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ALBANO REVIEWER SUMMARY

REMEDIAL LAW

JURISDICTION:

- Jurisdiction is the power to hear and decide cases

JURISDICTION VENUE

Authority to hear and ermine a case Place where the case is to be heard or tried

Substantive Procedural

Relation between the court and the subject Relation between the plaintiff and defendant or
matter petitioner and respondent

Fixed by law and cannot be conferred by May be conferred by the act or agreement of the
parties parties

- Jurisdiction does not depend on the regularity of the exercise of that power or upon
the rightfulness of the decision made.

- Exercise of Jurisdiction - resolution of all other questions arising in the case


- Jurisdiction is vested in the court and not in the judges. Cases may be held by any
branch or judge of such court.

- Exercise of equity jurisdiction - The court is called upon to decide a particular


situation and release the parties from their correlative obligations but if it would result
in adverse consequences to the parties, the court would go beyond its powers to
avoid negative consequences in the release of the party.

- LIMITATIONS IN THE EXERCISE OF EQUITY JURISDICTION:


1. It will not give validity to a void contract
2. Court has no power to make a contract for the parties or extend the life of a
contract.

- Jurisdiction is determined by the statute in force at the time of the commencement


of the action.
- Once jurisdiction is acquired to a court over a case, it continues until the end of the
case.

- ELEMENTS OF JURISDICTION:
1. Jurisdiction over the Subject matter
2. Jurisdiction over the Parties
3. Jurisdiction over the Res

JURISDICTION OVER THE SUBJECT MATTER


- Jurisdiction over the subject matter is conferred by LAW (BP129)
- Jurisdiction over the subject matter is not waivable EXCEPT in cases of ESTOPPEL to
question or raise jurisdiction (TIJAM CASE)

JURISDICTION OVER THE PERSON OF THE PLAINTIFF is Acquired by filing of an initiatory


pleading

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Over the person of the defendant - proper service of summons or by his voluntary
appearance.
- Acquisition of jurisdiction over the person of a non resident defendant not found in
the PH in an action for compulsory recognition of child -

- ONLY OVER THE RES by


- Effecting service of summons out of the PH by personal service of summons
- Publication in a newspaper of general circulation in such places and for such
terms as the court may order AND a copy of the summon and order of the
court shall be sent by registered mail to his last known address

- Jurisdiction over the res can be acquired by


- Seizure of the thing under legal process whereby it is brought into actual custody of
law
- Institution of legal proceeding wherein the power of the court over the thing is
recognized and made effective

- Jurisdiction over the issues is acquired by the pleadings or may be conferred by law.
- The court acquires jurisdiction of the case only upon payment of prescribed filing fee.
- Jurisdiction Over subject matter is determined upon the allegations made in the
complaint.
- If there was no statement of the gross value of the estate and it cannot be
determined which court has original and exclusive jurisdiction - COURT DID NOT
ACQUIRE THE JURISDICTION OVER THE SUBJECT MATTER. (Frianela case)

- Even if the case is pending for 18 years, principle of estoppel to question jurisdiction
over the subject matter cannot be barred thus not applying Tijam case because:
- GR: Estoppel by latches cannot lie against the government
- In TIJAM, Lack of jurisdiction was only alleged in the EXECUTION STAGE. Tijam can
only be applied in cases having similar factual milieu

- A party cannot invoke the jurisdiction of the court to secure affirmative relief against
his opponents and after failing to obtain such, question the same.
- By filing a counterclaim, the party recognized and expressly invoked the jurisdiction of
the court. They cannot now insist the want of jurisdiction.

- As a general rule, Lack of jurisdiction of a court CANNOT BE CURED.


- As an exception (Bandoy case), The complaint for ejectment contains no
allegation that demand was made to vacate the premises. But during trial, The
plaintiff offered as evidence notice to vacate - IT WAS CURED BY THE EVIDENCE.

- GR: Once jurisdiction is acquired, it can never be lost.


- EXC: There is a law that expressly divests the jurisdiction, court may divest.
- RTC TO MTC is possible in cases which now fall in the jurisdiction of MTC but it must
apply only to CIVIL CASES for as long as they have not reached pre trial.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If complaint was amended without proper docket fee, the court may allow the
payment of the fee within a REASONABLE TIME but in no case beyond the applicable
prescriptive or reglementary period(Manchester Case)

- If the judgment awards claims not specified in the pleading or if left to the
determination of the court, the additional filing fee shall be considered as lien on the
judgement.
- An expropriation proceeding is within the jurisdiction of the RTC because it is
incapable of pecuniary estimation.
- Comelec may issue writs of CMP only in aid of its appellate jurisdiction
- GR: A branch of a court cannot enjoin another branch of the same court because of
Judicial stability.
- EXC: When third party claimant is involved and is prosecuted in a proper
action. Thus the court may issue TRO or injunction as an exception to the rule.

- In consignation, Amount to be deposited is considered.


- If there is defense of ownership, the court may make findings or decide the issue of
ownership only to determine the degree of POSSESSION. It is not res judicata to the
decisions of another tribunal.
- The power oft he court to award damages in ejectment suit does not extend to the
award of the unpaid electric and water bills. the same shall be prosecuted in a
separate tribunal.
- Where the issues raised before the inferior court do not only involve possession of the
lot but also the rights of the parties to the building, the RTC has jurisdiction.
- The counterclaim should be within the jurisdiction of the court trying it.

JURISDICTION OF MTC
- If MTC, award can only be within the allowable amount (300/400). He is deemed to
have waived the excess of his claim beyond that.
- The nature of the action is not determined by what is stated in the caption of the
complaint but by the allegation and the reliefs prayed for.
- If an action involves the title to or interest in real property, the assessed value or if
there is none, the estimated value shall be alleged or else the court has no jurisdiction
over the subject matter.
- If claim for damages is only incidental, it should not be included with the money
claim and the totality rule shall not apply.
- Reversion case: dependent on the assessed value
- Accion publiciana, quieting of title, partition: ASSESSED VALUE
- Right to repurchase- incapable of pecuniary - RTC

JURISDICTION OF FAMILY COURT


- Has exclusive and original jurisdiction over child and family cases
- In cases of violence among immediate family members living in the same domicile or
household, the family court may issue restraining order
- May be appealed in the same manner as if from RTC
- Dangerous drugs cases fall within the RTC regardless of the penalty
- BP 22 - ORIGINAL AND EXCLUSIVE JURISDICTION OF MTC

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

JURISDICTION OF SANDIGANBAYAN
- In relation to the office - Intimately connected with the office of the offender and
perpetrated while he was in the performance of his official function
- The sandiganbayan shall exercise appellate jurisdiction on appeals from the final
judgments, resolutions of the RTC whether in the exercise of their own original
jurisdiction of their appellate jurisdiction in case a public officers
- Sandiganbayan may issue writs of CMQP but only in aid of appellate jurisdiction
- If private individuals are charged as co-principal or accomplices or accessories with
public officer, they are tried jointly
- If civil action is filed ahead of the criminal action, it shall be transferred to the
Sandiganbayan or the proper court provided that no judgment has been rendered
in the meantime.
- Final orders of SB is appealable in the SC
- Department manager of GOCC - Sandiganbayan
- It is not sufficient to just allege that the offense was committed in relation to his office

BARANGAY CONCILIATION
- Compliance is a condition precedent to the filing of the complaint or information in
the court and its absence is a ground for dismissal of the complaint for prematurity or
absence of cause of action
- Only individuals shall be parties in BC
- Parties must be actually residing in the same barangay
- Postal address is not included in the meaning of Residence (Boleyley Vs Villanueva)
- The real party in interest shall be actual residents of the same city or municipality or
adjoining barangay (Pascual vs Pascual)
- Objections to the venue of BC shall be raised in the mediation proceedings or else
deemed waived
- Legal questions revolving objections to venue shall be submitted to the SEC OF
JUSTICE
- BC is non jurisdictional in nature. Only condition precedent and may be waived
- Residence shall be more or less permanent. not mere transient
- While under mediation, the prescriptive periods for offenses shall be interrupted upon
filing go the complaint and shall resume upon the receipt of the certificate of
repudiation or certificate to file an action PROVIDED that interruption shall not
exceed 60 days from the filing of the complaint in PB
- PB shall arrive at the resolution within 15 days from the day it convenes and be
extendible for another 15 days in clearly meritorious cases
- All amicable settlements shall be in writing
- No complaint involving any matter within the authority of the upon shall be filed
without any certification from the lupon
- Staying 5 days in a week is sufficient to constitute actual residence
- Attaching a certification subsequent to the filing cures the defect and is substantial
compliance
- If not invoked in the motion to dismiss - DEEMED WAIVED
- Actions coupled with provisional remedies may be filed directly in court
- If cultural minorities, the customs and traditions of indigenous cultural communities
shall apply
- All proceedings in PB are public and informal but may exclude others

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Parties shall appear without the assistance of a lawyer except for minors which may
be assisted by the next kins
- Amicable settlements and arbitration award shall have the force and effect of a final
judgment of a court upon the expiration of 10 days from the date UNLESS repudiation
has been made or petition to nullify the award
- Any party in the dispute may within 10 days from the date of the settlement
repudiate by filing with the lupon chairman a statement to that effect where he
consent is vitiated by fraud, violence and intimidation. The repudiation shall be a
sufficient basis for the issuance of the certification to file a complaint

- Amicable settlement shall be enforced by execution by the lupon within 6 months


from the date of settlement. AFTER LAPSE, IT MAY BE ENFORCED BY ACTION IN THE
MTC REGARDLESS OF THE NATURE OF THE COMPLAINT OF THE LUPON Hahahaha

- 6 months shall be counted when the obligation shall be due and demandable
- If one of the parties fails or refuses to abide by the compromise, the other party may
either ENFORCE or regard it as RESCINDED and insist upon the original demand
without bringing an action for rescission.

CIVIL PROCEDURE

RULE 1: GENERAL PROVISIONS


- Rules of court has force and effect of law
- It is liberally construed
- It may be given retroactive effect in actions pending and undetermined at the time
of their passage except if it will work injustice because THERE IS NO VESTED RIGHT IN
RULES OF PROCEDURE
- Circulars issued by SC partake as procedural laws

RULE 2: CAUSE OF ACTION

- Every ordinary civil action shall be based on a cause of action


- Real action - An action affecting title to, or for recovery of possession or for partition
or condemnation or or foreclosure of mortgage of property

REAL ACTION PERSONAL ACTION

Based on the privity of REAL ESTATES Based on privity of contracts or for recovery of
sum of money

The action shall be instituted in the trial The action shall be instituted in the trial court
court where the property is situated where the parties are residing at the election of
the plaintiff

- Action in rem - One instituted against the whole world


- Action in personam - one filed against a definite defendant. It is intended to subject
the interest of the defendant on a property to an obligation or lien

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- For in personam - jurisdiction over the person


- For In rem - Jurisdiction over the res
- Local action - one founded on privity of the estates only and there is no privity of the
contracts
- Transitory action - One founded on the privity of the contracts between parties
- TESTS TO DETERMINE THE NATURE OF THE ACTION
1. ULTIMATE OBJECTIVE TEST - if the ultimate objective is to recover the property -
REAL ACTION
2. ALLEGATIONS AND PRAYER TEST

- Reconveyance is an action in personam


- Reconveyance is always available as long as the property has not yet passed to an
innocent third person for value

- TEST TO DETERMINE IF ACTION IS BEYOND PECUNIARY ESTIMATION


1. If it is primarily for the recovery of sum of money - Capable
2. If the basis issue is something other than the right to recover sum of money

- Breach of contract is beyond pecuniary estimation


- Declaration of nullity of partition is an action whose subject is incapable of pecuniary
estimation
- Examples of Beyond pecuniary estimation:
1. Specific performance
2. Support
3. Foreclosure of mortgage
4. Annulment of judgment

- In foreclosure if the party is in the US, it may be foreclosed if the court acquired the
jurisdiction over the res of the property. But they cannot demand for the deficiency
because it has no jurisdiction over the person of the mortgagor EXC when he
voluntary appears.
- Only the allegations of the complaint may be considered in ascertaining the cause
of action.

- TEST OF SUFFICIENCY OF COMPLAINT - whether or not, admitting the facts alleged, the
court can render a valid judgment in accordance with the prayers of the complaint

- If there is only one delict, there is only one cause of action.


- In ejectment suit, only rentals can be recovered as damages. Other damages like
electric, water bill are to be recovered in separate suit (Felisilda vs Villanueva)

SPLITTING OF CAUSE OF ACTION:


- Practice of dividing one cause of action into different parts and making each part of
the subject a separate complaint.
- If two or more suits are filed on the basis of the same cause of action, The filing go
one or a judgment upon the merits in anyone is available as a ground for the
dismissal of others.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If by their nature, the reliefs sought for are cognizable by different tribunals, then
there would be no splitting of causes of actions if they are filed in different courts

- A party may assert in the alternative or otherwise as many causes of action as he


may have against an opposing party but:
- Must comply with rules on joinder
- Both shall be governed by the same rules. Not include special civil action /
special rules.
- If different venues, the joinder shall be allowed in the RTC provided that one of
the causes of action falls under its jurisdiction
- where the clan in all the causes of action are PRINCIPALLY for recovery of money
- TOTALITY RULE

JOINDER OF CAUSES OF ACTION


- Totality rule applies to cases where two or more plaintiffs having separate causes of
action against a DEFENDANT join in a single action against two or more defendants
joined in a single complaint provided that they arose of the same transaction or series
of transaction and there should be common question of fact or law.

- Forcible entry and Unlawful detainer CANNOT BE JOUNED in other causes of action.
They are governed by special rules like the summary procedure.

- If jurisdiction is dependent on the amount involved, the test shall be the AGGREGATE
SUM exclusive of interest, cost and irrespective of whether or not the causes of action
are owned by or due to different parties.
- In cases where the claim for damages is the main cause of action, the amount
of such clam shall be considered in determining jurisdiction
- The defendant cannot file a counterclaim and then file a separate action for such
claim.
- Misjoinder is not a ground for dismissal. It may be severed and proceeded with
separately
- Joinder is merely permissive not mandatory

RULE 3: PARTIES TO CIVIL ACTION

- If merely an agent and did not impleaded the real party in interest - DISMISSIBLE
- Court may order the party to implead the RPI at any stage
- But if despite the order plaintiff fails, court may dismiss motu proprio
- The need to give the resident mammals legal standing has been eliminated by the
rules. Filipino citizens are allowed as steward of nature to bring a suit to enforce our
environmental laws.

LOCUS STANDI REAL PARTY IN INTEREST

Constitutional Issues Private litigations

- Judgment against the agent does not bind the principal.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Even if the principal authorizes the agent, the action must still be filed in the name of
the principal party / RPI
- A party who does not have a juridical personality cannot sue. but members may sue
individually
- When husband and wife defends his/her separate property, they may sue alone
- Damages pertain to the conjugal partnership hence the husband mis be joined a
party
- If abandoned by husband or living separately, wife may sue alone
- If not sued jointly, it may be corrected because it is merely a formal and procedural
defect. May be corrected at any stage
- Dismissed only if after refusal to the order of the court to properly implead.
- If solidary, creditor may proceed on any of them
- In partition in coownership,all co owners must be impleaded because they are RPI

TWO TEST IF PARTY IS INDISPENSABLE PARTY


1. Can relief be afforded without the presence of other parties?
2. Can the case be decided on its merits without prejudicing the rights of other party?

- The owners of the property in a reconveyance are indispensable parties.


- If it is a Real Action, failure to comply to inform the court of the death and no
substitution happened, will not invalidate the proceedings.
- Natural parents are still liable pending the adoption for the delict - (TAMARGO VS CA)

CLASS SUIT
- REQUISITES:
1 Common or general interest to many persons
2. Persons are so numerous that it is impractical to bring them in court
3. Parties before the court are sufficiently numerous and is represented so that all
interests concerned are fully protected

- Recovery of property occupying different portions, no class suit


- The judgment debtor having died prior to the sheriff’s levy, the judgment may no
longer be enforced by writ of execution.
- If action does not survive after death, file a claim before the estate
- Action for damages for injury to persons arising from breach of contract of common
carrier does not survive the death
- Action for foreclosure of mortgage survives
- After the death of either H or Wife, conjugal partnership is dissolved
- Trial held without appearance of the deceased legal representative or substitution of
heirs and the judgment rendered after trial are null and void
- If necessary party is not impleaded, and failed to comply with court order to implead,
claim on that party is deemed waived.
- Lack of earnest efforts to reach compromise shall not be required if one party is not
member of the same family

Foreign corporation
- Legally engaged in business in PH - May sue and be sued in PH
- Illegaly engaged, it cannot sue but may be sued.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Not engaged, may sue in our courts on a single isolated transaction but CANNOT BE
SUED.

- If no juridical personality, can be sued in the name generally known BUT CANNOT SUE
ON THAT NAME. Only in their individual capacities
- If the public officer does not manifest interest to continue, the court shall dismiss
- In any transfer of interest, it may be continued against the original party unless court
directs the person to be substituted.
-
- Survives: if principally property and property rights
- Does not survive: if injury complained of is to the person. The property and rights or
property are merely incidental

- Substitution of heirs is not a matter of jurisdiction but a matter of due process.


- If no proper substitution, the judgment and proceedings are void if there is no
appearance of the legal representatives of the deceased. NO Jurisdiction OVER
PERSON
- If a question on the validity of law treaty ordinance executive order - may require the
appearance of the Solicitor general. It now applied to all courts. Even in MTC - SC

RULE 4: VENUE OF ACTIONS

- Place where an action must be instituted and tried. It is a place of trial or geographic
location in which an action or proceeding should be brought.
- Waivable and is procedural in nature.
- May be agreed to by parties.
- Forcible entry or unlawful entry - Filed within the place where the property involved or
a portion thereof is situated.
- If personal action - place where the plaintiff resides or place where the defendant is
residing at the election of the plaintiff.
- Non resident defendant- Where he may be found
- An action to recover the deficiency after the extrajudicial foreclosure of the real
property mortgage is a PERSONAL ACTION.

- Local action - real action


- Transitory action - personal action
- If personal status and defendant is a non resident - Place where plaintiff resides.
- If real property and defendant is non resident - place where the property is located
- If the venue is fixed exclusively by the parties in a certain place, it cannot be filed in
another place even if that is the place of residence of the parties or the location
where the property is situated.
- If not raised in a motion to dismissed and instead you filed an answer - WAIVED
- Venue is only jurisdictional if alleged by the party
- To be exclusive it must employ a categorical and suitable limiting language that they
wish the venue of all actions shall be ONLY laid on that place.
- Any doubt shall be resolved against its exclusivity
- If in loan agreement it is exclusive, and in chattel mortgage it indicated additional
venue - BOTH SHALL BE CONSTRUED TOGETHER. - (SPS RIGOR VS CLFC)

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- The stipulation designating exclusive venues should be strictly confined to the specific
undertaking or agreement.
- If lacking of restrictive words to indicate exclusivity, it is merely an additional venue.
- Agreements to venue which are oppressive when it works injustice or deny the parties
concerned access to court by reason of poverty it is void and unenforceable for it is
contrary to public policy
- Venue is deemed waived if the defendant files a motion to lift an order of default
- Agreement is valid only to venue not to jurisdiction.
- In corporation, the place of business is considered the residence. The residence of its
officer is not the residence of the corporation. A corporation cannot be allowed to
file a personal action in a place other than its principal place of business
- Principal parties should be the basis

- Libel case: RTC of the province or city where the libelous article is printed and first
published or when he holds office when the complainant is a PUBLIC OFFICER
- Anti fencing - place where the robbery or theft has committed.
- Court cannot dismiss motu proprio a case for improper venue
- Must be invoked in MD before filing an answer or may be invoked as an affirmative
defense if waived

RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS

RULE ON SUMMARY PROCEDURE:



APPLICATION OF SUMMARY PROCEDURE IN CIVIL CASES:
1. All cases of forcible entry and unlawful detainer regardless of the amount of rentals
and damages. Attorney’s fees shall not exceed 20k if awarded
2. All other civil cases except probate of proceedings where the total amount of the
plaintiff’s claim DOES NOT exceed 100k or 200k exclusive of interest and costs

CRIMINAL CASES:
1. Violations of traffic laws, rules and regulations
2. Violations of rental laws
3. Violations of municipality or ordinances
4. Not exceeding 6 months or fine not exceeding 1k

- SumPro governs violation of BP22


- Upon filing, the court shall issue an order declaring whether the case is governed by
SumPro or not

- ONLY PLEADINGS ALLOWED:


1. Complaint
2. Compulsory counter claim
3. Cross claim pleaded in the answer
4. answer thereto

- All pleadings shall be verified. If failed, same can be cured. defect is merely formal.
- The court in SumPro may dismiss outright on any ground apparent therefrom for
dismissal of a civil action.
- Answer shall be filed within 10 days from the service of summons

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Affirmative and negative defenses are deemed waived if not pleaded in the answer
EXCEPT: LACK OF JURISDICTION OVER THE SUBJECT MATTER

- If no answer, the court may render judgment moto proprio or on motion of the
plaintiff

- There was an ejectment suit, defendant moved to hold in abeyance the Preliminary
conference until the case of specific performance has been terminated. The MTC
granted the motion. Appeal was made in RTC. Motion to dismiss was filed for it was
interlocutory order. RTC Denied. CA allowed the appeal from the interlocutory order.
In situation wherein a summary proceeding is suspended indefinitely, a petition for
certiorari alleging GAD may be allowed. It will give spirit to the Rule on sumpro. THIS IS
TO FILL THE PROCEDURAL VOID. In fact the appeal could be treated as a petition for
certiorari under Rule 65(Azucena Go vs CA)
- An extension of time to file an answer is dilatory in nature. Motion for extension is a
prohibited motion.

- Preliminary conference shall be held not later than 30 days from the filing of the last
answer
- If plaintiff fails to appear, the case can be dismissed
- If defendant appears and no appearance on the part of the plaintiff, the former shall
be entitled to judgment on his counterclaim. All cross claims shall be dismissed.
- If sole defendant fails to appear, the plaintiff shall be entitled to judgment as may be
warranted by the allegations in the complaint.
- THE RULE DOES NOT APPLY IF THERE ARE TWO OR MORE DEFENDANTS WHO ARE
SUED UNDER A COMMON CAUSE AND HAVE COMMON DEFENSE.

- The court shall decide the case within 30 days after receipt of the proper affidavits
and position papers.
- Judgment shall be rendered within 15 days after receipt of the LAST CLARIFICATORY
AFFIDAVITS.

CRIMINAL CASE:
- There is preliminary conference in criminal cases
- Refusal or failure to stipulate shall not be taken against the accused.
- Failure of witness to appear shall cause his affidavit to be considered as not
competent evidence

Prohibited motions or pleadings under the Sum Pro:


1. Motion to dismiss or to quash except on lack of jurisdiction over the subject matter or
failure to comply with Lupon certification
2. Bill of particulars
3. New trial, Reconsideration, Reopening
4. Relief from judgment
5. Extension of time
6. memoranda
7. CMP against any interlocutory order
8. declare in default
9. dilatory motions

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

10. third party complaint


11. interventions

AFTER AN ANSWER HAS BEEN FILED, A MOTIN TO DISMISS CAN BE ALLOWED. This is
because there would no longer be delay

-Not proper to refer to lupon. must dismiss it without prejudice


- Filing of prohibited motions do not suspend the running of period to file an answer
- when on appeal, rules on summary procedure does not anymore apply
- Failure to object erroneous adoption of the rules of sum pro operates a waiver.
- The motion for reconsideration that is prohibited is one which seeks reconsideration of
the judgment rendered by the court AFTER TRIAL ON MERTIS OF THE CASE. Granting of
motion for reconsideration for lack of jurisdiction is allowed.

RULE 6: KINDS OF PLEADINGS

- The complaint must contain a concise statement of the ultimate facts constituting
plaintiff’s cause of action
- Ultimate facts - important and substantial facts which either directly form the basis of
the plaintiff’s primary right or duty or directly make up the wrongful acts or omission.
- Documents attached to the pleadings then admitted need not to be introduced as
evidence.
- Defenses of a party are alleged in the answer
- An answer must be responded by a reply
- Negative defense is the specific denial of the material fact or facts alleged in the
pleading.

- KINDS OF SPECIFIC DENIAL:


1. Defendant specifies each material allegations, the truth of which he does not admit
2. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the material matters of the complaint (sec 10 rule 8)

- Compulsory counter claim - one which being cognizable by the regular courts arises
out of or is connected with the transaction or occurrence constituting the subject
matter of the opposing party’s claim and does not require adjudication. Such
counterclaim must be within the jurisdiction of the court as to the amount AND nature
except before the RTC (Regardless of the amount).

- Rtc may entertain counterclaims below its jurisdiction


- Sum of money and claim for unpaid wages - NOT ALLOWED
- It is compulsory if the evidence required to prove plaintiff’s claims is similar or identical
to that needed to establish defendant’s demands ( compelling test of
compulsoriness)

- TESTS TO DETERMINE IF IT IS COMPULSORY COUNTERCLAIM


1. Issues of the fact or law raised by the claim and counterclaim are largely the same
2. Res judicata bar a subsequent suit on the defendant’s clams absent the compulsory
counterclaim rule
3. substantially the same evidence support the claim

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

4. Logical relation

- If counterclaim is filed beyond the jurisdiction of MTC, Waived as to the excess


amount
- compulsory counterclaim cannot be subject to a separate action
- Compulsory counterclaim and Motion to dismiss are incompatible remedies. A party
shall choose 1 and he cannot claim both of them.
- A cross claim - arising out of the transaction or occurrence that is the subject matter
of the action or of a counterclaim.
- If the complaint is dismissed, the crossclaim shall also be dismissed.
- crossclaim cannot be filed after declaration of default of the defendant
- Default in the counterclaim is not default in the main action. In default in
counterclaim, it does not divest him of a standing in court.

REPLY
- if no reply, deemed controverted

THIRD PARTY COMPLAINT


- Filed by the defendant WITH LEAVE OF COURT
- It may be disallowed when:
1. third party cannot be located
2. Extraneous manners
3. main action is a declaratory relief.

- Ancillary only and It should be within the jurisdiction of the court where in it is filed.
- Wrote a letter to the court stating his position in the suit - sufficient as an answer
(Cayetano vs Caguerra)

RULE 7: PARTS OF THE PLEADING

- Unsigned pleading shall have no legal effect


- Court may allow party to amend if:
1. due to mere inadvertence
2. Not intended for delay

- Unverified pleading if it is required by court to be verified - as if unsigned.

THREE WAYS TO COMMIT FORUM SHOPPING


1. Filing multiple cases based on the same cause of action and with the same prayer,
the previous case not having been resolved yet ( litis pendencia )
2. same cause of action resolved with finality (res judicata)
3. Splitting of cause of action where ground is litis pendencia or res judicata

If not willful and deliberate - dismissed without prejudice


If willful and deliberate - With prejudice
- Failure to comply shall not be curable by mere amendment
- CNFS is intended only for initiatory pleadings
- GR: A certification by counsel and not by the principal party is no certification at all
(fatal defect)

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- EXC: It may be signed for and in behalf of the corporation BY A LAWYER who has
personal knowledge of the facts required to be disclosed. A resolution was sufficient
to vest such lawyer with the authority to bind the corporation (BA Savings bank vs
Sia)

- Filed a petition. and there was a subsequent filing of CNFS. The slight delay in the filing
should not defeat the action. It cures the defect. Substantial compliance is sufficient
- Non submission of affidavits attached to the position paper is not a fatal defect
considering that the position paper was verified.
- CNFS is not necessary in motion for extension or criminal cases and distinct causes of
action
- A filed a complaint for damages for the negligence of the UST Hospital. UST filed a
counterclaim for moral and exemplary damages and unpaid hospital bills without
CNFS
- For Moral and exemplary damages, NOT INITIATORY. NO NEED FOR CNFS
- For unpaid hospital bills - there is a need for CNFS. Initiatory. Permissive
counterclaim. (UST HOSPITAL VS SULA)
- If spouses or parties have common rights, only one may sign the CNFS


RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

- A party may set forth two or more statements of a claim or defense alternatively or
hypothetically. The pleading is not made insufficient by the insufficiency of one or
more of the alternative statements
- Condition precedent may be averred in general
- Fraud, mistake or condition of the mind must be averred with particularity
- Malice, intent, knowledge or other conditions of the mind - general
- HOW TO PLEAD AN ACTIONABLE DOCUMENT:
1. Substance of such document shall be set forth in the pleading AND
2. Original or copy shall be attached.

ACTIONABLE DOCUMENT:
- Not merely evidentiary
- Deemed admitted unless specifically denies under oath BUT IT DOES NOT APPLY if the
adverse party does not appear to be a party to the instrument or when compliance
with an order of inspection of original instrument is refused.
- admission of genuineness and execution: Effectively eliminated any defense relating
to the authenticity and due execution of the document. NO NEED TO AUTHENTICATE

- Respondent impliedly admitted the genuineness and execution of PN. Respondent


thru his testimony was able to put in issue and present parol evidence to controvert
the terms of the promissory note.
- The Plaintiff did not make a timely objection. Objection to evidence must be
made as soon as the grounds therefore become reasonably apparent. If not
made, objection is made and such testimony is made part of the records.
- An amendment should be admitted to amend it to conform to the evidence
presented. (Maunlad savings and loans vs CA)

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Without knowledge or information sufficient to form a belief as to the truth of a


material averment made in the complaint - EFFECT OF DENIAL
- BUT IT MUST BE MADE IN GOOD FAITH and not for purpose of delay
- Negative Pregnant - Admission in avoidance.
- HOW MAY SHAM, FALSE, REDUNDANT, IMMATERIAL, IMPERTINENT, SCANDALOUS
MATTERS BE STRICKEN FROM THE PLEADING?
1. By a party before responding to the pleading
2. If no responsive pleading permitted by law, upon a motion of party within 20 days
after service of the pleading upon him (example for reply)

- Mere statement that they specifically deny does not constitute a specific denial.
- The Marcoses alleged that they have no knowledge of information sufficient to form
a belief as to the to the truth of the allegations in the complaint . The court held that
they were signatories to such bank accounts and such denial was not done in good
faith. Hence it is akin to a negative pregnant which means denial pregnant with
admissions. (Republic Vs Sandiganbayan)

RULE 9: EFFECT OF FAILURE TO PLEAD

DEFENSES NOT DEEMED WAIVED:


1. Jurisdiction over the subject matter
2. Litis pendencia
3. Res Judicata
4. Prescription

- An answer should be admitted where it has been filed before the defendant was
declared in default and no prejudice has been caused to the plaintiff
- Default orders should be avoided even if there is late filing of an answer. A
declaration of default should not issue unless claiming party asked for it.
- The court cannot motu proprio declare a party in default.
- MOTION FOR DECLARATION OF DEFAULT with proof of failure by the defendant to file
a pleading despite proper notice
- There should be notice to the defendant first
- EFFECTS OF DEFAULT:
1. Waived not only his opportunity to contest the evidence presented
2. Waived right to present evidence in support of a valid defense.

- The report of the public prosecutor is a condition for further proceedings to go


- In case of default, the reliefs granted shall not exceed the amount prayed for. There
can be no award of unliquidated damages in case of default
- The law gives the defaulting parties some measure of protection because despite
default, they are still required to substantiate their allegations in the complaint

- PARTIAL DEFAULT: Common cause of action against several defending parties, some
answered and some failed - The court shall try against all upon the answers filed and
render judgment upon the evidence presented.
: does not apply to Truck driver and insurer (quasi delict and contact)

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If there is already a judgment - Remedies:


1. New Trial
2. Appeal
3. Petition for relief of judgment if final and executory
4. Action for annulment of judgment
5. Rule 65 Certiorari

Plaintiff may be declared in default if failed to file an answer to a permissive


counterclaim

- defaulted party is entitled to notice of subsequent proceedings


- MOTION TO SET ASIDE DEFAULT (ONLY TO SET ASIDE “ORDER” OF DEFAULT- Anytime
before judgement by reason of FAME
- IF JUDGMENT BY DEFAULT - Remedy is appeal or certiorari Rule 65
- In partial default, Court cannot allow the presentation of evidence ex parte against
defaulted defendants. The answer filed by other defendant inures to the benefit of all
defendants.
- If alternative prayers, either is sufficient
- If default - court may only grant prayers alleged.

RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

- Amendment as a matter of right


- Anytime before the responsive pleading is served
- in the case of reply - anytime within 10 days after it is served
- Amendment to pleadings must be liberally construed
- If multiple defendants and not all have answered, the plaintiff may still amend its
complaint once as a matter or right in respect to the claims asserted solely against
the non answering defendant BUT NOT AS TO CLAOMS ASSERTED AGAINST THE OTHER
DEFENDANTS

- Substantial amendments may be made only upon LEAVE OF COURT but such leave
of court may be refused if it appears that the motion is intended for delay
- Amendment may substantially alter the cause of action provided that the
amendments sought to be made shall serve higher interest and prevent delay
(Philippine ports authority vs Gothong)

- If motion to dismiss was filed, MAY STILL AMEND AS A MATTER OF RIGHT. MD is not a
responsive pleading.
- X filed a complaint. Y filed an answer. X has not yet filed a reply. Y has a right to
amend his answer before a reply.
- After the dismissal, the motion for leave to amend may still be admitted for as long as
the dismissal has not yet become final.
- Amendment to the complaint prior to the filing of the answer may introduce new
causes of action.
- If the court has already acquired j over the person, NO NEED FOR NEW SUMMONS.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Judgment may still be rendered not on the basis of the issued alleged but on the
basis of the issues discussed and proved in the course of the trial. The failure of the
private respondent to amend their pleadings in order to conform to evidence will not
at all affect the result of the trial.
- If in the face of the complaint the court has no jurisdiction, amendment should not
be allowed. BUT if no answer or MD filed, original complaint can still be amended a s
matter of right.
- Mandamus is the remedy of matter of right and was refused.
- If no objection, treated in all respects as if it had been raised in the pleading.
- With objection, must amend to conform to evidence and may be admitted where its
admission will not prejudice him.
- Lack or prayer for a specific relief will not deter the court from granting that specific
relief.
- Supplemental pleadings - only supply deficiencies in aid of an original complaint.
Refers to transactions, occurrences, events which have happened since the date of
the pleading sought to be supplemented.
- Failure to answer in a supplemental pleadings - DEFAULT MAY BE ORDERED.

RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

- Within 15 days after service of summons - FILE AN ANSWER and serve a copy to the
plaintiff
- If amendment is a matter of right - 15 DAYS after service of copy
- If not a matter of right - 10 Days from notice of order admitting the same
- If a party earlier filed an answer, it may serve as the answer to the amended
complaint if no new answer is filed. It applies to counterclaim, crossclaim, 3rd party,
complaint in intervention.
- Period to answer counterclaim and crossclaim - 10 DAYS
- Reply - 10 days from service
- Court may extend the time to plead provided it is filed before the lapse of the period
otherwise there is nothing more to extend.
- Admission of pleading filed out of time is in the discretion of the court
- 2 kinds of responsive pleadings: ANSWER AND REPLY
- If corporation and served summons thru a government office, 30 days will be
computed from the date IT RECEIVES the summon.
- If agent or officers in the PH, It should be filed within 15 days after service to them
- If new material allegations or causes of actions are introduced in the amended
complaint, the result is possible declaration of default or admission in the matters not
specifically denied under oath.
- There can be default except if the counterclaim is compulsory
- Reply is not mandatory. If no reply, the party is deemed to have controverted all the
maters alleged in the answer except when it is an actionable document.
- Motion for leave to admit answer attaching the answer should be filed.

RULE 12: BILL OF PARTICULARS

When: Before responding to a pleading or if no responsive pleading is permitted within


10 days after service of the pleading

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Any matter which is not averred with sufficient definiteness or particularity to enable
him to properly prepare for his responsive pleading
- Bill of particulars becomes part of the pleadings once accepted.
- BOP interrupts the period within which to file an answer but it should be no less than 5
days in any event.
- If granted, must be effected within 10 days from notice of the order unless different
period is fixed by the court.
- If non compliance, the court may order the striking out of the pleading or the portions
thereof.

RULE 13: FILING AND SERVICE F PLEADINGS, JUDGMENTS AND OTHER PAPERS

- Service may be made upon the counsel or the party himself if ordered by the court. If
not ordered by the court,
- Service must be effected at the given address of the lawyer
- How service is made:
1. Personally
2. Leaving a copy at his office with his clerk or with a person having charge thereof.

PERSONAL SERVICE:
1. Delivering personally a copy to the party or his attorney
2. Leaving it in his office with his clerk or with a person having charge thereof
3. Leaving a copy at the party’s or attorney’s residence, if known, with a person of
sufficient discretion to receive the same if no person is found in his office or if his
office is not known.

- if registered mail, the date of mailing is the date of filing


- If by ordinary mail, date of receipt by the party is the date of filing
- If service cannot be made personally or by mail, it should be made by delivering the
copy to the clerk of court with proof of failure of both modes of service. The service is
complete at the time of such delivery
- Filing of service of a copy of a pleading by courier service cannot be trivialized (DEL
CASTILLO PENNED CASE)
- Final judgments shall be served personally or by registered mail. If party summoned
by publication has failed to appear in the action, The Final judgment shall be served
upon him by publication at the expense of the prevailing party.

-Service by registered mail is complete upon actual receipt by the addressee.


- EXC: If he fails to claim the mail from the post office within 5 days from the date
of first notice of the postmaster, service shall take effect upon the expiration of such
time.

- Knowledge of the lawyer in the existence of order of execution is not the service
under rule 13. Telephone conversation with the sheriff is not enough.
- If sent by registered mail, there is a presumption that it was received in the regular
course of mail.
- Certification from the postmaster is the best evidence

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Service of ORDINARY MAIL is complete upon the expiration of 10 days after mailing
UNLESS THE COURT OTHERWISE PROVIDES
- Personal service must be prioritized. If cannot be resorted to, the party must have a
written explanation WHY SERVICE BY MAIL WAS RESORTED TO. Without such
explanation, there is no basis for the court to exercise such discretion. IT IS
INDISPENSABLE
- Affidavit of service is a substantial compliance.

MEANS OF PROVING SERVICE OF PLEADINGS:


1. Personal Service: Consist of written admissions of the party served or official return of
the server or affidavit of the party serving, containing a full statement of the date,
place and manner
2. Ordinary Mail: Affidavit of a person mailing of the facts showing compliance with
section 7
3. Registered Mail: affidavit and registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its receipt by the sender or in lieu
thereof the unclaimed letter.

- Followup letter is considered a notice of assessment


- Security guard is neither a clerk nor a person in charge of office, the service is invalid
and the decision did not become final and executory
- Service to the fiscal is insufficient even if he represented the OSG. There must be
service to the OSG. OSG Special attorney is however sufficient service to OSG

Lis pendens - Pending suit to pending litigation

- Jurisdiction, power, or control which a court acquires over property involved in a suit,
pending the continuance of the action and until the final judgment therein.
- Notice of lis pendens - Announcement to the whole world that a particular real
property is in litigation serving as a warning that one who acquires an interest over
said property does so at his own risk

Lis pendens is proper only:


1. Action to recover possession of Real Estate
2. Action to quiet title thereto
3. Remove clouds
4. Partition
5. Other proceedings directly affecting title

RULE 14: SUMMONS

- A writ of process issued and served upon the DEFENDANT in a civil action for the
purpose of securing his appearance therein.
- Clerk of court shall issue summons
- To acquire jurisdiction over the person
- If summons was wrongfully served, the case may not be dismissed because an alias
summons can be actually served on the defendant.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Summons may be made at night as well as during the day or even on a sunday or
holiday because it is ministerial in character
- If nor accompanied by an affidavit settling forth the grounds for publication, court
does not acquire jurisdiction over the person
- If defendant cannot be served within a reasonable time, service may be effected:
a. Leaving copies of the summons at the defendants dwelling house or residence with
some person of suitable age and discretion then residing therein
b. Leaving copies at the defendant’s office or regular place of business with some
competent person in charge thereof.

- Substituted only if defendant cannot be served within a reasonable time. The sheriff
must make a report of his efforts to find the person and the fact that the such efforts
failed.
- Person who received must have a relation of confidence ensuring that the latter
would receive or would be notified of the summons.
- Cancellation of the entries in the record of birth is an action in rem. J Over person is
not necessary
- Explanation of the impossibility of personal service should be stated in the return. It is
an indispensable requirement before performing substituted service
- Extension of time is voluntary appearance. Waived the lack of j over person
- Proof of attempts to a resort to personal service may be submitted by the plaintiff
during the hearing of any incident assailing substituted service
- When persons associated in business are sued under a common name, service may
be effected upon all the defendants by serving upon ANYONE OF THEM or upon the
person in charge of the office or place of business
- Minor/ insane: Personally to him AND guardian per person exercising parental
authority
- Prisoners - Officer having the management of the jail or institution where he is
confined.

- Domestic Private juridical entity(exclusive)


1. President
2. Managing partner
3. General manager
4. Corporate Secretary
5. Treasurer
6. Inhouse counsel

- In substituted, it is not necessary that the person in charge of regular place of business
is specifically authorized.
- PMGCTI may receive the service anywhere. No place designated by our law.
- Substituted service is not allowed in domestic corporation
- Service by publication in domestic corporation is improper where no diligent efforts
were made.

- When foreign cooperation doing business in PH:


1. Resident agent
2. Government official designated by law to that effect

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If PH - Solgen
- If Local government - Executive head (mayor, governor)
- Unknown defendant or address is unknown - By leave of court, be made by
publication in a newspaper of general circulation - MAY BE APPLIED IN ANY ACTION
(In personal or in rem)

- Temporarily out:
1. Substituted service
2. Personal service outside the country with leave of court
3. Service by publication with LOC
4. In any other manner where the court deemed sufficient

Requirements of service by publication:


1. If defendant is
- Unknown or unknown address
- Non resident not found in PH
- resident temporarily out in PH

2. Action in rem or quasi in rem


- affects personal status of the plaintiff
- Subject matter of action is a property in the PH which the defendant has a claim or
interest
- Purpose is to exclude defendant from any interest in the property
- property of the defendant has been attached in the PH

3. Leave of court

- How service by publication be effected:


- 1. In newspaper of general circulation in such places and for such time the court
orders
- 2. Sending a copy of the summons and order of the court allowing service by
publication by registered mail to the last known address of the defendant

- The proper recourse of the creditor in actions in personam is to locate the properties,
real or personal, of the defendant with an unknown address or is abroad and cause
them to be attached under Rule 57. which in this cases converts the action into a
proceeding in rem or quasi in rem by publication
- Publication in Metropolitan newsweek is not publication by law
- The courts cannot award for damages if it failed to acquire the jurisdiction over the
person of the defendant
- Inclusion of payment of the obligation as a ground is not voluntary appearance
- Filing of an answer - deemed to have waived the defective service of summons

RULE 15: MOTIONS

- If a litigated motion, It must comply with the 3 day notice rule. ALL PARTIES
CONCERNED
- A motion that does not contain a notice of hearing is a mere scrap of paper even if it
is denominated as URGET

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If only served through ORDINARY MAIL, but was given full opportunity to be heard
and argue - CURED THE DEFECT
- Notice of motion is required where a party has a right to resist the relief sought by the
motion and principles of natural justice demand that his right be not affected without
an opportunity to be heard.
- If no notice of motion in Motion for recon, the running of the period to appeal is not
tolled by their filing or pendency
- If directed to the clerk of court - SCRAP. It must be directed to the parties.
- Denial of motion for postponement must not mean waiver of the respondent’s right
to cross examine the witness
- Omnibus motion’s exception: SLRP
- motion for leave to file a pleading must be attached by the pleading sought to be
admitted.

RULE 16: MOTION TO DISMISS

Omnibus Motion Rule - A motion attacking a pleading. All defenses not included are
deemed waived except SPLITRE

- If filed an MD and Bill of particulars, MD was denied, Reglementary period remains


suspended until action for bill or particulars is acted upon
- The remedy for denial of MD is Rule 65 not an appeal because it is merely
interlocutory
- Effect of MD on the ground of Failure to state cause of action: Admits all the
averments thereof

FAILURE TO STATE CAUSE OF ACTION LACK OF CAUSE OF ACTION

Complaint does not allege a cause of action. Evidence does not sustain the cause of action
alleged

Can be determined in the initiatory pleading The plaintiff has rested his case and can be
and not from the evidentiary or other matters resolved only on basis of the evidence he
aliunde presented to support the claim

Rule 16, Motion to dismiss Raised in a demurrer to evidence under rule 33

(FAVORITE TO DISTINGUISH BY JUSTICE DEL CASTILLO)

- If failure to state cause of action, sufficiency can only be determined by considering


the facts alleged in the complaint
- Hypothetical admissions is however limited to the relevant and material facts well
pleaded in the complaint and inferences fairly deductible therefrom. It does not
extend to conclusions or interpretations of law.
- If failure to state cause of a action, there is hypothetical admission of the facts
alleged but it is only hypothetical. They can still be specifically denied in the answer if
the motion to dismiss is denied.
- Failure to state cause of action can be invoked in motion for judgment in pleadings
or at the trial on the merits. it can be invoked at any stage of the proceedings.
- Academic freedom - failure to state cause of action.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Requisites for LITIS PENDENTIA -


- Same parties or interests
- Same rights asserted and reliefs prayed for
- Reliefs founded on the same facts
- identity is such that either way the pending case is decided, it would constitute a bar
to the present case.

- Action commences upon the filing of the complaint, not upon service of summons.
- When the court issued the writ of possession, it was merely exercising the ministerial
function of issuing the writ of possession.

- REQUIREMENTS FOR RES JUDICATA:


1. Former order or judgment that is final and executory
2. Order or judgment was rendered by a court of competent jurisdiction
3. On the merits
4. Identity of parties, subject matter and cause of action

- The action for declaratory relief should give way to the ejectment suit and it should
be raised in the unlawful detainer case because it may be used as a defense to the
action.
- Quieting of title and damages and annulment and cancellation of titles and
damages - litis pendentia.
- Three is no hard and fast rule in determining which actions should be abated on the
ground of litis pendentia
- When no earnest efforts to a compromise have been availed of, A motion to dismiss
on the ground of Lack of cause of action may ba available.
- Barangay conciliation - lack of cause of action
- Earnest efforts towards compromise to immediate members of the same family
applies only to civil actions not to special proceedings.
- Motion to Dismiss is granted Without notice of hearing - merely an irregularity
- MD must be filed before the answer or else deemed waived except non waivable
defenses
- A party declared in default may not file a motion to dismiss. But he may have the
right to appeal from the judgment without having filed a petition to set aside order of
default
- A party may file an answer of his motion to dismiss is denied within the balance of the
period to file an answer to which he was entitled to at he time of serving his motion
but NOT LESS THAN 5 DAYS IN ANY EVENT
- Denial of MD is interlocutory hence the remedy is to file an answer, proceed to trial
and await judgment. EXCEPT if there is GAD - RULE 65 Certiorari

- If dismissed on the following grounds, it shall be barred from refiling the same action
but they may still appeal because it is a final order
1. Res Judicata
2. Prescribed
3. Payment, waiver, abandonment or extinguishment
4. Unenforceability under statute of frauds

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- The dismissal of the complaint on the grounds relied upon as affirmative defenses but
which are ground for motion to dismiss shall be WITHOUT prejudice to protection in
the same or separate action of a counterclaim pleaded in the answer.

- GR: IF NOT ALLEGED IN AN ANSWER, DEEMED WAIVED.


- EXC: The rule does not apply to the rule on summary pro because it proscribes a
motion to dismiss except lack of j over subject matter and failure to comply with
condition precedent.
- Filing of MD invoking lack of jurisdiction over the PERSON is deemed voluntary
appearance.

RULE 17: DISMISSAL OF ACTIONS

- An action may be dismissed by the PLAINTIFF without court order by filing a NOTICE
OF DISMISSAL at any time before service of the answer or of a motion for summary
judgment. ( matter of right)
- Filing of motion for the dismissal of the action by the plaintiff at any stage OTHER
THAN as a matter of right (Discretionary)
- If defendant filed a Motion to dismiss and plaintiff filed a notice of dismissal, Deemed
dismissed. Because it is a matter of right. Court has no choice but to dismiss.
- If dismissed twice by the plaintiff - WITH PREJUDICE = operates as an adjudication
upon the merits.

- Two Dismissal rule - The same complainant had twice been dismissed by the
PLAINTIFF by mere act of serving Notice of dismissal. Second dismissal operates as an
adjudication upon the merits - WITH PREJUDICE. CANNOT BE REFILED.

- If court is silent - WITHOUT PREJUDICE


- Class suit cannot be dismissed or compromised without the approval of the court
- If counterclaim has been pleaded by the defendant prior to the service upon him of
the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint and
not to the counterclaim.

- IF Dismissal of an action for failure of the plaintiff to prosecute, it is without prejudice


to the RIGHT OF THE DEFENDANT to prosecute his COUNTERCLAIM in the same or
separate action. It is dismissal with prejudice unless declared otherwise.

- If fails to appear to trial, failure to prosecute for a long period of time, Comply with
the rules of court, It may be dismissed by motion of defendant or by court and it is
WITH PREJUDICE unless court states otherwise. ALSO IF UNQUALIFIED - WITH PREJUDICE
- Remedy is to file a notice of appeal Rule 41 applies
- Non statement of reasons for dismissal for failure to prosecute is patent void on its
face.
- Without prejudice means absence of a decision on the merits and may refile

Grounds for dismissal:


1. fails to appear to trial,

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

2. failure to prosecute for a long period of time,


3. Comply with the rules of court
4. Comply with the orders of court

COURT MAY MOTU PROPRIO DISMISS


1. fails to appear to trial,
2. failure to prosecute for a long period of time,
3. Comply with the rules of court
4. Comply with the orders of court
5. Lack of Jurisdiction

- Failure of the plaintiff to appear not the absence of his lawyer is a ground for dismissal
- Postponed for several times at the instance of the plaintiff - failure to prosecute
- Failure to appear must be on the trial not on a mere instance
- Failure to file an opposition is considered failure to comply with the order of court
- Failure of the parties to file compromise agreement is not a ground

- The dismissal of the complaint does not ipso sure result in the dismissal of the
counterclaim and the latter may remain for independent adjudication of the court
provided that such counterclaim states SUFFICIENT CAUSE OF ACTION, and does not
labor under any infirmity that may warrant its outright dismissal

RULE 18: PRE TRIAL

- After the last pleading has been served and filed. Plaintiff shall promptly move expert
that the case be set for pre trial
- Pre trial is mandatory
- Notice of pre trial shall be served on counsel or on the party who has no counsel
- Notice of pre trial shall be served SEPARATELY on the counsel and the client
- If only on the counsel, the notice must expressly direct the counsel to inform the client
of the date, time and place
- Absence of notice renders the proceedings void and the judgment be rendered
therein cannot acquire finality and may be attacked directly or collaterally

FAILURE TO APPEAR:
- Plaintiff - The same shall be a cause for dismissal of the action which shall be with
prejudice
- Defendant: Cause to allow the plaintiff to present his evidence ex parte and the court
shall render the judgment on the basis thereof

Excuse only if:


1. Valid cause shown
2. If representative shall appear in his behalf fully authorized in writing to enter into
amicable settlement, submit to alternative modes of dispute resolution and to enter
into stipulations

- Failure to file the pre trial brief shall have the same effect as if failure to appear in PT
- Pre trial brief - filed at least 3 days before the date of pre trial

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- After pre trial, the court shall issue pre trial order
- Contents of the pre trial order shall control the subsequent cause of the action but it
is not absolute. it may not do so in the interest of justice
- If contract provides that parties shall first resort to arbitration, if the case is already
filed, the court shall STAY the proceedings and pursue to arbitration

- REMEDIES IF ARBITRATION COMMITTEE DENIED ITS MOTION FOR RECONSIDERATION:


1. RTC to issue an order vacating the award on the grounds provided
2. File a petition for review under rule 43
3. Certiorari under Rule 65

RULE 19: INTERVENTION:

Any person who has legal interest in the matter in litigation or in the success of either of
parties or an interest against both or is so situated to be adversely affected by a
distribution or other disposition of property in the custody of the court or an officer, with
leave of court be allowed to intervene in the action.

- Filed by a third party not impleaded


- Intervention is not mandatory and is optional and permissive

REQUISITES:
1. Legal interest in the matter in controversy
2. Legal interest in the success of either parties
3. Legal interest against both
4. Adversely affected by distribution or other disposition
5. Not unduly delay or prejudice
6. Intervenor’t rights may not be fully protected in a separate proceeding

- Interest must be direct and immediate in character


- Motion for leave to intervene is the proper motion
- Transferee pendente lite does not need to intervene to protect his interest
- A stockholder has only an interest that is indirect, contingent and inchoate. The
corporation has a separate legal personality from its stockholders. They cannot
intervene. (ASIA’S EMERGING DRAGON CORP. VS DOTC).

- Intervention shall be filed anytime before rendition of judgment by the trial court.
- Intervention is merely an ancillary action
- Intervention may be made after trial but before judgment.
- Surviving legal spouse and the legitimate child of the decedent were allowed to
intervene in the intestate proceedings even after the parties had already submitted a
compromise agreement.

- GR: Intervention cannot be allowed on appeal


- EXC: IN THE INTEREST OF SUBSTANTIAL JUSTICE.
- In Falcasantos vs Falcasantos, allowed even on appeal because the intervenor
was an indispensable party

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- The intervenor may file a complaint-in-intervention (if unites with the plaintiff) or
answer-in-intervention (if unites with the defendant)
- The answer in complaint-in-intervention shall be filed within 15 days from notice of
order admitting the complaint-in-intervention unless fixed by the court.
- Intervention is a collateral or accessory action. If original action is dismissed,
complaint in intervention can no longer be acted upon
- There can be intervention in the probate of will
- Remedy if intervention is denied - APPEAL.
- Denial of intervention is not res judicata to another action
- If failed to answer in complaint-in-intervention, NO DEFAULT
- If Motion to intervene is granted, Parties may file for Certiorari. It is merely an
interlocutory order

RULE 20: CALENDAR OF CASES

- Done by clerk of court


- The court shall give preference to Habeas Corpus, Election cases, Special civil actions
and those required by law
- Cases are assigned exclusively by raffle in an open session

RULE 21: SUBPOENA

- Process directed to a person requiring him to attend and testify at the hearing or the
trial of an action or at any investigation conducted under the laws of the PH or for
taking of his deposition. It may also require him to bring with him any books,
documents, or other things under his control

- Subpoena Ad testificandum - to testify


- Subpoena Duces Tecum - to produce documents in his control or possession.
- May be issued by courts, office or bodies authorized by law, any justice of SC or CA
in any case pending in PH
- Prisoner SENTENCED to death, reclusion perpetua or life imprisonment shall not be
authorized to testify unless allowed by SC
- If duces tecum, it shall contain reasonable description of the books, documents
demanded

- The court may QUASH in any event at or BEFORE THE TIME SPECIFIED IN THE SUBPOENA
DUCES TECUM if unreasonable, oppressive, not relevant or fails to advance the
reasonable cost of production.
- Subpoena Ad Testificandum - may quash if witness is not bound thereby
- They may also be quashed if the fees or kilometrage allowed by the rules were not
tendered

Who shall serve?


- Sheriff, deputy or any other person specially authorized who is not a minor

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- The Subpoena is served by exhibiting the original and a copy thereof shall be
delivered to the person named therein tendering him the fees for one day’s
attendance and the kilometrage allowed by the rules
- EXC: When issued on behalf of the RP or officer or agency, tender may not be
made.

- If it shown by affidavit that a witness is concealed in a building or vessel as to prevent


the service upon him and that his testimony is material, the court may issue an order
authorizing the sheriff or his deputy to break into the building o vessel where the
witness is concealed.
- Prisoner - served to the jail warden
- Trial can be conducted in National bilibid prison’s premises if the prisoners sentenced
to death or RecPerp or life imprisonment and if the judge is a judge of metro manila,
or provinces of Rizal, bulacan, cavite, laguna (ADMIN CIR 6)

- A witness is not bound to attend before any court, judge or officer if he resides more
than 100 KILOMETERS from his place of residence to the place of trial by usual course
of travel.
- If detention prisoner, permission of the court in which the case is pending must be
obtained.
- If beyond 100 km or no permission of the court in detention prisoners, person cannot
be bound to appear. (ONLY TO CIVIL CASES)

- Person present in court before a judicial officer may be required to testify as if he


were in attendance
- If witness failed to appear, and there is proof of service and the failure is on the part
of the witness, the court may issue a warrant to arrest the witness. The costs shall be
paid by the witness if it shall determine that the failure to answer the subpoena was
willful and without just excuse.

RULE 22: Computation of time

- The First day is excluded and last day or day of performance is included.
- If the last day falls on a Saturday, Sunday or legal holiday, the time shall not run until
the next working day
- Same as Article 13 of the civil code
- Any extension to file the required pleading shall be counted from the expiration of
the period regardless of the fact that it is sat, sun or legal holiday.
- Should there be an act done which interrupt the running of the period, the allowable
period after such interruption shall start to run on the day after notice of the cessation
of the cause thereof

RULE 23: DEPOSITIONS PENDING ACTION

- Purpose of Modes of discovery is to shorten the period of litigation and speed up


adjudication
- Shall be allowed absent any showing that it would prejudice any party.
- Liberal and broad interpretation

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KINDS OF DEPOSITIONS:
1. Deposition de bene esse - One taken pending action
2. Deposition in perpetua rei memoriam - one taken prior to the institution of an
apprehended or intended action

Modes of discovery in ROC:


1. Depositions pending action (23)
2. Interrogatories to parties (25)
3. Request for admission (26)
4. Production or inspection of documents or things (27)
5. Physical and mental examination of persons (28)

Deposition - A mode of discovery, the primary function of which is to supplement the


pleadings for the purposes of of disclosing the real points of the dispute in advance of
the trial or hearing, upon oral examination or in response to written interrogatories and
where an opportunity is given for cross examination

When may party take deposition:


1. By leave of court after jurisdiction has been obtained over any defendant or over
property which is the subject of the action
2. Without leave of court after an answer has been served
3. By leave of court when the depositions of a person confined in prison is to be taken

- It may be done by oral examination or written interrogation


- Any party to an action may take deposition
- Covers any matter relating to the claim or defense of any party. EXCEPT:
1. Privileged matter
2. Not relevant to the subject of pending action
3. Court limits

Where may depositions be used:


1. At the trial
2. Hearing of the motion
3. Hearing of an interlocutory proceeding

It may be sued against party:


1. Present
2. represented while taking
3. notified of the taking

- Substitution of parties does not affect the right to use depositors previously taken
- When an action has been dismissed and another action is afterwards brought
between the same parties or their representatives or successors in interests, all
depositions lawfully taken and filed in the former action may be used in another
action with same subject matter
- Objections to the depositions must be made at the trial or hearing but errors or
irregularities of any kind which might have been obviated, cured or removed if

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promptly presented are waived unless reasonable objection is made at the taking of
the deposition.
- A party shall not be deemed to make a person his own witness for any purpose by
taking his depositions. He may or may not use his depositions
- It may be taken before any judge or a notary public
- If foreign country: secretary of embassy or legation, Consul general, Consul, vice
consul, consular agent, any person or office as may be appointed by the
commission.

Commission - an instrument issued by a court of justice or other competent tribunal


directed to a magistrate by his official designation or to an individual by name,
authorizing him to take the depositions of the witnesses named therein.

Letters Rogatory - request to a foreign court to give its aid baked by its power to secure
desired information.

- Leave of court is not needed when deposition is taken before secretary of embassy
- If no sec of embassy, it may only be taken by means of appointment by commission
or by letter rogatory

- Court may issue orders after notice is served to protect the rights of the party or the
deponent
- Deposition shall be made under oath
- Parties may stipulate in writing on another or different procedure
- Court may allow deposition if it is conducted in bad faith or in such a manner as to
annoy, embarrass, or oppress the person subject of the inquiry
- The availability of the proposed deponent to testify in court does not constitute good
cause to justify denial.
- Depositions is not meant to be a substitute for the actual testimony in an open court.
- Right to take and right to use in deposition is different.
- If available to testify, deposition is not admissible in evidence (use) but in terms of
taking, availability is not a ground for its denial (taking)
- BUT IT IS NOT ABSOLUTE: Depositions may be used without the deponent being called
to the witness stand provided conditions are made:
1. Witness is dead
2. Witness resides at a distance more than one hundred kilometers from the place of
trial or hearing
3. out of the PH
4. Unable to attend because of age, sickness, imprisonment or infirmity
5. unable to procure by subpoena

- Act of participating and even cross examining the deponent during the taking of the
deposition cannot be considered a waiver of the right to object to its admissibility as
evidence in the trial court.
- Inadmissibility of the deposition makes it hearsay

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RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

- A person who desired to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the PH may file a
VERIFIED PETITION in the court of the province of the residence of any expected
adverse party.
- Notice shall be served on each person named at least 20 days before the hearing
- If court is satisfied that the perpetuation of the testimony may prevent a failure and
delay, it shall make an order designating or describing the persons whose deposition
may be taken.

RULE 25: INTERROGATORIES TO PARTIES

- It may be served :
1. Leave of court after jurisdiction has been obtained over the defendant or over
property which is the subject matter
2. Without leave after an answer has been served.

Who shall answer:


1. Adverse party served
2. if Public/private corporation, partnership or association, ANY OFFICER competent to
testify

- It shall be answered separately and fully in writing and under oath, signed by the
person making them and served.
- Objections may be presented within 10 days after service
- GR: A party not served may not be compelled by the adversary party to GIVE
TESTIMONY in open court or to give depositions pending appeal.
- EXC: Allowed by court for good cause shown to prevent failure of justice
- Modes of discovery is not mandatory
- In civil case, witness is not allowed if no written interrogation is served
- Presumption that if no written interrogatories, The witness will be unable to elicit useful
facts

RULE 26: ADMISSION BY ADVERSE PARTY

- A written request for admission may be served upon a party at any time AFTER the
issued have been joined
- A reply to the request shall be served upon the party making the request within the
period designated in the request which SHALL NOT BE LESS THAN 10 DAYS after service
or within such further time as the court may allow
- Reply shall be in a form of sworn statement
- If party refuses to make a reply to a request for admission, each matter of which is
deemed admitted.
- If deemed admitted, the party may file summary judgment

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- If already denied, and a party sent a request for admission of factual allegations, and
failed to reply, it is not deemed admitted for it was already denied.
- If request for admission is served upon a lawyer, not deemed sufficient compliance
because when a law expressly states that notice must be served on a particular
person, it shall be followed. Thus requests shall only be served upon the party himself.
- Admissions made pursuant to request may be withdrawn or amended either
expressly or impliedly under terms that are just
- If request for admission is mere reiteration of the material allegations, No need to file
an answer.
- Failure to file and serve requests for admission, the party shall bot be permitted pre
present evidence of such facts UNLESS allowed by court.

RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

REQUISITES:
1. Motion filed showing good cause
2. Notice to all parties
3. Sufficiently describing the document
4. Contains material evidence
5. Not privileged
6. Possession or control of adverse party

- While action is pending

INSPECTION OF DOCUMENTS RULE 27 Subpoena Duces Tecum

Mode of discovery Means of compelling the production of evidence

Limited to all parties Party or not

Upon motion and notice to adverse party May be issued ex parte

-Documents attached to the pleadings may be subject of motion for inspection or


production
- If party refuses to obey, contempt
- Sanctions for disobedience of modes of discovery
1. Dismissing the action
2. Default
3. Contempt
4. Payment of amount for reasonable expenses
5. Striking out of pleadings
6. Staying further proceedings

RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS


REQUIREMENTS:
1. Physical or mental condition must be in controversy
2. Motion showing good cause

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3. Notice of motion must be given

- Person examined shall UPON REQUEST be entitled to a copy of the report.


- Party causing the examination shall be entitled UPON REQUEST to receive from the
party examined
- If party examined refuses to deliver, the court on motion and notice may order the
same to be delivered.
- If Physician fails or refuses to make such report, the court may exclude his testimony if
offered in trial
- Party examined who obtains the report waives any privilege he may have in that
action or any other action involving the same controversy regarding the testimony of
every other person who has examined him or her. (not privileged anymore. waiver)

RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Legal consequences: The court may order:


1. Complete the examination on the other matters and adjourn the same
2. Order to compel answer
3. If refusal without substantial justification, court may order payment of reasonable
attorney’s fees
4. Contempt
5. Striking out
6. Stay further proceedings
7. Judgment by default
8. Arrest party

RULE 30: TRIAL

- Examination before a competent tribunal of the facts or law put to issue in a case for
the purpose of determining the issue
- If parties agree in writing on the facts involved in the action, they may ask the court
to render judgment without introduction of evidence
- Agreed statement of facts may be basis of judgment
- Notice of trial shall be received 5 days before the date itself

RULE 31: CONSOLIDATION OR SEVERANCE

MODES OF CONSOLIDATING ACTION


1. Recasting the case already instituted
2. Consolidating the case existing conducting only one trial and hearing and
rendering only one judgment.
3. Without recasting or consolidating, the principal case is heard and the hearing of
others is suspended until judgment is rendered.

It is proper if:
1. Two or more actions involving same or common Question of law or facts
2. pending before the same court

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- No period to consolidate because it may be done even first time pending appeal.
- Court may also order separate trial to avoid prejudice

RULE 32: TRIAL BY COMMISSIONER

It may be conducted when:


1. Both parties agreed in writing to refer to a commissioner
2. The court on its motion or on motion of either party directs reference to a
commissioner on certain cases.

Commissioner - referee, auditor, examiner

Court may refer to commissioner motu proprio or motion of parties:


1. Fact requires examination of a long account in which the commissioner may be
directed to hear and report upon the whole issue or specific question.
2. Taking of an account is necessary for the information of the court before judgment
or for carrying a judgment or oder into effect
3. Question of fact

- Court referred with implied consent of the parties, substantial compliance

Powers by commissioner:
Court may order specifying or limiting the powers like:
1. Report on particular issue
2. do or perform particular acts
3. Receive or report evidence only
4. May issue subpoena and swear witness

- Same had been had before the court


- Upon completion of the trial, he may file his report
- A party may object to the commissioner’s report within 10 days from notice of filing of
the report of the commissioner
- Objections based on the grounds which were available to the parties during the
proceedings before the commissioner other than the objections to the findings and
conclusions shall not be considered by the court unless they were made before the
commissioner.
- The weight of the report depends on the court.
- Notice of filing of the report must be sent to the parties. The failure to grant the parties
may constitute a serious error in violation of due process.
- EXC: If parties who appeared before the commissioner were duly represented
by counsel and given an opportunity to be heard

- Clear violation of due process if no notification for the submission of report and
without setting it for hearing
- The commissioner’s report is not binding upon the court. The court is free to adopt,
modify, reject it.

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- The parties however may agree that the findings of the commissioner shall be final
and binding to them. The court shall consider only questions of law arising from the
report.
- Clerk of court may be ordered to become a commissioner and receive evidence
and make a report
- Defect is procedural and may be waived. If party objects thereto, he must do it on
time and in trial.

RULE 33: DEMURRER TO EVIDENCE

Motion to dismiss filed by the defendant after the plaintiff had rested his case on the
ground on INSUFFICIENCY of evidence
- Filed after presentation by plaintiff of the evidence

EFFECTS:
1. Defendant does not waive his right to offer evidence in the event the motion is
denied.
2. If motion is granted and order is revered upon appeal, the movant loses the right to
present the evidence on his behalf.

In criminal case:
- IF WITH LEAVE OF COURT - If court denies the motion, the accused may adduce
evidence
- NO LEAVE OF COURT - waives his right to present evidence and submits the case for
judgement on the basis of evidence of the prosecution.

RULE 34: JUDGMENT ON THE PLEADINGS

- When an answer fails to tender and issue or otherwise admits the material allegations
of the adverse party’s pleading

EFFECTS:
1. If done without offering proof as to the truth of his own allegations and without
giving the opposing party an opportunity to introduce evidence - Understood to
admit all the material allegations of the opposing party
2. Considered waived his claim for damages and to have consented to such
judgment
3. Allegations as to the amount of damages are not deemed admitted even if not
specifically denied

- Allegation of Fortuitous event tenders an issue


- In judgment on the pleadings there is no ostensible issue at all because of the failure
of the defending party to answer or raise an issue
- Submission of supporting papers is not required because everything is based on the
pleadings only
- General denial - does not tender an issue - Judgment on the pleadings

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JUDGMENT ON THE PLEADINGS SUMMARY JUDGMENT

Answer does not tender an issue There is an issue tendered by it is not genuine or
real as may be shown by affidavits and
depositions that there is no real issue

Must give 3 day notice of hearing Party is given 10 days notice

Entire case may be terminated Partial termination is allowed

Only the plaintiff, defendant in case of Plantiff or defendant


counterclaim, crossclaim or 3rd party
complaint may file

JUDGMENT ON THE PLEADINGS JUDGMENT BY DEFAULT

Defendant answered but did not tendered an Defendant did not file an answer
issue

Judgment is based on the pleadings Evidence is received


alone
Based on the allegations in the pleadings Based on evidence presented.

- In summary procedure, if no answer, file a motion to render judgment and not


judgment on the pleadings because it is a prohibited motion in SumPro.

- Judgment may be validly rendered on issues not alleged in the pleadings if evidence
thereto is presented with the express and implied consent of the adverse party
(Jacinto vs CA)

- Remedy in case of judgment on the pleadings: Appeal by Certiorari upon pure


questions of law. Judgment is final.

Not applicable to:


1. Annulment of marriage or legal separation
2. Unliquidated damages

RULE 35: SUMMARY JUDGMENT (Accelerated judgment)

- A party seeking to recover upon a claim, counterclaims or cross claim or to obtain


declaratory relief may AT ANY TIME after the pleading in answer thereto has been
served.
- Function of the court is to determine whether or not there is an issue of fact.
- Any doubt as to the existence of the issue must be resolved against the movant
- SJ can be resorted to only where there are no questions of fact in issue or where the
material allegations of the pleadings are not disputed.

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REQUISITE OF SUMMARY JUDGMENT:


1. There must be no genuine issue as to any material fact EXCEPT the amount of
damages

- The order granting the motion for summary judgment and its execution despite the
absence of notice of hearing is merely an IRREGULARITY. Remedy is to set aside
otherwise cured by the court.
- Summary judgment is proper if counterclaim claims for a sum of money larger than
that demanded in the complaint provided that it is valid counterclaim
- Motion shall be served at least 10 days before the time specified for hearing. After
service of motion for summary judgment, the adverse party may serve opposing
affidavits at least 3 days before the hearing

GENUINE ISSUE - issue of facts which call for the presentation of evidence.
- Where the facts pleaded by the parties are disputed and contested, proceedings for
summary judgment cannot take place
- Allegation of foreign laws, it must be presented in court. thus SJ is not proper
- SJ is proper when there is failure to deny under oath the genuineness and due
execution of the actionable document.
- Failure to deny statement of accounts does not entitle SJ. There is a need to prove
the actual damages
- In a suit for the recovery of money where defendant admitted the liability and just
checking the correctness, SJ may be rendered.
- If plaintiff agreed to waive all other claims, and only the amount of compensation is
disputed, SJ is proper.
- Partial judgment is valid. Such judgment is interlocutory
- After rendering summary judgment, it shall proceed to assess the amount of
damages.
- If submission of Affidavits in bad faith, Court may order to pay reasonable expenses
including reasonable attorney’s fees and may be guilty of contempt
- No need for trial if SJ is filed properly
- SJ is not applicable to marriage (annulment or LegSep)
- Remedy: APPEAL because it is a final order. But if there is already a writ of execution,
Certiorari is more appropriate.

- SJ may be granted even with the pendency of a third party complaint

RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

- Shall be in writing, personally and directly prepared by the judge stating clearly and
distinctly the facts and the law which it is based.
- EXC: Not absolute because if it is merely an Interlocutory order or it does not
dispose the case on the merits, it does not need to comply with the requirement

- Filing with the clerk of court constitutes rendition of judgment not its signing

Obiter Dictum - an opinion expressed by a court upon some questions of law which are
not necessary to the decision of the case before it.

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- If decision does not state the reason or basis for the same it is void.

Interlocutory - if it leaves something else to be done by the trial court on the case or if it
does not terminate or does not finally dispose the case

- If judgment without findings of facts in MTC, RTC may remand it to MTC


- Judgment holding a person liable for attorney’s fees must state the reason for the
award.

Promulgation of the decision - Process which a decision is published, officially


announced, made known to the public or delivered to the clerk of court.

- There is a need for notice duly served on the parties whether final or interlocutory
- Conditional judgment is void.
- Sin Perjuicio or one that makes reservation in favor of some parties as to their right to
do something in a separate and further proceedings is not binding and void.

- A court cannot reserve the right of a party to file another action EXCEPT when
granted the power to give an order without prejudice.
- If reserved the right to file another action and is not granted - Erroneous
- Judgment based on compromise has the force of law and is conclusive upon the
parties. It has the effect of res judicata. It cannot be amended or modified and it
cannot be disturbed except for vices of consent or forgery
- The date of finality of the judgment shall be deemed the DATE OF ENTRY
- Date of entry is the reckoning point for the reglementary period of 5 years for
execution or 6 months for relief from judgment.
- A third person who is not privy to a case may join a compromise and may submit to
the jurisdiction of the court
- Void judgment has no legal effect except when Doctrine of Operative facts is
applicable.

Mittimus - Final process for carrying into effect the decision of the appellate court and
the transmittal to the court a quo. It is predicated upon the finality of the judgment,.

- The court may change its decision or even make a new one before the lapse of
period to appeal or before it becomes final and executory
- Final judgment can be changed, modified or altered as an exception if: there is a
supervening event or when it is necessary to attain the aims of justice.

- LOT 1898 was the subject matter. The dispositive portion ordered the reconveyance
of LOT 1868. It became final and executory. Despite finality, the court amended to
conform to evidence. It was allowed. If the amended was intended to clarify an
ambiguity caused by an omission or mistake in the dispositive portion of the decision,
it may be allowed to amend even finality. Since Lot 1868 was not the subject of the
controversy, the amendment was clerical, harmless and typographical. Hence there
was nothing whimsical. capricious in the action of the court to amend (Baguio vs CA)

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Immutability of judgment - Final judgment cannot be modified even if the purpose is to


correct perceived erroneous conclusions of facts or law.

- Court may clarify judgment even if it is final and executory but it can only interpret
the ambiguity
- Judgment may be for or against one or more of several plaintiffs and for or against
one or more several defendants.
- Remedy of party in several judgment is APPEAL.
- Several judgment means Separate judgment.
- Court may render several judgment if the interests of the defendant are SEPARATE
and Severable.
- Several judgment is not applicable if there is common cause of action.
- If partial judgment on May 14 and another one in June 2, Reckoning period for
appeal of the judgment is on June 2. It is merely interlocutory on May 14

RULE 37: New Trial or Reconsideration

- Grounds for New Trial:


1. FAME which ordinary prudence could not have guarded against and by reason of
which such aggrieved party has probably been impaired in his rights
2. Newly discovered evidence which he could not with reasonable diligence have
discovered and produced at trial and which if presented would probably alter the
result
3. Award of excessive damages, insufficiency of evidence to justify decision or
decision is against the law.

GROUNDS FOR MR
1. Damages are excessive
2. Evidence is insufficient to justify the decision of final order
3. Decision or final order is contrary to law

- It must be filed before the finality of judgment


- New trial mat be treated as petition for relief from judgment when judgment has
become final
- Petition for relief may be considered as a motion for new trial if the judgment has not
become final

MOTION TO REOPEN MOTION FOR NEW TRIAL

Available after either or both parties have Proper after the rendition of a judgment
rested their case but before judgment.

Not governed by the rules Recognized by the rules.

MOTION FOR NEW TRIAL PETITION FOR RELIEF OF JUDGMENT

Filed before the order becomes final and Filed after the finality of the judgment or order but
executory within the so called 60 day, 6 months period

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- Motion for extension of time to file MR OR NT can only be filed in SC


- Fraud is only EXTRINSIC FRAUD

Extrinsic Fraud - fraud committed by the prevailing party outside of the trial of the case
which prevents a party from having his day in court

Intrinsic Fraud - Use of forged instruments or perjured testimony which did not affect the
presentation of a case.

Examples of Extrinsic fraud


1. Deliberate misrepresentation that lots are not contested
2. Applying for and obtaining adjudications and registration in the name of a co
owner of land which he knows has not been allotted to him by partition
3. Intentionally concealing facts and conniving with land inspector
4. Willfully misrepresenting that there are no other claims
5. Deliberately failing to notify a party entitled to notice
6. Inducing a party not to oppose the application
7. Misrepresentation of identity of land.

- False affidavit of loss of TCT does not constitute extrinsic fraud


- Insanity is not a ground for annulment of judgment
- Abandonment of a lawyer is a ground for trial because it prevented the client from
presenting evidence.
- Accident is a ground for New Trial where the party seeking it had exercised ordinary
diligence to ascertain the facts which it is claimed to have surprised or prevented
said party from presenting his case
- Mistake must be unintentional act arising from ignorance, surprise, imposition of
misplaced confidence. But only mistake of fact
- Excusable neglect - Failure to take the proper steps at the proper time, not in
consequence of a party’s own carelessness or unavoidable hindrance of care and
vigilance of his counsel or on promises made by the adverse party.
- Failure to answer due to employee’s sudden illness where the lawyer was not
informed constitutes excusable neglect
- GR: Clients are bound by the mistake of their lawyers. EXC: If gross that the party may
have been deprived of the right of due process.

Requisites for Newly discovered evidence


1. Discovered after the trial
2. Such evidence could not have been discovered or produced at the trial with
reasonable diligence
3. Material that it will probably change the judgment

BERRY RULE - Requirements for NDE (Berry vs State of Georgia)


1. Evidence has come to his knowledge since the trial
2. It was not owing to the want of due diligence that it did not come sooner
3. Material that it would produce a different verdict if granted
4. Not cumulative
5. Affidavit of the witness himself should be produced

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6. It will not be granted if the only object of the testimony is to impeach the character
of the witness

- Rule that Second Motion for new trial is not absolute. The prohibition applies only to
Final judgments and NOT TO INTERLOCUTORY ORDERS.
- Pro Forma Motion - merely reiterates the evidence presented. It does not suspend the
period granted by law for perfecting an appeal.
- If it did non specifically describe the evidence, it is merely a pro forma motion
- If the newly discovered evidence is a witness, he should submit an affidavit
- If document, authenticated copy of the document
- If MR is denied, remedy is appeal
- A party may validly appeal from the judgment and at the same time file a petition for
certiorari against the order denying the motion for new trial.
- Affidavit of merits- one which recites the nature, character of FAME on which the
motion is based. It is submitted to enable the court to determine the claim of movant

AFFIDAVIT OF MERIT IS NOT NECESSARY IF:


1. Party was deprived of his day in court through his own negligence
2. Judgment by default
3. Jurisdiction of the court is being questioned.

Effect of Affidavit of merit - pro forma motion


- If no notice of hearing for motion for new trial - mere scrap of paper
- New trial suspends the period of appeal
- If motion for new trial on ground of FAME is denied, the party can no longer avail of
the remedy of petition for relief from judgment
- Filing of MR or New trial does not suspend the 60 day period of Rule 38 (relief from
judgment)
- Effect of granting of Motion for New Trial: original judgment is vacated and the
action shall stand for trial de novo but the recorded evidence taken upon the former
trial so fas as the same is material and competent to establish issues shall be used in
the new trial
- 30 days from time it is submitted for resolution
- A second motion for new trial based on ground not existing nor available when first
motion was made may be filed within the remaining period after deducting the time
during which the first motion was pending.
- Partial new trials are allowed
- Motion for New trial may be filed within the SC provided it is done before judgment
becomes executory
- Motion for extension of time is allowed only in the SC

RULE 38: RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS

- It may be filed in the same court where the original judgment was rendered.
- PERIODS FOR PETITION FOR RELIEF FROM JUDGMENT ( TWO PERIODS MUST CONCUR)
1. Within 60 days after petitioner LEARNS of the judgment
2. 6 months from entry of such judgment

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Both periods are non extendible and never interrupted and jurisdictional
- Last chance to question a final judgment
- Any court means RTC AND MTC. NO RFJ IN SC OR CA (MESINA VS MEER)
- It must be accompanied with affidavit of merits
- Petition for RFJ is applicable to order of execution. Reckoning period is the service of
writ of execution
- A party MAY waive his right to apply for vacation of the judgment by appealing from
it or instituting an independent action for same purpose
- Judgment is entered on the date it becomes final and executory
- Judgment based on compromise is entered immediately since it is final and
unappealable.
- EXCEPTION to period: Allowed on grounds of equity especially so that he has already
presented evidence.

- Court may issue Preliminary Injunction or TRO


- Writ of execution is not proper during the pendency of RFJ

RULE 39: Execution, Satisfaction and Effects of Final judgment

- Only upon judgment or order that finally disposes of the action or proceeding
- When appealed to CA, Execution may be applied in the court where it originated.
- Final - Leaves nothing else for the court to do. Finally disposes
- The dispositive part is the only portion of a decision that becomes subject of
execution
- Dispositive portion prevails over the body
- Court may clarify judgment
- Amendment by order Nunc Pro Tunc - Make present record of an order which the
court made at a previous term, but which was not then recorded. Not entered
because of inadvertence. It is non amendment of judgment
- Once the judgment became final, It cannot anymore amend it
- If final, only clerical may be amended
- A judgment for support may be amended anytime. Interlocutory order may be
amended anytime
- Partial judgment is not a final judgment
- Execution shall issue as a matter of right upon the expiration of the period to appeal;
- If there is change in the relationship between the parties, execution cannot be done

- EXECUTION OF JUDGMENT PENDING APPEAL (DISCRETIONARY EXECUTION)


- Court may grant white it has jurisdiction over the case and is in possession of either
the original record or the record on appeal.
- May file on the court which rendered its decision before it loses its jurisdiction
- If court already lost its jurisdiction, it may be filed in the appellate court. ( records
were transmitted to the appellate court)
- May be allowed upon good reason
- Mere posting of bond is not a good reason

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Execution of any award for moral and exemplary damages is dependent on the
outcome of the case. actual damages is fixed or certain. No execution pending
appeal in moral and exemplary

Good reasons justifying discretionary execution:


1. Perishable
2. Sickly woman and is 75 years old
3. Possessors in Badfaith
4. Insolvency
5. Bank is under receivership
6. Risk of non satisfaction because of financial situation

- if good reason is not stated in special order, still valid provided that it is written
elsewhere
- Judgments in actions for injunction, receivership, accounting and support are
immediately executory. They cannot be stayed by appeal

EXECUTION OF JUDGMENT
- May be execution on MOTION within 5 years from the date of its ENTRY
- After lapse of 5 years, It may be enforced in an ACTION FOR REVIVAL OF JUDGMENT
within 5 years from its entry
- If barred by prescription, FAILURE TO OBJECT WILL NOT VALIDATE
- Ejectment cases - immediate execution

PERIOD FOR EXECUTION MAY BE SUSPENDED ONLY:


1. Law preventing execution
2. Injunction
3. Agreement of the parties
4. Debtor hid his properties

- If levy happened within 5 year period, levying it on the 6th year is still valid
- Execution or revival are not meant to retry the case. Only to execute
- Execution for support does not prescribe. Continuous
- RTC HAS JURISDICTION OVER PETITION FOR REVIVAL OF JUDGMENT - Incapable of
pecuniary estimation
- PETITION FOR REVIVAL OF JUDGMENT MUST BE FILED WITHIN 10 YEARS FROM ENTRY OF
JUDGMENT or else prescribed. It can be executed within 5 years from its entry

- If there is MR - RECKONED FROM THE RECEIPT OF THE ORDER DENYING MR


- Any interruption or delay occasioned by the DEFENDANT thru injection, appeal or writ
of error should not be deducted
- If levied within 5 years, it can be sold beyond 5 years but it must be done within 10
years.

- Personal properties first then Real properties


- In garnishment, the 3rd party becomes a FORCED INTERVENOR
- Conveyance of property may be delegated by the court to other persons or the
court itself.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If property levied is claimed by any person other than the judgment obligor or his
agent,Such party may file a Terceria. He may make an affidavit of his title or right of
possession and serve it to the officer making the levy and a copy to the judgment
obligee. The officer shall not be bound to keep the property unless the judgment
obligee files a bond as ordered by the court.

- If third party claim is denied remedies are:


1. Action for damages within 120 days from filing a bond
2. Separate and independent action to vindicate his claim

- Sherif is not liable for damages if he keeps the property to third party claimant if such
party files a bond not less than its value

GR: No court has power to interfere by injunction with the judgment of equal courts
EXCEPT: When there is third party claimant (terceria)

- Mortgage over the lien is superior over a subsequent sale


- Must issue certificate of sale
- All sales must be done in public auction
- 1 year period of redemption is counted from the date of registration of CERTIFICATE
OF SALE
-
- Filing a court action to enforce redemption shall freeze the expiration of 1 year
period
- If judgment obligor redeems, there can be no other redemption
- Judgment obligor remains in possession during the redemption period. He is still
entitled to the rent, earnings up until the moment redemption period expires.

EFFECTS OF A FOREIGN JUDGMENT OR FINAL ORDER


1. In case of JFO upon a specific thing, it is conclusive upon the title to the thing
2. JFO against a person, it is presumptive evidence of a right between the parties and
their successors in interest by subsequent title

In either case, JFO may be repelled by evidence of want of jurisdiction, want of notice
to the party, collusion, fraud or clear mistake of law or fact

EFFECTS OF A JUDGMENT OR FINAL ORDER


1. Against the specific thing or probate of a will or administration of the estate of a
deceased person or in respect to the personal, political or legal condition, It is
CONCLUSIVE upon the title to the thing. The probate of a will or granting letters of
admin shall only be PRIMA FACIE evidence of the death of the testator or intestate.
2. Matter directly adjudged or as to the 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

- REMEDIES OF A JUDGMENT OBLIGEE in aid of execution of judgment:


1. Cause examination of properties
2. Application of properties in his hands or in the hands of another
3. Appointment of receiver for properties of the judgment obligor

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

DUAL ASPECTS OF RES JUDICATA:


1. Bar by prior judgment
2. Conclusiveness of judgment
Doctrine of Preclusion of issues or Collateral Estoppel or Doctrine of Conclusiveness of
Judgment
- Issues actually and directly resolved in a former suit cannot again be raised in any
future case between the same parties involving different cause of action

- Doctrine of Res judicata is applicable to decisions or orders of Administrative bodies


- Res judicata is applicable in criminal case
- A minute resolution dismissing a petition binds the parties and calls for res judicata.
- Compromise makes parties binding. Res judicata is proper

Requisites to make Res Judicata applicable in cases of citizenship


1. Citizenship must be raised as a material issue in controversy
2. Solgen took active part in the resolution
3. Finding of Citizenship is affirmed by the court

- Void judgment cannot be invoked as res judicata but voidable is res judicata
- As an exception, dismissal which by express provision of rules have effect of
adjudication to the mertis, it is RES JUDICATA
- Lack of interest or failure to prosecute is res judicata

THERE IS IDENTITY OF PARTY IF:


1. Same parties in first action
2. Parties are successors in interest

- Substantial identity of party is required. Not absolute identity


- Addition or elimination of some of the parties does not alter its substantial identity
- The mere fact that the same relief is sought will not render res judicata

Bar by prior judgment -If all the three identities of parties, subject matter and cause of
action are present

Conclusiveness of Judgment - Conclusive only to matters that are actually litigated and
adjudged in the first action

- No need for separate suit or submission of documentary evidence in writ of


possession.

RULE 40: APPEAL FROM MTC TO RTC

- Right to appeal is a mere statutory privilege


- Appeal from judgment of MTC be taken to the RTC exercising jurisdiction over the
area to which MTC pertains
- 15 days after notice to the appellant of the judgment
- Where a RECORD ON APPEAL is required, the appellant shall file a notice of appeal
and record on appeal within 30 DAYS after notice of the judgment or final order.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Mistake in understanding of the law is not a valid excuse


- Period of appeal is computed from the date of RECEIPT of the order denying the MR/
New Trial (NEYPES RULE) (FRESH 15 DAY PERIOD RULE)
- Neypes rule applies to Rules 40, 41, 42, 43 and 45, 65.
- Neypes rule is applicable in criminal cases.
- But it is not applicable to Administrative cases (San Lorenzeo Ruiz case) Fresh period
rule applies only to judicial appeals.
- Appeal is taken by filing of notice of appeal with the court that rendered judgment
or final order
- Record of appeal is required ONLY in Special proceedings and other classes of
multiple or separate appeals.
- It is Deemed perfected after the lapse of the following periods:
1. By notice of appeal - upon filing of notice of appeal
2. By Record on Appeal - approval of record on appeal filed in due time.

-When does the court lose jurisdiction BY NOTICE OF APPEAL: upon perfection of appeal
except Residual powers.

Doctrine of Residual Powers - prior transmittal of the original record to the appellate
court, the trial court RETAINS jurisdiction on:
1. Issue orders for the preservation of the rights of the parties which do not involve any
matter litigated by appeal
2. Approve compromise prior to the transmittal of records
3. Permit appeals by an indigent
4. Order of execution PENDING APPEAL meaning that the motion for execution was
filed before the expiration of period of appeal
5. Withdrawal of appeals

- IF APPEAL HAS ALREADY BEEN PERFECTED AND COURT HAS ALREADY LOST ITS
JURISDICTION BUT BEFORE TRANSMITTAL OF THE RECORD.
- It may be done before the CA gives due course to the Petition for review
- In petition for review, the cutoff period when the court may no longer exercise
residual jurisdiction is BEFORE CA GIVES DUE COURSE TO THE PETITION.

When does the court lose jurisdiction BY RECORD ON APPEAL: upon the approval of the
record on appeal and expiration of the time to appeal of the other parties

- Shall pay the appellate court docket fee within the period for taking an appeal
- Failure to file memorandum of appeal may be a ground for dismissal
- Multiple appeals are allowed in:
1. Special proceeding
2. Recovery of property with accounting
3. Partition
4. Eminent domain
5. Foreclosure of mortgage
6. Order of Expropriation

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Multiple appeal cannot be allowed in legal separation


- GR: No issue may be raised on appeal unless it has been brought before the lower
tribunal for its consideration BUT IT IS NOT ABSOLUTE - for interest of justice

GR: Judgment on appeal is binding only on the parties in the appealed case and does
not affect those who did not appealed.
EXC: If community of interests

- Period to appeal in expropriation case: 30 days from notice of judgment

RULE 41: APPEAL FROM THE RTC

- Available only to final judgment or orders that completely disposes the case.
- If appeal is not available: RULE 65 SPECIAL CIVIL ACTION FOR CERTIORARI

JUDGMENT OR ORDERS THAT MAY NOT BE APPEALED FROM:


1. Order denying relief for judgment or any similar motion seeking relief for judgment
2. Interlocutory order
3. Disallowing or dismissing appeal
4. Order denying motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress or vitiated consent
5. Order of execution
6. Judgment or final order against one or more of several parties or in separate claims,
counterclaims, crossclaims, and third party claims, WHILE THE MAIN ACTION IS
PENDING
7. Order dismissing an action without prejudice

- WRIT OF ERROR - Rule 41 Sec 2(a) - Question of fact or questions of law


- Appeal by Certiorari - Rule 41 Sec2(c) in relation to Rule 45 - Question of law only
- If MR is denied- remedy is APPEAL.
- Order of execution is not appealable as a general rule. EXC:
1. When the terms of the judgment are varied
2. Terms of the judgment are not clear and there is room for interpretation

- ORDER of execution is not appealable but DENIAL of motion for execution APPEAL IS
PROPER
- Appeal to the CA in cases decided by the RTC in appellate jurisdiction shall be by
PETITION FOR REVIEW in accordance with Rule 42.
- In all cases where only questions of law are raised or involved, the appeal shall be to
the SC by PETITION FOR REVIEW with Rule 45
- In appeal, no trial de novo anymore.
- There can be no new parties
- If 2nd MR is filed, it does not toll the period

RULE ON DID NOT APPEAL


1. If liability is dependent on appellant’s liability - INURES TO THE BENEFIT
2. A 3rd party who did not appeal but is held liable on appeal cannot claim
affirmative relief against a third party defendant

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

3. Appellate courts cannot reverse or modify decision as to those who did not appeal
EXCEPTIONS:
1. Trial court failed to award interests on damages
2. Exemplary damages and attorney’s fees were erroneously deleted
3. Clarifies award for damages

-Appeal from RTC to SC is possible only by petition for review on certiorari


- If pure questions of law to CA - Not proper remedy
- RTC - CA in appellate jurisdiction - IF DONE BY NOTICE OF APPEAL INSTEAD OF
PETITION FOR REVIEW - Dismiss. Erroneous appeal
- Appeal that is erroneous is not allowed.
- Only appellate court can disallowed appeal on the ground that it is frivolous
- If appealed from the judgment of the trial court during the pendency of the MR, it is
considered a waiver or abandonment of MR
- Where both parties are appellants, the may file a joint record on appeal within 30
days from notice of judgment or final order
- There is no need to approve the notice of appeal. It is deemed perfected upon the
expiration of the last day to appeal

WHEN COURT LOSE JURISDICTION


1. Notice of appeal - Upon the perfection of the appeal filed and expiration of the
time to appeal by the other parties
2. Record on appeal - court loses jurisdiction over the subject matter upon the
approval of the records on appeal filed in due time

-Court may still dismiss an appeal after its perfection PROVIDED that the complete
record or record on appeal has not yet been transmitted to the appellate court

RULE 42: PETITION FOR REVIEW FROM RTC TO CA

- Petition for review with the CA for appeal from decisions of RTC in exercise of
appellate jurisdiction
- He should pay docket fees and deposit Php 500 for costs and furnish adverse party a
copy
- A period for petition for review be extended upon proper motion and payment
before expiration of the period
- CA may grant a 15 day period and no further extensions may be granted except for
the most compelling reasons
- It is not only a judgment that may be questioned in petition for review but also order
denying motion for new trial
- CA may require the respondent to file a comment to the petition within 10 days from
notice
- In an unlawful detainer, if it is appealed in the RTC and affirmed in toto, it is
immediately executory. Petition for review does not stay the judgment
- If a court commits error of judgment remedy is appeal

RULE 43: APPEALS FROM THE COURT OF TAX APPEALS AND QUASI JUDICIAL AGENCIES TO
CA

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Quasi judicial agencies:



1. Civil service

Central board of assessment
2. SEC
3. Office of the press
4. Land registration authority
5. SSS
6. Civil Aeronautics commission
7. Bureau of patents
8. Trademarks and technology transfer
9. National electrification administration
10. Energy regulatory commission
11. NTC
12. DAR
13. GSIS
14. Insurance commission
15. BOI
16. Construction industry arbitration commission and arbitrators authorized by law


- Decisions of NLRC is appealable to CA by way of Certiorari under 65 (St martin’s


funeral homes)
- Taken within 15 days from the notice of the award or date of its last publication
- One MR is only allowed
- Docket fees shall also be paid
- CA may require the respondent to comment within 10 days
- Findings of facts of Quasi judicial bodies are binding upon the CA when supported by
SUBSTANTIAL EVIDENCE
- The appeal does not stay the award unless CA directs otherwise
- DOES NOT STAY - STILL EXECUTORY
- Party may ask for the issuance of TRO or injunction
- Petition for review is deemed submitted for decision upon the filing of the last
pleading or memorandum required by the rules
- In Rule 43, Briefs are not required. It may be set for oral argument or submission of
memorandum

PROCEDURE IN CA
RULE 44: ORDINARY APPEALED CASES:
- Within 10 days from receipt of the notice in appeals by record on appeal, the
appellant shall rule with the clerk of court 7 clearly legible copies
- Unauthorized alteration, omission or addition in the approved record on appeal is
ground for dismissal
- Within 45 days from the receipt of notice appellant shall file his brief
- In Prohibition, mandamus, Quo warranto, Habeas Corpus, the parties in lieu of briefs
shall file their respective memoranda within the unextendible period of 40 days from
receipt of the notice. Failure to file may be a ground for dismissal

RULE 45: APPEAL BY CERTIORARI TO THE SC


- Within 15 days from notice of judgment or final order or denial of MR

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Petition shall not be acted upon without proof of service of a copy to the CA


APPEAL BY CERTIORARI (45) SPECIAL CIVIL ACTION (65)

Only questions of law may be raised Grave abuse of discretion or acted without or in
excess of jurisdiction

Fresh 15 days Fresh 60 days

Appellants and appellees as petitioners and Respondent is the tribunal exercising judicial
respondents respectively function

- Period to file a petition for certiorari be extended on motion duly served with full
payment of the docket and other lawful fees. SC may for justifiable reasons grant an
extension of 30 days
- A petition for review on certiorari may be treated as one for certiorari under Rule 65
(Triste vs Leyte college)
- SC may consider a petition under Rule 65 as one filed under Rule 45 if it is filed within
the reglementary period for filing a petition for review

- Only QUESTIONS OF LAW may be raised in a petition for certiorari


Question of law - doubt or difference arises as to what the law is on certain state of
facts
Question of Fact - doubt or difference arises as to the truth or falsehood of the alleged
facts

- SC has the option to take into account questions of fact raised taking into account
the attendant circumstances and decide the same
- SC may not review facts and evidence in a petition fore review on certiorari because
SC is not a trier of facts
- Proof of service that the LOWER COURT and adverse party has been served of the
copies is MANDATORY
- Service to lower court is equivalent to notice of appeal
- Within 5 days from the service of the petition or upon SC’s motion, petition may be
dismissed by the ground of:
1. Without merit
2. Prosecuted manifestly for delay
3. Too unsubstantial

- If given due course, SC may require the filing of pleadings or other documents
necessary
- Rule 45 is applicable both the civil and criminal cases except if the penalty imposed
is death, reclusion perpetrua or life imprisonment
- Certiorari is not available where the aggrieved party’s remedy of appeal is plain and
speedy in the ordinary course Certiorari cannot co exist with appeal or any other
adequate remedy. These remedies are mutually exclusive

Material Data rule - Material dates are required to be stated in the petition for certiorari
under rule 65

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

RULE 46: Original cases: COURT OF APPEALS


- Applies to to original action certiorari, prohibition, mandamus and quo warranto
- Exclusive original jurisdiction over all actions for annulment of judgment of the RTC
- Original jurisdiction over Special civil actions for CPMQH whether or nor in aid of its
appellate jurisdiction
- CA aquifers jurisdiction over the respondent by the service on him of the order or
resolution or by voluntary submission
Equiponderance of evidence - IF after weighing the arguments and evidence on
record without the comment of Y, the weight favors Y then, there is nothing that would
prevent the court from deciding it in favor of Y.

RULE 47: ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS



- CA has the exclusive jurisdiction over the actions for annulment of judgment by RTC
- Available if the ordinary remedies of New trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioners.
- IT IS NOT A SUBSTITUTE FOR LOST APPEAL

GROUNDS:
1. Extrinsic Fraud - WITHIN 4 years from DISCOVERY
2. Lack of jurisdiction - before it is barred by laches or estoppel

- Extrinsic fraud is not a valid ground if it was availed or could have been availed of in
motion for new trial or relief from judgment
- Since it is an original case, Motion to dismiss may be filed. There may also be trial
- The prescriptive period for the refiling of the aforesaid original action shall be
deemed suspended
- Prescriptive period shall not be suspended where extrinsic fraud is attributable to the
plaintiff
- An action to annul the judgment of the MTC shall be filed in RTC. It shall be treated as
an ordinary civil action.
- Rule 47 cannot be used to annul judgment in criminal case

RULE 48: PRELIMINARY CONFERENCE


- At any time during the pendency of the case the court may call the parties and their
counsel to preliminary conference

RULE 49: ORAL ARGUMENT


- At its own instance or upon the motion of a party, the court may hear the parties in
oral argument on the merits of the case
- Motions shall not be set for hearing unless the court otherwise directs

RULE 50:DISMISSAL OF APPEAL


- Appeal may be withdrawn as a right anytime before the filing of the appellee’s brief.
Thereafter the withdrawal shall be allowed in the discretion of the court.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

RULE 51: JUDGMENT


Deemed submitted for judgment:
1. Ordinary appeals:
1. where no hearing on the merits of the main case is held, upon the filing of the
last pleading, brief, or memorandum required by the rules or upon expiration of
period for filing
2. Hearing is held, Upon its termination or upon the filing of the last pleading or
memorandum
2. Original Actions and petitions for review
1. No comment is filed - Upon the expiration of the period to comment
2. No hearing is held - filing of the last pleading or expiration of period to file
3. Hearing is held - termination or upon the filing of last pleading

- If appellate court finds material error in the proceedings, it should remand the case
for retrial. But if SC can resolve, remand is not necessary
- If appellee did not appeal, he can no longer seek for any affirmative relief
- Errors or defect that does not affect the substantial rights of the parties shall be
disregarded
- Promulgation of judgment - filing of the signed judgment with clerk of court
- The date when the judgment or final order became executory shall be deemed as
the date of entry
- A motion for execution may be filed only in the proper court after its entry except if
immediately executory

RULE 52: MOTION FOR RECONSIDERATION


- Within 15 days from the notice
- No 2nd MR
- The pendency of a motion for reconsideration SHALL STAY THE EXECUTION

RULE 53: NEW TRIAL


- Any time after the appeal form the lower court has been perfected and before the
CA loses its jurisdiction over the case
- GROUND: NEWLY DISCOVERED EVIDENCE

RULE 54: INTERNAL BUSINESS


RULE 55: PUBLICATION OF JUDGMENT AND FINAL RESOLUTIONS
RULE 56: PROCEDURE IN THE SC: ORIGINAL AND APPEALED CASES
- Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus,
disciplinary proceedings against members of the judiciary and attorneys may be filed
originally with the SC

- Appeal may only be taken in the SC by petition fore review on certiorari (45)
- Effect if appeal is taken to wrong court is dismissal

IF EQUALLY DIVIDED IN SC:


1. Original action - Deliberated again and if no decision, dismissed
2. On Appeal - If divided, Affirmed. On all incidental matters, the petition shall be
denied.

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

PROVISIONAL REMEDIES:
RULE 57: PRELIMINARY ATTACHMENT

- Provisional remedy issued upon order of the court where an order is PENDING to levy
upon the property of the defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment might be secured in said
action

Classes of attachment:
1. Preliminary attachment - one that is issued upon the institution of a action which
can be dissolved anytime.
2. Garnishment - plaintiff seeks to subject his claimed properties of the debtor in the
hands of a stranger.
3. Levy on execution/final attachment -Issued after trial and final judgment to satisfy
an obligation

- garnishee has no choice but to obey and it is in the form of an involuntary novation

STAGES IN ATTACHMENT
1. Order granting the application where there is no need of jurisdiction over the person
of the defendant because the issuance is ex parte
2. Issuance of the writ
3. Implementation where the law requires jurisdiction over the person

- There must be contemporaneous service of the summons and writ upon the
defendant

PRELIMINARY ATTACHMENT GARNISHMENT

2 parties Three parties, Creditor, debtor and garnishee

The officer takes actual possession of the No actual seizure of property and no specific lien
property is acquired in garnishment

- If debt is secured, writ of attachment is not necessary


- A plaintiff or any proper party may at the commencement of the action or at any
time thereafter have the property of the ADVERSE party attached as security for the
satisfaction of any judgment
- Anytime before judgment. Because after final judgment - WRIT OF EXECUTION
- Preliminary attachment cannot be issued in an action for unliquidated damages

GROUNDS UPON WHICH ATTACHMENT MAY ISSUE: (EXCLUSIVE)


1. Action for recovery of money or damages on a cause of action arising from
contract, express or implied, or against a party WHO IS ABOUT TO DEPART FROM THE
PH with intent to defraud the creditor
2. Action for money or property embezzled or fraudulently misapplied or converted to
his own use by a public officer or an officer of a corporation or an attorney, factory
broker agent or clerk in the course of his employment

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

3. Action to recover possession of personal property UNJUSTLY detained when the


property or any part thereof has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant
4. Action against a party who has removed or disposed of his property or is about to
do so with intent to defraud creditors
5. Against party who resides out of the PH or on whom summons may be served by
publication

- For fraud to be a ground, there must be a pre conceived plan or intention not to pay
or committed in the performance of an obligation
- If no fraudulent act alleged or no proof was shown, A writ of preliminary attachment
is too harsh. It cannot be based in mere abstractions of fraud. (Tanchan Case)
- There must be a recitation of clear and concrete factual circumstances
- Grounds are construed strictly in favor of the debtors
- Affidavit of merits is required
- Attachment proceeding is a proceeding in rem

WRIT OF ATTACHMENT MAY BE ISSUED EVEN IF CLAIMS IS SECURED IF:


1. Plaintiff abandons his security
2. Foreclosure and the creditor shows by affidavit that the proceeds from the sale of
the property of the debtor would not be sufficient to answer the obligation

- Defendant may prevent the attachment of his property by depositing or giving a


bond in an amount sufficient to satisfy such demand or in equal value of the property
- Hearing is not normal conducted before attachment
- If MR is filed on the order granting the issuance of Writ of attachment, it should
conduct hearing
- Bare allegations that an encumbrances of a property is in fraud of the creditor does
not suffice. Factual bases must be clearly averred
- Writ of Preliminary attachment may be issued ex parte but it may not be quashed
without the reasonable notice to the applicant. There must be a hearing.
- In Davao Light case, The summons, complaint and writ of preliminary attachment
must be served together in order to acquire jurisdiction over the defendant. It cannot
be served independently or separately.
- EXC: FACTORS BEYOND THE CONTROL OF THE PLAINTIFF; It shall not apply where the
summons could not be served personally or by substituted service despite diligent
efforts or that the defendant is a resident of the PH temporarily absent or non resident
or the action is one for in rem or quasi in rem (ONATE VS ABROGAR CASE)

HOW MAY DEFENDANT PREVENT SHERIFF FROM LEVYING ATTACHMENT:


1. Deposit an amount equal to the amount of claim with court or EQUAL VALUE of the
property
2. Counterbond executed to the applicant in an amount equal to the bond fixed by
the court

- If not acquired jurisdiction over the person, it is void and it cannot be cured by
subsequent acquisition of jurisdiction
- Property in custodia legis may be attached
- If attaching personal properties, he should take actual or constructive possession

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- If perishable, the court may sell it at at public auction


- If there is counterbond, the property is released and it cannot be attached again in
the same proceedings
- Service of the writ of garnishment shall be made upon the garnishee in order to
acquire jurisdiction over such person

WHEN MAY GARNISHMENT BE LIFTED:


1. Posting a counterbond or made a cash deposit
2. Order was improperly or irregularly issued
3. Property is exempt
4. Judgment is rendered against the attaching creditor

- Partial execution is not included in the legal grounds for discharge of garnishment.
- Willingness to reimburse will not discharge
- If counterbond is insufficient, apply for new order of attachment
- A writ is not lifted by merely a compromise agreement
- Salary check of a government officer cannot be garnished when not physically
delivered to him for they still in a character of public funds
- Writ is not lifted by a substitution of attached property with another property
- Levy on attachment may be discharged either by a counterbond or Motion to
discharge for irregularity. There must be a hearing. A motion for reconsideration of
order for the isssuance of a writ is equivalent to a motion to discharge which must be
heard
- Lifetime of a preliminary attachment is until the debt is paid
- Action against the bond must be commenced before finality of the judgment
otherwise barred.
- A party seeking a stay of the attachment is required to make a DEPOSIT in an amount
equal to the bond fixed by the court or to the value of the property to be attached.

RULE 58: PRELIMINARY INJUNCTION


- An order granted AT ANY STAGE of an action prior to the final judgment requiring a
person to refrain from particular act. It may also require a performance of an act
- It may be issued against a party, court, agent or person

KINDS OF INJUNCTION
1. Prohibitory - refrain
2. Mandatory - Commands performance

FINAL INJUNCTION - relief or part of the relief granted as result of the action
- Discretionary only. There must be an existence of a clear right of the plaintiffs and the
acts are in violation of said rights
- Aims to prevent future injury and maintain status quo

REQUISITES FOR ISSUANCE OF INJUNCTION:


1. Urgent
2. Clear right
3. Restore prior relation

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

GROUNDS FOR PRELIMINARY INJUNCTION


1. Plaintiff is entitled to relief demanded and the whole or part of such relief consists in
restraining commission or continuance of the acts complained of or in the
performance of an act
2. Commission or consinuance of some act complained.
3. Defendant is doing, threatens or is about to do or is procuring or suffering to be
done some act probably in violation of plaintiff’s rights

- Writ may not issue if:


1. Ex parte
2. No irreparable injury (beyond repair or compensation)
3. to transfer possession where title is not clear

- Bond requirement is mandatory in injunction


- Writ is immediately executory before filing of the bond.
- Hearing on the application for preliminary injunction is neither conclusive nor
complete
- Failure to serve the bond ion the defendant is merely a FORMAL defect. May be
cured by subsequent notice or knowledge
- CHR may not issue injunction. No power
- Court may impose other conditions it may deem proper
- GR: Injunction is not available to take property out of possession of one party. EXC:
right is clearly established and defendants were mere intruders
- Injunction is not available to stop infrastructure projects of the government
- Lifetime of TRO is only 20 days.
- The court cannot issue export which operates as TRO or injunction
- Second TRO in lower courts is void.

GR: RTC cannot enjoin the execution of judgment of the NLRC since they are co equal
bodies. EXC: When there is third party claim (Bayhon case)

- RTC cannot restrain the PCGG because it is a coordinate court


- Writ of preliminary injunction - remains until it is dissolved
- TRO - 20 (RTC MTC) or 60 days (CA). SC - effective until further order
- RTC has no jurisdiction to dissolve a Preliminary injunction pending review by CA
- TRO is granted only upon the filing of a bond

IF FILED IN A MULTI SALA COURT:


- It shall be raffled only after notice to and in the presence of the adverse party or the
person to be enjoined. Such notices hall be preceded or contemporaneously
accompanied by service of summons together with a copy of the complaint or
initiatory pleading and the applicants bond

- Application of TRO shall only be acted upon only after al parties are heard in a
summary hearing
- If the matter is of extreme urgency and the applicant will suffer from grave injustice
and irreparable injury, said sala may issue ex part a TRO effective only for 72 hours
from the issuance
- Denial of injunction means automatic vacation of TRO

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Effectivity of TRO is non extendible. Not absolute. It may be extended on OTHER


grounds.
- If act sought to be prevented is in another region, he can enforce the writ within the
region and file another action in that region or apply it from CA or SC so that it can
be enforced anywhere in PH
- Pendency of an election protest is not sufficient basis to enjoin a petitioner from
assuming office
- Summary denial without adequate hearing is improper EXC: if patently without merit
- Injunction is improper to compel a spouse to cohabit, restraining consummated acts,
enjoin public officer from performing duties imposed by law or to transfer possession
of property from another

- Municipal corporations cannot prohibit the operation of night clubs. There must be
right to be heard. Such right is not prevented but merely regulated.

RULE 59: RECEIVERSHIP


- may be appointed during the pendency of an action

Receiver - a representative of the court, appointed for the purposes of preserving and
conserving the property in litigation and preventing its possible destruction or dissipation

INSTANCES WHERE RECEIVERS MAY BE APPOINTED:


1. Party applying for has an interest in the property or fund which is in danger of being
lost, removed or materially injured
2. It appears in an action by the mortgagee for the foreclosure of a mortgage that 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 party have
stipulated so in the contract
3. After judgment, to preserve the property during the pendency of an appeal or to
dispose of it according to the judgment or to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment
4. It is most convenient and feasible means of preserving the property in litigation

- Receiver may not be appointed exparte there must be a hearing


- An indifferent person that is impartial and disinterested may be appointed as receiver
- A receiver may be appointed even if custodia legis

REQUIREMENTS BEFORE A RECEIVER MAY ENTER DUTIES:


1. Sworn
2. Payment of bond

- Receiver has no power to enter into contract without the approval of the court

RULE 60: REPLEVIN


- At the commencement of the action or at any time before ANSWER.

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ALBANO REVIEWER SUMMARY
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Replevin - a proceeding by which the owner or one who has general or special
property in the thing taken or detained seeks to recover possession in specie, the
recovery of damages being only incidental

- The plaintiff must give a bond DOUBLE THE VALUE of the property
- Subject matter of replevin is personal property
- Replevin will not lie if in custodia legis
- Issue of ownership may be resoled in an action for replevin which is generally a
POSSESSORY ACTION if issue of ownership is raised.
- Defendant may file countermand to return the property seized to him
- If not delivered because the property is concealed, he must cause the building or
enclosure to be broken open and take the property in his possession
- defendant must object within 5 days. or else sheriff will get it. IT IS MANDATORY. IF
AFTER, NOT ALLOWED ANYMORE
- The sheriff is not bound to keep the property or deliver it to the applicant unless the
applicant or his agent on demand of the offer indemnifies him against such claim by
a bond in a sum not less than the value of the property
- The remedy of a stranger to the action is Terceria or third party claim or a separate
action. Terceria cannot be filed by a party of the case
- Republic of PH is exempt to post a bond
- If the main case is dismissed, the writ’s existence and efficacy would be dissolved
because it is provisional and ancillary in character
- Any claim for damages die to the seizure of property in replevin while the action is
pending must be litigated in the replevin suit and not by independent action
- Claim for damages must be applied for before judgment is executory
- Damages must arise out of the wrongful seizure of the defendant’s property

RULE 61: SUPPORT PENDENTE LITE


- At the commencement of the action or at anytime afterwards but prior to the final
judgment
- An allowance made to the wife or family for their maintenance during the pendency
of the action
- If defendant denies the right of the plaintiff, the court cannot grant support
pendente lite.
- Established by affidavits or documentary evidence
- Invalidity of marriage is a good defense in support
- Court may order a writ of execution of defendant fails to comply with order and may
be subjected to contempt

SPECIAL CIVIL ACTIONS:


RULE 62: INTERPLEADER
- A person who has property in his possession or an obligation to render wholly or
partially without claiming any right therein or an interest which in whole or in part is
not disputed by the claimants comes to court and asks that the persons who
consider themselves entitled to demand compliance with the obligation be required
to litigate among themselves in order to determine finally who is entitled to the same
- Summons shall be served between the conflicting claimants
- Real property may be subject

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ALBANO REVIEWER SUMMARY
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REQUISITES:
1. Plaintiff must not claim interest in the subject matter or that his claim is not disputed.
2. There must be two or more conflicting claim
3. Parties impleaded must make effective claims
4. Subject matter is one and the same

- Claimant may file MD

RULE 63: DECLARATORY RELIEF


- One in which a person interested under a deed, will, contract or other written
instrument or whose rights are affected by a statute, eo, regulation or ordinance may
BEFORE BREACH or violation bring an action to determine any question of
construction or validity arising under the instrument or statute and for a declaration of
his rights and duties
-RTC HAS EXCLUSIVE JURISDICTION
- GR: Questioning the composition of JBC - RTC has jurisdiction. Notwithstanding the
fact that only QUESTION OF LAW is raised, still RTC has jurisdiction
- EXC: Due to Transcendental importance of the issue, may file in SC
(FRANCISCO CHAVEZ VS JBC)

- Reformation of instrument, quieting of title or removing clouds or consolidate


ownership may be filed under Rule 63

SPECIAL CIVIL ACTION 63 ORDINARY CIVIL ACTION

Impending violation of plaintiff’s right is Violation of right


enough

Judgment stands by itself Coercive, there is execution

REQUISITES OF ACTION FOR DECLARATORY RELIEF


1. Justiciable controversy
2. Between persons whose interests are adverse
3. Party seeking must have legal interest
4. Ripe for judicial determination
5. Filed before breach or violation

- It is available if there is no adequate remedy available


- DR is not available in breach of contract or statute
- SOLGEN must be notified if statute is concerned
- Prosecutor or attorney of LGC if validity of ordinance

DR is not available in:


1. Political questions
2. Declaration of citizenship
3. Moot and academic
4. Not terminate uncertainty

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Countetclaim may be set up in DR

RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS OF COA AND COMELEC
- Brought to the SC by means of rule 65
- Within 30 days from the notice of judgment
- It is interrupted by MR or NTrial
- Filing shall not stay the execution of the judgment or final order.

RULE 65: CERTIORARI, PROHIBITION, MANDAMUS


- Any tribunal, board, or officer exercising JUDICIAL FUNCTIONS.
- Shall be accompanied by the certified true copy of the judgment or order

ELEMENTS FOR CERTIORARI:


1. directed against TBO
2. Acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction
3. No appeal nor any plain, speedy or adequate remedy in the ordinary course of law

Certiorari - Writ issued by a superior court to an inferior TBO whereby the record of a
particular case is ordered too be elevated for review and corrections in matters of law

Plain and adequate remedy - MR. It is an indispensable condition

- Certiorari is never demandable as a matter of right


- Mere pendency for certiorari does not automatically interrupt the proceedings in the
lower court.
- Limited to errors of jurisdiction
- Interlocutory orders are not assailable by CP as a general rule
- 45 and 65 are mutually exclusive remedies

PROHIBITION
- Praying that judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein or otherwise granting
such incidental reliefs as law and justice may require.

MANDAMUS
- When TBO unlawfully neglects the performance of an act which has specifically
enjoins as a duty resulting from office, trust or station or unlawfully excludes another
from the use or enjoyment of a right or office

- Sandiganbayan may issue writ of certiorari if it is in aid of appellate jurisdiction


- There can be no petition for mandamus to compel PMA to restore cadet’s rights and
entitlements as a full-pledged graduating cadet. There are within the ambit of the
right of academic freedom and beyond the province of the court to decide. (Cudia
VS PMA)
- Mandamus is not the proper remedy to enforce right of redemption
- Mandamus cannot be used to enforce contractual obligations

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ALBANO REVIEWER SUMMARY
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RULE 66: QUO WARRANTO


- A demand made by the state upon some individual or corporation to show by what
right they exercise some franchise or privilege appertaining to the state which
according to the constitution cannot legally exercise.
- Brought by SOLGEN or a public prosecutor when directed by the president of the PH
or when upon comlaint or otherwise he has good reason to believe that any case
falling under section 1 of rule 66 can be established.

IT MAY BE FILED AGAINST:


1. A person who usurps, intrudes, or unlawfully holds or exercises a public office,
position or franchise
2. Public officer who does or suffered an act which by the provisions of the law
constitutes a ground for forfeiture of his office
3. An association which acts as a corporation within the PH without being legally
incorporated or without lawful authority so to act
- Within 1 year after ouster from office.
- SOLGEN may file an action at the request and upon the relation of another person
- Person claiming to be entitled to a public office may bring a quo warranto suit in his
name
- If private individual filed a petition for certiorari and prohibition to prevent justice ong
to exercise function as Assoc J of Sandiganbayan because OSG refused to file QW.
Petition is not proper since it is a collateral attack on a public title. (Topacio vs Ong)
- A private person must show clear right to such office

RULE 67: EXPROPRIATION


Power of eminent domain - Right of the state as a sovereign to take or expropriate
property for public use upon payment of just compensation

- Aggrieved party may appear but it shall not prevent the court from determining the
just compensation
- Date will reckon upon the taking of the property or date of filing of the complaint for
expropriation whichever came first
- Court shall appoint 3 competent and disinterested commissioners

RULE 68: FORECLOSURE OF REAL ESTATE


- If after sale there is still deficiency, the court shall render judgment against the
defendant for such balance which may be executed immediately
- Waiver of posting requirements by parties is void
- As a general rule, there is no right of redemption in a judicial foreclosure of mortgage.
The only exception is when done by PNB or a bank or baking institution.
- The mortgagors in this case merely have an equity of redemption which is simply their
right to extinguish the mortgage and retain ownership of the property by paying the
secured debt prior to the confirmation of the foreclosure sale.

RULE 69: PARTITION



Two stages:
1. Co owners are subject of the said property

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ALBANO REVIEWER SUMMARY
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2. Conveyance of lawful shares

- Judgment of partition is final and duly appealable

RULE 70: FORCIBLE ENTRY AND UNLAWFUL DETAINER

THREE KINDS OF POSSESSORY ACTION ON REAL PROPERTY:


1. Accion Interdictal - Summary action for forcible entry or unlawful detainer. Seeks
recovery of actual physical possession only and is brought within 1 year in MTC
2. Accion Publiciana - Recovery of right to possess and is a plenary action in an
ordinary proceeding. May be filed in RTC or MTC depending on the value (20k, 50k)
3. Accion Reinvidicatoria - Action to recover OWNERSHIP. It is brought before RTC/MTC
(depending on value 20k, 50k)

In Unlawful detainer, the landlord or lessor cannot file without demand.


- Posting notices in the premises is demand
- Fails to comply within 15 days for land and 5 days for building
- Lessee or tenant may file for UD
- In forcible entry - prior possession must be proven
- in Unlawful detainer - prior possession is not required
- From the time sold to the highest bidder, she acquired right of possession over the
land
- UD - 1 year is counted from the date of LAST DEMAND
- Previous demand to vacate is not necessary where ejectment suit is based on the
expiration of the term
- In case of stealth, it must be counted from the date of discovery and prohibition
- mere fact that there was an expression of intention to vacate did not negate the
initial use of force by respondents
- Demand may be oral
- Issue of ownership in UD or FE is not res judicata. The determination of ownership in
these cases are not final.It is only initial determination of ownership for the sole
purpose of settling the issue of possession. MERELY PROVISIONAL
- Possessor in tolerance is not entitled to reimbursement because he is deemed a
possessor in bad faith
- If there is possession by tolerance, rental fees shall reckon on the date of demand to
vacate
- Failure to allege the time when unlawful deprivation took place is fatal defect
- Judgment becomes binding on anyone who is not impleaded if
1. Trespasser, squatter or agent
2. Guest or occupant of the premises
3. Transferee pendente lite
4. Sublessee
5. Member of the family

- An ejectment case survives the death of a party


- Supervening death did not extinguish her civil personality
- Pendency of action for annulment of sale or mortgage or action for enforcing right of
preemption is not a bar to ejectment suit
- Acceptance of rentals does not constitute a waiver

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ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- When tenancy is merely averred as a special and affirmative defense to a complaint


for unlawful detainer, the MTC does not automatically lose its jurisdiction over the said
action.

- The only damages that may be awarded in an ejectment suit are rentals. (ORLIVO VS
CA CASE)
- It does not extend to award of electric and water bills that should be litigated in a
separate tribunal (Shoemart vs CA)
- CONSIGNATION (300,400) RTC MTC
- The only way to stay the execution of a judgment in an ejectment suit is by
perfecting an appeal and filing of a SUPERSEDEAS BOND depositing from time to time
with the RTC the amount of reasonable rent
EXCEPTIONS:
1. Delay in the deposit is due to FAME
2. Supervening events occur subsequent to the judgment bring about a material
change in the situation
3. No compelling urgency for the execution

- A mortgagee has no right to eject the occupants of the property


- IN CASES PENDING APPEAL IN RTC (EXCLUSIVE), the execution may be stayed by filing
of sufficient supersedeas bonding deposits to the appellate court from time to time of
the amount equivalent to the reasonable rent
- A plaintiff in an unlawful detainer or FE may due a motion for the issuance of writ of
preliminary attachment within 5 DAYS from the filing go the complaint
-
- The proper action in cases of boundary disputes is an action for forcible entry
- Judgment of the RTC against the DEFENDANT in an ejectment suit is IMMEDIATELY
EXECUTORY
- EXC: Where supervening events occurring subsequent to the judgment bring about a
material change in the situation of the parties which makes execution inequitable, or
where there is no compelling reason, the court may stay in the execution
- (city of naga vs Assuncion)

RULE 71: CONTEMPT:


- A disregard of or disobedience to the rules or orders of a judicial body or an
interruption of its proceedings by disorderly behavior or insolent language in its
presence or so near thereto as to disturb the proceedings
- inherent in all courts

KINDS OF CONTEMPT:
1. Direct or Indirect
2. Civil or Crimina;

Civil - failure to do something ordered to be done


Criminal - Consists in the conduct that is directed against the authority and dignity of
the court
Direct - committed in the presence of or so near a court or judge as to obstruct or
interrupt proceedings before the court.

© Edward Vange Arriba 63 of 64


ALBANO REVIEWER SUMMARY
REMEDIAL LAW

- Remedy is certiorari not appeal for DIRECT


- For Indirect Contempt - MAY APPEAL
- Execution is suspended pending certiorari
- Direct contempt may be committed by filing or pleading derogatory statements
- The person must be charged in writing and be given an opportunity to be heard
- A non party may be guilty of indirect contempt if in conspiracy with the guilty person.
- Power to punish in contempt shall be exercised on the preservative not on the
vindictive principle, on corrective not retaliatory
- If returned to the premises after ejectment, contempt
- Any act on the part of the lawyer which visibly tends to obstruct, pervert, impede and
degrade the administration of justice is contumacious, calling for both an exercise of
disciplinary action (MASINSIN VS HON ED VINCENT ALBANO)

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