judgment or final
case applicant Party who availed of provisional remedy and his surety or sureties must be notified , showing right to damages order finds the person who
for any of the and amount thereof has been providing
provisional Damages awarded only after proper hearing; included in judgment of the main case support pendente lite not
remedies not liable therefor:
entitled thereto If judgment of appellate court is favorable to the party against whom provisional remedy was effected:
or for any Court shall order the
irregularity in Application must be filed with the appellate court before the judgment of the appellate court becomes executory recipient to return the
the Appellate court may allow application to be heard and decided by the trial court amounts already
procurement of received with interest
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: from the dates of actual
provisional
remedy payment
Adverse party may recover damages in the same action
Recipient may obtain
reimbursement from
the person legally
obliged to give support
(separate action must
be filed for the purpose)
If recipient fails to
reimburse the amount,
person who provided
the same may seek
reimbursement from
the person legally
obliged to give the
support (separate action
must be filed for the
purpose)
Purpose Compel conflicting Declaration of Correcting errors of Remove a Taking of private Satisfy Division of real R
claimants to litigate rights and duties jurisdiction usurper property for creditor property among
their claims among (reformation of public use based upon the parties
themselves instrument, security claiming rights
quieting of title, thereto
consolidation of
ownership)
Requisites Conflicting claims Person has Certiorari: A person Real
exist upon the interest under usurps, property is
same subject a deed, will, Any intrudes into, owned by
matter contract or tribunal, or unlawfully several
Such claims are other written board or holds or persons
made upon a instrument officer exercises Person
person who claims Person’s exercising office, claiming
no interest in the rights are judicial or position, or right to the
subject matter affected by a quasi franchise property
statute, judicial A public does not
executive functions officer does want co-
order or has or suffers an ownership
regulation, rendered act which, by to continue
ordinance, or judgment the provision A person
any other Such of law, enjoys
governmental tribunal, etc. constitutes a lawful
regulation has acted ground for possession
No breach or without or the forfeiture of the
violation of in excess of of his office; property
its
jurisdiction
ju sd ct o
the rights has An Another
yet occurred Prohibition: association person
Judgment or Proceedings acts as a acquires
final order in a tribunal, corporation possession
has been corporation, within the of the same
rendered by board, Philippines property by
the COMELEC officer or without being force,
or the COA person legally intimidation,
Aggrieved exercising incorporated threat,
party wants judicial, or without strategy or
the judgment quasi lawful stealth
or final order judicial or authority so A person
reviewed by a ministerial to act lawfully
higher court functions Property takes
are owned by a possession
conducted private party of the land
without or Taking by at the
in excess of government beginning
its for public use Such lawful
jurisdiction Just possession
compensation has ended
Mandamus: A person A demand to
owes another vacate has
When any a loan been made
tribunal, Loan is
corporation, secured by
board, mortgage of
officer or real property
person Debtor
unlawfully defaulted in
neglects payment
performance Final demand
of an act has been
which the made
law
specifically
enjoins
Common
requisite:
There is no
appeal or
any plain,
speedy, and
adequate
remedy in
the ordinary
course of
law
DEC 19
Posted by Magz
Sec. 1. Application. – At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application of support
pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other
authentic documents in support thereof.
It is a provisional remedy which grants a person entitled to support an amount enough for his “sustenance, dwelling, clothing, medical attendance, education and
transportation” (Art. 194, Family Code) while the action is pending in court. It may be availed of by any of the parties in the action for support or in a proceeding
where one of the reliefs sought is support for the applicant. The capacity of the person who will provide the support and the needs of the one entitled to be supported
are taken into consideration in setting the amount of support to be granted.
Support pendente lite can be availed of at the commencement of the action or at any time before the judgment or final order is rendered in the action or proceeding.
The one claiming for support must establish before the court the relationship between the parties as to entitle one to receive support from the other.
1. The spouses;
3. Parents and their legitimate children and the legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
5. Legitimate brothers and sisters, whether of the full or half-blood. ( Art. 195, Family Code)
Sec. 2. Comment. – A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless
a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in
support thereof.
The application for support pendente lite is responded to not by an answer but by a verified comment accompanied by affidavits, depositions or other authentic
documents in support of the facts set forth in the comment.
Sec. 3. Hearing. – After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days
thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions.
Hearing on the application is mandatory. It shall be held not later than three (3) days from the receipt of the comment or from the expiration of the period to file the
same.
Sec. 4. Order. – The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the
probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the
amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or
means of the adverse party, and the terms of payment or mode for providing the support, If the application is denied, the principal case shall be tried and decided as early
as possible.
45 SCRA
Held: Where the trial court ruled that the claim of filiation and support has been adequately proven, alimony pendente lite can be validly granted pending appeal of
such decision.
Trial court’s refusal to grant support pendente lite does not deprive the appellate court the authority to grant the same especially so where, in view of the poverty of
the child, it would be a travesty of justice to refuse him support until the decision of the judge is sustained on appeal.
Reyes v. Ines-Luciano
81 SCRA
Facts:
Held: Where petitioner failed to present evidence on the alleged adultery of his wife when the action for legal separation is heard on the merits, the grant of support
pendente lite is valid. Adultery is a good defense and if properly proved and sustained will defeat the action. However, the alleged adultery of the wife must be
established by competent evidence. Mere allegation would not suffice to bar her from receiving support pendente lite.
In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the case, it being sufficient that the court ascertain
the kind and amount of evidence which it may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the merely provisional
character of the resolution to be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be
established by affidavits or other documentary evidence appearing in the record.
Sec. 5. Enforcement of order. – If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu propio or upon motion, issue an
order of execution against him, without prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice
and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide support.
Sec. 6. Support in criminal cases. – In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect
thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party
allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in accordance
with the procedure established under this Rule.
Sec. 7. Restitution. – When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order
the recipient thereof to return to the former the amounts already paid with legal interest from the 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 said amounts, the person who provided
the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.
Rule 36, Sec. 1. Rendition of final judgements and final orders. — A judgement or final order determining the merits of the case shall be in writing personally and
directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of court.
Rule 41, Sec. 1. Subject of appeal. – An appeal may be taken from a judgement or final order that completely disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
(b) An order denying a petition for relief or any similar motion seeking relief from judgement;
(e) An order denying a motion to set aside a judgement by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground
vitiating consent;
(g) A judgement or final order for or against one or more of several parties or in separate claims, counter-claims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and
In all the above instances where the judgement or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
Facts: CA, in a resolution, dismissed petitioner Ceniza’s appeal on the ground of delayed filing of appellants’ brief. Issue here is WON this resolution was a final order?
Held: Yes. A final order or judgment is one w/c either TERMINATES the action itself or operates to vest some right in such a manner as to put out of the power of the
ct. making the order to place in the parties in their original conditions. A final order disposes of the whole subject matter or terminates proceedings/action, LEAVING
NOTHING TO BE DONE BUT TO ENFORCE BY EXECUTION. However, a final order is appealable.
KINDS
As to finality
Rendition of Judgement
Rule 40, Sec. 2. When to appeal. – An appeal may be taken within fifteen (15) days after notice to the appellant of the judgement or final order appealed from. Where
a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgement or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.
Rule 41, Sec. 3. Period of ordinary appeal – The appeal shall be taken within fifteen (15) days from notice of the judgement or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgement or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.
Rule 42, Sec. 1. How appeal taken; time for filing – A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate
jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other
lawful fees, depositing the amount of P 500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall
be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration
filed in due time after judgement. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs 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.
Entry of judgement
Rule 36, Sec. 2. Entry of judgements and final orders. – If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the
judgement or final order shall forthwith be entered by the clerk in the book of entries of judgements. The date of finality of the judgement or final order shall be
deemed to be the date of its entry. The record shall contain the dispositive part of the judgement or final order and shall be signed by the clerk, with a certificate that
such judgement or final order has become final and executory.
Rule 38, Sec. 3. Time for filing petition; contents and verification. – A petition provided for in either of the preceding sections of this Rule must be verified, filed within
sixty (60) days after the petitioner learns of the judgement, final order, or other proceeding to be set aside, and not more than six (6) months after such judgement or
final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied
upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.
Rule 39, Sec. 6. Execution by motion or by independent action. – A final and executory judgement or order may be executed on motion within five (5) years from the
date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgement may be enforced by action. The revived judgement may
also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.
Rule 39, Sec. 44. Entry of satisfaction of judgement by clerk of court. – Satisfaction of a judgement shall be entered by the clerk of court in the court docket, and in the
execution book, upon he return of a writ of execution showing the full satisfaction of the judgement executed and acknowledged in the same manner as a conveyance
of real property by the judgement obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgement
obligee or his counsel on the face of the record of the judgement.
Sec. 45. Entry of satisfaction with or without admission. – Whenever a judgement is satisfied in fact, or otherwise than upon an execution, on demand of the
judgement obligor, the judgement obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding
section, and after notice and upon motion the court may order either the judgement obligee or his counsel to do so, or may order the entry of satisfaction to be made
without such admission.
As to process of procuring
Rule 34, Sec. 1. Judgement on the pleadings. – Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading,
the court may, on motion of that party, direct judgement on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal
separation, the material facts alleged in the complaint shall always be proved.
Rule 33, Sec. 1. Demurrer to evidence. – After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on
appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence.
Summary Judgements
Rule 35
Sec. 1. Summary judgement for claimant. – A party seeking to recover upon a claim, counter-claim, or cross-claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgement in his favor upon all or
any part thereof.
Sec. 2. Summary judgement for defending party. – A party against whom a claim, counter-claim, or cross-claim is asserted or a declaratory relief is sought may, at any
time, move with supporting affidavits, depositions or admissions for a summary judgement in his favor as to all or any part thereof.
Sec. 3. Motion and proceedings thereon. – The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgement sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact
and that the moving party is entitled to a judgement as a matter of law.
Sec. 4. Case not fully adjudicated on motion. – If on motion under this Rule, judgement is not rendered upon the whole case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion, by examining the pleadings, and the evidence before it and by interrogating counsel shall ascertain what material
facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in
the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly.
Sec. 5. Form of affidavits and supporting papers. – Supporting and opposing affidavits shall be made on personal knowledge, shall set 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 true copies of all papers or parts
thereof referred to in the affidavit shall be attached thereto or served therewith.
Sec. 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or
solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt.
Rule 29, Sec. 3. Other consequences. – If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him
to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be
done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may
make such orders in regard to the refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from introducing evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgement by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except
an order to submit to a physical or mental examination.
Default Judgements
Rule 9, Sec. 3. Default; declaration of. – If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with
notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgement granting the
claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be
delegated to the clerk of court.
(a) Effect of order of default. – A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial.
(b) Relief from order of default. – A party declared in default may at any time after notice thereof and before judgement file a motion under oath to set aside the order
of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such
case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.
(c) Effect of partial default. – When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the
others fail to do so, the court shall try the case against all upon the answers thus filed and render judgement upon the evidence presented.
(d) Extent of relief to be awarded. – A judgement rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor
award unliquidated damages.
(e) Where no defaults allowed. – If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated.
Rule 18, Sec. 5. Effect of failure to appear. – The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal
of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the
plaintiff to present his evidence ex parte and the court to render judgement on the basis thereof.
Compromise Judgement
Rule 18, Sec. 5. Effect of failure to appear. – The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal
of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the
plaintiff to present his evidence ex parte and the court to render judgement on the basis thereof.
Rule 29, Sec. 5. Failure of party to attend or serve answers. – If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to
take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or
enter a judgement by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees.
As to parties
Rule 36, Sec. 3. Judgement for or against one or more of several parties. – Judgement may be given for or against one or more of several plaintiffs, and for or against
one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and
determine their ultimate rights and obligations.
Several Judgement
Rule 36, Sec. 4. Several judgements. – In an action against several defendants, the court may, when a several judgement is proper, render judgement against one or
more of them, leaving the action to proceed against the others.
Rule 9, Sec. 3 (c). Effect of partial default. – When a pleading asserting a claim states a common cause of action against several defending parties, some of whom
answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgement upon the evidence presented.
Rule 36, Sec. 6. Judgement against entity without juridical personality. – When judgement is rendered against two or more persons sued as an entity without juridical
personality, the judgement shall set out their individual or proper names, if known.
As to claims
Rule 36, Sec. 5. Separate judgements. – When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counter-claims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate
judgement disposing of such claim. The judgement shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining
claims. In case a separate judgement is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgement or judgements and may
prescribe such conditions as may be necessary to secured the benefit thereof to the party in whose favor the judgement is rendered.
Rule 31. Sec. 2. Separate trials. – The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counter-claim, or
third-party complaint, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party complaints or issues.
Rule 41, Sec. 1 (g). No appeal may be taken from: x x x x A judgement or final order for or against one or more of several parties or in separate claims, counter-
claims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and x x x x
As to how executed
Rule 39, Sec. 4. Judgements not stayed by appeal. – Judgements in actions for injunction receivership, accounting, support, and such other judgements as are now or
may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party.
Rule 39, Sec. 9. Execution of judgements for money, how enforced. –
(a) Immediate payment on demand. – The officer shall enforce an execution of a judgement for money by demanding from the judgement obligor the immediate
payment of the full amount stated in the writ of execution and all lawful fees. The judgement obligor shall pay in cash, certified bank check payable to the judgement
obligee, or any other form of payment acceptable to the latter, the amount of the judgement debt under proper receipt directly to the judgement obligee or his
authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said
amount within the same day to the clerk of court of the court that issued the writ.
(b) If the judgement obligee or his authorized representative is not present to receive payment, the judgement obligor shall deliver the aforesaid payment to the
executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if
the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the
locality. . The clerk of said court shall thereafter arrange for the remittance of the
deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgement obligee in satisfaction of the judgement.
The excess, if any, shall be delivered to the judgement obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case
shall the executing sheriff demand that any payment by check be made payable to him.
(b) Satisfaction by levy. – If the judgement obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the
judgement obligee, the officer shall levy upon the properties of the judgement obligor of every kind and nature whatsoever which may be disposed of for value and
not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the
judgement. If the judgement obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the judgement.
The sheriff shall sell only a sufficient portion of the personal or real property of the judgement obligor which has been levied upon.
When there is more property of the judgement obligor than is sufficient to satisfy the judgement and lawful fees, he must sell only so much of the personal or real
property as is sufficient to satisfy the judgement and lawful fees.
Real property, stocks, shares, debts, credits, and other personal property, may be levied upon in like manner and with like effect as under a writ of attachment.
(c) Garnishment of debts and credits. – The officer may levy on debts due the judgement obligor and other credits, including bank deposits, financial interests,
royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice
upon the person owing such debts or having in his possession or control such credits to which the judgement obligor is entitled. The garnishment shall only cover
such amount as will satisfy the judgement and all lawful fees.
The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgement obligor has
sufficient funds or credits to satisfy the amount of judgement. If not, the report shall state how much funds or credits the garnishee holds for the judgement obligor.
The garnished amount in cash, or certified bank check issued in the name of the judgement obligee, shall be delivered directly to the judgement obligee within ten (10)
working days from service of notice on the said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgement, the judgement obligor, if available, shall have the right to
indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgement obligee.
The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgement obligee.
Rule 39, Sec. 10. Execution of judgements for specific acts. –
(a) Conveyance, delivery of deeds, or other specific acts; vesting title. – If a judgement directs a party to execute a conveyance of land or personal property, or to
deliver deeds or other documents, or to perform any other specific act in connection therewith, and the party fails to comply within the time specified, the court may
direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by
the party. If real or personal property is situated within the Philippines, the court in lieu of directing conveyance thereof may by an order divest the title of any party
and vest it in others, which shall have the force and effect of a conveyance executed in due form of law.
(b) Sale of real or personal property. – If the judgement be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in
conformity with the judgement.
(c) Delivery or restitution of real property. – The officer shall demand of the person against whom the judgement for the delivery or restitution of real property is
rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgement
obligee; otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may
be reasonably necessary to retake possession, and place the judgement obligee in possession of such property. Any costs, damages, rents or profits awarded by the
judgement shall be satisfied in the same manner as a judgement for money.
(d) Removal of improvements on property subject of execution. – When the property subject of the execution contains improvements constructed or planted by the
judgement obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the
judgement oblige after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.
(e) Delivery of personal property. – In judgements for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the
party entitled thereto and satisfy any judgement for money as therein provided.
Special Judgements
Rule 39, Sec. 11. Execution of special judgements. – When a judgement requires the performance of any act other than those mentioned in the two preceding sections,
a certified copy of the judgement shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or
upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgement.
Local
Rule 39, Sec. 47. Effect of judgements or final orders. – The effect of a judgement or final order rendered by a court of the Philippines, having jurisdiction to pronounce
the judgement or final order, may be as follows:
(a) In case of a judgement or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgement or final order is conclusive upon the
title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or intestate.
(b) In other cases, the judgement or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation
thereto, 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 and under the same title and in the same capacity; and
(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 judgement or final order
which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.
Foreign
Rule 39, Sec. 48. Effect of foreign judgements or final orders. – The effect of a judgement or final order of a tribunal of a foreign country, having jurisdiction to render
the judgement or final order is as follows:
(a) In case of a judgement or final order upon a specific thing, the judgement or final order is conclusive upon the title of the thing; and
(b) In case of a judgement or final order against a person, the judgement or final order is presumptive evidence of a right as between the parties and their successors
in interest by a subsequent title.
In either case, the judgement or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law
or fact.
Rule 36 § 1. Rendition of judgment and final orders. A judgment or final order determining the merits of the case shall be:
(1) in writing
(3) stating clearly and distinctly the facts and the law on which it is based.
Only final orders and judgment are subjects of appeal. Interlocutory orders are not subject of appeal.
Book of entry of judgment – date of the lapse of the fifteen (15) days; not on the date of entry.
Entry of judgment – important for counting of petition for entry of judgment, among others.
Final judgment under new rules – that which can already be executed
Final & executory – even if ground is substantial can no longer be modified, except:
1. Clerical errors
4. Void judgment (Paluwagan and Vda de Macoy) a void judgment never prescribes.
Difference between Motion for Re-open and MNT (taken within the period for taking appeal):
Amendment of judgment
Facts: A Land Development Agreement was executed between Eternal & Mission. Mission owned the property & Eternal was to develop it into a memorial park.
Thereafter, a Deed of Absolute Sale w/ mortgage was executed. BUT Maysilo claimed ownership over the land. Thus, Eternal filed w/ the CFI a complaint for
interpleader vs. Mission & Maysilo Estate. It alleged that, in view of the conflicting claims & to protect its interests, defendants should be required to interplead &
litigate between themselves.
Mission filed a Motion for placing on judicial deposit the amounts due & unpaid fr. Eternal. Motion was DENIED. The contract was declared ineffective on the ground
that the subject matter of the sale was not existing.
Mission then filed a Motion to Dismiss the Interpleader. TC ordered Eternal to comply w/ the contract EXCEPT w/ regard to the interpleader of Maysilo Estate. Maysilo
filed Motion for Recon w/c was GRANTED by the TC. Hearings on the merits were ordered BUT Mission filed for Writ of Execution. This was DENIED. On appeal, CA
dismissed & this was affirmed by the SC. The order became final & executory.
In 1983, heirs of Singson spouses filed an action for quieting of title where Eternal & Mission were defendants. This case is still pending.
In the present case, Mission filed a petition for certiorari w/ the CA for the setting aside of RTC orders regarding the setting of the hearing on the merits. CA dismissed
BUT later on reversed. Eternal filed a Motion for Recon w/c was again DENIED.
Held: Courts have the power to amend their judgments, to make them conformable to the applicable jurisprudence PROVIDED said judgments ARE NOT YET FINAL. In
the CAB, Eternal admitted it still has to pay whoever will be declared as owner. Therefore, there was no plausible reason for petitioner’s objections to the deposit
order after having asked the ct. by complaint for interpleader whose deposit is not only required but is a contractual obligation.
Finally, there is no res judicata here bec. there was no judgment on the merits. Also, there was no identity of issues. One case involved the propriety of motion for
recon w/o a hearing & the denial of the motion for execution. The other case involved the propriety of a CA order that Eternal shall deposit what was required of it
pending the trial on the merits.
Held: The filing of the petition for relief fr. judgment w/ the TC was an unequivocal admission on Afable’s part that his period to appeal fr. the decision had already
expired. When a final judgment has become executory, it thereby becomes immutable & unalterable. The judgment MAY NO LONGER BE MODIFIED in any respect
even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, & regardless of whether the modification is attempted to be
made by the ct. rendering it or by the highest ct. of the land.
Annulment of judgment
Facts: Gregorio promised to give a large tract of land to Trinidad & Fajardo if a case bet. Greggy & Velasquez regarding the lot will be successful. Trini & Fajards then
filed an action to ENFORCE the agreement & the TC ruled in their favor. Trini & Fajards then filed a motion for the issuance of a writ of execution w/c was granted by
the TC. The Register of Deeds, however, informed the ct. that the deed of conveyance cannot be issued in favor of Trini & Fajards bec. the land had already been sold to
other persons. However, the TC directed the Register of Deeds to issue separate titles in favor of the two. Top Management then filed this petition to annul the orders
of the TC on the ground of extrinsic fraud. It claimed the it has title to the same parcel of land w/c was being levied upon since it bought the same fr. the heirs of
Greggy. The CA dismissed the petition for annulment.
HELD: Extrinsic fraud is one the effect of w/c PREVENTS a party fr. having a trial or real contest or fr. presenting all of his case to the ct. or where it operates upon
matters pertaining NOT TO THE JUDGMENT ITSELF but of the MANNER in w/c it was procured so that there is not a fair submission of the controversy.
In other words, EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party in the litigation w/c is committed OUTSIDE OF THE TRIAL of the case, whereby
the defeated party has been PREVENTED fr. exhibiting FULLY his side of the case, by fraud, deception or deception practiced upon him by his opponent.
The relief is granted on the theory that by reason of the extrinsic fraud preventing a party fr. fully trying his case, there has never been a real contest before the ct. on
the subject matter of the action.
The allegations that the judge had no jurisdiction to order the sheriff to levy on execution since the judge had full knowledge that Top Management & not Greggy who
owned the land, that the writ vs. the prop. was not justified bec. Top Management was not a party to the case–These DO NOT CONSTITUTE FRAUD.
Top Management has not pointed to any act w/c prevented it form fully ventilating its case. If ever there was any failure in the presentation of its case, it was caused
by its own inaction.
Facts: Agulto was convicted of bigamy. He filed a motion to reopen trial due to newly discovered evidence AFTER THE PARTIES HAD RESTED BUT BEFORE
JUDGMENT. His new evidence was a photocopy of a marriage certificate of his second wife to another man. (His theory was that if his second wife had been
previously married, he could not have validly married her, therefore, no bigamy).
Held: The MNT may be filed AFTER judgment but w/in the period of perfecting an appeal for the grounds stated in S1,R37 & S2R121.
A Motion to Reopen Trial may be presented only after either or both parties have formally offered & closed their evidence but BEFORE judgment. The reopening of a
trial for the reception of new evidence is not a grant of a new trial. There is no specific provision in the rules w/c governs. It is only a recognized procedural recourse
deriving validity fr. long established rules. The governing rule is paramount interests of justice resting entirely on the sound judicial discretion of the trial ct..
Therefore, the grant/denial is not subject to certiorari under grave abuse of discretion.
On the merits, the SC decided that the new evidence had defects & it failed to show that the 2nd wife’s marriage was still existing when she married Agulto.
Grounds
Held: For Velasco. There is no dispute that at the time the MNT was filed, the reglementary period to appeal had lapsed, & the decision had become final & executory.
A judgment w/c has become final & executory can no longer be altered & modified, mush less set aside by the ct. w/c rendered it since such ct. has already lost
jurisdiction over the case. Thereafter, the power & prerogative to order suspension of the rules of procedure is reposed, not in the ct. w/c had rendered such decision
but rather in an appellate ct. & ultimately in the SC, & then only upon a showing that otherwise the imperious demands of substantial justice will be thwarted.
Where the reglementary period to appeal had expired, the remedy is an MNT. If it has become final & executory, one can file a petition for relief under R 38 or a
petition for annulment of judgment.
An MNT upon the ground of newly discovered evidence is properly granted where there is concurrence of the following requisites:
2. the evidence could not have been discovered & produced during trial even w/ exercise of reasonable diligence
What is essential is not so much the time when the evidence offered first sprang into existence not the time when it first came to the knowledge of the party now
submitting it; what is essential is, rather, that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had
not nonetheless failed to secure ( it must have been searched for but not found during trial. )
In the CAB, the new evidence was already presented as evidence in a criminal case vs. the ward for falsification. Therefore, she had already come across that evidence
before.
Moreover, it is in the nature of an impeaching evidence for it seeks merely to weaken or controvert previous evidence; it is not material or corroborative.
Facts: Tumang filed for an annulment of a deed of sale bec. there was no consideration. The trial ct. rule for her. The defendant filed an MFR & an MNT based on the
ground that the decision was based on insufficiency of evidence & that it was contrary to law. As evidence, D presented receipts proving consideration. Tumang
assails the decision of the CA w/c granted the motion of D by saying that it was FORGOTTEN EVIDENCE (it had existed at trial & w/c could have been discovered by D if
due diligence was exercised.
Held: NEWLY DISCOVERED EVIDENCE: need not be newly created evidence. May & does commonly refer to evidence already in existence prior or during the trial
but w/c could not have been secured & presented during the trial despite reasonable diligence.
FORGOTTEN EVIDENCE: evidence already in existence or available before or during the trial, w/c was known to & obtainable by the party offering it w/c could have
been presented seasonably were it not for the oversight or forgetfulness of such party or his counsel.
In the case at bar, the receipts were found during a gen. cleaning, w/c goes to show that the it could hardly have been located w/ the exercise of reasonable/average
diligence.
The receipts are MATERIAL bec. they are of such import that a reasonably prudent man would have searched for them. There would be a great benefit to D if he
presents it in trial, therefore, there is no reason why did not try to locate it.
For filing
See also Rule 41, Sec. 3, par. 2; Rule 40, Sec. 2, par. 2
This a resolution on a Motion for Reconsideration on the SC’s 2nd division decision.
Held: In S 39 of BP 129, the period of appeal in the RTC was reduced fr. 30 to 15 days for appeals fr. final orders, resolution, awards, judgment or decision. But only 48
hours for habeas corpus cases.
Only notice of appeal is required. Record is not required except in (a) appeals in spl. proc.; (2) where multiple appeals are allowed. In these cases, the period is 30
days. According to the Interim Rules, no appeal bond in necessary for appeal. Its S 4 disallows a second MFR of a final order or judgment.
The purpose of such is to avoid procedural delays. But the Rules does not expressly prohibit a motion for extension of time to file a MFR of a final order or judgment.
The interest of justice would be better served if the ruling in the original decision (denying extension) were applied prospectively fr. the time herein stated. It would
be unfair to deprive parties of their right to appeal simply bec. they availed themselves of a procedure w/c was not expressly prohibited or allowed by the law or
Rules.
On the other hand, an MNT or MFR is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari, & since the purpose is to expedite the
final disposition of cases, a strict but prospective application of said ruling is in order
From June 30, 1986, the rule shall be strictly enforced that no motion for extension of time to file an MNT or MFR, may be filed w/ the MeTC, MTC, RTC, & IAC. Such a
motion may be filed only in cases pending w/ the SC as the ct. of last resort, w/c may in its sound discretion either grant or deny the extension requested.
In appeals in spl. proc. under R 109 & in other cases wherein multiple appeals are allowed, a motion for extension of time to file the record on appeal may be filed w/in
the reglementary period of 30 days. If the ct. denies the motion for extension, the appeal must be taken w/in the original period since such a motion does not suspend
the period for appeal.
The TC may grant said motion after the expiration of the period for appeal provided it was filed w/in the original period.
Facts: Abra Industrial applied for registration of a piece of land w/c was granted. The Director opposed saying that the land was mineral & unalienable. Within one
year fr. the issuance of the registration decree, Director filed a petition for review the decrees of registration.
Held: An MNT or MFR is not a pre-requisite to an appeal for review or petition for review on certiorari. The reglementary period for filing a petition for review on
certiorari in the instant case was 30 days fr. notice of order or judgment subject of review w/c period, parenthetically, is now 15 days pursuant to S 39 of BP129. The
Director having been granted a total of 60 days w/in w/c to file the petition, the same was timely filed.
Pro forma motion and its effects, Rule 37, Sec. 2, par. 4
Facts: The plaintiff filed a complaint for recovery of possession. The TC ruled for the plaintiff & ordered the defendant to vacate. The defendant filed an MFR BUT IT
FAILED TO MENTION THE DAY THE MOTION IS TO BE RESOLVED (no notice of hearing). Later, the defendant filed a notice of appeal.
Held: Notice of appeal denied. The MFR was a mere scrap of paper & therefore, pro forma. It did not contain the day when the motion is to be heard, violating S5
R15. As such it does not suspend the running of the period of appeal. The notice of appeal filed out of time.
Action upon Motion for New Trial
Facts: Fernan was suspected of having stolen a wallet. The TC ruled against the plaintiff store & awarded damages to Fernan. The CA affirmed the TC but upon the
MFR of the plaintiff, the TC was reversed.
Held. The appeal of the store raises no question of law but of fact Review of facts is not a function of the CA. An exception to this rule is when manifestly correct
findings has been unwarrantedly rejected or reversed. In the CAB, the CA reversed the TC. These instances of conflict of findings between the CA & TC is a basis of
recourse to the SC.
There must be a showing on the face of the record of gross or extraordinary misperception or manifest bias.
In the CAB, there was no substantial reason given by Fernan refuting the assessment of the CA w/c ruled that her testimony had contradictions & inconsistencies.
Denying
Judgment is vacated.
Denial of MNT – appeal the judgment within the remaining time to file an appeal even if less than five (5) days.
MNT- not supported by evidence, not supported by law, damages are excessive.
When judgment may be vacated in part – in case of separate and several judgments.
1. Appeal
2. Motion for new trial FAME/good & substantial grounds for saying so
(a) evidence
(b) law
3. Annulment of judgment
Estoppel – by act
Laches – by negligence
Petition for relief from judgment- equitable remedy; only very highly discretionary on the part of the court.
Any kind of order for Petition for relief, if granted, not appealable.
Grounds
Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the Certificate of Title to a land actually owned by the spouses Garcia. He did this
by misinforming the ct. of the spouses’ address so that the notices wont reach them thereby depriving them of the opportunity to participate in the trial. Garcia
further made further recovery of the land difficult by conveying the land to another. The couple filed a petition for relief (PFR) fr. said judgment but failed to
categorically allege extrinsic fraud in their affidavit of merit. The PFR was dismissed by CA saying that extrinsic fraud should be expressly alleged in the affidavit of
merit for the petition to lie. The SC said that since in case at bar, the spouses were able to allege facts leading to extrinsic fraud, express allegation of such is not
necessary.
Held: Where fraud is the ground, the fraud must be extrinsic or collateral & the facts upon w/c the extrinsic fraud is based must have not been controverted or
resolved in the case where the judgment sought to be annulled was rendered. For this purpose, fraud is regarded as extrinsic or collateral where it has prevented a
party fr. having a trial or fr. presenting all of his case to the ct.. Intrinsic fraud takes the form of acts of the party in a litigation during the trial, such as the use of
forged instruments of perjured testimony w/c did not affect the presentation of the case but did prevent a fair & just determination of the case.
Facts: Petitioners alleged fraud. Gutierrez was able to make it appear that he was the son of Esteban & Fermina Gutierrez & as a necessary consequence of such
filiation, was the absolute owner by succession of the prop. in Q.
Held: Petition should be dismissed for lack of merit bec. the fraud allegedly perpetuated by G is only intrinsic in nature & not extrinsic. Fraud is regarded as extrinsic
or collateral where it has prevented a party fr. having a trial or fr. presenting all of his case to the ct.. In the case at bar, the fraud was in the nature of documents
allegedly manufactured by G to make it appear he was the rightful heir of the disputed property. Hence the fraud is intrinsic in nature.
Meralco v. CA, 187 SCRA 200
Facts: Meralco, after failing to appear at a pre-trial conference, was declared in default. Thereafter, Meralco made the following steps: 1) Filed a MFR to Lift Order of
Default & to Vacate Judgment by Default – bec. of counsel’s influenza. Denied. 2) Petition for Relief fr. Judgment . Dismissed. 3) Petition for Certiorari. Propriety of this
last action is the issue in this case.
Held: Certiorari is not proper. Such remedy had already been lost bec. of Meralco’s neglect or error in the choice of remedies. Certiorari shall not lie to shield
Meralco fr. the adverse consequences of such neglect or error. Relief under Rule 38 is of equitable character & is allowed only in exceptional cases where there is no
other available or adequate remedy. Meralco could have proceeded by appeal to vacate or modify the default judgment. Relief will not be granted when the loss of
remedy at law was due to his own negligence or a mistaken mode of procedure, otherwise the petition for relief will be tantamount to the right of appeal already.
Further, when other lawyers could have appeared & moved for postponement, sickness of counsel is not excusable.
Facts: Villa Rey failed to answer w/in the reglementary period even after denial of its motion to extend time to answer. Hence, & order of default was rendered.
Thereafter it filed a MTQ Service of Summons, Motion to Lift Order of Default & To Set Aside Judgment. This was denied. The 30-day appeal period expired w/o any
appeal. Villa Rey contends the motion it filed should be considered as Petition for Relief.
Held: This is untenable. A petition for relief presupposes a final & unappealable judgment. In this case, judgment has not yet become final & unappealable at the
time of the filing of the motion.
Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date for the computation of the interest to be awarded. This was done after denying
the petitioner’s relief fr. judgment.
Held: CA. In sustaining the RTC decision to deny the petition for relief fr. judgment the respondent Court cannot at the same time modify the decision sought to be
overturned by such a petition. The filing of the petition for relief fr. judgment w/ the trial ct. was an unequivocal admission on the private respondent’s that his period
to appeal fr. the decision had already expired. A petition for relief fr. judgment under Rule 38 presupposes a final judgment or loss of the right to appeal. The
affirmance of the CA of the denial of the petition is a confirmation of the existence of a final & executory judgment. CA can neither amend nor modify it. When a final
judgment becomes executory it becomes immutable & unalterable, even if modification is meant to correct an erroneous conclusion of fact or law. Only corrections of
clerical errors or the making of so-called NUNC PRO TUNC entries & other judgment w/c cause no prejudice to any party are the exceptions to this rule, otherwise any
other modifications of a final & executory judgment is VOID.
Strictly followed
First Integrated Bonding v. Hernando, 199 SCRA 796
Facts: FIB was impleaded as the insurance agency of defendant who figured in an accident killing one person. FIB failed to answer so it was declared in default. FIB
took no positive step to vacate the order of default. Instead it chose to file a petition for relief fr. judgment almost five months fr. its receipt of copy of the amended
decision.
Held: The petition for relief fr. judgment was filed out of time. The rules require that such petition should be filed w/in 60 days after receipt of judgment & not more
than six months after entry of judgment. Period required by R 38 is non-extendible & never interrupted. It is not subject to any cond. or contingency, bec. it is itself
devised to meet a condition or contingency. The remedy under the Rule 38 was an act of grace, designed to give the party one last chance. Being in the position of one
who begs, such party’s privilege is not to impose conditions, haggle, or dilly-dally, but to grab what is offered him.
Contents
Facts: Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the Certificate of Title to a land actually owned by the spouses Garcia. He did this
by misinforming the ct. of the spouses’ address so that the notices wont reach them thereby depriving them of the opportunity to participate in the trial. Garcia
further made further recovery of the land difficult by conveying the land to another. The couple filed a petition for relief fr. said judgment but failed to categorically
allege extrinsic fraud in their affidavit of merit. The PFR was dismissed by CA saying that extrinsic fraud should be expressly alleged in the affidavit of merit for the
petition to lie. The SC said that since in case at bar, the spouses were able to allege facts leading to extrinsic fraud, express allegation of such is not necessary.
Held: CA denied PFR for want of express allegation of extrinsic fraud. SC reversed saying that since Rule 38 Sec 3 (FAME as ground in affidavit of merit for PFR) &
that in case at bar, petitioners were able to show extrinsic fraud, affidavit is not necessary. HELD: The affidavit of merit serves as a jurisdictional basis for a ct. to
entertain a petition for relief. But it admits of exceptions, i.e. Where the attachment of the affidavit of merit in the petition for relief is unnecessary. The affidavit of
merit is essential bec. a new trial would be a waste of court’s time if the complaint turned out to be groundless. Thus, where there was no jurisdiction over the
defendant on the subject matter of the action, where a judgment was taken by default before defendant’s time to answer had expired, where it was entertained by
mistake, or was obtained by fraud & other similar cases, as when the applicant had no notice of the trial, we ruled that an affidavit is not necessary.
Facts: Nocom spouses filed forcible entry case v Dulos spouses in the MTC Las Piñas. Pre-trial was set but the Nocoms still filed another case for annulment & a writ
of preliminary injunction in Makati. Dulos’ motion for suspension on forcible entry case was dismissed there being no prejudicial question. Pre-trial saw that the
Dulos spouses were in default despite the presence of a purported representative (Rectra) who held a special power of attorney executed by said spouses. Judgment
on forcible entry case for the Nocoms. The Dulos’ filed a motion for reconsideration of said judgment w/c was denied & the aggrieved spouses went to the Supreme
Court via special civil action for certiorari, w/c the Supreme Court dismissed. Nocoms filed for a writ of demolition w/c was countered by petitioner spouses by filing
for a petition for certiorari, prohibition & preliminary injunction, w/c was granted by the CA. Hence, this appeal.
Held: A motion for reconsideration of a judgment of default may be considered a petition for relief fr. judgment under R38 S2 only if it is a)verified, b) filed w/in 60
days fr. time petitioner learns of the decision but not more than 6 months fr. entry of judgment & c) if in case of failure to file an answer the motion must be
accompanied by an affidavit of merit. It may be considered as a motion for new trial under R27 S2 only if it is accompanied by an affidavit of merit.
Facts: Service Specialists & counsel failed to appear at a pre-trial & was declared in default. Service filed a petition for relief fr. judgment. The lower ct. dismissed the
petition for relief for lack of jurisdiction to hear & determine the same. Service filed a notice of appeal to the IAC.
Held: Service filed its petition for relief also w/ the RTC Manila but not in the same case but in another case. This is erroneous. A judgment or order denying relief
under Rule 38 is final & not appealable, unlike an order granting such relief w/c is interlocutory. However, in such an appeal, the appellate ct. is only to determine the
existence of any of the grounds relied upon (fraud, accident, mistake or excusable negligence) & the merit of the petitioner’s cause of action or defense, as the case
may be. Moreover, Service merely filed a notice of appeal to the IAC fr. the order of the lower ct. w/c dismissed his petition for relief. The appeal should have been
made to this Court through a petition for review on certiorari.
Procedure
Remedies
Facts: An RTC decision was affirmed by CA w/ slight modification to reflect the date of computing interest. This was done after denying the petitioner’s relief fr.
judgment.
Held: The remedy under R41 w/c provides that a judgment denying relief under R38 is subject to appeal, & in the course thereof, a party may also assail the judgment
on the merits, upon the ground that it is not supported by the evidence or it is contrary to law. This provision, however, can’t be construed as allowing the review of
the decision on the specific ground therein indicated, if the denial of the petition for relief by the TC is sustained by the Appellate Court. It may only be done if the
appellate ct. overturns such denial. The CA, after sustaining the trial court’s denial of the petition for relief should have dismissed the appeal & to declare the lower
court’s decision as firm, final & executory.
Facts: Thomas Cheesman attempted to annul the sale by his Filipino wife of a residential lot & building to Padilla. The sale was declared void ab initio. However,
judgment was set aside as regards Padilla on a petition for relief filed by her ground on fraud, accident, mistake or excusable negligence w/c had seriously impaired
her right to present her case adequately. The petition for relief fr. judgment was given due course & a new judge presided over the case. Padilla filed a motion for
summary judgment w/c was granted. The judgment declared sale as valid. Cheesman questions the propriety of such judgment.
Held: An order of the CFI granting a petition for relief under Rule 38 is interlocutory & is not appealable. Once the petition for relief is granted & the judgment
subject thereof set aside, & further proceedings are thereafter had, the ct. in its judgment on the merits may properly grant the relief sought in the petitioner’s basic
pleadings, although different fr. that stated in his petition for relief. Therefore, since both CFI & IAC found that the facts adequately proved fraud, mistake or
excusable negligence by w/c Padilla’s rights have been substantially impaired, the sale was declared valid.
Facts: Petitioner filed an action for replevin & damages against private respondents. A pre-trial conference was set but private respondent & counsel failed to appear
w/c resulted in the issuance of an order & judgment of default against respondents. Private respondent then moved for relief fr. judgment & order of default. This
motion was opposed by a motion to dismiss filed by petitioner. The Lower ct. dismissed the petition for relief on the ground of lack of jurisdiction. Respondent filed a
notice of appeal but a writ of execution was nevertheless filed. This case stems fr. the deputy sheriff’s refusal to proceed w/ the auction of respondent’s properties.
Held: A judgment or order denying relief under Rule 38 is final & appealable, unlike an order granting such relief w/c is interlocutory. However, in the appeal the ct.
may not reverse or modify the judgment on the merits. The judgment fr. w/c relief is sought is already final & executory. This remedy only enables the appellate ct. to
determine not only the existence of any of the grounds relied upon whether it be fraud, accident, mistake or excusable negligence, but also & primarily, the merit of
the petitioner’s cause of action or the defense, as the case may be. If the appellate ct. finds that one of the grounds exist & that the petitioner has a good cause of action
or importance, it will reverse the denial or dismissal, set aside the judgment in the main case & remand the case to the lower ct. for a new trial in accordance w/ Sec 7
Rule 38. Finally, a notice of appeal fr. the order of the lower ct. w/c dismissed his petition for relief fr. judgment “for lack of jurisdiction to hear & determine the
same” should have been made to the SC through a petition for review on certiorari & not to the IAC.
Facts: Ramirez, as a plaintiff in a suit over an airstrip failed to do the following: furnish a copy of the notice of hearing to other party; appear at the pre-trial; file
appeal instead of seeking relief; & seasonably file a motion for reconsideration. After the judgment in (favor of Ramirez’s opponent) had become final & executory.
Ramirez filed a petition for relief fr. judgment even if the period for filing the same had expired.
Held: There is no means whereby the defeated party may procure a final & executory judgment to be set aside w/ a view to the removal of the litigation beyond the
period for seeking relief, fr. a final order of judgment under Rule 38 unless A) judgment is void for want of jurisdiction or for lack of due process of law or B) it has
been fraud. (In other words, period for filing of PFR is mandatory but admits of exceptions – lack of J & fraud.)
Facts: Alvendia defaulted on his obligation to pay Bonamy. Alvendia did not do anything fr. the filing of the complaint against him up to the time that the judgment
became final & executory. Execution has been ordered & his property has been levied. He moved for extension of time to file petition for review.
Held: It is axiomatic that there is no justification in law & in fact for the reopening of a case w/c has long become final & w/c in fact has been executed. Time & again
this ct. has said that the doctrine of finality of judgment is grounded on fundamental considerations of public policy & sound practice that at the risk of occasional
error, the judgments of cts. must become final at some definite date fixed by law – Alvendia cannot invoke equity to reopen case since they have been given
opportunity but failed.
DEC 19
Posted by Magz
Sec. 1. Application – A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for
an order for the delivery of such property to him, in the manner hereinafter provided.
Sec. 2. Affidavit and bond. – The applicant must show by his own affidavit or that of some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and
belief;
(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment,
or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and
The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the
property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the application in the action.
Sec. 3. Order. – Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal
property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody.
Sec. 4. Duty of the sheriff. – Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and
bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be
concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the
property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary
expenses for taking and keeping the same.
Sec. 5. Return of property. – If the adverse party objects of the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately require the
return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the
court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit for the delivery thereof to the
applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the
applicant.
Sec. 6. Disposition of property by sheriff. – If within five (5) days after taking the property by the sheriff, the adverse party does not object to the sufficiency of the bond,
or the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, or if the adverse
party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered
to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.
Sec. 7. Proceedings where property claimed by third person. – If the property taken is claimed by any third person other than the party against whom the writ of
replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves
such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property
under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff shall file a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine
the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-
party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in
case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.
Sec. 8. Return of papers. – The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property mentioned
therein.
Sec. 9. Judgment. – After trial of the issues, the court shall determine who has the right to the possession to and the value of the property and shall render judgment in the
alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove,
with costs.
Sec. 10. Judgment to include recovery against sureties. – The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this
Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.
Blog at WordPress.com.