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REMEDIAL LAW Venue- Place where the action is filed.

Unlike the laws on


jurisdiction which authorize a dismissal by the court on its
I. Civil Procedure own motion, the rules on venue preclude a court from
dismissing a complaint motu propio except when so
Complaint authorized by a special rule.
 First pleading filed with the court by a party called
the plaintiff. Real Action- One that affects title to, possession of, or any
 Primary purpose is to sue another for the interest in real property.
enforcement or protection of his right, or the
prevention or redress of a wrong. Personal Action-
 The means by which the plaintiff apprises the
adverse party called the defendant of the nature Exclusive venue- If the parties have agreed in writing on
and basis of his claim. the exclusive venue prior to the filing of the action, the
agreed venue is contemplated to be so exclusive, then the
Substantive law place stipulated is the only venue of the action. This
 Very basis of procedural law. It supplies the legal stipulation precludes the filing of the action in some other
basis for a cause of action. place.
 Supplies the legal basis for the existence of the
right itself and the corresponding legal Real party-in-interest- One who stands benefited or
prerogative to demand its protection. injured by the judgment in the suit, or the party entitled to
the avails of the suit.
Procedural Law
 Outlines the methods and processes by which one Indispensable party- joinder is compulsory. Without
may sue another for the enforcement or which, there can be no final determination could be had of
protection of his rights. an action.

Cause of Action Necessary party- Its non-inclusion does not prevent the
 Involves a right of the plaintiff and a violation of court from the proceeding with the action although,
this right by the defendant. without such party, no complete relief may be accorded as
 Without a right and a violation of this right, there to those already parties.
can be no cause of action, and without this cause
of action, there would be no right to file a suit Conditions precedent- If the action requires the
against a defendant. performance of conditions precedent, then compliance
 Refers to an act or omission by which a party with such conditions is imperative and cannot be
violates the rights of another. conveniently ignored.

Right of Cause of Action Ultimate facts- Such facts are to be alleged plainly,
concisely, and directly in a methodical or logical form.
 The right to file a suit.
Statement of mere evidentiary facts is to be omitted.
 Procedural in character.
Evidentiary matters are to be presented in the trial, they
 It is the consequence of the violation of the right
have no place in a pleading like a complaint.
of the plaintiff.
 It is not enough that a party has a cause of action.
Fraud and Mistake- Must be stated with particularity to
The rules require sufficiency in alleging those facts
enable the court to determine the type of fraud committed
which, taken together, constitute one’s cause of
by the defendant and the subsequent liability of the
action.
defendant.
 The rules emphasize the sufficiency, not the
veracity of the material allegations. Averments of malice, intent, knowledge, or condition of
the mind of a person- May be averred generally.
Bar against instituting more than one suit for a single
cause of action (Splitting of cause of action)- The plaintiff Denial of genuineness or due execution of a document-
cannot split a single cause of action into several parts and The rule is established that a mere specific denial of such
make each part the subject of a separate complaint. matters would not be a sufficient denial. The rule requires
the denial to be under oath.
Jurisdiction- matter of substantive law not of mere
procedure.

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Relief or prayer- Is not largely determinative of the cause Amendment of the complaint as a matter of right
of action. The nature if the cause of action is primarily  As long as it is made before the other party has
determined by the allegations in the body of the complaint served a responsive pleading.
and not by the prayer.  If the court refuses to accept an amendment
made as a matter of right, the court may be
Signing of the complaint- Mandatory. An unsigned compelled to do so through the special civil action
pleading produces no legal effect. of mandamus.
 May be made only once.
Signing of counsel in the pleading- This signature  Plaintiff may amend his pleading even after a
constitutes a certificate by him that he has read the motion to dismiss has been served, because a
pleading, that to the best of his knowledge, information, motion to dismiss is not a responsive pleading.
and belief, there are good grounds to support it, an that is  His right to amend his complaint is not affected by
not interposed for delay. the filing of the motion to dismiss.

Filing of the complaint- Act of presenting the same before Amendment of then complaint with leave of court
the clerk of court.  The amendment is no longer a matter of right
because an answer has already been served by
Payment of prescribed fees- Payment if the fee within a the defendant.
reasonable time, but not beyond the prescriptive period.  The amendment has not become a matter of
Without payment, the general rule is that the complaint is judicial discretion.
not considered filed. The court acquires jurisdiction over
the case only upon payment of the prescribed fees. Amendments may be refused on the following grounds:
1. It appears that it was intended for delay.
Notice of dismissal (Dismissal as a matter of right) 2. Amendment is no longer a matter of right.
 The plaintiff may exercise the option of dismissing 3. The proposed amendment would result in a drastic
his own complaint. This is done before the change in the cause of action, defense, or theory of the
adverse party has served an answer or a motion case.
for summary judgment. 4. When the court has no jurisdiction over the subject
 The dismissal is without prejudice to its being matter of the action and the amendment is for the purpose
refilled later, unless otherwise stated in the notice of conferring jurisdiction upon the court when the
of dismissal or when the refilling is barred by the amendment is no longer a matter of right.
two-dismissal rule.
 As long as the dismissal is to be made prior to the Amendment by implication- When the issues not raised in
service by the adverse party of his responsive the pleadings are tried with the express or implied consent
pleading, the dismissal under this rile is a matter of the parties, as when no objection is interjected on the
within the sole discretion of the plaintiff. evidence offered on a matter not raised on the pleadings.
 After the service of the answer or a motion for
summary judgment, the plaintiff can no longer Pleadings may be amended to conform with the
have his action dismissed by mere notice. The evidence- Although, an actual amendment need not be
plaintiff now has to file a motion to dismiss his made because failure to do so will not affect the result of
complaint. the trial on said issues.
 The granting or denial of the motion to dismiss is
now a matter addressed to the sound judicial Personal service of summons- The summons and the copy
discretion because this type of dismissal is no of the complaint are to be served upon the defendant in
longer a matter of right. person.

Dismissal of the complaint- Only the complaint is Substituted service of summons- If it cannot be served in
dismissed. A counterclaim already pleaded prior to the person despite diligent efforts. It consist of serving the
service upon the defendant of the motion for dismissal is summons at the residence of the defendant or his regular
not affected by the dismissal of the complaint and it is place of business with a person qualified to receive the
without prejudice to the right of the defendant to summons in accordance with the rules.
prosecute his counterclaim in the same or separate action.
A dismissal under this rule is deemed a dismissal without Jurisdiction over the person of the defendant- Absent a
prejudice, unless otherwise stated in the order of the voluntary appearance, it is the service of summons which
court. enables the court to acquire jurisdiction over his person.

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Grounds for dismissal which the court will recognize on its Summary judgment- Is based not only on the pleadings
own motion: but also on their affidavits, depositions, or admissions. The
1. Lack of jurisdiction over the subject matter basis is the absence of a genuine issue in the case. The
2. Litis pendencia issue does not concern any material fact, as when the issue
3. Res judicata is merely the amount of damages.
4. Prescription
Counterclaim- Is a pleading which sets forth a claim which
Venue- Is a matter designed for the convenience of the a defending party may have against an opposing party.
parties and if no party complains about the venue, it is not
foe the court to take up the cudgels for any party. Compulsory counterclaim- Which a defending party has at
the time he files his answer, shall be contained therein.
Omnibus motion- One which attacks a pleading, as such
when filed, it shall include all objections then available, and Permissive counterclaim- Does not have to be raised in the
all objections not so included shall be deemed waived same proceedings because, by its nature, it could be
except for lack of jurisdiction over the subject matter,litis invoked as an independent action.
pendencia, res judicata, and prescription.
Cross-claim- The claiming defendant may, then in his
Answer- Is the responsive pleading to the complaint. The answer, interpose a pleading against his co-defendant.
answer gives notice to the plaintiff as to which allegations
in the complaint the defendant decides to contest and put Third party complaint- The defendant may bring in third
in issue. persons to the suit and implead him as a party by filing,
with leave of court.
Default
 Defendant loses his standing in court and the Reply
latter may proceed to render judgment granting  Upon receipt of the answer of the defendant, the
the plaintiff such relief as his complaint may plaintiff may respond to the answer, this response
warrant, unless in its discretion, the court requires is called a reply.
the plaintiff to submit evidence on his claim.  A reply is the plaintiff’s responsive pleading to the
 The court’s declaration in default should be answer of the defendant.
preceded by a motion to declare the said party in  It is not a compulsory pleading. Failure to file a
default together with proof of such failure. reply does not lead to a declaration of default or
 The court cannot declare the defendant in default result in the implied admission of the material
motu propio. allegations in the answer.

Default judgment not favored- Are frowned upon and not Intervention
looked upon with favor for they may amount to a positive  If at any time before judgment, a person, not
and considerable injustice to the defendant and the party to the action, believes that he has legal
possibility of such serious consequences necessitates a interest in the matter in litigation in a case in
careful examination of the grounds upon which the which he is not a party, he may with leave of court
defendant asks that it be set aside. file a complaint in intervention.
 If he unites with the defending party in resisting a
Motion to lift order of default claim against said party, he may file an answer in
 The motion must show that his failure to answer intervention
was due to fraud, accident, mistake, or excusable
negligence and that he has a meritorious defense. Pre-trial
 It is mandatory and failure to appear thereat by
Default order will not be issued in the following either party will result in adverse consequences
1. Action for annulment of marriage. for the absent party.
2. declaration of nullity of marriage.  The parties shall consider the possibility of an
3. legal separation. amicable settlement or submission of the case to
alternative modes of dispute resolution,
Judgment on the pleadings- If the answer admits the  During the pre-trial stage, the parties may obtain
material averments in the complaint, the answer is information from each other through the
deemed to have failed to tender an issue. Since there are employment of devices collectively called as
no triable issues, a trial is completely unnecessary. discovery procedures.

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Trial violative of any personal rights because no vested right
 During the trial, the parties present their claims may attach to nor arise therefrom.
and defenses.
 It is not an indispensable stage of civil action. A When procedural rules do not apply to pending actions:
judgment may be rendered without a trial as (Tan vs CA)
when a case is permanently dismissed or barred 1. When the statute itself or by necessary implication
by prior judgment, prescription, or when provides that pending actions are excepted from its
judgment on the pleadings, judgment on operation
compromise was rendered. 2. If applying the rule to pending proceedings would impair
vested rights.
Judgment 3. When to do so would not be feasible or would work
 A judgment is rendered after the submission of injustice.
the evidence of the parties has been concluded. 4. If doing so, would involve intricate problems of due
 It is the decision of the court and represents its process or
official determination of the respective rights and 5. Impair the independence of the courts.
obligations of the parties to the case.
 It has to be in writing, personally, and directly Rules of Court applicable proceedings:
prepared by the judge stating clearly the facts and 1. Civil actions.
the law on which it is based signed by him and 2. Criminal actions.
filed with the clerk of court. 3. Special Proceedings.

Post-judgment remedies The Rules shall not apply to the following cases (Rule 1,
 Before judgment becomes final and executory the Sec. 4)
aggrieved party may file 1. Election cases.
o Motion for reconsideration 2. Land registration cases.
o Motion for new trial 3. Cadastral proceedings.
o Appeal 4. Naturalization cases.
 After the judgment becomes final and executory: 5. Insolvency proceedings
o Motion for execution of judgment
o Petition for relief *But the rules may be applied by analogy or in
o Action to annul the judgment supplementary to these cases.
o Certiorari
o Collateral attack Scope of Civil Procedure
1. Ordinary civil actions.
Procedural rules 2. Provisional remedies.
 As they do not originate from the legislature, they 3. Special Civil Actions.
cannot be called laws in the strict sense of the
word. However, since they are promulgated by Rule-making power of the Supreme Court (Sec. 5 (5) Art.
authority of law, they have the force and effect of VIII, Constitution of the Philippines
law.  The SC has the power to promulgate rules
concerning the following:
 The rules are subordinate to the statute. In case of o Protection and enforcement of
conflict, the statute will prevail. constitutional rights.
o Pleading
Prospective effect of the rules of court- The rules o Practice
embodied in the rules of court are not penal laws and are o Procedure
not to be given retroactive effect and are to govern cases o Admission to the practice of law
brought after they take effect, and also all further o The Integrated Bar
proceedings in cases then pending, except to the extent o Legal assistance to the underprivileged.
that, in the opinion of the court, their application would
not be feasible or would work injustice, in which event the Rule-making power (Neypes vs CA)- Sole prerogative to
former procedure shall apply. amend, repeal, or even establish new rules for a more
simplified and inexpensive process and the speedy
Retroactivity of the rules- As a general rule, the retroactive disposition of cases.
application of procedural laws cannot be considered

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Power to suspend the rules (CIR vs Mirant Pagbilao Limitations of the rule-making power of the Supreme
Corporation)- The courts have the power to relax or Court (Sec.5 (5) Art. VIII 1987 Constitution)
suspend technical or procedural rules or to except a case 1. The rules shall provide a simplified and inexpensive
from their operation when compelling reasons so wrrant or procedure for the speedy disposition of cases.
when the purpose of justice requires it. What constitutes 2. The rules shall be uniform for courts of the same grade.
good and sufficient cause that would merit suspension of 3. The rules shall not diminish, increase, or modify
rules is discretionary upon the courts. substantive rights.

Pro hac vice- The court, in the exercise of its rule-making Limitations on the periods of appeal: Is not without
power, can suspend its rules with respect to a particular reason. They must be strictly followed as they are
case. considered indispensable to:
1. forestall or avoid unreasonable delays in the
Liberal application of the Rules (Rule 1, Sec. 6) administration of justice,
 The Rules shall be liberally construed in order to 2. to ensure an orderly discharge of judicial business
promote their object, and assist the parties in 3. and to put end to controversies.
obtaining just, speedy, and inexpensive
determination of every action and proceeding. Absence of a verification is not jurisdictional, but only a
formal defect, which does not itself justify a court in
 The rigid application of the Rules may be relaxed refusing to allow and act on a case.
so that the ends of justice may be better served
and that technicality or procedural imperfection Equity Jurisdiction- Power of the court to resolve issues
should not serve as basis of decisions. presented in a case, in accordance with the natural rules of
 The rule on liberal construction cannot be fairness and justice, and in the absence of a clear, positive
successfully invoked where the party seeking for law governing such issues.
its application cannot show a justification for his
deviation from the rules. Doctrine of Hierarchy of Courts
 Parties praying for the liberal interpretation of the  Where the courts have concurrent jurisdiction
rules must be able to hurdle that heavy burden of over a subject matter, the doctrine of hierarchy of
proving that they deserve an exceptional courts should be observed.
treatment.  A case must be filed before the lowest court
 The phrase “interest of justice is not a magic wand possible having the appropriate jurisdiction,
that would automatically compel the suspension except if one can advance a special reason which
of procedural rules. would allow a party a direct resort to a higher
court.
Liberal construction allowed in the following cases:  Concurrence of jurisdiction does not grant the
1. Where a rigid application will result in a manifest party seeking relief the absolute freedom to file a
miscarriage of justice. petition in any court of his choice.
2. Where the interest of substantial justice will be served.  2-fold rationale of the doctrine:
3. Where the resolution of the motion is addressed solely o It would be an imposition upon the
to the sound and judicious discretion of the court. limited time of the court
4. Where injustice to the adverse party is not o It would inevitably result in a delay,
commensurate to the degree of his thoughtlessness is not intended or otherwise in the adjudication
complying with the procedure prescribed. of cases, which in some instances, had to
be remanded or referred to the lower
Reasons that may warrant the suspension of the Rules court as the proper forum under the
(Sarmiento vs Zaratan): rules of procedure, or as better equipped
1. The existence of special and compelling circumstances. to resolve the issues because the court is
2. Merits of the case. not a trier of facts.
3. A cause not entirely attributable to the fault or
negligence of a party favored by the suspension of the Direct resort to the Supreme Court, allowable instances:
rules. 1. When there are special and important reasons clearly
4. A lack of any showing that the review sought is merely stated in the petition.
frivolous or dilatory. 2. When dictated by public welfare and the advancement
5. The rights of the other party will not be unjustly of public policy.
prejudiced thereby. 3. When demanded by the broader interest of justice.
4. When the challenged orders were patent nullities.

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5. When analogous exceptional and compelling Concurrent Jurisdiction/ Coordinate Jurisdiction- The
circumstances called for and justified the immediate and power of different courts to take cognizance of the same
direct handling by the court. subject matter. Where there is concurrent jurisdiction, the
court first taking cognizance of the case assumes
Doctrine of Non-Interference or Judicial Stability- This jurisdiction to the exclusion of the other courts.
principle holds that courts of equal and coordinate
jurisdiction cannot interfere with each other’s orders Court- Is an organ of government belonging to the judicial
department the function of which is the application of the
It also applies with equal force to administrative bodies. laws to controversies brought before it as well as the
public administration of justice. A court is called upon and
Constitutional court- Only the Supreme Court is created by authorized to administer justice. Sometimes, it is referred
the Constitution. to the place where justice is administered.

Sandiganbayan- Not a constitutionally-created court. It Court vs Judge


was not directly created by the constitution but was
created by a law pursuant to a constitutional mandate (PD Court
1486).  Tribunal officially assembled under authority of
the law.
Civil Courts- Those which determine controversies  Organ of the government with a personality
between private persons. separate and distinct from the person or judge
sitting on it.
Criminal Courts- Are those which adjudicate offenses  Being in imagination comparable to a corporation.
alleged to have been committed against the state.  Office
 Jurisdiction attaches to the court.
Courts of Record- Those which keep a written account of  The continuity of a court and the efficacy of its
its proceedings. proceedings are not affected by the death,
resignation, or cessation from the service of the
Superior Court- One with controlling authority over other judge presiding over it.
courts, and with an original jurisdiction of its own. Judge
 Is an officer of such tribunal.
Inferior Court- One which is subordinate to another court,  A person who sits in court.
the judgment of which may be reviewed by a higher  A physical person.
tribunal.
 Public officer.
 A judge may resign, become incapacitated, or be
Courts of General Jurisdiction- Are those with competence
disqualified to hold office, but the court remains.
to decide on their own jurisdiction and take cognizance of
all cases, civil and criminal of a particular nature.
Jurisdiction
 The power and authority of the court to hear, try,
Courts of Special Jurisdiction- Are those which have a
and decide a case.
special jurisdiction only for a particular purpose or are
 Jurisprudence considers jurisdiction as not only
clothed with special powers for the performance of
the authority of the court to hear, try and decide
specified duties beyond which they have no authority of
cases, it is also considered as an authority to
any kind.
execute the decisions rendered by the court.
Original Jurisdiction- When actions or proceedings are  Power to control the execution of its decision is an
originally filed with it. Jurisdiction to take cognizance of a essential aspect of jurisdiction and that the most
case at its inception, try it, and pass judgment upon the important part of a litigation, whether civil,
law and facts. criminal is the process of execution of decisions
where supervening events may change the
Exclusive Jurisdiction- Precludes the idea of co-existence circumstance of the parties and compel courts to
and refers to jurisdiction possessed to the exclusion of intervene and adjust the rights of litigants to
others. prevent unfairness.

Appellate Jurisdiction- When it has the power of review Test of jurisdiction- Whether the court has the power to
over the decisions or orders of a lower court. enter into the inquiry and not whether the decision is right
or wrong.

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Failure of a court to adjudicate a case on its merits when it  The errors which the court may commit in the
has jurisdiction the same may be enforced by way of exercise of jurisdiction are merely errors of
MANDAMUS. judgment which are the proper subjects of an
appeal.
General Rule: Proceedings conducted or decisions made by Error of Jurisdiction vs Error of judgment
a court are legally void when there is an absence of
jurisdiction over the subject matter. This is true even Error of jurisdiction
where the court in good faith believes that the subject  One where the act complained of was issued by
matter is within its jurisdiction. the court without or in excess of jurisdiction.
 Occur when the court exercises a jurisdiction not
Exception: When the party raising the issue is barred by conferred upon it by law.
estoppel.  Errors of jurisdiction only be corrected by an
extraordinary writ of certiorari.
Collateral Attack- A decision rendered by a court devoid of
jurisdiction may be the subject of a collateral attack, if that Error of Judgment
jurisdictional defect appears on the face of the record.  The court is vested with jurisdiction over the
subject matter of the action but, in the process of
And where lack of jurisdiction over the subject matter exercising that jurisdiction, it committed mistakes
appears on the face of the record, an appellate court may in the appreciation of the facts and the evidence
on its own initiative dismiss the action. leading to an erroneous judgment.
 Includes errors of procedure or mistake in the
Aspects of Jurisdiction court’s findings.
1. Over the subject matter.  It is one which the court may commit in the
2. Over the parties. exercise of its jurisdiction.
3. Over the issues of the case  As long as the courts acts within its jurisdiction,
4. Over the res or thing involved in the litigation. any alleged errors committed in the exercise of its
discretion will amount to nothing more than mere
I. Jurisdiction over the subject matter errors of judgment.
 Power of a particular court to hear the type of  An erroneous judgment is not a void judgment,
case that is then before it. but a judgment tainted with error of jurisdiction is
 Also refers to the jurisdiction of the court over the a nullity.
class of cases to which a particular case belongs.  May be corrected by an appeal.

Subject matter- Refers to the item with respect to which Lack of jurisdiction- When the court or tribunal is not
the controversy has arisen, or concerning which the wrong vested by law with authority or power to take cognizance
has been done, and it is ordinarily the right, the thing, or of a case.
the contract under dispute.
Excess of jurisdiction- Presupposes the existence of
Questions ipso facto to be immediately resolved by the authority for the court to assume jurisdiction over a case
court on its own when a complaint is filed before it: but, in the exercise of that authority, it acted beyond the
1. What is the subject matter of the complaint? power conferred to it.
2. Does the court have jurisdiction over the said subject
matter? Cause of action as distinguished from jurisdiction- does
not refer to the authority of the court. A cause of action is
Jurisdiction vs Exercise of Jurisdiction the act or omission of a person violative of the rights of
others.
Jurisdiction
 The authority to decide a case and not the How jurisdiction over the subject matter is conferred
decision rendered therein.  It can be only conferred by law which may either
be the constitution or a statute.
Exercise of Jurisdiction  It is not for the court or the parties to determine
 Where there is jurisdiction over the person and or to conveniently set aside.
the subject matter, the decision on all other  Only a statute can confer jurisdiction on courts
questions arising in the case is but an exercise of and administrative agencies.
that jurisdiction.

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How jurisdiction over the subject matter is determined Exceptions to the Doctrine of Primary Jurisdiction
 Jurisdiction over the subject matter of a case is 1. Where there is estoppel on the part of the party
conferred by law and determined by the invoking the doctrine.
allegations in the complaint which comprise a 2. Where there the challenged administrative act is
concise statement of the ultimate facts patently illegal, amounting to lack of jurisdiction.
constituting the plaintiff’s cause of action. 3. Where there is unreasonable delay or official inaction
 The nature of an action, as well as which court or that will irretrievably prejudice the complainant.
body has jurisdiction over it, is determined based 4. Where the amount involved is relatively small.
on the allegations contained in the complaint 5. Where the question involved is purely legal and will
irrespective of whether or not the plaintiff is ultimately have to be decided by the courts of justice.
entitled to recover upon all or some of the claims 6. Where judicial intervention is urgent.
asserted therein. 7. When its application may cause great and irreparable
 It is a well-settled rule that what determines the damage.
nature of the action, as well as the court which 8. Where the controverted acts violate due process.
has jurisdiction over the case, are the allegations 9. When the issue of non-exhaustion of administrative
in the complaint. remedies has been rendered moot.
10. When there is no other plain, speedy, and adequate
Exception to the rule that jurisdiction is determined by remedy.
the allegations in the complaint 11. When strong public interest is involved.
 Ignacio vs CFI of Bulacan- Where tenancy was the 12. In quo warranto proceedings.
defense, the court went beyond the allegations in
the complaint in determining jurisdiction in Doctrine of Adherence of jurisdiction (Continuity of
resolving a motion to dismiss based on lack of Jurisdiction)
jurisdiction over the subject matter and required  The doctrine means that once jurisdiction has
presentation of evidence to prove or disprove the attached, it cannot be ousted by subsequent
defense of tenancy. happenings or events, although of a character
 The Municipal Trial Court does not automatically which would have prevented jurisdiction from
lose its jurisdiction over ejectment cases by mere attaching in the first instance.
allegation of the defense of tenancy relationship  The court, once jurisdiction has been acquired,
between the parties. There must first be a retains that jurisdiction until it finally disposes of
reception of evidence, and if, after hearing the case.
tenancy had in fact be shown to be the real issue,  Jurisdiction is not lost by the mere fact that the
the court should dismiss the case for lack of judge ceased to be in office during pendency of
jurisdiction. The rule is still that jurisdiction of the the case.
court is determined by the allegations in the  Even the finality of the judgment does not totally
complaint. deprive the court of jurisdiction over the case.
What the court loses is the power to amend,
Doctrine of Primary Jurisdiction modify, or alter the judgment. Even after the
 Courts cannot and will not resolve a controversy judgment has become final, the court retains
involving a question within the jurisdiction of an jurisdiction to enforce and execute it.
administrative tribunal, especially when the
question demands the sound exercise of Objections to jurisdiction over the SM
administrative discretion requiring special  The court on its own initiative object to an
knowledge, experience, and services of the erroneous jurisdiction, take cognizance of lack of
administrative tribunal to determine technical and jurisdiction at any point in the case, and has a
intricate matters of fact. clearly recognized right to determine its own
 The court cannot arrogate unto itself the jurisdiction in any proceeding.
authority to resolve a controversy, the jurisdiction  If no motion to dismiss was filed, the defense of
of which is initially lodged with the administrative lack of jurisdiction may be raised as an affirmative
body of special competence. defense in the answer.
 The objective of the Doctrine is to guide the court  Jurisdiction over the subject matter may be raised
in determining whether it should refrain from at any stage of the proceedings even foe the first
exercising its jurisdiction until after an time on appeal.
administrative agency has determined some
question or some aspect of some question arising
in the proceeding before the court.
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Effect of estoppel on objections to jurisdiction Reliefs for objecting to the jurisdiction of the court over
 A party may be barred from raising it on the the person of the defendant.
ground of estoppel. 1. When the defendant files the corresponding pleading
 A party’s active participation invoking the thereon.
authority of the court in seeking affirmative relief 2. When the defendant files a motion for reconsideration
and questioning the court’s jurisdiction only after of the judgment of default.
receiving a ruling or decision adverse to his case, 3. When the defendant files a petition to set aside
for the purpose of annulling everything done in judgment of default.
the trial in which he has actively participated. 4. When the parties jointly submit a compromise
 Tijam vs Sibinghanoy- The SC barred a belated agreement for approval of the court.
objection to jurisdiction that was raised by a party
only when an adverse decision was rendered by The filing of an answer per se, should not be treated
the lower court against it and because it raised automatically as a voluntary appearance. Because, when
the issue only after seeking affirmative relief from the filing of an answer precisely to object to the
the court and actively participating in all stages of jurisdiction of the court over his person, it is not
the proceedings. considered as a voluntary appearance.
 The SC frowns upon the undesirable practice of
submitting one’s case for decision, and then When jurisdiction over the person of the defendant is
accepting the judgment only if favorable but required- Required only in actions in personam. It is not a
attacking it for lack of jurisdiction if it is not. prerequisite in an action in rem or quasi in rem.
 The rule on estoppel also applies to administrative
proceedings (Office of the Ombudsman vs Delijero Action in personam- An action against a person on the
Jr.) basis of his personal liability.

Omnibus Motion Rule Action in rem


 A motion attacking a pleading, order,  One wherein an individual is named as defendant
judgment or proceeding shall include all and the purpose of the proceeding is to subject
objections then available and all objections his interest therein to the obligation or lien
not so included shall deemed waived. burdening the property.
 Defense of lack of jurisdiction over the SM
not barred by the Omnibus Motion Rule  However, summons must be served upon the
because it may be raised as an affirmative defendant not for the purpose of vesting the court
defense. with jurisdiction but merely for satisfying the due
process requirements
II. Jurisdiction over the parties
 Petitions directed against the thing itself or the
Jurisdiction over the person – Is the legal power of the res which concerns the status of the person are
court to render a personal judgment against a party to an actions in rem. (petition for adoption, annulment
action or proceeding. of marriage, correction of entries in the birth
certificate)
Jurisdiction in personam- Is the power which a court has
over the defendant’s person which is required before a Objection to the person of the defendant may be raised as
court can enter a personal or an in personam judgment. It a ground in a motion to dismiss. If the objection was not
imposes a responsibility or liability upon a person directly raised either in the motion or as a defense in an answer, it
and therefore, binds him personally. shall be deemed waived.

How jurisdiction over the persons of the parties is Sec. 20 rule 14- The inclusion in a motion to dismiss of
acquired: other grounds aside from lack of jurisdiction over the
1. Plaintiff- By filing of his complaint or petition. person of the defendant shall not be deemed a voluntary
2. Defendant- Voluntary appearance in court and his appearance. The rule as it now stands, allows the raising of
submission to its authority or by service of summons. defenses in addition to lack of jurisdiction over the person
of the defendant, without creating an inference of a
Submission to the court’s jurisdiction takes the form of an voluntary submission to the jurisdiction of the court.
appearance that seeks affirmative relief except when the
relief sought is for the purpose of objecting to the
jurisdiction of the court over the person of the defendant.
9
III. Jurisdiction over the issues the evidence, in which case, it is a question of law,
otherwise it is a question of fact.
Jurisdiction over the issue- Is the power of the court to try
and decide the issues raised in the pleadings of the parties. Effect of failure to amend to include issues agreed upon
by the parties (Estolas vs Acena)- Upon motion of any
Issue- Is a disputed point or question to which parties to an party, the pleadings may be amended to conform to the
action have narrowed down their several allegations and evidence but the failure to so amend does not affect the
upon which they are desirous of obtaining a decision. result of the trial of these issues because, it is submitted,
the pleadings are deemed impliedly or constructively
An issue arises because a material allegation of a claiming amended to embody the issues tried with the consent of
party is specifically denied by the defending party. the parties.

How jurisdiction over the issue is conferred and Consent of the parties- May be inferred from the failure to
determined interpose an objection to the presentation of evidence on
 By the allegations in the pleadings of the parties. a matter not alleged in the pleadings.
 Whether or not a court has jurisdiction over a
specific issue is a question that requires nothing IV. Jurisdiction over the Res
but an examination of the pleadings.
 May also be conferred by stipulation of the Res- In civil law, it is a ‘thing”, or an object. It means
parties as when, in the pre-trial, the parties enter everything that may form a subject of rights, in opposition
into the stipulations of facts and documents or to persona which is the subject of rights. It includes an
enter into an agreement simplifying the issues of object, subject matter or status.
the case.
 May also be conferred by waiver or failure to Jurisdiction over the res
object to the presentation of evidence on a  Refers to the court’s jurisdiction over the thing or
matter not raised in the pleadings. The parties try, the property which is the subject of the action.
with their implied or express consent, issues not  This type of jurisdiction is necessary when the
raised in the pleadings. The issues tried shall be action is one in rem or quasi in rem.
treated in all respects as if they had been raised in  When the action is one in personam, jurisdiction
the pleadings. over the res is not sufficient to authorize the court
to render a judgment against the defendant.
Jurisdiction over the issue vs Jurisdiction over the subject  In an action in personam, jurisdiction over the
matter person of the defendant is required.
 Over the issue- unlike subject matter, may be
conferred by consent of either of the parties, When the action is in personam
express or implied. Although an issue is not duly  Jurisdiction over the person of the defendant is
pleaded, it may be validly tried and decided if no necessary for the court to validly try and decide
timely objection is made thereto by the parties. the case, this is because the action is one brought
This cannot be when jurisdiction over the subject on the basis of the personal liability of the
matter is involved. defendant.
 Over the subject matter- It is conferred by law,  Actions in personam are directed against specific
while issues are conferred by the pleadings. persons and seek personal judgment.

An issue may be a question of law or of fact Actions in rem or quasi in rem


 Are directed against the thing or property or
Question of law- When the doubt or difference arises as to status of a person and seek judgments with
what the law is on a certain set of facts. respect thereto as against the whole world.

Question of fact- When the doubt or difference arises as to How jurisdiction of the res is acquired
the truth or falsehood of the alleged facts.  By the court, by placing the property or thing
under its custody (custodia legis) or constructive
Test of whether the question is of law or fact- It is not the seizure.
appellation given to such question by the party raising the  Through statutory authority conferring upon it the
same, rather it is whether the appellate court can power to deal with the property or thing within
determine the issue raised without reviewing or evaluating the court’s territorial jurisdiction.

10
Extent of relief when jurisdiction is only over the res General Rule: The SC is not a trier of facts
 Any relief granted in rem or quasi in re, actions  Which means that passing upon a factual issue is
must be confined to the res, and the court cannot not within the province of the Supreme Court.
lawfully render a judgment against the  Factual findings of the trial court, particularly
defendant. when affirmed by the CA, are generally binding on
the SC.
V. Jurisdiction of Philippine Courts
Exceptions: Factual issues may be resolved by the
A. Supreme Court Supreme Court
I. Exclusive and original jurisdiction 1. When the findings are grounded entirely on
1. Certiorari speculation, surmises, or conjectures.
2. Prohibition 2. When the inference made is manifestly mistaken,
3. Mandamus absurd, or impossible.
Against the CA, COMELEC, COA, SANDIGANBAYAN, CTA 3. When there is grave abuse of discretion.
4. Disciplinary proceedings against members of the 4. When the judgment is based on a misapprehension
judiciary and attorneys. of facts.
5. When the findings of facts are conflicting.
II. Concurrent original jurisdiction with the CA 6. When in the making of its findings, the CA went
1. Certiorari beyond the issues of the case or its findings are
2. Prohibition contrary to the admissions of both the appellant and
3. Mandamus appellee.
Against the RTC, CSC, CBAA, NLRC, other quasi-judicial 7. When the findings are contrary to those of the Trial
bodies. Court.
*This concurrent jurisdiction is subject to the Doctrine of 8. When the findings are conclusions without citation
Hierarchy of Courts. of specific evidence on which they are based.
9. When the facts set forth in the petition, as well as in
III. Concurrent jurisdiction with the CA and RTC the petitioner’s main reply briefs, are not disputed by
1. Certiorari the respondent.
2. Prohibition 10. When the findings of fact are premised on the
3. Mandamus supposed absence of evidence and contradicted by the
Against lower courts and bodies evidence on record.
4. Quo Warranto 11. When the CA manifestly overlooked certain
5. Habeas Corpus relevant facts not disputed by the parties, which, if
6. Habeas Data properly considered, could justify a different
7. Writ of Amparo conclusion.

IV. Concurrent jurisdiction with the RTC Cases which must be heard by the SC En Banc
1. Cases affecting ambassadors, public ministers, 1. All cases involving the constitutionality of a
and consuls. treaty, international or executive agreement.
2. All cases which under the Rules of Court are
V. Appellate jurisdiction required to be heard en banc.
1. Rule 45 Petition for Review on Certiorari (pure 3. All cases involving the constitutionality,
questions of law. application, or operation of presidential
Against the CA, Sandiganbayan, RTC decrees, proclamations, orders, instructions,
2. Rule 56 Sec.3, appeal by certiorari in criminal ordinances, and other regulations.
cases where the penalty imposed is death, 4. Cases hear by a division when the required
reclusion perpetua, or life imprisonment. number in the division is not obtained.
3. Cases involving the constitutionality or validity of 5. Cases involving a modification or reversal of a
a law or treaty, international agreement, doctrine or principle of law laid down
presidential decree, proclamation, order, previously by the SC in a decision rendered en
instruction, ordinance, or regulation, legality of banc or by a division.
tax impost, assessment, toll, or penalty, 6. Cases involving the discipline of judges of
jurisdiction of lower courts. lower courts.
7. Contests relating to the election, returns, and
qualifications of the President or Vice-
President.

11
When the SC en banc is equally divided C. Court of Tax Appeals
 Where the opinion of the SC en banc is equally
divided, or the necessary majority cannot be had, I. Exclusive Appellate Jurisdiction
the case shall again be deliberated on. 1. Review by appeal decisions of the Commissioner
 If after such deliberation no decision is reached, of Internal revenue in cases involving:
the original action commenced in the court shall a. Disputed assessments
be dismissed. b. Refunds of internal revenue taxes, fees,
 In appealed cases, the judgment or order or other charges, penalties in relation
appealed from shall stand affirmed. thereto.
 On all incidental matters, the petition or motion c. Other matters arising under the National
shall be denied. Internal Revenue Code or other laws
administered by the Bureau of Internal
B. Court of Appeals Revenue.
Inaction by the CIR in cases:
CA en banc- Only for the purpose of exercising: a. Disputed assessments
1. Administrative b. Refunds of internal revenue taxes, fees,
2. Ceremonial or other charges, penalties in relation
3. Other non-adjudicatory functions thereto.
c. Other matters arising under the National
I. Exclusive Original Jurisdiction Internal Revenue Code or other laws
1. Action for the annulment of the judgments of the administered by the Bureau of Internal
RTC. Revenue, where the NIRC provides a specific
II. Concurrent and original jurisdiction with the SC period of action, in which case the inaction
1. Certiorari shall be deemed a denial.
2. Prohibition 2. Decisions, orders, resolutions, of the RTC in local
3. Mandamus tax cases originally decided or resolved by them in
Against the RTC, CSC, CBAA, NLRC, Other quasi-judicial the exercise of their original or appellate
bodies. jurisdiction.
III. Concurrent and original jurisdiction with the SC and 3. Decisions of the Commissioner of Customs in
the RTC cases involving:
1. Certiorari a. Liability for customs duties,
2. Prohibition b. fees, or other money charges,
3. Mandamus c. seizure, detention or release of property
Against lower courts affected,
4. Quo Warranto d. fines,
5. Habeas Corpus e. forfeitures or
Whether or not in aid of its appellate jurisdiction. f. other penalties in relation thereto
IV. Exclusive Appellate Jurisdiction g. or other matters arising under the
1. Ordinary appeal from judgments of the RTC and Customs law or other laws administered
Family Courts. by the Bureau of Customs.
2. Petition for review from the judgments of the RTC 4. Decisions of the Central board of Assessment
in exercise of its appellate jurisdiction. Appeals in the exercise of its appellate jurisdiction
3. Petition for Review from the decisions, resolutions, over cases involving the assessment and taxation
orders or awards of the CSC. of real property originally decided by the
V. Appellate Jurisdiction provincial or city assessment appeals.
1. Decisions of MTC in cadastral or land registration 5. Decisions of the Secretary of Finance on customs
cases pursuant to its delegated jurisdiction. cases elevated to him automatically for review
from the decisions of the Commissioner of
Limitations to the conduct of trials and hearings by the CA Customs which are adverse to the government
1. Trials and hearings must be continuous. under Sec. 2315 of the Tariff and Customs Code
2. Trials and hearings must be completed within 3 6. Decisions of the Secretary of Trade and Industry,
months except when extended by the Chief in the case of non-agricultural product,commodity
Justice. or articles
7. And the Secretary of Agriculture in the case of
agricultural product, commodity, or article
involving dumping and countervailing duties

12
under Secs 301 and 302 of the Tariff and Customs ARE MERELY INCIDENTAL TO OR CONSEQUENCE of the
Code, and safeguard measures under RA 8800, main cause of action.
where either party may appeal the decision to
impose or not to impose said duties. Where the claim for damages is the MAIN CAUSE OF
II. Exclusive Original Jurisdiction in tax collection cases ACTION or ONE OF THE CAUSES OF ACTION- The amount
1. Tax collection cases involving final and executory of such claim shall be considered in determining the
assessments for taxes, fees, and penalties, jurisdiction of the court.
provided, that collection cases where the principal
amount of taxes, fees, charges, and penalties Totality Rule
claimed, is less than One Million Pesos shall be  Where there are several claims or causes of
tried by the MTC or MeTC, and RTC. actions between the same or different parties,
III. Exclusive appellate jurisdiction in tax collection cases embodied in the same complaint, the amount of
1. Over appeals from the judgments, resolutions, or the demand shall be the totality of the claims in
orders, of the RTC in tax collection cases originally all the causes of action, irrespective of whether
decided by the, in their respective territorial the causes of action arose out of the same or
jurisdiction. different transactions.
2. Over petitions for review of the judgments,  Presupposes that the various claims of the same
resolutions, orders, of the RTC in the exercise of or different parties are allowed to be embodied in
their appellate jurisdiction over tax collection the same complaint, or that the different causes
cases originally decided by the MeTC, MTC, and of action which are joined, accrue in favor of the
MCTC in their respective jurisdictions. same plaintiff/s and against the same defendant/s
and that no misjoinder of parties is involved. If so,
D. Municipal Trial Courts then the total amount of the claims shall be the
basis of the court’s jurisdiction and not the
Ra 7691 An Act expanding the jurisdiction of the METC, amount of the individual claims.
MTC, MCTC took effect on April 15, 1994.
I. Exclusive original Jurisdiction
Jurisdiction of the MTC Sec.5 RA 7691 1. Subject is a personal property, money claim, gorss
value of the estate in probate proceedings testate
5 years from effectivity of RA 7691 the amounts not less or intestate does not exceed 300,000 outside MM
than 100,000 outside MM and 200,000 in MM respectively, or 400,000 in MM.
shall be adjusted to: 2. Cases under the 1991 Rules on Summary
 Amount not exceeding 200,000 outside Metro procedure
Manila 3. Cases under the Rules of Procedure for Small
 Amount not exceeding 400, 000 in Metro Manila Claims.
Shall be further adjusted 5 years therefrom to 4. Forcible Entry (accion interdictal) regardless of
 Amount not exceeding 300,000 outside Metro value of the property
Manila (Max amt 300,000) 5. Unlawful Detainer (accion interdictal) regardless
 Amount not exceeding 400,000 constant in Metro of the value of the property
Manila (Max amt 400,000) 6. Civil actions involving title to or possession to
property or an interest therein where the
Jurisdictional amount referred to is the value of the: assessed value of the property or interest therein
1. Personal property does not exceed 20,000 outside MM or 50,000 in
2. Estate MM. The amounts mentioned are exclusive of
3. Amount of the demand involved in civil actions or interest, damages of whatever kind, attorney’s
proceedings. fees, litigation expenses, and costs.
The Jurisdictional amount does not include the following: II. Delegated Jurisdiction
1. Interest 1. Cadastral and land registration cases covering lots
2. Damages of whatever kind where there is no controversy or opposition or
3. Attorney’s fees contested lots the value of which does not exceed
4. Litigation expenses 100,000 as may be delegated by the SC.
5. Costs *The MTC acting under its delegated jurisdiction is acting
as a RTC, therefore, shall be appealable to the CA.
Administrative Circular No. 09-94- The term “ Exclusion of III. Special Jurisdiction
damages of whatever kind” in determining the 1. Petitions for writ of habeas corpus in the absence
jurisdictional amount applies to cases where DAMAGES of all RTC judges in the province or city.

13
2. Authority to hear and decide applications for bail having jurisdiction over the assessed value of the property
in criminal cases in the province or city where the subject thereof. (ex, action for reconveyance of title to real
absent RTC judges sit. property, cancellation of title to real property, quieting of
title to real property).
Provisional resolution of ownership in forcible entry and
unlawful detainer cases by the MTC Action involving title to real property- That the plaintiff’s
cause of action is based on a claim that he owns such
 The court as a general rule cannot resolve the property or that he has the legal rights to have exclusive
issue of ownership in cases involving unlawful control, possession, enjoyment, or disposition of the same.
detainer and forcible entry cases the resolution of
this cases pertain only to possession. Except Certificate of title- The document of ownership under a
when, the issue of possession cannot be resolved Torrens System of registration issued by the government
without deciding the issue of ownership the court through the register of Deeds.
may resolve the issue of ownership but only for
the purpose of determining the issue of Title- The claim, right, or interest in real property, a
possession. certificate of title is the evidence of such claim.

 An adjudication made in an ejectment proceeding E. Regional Trial Courts


regarding the issue of ownership should be
regarded merely as PROVISIONAL and, therefore, I. Exclusive Original Jurisdiction
would not bar or prejudice an action between the 1. All civil actions in which the subject of the
same parties involving title to the land. What is litigation is incapable of pecuniary estimation.
resolved is possession de facto and not possession 2. All civil actions which involve title to, possession
de jure. of, real property or interest therein, where the
assessed value of such property involved exceeds
Assessed value of real property- is the fair market value of 20,000 outside Metro Manila or for civil actions in
the real property multiplied by the assessment level. It is Metro Manila where such value exceeds 50,000.
synonymous to taxable value. This is the basis of the 3. All actions in admiralty and maritime jurisdiction
jurisdiction of the court. where the demand or claim exceeds 300,000
outside Metro Manila or in Metro manila where
Fair market Value- Is the price at which a property may be such demand or claim exceeds 400,000.
sold by a seller, who is not compelled to sell, and bought 4. All matters of probate, both intestate or testate
by a buyer who is not compelled to buy. where the gross value of the estate exceeds
30,000 outside Metro Manila and 400,000 in
Accion Publiciana Metro Manila.
 Refers to an ejectment suit where the cause of 5. In all actions involving the Contract of Marriage
dispossession is not among the grounds for and Marital Relations (Family Courts).
forcible entry and unlawful detainer or when 6. All cases not within the exclusive jurisdiction of
possession has been lost for more than 1 year any court, tribunal, person, or body exercising
and can no longer be maintained under Rule 70 judicial or quasi-judicial functions.
of the Rules of Court. 7. All civil actions and special proceedings falling
 The objective of the plaintiff in this action is to within the exclusive original jurisdiction of the
recover possession only. Juvenile and Domestic relations Court subject to
 It is a plenary action for recovery of possession in RA 8369. (Family Courts)
an ordinary civil proceeding, in order to 8. All other cases in which the demand or the value
determine the better and legal right to possess, of the property in controversy exceeds 300,000
independently of the title. outside Metro Manila or in Metro Manila where
the demand exceeds 400,000, exclusive of
Accion Reinvindicatoria interests, damages of whatever kind, attorney’s
1. Is a suit which has its object the recovery of fees, litigation expenses and costs.
possession over the real property owner. It II. Concurrent original jurisdiction with the SC
involves recovery of ownership and possession on 1. Actions affecting ambassadors, other public
said ownership. ministers, and consuls.
IV. Concurrent and original jurisdiction with the SC and CA
Where the ultimate objective of the plaintiff is to obtain 1. Certiorari
title to the property, it should be filed in the proper court 2. Mandamus

14
3. Prohibition merely incidental to the principal relief, the action
4. Quo Warranto is incapable of pecuniary estimation.
5. Habeas Corpus
V. Appellate Jurisdiction Examples of actions incapable of pecuniary estimation
1. Cases decided by the MeTC, MTC, MCTC in their 1. Declaration of nullity of contracts and documents.
respective territorial jurisdiction. 2. Recission of contracts
VI. Special jurisdiction 3. Reformation of instrument.
1. Criminal cases 4. Specific Performance
2. Juvenile and domestic relations cases 5. Complaint for expropriation.
3. Agrarian reform 6. Annulment of resolution of a government-owned
4. Urban and land reform cases which do not fall and controlled corporation.
under the jurisdiction of quasi-judicial bodies and 7. Action for the annulment of an extrajudicial
agencies and foreclosure sale of real property.
5. Other special cases as the SC may determine in 8. Injunction
the interest of a speedy and efficient
administration of justice Extent of trial court’s jurisdiction when acting as a
6. Intra-corporate controversies probate court
 A probate court cannot adjudicate or determine
Jurisdiction of Family Courts RA 8369 title of properties claimed to be part of the estate
1. Petitions for guardianship, custody of children and and also claimed by outside parties.
habeas corpus involving children.  All that the court could do is to determine
2. Petition for adoption for children and revocation whether they should or should not be included in
thereof. the inventory or list of properties to be
3. Complaints for annulment of marriage, declaration of administered.
nullity of marriage, and those relating to the status and  For the purpose of determining whether a certain
property relations of the husband and wife or those living property should or should not be included in the
together under different status and agreements and inventory , the probate court may pass upon the
petitions for dissolution of conjugal partnership of gains. title thereto but such determination is not
4. Petitions for support and or acknowledgment. conclusive and is subject to a final determination
5. Summary judicial proceedings brought under the Family in a separate action.
Code of the Philippines.  However, if the interested parties are all heirs or
6. Petitions for declaration of status of children as the parties consent to the assumption of
abandoned, dependent, or neglected children, petitions for jurisdiction by the probate court and third parties
voluntary or involuntary commitment of children, the are not prejudiced or injured thereby, the probate
suspension, termination, or restoration of parental court may decide questions on ownership.
authority and other cases cognizable under PD 603 series
of 1986. F. Shari’a Courts
7. Petitions for constitution of the Family Home.
8. Violations of RA 7610 “Special Protection of Children Art 137 of PD 1083 February 4, 1977 “ The legal system of
Against Child Abuse, Exploitation, and Discrimination Act”. the Muslims in the Philippines as part of the law of the
9. Cases against minors cognizable under the Dangerous land and seeks to make Islamic Institutions more
Drugs Act. effective”
10. Cases of domestic Violence against women and
children. Sharia District Courts
I. Exclusive Original Jurisdiction
Court of General Jurisdiction- Sec. 19 (6) B.P. 129 as 1. All cases involving custody, guardianship,
amended, “Cases not within the exclusive jurisdiction of legitimacy, paternity and filiation arising under
any court, tribunal, person, or body exercising judicial or the code of Muslim Personal laws.
quasi-judicial functions”. 2. All cases involving disposition, distribution and
settlement of the estate of the deceased Muslims,
Test whether an action is incapable of pecuniary Probate of wills, Issuance of Letters
estimation Administration or appointment of administrators
1. If it is primarily for the recovery of a sum of or executors regardless of the nature or the
money it is capable of pecuniary estimation. aggregate value of the property.
2. If the issue is something other than the right to 3. Petitions for the Declaration of Absence and
recover a sum of money or the money claim is Death and for cancellation or correction of entries

15
in the Muslim registries mentioned in Title IV 1991 Revised Rules of Summary Procedure
Book 2 of this code.
4. All actions arising from customary contracts in Scope:
which the parties are Muslims, if they have not 1. Metropolitan Trial Courts
specified which law shall govern their relations. 2. Municipal Trial Courts
5. All petitions for mandamus, prohibition, 3. Municipal Circuit Trial Courts
injunction, certiorari, habeas corpus, and all other
auxiliary writs and processes in aid of its appellate Civil cases subject to summary procedure
jurisdiction. 1. All cases of forcible entry and unlawful detainer
irrespective of the amount of damages or unpaid
II. Concurrent jurisdiction rentals sought to be recovered.
1. Petitions by Muslims for the constitution of a 2. All other cases where the total amount of
family home, change of name and commitment of plaintiff’s claim does not exceed 100,000 outside
an insane person to an asylum. metro manila, and 200,000 within metro manila
2. All other personal and real actions not mentioned exclusive of interests and costs.
in paragraph of the immediately preceding topic,
wherein the parties involved are Muslims except Only pleadings allowed (All must be verified)
those for forcible entry and unlawful detainer, 1. Complaint
which shall fall under exclusive original jurisdiction 2. Compulsory counterclaim pleaded in the answer
of the MCTC. 3. Cross claim pleaded in the answer
3. All special civil actions for interpleader or 4. Answer to these pleadings.
declaratory relief wherein the parties are *Motion to dismiss- Failure to comply with Barangay
Muslims or the Property involved belongs conciliation and lack of jurisdiction over the subject matter.
exclusively to Muslims.
Prohibited pleadings and motions
III. Appellate Jurisdiction 1. Motion to dismiss except on the grounds of 1. Failure to
1. All cases tried in the Shar’ia Circuit Courts within comply with the barangay conciliation proceedings and 2.
their territorial jurisdiction. Lack of jurisdiction over the subject matter.
2. Motion for Bill of Particulars
*Decisions of the Shari’a District Courts whether on appeal 3. Motion for new trial or for Reconsideration of judgment,
from the Shari’a Circuit Court or not, shall be FINAL. or for re-opening of trial
*Nothing therein contained shall affect the original and 4. Petition for relief from judgment
appellate jurisdiction of the Supreme Court. 5. Motion for extension of time to file pleadings, affidavits
or any other paper.
G. Shari’a Circuit Courts 6. Memoranda
7. Petition for certiorari, prohibition, mandamus against
I. Original Jurisdiction any interlocutory order issued by the court.
1. All cases involving offenses defined and punished 8. Motion to declare defendant in default.
under PD 1083 9. Dilatory motions for postponement
2. All civil actions and proceedings between the 10. Reply
parties who are Muslims or have been married in 11. Third-party complaints
accordance with Art.13 of PD 1083 involving 12. Interventions
disputes relating to:
a. Marriage Sec.5 Revised rule on Summary Procedure
b. Divorce  Within 10 days from service of summons, the
c. Betrothal or Breach of Contract to Marry defendant shall file his answer to the complaint
d. Customary dower and serve a copy thereof to the plaintiff. The
e. Disposition of property upon divorce answer should contain the affirmative and
f. Maintenance and support and negative defenses applicable. Those defenses not
consolatory gifts. pleaded in the answer shall be deemed waived.
g. Restitution of Marital Rights The only defense not deemed waived is lack of
h. All cases involving disputes relative to jurisdiction over the subject matter.
communal properties.  Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred.
Shari’a Courts- Shall be governed by special rules of
procedure as the Supreme Court may promulgate.

16
 The answer to counterclaims or cross-claims shall  No attorney shall appear in behalf of a party or
be filed and served within 10 days from service of represent a party at the hearing. Appearance of
the answer in which they are pleaded. the attorney shall be allowed only if the attorney
 Should defendant fail to answer the complaint is the plaintiff or the defendant.
within the period of 10 days from service of  While an attorney is not allowed to represent a
summons, the court, motu propio or on motion of party to the case, the Rule does not preclude an
the plaintiff, shall render judgment as may be attorney from offering his services in assisting a
warranted by the facts alleged in the complaint. party to prepare for the case. He is allowed to
Failure of the defendant to file and serve his provide advice to a party, either before or after
answer will not result into a declaration of the commencement of the action. He may even
default. submit an affidavit as a witness (not as counsel)
 The judgment rendered by the court pursuant to for the party in order to state facts of which he
the immediately preceding paragraph shall be has personal knowledge and about which he is
limited to what is prayed for in the complaint. competent to do so.
 The judgment or final order of the Municipal Trial  After the hearing, the court shall render its
Court shall be appealable to the appropriate RTC. decision in the same day, based on the facts
established by the evidence.
Small Claims Cases  The decision of the court shall be final and
A.M. 08-8-7-SC Rule of Procedure for Small Claims Cases unappealable. Since appeal is not a remedy, a
 The Rules of civil Procedure apply suppletorily to party may possibly avail of a petition for certiorari
small claims cases but only insofar as they are not under rule 65.
inconsistent with this Rule.
 The claims must be solely for money. Hence, a Prohibited Pleadings and Motions
claim for delivery of goods or of documents 1. Motion to dismiss the complaint
cannot be covered by the Rule. 2. Motion for a Bill of Particulars
 A suit cannot be brought in a Small Claims Court 3. Motion for New trial or for reconsideration of a
to force a person or business to fix a damaged judgment, or for reopening of trial
goods, or demand fulfillment of a promised 4. Petition for relief from judgment
obligation which is not purely for money. 5. Motion for extension of time to file pleadings,
 It must involve a pure money claim the principal affidavits or any other paper.
amount of which does not exceed 100,000. 6. Memoranda
 If the principal claim exceeds 100,000 there must 7. Petition for certiorari, mandamus, or prohibition
be a waiver of the excess embodied in the against any interlocutory order issued by the
Statement of the Claim. court.
 In BP 22 cases, the court may only entertain the 8. Motion to declare the defendant in default.
civil aspect as a small claim if no complaint for the 9. Dilatory motions for postponement.
offense has yet been filed before the office of the 10. Reply
prosecutor. This fact must be stated under oath 11. Third-party complaints
by the plaintiff in the statement of Claim and 12. Intervention
there should be an express waiver of such criminal
action in the Verification and Certification of Non- Purpose of the small claims process is to provide an
Forum Shopping. inexpensive and expeditious means to settle disputes over
 Failure of the plaintiff to appear in the hearing small amounts.
shall be cause for the dismissal of the claim
without prejudice. Hence, the dismissed action The theory behind the small claims system is that ordinary
can be refilled. litigation fails to bring practical justice to the parties, when
 Failure of both parties to appear shall cause the the disputed claim is small, because the time and expense
dismissal with prejudice of both the claim and required by the ordinary litigation process is so
counterclaim. disproportionate to the amount involved that it
 Failure of the defendant to appear shall have the discourages a just resolution of the dispute
same effect as a failure to file a response under
sec 12. This rule shall not apply when other Application of the rule:
defendants who are sued under a common cause 1. Claims For money owned under any of the following;
of action and have pleaded a common defense at 1. Contract of Lease;
the hearing. 2. Contract of Loan;
3. Contract of Services;

17
4. Contract of Sale; or Revised Rules of Court
5. Contract of Mortgage;  It is submitted that the proper ground to be
2. For damages arising from any of the following; invoked since July 1,1997, the date when the
1. Fault or negligence; amendment to the Rules took effect, should be,
2. Quasi-contract; or that a condition precedent for the filing of the
3. Contract; claim has not been complied with.

*The enforcement of a barangay amicable settlement or Subject Matter for Amicable Settlement
an arbitration award involving a money claim covered by
this Rule pursuant to Sec. 417 of Republic Act 7160, (a) Where one party is the government, or any
otherwise known as the Local Government Code of 1991. subdivision or instrumentality thereof;

3. All actions that are purely civil in nature where the claim (b) Where one party is a public officer or
or relief prayed for by the plaintiff is solely for employee, and the dispute relates to the
payment/reimbursement of a sum of money. performance of his official functions;

4. The civil aspect of criminal actions, either filed prior to (c) Offenses punishable by imprisonment
the institution of the criminal action, or reserved upon the exceeding one (1) year or a fine exceeding Five
filing of the criminal action in court, pursuant to Rule 111 thousand pesos (P5,000.00);
of the revise Rules of Criminal Procedure.
(d) Offenses where there is no private offended
Barangay Conciliation Proceedings party;

Revised Katarungang Pambarangay Law – Local (e) Where the dispute involves real properties
Government Code located in different cities or municipalities unless
 Primordial aim is to reduce the number of court the parties thereto agree to submit their
litigations and prevent the deterioration of the differences to amicable settlement by an
quality of justice which has been brought about by appropriate lupon;
the indiscriminate filing of cases in the courts.
 The proceedings before the Lupong (f) Disputes involving parties who actually reside
tagapamayapa or the Pangkat ng Tagapagkasundo in barangays of different cities or municipalities,
are not judicial proceedings. There is no barangay except where such barangay units adjoin each
court. other and the parties thereto agree to submit
 They resolve disputes through amicable their differences to amicable settlement by an
settlement, conciliation, and arbitration. appropriate lupon;
 No complaint, action, or proceeding involving any
matter within the authority of the lupon shall be (g) Such other classes of disputes which the
filed or instituted directly in court or any other President may determine in the interest of Justice
government office for adjudication, unless there or upon the recommendation of the Secretary of
has been a confrontation between the parties Justice.
before the lupon chairman or pangkat and that no
conciliation or settlement has been reached as The court in which non-criminal cases not falling within the
certified by the lupon secretary or unless the authority of the lupon under this Code are filed may, at any
settlement has been repudiated. time before trial motu propio refer the case to the lupon
 Under Sec. 1 (j) of Rule 16 of the Rules of Court, a concerned for amicable settlement.
motion to dismiss a civil complaint may be filed if
a condition precedent for the filing of the claim Exceptions to coverage of the Katarungang Pambarangay
has not been complied with. Law
1. Where one party is the government, or any
Administrative Circular No.14-93 July 15,1993 subdivision or instrumentality thereof.
 A case filed in court without compliance with prior 2. Where one party is a public officer or employee
Barangay conciliation, may be dismissed upon and the dispute relates to the performance of his
motion of the defendant, not for lack of official functions.
jurisdiction of the court but for insufficiency of the 3. Where the dispute involves real properties
cause of action or prematurity. located in different cities or municipalities, unless

18
parties thereto agree to submit their differences (c) All disputes involving real property or any interest
to amicable settlement by an appropriate lupon. therein shall be brought in the barangay where the real
4. Any complaint by or against corporations, property or the larger portion thereof is situated.
partnerships, or juridical entities.
5. Disputes involving parties who actually reside in (d) Those arising at the workplace where the contending
barangays of different cities or municipalities parties are employed or at the institution where such
except where such barangay units adjoin each parties are enrolled for study, shall be brought in the
other and the parties thereto agree to submit barangay where such workplace or institution is located.
their differences to amicable settlement by an
appropriate lupon. Objections to venue shall be raised in the mediation
6. Offenses for which the law prescribes a maximum proceedings before the punong barangay; otherwise, the
penalty of imprisonment exceeding 1 year or a same shall be deemed waived. Any legal question which
fine of over 5000 pesos. may confront the punong barangay in resolving objections
7. Offenses where there is no private offended to venue herein referred to may be submitted to the
party. Secretary of Justice, or his duly designated representative,
8. Disputes where urgent legal action is necessary to whose ruling thereon shall be binding.
prevent injustice from being committed or further
continued; criminal cases where the accused in Form of settlement- All amicable settlements shall be in
under police custody or detention, petitions for writing, in a language or dialect known to the parties,
habeas corpus, actions coupled with provisional signed by them and attested to by the lupon chairman.
remedies, actions barred by the statute of
limitations. Amicable settlement and arbitration award shall have the
9. Any class of disputes the president may determine effect of a final judgment of a court upon the expiration of
in the interest of justice or upon recommendation 10 days from the date thereof. Unless repudiated or a
by the Secretary of Justice. petition to nullify the award has been filed before the
10. Where the dispute arises from the Comprehensive proper city or municipal court.
Agrarian Reform Law.
11. Labor disputes. This shall not apply to court cases settled by the lupon
12. Actions to annul judgment upon a compromise under sec 408, in which case, the compromise settlement
which may be filed directly in court. agreed upon by the parties before the lupon chairman or
the pangkat chairman shall be submitted to the court and
The parties may go directly to court in the following upon approval thereof, have the force and effect of a
instances: judgment of said court.
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived Execution of award settlement
of personal liberty calling for habeas corpus  The amicable settlement or arbitration award may
proceedings; be enforced by execution by the Lupon within 6
(3) Where actions are coupled with provisional months from the date of the settlement. After the
remedies such as preliminary injunction, lapse of such time, the settlement may be
attachment, delivery of personal property and enforced by action in the appropriate city or
support pendente lite; and municipal court.
(4) Where the action may otherwise be barred by  If the amicable settlement is repudiated by one
the statute of limitations. party, expressly or impliedly, the other party has
two options; to enforce the compromise in
Venue accordance with the Rules or the LGC or to
(a) Disputes between persons actually residing in the same consider it rescinded and insist upon the original
barangay shall be brought for amicable settlement before demand.
the lupon of said barangay.
Venue
(b) Those involving actual residents of different barangays  Is the place, or the geographical area in which a
within the same city or municipality shall be brought in the court with jurisdiction may hear and determine a
barangay where the respondent or any of the respondents case.
actually resides, at the election of the complaint.
 Venue relates only to the place of trial or the
geographical location in which an action or
proceeding should be brought.

19
 It is intended to accord convenience to the Local venue- If the action is real. The venue is the place
parties, as it relates to the place of trial. where the property or any of the same is situated.

 It does not equate to the jurisdiction of the court Venue of personal actions
in civil actions. However, venue is an essential  Where the plaintiff or any of the principal laintiffs
element of jurisdiction in criminal actions. resides or where the defendant or any of the
principal defendants resides at the election of the
 Venue is procedural and not substantive. In civil plaintiff.
cases, venue is not a matter of jurisdiction. Venue  If the defendant is a non-resident, the venue is
may be waived or agreed upon by the parties. where the plaintiff or any of the plaintiffs resides,
or where the non-resident defendant may be
Venue in criminal cases: Reason for its being jurisdictional found at the election of the plaintiff.
1. The jurisdiction of the trial courts is limited to  Actions for damages and actions to collect a sum
well-defined territories such that a trial court can of money, must be filed in either the residence of
only hear and try cases involving crimes the plaintiff or the residence of the defendant at
committed within its territorial jurisdiction. the election of the plaintiff.
2. Laying the venue in the locus criminis is grounded
on the necessity and justice of having an accused Venue of real actions
on trial in the municipality of province where  Actions affecting title to or possession of real
witnesses and other facilities for his defense are property, or interest therein, shall be commenced
available. and tried in the proper court which has
3. When a criminal action is filed in the wrong jurisdiction over the area wherein the real
venue, the ground for motion to quash is lack of property involved or a portion thereof is situated.
jurisdiction and not improper venue.  Actions to recover ownership of real property
 Unlawful detainer
Venue vs Jurisdiction  Forcible entry
Jurisdiction
 The authority to hear and determine a case Venue of actions against non-residents affecting personal
 Matter of substantive law status of the plaintiff and actions affecting the property
 Establishes a relation between the court and of the non-resident in the Philippines
subject matter  The action may be commenced and tried in the
 Fixed by law and cannot be conferred by the court of the place where the plaintiff resides, or
parties. where the property or any portion thereof is
Venue situated or found. At the election of the plaintiff.
 The place where the case is to be tried or heard
 Matter of procedural law Rules on venue, inapplicable
 A relation between the plaintiff and defendant, or 1. In those cases where a specific rule or law
petitioner and respondent provides otherwise. (ex. Quo warranto, continuing
 May be conferred by the act or agreement of the writ of mandamus)
parties. 2. Where the parties have validly agreed in writing
before the filing of the action on the exclusive
*The court cannot dismiss an action motu propio for venue thereof.
improper venue. a. In writing
b. Before filing of the action
*The objection to an improper venue must be raised either c. Exclusive as to the venue
in a motion to dismiss or in the answer because as a rule,
defenses and objections not pleaded either in a motion to In interpreting stipulations, inquiry must be made as to
dismiss or in the answer are deemed waived. The defense whether or not the agreement is restrictive in the sense
of improper venue is not one of those defenses which are that the suit may be filed only in the place agreed upon or
not waived when not raised in a motion to dismiss or in the merely permissive in that the parties may file their suits
answer. not only in the place agreed upon but also in the places
fixed by the rules.
Transitory venue- If the action is personal, depends upon
the residences of the parties. Polytrade Doctrine- If the stipulation is permissive, the
complaint may be filed in the place designated by the Rules
or in the place stipulated.
20
Venue in a contract of adhesion- The court ruled that in 5. Adoption
contracts of adhesion might be occasionally struck down 6. Rescission and revocation of adoption
only if there was a showing that the dominant bargaining 7. Hospitalization of insane persons
party left the weaker party without any choice as to be 8. Habeas Corpus
completely deprived on an opportunity to bargain 9. Change of name
effectively. 10. Voluntary dissolution of corporations
11. Judicial approval of voluntary recognition of minor
GENERAL RULE: The court cannot dismiss a complaint natural children
outright or motu propio based on improper venue 12. Constitution of family home
13. Declaration of absence and death
EXCEPTION: When the court may make a motu propio 14. Cancellation or correction of entries in the civil
dismissal based on improper venue- If the complaint registry.
based on improper venue in an action covered by the rules 15. Proceedings for recognition and enforcement of
on SUMMAR PROCEDURE. an arbitration agreement or for vacation, setting
aside, correction, modification of an arbitral
Authority of the Supreme Court in relation to venue of award, any application with a court for arbitration
cases- To avoid a miscarriage of justice the SC may order a assistance and supervision.*
change in venue in both civil and criminal cases. 16. Petition for Writ of Amparo*
17. Verified petition for approval of the bond filed by
Action a parent to exercise legal guardianship over the
 Is the legal and formal demand of one’s right from property of his emancipated children.*
another person made and insisted upon in a court
of justice. Special Civil Actions
 In this jurisdiction, action and suit are 1. Interpleader
synonymous it is settled that the terms action and 2. Declaratory relief and similar remedies
suit are synonymous but the determinative 3. Review of judgments and final orders or
operative act which converts a claim into an resolutions of the COMELEC and the COA
action or suit is the filing of the same in a court of 4. Certiorari, Prohibition, Mandamus
justice. 5. Quo Warranto
 Filed elsewhere, as with some body or office not a 6. Expropriation
court of justice, the claim may not be properly 7. Foreclosure of real estate mortgage
categorized under either term. 8. Partition
9. Forcible entry and unlawful detainer
Civil Action- Is one by which a prty sues another for the 10. Contempt
enforcement or protection of a right or the prevention or
redress of a wrong. Compensatory or remedial. Real Action
 When it affects title or possession of real property
Criminal Action- Is one which the state prosecutes a or an interest therein. All other actions are
person for an act or omission punishable by law. Primarily personal.
punishment.  An action is real, when it is founded upon the
privity of real estate. That means that realty, or an
Actions vs Special Proceedings interest therein is the subject matter of the
action.
Action- The purpose of an action is either to protect a right  Not every action however, involving real property
or prevent or redress a wrong if the action is civil. If it is is a real action, because the realty may only be
criminal, the purpose is to prosecute a person for an act or incidental to the subject matter of the suit.
omission punishable by law.  To be a real action, it is not enough that the action
must deal with real property.
Special Proceedings- The purpose is to establish a status,  It is important that the matter in litigation must
right, or a particular fact. also involve or affect any of the following issues:
Title to or possession of real property, or interest
Special Proceedings Rule 72 Sec.1 therein.
1. Settlement of estate of deceased persons  Those affecting title to, or for recovery of
2. Escheat possession, or for partition or condemnation of,
3. Guardianship and custody of children or foreclosure of mortgage on real property- Sec.1
4. Trustees Rule 4.

21
 An action for damages to real property is a Action in rem
personal action.  Directed against the thing itself instead of the
 An action to compel the mortgagee to accept person
payment of mortgage debt is a personal action  A proceeding as to the probate of a will is
 Action to annul a contract of loan and its essentially one in rem. The corresponding
accessory real estate mortgage is a personal publication of the petition, the court’s jurisdiction
action. extends to all persons interested in the will or in
the settlement of estate of the decedent.
Importance of distinction between a personal action and  A land registration proceeding is an action in re,.
a real action Failure to give personal notice to the owners or
 It is important for the determination of venue of claimants of the land is not a jurisdictional defect.
the action. It is publication of such notice that brings the
 A real action is local, its venue depends upon the whole world as a party in the case, and vests the
location of the property involved in the litigation. court with jurisdiction.
 A personal action is transitory, its venue depends
upon the residence of the plaintiff or the Action quasi in rem
defendant.  Names a person as defendant, but its object is to
subject the person’s interest in a property to a
Proceeding in personam corresponding lien or obligation.
 One which seeks to enforce personal rights and  A petition directed against the thing itself or the
obligations brought against the person. res which concerns the status of a person.
 It is based on the jurisdiction of the person,  One wherein an individual is named as defendant
although it may involve his right to, or the and the purpose of the proceeding is to subject
exercise of ownership of, specific property, or his interest therein to the obligation or lien
seek to compel him to control or dispose of it in burdening the property.
accordance with the mandate of the court.  Attachment
 The purpose of this proceeding is to impose,  Foreclosure of mortgage
through the judgment of a court, some  Action for partition
responsibility or liability directly upon the person  Action for accounting.
of the defendant.  As such, jurisdiction over the person of the non-
resident defendant is not essential. Service of
Action in personam summons on a non-resident defendant who is not
 Is lodged against a person based on personal found in the country is required not for he
liability purpose of acquiring jurisdiction over his person,
 Is not necessarily a personal action, nor is a real but simply in the pursuance of due process.
action. But necessarily it is an action in rem.
 An action to recover title to or possession of real Significance of distinction between in rem, personam, and
property is a real action, but it is an action in quasi in rem
personam. It is not brought against the whole
world, but against the person upon whom the  The distinction is important to determine whether
claim is made. or not jurisdiction over the person of the
 An action for ejectment is a real action because it defendant is required and consequently to
involves the issue of possession of a real property. determine the type of summons to be employed.
It is also an action in personam because the action
is directed against a particular person who is  In an action in personam, jurisdiction over the
sought to be held liable. person of the defendant is necessary for the court
 An action for the declaration of nullity of marriage to validly try and decide the case. In a proceeding
is a personal action because it is not founded on in rem, or quasi in rem, jurisdiction over the
real estate. It is at the same time, an in rem action person of the defendant is not a pre-requisite to
because the issue of the status of a person is one confer jurisdiction on the court provided that the
directed against the while world. One’s status is a court acquires jurisdiction over the res.
matter that can be set up against anyone in the
world.
 An action for damages- action in personam and a
personal action.
 Action for reconveyance is an action in personam.
22
When summons by publication may be made in an action Elements of cause of action based on contracts
in personam. Exception to the court will not be able to 1. The existence of the contract.
acquire jurisdiction over the person of the defendant by 2. The breach of the contract.
summons by publication.
o If the identity of the defendant is Cause of action in unlawful detainer
unknown or whose whereabouts are  Violation of the terms and conditions of
unknown, service may be effected upon the contract of lease or failure to pay the
him by publication in a newspaper of rentals.
general circulation.  Demand to pay AND vacate. Or, Comply
o When the resident defendant is AND vacate.
temporarily out of the country, he may *demand to pay only gives rise to collection.
be served by publication with leave of
court. Cause of action for unlawful detainer elements:
1. Initially, possession of property by the defendant
Judgment in rem- Binding upon the whole world. was by contract with or by tolerance of plaintiff.
Judgment in personam- Binding upon the parties. 2. Eventually, such possession became illegal upon
notice by plaintiff to defendant of the termination
Cause of action of the latter’s right of possession.
 Is the act or omission by which a party violates 3. Thereafter, the defendant remained in possession
the rights of another. of the property and deprived the plaintiff of the
 It has also been referred to as the fact or enjoyment thereof.
combination of facts which affords a party a right 4. Within 1 year from the last demand on defendant
to judicial interference in his behalf. to vacate the property, the plaintiff instituted the
 Sec.1 Rule 2- Every ordinary civil action must be complaint for ejectment.
based on a cause of action.
Cause of action for forcible entry
Elements of a cause of action  The possession of the defendant is illegal from the
1. A right in favor of the plaintiff by whatever means very beginning having deprived the actual
and under whatever law it arises or is created. possessor of his possession by force, intimidation,
2. An obligation on the part of the named defendant threat, strategy, or stealth.
to respect or not to violate such right.  The plaintiff must allege, in the complaint, and
3. An act or omission on the part of such defendant prove that he was in prior physical possession of
in violation of the right of the plaintiff or the property in dispute until he was deprived
constituting a breach of the obligation of the thereof by the defendant by any means provided
defendant to the plaintiff for which the latter may in sec.1 Rule 70 either by force, intimidation,
maintain an action for recover of damages or threat, strategy, or stealth.
other appropriate relief.
Cause of action for malicious prosecution
Although the first 2 elements may exist, a cause of 1. The prosecution did occur, and the defendant was
action arises only upon the concurrence of the last himself the prosecutor or that he instigated the
element, giving the plaintiff the right to maintain an commencement.
action in court for the recovery of damages or other 2. The criminal action finally ended with an acquittal.
appropriate relief. 3. In bringing the action, the prosecutor acted
without probable cause.
Even an existing right, though by itself legal may 4. The prosecution was impelled by legal malice, an
nevertheless become the source of liability and may improper or a sinister motive.
result in the violation of another person’s right as 5. The gravamen of malicious prosecution is not the
when in the exercise of a right or performance of a filing of a complaint based on the wrong provision
duty, one does not act with justice, does not give of law, but the deliberate initiation of an action
another his due or does not observe honesty and good with the knowledge that the charges were false
faith. and groundless.

Cause of action in administrative cases- Whether the


respondent has breached the norms and standards of
the office.

23
Action vs Cause of action Test of sufficiency of the statement of a cause of action
 Whether or not, admitting the facts alleged, the
Action- Is the suit filed in court for the enforcement or court could render a valid verdict in accordance
protection of a right or, the prevention or redress of a with the prayer in the complaint.
wrong.  A complaint is said to assert a sufficient cause of
action if, admitting what appears solely on its face
Cause of action- Is the basis of the action filed. Every to be correct, the plaintiff would be entitled to the
ordinary civil action must be based on a cause of action. relief prayed for.
 Accordingly, if the allegations furnish sufficient
Failure to state a cause of action basis by which the complaint can be maintained,
 The mere existence of a cause of action is not the same should not be dismissed regardless of
sufficient for a complaint to prosper. Even if, in the defenses that may be averred by the
reality, the plaintiff has a cause of action against defendants.
the defendant, the complaint may be dismissed if  The truth or falsity of the allegations are beside
the complaint or the pleading asserting the claim the point because the allegations in the complaint
states no cause of action. are hypothetically admitted.
 The cause of action must unmistakably be stated  The cause of action in a complaint is not what the
or alleged in the complaint or that all the designation of the complaint states, but what the
elements of the cause of action required by allegations in the body of the complaint define
substantive law must clearly appear from the and describe. The designation or caption is not
mere reading of the complaint. controlling, more than the allegations in the
complaint themselves are, for it is not even an
Test to determine when pleading asserting the claim indispensable part of the complaint.
states no cause of action
 Whether or not the ground for dismissal exists can Splitting a single cause of action
be determined only from the facts alleged in the  Is the act of instituting two or more suits on the
complaint and from no other and the court cannot basis of the same cause of action.
consider other matters aliunde.  The pleader divides a single cause of action, claim,
 Whether, assuming that the allegations of fact in or demand into two or more parts and brings a
the complaint to be true, a valid judgment could suit for one of such parts with the intent to
be rendered in accordance with the prayer stated reserve the rest for another separate action.
therein.  This is not allowed by the rules of court.
 This practice is discouraged because it breeds
Failure to state cause of action vs lack of cause of action multiplicity of suits, clogs the court dockets, leads
 Failure to state a cause of action refers to an to vexatious litigation, operates as an instrument,
insufficiency in the allegations in the complaint. and generates unnecessary expenses to the
 The ground for dismissal is that “the pleading parties.
asserting the claim states no cause of action”. This  The rules against splitting a single cause of action
is raised in a motion to dismiss under Rule 16 applies not only to complaints but also to
before a responsive pleading is filed and counterclaims and cross-claims.
determined only from the allegations of the  A single act may sometimes violate several rights
pleading and not from evidentiary matters. of a person. Nevertheless, the plaintiff has only
 Determined only from the allegations of the one cause of action regardless of the number of
initiatory pleading. rights violated.

 Lack of cause of action- failure to prove or Three tests to ascertain whether two or more suits relate
establish by evidence that one has a cause of to a single or common cause of action:
action. 1. Whether the same evidence would support and
 This is raised in a demurrer to evidence under sustain both the first and second causes of action.
Rule 83 after the plaintiff has rested his case, and (same evidence test)
can be resolved only on the basis of evidence he 2. Whether the defenses in one case may be used to
has presented in support of his claim. substantiate the complaint in the other.
 Determined from the evidence presented. 3. Whether the cause of action in the second case
existed at the time of the filing of the first
complaint.

24
General rule: A contract to do several things at several amount claimed, exclusive of interests and cost does not
times is divisible in its nature. This kind of obligation exceed 100,000.
authorizes successive actions and a judgment recovered
for a single breach does not bar a suit for a subsequent Remedy in case of misjoinder of actions- The action can
breach. be severed and proceeded with separately upon motion by
a party or upon the court’s own initiative. Misjoinder is not
Exception: Anticipatory breach
a ground for dismissal of an action.
Anticipatory breach- When the obligor manifests an
Sec.6 Rule 3- Misjoinder of causes of action is not a ground
unqualified and positive refusal to perform a contract,
though the performance of the same is not yet due, and for dismissal of an action. A misjoined cause of action may,
the renunciation goes to the whole contract, it may be on motion of a party or on the initiative of the court, be
treated as a complete breach, which will entitle the injured severed and proceeded with separately.
party to bring his action at once. In this case, the breach is
considered a total breach and there can only be one action Parties to a civil action
and the plaintiff must recover all his damages therein.
Plaintiff
Effect of splitting cause of action:  Is the claiming party or more appropriately the
 Ground for dismissal Sec.4 Rule 2, “the filing of original claiming party and is one who files the
one or a judgment upon the merits in any one”. complaint.
 Litis penendencia, sec.1 (e) Rule 16
 It may also apply to a defendant who files a
 Res judicata sec.1 (f) Rule 16
counterclaim, a cross-claim, or a third-party
Joinder of causes of action complaint.
 Is the assertion of as many causes of action as a  Sec.1 Rule 3- The term plaintiff is the claiming
party may have against another in one pleading party, the counter- claimant, the cross-claimant,
alone. or the third or fourth-party plaintiff.
 It is the process of uniting two or more demands
or rights of action in one action.
Defendant
 Joinder of causes of action is not compulsory, it is
merely permissive.  Does not only refer to the original defending
 When the causes of action accrue in favour of the party.
same plaintiff and against the same defendant, it  If a counterclaim is filed against the original
is not necessary to ask whether or not the causes plaintiff, the latter becomes a defendant and the
of actions arose out of the same transaction or former a plaintiff in the counterclaim.
series of transactions and that there exists a
 Also refers to a defendant in the counter-claim,
question of law or fact common to all the plaintiff
cross-claim, or the third, fourth etc party
or defendants.
 When there are two or more defendants, or two defendant.
or more plaintiffs, the causes of action against the
defendants can only be joined if there is a Who may be parties
compliance with the rules on joinder of parties. 1. Natural persons.
2. Juridical persons
Elements of proper joinder of parties
3. Entities authorized by law.
1. A right to relief exists in favour of or against
several persons whether jointly, severally, or in
the alternative. Juridical persons as parties (Art.44 of the Civil Code)
2. That the right to relief arises out of the same 1. The state and its political subdivisions.
transaction or series of transactions 2. Other corporations, institutions, and entities for
3. That there exists a question of law or fact public interest or purpose created by law.
common to all such plaintiffs or to all defendants. 3. Corporations, partnerships and associations for
private interest or purpose to which the law
Joinder of claims in small claims cases- The plaintiff may
grants a juridical personality, separate and distinct
join, in a single statement of claim, one or more separate
from that of each shareholder, partner, or
small claims against a defendant provided, that the total
member.
25
4. Entities authorized by law (Sec.1 Rule 3) 2. To require that the actual party entitled to legal
a. Corporation by estoppel relief be the one to prosecute the action.
b. Estate of a deceased person 3. To avoid multiplicity of suits.
c. Legitimate labor organization 4. To discourage litigation and keep it within certain
d. Roman Catholic Church bounds pursuant to sound public policy.
e. Dissolved corporation
f. Partnership having a capital of 3,000
pesos or more, which failed to comply Real party in interest
with the registration requirements  The party who stands to be benefited or injured
g. Entity that is neither a natural or juridical by the judgment in the suit, or the party entitled
person but is allowed by the Rules to be a to the avails of the suit.
party to an action under Sec.15 Rule 3  The interest must be “real” which is a present
i. When two or more persons not substantial interest as distinguished from a mere
organized as an entity with expectancy or a future, contingent, subordinate or
juridical personality, enter into a consequential interest.
transaction, they may be sued  Interest within the meaning of the rule means
under the name by which they material interest, an interest in issue to be
are generally or commonly affected by the decree, as distinguished from
known. The responsive pleading mere interest in the question involved, or a mere
of the entity sued must disclose incidental interest.
the names, and addresses of its  The interest of the party must also be “personal”
members since they are the and not one based on a desire to vindicate the
persons ultimately liable to the constitutional right of some third and unrelated
plaintiff. party.
 The determination of the real party in interest
Effect when a party impleaded is not authorized to be a requires going back to the elements of cause of
party action. The owner of the right violated stands to
 Where the plaintiff is not a natural or a juridical be the real party in interest as plaintiff and the
person or an entity authorized by law, a motion to person responsible for the violation is the real
dismiss may be filed on the ground that: “ The party in interest as defendant.
plaintiff has no legal capacity to sue”.  In a suit for breach of contract, the parties in
 Where it is the defendant who is not a natural or interest would be those covered by the operation
juridical person or an entity authorized by law, the of the doctrine of relativity of contracts.
complaint may be dismissed on the ground that:  Parties who have not taken part in a contract, may
“The pleading asserting the claim states no cause show that they have a real interest affected by the
of action, or failure to state a cause of action”. performance or annulment of the contract.
Because a complaint cannot possibly state a cause  The interest which entitles a person to intervene
of action against one which cannot be a party to a in a suit, between other parties, must be in the
civil action. matter in litigation and of such direct and
immediate character that the intervenor will
Minor or incompetent- May sue or be sued. He can be a either gain or lose by direct legal operation and
party but with the assistance of his father, mother, the effect of judgment.
guardian, or if he has none, by a guardian ad litem  In an action for ejectment- Anyone of the co-
owners may bring the action.
Purposes for the real party in interest prosecuting or  Should a lawful possessor be disturbed in his
defending an action at law possession, it is the possessor, not necessarily the
1. To prevent the prosecution of actions by persons owner of the property, who can bring the action
without any right, title, or interest in the case. to recover the possession.

26
 General rule: The right to contest the essential requisites before such questions may be judicially
transgression belongs to the corporation alone entertained.
which has a personality of its own separate and
distinct from that of an officer or a stockholder. Legal requisites for judicial inquiry (Belgica vs Ochoa):
 Exception: Derivative suits- Even if the cause of 1. There must be an actual case or controversy
action belongs to the corporation, if the board calling for the exercise of judicial power.
refuses to sue despite demand by the 2. The person challenging the act must have the
stockholders to sue and protect or vindicate standing to question the validity of the subject act
corporate rights, a stock holder is allowed by law or issuance.
to file a derivative suit in the corporate name. In 3. The question of constitutionality must be raised at
such suit, the real party in interest is actually the the earliest opportunity.
corporation and the stockholder filing the action is 4. The issue of constitutionality must be the lis mota
a mere nominal party. of the case.

Doctrine of locus standi Environmental cases- Any real party in interest, including
 Requires a litigant to have a material interest in the government and juridical entities authorized by law,
the outcome of the case. may file a civil action involving the enforcement or
 In private suits, locus standi requires a ltitigant to violation of any environmental law.
be a real party in interest (person who stands
Ground for dismissal when a party is not the real party in
benefited or injured by the judgment or the one
interest- That the pleading asserting the claim states no
entitled to the avails of the suit).
cause of action.
 In non-private suits- The traditional doctrine of
locus standi requires that the one who sues, must It is failure to state the cause of action, not its absence or
show, that he has sustained injury or will sustain a lack, which could be invoked for the dismissal of the claim.
direct injury as a result of a government action, or
has a material interest in the issue affected by the Any decision rendered against a person who is not a real-
challenged official act. Since the rule is a mere party in interest in the case cannot be executed.
procedural technicality, the court has waive dor
relaxed the same rule, allowing persons who may General rule: Every action must be prosecuted and
not have been personally injured by the operation defended in the name of the real party in interest, unless
of a law or any governmental act. otherwise authorized by law or by the rules.

Minimum Norms to extend the standing to sue to the so- Exception: Some actions may be allowed to be prosecuted
called non-traditional suitors or defended by a representative or someone acting in a
fiduciary capacity like a trustee or an express trust, a
1. For taxpayers, there must be a claim of illegal guardian, an executor or administrator, or a party
disbursement of public funds or that the tax authorized by law or by the rules.
measure is unconstitutional.
2. For voters, there must be a showing of obvious Citizen suit
 May be filed by any Filipino citizen in
interest in the validity of the law in question.
representation of others, including minors or
3. For concerned citizens, there must be a showing generations yet unborn, to enforce rights or
that the issues raised are of transcendental obligations under environmental laws.
importance which must be settled early.  A unique rule which authorizes a suit in
4. For legislators, there must be a claim that the representation of generations yet unborn even if
official action complained of infringes on their those represented are, at the time of the filing of
prerogatives as legislators. the suit, yet neither conceived or born.

The doctrine of locus standi is significant in cases involving


questions of constitutionality because it is one of the

27
Court order in Citizen suits Joinder of indispensable parties
1. A brief description of the cause of action.  Mandatory and courts cannot proceed without
2. A brief description of the reliefs prayed for their presence.
3. An order requiring all interested parties to  If there is a failure to implead an indispensable
manifest their interest to intervene in the case party, any judgment rendered would have not
within 15 days from notice thereof. effectiveness.
 Although, normally, a joinder of parties is
Vlason Enterprises Corp vs CA- Mere failure to include the permissive, the joinder of a party becomes
name of a party in the title of the complaint is not fatal compulsory when one involved is an
because the Rules of Court requires the courts to pierce indispensable party.
the form and go into the substance and not be misled by a  In a joint obligation, the interest of one debtor is
false or wrong name in the pleadings. The averments are separate and distinct from that of his co-debtor,
controlling and not the title. and a suit against one debtor does not make the
other an indispensable party to the suit.
Locus standi vs Real party in interest  The action should be dismissed when
indispensable parties are not impleaded or are
Locus standi not before the court. But the dismissal is not
 Defined as a right of appearance in a court of outright.
justice on a given question.  Parties may be dropped or added by the court on
 The concept of standing, because of its motion of any party or on its own initiative at
constitutional underpinnings, is very different any stage of the action and on such terms as are
from questions relating to whether or not a just.
particular party is a real party in interest.  It is when the order of the court to implead an
 Although both are directed towards ensuring that indispensable party goes unheeded may the case
only certain parties can maintain an action, the be dismissed. The court is fully clothed with
concept of standing requires analysis of broader authority to dismiss a complaint due to the fault
policy concerns. of the plaintiff as when, among others, he does
not comply with the order of the court.
Real party in interest  The responsibility of impleading all the
 In private suits, standing is governed by the “real indispensable parties rests on the plaintiff.
party in interest” rule in Rule 3 sec.2.
 The question as to who the real party in interest Necessary parties
is, involves only a question on whether a person  Is one who is not indispensable but who ought to
would be benefited or injured by the judgment or be joined as a party to the case if complete relief
whether or not he is entitled to the avails of the is to be accorded as those already parties, or for a
suit. complete determination or settlement of the
claim subject of the action.
Indispensable parties
 An indispensable party is a real party in interest Indispensable party vs Necessary party
without whom no final determination can be had
of an action. Indispensable
 A person in whose absence there cannot be a  Must be joined under any and all conditions.
determination between the parties already before  Must be joined because the court cannot proceed
the court which is effective, complete, or without him. Hence, his presence is mandatory.
equitable. Necessary
 Presence of indispensable parties is a condition  Should be joined whenever possible.
for the exercise of judicial power and when an  His presence is not mandatory because his
indispensable party is not before the court, the interest is separable from that of the
action should be dismissed. indispensable party.
 The absence of an indispensable party renders all  A final decree can be had in case even without a
subsequent actions of the court null and void for necessary party because his interests are
want of authority to act, not only as to the absent separable from the interest litigated in the case.
parties but even to those present.

28
Duty of pleader if a necessary party is not joined Sec.9 If there is any claim against a party misjoined, the same
Rule 3 maybe severed and proceeded with separately. Misjoinder
 Whenever in any pleading in which a claim is of parties does not involve questions of jurisdiction and is
asserted, a necessary party is not joined, the not a ground for dismissal.
pleader shall set forth the name of the necessary
party, if his name is known, and state why such The rule on misjoinder or non-joinder of parties does not
party is omitted. comprehend whimsical and irrational dropping or adding
Effect of failure to comply with the order of the court of parties in a complaint. What it really contemplated is
 The failure to comply with the order of the court erroneous or mistaken non-joinder or misjoinder of
to include a necessary party, without justifiable parties. The rule presupposes that the original inclusion
cause, shall be deemed a waiver of the claim had been made in honest conviction that it was proper and
against such party. the subsequent dropping is requested because it turned
 Effect of a justified non inclusion of a necessary out that such inclusion was a mistake. This is the reason
party, the non inclusion does not prevent the why the rule ordains that the dropping is on such term as
court from proceeding in the action, and the are just.
judgment rendered therein shall be without
prejudice to the rights of such necessary party. Unknown identity or name of defendant
 Whenever the identity or name of the defendant
Solidarity- Does not make a solidary obligor an is unknown, he may be sued as the unknown
indispensable party in a suit filed by the creditor against owner, heir, devisee, or by such other designation
another solidary debtor. There could be a complete and as the case may be require.
final determination of the action for a sum of money  When his identity or true name is discovered, the
without the other solidary debtor being joined. One pleading must be amended accordingly.
solidary debtor could be ordered to pay the entire
obligation. Neither the other solidary debtors are Effect of death of a party
necessary parties.  The death of the client extinguishes the attorney-
client relationship and divests the counsel of his
Unwilling co-plaintiff- It is a party who is supposed to be a authority to represent the client.
plaintiff but whose consent to be joined as plaintiff cannot  A dead client has no personality and cannot be
be obtained as when he refuses to be a party to the action. represented by an attorney.
He may be made a defendant, and the reason therefor  Neither does he become the counsel of the heirs
shall be stated in the complaint. of the deceased unless his services are engaged by
the heirs.
Alternative defendants  Duty of the counsel of the deceased party to
 Where the plaintiff cannot identify who among inform the court of such fact within 30 days after
two or more persons should be impleaded as a such death. The counsel has also the obligation to
defendant, he may join all of them as defendants give the name and address of the legal
in the alternative. representative of the deceased.
 Where the plaintiff is uncertain against who of  This duty is mandatory and failure to comply is a
several persons he is entitled to relief, he may join ground for disciplinary action.
any or all of them as defendants in the alternative,  Upon receipt of the notice of death, the court
although a right to relief against one may be shall determine whether or not the claim is
inconsistent with a right to relief against the extinguished by such death.
other.  If the claim survives, the court shall order the legal
representative or representatives of the deceased
Misjoinder of parties- A party is misjoined, when he is a to appear and be substituted for the deceased
party to the action although he should not be impleaded. within 30 days from notice.
 Under the present rule, the heir of the deceased
Non-joinder of parties- party is non-joined, when he is may be allowed to be substituted for the
supposed to be joined but not impleaded in the action. deceased.
 There is no more need to require the
Neither misjoinder or non-joinder of parties is a ground for appointment of an executor or administrator.
dismissal of an action. Parties may be dropped or added by  If there is an heir, and the heir is a minor, the
order of court on motion of any party or on its own court may appoint a guardian ad litem.
initiative at any stage of the action and on such terms as
are just.

29
When opposing party is ordered by the court to procure Actions which does not survive (purely personal actions)
the appointment of an executor or administrator for the 1. Actions for support
eatate of the deceased. 2. Annulment of marriage
1. The counsel for the deceased does not name a 3. Legal separation
legal representative.
2. There is a legal representative named but he fails Sec.4 Rule 111- If the accused dies before arraignment,
to appear within the specified period. while the criminal case shall be dismissed. Such dismissal is
without prejudice to any civil action the offended party
Service of summons is not required to effect substitution. may file against the estate of the deceased.
 Nothing in Sec.16 of Rule 3 mandates service of
summons. Instead of service of summons, the The death of the accused after arraignment and during
court shall, under the authority of the same the pendency of the criminal action shall extinguish the
provision, order the legal representative of the civil liability arising from the delict. However, the
deceased to appear and be substituted for the independent civil action instituted pursuant to the Rules or
said deceased within 30 days from notice. which may thereafter be instituted to enforce civil liability
 By virtue of the said rule, it is significant to arising from other sources of obligations may be continued
remember that it is not the amendment of the against the estate or legal representative of the accused
pleading, but the order of substitution and its after proper substitution or against said estate as the case
service that are the initial steps towards the may be.
substitution of the deceased by his representative
or heir. Actions for the recovery of money on contractual basis
(Sec.20 Rule 3)
Effects of non-compliance with the rules on substitution  The defendant dies before entry of final
 Non-compliance with the rules on substitution of judgment in the court in which the action was
a deceased party renders the proceedings of the pending at the time of death, the court shall not
court infirm because the court acquired no dismiss the suit.
jurisdiction over the person of the legal  Substitution of the defendant shall be done
representative of heirs of the deceased because following the procedure prescribed by the rules.
no man should be affected by a proceeding to  If the plaintiff obtains a favourable judgment, said
which he is a stranger. judgment shall be enforced following the
 A party to be affected by a personal judgment procedure provided for in the rules for
must have a day in court and an opportunity to be prosecuting claims against the estate of a
heard. deceased person.
 In an ejectment case, the non-substitution of the  Because of the rule mandating compliance with
deceased by his legal representatives because of the rule for prosecuting claims against the estate,
the failure of the counsel to inform the court of the prevailing plaintiff is not supposed to file a
the death of his client, does not deprive the court motion for the issuance of an order and writ of
of jurisdiction. The decision of the court is, execution of judgment.
nevertheless, binding upon the successors in  Since the action is one for the recovery of money,
interest of the deceased. the judgment favourable to the plaintiff shall be
 A judgment in an ejectment case may be filed as a money claim against the estate of the
enforced not only against defendants therein but deceased.
also against the members of their family, their
relatives, or privies who derived their right of Incompetency of a party during the pendency of the
possession from the deceased defendant. action
 The court, upon motion with notice, may allow
Actions which survive the death of a party the action to be continued by or against the
1. Actions to recover real and personal property. incompetent or incapacitated party with the
2. Action to enforce a lien thereon. assistance of his legal guardian or guardian ad
3. Actions to recover damages for an injury to litem.
person or property.
4. Action to recover damages arising from delicts. Transfer if interest
5. Actions for the recovery of money arising from a  The action may be continued by or against the
contract, express or implied. original party, unless the court, upon motion,
6. Action for quieting of title. directs the person to whom the interest is

30
transferred to be substituted in the action or Solicitor General
joined with the original party.  Only the Solicitor General can bring and
defend actions on behalf of the republic of
Indigent party the Philippines and that the actions filed in
 Sec 21, Rule 3- A party who has no money or the name of the Republic and its agencies and
property sufficient and available for food, shelter, instrumentalities, if not initiated by the
and basic necessities for himself and his family. Solicitor General, will be summarily
 A.M. NO. 00-2-01-SC March 01, 2000 dismissed.
RESOLUTION AMENDING RULES 141 (LEGAL FEES)  Actions involving the validity of any treaty,
OF THE RULES OF COURT Section 18.Indigent- law, ordinance, executive order, presidential
decree, rule or regulations, the court in its
litigants exempts from payment of legal fees. —
discretion may require the appearance of the
Indigent litigants Solicitor General who may be heard in person
o (a) whose gross income and that of their or through a representative duly designated
immediate family do not exceed four by him.
thousand (P4,000.00) pesos a month if  In criminal actions brought before the CA or
residing in Metro Manila, and three SC, the authority to represent the state is
thousand (P3,000.00) pesos a month if solely vested in the OSG.
residing outside Metro Manila, and
Suit against spouses
o (b) who do not own real property with
 The husband and wife shall sue or be sued jointly,
an assessed value of more than fifty except as provided by law.
thousand (P50,000.00) pesos shall be  An instance when a spouse need not be joined in
exempt from the payment of legal fees. a suit involving the other is when the litigation
 The legal fees shall be a lien on any judgment pertains to an exclusive property of a spouse.
rendered in the case favorably to the indigent  Despite the separation of property, one spouse
litigant, unless the court otherwise provides. may end up being sued and held liable for
 To be entitled to the exemption herein provided, liabilities incurred by the other because the
the litigant shall execute an affidavit that he and liability of the spouses to creditors are solidary.
his immediate family do not earn a gross income
abovementioned, nor they own any real property Class suit Requisites
with the assessed value aforementioned, 1. The subject matter of the controversy must be
supported by an affidavit of a disinterested common or general interest to many persons.
person attesting to the truth of the litigant's 2. The persons are so numerous that it is impractical
affidavit. to join all as parties.
 Any falsity in the affidavit of a litigant or 3. The parties actually before the court are
disinterested person shall be sufficient cause to sufficiently numerous and representative as to
strike out the pleading of that party, without fully protect the interests of all concerned.
prejudice to whatever criminal liability may have 4. The representatives sue or defend for the benefit
been incurred. (16a) of all.
 Exempt from payment of docket fees and other
lawful fees and transcripts of stenographic notes Class suit- Is an action where one or more may sue for the
which the court may order to be furnished to him. benefit of all if the requisites for said action are complied
 The amount of the docket and other lawful fees with.
which the indigent was exempted from paying,
shall be a lien on the judgment rendered in the An action does not become a class suit merely because it is
case favourable to the indigent. The lien on the designated as such in the pleadings. Whether the suit is or
judgment shall not arise if the court provides not a class suit depends upon the attendant facts.
otherwise.
 If the indigent is in fact a person with sufficient Common or general interest in the subject matter of the
income and property, the proper docket and litigation
lawful fees shall be assessed and collected by the  What is required by the rules for a class suit to
clerk of court. prosper.
 The subject matter of the action is meant the
physical, the things real or personal, the money,
lands, chattels, and the like, in relation to the suit
31
which is prosecuted and not the delict or wrong to him, and that all proofs submitted by him
committed by the defendant. contrary thereto or inconsistent therewith, should
 It is not also a common question of law that be ignored, whether objection is interposed or
sustains a class suit but a common interest in the not.
subject matter of the controversy.  In case of ambiguities in the pleadings, the same
 When the interests of the parties in the subject must be construed most strongly against the
matter are conflicting, a class suit will not prosper. pleader and that no presumptions in his favour
 A class suit does not lie in actions for the recovery are to be indulged in. Such ambiguities must be at
of property where several persons claim the pleader’s peril since it is he who selects the
ownership of their respective portions of language used being open to different
property, as each one could allege and prove his constructions.
respective right in a different war for each portion
of the land, so that they cannot all be held to have Code pleading- The system of pleading in the Philippines,
identical title through acquisitive prescription. following the system observed in some states of the US.
 There is no common or general interest in the This is based on codified rules or written set of procedure
reputation of a specific individual. as distinguished from common law procedure.
 There is a common or general interest in
environment and natural resources suits. Pleadings allowed by the Rules of Court
1. Complaint.
Sec.2 Rule 17- A class suit shall not be dismissed or 2. Answer
compromised without the approval of the court. 3. Counterclaim
4. Cross-claim
Pleadings 5. Third, fourth- party complaint
 Are the written statements of the respective 6. Complaint-in-intervention
claims and defences of the parties submitted to 7. Reply
the court for appropriate judgment.
 Are the allegations made by the parties to an Pleadings allowed by the Rules on Summary Procedure
action or proceeding for the purpose of 1. Complaint
presenting the issue to be tried and determined, 2. Compulsory counterclaim pleaded in the answer
whether such issue is of law or of fact. 3. Cross-claim pleaded in the answer
 Are considered formal statements by the parties 4. Answers thereto
of the operative facts which constitute their Prohibited motions under the Rules on Summary
respective claims and defences. Procedure
 Pleadings are necessary, in order to confer 1. Motion to dismiss or quash a complaint of
jurisdiction on a court, that the subject matter information. Except for lack of jurisdiction over
presented for its consideration in a mode SM, failure to comply with barangay conciliation.
sanctioned by law and this is done by the filing of 2. Motion for bill of particulars.
the complaint or other pleading. 3. Motion for new trial
 Pleadings are designed to develop and present 4. Motion for reconsideration of judgment
the precise points in dispute between the parties. 5. Motion for reopening of trial
6. Motion for extension of time to file pleadings,
 Their office is to inform the court and the parties
affidavits, or any other paper.
of the facts in issue.
7. Motion to declare defendant in default.
 The object of pleadings, in a more restricted and
8. Dilatory motions for postponement
commonly accepted sense, is to notify the
opposite party of the facts which the pleader
Pleading in Small Claims
expects to prove, so that he may not be misled in
1. Accomplished and verified statement of claim.
the preparation of his case.
2. Duly accomplished and verified response.
3. Counterclaim in response.
Construction of pleadings
Prohibited pleadings under the Procedure on Small Claims
 In this jurisdiction, all pleadings shall be liberally
1. Petition for relief from judgment
construed so as to do substantial justice.
2. Petition for Certiorari, Prohibition, Mandamus
 The intention of the pleader is the controlling
against any interlocutory order of the court.
factor in construing a pleading and should be read
3. Reply
in accordance with its substance, not its form.
4. Third-party complaints
 A party is strictly bound by the allegations, 5. Interventions
statements, or admissions and are conclusive as
32
Prohibited motions in Rules of Procedure for Small Claims Title of the action
Cases  Contains the names of the parties whose
1. Motion to dismiss the complaint. participation in the case shall be indicated. Parties
2. Motion for bill of particulars. shall be indicated as plaintiff and defendant.
3. Motion for new trial  They shall all be named in the original complaint
4. Motion for reconsideration of judgment or petition.
5. Motion for reopening of trial  But in subsequent pleadings, it shall be sufficient
6. Motion for extension of time to file pleadings, if the name of the first party on each side be
affidavits, or any other paper. stated with an appropriate indication whether
7. Motion to declare defendant in default. there are other parties.
8. Dilatory motions for postponement
Body of the pleading
Prohibited pleadings in a petition for Writ of Amparo or  Sets forth its designation, the allegations of the
Habeas Data party’s claims or defences, the relief prayed for,
1. Counterclaim and the date of the pleading.
2. Cross-claim  The allegations in the body of the pleading shall
3. Third-party complaint be divided into paragraphs and shall be so
4. Reply numbered for ready identification.
5. Intervention  This numbering scheme is significant because in
6. Certiorari, Prohibition, Mandamus against subsequent pleadings, a paragraph may be
interlocutory orders of the court. referred to only by its number without need of
Prohibited Motions in Petitions for Writ of Amparo or repeating the entire allegations in the paragraph.
Habeas Data  Each paragraph shall contain a statement of a
1. Motion to dismiss single set of circumstances so far as that can be
2. Motion for extension of time to file opposition, done with convenience.
affidavits, position paper, and other pleadings.
3. Dilatory motion for postponement. Designations of causes of actions in one complaint
4. Motion for a bill of particulars  When two or more causes of action are joined,
5. Motion to declare defendant in default the first cause of action shall be prefaced with
6. Motion for reconsideration of interlocutory orders words. “first cause of action”, and so forth.
or interim relief orders
Allegations of ultimate facts
Pleadings in Procedure for Environmental cases  Every pleading, including the complaint, is not
1. Complaint supposed to allege conclusions. A pleading must
2. Answer with compulsory counterclaim and cross- only aver facts because conclusions are for the
claim. courts to make.
3. Pleading in intervention files in a citizen suit
 Every pleading shall omit from its allegations
Prohibited pleadings in Procedure for Environmental
statements of mere evidentiary facts.
cases
 Except: In environmental cases, the rule requires
1. Reply
that all evidence proving the cause of action
2. Rejoinder
consisting of affidavits, documents, and if
3. Third-party complaints
possible, object evidence, shall be attached to the
Prohibited motions in the Procedure for environmental
verified complaint.
cases
 Only allegations of ultimate facts, or the facts
1. Motion to dismiss the complaint
essential to a party’s cause of action or defense or
2. Motion for a bill of particulars
such facts as are so essential that they cannot be
3. Motion for extension of time to file pleadings,
stricken out without leaving the statement of the
except to file answer, the extension shall not
cause of action inadequate.
exceed 15 days.
 The ultimate facts are to be stated in a methodical
4. Motion to declare defendant in default.
and logical form, and in a plain, concise, and direct
manner.
Caption of the pleading
1. Name of court
Relief
2. Title of the action
3. Docket number if assigned.  The pleading shall specify the relief sought
although the statement may include a general

33
prayer for such further or other relief as may be another lawyer but cannot do so in favour of one
deemed just or equitable. who is not. Rule 9.01 Code of professional
 A court can grant the relief warranted by the responsibility.
allegations and proof even if it is not specifically  Counsel shall be subject to disciplinary action in
sought by the injured party. the ff cases:
 The inclusion of a general prayer may justify the o When he deliberately files an unsigned
grant of a remedy different from or together with pleading
the specific remedy sought, if the facts alleged in o When he signs a pleading in violation of
the complaint and the evidence introduced so the rules.
warrant. o When he alleges in the pleading
 The relief or prayer, although part of the scandalous or indecent matter.
complaint, does not constitute part of the o When fails to promptly report to the
statement of the cause of action, and the plaintiff court a change of his address.
is entitled to as much relief as the facts may
warrant. Verification
 It is the material allegations in the complaint, not o Pleadings need not be under oath, verified, or
the legal conclusions made therein or the prayer, accompanied by affidavit, except when so
that determines the relief to which the plaintiff is required by law or rule.
entitled. o A pleading is verified by an affidavit. This
affidavit declares that
Signature and address o The affiant has read the pleadings.
 Every pleading must be signed by the plaintiff or o The allegations therein are true and
the counsel representing him stating in either correct of his personal knowledge or
case his address. This address should not be a based on authentic records
post office box. o The verification requirement is deemed
 In the absence of a proper notice to the court of a substantially complied with when one who has
change of address, service upon the parties must ample knowledge to swear the truth of the
be made at the last address of their counsel of allegations in the complaint or petition signs the
record. verification, and when matters alleged in the
 A signed pleading is one that is signed either by petition has been made in good faith or are true
the party himself or his counsel. and correct.
 A pleading must be signed by the party or counsel o Significance of verification, as it is intended to
representing him. secure an assurance that the allegations in a
pleading are true and correct and not the product
Unsigned pleading of the imagination or matter of speculation, and
 An unsigned pleading produces no legal effect. that the pleading is filed in good faith.
 The court, however, is authorized to allow the o A verification is not proper when the verification
pleader to correct the deficiency if the pleader does not comply with the requirement of the
shows no satisfaction of the court, that the failure rule.
to sign the pleading was due to mere o The absence of a verification or the non-
inadvertence and not intended for delay. compliance with the verification requirement
does not necessarily render the pleading
 The signature of the counsel in a pleading is
defective. It is only a formal and not a
significant, his signature constitutes:
jurisdictional requirement. The requirement is a
o He has read the pleading
condition affecting only the form of pleading and
o That to the best of his knowledge,
non-compliance therewith does not render it
information and belief, there is good
fatally defective.
ground to support it, and that
o The court may order its submission or correction
o It is not interposed for delay.
or act on the pleading if the attending
 He may not delegate it to just any person because
circumstances are such that strict compliance with
the signature of counsel constitutes an assurance
the Rule may be dispensed with in order that the
by him that he has read the pleading.
ends of justice may be served thereby.
 The preparation and signing of a pleading
o The absence of a verification may be corrected by
constitute legal work involving practice of law
requiring an oath.
which is reserved exclusively for the members of
the legal profession. Accordingly however,
counsel may delegate the signing of a pleading to
34
Other requirements  Elements
1. Counsel’s current Professional Tax Receipt 1. Identity of parties or at least such parties
2. Counsel’s current IBP official Receipt Number represent the same interests in both
indicating its date of issue. actions. (identity of parties)
3. Roll of attorneys number 2. Identity of rights asserted and relief
4. Number and date of issue of their MCLE prayed for, the relief being founded on
Certificate of Compliance or Exemption. the same facts. (identity of rights or
causes of action)
*Failure to comply with the requirement shall be a 3. The identity of the two preceding
ground for further disciplinary sanction and contempt of particulars is such that any judgment
court. rendered in the pending case, regardless
of which party is successful, would
*Failure to disclose the MCLE certificate would cause the amount to res judicata in the other
dismissal of the case and expunction of the pleadings case.(identity of reliefs sought)
from the records.  3 ways of committing forum shopping
1. Filing multiple cases based on the same
Certification against Forum Shopping cause of action and with the same
 Is a sworn statement in which the plaintiff or prayer, the previous case not having
principal party certifies in a complaint or initiatory been resolved yet (ground for dismissal
pleading the following matters: is litis pendencia).
1. That he has not commenced any action 2. Filing multiple cases based on the same
or filed any claim involving the same cause of action and the same preayer,
issues in any court, tribunal, or quasi- the previous case having been finally
judicial agencies and to the best of his resolved (res judicata).
knowledge, no other action or claim is 3. Filing multiple cases based on the same
pending therein. cause of action, but with different
2. That if there is such other pending action prayers (splitting of causes of action)
or claim, a complete statement of the where the ground for dismissal is also
present status thereof. either litis pendencia or res judicata.
3. That if should thereafter learn that the
same or similar action or claim has been Rationale against forum shopping
filed or is pending, he shall report the  Filing multiple petitions or complaints constitutes
fact within 5 days therefrom to the court abuse of court processes, which tends to degrade
wherein his aforesaid complaint or the administration of justice, wreaks havoc upon
initiatory pleading has been filed. orderly judicial procedure, and adds to the
 The certification is mandatory under Sec.5 Rule 7 congestion of the heavily burdened dockets of
but not jurisdictional since jurisdiction over the courts.
subject of the action is conferred by law.
Where the reliefs sought in the two actions are different,
Forum shopping there is no forum shopping even if the parties in the
 It is a ground for summary dismissal and direct action are the same.
contempt, if wilfully and deliberately done. The concept of forum shopping applies not only with
 Filing of multiple suits involving the same parties, respect to suits filed in courts but also in connection with
same rights asserted, and reliefs prayed for. litigations commenced in the courts while an
 When a party repetitively avails of several judicial administrative proceeding is pending in order to defeat
remedies in different courts, simultaneously or administrative processes and in anticipation of an
successively, all substantially founded on the unfavourable administrative ruling.
same transactions and the same essential facts
and circumstances and all raising substantially the To file an ordinary appeal and petition for certiorari with
same issues either pending or in already resolved the same court is to engage in forum shopping.
adversely by some other court.
 As a result of an adverse opinion in one forum, a Violation of certification requirements- Is the failure to
party seeks a favourable opinion, other than attach the sworn certification to the initiatory pleading and
constitutes a cause for the dismissal without prejudice.
appeal or certiorari in another.

35
Plaintiff executes the certification against forum shopping cause of action or defense, the signature of only
 The certification must be executed by the party, one of them substantially complies with the rule.
not the attorney.
 It is the petitioner and not the counsel who is in Substantial compliance and liberal interpretation on the
the best position to know whether he or it signing of the certification against forum shopping.
actually filed or caused the filing of the petition.  This should not be interpreted with such absolute
 A certification signed by the counsel is a defective literalness as to subvert its own ultimate and
certification and a valid cause for dismissal. legitimate objective. Strict compliance with the
 Exception to the rule that the certification must provision regarding the certificate of non-forum
be signed by the party pleader himself: For shopping underscores its mandatory nature in
reasonable and justifiable reasons, the party that the certification cannot be altogether
pleader is unable to sign, he must execute a SPA dispensed with or its requirements completely
designating his counsel of record to sign on his disregarded.
behalf.  This shall not be applied if dishonesty attended
 Corporations- The certification must be executed the signing of the certification.
by an officer or member of the board of directors  The rule is subject to the power of the Supreme
or by one who is duly authorized by a resolution court to suspend procedural rules and lay down
of the board of directors, otherwise, the exceptions to the same.
complaint will have to be dismissed.
 A president of the corporation can sign te Pleadings requiring a certification against forum shopping
verification and certification against forum  Complaint
shopping in behalf of the corporation without the  Other initiatory pleadings asserting a claim or
benefit of a board resolution. relief.
o The following may also sign  Permissive counterclaim
 General manager or acting  Cross-claim
general manager  3rd-4th party complaint
 Chairperson of the board of  Complaint in intervention
directors  Petition
 Personnel officer  Any application in which a party asserts his claim
 Employment specialist in a labor for relief.
case.
o The rationale in allowing the above Initiatory pleading- An incipient application of a party
persons to sign the verification ad asserting a claim for relief.
certification against forum shopping is
their being in a position to verify the Effect of non-compliance with the rule on certification
truthfulness and correctness of the against forum shopping.
allegations in the petition.  Not curable by mere amendment.
o The court, however, clarified that the  Cause for dismissal of the action upon motion and
better procedure is to append a board after hearing.
resolution to the complaint or petition to  The court cannot dismiss is motu propio.
obviate questions regarding the authority  The dismissal is without prejudice unless the order
of the signatory of the verification or of dismissal otherwise provides.
certification.
 When the dismissal is silent as to the character of
o It is not necessary when it is self-evident
dismissal, the dismissal is presumed to be without
that the signatory is in a position to verify
prejudice to the refilling of the complaint.
the truthfulness and correctness of the
 Failure to submit a certification against forum
allegations in the petition.
shopping is a ground for dismissal, separate and
distinct from forum shopping as a ground for
Several plaintiffs or petitioners
dismissal.
 The certification must be signed by all the
 A complaint may be dismissed for forum shopping
plaintiffs or petitioners in a case, otherwise, those
even if there is a certification attached, and
who did not sign will be dropped as parties to the
conversely, a complaint may be dismissed for the
case.
lack of the required certification even if the party
 Under justifiable or reasonable circumstances,
has not committed forum shopping.
however, as when the plaintiffs or petitioners
share a common interest and invoke a common
36
An order dismissing an action without prejudice is, as a  Sec.3 (n) Rule 131, There is a presumption though
rule, not appealable. The remedy provided for is to avail disputable, that a court, or judge acting as such,
the appropriate special civil action. whether in the Philippines or elsewhere, was
 If a complaint is dismissed for failure to comply acting in the lawful exercise of jurisdiction.
with the required certification against forum
shopping, the plaintiff cannot appeal the order of Pleading an official document- It is sufficient to aver that
dismissal where it is one without prejudice. the document was issued in compliance with the law.

Wilful and deliberate forum shopping Pleading an official act- It is sufficient to allege that the act
 Ground for summary dismissal. was done also in accordance with law.
 No motion to dismiss and hearing are required.
 Dismissal is with prejudice Pleading capacity to sue or be sued
 Constitutes direct contempt  Facts showing the capacity of a party to sue or be
 Cause for administrative sanctions. sued must averred.
 If a party is suing or sued in a representative
Not wilful and deliberate capacity, his authority must also be averred.
 Dismissal is without prejudice on the grounds of  If a party is an organized association of persons,
either litis pendencia or res judicata. its legal existence must likewise be averred.

Submission of false certification Pleading fraud, mistake, or condition of the mind


 Constitutes indirect contempt of court.  When making averments of fraud or mistake, the
circumstances constituting such fraud or mistake
Ultimate facts must be stated with particularity.
 Are the important and substantial facts which
form the basis of the primary right of the plaintiff Malice, intent, knowledge or other conditions of the mind
and make up the wrongful act or omission of the of a person
defendant.  Must be averred generally.
 The ultimate facts do not refer to the details of  Unlike fraud or mistake, they need not be stated
probative matter or the particulars of evidence by with particularity.
which the material elements are to be  The rule is borne of human experience. It is
established. difficult to state the particulars constituting these
 They are the principal, determinative, constitutive matters
facts, upon the existence of which the entire
cause of action rests. Pleading actionable documents
 Plaintiff’s cause of action or the defendant’s
Conditions precedent defense is based upon a written instrument or
 Refers to the matters which must be complied document.
with before a cause of action arises.  Actionable document- Referred to as the
 When a claim is subject to a condition precedent, document relied upon by either the plaintiff or
the compliance of the same must be alleged in the defendant as when the plaintiff sues on a written
pleading. contract.
Conditions precedent  Action for collection of sum of money-
1. Tender of payment before consignation. promissory note
2. Exhaustion of administrative remedies.  Foreclosure of mortgage- Deed of mortgage.
3. Barangay conciliation proceedings.  Whenever an actionable document is the basis of
4. Earnest efforts towards a compromise. a pleading, the rule specifically directs the pleader
5. Arbitration when agreed in the contract. to:
o set forth in the pleading the substance of
Failure to comply with a condition precedent- Ground for the instrument or document, and attach
a motion to dismiss “That a condition precedent for filing the original or the copy of the document
the claim has not been complied with”. pleading as an exhibit
o With like effect, to set forth in the
Pleading a judgment pleading said copy of the instrument or
 There is no need to allege matters showing the document.
jurisdiction to render the judgment or decision.

37
How to contest an actionable document *These defences having no direct relationship to the
 The party who has no intent of admitting the concepts of genuineness and due execution.
genuineness and due execution of the document *They are not inconsistent with the admission of the
must contest the same by genuineness and due execution of the instrument and are
o Specifically denying the the genuineness not, therefore, barred.
and due execution of the document
under oath. Filing- The act of presenting the pleading or other paper
o Setting forth what he claims to be the tot the clerk of court.
facts.
 A mere specific denial of the actionable Service- The act of providing a party with a copy of the
document is insufficient. The denial must be pleading or paper concerned.
coupled with an oath.
 The denial must be verified (under oath), the Service is made
absence of an oath will result in the implied 1. If a party has not appeared by counsel, then
admission of the due execution and genuineness service must be made upon him.
of the document. 2. If a party has appeared by counsel, then service
 When oath is not required upon such party shall be made upon his counsel
o When the adverse party does not appeal or one of them, unless service upon the party
to be a party to the instrument. himself is ordered by the court (Sec.2 Rule 13)
o When compliance with an order for an 3. The rule is that when a party is represented by
inspection of the original instrument is counsel in an action in court, notices of all kinds,
refused. including motions, pleadings, and orders must be
served on said counsel and notice to him is notice
Admission to the client.
 By the admission of the genuineness and the due 4. Subject to compelling reasons involving
execution of an instrument is meant: substantial justice, service of a petition upon a
o that the party whose signature it bears party, when that party is represented by counsel
admits that he signed it or that it was of record, is a patent nullity and is not binding
signed by another for him with his upon the party wrongfully served.
authority, 5. Service upon the parties’ counsel of record is
o that, at the time it was signed, it was in tantamount to service upon the parties
words and figures exactly as set out in themselves, but service upon the parties
the pleadings of the party relying upon it. themselves is not considered service upon their
o That the document was delivered lawyers. Because, the parties, generally, have no
o And that the formal requisites required formal education or knowledge of the rules of
by law, such as a seal, acknowledgment, procedure, specifically, the mechanics of an
or revenue stamp which it lacks are appeal or availment of legal remedies, thus, they
waived by him may also be unaware of the rights and duties of a
o Waiver of defences like forgery, lack of litigant relative to the receipt of a decision.
authority to execute the document, 6. More importantly, it is best for the courts to deal
document was never delivered. only with one person in the interest of orderly
procedure, either the lawyer retained by the party
Defenses not cut off by the admission of genuineness and or the party himself if he does not intend to hire a
due execution: lawyer.
1. Payment or non-payment 7. Where one counsel appears for several parties,
2. Want of consideration service shall be made upon said counsel but he
3. Illegality of the consideration shall be entitled only to one copy of any paper
4. Usury served upon him by the opposite side.
5. Fraud
6. Prescription Manner of filing
7. Release 1. By presenting the original copy of the pleading,
8. Waiver notice, appearance, motion, order, or judgment
9. Statute of Frauds personally to the clerk of court.
10. Estoppel 2. By registered mail.
11. Former recovery or discharge in bankruptcy

38
 In personal filing, the clerk of court shall indicate accompanied by a written explanation why the
or endorse on the pleading or paper filed, the service or filing was not done personally.
date and hour of filing.  Exempt from this explanation are the service of
 In filing by registered mail, the date of filing, as papers emanating from the court.
shown by the post office stamp on the envelope  A violation of this explanation requirement may
or registry receipt, shall be considered as the date be the cause for the paper to be considered as not
of filing, payment or deposit in the court. Also having been filed.
requires that the envelope attached to the record
of the case. Personal service is made
 If the date stamped on one is earlier than the 1. By delivering a copy of the papers personally to
other, the former may be accepted as the date of the party or his counsel.
filing. This presupposes, however, that the 2. By leaving the papers in his office with his clerk or
envelope or registry receipt and the dates person having charge thereof.
appearing thereon are duly authenticated before  If no person is found in his office, or his office
the tribunal where they are accepted. is not known or he has no office, then by
leaving a copy of the paper’s at the party’s or
How to prove filing counsel’s residence, If known, with a person
 The filing of pleading or paper shall be proved by of sufficient age and discretion residing
its existence in the record of the case. therein between 8 in the morning and 6 in
 If it is not in the record, but is claimed to have the evening.
been filed personally, the filing shall be proved by  Personal service is deemed complete upon
the written or stamped acknowledgment of its actual delivery.
filing by the clerk of court.
 If filed by registered mail, proof of filing is by the Service by mail
registry receipt and the affidavit of the person 1. Service must be done by registered mail.
who did the mailing, containing a full statement 2. Service by ordinary mail may be done only if no
of the date and place of depositing the mail in the registry service is available in the locality of either
post office in a sealed envelope addressed to the the sender or the addressee.
court, with postage fully prepaid and with 3. Done by depositing the copy in the post office, in
instructions to the postmaster to return the mail a sealed envelope, plainly addressed to the party
to the sender after 10 days if not delivered. or the counsel at his office, If known, or otherwise
at his residence, if known, with postage fully
Papers required to be filed and served (Sec.4 Rule 13) prepaid and with instructions to the postmaster to
1. Judgments return the mail to the sender after 10 days if not
2. Resolutions delivered.
3. Orders 4. When service of notice is an issue, the rule is that
4. Pleadings subsequent to the complaint the person alleging that the notice was served
5. Written motions must prove the fact of service. The burden of
6. Notices proving notice rests upon the party asserting its
7. Appearances existence.
8. Demands 5. In civil cases, service made through registered
9. Offers of judgment mail is proved by the registry receipt issued by the
10. Or similar papers mailing office and an affidavit of the person
Modes of service mailing of facts showing compliance with.
1. Personal 6. When deemed complete
2. By mail a. Service by ordinary mail- Upon
3. Substituted expiration of 10 days after mailing, unless
the court otherwise provides.
Personal Service b. Service my registered mail- Upon actual
 The service and filing of pleadings and other receipt by the addressee or after 5 days
papers shall be done personally, whenever from the date he received the first notice
practicable. This is the preferred mode of service of the postmaster whichever is earlier.
(Sec.11 Rule13)
 If another mode of service is used other than Substituted service
personal service, the service must be  This mode is availed of only when there is failure
to effect service personally or by mail.

39
 The failure occurs when the office and the o All complaints, petitions, answers, and similar
residence of the party or counsel is unknown. pleadings must specify the amount of damages
 Effected by delivering the copy to the clerk of being prayed for both in the body of the pleading
court with proof of failure of both personal and and prayer therein. Said damages shall be
service by mail. considered in the assessment of the filing fees,
 It is deemed completed at the time of delivery of otherwise, such pleading shall not be accepted for
the copy to the clerk of court. filing or shall be expunged from the record.
o Any defect in the original pleading resulting in
How to prove service underpayment of the docket fee cannot be cured
 Personal service by amendment, such as by the reduction of the
o Written admission of the party served. claim as, for all legal purposes, since there is no
o Official return of the server original complaint over which the court has
o Affidavit of the party serving containing acquired jurisdiction.
full information of the date, place, and o However, the payment of docket fees is subject to
manner of service. the rule on liberal interpretation.
 Ordinary mail o If the amount of docket fees is insufficient
o Affidavit of the person mailing of the considering the amount of the claim, the party
facts showing compliance. filing the case will be required to pay the
 Registered mail deficiency, but jurisdiction is not automatically
o Affidavit of the person mailing and the lost.
registry receipt issued by the mailing o Where the initiatory pleading is not accompanied
office. by the payment of docket fee, the court may
o The registry return card is to be filed allow payment of the fee within a reasonable
immediately upon receipt by the sender, period of time, but in no case beyond the
or in lieu thereof, the unclaimed letter applicable prescriptive or reglementary period.
together with the certified or sworn copy
of the notice given by the postmaster to Strict application is qualified by the following
the addressee. 1. Failure to pay those fees within the reglementary
 Absent any proof of service of the decision, the period allows only discretionary, not automatic
period of 15 days within which a party may file its dismissal.
motion for new trial does not begin to run against 2. Such power should be used by the court in
such party. conjunction with its exercise of sound discretion
 If it admits, however, that it received the copy of in accordance with the tenets of justice and fair
the decision on a certain date despite absence of play, as well as with a great deal of
proof of service, that date would be the reckoning circumspection in consideration of all attendant
date of the 15-day period. circumstances.

Kinds of pleadings Failure to pay docket fee on supplemental complaint


o The court acquired jurisdiction over the plaintiff’s
1. Complaint action from the moment they filed their original
o IS the pleading alleging the plaintiff’s cause or complaint accompanied by the payment of the
causes of action. filing fees due on the same.
o The filing of the complaint is the act of presenting o The non-payment of additional docket fees did
the said complaint to the clerk of court. not divest the court of the jurisdiction it already
o The purpose of filing, the original must be had over the case.
presented personally to the clerk of court or sent
by registered mail. Payment of docket fees for cases of appeal
o Filing of the complaint signifies the o The appellate docket and other lawful fees must
commencement of the civil action. be paid within the same period for taking an
o The filing of the complaint, the court also acquires appeal.
jurisdiction over the person of the plaintiff. o Payment of the docket fee within the prescribed
o It has also the effect of interrupting the period is mandatory for the perfection of an
prescription of actions. appeal. Without such payment, the appellate
o Payment of the prescribed docket fee, that vests court does not acquire jurisdiction over the
a trial court with jurisdiction over the subject subject matter of the action and the decision
matter or nature of the action. sought to be appealed from becomes final and

40
executory. Hence, non-payment is a valid ground intends to disprove at the trial, together with the
for the dismissal of an appeal. matter which he relied upon to support the
o However, delay on the payment of the docket denial.
fees confers upon the court a discretionary, not
mandatory power to dismiss an appeal. Kinds of specific denial
o Absolute denial- The defendant specifies each
Answer material allegation of fact the truth of which he
o It is the pleading in which a defending party sets does not admit and whenever practicable, sets
forth his defences. forth the substance of the matters upon which he
o This pleading may be an answer to the complaint, relies to support the denial.
counterclaim, or a cross-claim. o Partial denial- The defendant does not make a
o There is no answer to a reply but there could be total denial of the material allegations in a specific
an answer to a third-party complaint or paragraph. He denies only a part of the averment.
complaint-in-intervention. He specifies the truth of which he admits and
denies only the remainder.
Defenses in the answer o Denial by disavowal of knowledge- Where the
o Negative defense- when the material avernments defendant alleges that he is without knowledge or
alleged in the pleading of the clamant are information sufficient to form a belief as to the
specifically denied. truth of a material averment made in a complaint.
o A negative defense is a specific denial of the This must be made sincerely and in good faith.
material fact or facts alleged in the pleading of the
claimant essential to his cause of action or Negative pregnant- Is a negative implying also an
defense. affirmative and which , although is stated in a negative
o A general denial is deemed to be an admission. form, really admits the allegations to which it relates.
o Does not qualify as a specific denial. It is conceded
Absence of a specific denial to be actually an admission.
o Material averments in the complaint not o It refers to a denial which implies its affirmative
specifically denied shall be deemed admitted. opposite by seeming to deny only a qualification
o If the allegations are admitted, there is no more or an incidental aspect of the allegation but not
triable between the parties and if the admissions the main allegation itself.
appear in the answer of the defendant, the
plaintiff may file a motion for judgment on the When a specific denial must be coupled with an oath
pleadings. 1. Denial of an actionable document
2. Denial of allegations of usury
Admissions
o An admission in a pleading cannot be Actionable document (Denial of genuineness and due
controverted by the party making such admission execution)
because the admission is conclusive to him. All 1. Specifically deny the genuineness and due
proofs submitted by him contrary thereto or execution of the document and set forth what he
inconsistent therewith, should be ignored claims to be the facts.
whether an objection is interposed by a party or 2. Make the denial under oath
not.
o Said admission is a judicial admission, having Denial of allegations of usury
been made by a party in the course of the 1. Not every allegations of usury requires a denial
proceedings in the same case, and does not under oath.
require proof. 2. Only the following allegations requires a specific
o A party who desires to contradict his own judicial denial:
admission may do so only in either 2 ways a. Allegations of usury in a complaint. (not
o By showing that the admission was made those in the answer)
through palpable mistake. b. The complaint is filed to recover usurious
o No such admission was made. interests.

Purpose of a specific denial General rule: Material allegations in the complaint not
o The purpose of requiring the defendant to make a specifically denied are deemed admitted.
specific denial is to make him disclose the matters
alleged in the complaint which he succinctly

41
Exceptions: The ff are not deemed admitted: Default
1. Amount of unliquidated damages.  Is a procedural concept that occurs when the
2. Conclusions in a pleading because only ultimate defending party fails to file his answer within the
facts need be alleged in a pleading. reglementary period.
3. Non-material averments or allegations because  Failure to answer within the time allowed
only material allegations have to be denied. therefor, as the ground for a declaration of
default.
Affirmative defenses  Default does not technically occur from the failure
 A defense is affirmative when it alleges new of the defendant to attend either the pre-trial or
matters which, while hypothetically admitting the the trial- but amounts to a waiver of the
allegations in the pleading of the claimant, would, defendant’s right to object to the evidence
nevertheless, prevent of bar recovery by the presented.
claiming party.  It is the failure to answer.
 One which is not a denial of an essential
ingredient in the plaintiff’s cause of action, but Requisites for the declaration of default
one which, if established will be a good defense. 1. The court has validly acquired jurisdiction over the
 It includes person of the defending party, either by service of
1. Fraud summons or voluntary appearance.
2. Statute of limitations 2. The defending party must have failed to file his
3. Release answer within the time allowed therefor.
4. Payment 3. The claiming party must file a motion to declare
5. Illegality the defendant in default.
6. Statute of frauds 4. The claiming party must prove that the defending
7. Estoppel party has failed to answer within the period
8. Former recovery provided by the Rules of Court.
9. Discharge in bankruptcy 5. The defending party must be notified of the
10. Any other matter by way of confession or motion to declare him in default.
avoidance. 6. There must be a hearing set on the motion to
 Before an allegation qualifies as an affirmative declare the defending party in default.
defense, it must be of such nature as to bar the
plaintiff from claiming on his cause of action. *The rule on default requires the filing of a motion and
notice of such motion to the defending party, it is not
Periods to file an answer from complaint enough that the defendant failed to answer the complaint
1. 15 days after service of summons, unless a within the reglementary period to be a sufficient ground
different period is fixed by the court. for declaration of default.
2. Where the plaintiff files an amended complaint as
a matter of right, the defendant shall answer the *The court has no authority to motu propio declare a
same, within 15 days after being served with a defending party in default. A motion to declare the
copy thereof. defendant must be filed by the claiming party before a
3. Where the amendment of the complaint is not a declaration of default is made by the court.
matter of right, the defendant shall answer the
amended complaint within 10 days from notice of Extension of time to answer
the order admitting the same. An answer earlier  The court has discretion not only to extend the
filed may serve as the answer to the amended time for filing an answer but also allow an answer
complaint. to be filed after the reglementary period.
4. Where the defendant is a private foreign juridical  The rule is that the defendant’s answer should be
entity and service of summons is made on the admitted where it is filed before a declaration of
government official designated by law to receive default and no prejudice is caused to the plaintiff.
the same, the answer shall be filed within 30 days
after receipt of the summons by such entity. Failure to serve the answer to adverse party
5. A supplemental complaint may be answered  The defendant who files his answer in
within 10 days from notice of the order admitting time, but failed to serve a copy thereof to
the same, unless a different period is fixed by the the adverse party may be validly be
court. The answer to the complaint shall serve as declared in default.
the answer to the supplemental complaint if no  Declaration of default may be set aside
new or supplemental answer is filed. by a timely and proper motion with the
42
requisite affidavit of merit and provided 2. While the defendant can no longer take part in
no lost of time occurs. the trial, he is, nevertheless, entitled to notices of
subsequent proceedings. It is submitted that he
Failure to file response under Small claims cases may participate at the trial, not as a party but as a
 A motion to declare defendant in default is a witness.
prohibited motion under Sec.14 (h) of the Rules of 3. A declaration of default is not tantamount to an
Procedure for Small Claims Cases. admission of the truth or the validity of the
 Should the defendant fail to file his response plaintiff’s claims.
within the required period, and likewise fail to 4. It does not imply a waiver of rights except that of
appear at the date set for hearing, the court shall being heard and presenting evidence in
render judgment on the same day, as may be defendant’s favour.
warranted by the facts.
Effect of partial default
Failure to file an answer under the Rule of Procedure for  When a pleading asserts a claim against several
Environmental cases defending parties and some file and serve their
 A motion to declare defendant in default is a answers but the others do not, the court shall try
prohibited motion. the case against all the defending parties based on
 Should the defendant fail to answer within the the answers filed and render judgment upon the
period provided, the court shall declare the evidence presented where the claim states a
defendant in default and upon motion of plantiff, common cause of action against them.
shall receive evidence ex parte and render
judgment based thereon and the reliefs prayed Action of the court after the declaration/order of default
for. (Sec.3 Rule 9)
 It is the court which shall. On its own motion, 1. Proceed to render judgment granting the claimant
declare the defendant in default. such relief as his pleading may warrant.
2. Require the claimant to submit evidence ex parte.
Failure to file a return under the Rule on the Writ of 3. The choice of which action to take is a matter of
Amparo judicial discretion.
 The rule prohibits a motion to declare respondent
in default. *The rules of court provides for discretion on the part of
 In case the respondent fails to file a return, the the trial court not only to extend the time for filing an
court, justice, or judge, shall proceed to hear the answer but also to allow an answer to be filed after the
petition ex-parte. reglementary period. Under the rules, the court may
extend the time to plead upon motion and upon such
Failure to file a return under the Rule on Habeas Data terms as are just. The court may also allow an answer or
 The rules does not allow the filing of a motion to other pleading to be filed after the time fixed by the rules.
declare the respondent in default.
 If the respondent fails to file his return which The rule is that the defendant’s answer should be admitted
contains, among others, his lawful defense, the where it is filed before a declaration of default and no
court, justice, or judge shall proceed to hear ex- prejudice is caused to the plaintiff.
parte, granting the petitioner such relief.
Failure to answer under the 1991 Revised Rules on Current judicial trend on default:
Summary Procedure 1. Default judgments are generally disfavoured.
 A motion to declare the defendant in default is a 2. Courts are enjoined to be liberal in setting aside
prohibited motion. orders of default.
3. Default orders shall be allowed only in clear cases
 The defendant who fails to file an answer within
of obstinate refusal by the defendant to comply
the reglementary period of 10 days from service
with the orders of the trial court. Because suit
of summons, is not supposed to be declared in
should, as much as possible, be decided on the
default. Instead, the court motu propio or on
merits and not on technicalities.
motion of the plaintiff, shall render judgment, not
declare him in default.
Remedies of the defending party declared in default.
1. After notice of order and before judgment. File a
Effects of declaration or order of default
motion under oath to set aside the order of
1. The party declared in default loses his standing in
default and properly show
court. The loss of such standing prevents him
from taking part in the trial.
43
a. that the failure to answer was due to in the counterclaim while the original plaintiff
fraud, mistake, accident, or excusable becomes the defendant.
negligence.  The filing of a counterclaim gives rise to two
b. And he has a meritorious defense, complaints, namely, the one filed by the plaintiff
(affidavit of merit) by way of an original complaint and the one filed
2. After judgment and before judgment becomes by the defendant by way of counterclaim.
final and executory.  A counterclaim is not intrinsically a part of the
a. Motion for new trial answer because it is a separate pleading. It may,
b. Appeal however, be included in the answer.
3. After the judgment becomes final and executory.
a. Petition for relief from judgment. Kinds of counterclaim
4. A declaration of default by the court is in excess 1. Compulsory
of and/or without jurisdiction and therefore, 2. Permissive
properly correctible by writ of certiorari
Compulsory counterclaim
Default is not allowed in the following actions  One that arises out of or is necessarily connected
1. Annulment of marriage. with the transaction or occurrence that is the
2. Declaration of nullity of marriage. subject matter of the opposing party’s claim.
3. Legal Separation  Falls within the jurisdiction of the court.
*If no answer is filed in any of the above actions, the court  Does not require for its adjudication the presence
shall order the prosecuting attorney to investigate whether of third parties over whom the court cannot
or not collusion exist between the parties. If there is no acquire jurisdiction.
collusion, the court shall order said prosecuting attorney to  Otherwise , a counterclaim is merely permissive.
intervene for the state in order to see to it that the
evidence submitted is not fabricated. Elements of a compulsory counterclaim
1. It arises out of, or is necessarily connected with
Judgment by default for refusal to comply with the modes the transaction or occurrence which is the subject
of discovery matter of the opposing party’s claim.
1. If a disobedient party refuses to obey an order 2. It does not require for its adjudication the
requiring him to comply with the various modes presence of third parties over whom the court
of discovery. cannot acquire jurisdiction and.
2. If a party or officer or managing agent of a party 3. It is cognizable by the regular courts of justice and
wilfully fails to appear before the officer who is to such courts have jurisdiction to entertain the
take his deposition, or a party fails to serve counterclaim both as to amount and nature.
answers to interrogatories.
Tests of compulsory counterclaim
Counterclaim 1. Are the issues of fact and law raised by the claim
 A counterclaim is any claim which a defending and the counterclaim largely the same?
party may have against an opposing party. It 2. Would re judicata bar a subsequent suit on
partakes of a complaint by the defendant against defendant’s claim, absent the compulsory
the plaintiff. counterclaim rule?
 It is in itself a distinct and independent cause of 3. Will substantially the same evidence support or
action and when filed, there are two simultaneous refute plaintiff’s claim as well as the defendant’s
actions between the same parties. A counterclaim counterclaim?
is a pleading. 4. Is there any logical relation between the claim and
 It may refer to a the counterclaim?
o Claim for money
o Or some other relief against an opposing If the amount of the counterclaim exceeds the jurisdiction
party. of the court
 A counterclaim is permitted by the Rules as a way  The counterclaim should be deemed permissive,
of preventing multiplicity of suits by allowing in not compulsory.
one action, the determination of the entire  Despite the lack of jurisdiction of the court to
controversies between the parties. adjudicate on the counterclaim, the same may,
 When the defendant files a counterclaim against nevertheless, be pleaded in the same action, not
the plaintiff, the defendant becomes the plaintiff to obtain affirmative relief because the court, for

44
want of jurisdiction, cannot do so. The purpose Permissive counterclaim
would merely weaken the plaintiff’s claim.  A counterclaim is permissive if any of the
 If the counterclaim in excess of the jurisdiction of elements of a compulsory counterclaim discussed
the court is interposed in the same action, and the previously is absent.
court finds both the complaint and the  But the most commonly treated feature of a
counterclaim meritorious, it will not grant the permissive counterclaim is its absence of logical
relief in the complaint on the ground that the connection with the subject matter of the
defendant has a bigger credit. complaint (it does not arise out of or is not
 If the defendant desires to have affirmative relief connected with the plaintiff’s cause of action.
on his counterclaim, he may waive the amount in
excess of the jurisdiction of the court. Distinctions between compulsory and permissive
 There may be instances when the RTC has to counterclaim.
dismiss the counterclaim for lack of jurisdiction
over the subject matter. If the counterclaim Compulsory
interposed is for unlawful detainer, the same 1. A party has at the time the answer is filed, shall be
cannot be invoked as a counterclaim in the same contained in the answer because a compulsory
action even if the amount of rentals or damages is counterclaim not set up shall be barred.
within the jurisdiction of such court. A RTC cannot 2. It is not an initiatory pleading.
adjudicate upon an unlawful detainer case. 3. Cannot be independently set up, does not require
 Also, a counterclaim for illegal dismissal cannot be the certification against forum shopping because
entertained by regular courts for want of it is not initiatory in character.
jurisdiction. 4. Failure to answer compulsory counterclaim is not
 The absence of jurisdiction to entertain a a cause for a default declaration. It merely
counterclaim because of the amount thereof reiterates special defences are deemed
appropriately applies to a MTC and equivalent controverted even without a reply, or raises issues
courts. A MTC of Manila cannot assume which are deemed automatically joined by the
jurisdiction over a counterclaim in excess of allegations in the complaint, need not be
400,000. answered
 The counterclaim must be within the jurisdiction 5. Docket fees are not paid for a compulsory
of the court both as to the amount and the nature counterclaim generally.
thereof. (Sec.7 Rule 6)
 The result will differ however, when the original Permissive
action is filed with the RTC. In this court, the 1. It is not subject to an answer. It may be set up as
counterclaim may be deemed compulsory an independent action and will not be barred if
regardless of the amount. Hence, a counterclaim not contained in the answer to the complaint.
of 350,000 filed in the RTC of Manila is still a 2. It is considered as an initiatory pleading.
compulsory counterclaim even if the court would 3. It should be accompanied by a certification
have no jurisdiction over the amount claim if it is against forum shopping and whenever required
filed as an original complaint under Sec.7 Rule 6, by law, also a certificate to file the action issued
an original action before the RTC, the by the Lupong Tagapamayapa.
counterclaim may be considered compulsory 4. It must be answered by the party against whom it
regardless of the amount. is interposed, otherwise, he may be declared in
 A party who desires to plead a compulsory default as to the counterclaim.
counterclaim should not file a motion to dismiss. 5. The docket and other lawful fees should be paid
If he files a motion to dismiss and the complaint is for a permissive counterclaim. The rule in
dismissed, there will be no chance to invoke the permissive counterclaim is that for the trial court
counterclaim. to acquire jurisdiction, the counterclaimant is
 A counterclaim presupposes the existence of a bound to pay the prescribed docket fees.
claim against the party filing the counterclaim.
Hence, where there is no claim against the A counterclaim not initially set up because of the pleader’s
counterclaimant, the counterclaim is improper oversight, inadvertence, excusable neglect, or when justice
and it must be dismissed. requires, may be set up, by leave of court, by amendment
 In the event that a defending party has a ground before judgment. If not set up in the action, the
for dismissal and a compulsory counterclaim at compulsory counterclaim shall be barred.
the same time, he must choose only one remedy.

45
A permissive counterclaim however will not be barred. Counterclaim vs Cross-claim
The bar, refers to a compulsory counterclaim that a
defending party has the time he files the answer. Cross-claim
 A claim against a co-party
Counterclaim arising after the answer  It must arise from the transaction or occurrence
 A counterclaim which either matured or acquired that is the subject matter of the original complaint
by a party after serving his pleading, may, with the or counterclaim.
permission of the court, be presented as a Counterclaim
counterclaim by supplemental pleading before  IS a claim against an opposing party.
judgment.  May or may not arise out of the subject matter of
the complaint. It may be compulsory or
Period to answer a counterclaim permissive.
 If a counterclaim is to be answered, the same
must be made within 10 days from service. Cross-claim after the answer
 A cross-claim which either matured or was
Effects of dismissal of the complaint on the counterclaim acquired by a party after serving his pleading may,
1. The defendant does not file a motion to dismiss. with the permission of the court be presented as a
Instead, he files an answer and utilizes certain cross-claim by supplemental pleading before
grounds for a motion to dismiss as affirmative judgment.
defences. Included in the answer is a
counterclaim,. He then asks for a preliminary Omitted cross-claim
hearing on the affirmative defences se up, which  When a pleader fails to set up a cross-claim
is granted by the court. During the hearing on the through oversight, inadvertence, or excusable
affirmative defences, the court decides to dismiss neglect, or when justice requires, he may, by
the complaint. If the complaint is dismissed, the leave of court, set up the cross-claim by
counterclaim, compulsory or permissive is not amendment before judgment.
dismissed. “The dismissal of the complaint under
this section shall be without prejudice to the Period to answer a cross-claim
prosecution in the same or in the separate action  It must be answered within 10 days from service.
of a counterclaim pleaded in the answer” Sec.6
Rule 16. Third, Fourt etc – party complaint
2. Plaintiff himself files a motion to dismiss his  Is a claim which a defending party may, with leave
complaint after the defendant has pleaded his of court, file against a person who is not yet a
answer with a counterclaim. The motion is party to the action for contribution, indemnity,
granted by the court. The dismissal shall be subrogation or any other relief in respect og his
limited to the complaint. Sec.2 Rule 17. opponent’s claim.
3. The complaint is dismissed through the plaintiff’s  Is actually a complaint independent of, and
fault and at a time when a counterclaim has separate and distinct, from the plaintiff’s
already been set up. The dismissal is without complaint. Were it not for the above rule, such
prejudice to the right of the defendant to third-party complaint would have to be filed
prosecute his counterclaim in the same or independently and separately from the original
separate action. Sec.3 Rule 17. complaint.
 The purpose is to avoid circuitry of action and
Cross-claim unnecessary proliferation of lawsuits and dispose
 Is any claim by one party against a co-party arising expeditiously in one litigation all the matters
out of the transaction or occurrence that is the arising from one particular set of facts.
subject matter either of the original action or a  Trial courts are not especially enjoined by law to
counterclaim therein. admit a third-party complaint. They are vested
 It may include a claim that the party against with discretion to allow or disallow a party to an
whom it is asserted is liable, or maybe liable to action to implead an additional party.
the cross-claimant for all or part of the claim  Thus, a defendant has no vested right to file a
asserted in the action against the cross-claimant. third-party complaint.
(Sec.8 rule 6)  It is not proper to file a third-party complaint
 A cross-claim not set up shall be barred. Thus, a against one who is already a party to the action
cross-claim cannot be set up for the first time on such as against the plaintiff or co-defendant. A
appeal.

46
claim against the plaintiff is asserted by way of a Intervention is never an independent proceeding but
counterclaim. ancillary and supplemental to an existing litigation and in
 Requires prior leave of court because it is subject subordination to the main proceeding.
to judicial discretion.
When intervention not proper:
Answer to a third-party complaint  In general, an independent controversy cannot be
 Governed by the same rule as the answer to the injected into a suit by intervention, hence, such
complaint, hence, within 15 days from service of intervention will not be allowed where it would
summons. enlarge the issues in the action and expand the
scope of the remedies.
Intervention  It is not proper where there a certain facts giving
 Is a remedy by which a third-party, not originally the intervenor’s case an aspect peculiar to
impleaded in the proceedings, becomes a litigant himself and differentiating it clearly from that of
therein to enable him to protect or preserve a the original parties. The proper recourse is to file
right or interest which may be affected by the his claim in a separate suit.
proceedings.  Intervention is not intended to change the nature
 It is a proceeding in a suit or action by which a and character of the action itself, or stop or delay
third-person is permitted by the court to make the placid operation of the machinery of the trial.
himself a party, either joining the plaintiff in  The remedy of intervention is not proper where it
claiming what is sought by the complaint, or will have the effect of retarding the principal suit
uniting with the defendant in resisting the claims or delaying the trial of the action.
of the plaintiff or demanding something adverse
to both of them. Requisites for intervention
1. There must be a motion for intervention filed
Intervention is allowed when a person has: before the rendition of judgment by the trial
1. A legal interest in the matter of litigation. court. Leave of court is required before a person
2. Legal interest in the success of any of the parties. may be allowed to intervene.
3. An interest against both parties. 2. The movant must show in his motion that he has
4. When he is so situated as to be adversely affected legal interest in the matter of the litigation, the
by a distribution or disposition of property in the success of either parties in the action, or against
custody of the court or an officer thereof. both parties, or so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an
Subject of judicial discretion/Not a matter of right officer thereof.
 Intervention is not a matter of absolute right but 3. The intervention must not unduly delay or
may be permitted by the court when the applicant prejudice the adjudication of the rights of the
shows facts which satisfy the requirements of the original parties.
statute authorizing intervention. 4. The intervenor’s right may not be fully protected
in a separate proceeding.
Meaning of legal interest
 What qualifies a person to intervene is his Procedure for intervention
possession of legal interest in the matter of the 1. The motion and pleading shall be served upon the
litigation or in the success of either parties or an original parties.
interest against both of them. 2. The intervenor shall file a motion for intervention
attaching thereto his pleading in intervention.
 The interest must be of a direct and immediate 3. The pleading to be filed depends upon the
character so that the intervenor will either gain or purpose of the intervention. If the purpose is to
lose by the direct legal operation of the judgment. assert a claim against either or all of the parties,
the pleading shall be called a complaint-in-
 The interest must be actual or material, a intervention. If the pleading seek to unite with
concern which is more than curiosity, or the defending party in resisting the claim, he shall
academic, or sentimental desire, it must not be file an answer-in-intervention.
indirect and contingent, remote, conjectural, 4. The answer to the complaint-in-intervention shall
consequential, or collateral. be filed within 15 days from the notice of the
order admitting the same, unless a different
period is fixed by the courts.

47
Time for intervention Amendment of pleadings
 The motion to intervene may be filed at any time  A plaintiff has the right to amend his complaint
before the rendition of judgment by the trial once at any time before a responsive pleading is
court. served by the other party or in case of a reply to
 Intervention after trial and decision can no longer which there is no responsive pleading, at any
be permitted. time within 10 days after it is served.
 Before an answer is served on a plaintiff, the
Reply latter may amend his complaint as a matter of
 Is a pleading, the function of which is to deny, right.
allege facts in denial, or avoidance of new matters  The defendant may also amend his answer as a
alleged by way of defense in the answer and matter of right before a reply is served upon him.
thereby join or make issue as to such new  Only refers to amendment made before the trial
matters. court not to amendments made before the Court
 Is a responsive pleading to an answer. of Appeals. The Can is vested with discretion to
 It is not a responsive pleading to a counterclaim or admit or deny amended petitions before it.
cross-claim.  The right to amend a pleading as a matter of right
 The proper response to a counterclaim or cross- according to the rules, be exercised only once.
claom is an answer to the counterclaim or answer  Hence, even if no responsive pleading has yet
to the cross-claim. been served, if the amendment is subsequent to
a previous amendment made as a matter of
Filing of a reply is not mandatory right, the subsequent amendment must be with
 The filing of a reply to the answer is not leave of court.
mandatory and will not have an adverse effect on  Before the service of a responsive pleading, a
the plaintiff. party has the absolute right to amend his pleading
 Sec.10 Rule 6, if a party does not file such reply, all regardless of whether a new cause of action or
the new matters alleged in the answer are change in theory is introduced.
deemed controverted or denied.  Since a motion to dismiss is not a responsive
 No admission follows from the failure to file a pleading, a plaintiff may file an amended
reply. complaint even after the original complaint was
 Hence, if the answer to the complaint alleges as a ordered dismissed, provided the order of
defense the prescription of the action, the failure dismissal is not yet final.
of the plaintiff to specifically deny the prescription
will not amount to an admission because the rule Mandamus
already denies the matter of prescription without  The court would be in error if it refuses to admit
the plaintiff making a specific denial. It is already an amended pleading when its exercise is a
ad the rule says, deemed controverted. matter of right. This error is correctible by way of
 The material allegations in the complaint must be mandamus.
specifically denied but the allegations of new  The trial court’s duty to admit an amended
matters or material allegations of new matters or complaint made as a matter of right is ministerial.
material allegations in the answer need not be Amendment by leave of court
denied because they are deemed denied by the  Leave of court is required for an amendment after
Rules for the plaintiff. service of a responsive pleading.
 This rule assumes more force and effect especially
Filing of reply is advisable when the amendment is substantial.
 When the defense in the answer is based upon a  After a responsive pleading is filed, an
written instrument or document, said instrument amendment to the complaint may be substantial
is considered an actionable document. and will correspondingly require a substantial
 Hence, the plaintiff has to file a reply under oath if alteration in the defences of the adverse party.
he desires to deny specifically the genuineness  The amendment is not only unfair to the
and due execution of the actionable document, defendant, but will cause unnecessary delay in the
and avoid an admission of such matters. proceedings.
 Where no responsive pleading has yet been
Period to file a reply served, no defences would be altered. The
 A reply may be filed within 10 days from the amendment of the pleading will not then require
service of the pleading responded. leave of court.

48
 In amendments as a matter of right, no leave of dismissed by the court upon proper motion
court is required even if the amendment is seasonably filed by the defendant.
substantial.  The underlying reason for this rule is that a person
should not be summoned before the public
Amendment to cure a failure to state a cause of action to tribunals to answer for complaints which are
conform the evidence premature.
 Sec.5 Rule 10, When issues not raised by the
pleadings are tried with the express or implied Amendment to correct a jurisdictional defect before/after
consent of the parties, they shall be treated in all a responsive pleading is filed.
respects as if they had been raised in the  The court cannot allow such type of amendment
pleadings. since the court must first possess jurisdiction over
 Applies to situations wherein evidence not within the subject matter of the complaint before it can
the issues raised in the pleadings, is offered by the act on any amendment has no application upon
parties during the trial and not objected to. In an amendment that is made as a matter of right.
such a case, said issues not found in the pleadings  An amendment of the complaint to correct a
are deemed to have been tried with the consent jurisdictional error cannot be validly done after a
of the parties. The rule treats the issues as having responsive pleading is served. The amendment
been raised in the pleadings even if not actually this time, would require leave of court, a matter
raised. which requires the exercise of sound judicial
 Also covers situations where a complaint discretion.
insufficiently states the cause of action. Such  This requires the performance of a positive act of
insufficiency may be cured by evidence presented the court. If it grants the amendment, it would be
during the trial without objection. acting on a complaint over which it has no
 In a situation where issues not raised in the jurisdiction.
pleadings are tried with the express or implied  A complaint cannot be amended to confer
consent of the parties, Sec.5 of Rule 10 authorizes jurisdiction on the court which it was filed. It is an
the amendment of the pleadings to conform to error to admit the amendment because the court
the evidence upon motion of a party at any time, must first acquire jurisdiction over the subject
even after judgment. matter of the complaint in order to act validly on
 If the parties fail to amend the pleadings, such the same including its amendment.
failure will not affect the trial of these issues
because such issues are deemed to have been Sec.8 Rule 10- An amended pleading supersedes the
raised in the pleadings of the parties. This original one which it amends.
provision under the rules virtually authorizes an  The original complaint is deemed superseded and
implied amendment of the pleadings. abandoned by the amendatory complaint only if
the latter introduces a new or different cause of
Amendment not a remedy when there is no cause of action.
action  Admissions made in the original pleadings cease
 Sec.5 Rule 10, allows a complaint that does not to be judicial admissions. They are to be
state a cause of action to be cured by evidence considered as extrajudicial admissions.
presented without objection during trial.  Although the original pleading is deemed
 A complaint that lacks a cause of action. At the superseded by the pleading that amends it, it
time it was filed, cannot be cured by the accrual of does not ipso facto follow that the service of new
cause of action during the pendency of the case. summons is required.
 The curing effect of section 5 is applicable only if a  Where the defendants have already appeared
cause of action in fact exists at the time the before the trial court by virtue of a summons in
complaint is filed, but the complaint is defective the original complaint, the amended complaint
for failure to allege the essential facts. may be served upon them without need of
 A complaint whose cause of action has not yet another summons, even if new causes of action
accrued cannot be cured or remedied by an are alleged. A court’s jurisdiction, once acquired
amended or supplemental pleading alleging the continues until the case if finally terminated.
existence or accrual of a cause of action while the  When the defendants have not yet appeared in
case is pending. court, new summons on the amended complaint
 Such action is prematurely brought and is, must be served on them. If the trial court has not
therefore a groundless suit, which should be yet acquired jurisdiction over them, a new
summons for the amended complaint is required.
49
 The new defendant cannot be deemed to have  Exception: Motions which the court may act upon
already appeared by virtue of summons under the without prejudicing the rights of the adverse
original complaint in which he is not yet a party. party.
 A motion unaccompanied by a notice of hearing is
Supplemental Pleadings considered a mere scrap of paper that does not
 A supplemental pleading is one which sets forth toll the running of the period to appeal.
transactions, occurrences, or events which have  Ex-parte motion- Is one which does not require
happened since the date of the pleading sought to that the parties be heard and which the court may
be supplemented. act upon without prejudicing the rights of the
 The filing of supplemental pleadings requires other party.
leave of court. The court may allow the pleading  A motion for extension of time- Is not a litigated
only upon such terms as are just. This leave is motion where notice to the adverse party is
sought by filing of a motion with notice to all necessary to afford the latter an opportunity to
parties. resist the application, but an ex-parte motion
 When a cause of action in the supplemental made to the court in behalf of one or the other of
pleading complaint is different from the cause of the parties to the action, in the absence and
action mentioned in the original complaint, the usually without the knowledge of the other party
court should not admit the supplemental or parties.
complaint.  Ex-parte motions are frequently permissible in
 A supplemental pleading exists side by side with procedural matters, and also in situations and
the original. It does not replace that which it under circumstances of emergency, and an
supplements. exception to the rule requiring notice is
 Answer to a supplemental complaint is not sometimes made where the notice or the
mandatory, it may be answered within 10 days resulting delay might tend to defeat the objective
from notice admitting the same, unless a different of the motion.
period is fixed by the court.
 The answer to the complaint shall serve the Notice of the motion and notice for hearing of the motion
answer to the supplemental complaint if no new  The written motion, which is require to be heard,
or supplemental answer is filed. and the notice of the hearing thereof shall be
served in such manner as to ensure its receipt by
Motions the other party at least 3 days before the hearing,
 A motion is an application for relief other than by unless the court for good cause sets the hearing
a pleading. on shorter notice.
 The notice of hearing shall be addressed to all the
Form of motions parties concerned.
 All motions must be in writing. Except for  Without a notice of hearing, the motion is
o Motions made in open court. considered a pro-forma and does not affect the
o Motions made in the course of a hearing reglementary period for the appeal or the filing of
or trial. the requisite pleading.
 The rules that apply to pleadings shall also apply  A motion which does not meet the requirements
to written motions with respect to caption, of Secs.4 and 5 of Rule 15, on hearing and notice
designation, signature, and other matters of form. of the hearing, is a worthless piece of paper which
Contents of a motion the clerk of court has no right to receive and
1. Statement of the relief sought to be obtained. which the trial court has no authority to act upon.
2. The grounds upon which the motion is based. Failure of the movant to comply with the
3. The supporting affidavits and other papers. requirements renders their motion fatally
The last requirement applies only when so mandated by defective.
the Rules or when necessary to prove facts stated in the  A motion for leave to file a motion shall be
motion. accompanied by the motion sought to be
admitted.
Hearing of the motion  Proof of service is required. No written motion set
 General Rule: Every written motion shall be set for hearing shall be acted upon by the court
for hearing by the applicant. Every written motion without proof of service thereof.
is deemed a litigated motion.

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Motion day Purpose of summons in Actions in Personam
 All motions shall be scheduled for hearing on  Most basic purpose thereof, is to satisfy the
Friday afternoons. requirements of procedural due process.
 If Friday is a non-working holiday, in the afternoon  In actions in personam, the purpose of summons
of the next working day. is not only to comply with due process but also
 This rule does not apply to motions requiring acquire jurisdiction over the person of the
immediate attention. defendant.
 The action is as one instituted against a person on
Omnibus Motion Rule the basis of his personal liability, the court would
 The rule is a procedural principle which requires be devoid of authority to hold one personally
that every motion that attacks a pleading, liable for the relief prayed for by the plaintiff
judgment, or proceeding shall include all grounds without first vesting upon said court jurisdiction
then available, and all objections not so included over the person of the defendant.
shall be deemed waived.
 objections not mentioned therein are not Strict compliance rule
deemed waived even if not included in the  The rule that the modes of service must be strictly
motion followed in order that the court may acquire
1. The court has no jurisdiction over the jurisdiction over the person of the defendant.
subject matter.
2. There is another action pending between Purpose of summons in actions in rem and quasi in rem
the same parties for the same cause (litis  Jurisdiction over the res is acquired either
pendencia). o By the seizure of the property under legal
3. Action is barred by prior judgment (res process whereby it is brought into actual
judicata). custody of the law.
4. Action is barred by the statute of o As a result of the institution of the legal
limitations or prescription. proceeding.
 Service of summons to the defendant is not for
Summons the purpose of vesting the court with jurisdiction
 Is the writ by which the defendant is notified of but merely for satisfying the due process
the action brought against him. requirements.
 It is a notice to the defendant that a particular
person named therein has commenced an action Voluntary appearance by the defendant
against him in a particular court.  Jurisdiction over the person of the defendant is
 A direction that the defendant answer the acquired through a coercive process by the service
complaint within the period fixed by the rules and of summons by the court or through defendant’s
that, unless he so answers, plaintiff will take voluntary appearance or submission to the court.
judgment by default and may be granted the relief  Absence of service of summons or even an invalid
prayed for. service of summons will not prevent the court
from acquiring jurisdiction over the defendant as
Mandatory issuance of summons long as he performs acts that could be construed
 Is not discretionary on the part of the clerk of as a voluntary appearance.
court but is mandatory requirement.  Defendant’s voluntary appearance shall be
 Sec.1 Rule 14- The clerk of court shall issue the equivalent to service of summons.
corresponding summons to the defendant upon:
o Filing of the complaint. Sec.20 Rule 14- The inclusion in a motion to dismiss of
o The payment of the requisite legal fees. other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary
Knowledge of the defendant or its agents of an action appearance.
filed against him- Does not dispense with the need for
summons. The clerk of court- One who issues summons who shall
sign the same under seal.
Summons must still be filed and served. Thus, jurisdiction
over the person of the defendant cannot be acquired Summons shall be issued upon the filing of the complaint
notwithstanding his knowledge of the pendency of a case and the payment of the requisite legal fees.
against him, unless he was validly served with summons.

51
Who serves the summons Service upon an entity without a juridical personality.
 By the sheriff  When two or more persons not organized as an
 His deputy entity with juridical personality enter into a
 Or other proper court official transaction, they may be sued under the name by
 Or for justifiable reasons, by any suitable person which they are generally or commonly known.
authorized by the court issuing the summons.
Service upon a prisoner
Contents of the summons  When the defendant is a prisoner confined in a jail
1. The name of the court and the name of the or institution, service shall be effected upon him
parties to the action. by the officer having the management of such jail
2. A direction that the defendant answer within the or institution.
time fixed by the rules.  The jail manager is deemed deputized as a special
3. A notice that, unless the defendant so answers, sheriff.
the plaintiff will take judgment by default and
may be granted the relief prayed for. Service upon a minor and an incompetent
4. A copy of the complaint including a copy of an  Service shall be made:
order for the appointment of a guardian ad litem, o Upon the defendant personally and
if necessary shall be attached to the original and o On his legal guardian if he has, if he has
each copy of the summons. none, upon his guardian ad litem.
 The appointment of a guardian ad litem shall be
Return and proof of service applied for by the plaintiff.
 When the service has been completed, the server  If the defendant is a minor, service shall be made
shall, within 5 days therefrom, upon his father or mother.
o serve a copy of the return, personally or
by registered mail, to the plaintiff’s Service upon a private domestic juridical entity
counsel, and  Service may be made upon the following
o shall return the summons to the clerk persons:
who issued it, accompanied by proof of 1. President
service. 2. Managing partner
 After the completion of the service, a proof of 3. General manager
service is required to be filed by the server of the 4. Corporate secretary
summons. The proof of service of summons shall 5. Treasurer
be: 6. In-house counsel
o made in writing,  The above enumeration has been held to be
o shall set forth the manner, place, and limited to the persons enumerated and summons
date of service, cannot be served upon any other person.
o specify any papers which have been  This list is restricted, limited, and exclusive.
served with the process and  However, this rule is relaxed and the court may
o the name of the person who receives the employ the principle of substantial compliance.
same and  The liberal construction rule cannot be invoked
o be sworn to when made by a person and utilized as a substitute for the plain legal
other than the sheriff or his deputy. requirements as to the manner in which summons
 A defendant is still bound to comply with the should be served on a domestic corporation.
summons even if service was made without
attaching a copy of the complaint. Service upon a foreign private juridical entity
 Defendant’s failure to seasonably challenge a  Service upon a foreign private juridical entity
defective service of summons is deemed a waiver which has transacted business in the Philippines
and the court acquires jurisdiction over his may be made on a:
person. 1. Its resident agent designated in
accordance with law for that purpose.
Uniformity of the rules on summons 2. When there’s no such agent, on the
 The rules on summons apply with equal force in government official designated by law to
actions before the RTC, MTC, MCTC, METC. that effect.
3. Or on any of the officers or agents of said
foreign entity within the Philippines.

52
 Service upon a foreign private juridical entity not when the defendant refuses to receive and sign
registered in the Philippines or has no resident for the summons.
agent service may be effected out of the  It was held that the impossibility of prompt
Philippines, with leave of court through any of the personal service should be shown by stating the
following means (EXTRATERRITORIAL SERVICE): proof of service that effort were made to serve
1. By personal service coursed through the the defendant personally and that said efforts
appropriate court in the foreign country failed, hence, the resort to substituted service.
with the assistance of the DFA.  The pertinent facts and circumstances attendant
2. By publication in a newspaper of general to the service of summons must be stated in the
circulation in the country where the proof of service or officer’s return. Otherwise, any
defendant may be found and by serving a substituted service made in lieu of personal
copy of the summons and the court service cannot be upheld.
order by registered mail at the last  This is necessary because substituted service is in
known address of the defendant. derogation of the usual method of service. It is a
3. By facsimile or any recognized electronic method extraordinary in character and hence,
means that could generate proof. may be used only as prescribed and in the
4. By such other means as the court may in circumstances authorized by statute.
its discretion direct.  Failure to faithfully, strictly and fully comply with
 When a foreign corporation has designated a the requirements of substituted service renders
person to receive summons on its behalf pursuant the said service ineffective.
to the corporation code, that designation is
exclusive and service of summons on any other Substituted service of summons
person is inefficacious.  Only if service in person cannot be made promptly
can the process server resort to substituted
Service upon the Republic of the Philippines service.
 Service may be effected to the Solicitor General.  In case of resort to a substituted service of
summons, proof of service of summons must:
Service upon Public Corporations o Indicate the impossibility of service of
 When the defendant is a province, city, or summons within a reasonable time.
municipality, or like public corporations, service o Specify the efforts exerted to locate the
may be effected on its: defendant.
1. Executive head o State that the summons was served upon
2. Or such other officers as the law and the a person of sufficient age and discretion
court may direct. who is residing in the address, or who is
in charge of the office or regular place of
Service upon an unincorporated government agency business of the defendant.
 The service of summons must be made on the o Pertinent facts proving these
Solicitor General. circumstances.
 In a suit in personam against a resident of the
Service in person of the defendant (Personal service of Philippines temporarily absent from the country,
summons) the defendant may be served by substituted
 The preferred mode of service of summons. service because a man temporarily out of the
 Sec.6 Rule 14- Whenever practicable, the country leaves a definite place of residence or
summons shall be served by handing a copy dwelling where he is bound to return.
thereof to the defendant in person, or if he  Service of summons may possibly be any of the
refuses to receive and sign for it, by tendering it to following modes unless ruled otherwise upon a
him. resident temporarily out of the Philippines
 Service in the person of the defendant is not o By personal service
personal service, Personal service is a mode by o Publication in a newspaper of general
which pleadings, motions, notices, orders, circulation together with a registered
judgments, and other papers are served under mailing of a copy of the summons and
Rule 13 Sec.6. the order of the court to the last known
 Personal service is primarily a concept actually address of the defendant.
found in Rule 13. o By any manner the court may deem
 Tender of summons- Is not a separate mode of sufficient.
service, it is a part of service in person and applies
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o By substituted service of summons- if o such individual must have sufficient
defendant has a residence or place of knowledge to understand the obligation
business in the Philippines. of the defendant in the summons, its
 Substituted service may be availed of, if for importance, and the prejudicial effects
justifiable causes, the defendant cannot be served arising from inaction on the summons.
within a reasonable time. What is a reasonable  It is not necessary that the person in charge of the
time contemplates a period of time longer that defendant’s regular place of business be
that demarcated by the word “prompt”, and specifically authorized to receive summons. It is
presupposes that a prior attempt at personal enough that he appears to be in charge.
service within a justifiable time frame, as would  Where the substituted service has been validly
be necessary to bring the defendant within the served, its validity is not affected by the
jurisdiction of the court had failed. defendant’s failure to actually receive the
 Manotoc vs CA-Reasonable time is defined as so summons from the person with whom the
much time as is necessary under the summons had been left.
circumstances for a reasonably prudent and  It is immaterial that the defendant does nor in
diligent man to do, conveniently, what the fact receive actual notice.
contract or duty requires that should be done.  The rules does not require the sheriff or any
Reasonable time means no more than 7 days authorized server to verify that the summons left
since an expeditious processing of the complaint in the defendant’s residence or office was actually
is what the party wants. delivered to defendant.
 To the sheriff, reasonable time means 15 to 30
days because at the end of the month, it is a When defendant prevents service of summons
practice for the branch clerk to require the sheriff  The statutory requirements of substituted service
to submit a return of the summons assigned to must be followed strictly, faithfully, and fully can
the sheriff for service. be relaxed. The court frowns an overly strict
 How substituted service is made application of the rules. It is the spirit, rather than
o Leaving copies of the summons at the the letter of the procedural rules that governs.
defendant’s residence.
o Leaving copies of the summons at the Summons by publication
defendant’s office or regular place of  Is available only in actions in rem and quasi in
business. rem. It Is not available as a means of acquiring
 Manotoc vs CA- A person of suitable age and jurisdiction over the person of the defendant in an
discretion is one who has attained the age of full action in personam.
legal capacity 18 yrs old, and is considered to have  Summons by publication against a resident in an
enough discernment to understand the action in personam is permissible under the
importance of summons. following
 Discretion- Defined as the ability to make 1. Sec.14 Rule 14- Where the identity or
decisions which represent a responsible choice whereabouts of a defendant are
and for which an understanding of what is lawful, unknown.
right, or wise, may be presupposed. 2. Sec.16 Rule 14- Where the defendant is a
 Thus, to be of sufficient age and discretion, such resident temporarily out of the
person must know how to read and understand Philippines.
English to comprehend the import of the  The summons by publication under sec.15 or Rule
summons, and fully realize the need to deliver the 14 on extraterritorial service of summons has no
summons and complaint to the defendant at the application to residents of the Philippines. It only
earliest possible time for the person to take applies to non-residents.
appropriate action.
 The person must have a relation of confidence to Against a non-resident, jurisdiction is acquired over the
the defendant, ensuring that the latter would defendant by service upon his person while he is within the
receive or at least be notified of the receipt of Philippines.
summons
 A competent person in charge of the office or Summons by publication against a non-resident in an
regular place of business must be one: action in personam is not a proper mode of service. Except
o managing the office or business of the when the defendant is a foreign private juridical entity not
defendant, such as the president or registered and with no resident agent in the Philippines.
manager, and
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Publication- Is notice to the whole world that the 2. Publication with leave of court.
proceeding has, for its object, to bar indefinitely all who 3. Any other matter the court may deem sufficient.
might be minded to make an objection of any sort against
the right sought to be established. Extraterritorial service of summons applies only where
the action is in rem, that is, an action against the thing
Service upon a defendant whose identity or whereabouts itself instead of against the person, or in an action quasi in
are unknown rem where an individual is named defendant and the
 Where the defendant is designated as an purpose of the proceeding is to subject his interest therein
unknown and cannot be ascertained despite a to the obligation burdening his property.
diligent inquiry, service may, with leave of court,
be effected upon him by publication in a When a defendant is a non-resident, personal service of
newspaper of general circulation and in such summons within the state is essential to the acquisition of
places and for such time as the court may order. jurisdiction over the person. Summons on the defendant
 This rule, authorizes summons by publication in must be served by handing a copy thereof to the
any action and the rule does not distinguish defendant in person or if he refuses to receive it by
whether the action is in personam, in rem, or tendering it to him. This cannot be done if the defendant is
quasi in rem. The tenor of the rule authorizes not physically present in the country.
summons by publication whatever the action may
be as long as the identity of the defendant is If the action is in personam, extraterritorial service of
unknown or his whereabouts are unknown. summons will not be available. There is no extraterritorial
 The proper recourse for a creditor in the same service of summons in actions in personam.
situation as petitioner is to locate properties, real
or personal of the resident defendant-debtor with Where the action is in personam, one brought against a
unknown address and cause them to be attached person on the basis of his personal liability, jurisdiction
under Rule 57. In this case, the attachment over the person of the defendant is necessary for the court
converts the action into a proceeding in rem or to validly try and decide a case. However, when the
quasi in rem and the summons by publication may defendant is a non-resident personal service of summons
then accordingly be deemed valid and effective. in the state is essential to the acquisition of jurisdiction
over him.
Extraterritorial service of summons
It is a settled rule that, a non-resident defendant who
Requisites for applicability of extraterritorial service of refuses to come to the country voluntarily remains beyond
summons the personal processes of the court which, therefore,
1. The defendant is a non-resident cannot acquire jurisdiction over him.
2. He is not found in the Philippines
3. The action against him is either in rem or quasi in Remedy of attachment against non-resident defendants
rem not found in the Philippines
*General rule: Extraterritorial service does not apply to a  Being an action in personam, the remedy is to file
defendant who is a resident of the Philippines. the suit and at the same time, avail of the
*Exception: Where service may, by leave of court, be provisional remedy of attachment, one ground
effected out of the Philippines when a resident is upon which the writ of preliminary attachment
temporarily out of the Philippines (Sec.16 Rule 14). may issue is an action against a party who does
not reside and is not found in the Philippines.
Actions involved in extraterritorial service of summons  Jurisdiction over the person of the defendant
1. Actions that affect the personal status of the would no longer be required when there is a writ
plaintiff. of preliminary attachment of the defendant’s
2. Actions which relate to, or the subject matter of properties because the suit has assumed the
which is property within the Philippines, in which character of an action quasi in rem, which merely
the defendant claims a lien or interest in property requires jurisdiction over the res. After availing
located in the Philippines. extraterritorial service of summons, the suit can
3. When the defendant’s property has been then proceed despite the absence of the
attached in the Philippines. defendant because, in this case, the property of
the defendant would now be the object of judicial
Modes of effecting Extraterritorial service of summons power.
1. Personal service out of the country with leave of
court.

55
Summons when complaint is amended the discovery procedures and also the mandatory
 If a complaint is amended, as when new causes of pre-trial.
actions are introduced, then there is a need to  Since the purpose of the motion for bill of
serve another summons. Thus, merely serving the particulars is to allow the movant to properly
amended complaint is not equivalent to service of prepare his own pleading, it would be erroneous
summons. for the motion to ask the court to order the
 Other cases make the need for another summons adverse party to disclose or set forth in his
dependent on whether or not the defendant has pleading the evidences relied upon for his cause
already appeared in the action at the time of the of action or defense. These matters are
amendment of the complaint. Hence, new obtainable by the various modes of discovery.
summons would be unnecessary when the  It would be likewise not be proper for a motion
defendant has already submitted himself to the for bill of particulars to call for the production of
jurisdiction of the court. Sometimes, even if new the particulars constituting malice, intent,
causes of actions are alleged. knowledge, or condition of the mind, which under
the rules, may be averred generally.
Proceedings after service of summons and dismissal of  It would be proper to move for a bill of particular
actions to aver circumstances of fraud or mistake, since
such matters must be alleged with particularity.
Motion for bill of particulars
 Although, under the rules, the defendant is Purpose of the bill of particulars in a criminal case
required to answer the complaint within 15 days  To enable the movant to properly plead
from service of summons, the defendant need not  And prepare for tiral.
file his answer to the complaint within the
required period if there are matters in the Requirements for the motion
complaint which are vague or ambiguous or not 1. It shall put out the defects complained of.
averred with sufficient definiteness, instead he 2. Paragraphs wherein they are contained.
may file a motion for bill of particulars. 3. Details desired.
 It is an motion that applies to any pleading not
just the complaint, which in the perception of the Action of the court
movant, contains matters which are not alleged  Upon the receipt of the motion, the clerk of court
with sufficient definiteness or particularity. must immediately bring the same to the attention
of the court.
When to file a motion for bill of particulars  The motion having been brought to its attention,
 Filed before responding to a pleading. the court has 3 possible options:
 The period to file the motion refers to the period o To deny the motion outright
for filing the responsive pleading. o To grant the motion outright
 In case directed to a complaint, it must be 15 days o Hold a hearing on the motion or allow
after service of summons. the parties the opportunity to be heard
 In case it is directed to a counterclaim or cross- upon sound judicial discretion.
claim, then the same must be filed within 10 days
from service of the counterclaim or cross-claim. Compliance with the order
 In case it is directed to a reply to which no  If the motion for bill of particulars is granted, in
responsive pleading is provided for by the rules, whole or in part, the court shall order the pleader
the motion for bill of particulars must be filed to submit a bill of particulars to the pleading to
within 10 days from the service of said reply. which the motion is directed.
 The compliance must be effected within 10 days
Purpose of the motion for bill of particulars from notice of the order, unless a different period
 Is to seek an order from the court directing the is fixed by the court.
pleader to submit a bill of particulars which avers  In complying the order, the pleader may file the
matters with sufficient definiteness or bill of particulars or a more definite statement
particularity to enable the movant to properly either in a:
prepare his responsive pleading. It is not to enable o Separate pleading
the movant to prepare for trial. o Or in the form of an amended pleading.
 Where the purpose of the movant is to prepare o In either case, a copy thereof is required
him for trial, the appropriate remedy is to avail of to be served upon the adverse party.

56
 The bill of particulars submitted becomes part of Grounds for Motion to Dismiss (Rule 16, Sec.1)
the pleading for which it is intended. 1. The court has no jurisdiction over the person of
the defending party.
Effect of non-compliance with the order of the court 2. The court has no jurisdiction over the subject
 If the order is not obeyed or if there is an matter.
insufficient compliance of the order, the court has 3. The venue is improperly laid.
the following options: 4. The plaintiff has no legal capacity to sue.
o Order the striking out of the pleading 5. That there is another action pending between the
o Order the striking out of the portions of same parties for the same cause.
the pleading to which the order was 6. That the action is barred by prior judgment or by
directed. the statute of limitations.
o To make such other order it may deem 7. That the pleading asserting the claim states no
just. cause of action.
8. That the claim or demand set forth in the
Stay of period to file responsive pleading plaintiff’s pleadings has been paid, waived,
 A motion for bill of particulars is not a pleading. abandoned (laches), or otherwise extinguished.
Hence, not a responsive pleading. 9. That the claim on which the action is founded is
 Whether or not this motion is granted, the unenforceable under the provisions of the statue
movant may file his responsive pleading. of frauds.
 When a motion of bill of particulars is filed, the 10. That a condition precedent for filing the claim has
period to file the responsive pleading is stayed or not been complied with.
interrupted.
 The movant may file his responsive pleading Grounds not waived even if not invoked in a motion to
within the period to which he was entitled at the dismiss
time the motion for bill of particulars was filed. 1. Lack of jurisdiction over the subject matter.
2. Litis pendencia
Motion to dismiss 3. Res judicata
 While the filing of a motion to dismiss is not 4. Statute of limitations or prescription.
prohibited, the remedy being an integral part of
the Rules of Court, the current policy of the SC is Omnibus motion rule
not to encourage the filing of a motion to dismiss,  Applies only when a motion to dismiss is filed. If
but to file an answer to the complaint. no motion to dismiss is filed, any of the grounds
 It is not a pleading. It is merely a motion. A motion for dismissal under Rule 16 may be pleaded as an
is an application for relief other than by a affirmative defense in the answer.
pleading.  A preliminary hearing may be heard thereon as if
a motion to dismiss was filed subject to the
Hypothetical admissions of a motion to dismiss court’s discretion in case the ground for dismissal
 A motion to dismiss hypothetically admits the was pleaded as an affirmative defense.
truth of the factual allegations in the complaint.  No defense is waived in this case because no
However, the hypothetical admission extends only motion to dismiss was filed. There is indeed an
to such matters of fact that have been sufficiently unmistakable difference in the legal effects
pleaded and not to mere epithets charging fraud, between filing and not filing a motion to dismiss in
allegations of legal conclusions, or erroneous relation to waiver of defenses.
statements of law, inferences from facts not
stated, matters of evidence or irrelevant matters. Contents and form of the motion to dismiss
 What is deemed hypothetically admitted are 1. Like any other motion, shall state the relief sought
material allegations, not conclusions. and the grounds upon which it is based and, if
 The admission of a material allegation in the required by the Rules or necessary to prove the
complaint when a motion to dismiss is filed, does facts alleged therein, it shall be accompanied by
not amount to an actual admission of the material supporting affidavits and papers.
allegation, it is only hypothetical. The admission is 2. The motion shall be set for hearing by the
not a judicial admission. applicant and shall contain a notice of hearing
addressed to all the parties concerned.
3. Such notice shall specify the time and date of the
hearing which must not be later than 10 days
after the filing of the motion.

57
4. The notice requirement in a motion is mandatory 2. The judgment or order must be on the merits.
and its absence renders the motion defective. As a 3. The decision must have been rendered by a court
rule, a motion without a notice of hearing is having jurisdiction over the subject matter and
considered pro forma and does not affect the the parties.
reglementary period for the filing of the requisite 4. There must be, between the first and second
pleading. action, identity of the parties, subject matter, and
causes of action. (The application of the doctrine
Time to file the motion does not require absolute identity of the parties
 Within the time for filing the answer but before but merely substantial identity of the parties)
filing said answer, a motion to dismiss may be
filed on any of the grounds mentioned in Rule 16. *There is substantial identity of parties when there is a
 General Rule: A motion to dismiss that is filed  Community of interest
after the answer, is considered filed out of time  Or privity of interest
and the defending party is estopped from filing Between a party in the first and a party in the second case
the motion to dismiss even if the first case did not implead the latter.
 Exception: A motion to dismiss may be filed even
after the filing of the answer, and will not be *Res judicata also applies to quasi-judicial proceedings.
considered filed out of time of the ground raised
in the motion is either of the following and such No res judicata in criminal proceedings
grounds appears from the pleadings or the  Res judicata is a doctrine in Civil law and, thus, has
evidence on record: no application on criminal proceedings.
1. Lack of jurisdiction over the subject  Reinvestigation cannot be barred by double
matter. jeopardy.
2. Litis pendencia  The dismissal of a case during preliminary
3. Res judicata investigation does not constitute double jeopardy,
4. Barred by the statute of limitations and preliminary investigation not being part of the
prescription. trial.
 They are also the grounds which allow courts to
dismiss cases motu propio on any of such grounds Litis pendencia: As a ground for dismissal
provided the ground for dismissal is apparent 1. Refers to a situation where two actions are
from the pleadings or the evidence on record. pending between the same parties for the same
cause of action, so that one of them becomes
Res judicata: As ground for dismissal unnecessary, and vexatious. It is based on the
 Based on two grounds policy against multiplicity of suits and authorizes a
1. Public policy and necessity, which makes court to dismiss a case motu propio.
it to the interest of the state and there
should be an end to litigation (republicae Requisites of litis pendencia
ut sit litium) 1. The identity of the parties or at least such as
2. The hardship on the individual of being representing the same interest in both actions.
vexed twice for the same cause (nemo 2. The identity of the rights asserted and relief
debet bis vexari et eadem causa) prayed for, the relief founded on the same facts
 Courts will simply refuse to reopen what has been 3. The identity of the two cases such that judgment
decided. They will not allow the same parties or in one, regardless of which party is successful,
their privies to litigate a new question once it has would amount to res judicata in the other.
been considered and decided with finality.
Litigations must end and terminate sometime and A ground previously invoked in a denied motion to
somewhere. dismiss may be invoked anew. The denial of a motion to
 Means “A matter adjudged, judicialy acted upon, dismiss does not preclude any future reliance on the
or settled my judgment” grounds relied thereupon.
 2 concepts
1. Bar by prior judgment par.b Rule 39, Remedy of defendant if the motion is denied
Sec.47. 1. The movant shall file his answer within the
2. Conclusiveness of judgment par.c balance of the period prescribed by Rule 11 which
he was entitled at the time of serving his motion,
Bar by prior judgment (Requisites) but not less than 5 days in any event. This period
1. The former judgment or order must be final.
58
shall be computed from the receipt of the notice 4. The claim on which the action is founded is
of denial. unenforceable under the provisions of the statute
2. A a rule, the filing of an answer and going through of frauds.
the usual trial process, and later, the filing of a
timely appeal from an adverse judgment are the *Where the defendant is barred from refilling the action,
proper remedies against a denial of a motion to the remedy is to file an appeal.
dismiss.
3. The filing of an appeal from an order denying a Effect of dismissal of complaint on the counterclaim
motion to dismiss is not the remedy prescribed by  The dismissal of the complaint shall not prevent
existing rules. The order of denial, being the prosecution in the same or separate action of
interlocutory, is not appealable by express counterclaim pleaded in the answer of the
provision of Sec.1 (b) Rule 41. defendant.
4. Where the judgment or final order is not  The rule does not distinguish whether it is
appealable, like an interlocutory order, the compulsory or permissive.
aggrieved party may file an appropriate civil
action which are certiorari, prohibition, Hearing of the motion to dismiss
mandamus, whichever is proper under the  A motion to dismiss is a litigated motion, and
circumstances. This remedy, however, is hence, should be heard.
predicated upon an allegation that the denial of  In the hearing, the parties shall submit their
the motion to dismiss was tainted with grave arguments on the questions of law and their
abuse of discretion amounting to lack of evidence on the questions of fact involved is such
jurisdiction. evidence is available at the time of the hearing.
5. In case the remedy is mandamus, there must also  If the case goes to trial, the evidence presented
be a showing that the respondent court during the hearing of the motion to dismiss shall
unlawfully neglected the performance of an act automatically be part of the evidence of the party
which the law specifically enjoins. presenting the same.
 Rule 16 of the Rules of Court sanctions trial-type
Remedies of the plaintiff if the motion to dismiss is proceedings in the sense that the parties are
granted allowed to present evidence and argue their
1. Depending on the ground of dismissal of the respective positions before the court.
action, the plaintiff may simply refile the  When a motion is based on facts not appearing of
complaint. record, the court may hear the matter on
2. He may appeal from the order of the dismissal affidavits or depositions presented by the
where the ground relied upon is one which bars respective parties, but the court may direct that
the refilling of the complaint like res judicata, the matter be heard wholly or partly on oral
prescription, extinguishment of obligations etc. testimony or depositions.
Since the complaint cannot be refilled, the
dismissal is with prejudice. Where the dismissal is Dismissal by the plaintiff
with prejudice, an appeal from the order of
dismissal is not precluded. Dismissal by notice of dismissal
3. Where the ground for dismissal is lack of  Before the service of an answer or a motion for
jurisdiction over the SM the dismissal is without summary judgment, a complaint may be
prejudice, hence no appeal can be had from the dismissed by the plaintiff by filing a notice of
order of dismissal. dismissal.
4. Plainitff may also avail of a petition for certiorari  Upon the filing of the notice of dismissal, the
when the court gravely abuses its discretion in a court shall issue an order confirming the dismissal.
manner amounting to lack of jurisdiction.
 It is not the order of dismissal that the dismissal
which operates to dismiss the complaint. As the
When complaint cannot be refilled (dismissal with
name of order implies, said order merely confirms
prejudice)
a dismissal already effected by the filing of the
1. The cause of action is barred by the statute of
notice of dismissal.
limitations.
 Since the order issued by the court merely
2. The cause of action is barred by a prior judgment.
confirms the dismissal, it follows that the court
3. The claim or demand has been paid, waived,
does not have to approve the dismissal because it
abandoned or otherwise extinguished.
has no discretion on the matter.

59
 Notice of dismissal as a matter of right- Before an 4. The failure of the plaintiff to comply with the
answer or a motion for summary judgment has Rules of Court.
been served upon the plaintiff.
Dismissal without prejudice The dismissal due to the fault of the plaintiff may be done
 General Rule: A dismissal by the filing of the by the court on its own motion or upon a motion filed by
notice of dismissal is a dismissal without the defendant.
prejudice. The complaint can be refilled.
 Exception: Dismissal of a class suit
o The notice of dismissal provides that the  A class suit shall not be dismissed or compromised
dismissal is with prejudice. without the approval of the court.
o The plaintiff has previously dismissed the
same case in a court of competent Pre-trial
jurisdiction based on or including the  Is a procedural device held prior to the trial for
same claim. the court to consider the following purposes:
 If the plaintiff files a notice of dismissal providing 1. Possibility of amicable settlement or a
therein a reason that prevents the refilling of the submission to alternative modes of
complaint, the dismissal shall be deemed one with dispute resolution.
prejudice even if the notice does not state the 2. Simplification of issues.
dismissal is with prejudice 3. Necessity or desirability of amendments
4. The possibility of obtaining stipulations
Two dismissal rule or admissions of facts and of documents
 Applies when the plaintiff has twice dismissed the to avoid unnecessary proof.
actions based on or including the same claim in a 5. Limitation of the number of witnesses.
court of competent jurisdiction. 6. The advisability of a preliminary
 The second notice of dismissal will bar the refilling reference of issues to a commissioner,
of the action because it will operate as an 7. The propriety of rendering judgment on
adjudication of the claim upon the merits. the pleadings, or summary judgment, or
 The claim may only be filed twice. of dismissing the action should a valid
 The second notice triggers the application of the ground therefor to be found to exist.
two dismissal rule and the dismissal is to be 8. The advisability or necessity of
deemed one with prejudice because it is suspending the proceedings.
considered as an adjudication upon the merits. 9. Such other matters as may aid in the
prompt disposition of the action.
Dismissal by motion to dismiss  It is mandatory in civil cases.
 Once an answer or a motion for summary  A preliminary conference is likewise mandatory in
judgment has been served on the plaintiff, the both criminal and civil cases under the Rules on
dismissal is no longer a matter of right and will Summary Procedure.
require the filing of a motion to dismiss not a  The court disallows a change in one’s defense
mere notice of dismissal. after the termination of the period of testimony
 The motion to dismiss will now be subject to the and after the exhibits of both parties have already
approval of the court which will decide the motion been admitted by the court because the non-
upon such terms and conditions as are just. inclusion of the belated defense in pre-trial barred
 The dismissal under Sec.2 of Rule 17 (dismissal its consideration during the trial.
without prejudice) is no longer a matter of right  Parties are, accordingly bound by the delimitation
on the part of the plaintiff, but of sound judicial in the pre-trial.
discretion.  The parties must disclose during the pre-trial all
issues they intend to raise during the trial, except
Dismissal due to fault of plaintiff grounds those privileged communication or impeaching
1. The failure of the plaintiff, without justifiable matters.
reason, to appear on the date of the presentation  Issues not included in the pre-trial order may be
of his evidence in chief. considered only if they are impliedly included in
2. The failure of the plaintiff to prosecute his action the issues raised or inferable from the issues
for an unreasonable length of time. raised by necessary implication.
3. The failure of the plaintiff to comply with any
order of the court.

60
Effect of failure to conduct a pre-trial  Mediation is a part of pre-trial and the failure of
 Rule 18 duty of the plaintiff to promptly move ex the plaintiff to appear therein merits sanction on
parte that the case be set for pre-trial. the part of the absent party.
 Failure to do so is inexcusable.  Failure of the plaintiff to appear at the pre-trial
shall be the cause of the dismissal of the action,
Philippine Mediation Center  The dismissal shall be with prejudice except when
 At the start of the preliminary conference, the the court orders otherwise.
judge is mandated to refer the parties and/or  Failure of the defendant to appear in the pre-trial
their counsels to the mediation unit of the PMC shall be a cause to allow the plaintiff to present
for purposes of mediation. his evidence ex parte and for the court to render
 If mediation fails, the judge will schedule the judgment on the basis of the evidence presented
continuance of the preliminary conference. by the plaintiff.
 This rule applies to Metro Manila, Cebu, Davao  The order of the court allowing the plaintiff to
City and other places where the Philippine present his evidence ex parte, does not dispose
Mediation Center Units may further be organized of the case with finality. The order is merely
and designated. interlocutory, hence, not appealable.
 Non-appearance of a party may be excused only
When to file motion to set the case for pre-trial if a valid cause is shown for such non-appearance
 To be made by the plaintiff after the last pleading or if a representative shall appear in his behalf
has been served and filed. fully authorized in writing to enter into any of the
 The motion is to be filed within 5 days after the following matters
last pleading joining the issues has been served o An amicable settlement
and filed. o Alternative modes of dispute resolution
 If the plaintiff fails to file the motion, the branch o Stipulations or admissions of facts and
clerk of court shall issue a notice of pre-trial. documents.
 An incomplete authority does not satisfy the
Last pleading requirements of the Rules and should be deemed
 The last permissible pleading that a party can file the equivalent of having no authority at all.
is the reply to the answer to the last pleading  The written authority must be in the form of a
asserting a claim. The claim should be the original special power of attorney.
complaint, counterclaim, cross-claim or third-
party complaint. Pre-trial brief
 Where the last pleading has not yet been served  The parties shall file with the court their
and filed- The case is not yet ready for pre-trial. respective pre-trial briefs which should be
 However, “the last pleading” need not be liberally received at least 3 days before the date of the
construed as one having been served and filed. pre-trial.
For purposes of pre-trial, the expiration of the  This pre-trial brief shall be served on the adverse
period for filing the last, pleading without it party in such a manner that will ensure his receipt
having been served and filed. also at least 3 days before the date of the pre-
trial.
Notice of pre-trial  It must contain the following matters:
 The notice of pre-trial shall be served on the 1. A statement of their willingness to enter
counsel of the party, if he is represented by a into an amicable settlement or ADR,
counsel. Otherwise, the notice shall be served on indicating their desired terms thereof.
the party himself. 2. A summary of admitted facts and
 It would be grave abuse of discretion for the court proposed stipulation of facts.
to allow the plaintiff to present his evidence ex 3. The issues to be tried or resolved.
parte for failure of the defendant to appear 4. The documents or exhibits to be
before the pre-trial who did not receive, through presented, stating the purposes thereof.
his counsel, a notice of pre-trial. 5. A manifestation of their having availed of
or their intention to avail of the discovery
Duty of parties to appear the pre-trial procedures or referral to commissioners.
 It shall be duty of both the parties and their 6. The number and names of the witnesses
counsels to appear at the pre-trial. and the substance of their respective
testimonies.

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 The failure to file a pre-trial brief shall have the Questions by the judge- During the pre-trial, the judge
same effect as the failure to appear at the pre- shall be the one to ask questions on the issues raised by
trial. the parties, and all questions or comments of counsel or
 A plaintiff who fails to file a pre-trial brief, such parties must be directed to the judge to avoid hostilities
failure shall be the cause for dismissal of the between the parties.
action.
 If it is the defendant who fails to do so, such Pre-trial order
failure shall be the cause to allow the plaintiff to  This order of the court is issued upon the
present his evidence ex parte. termination of the pre-trial.
 It shall be issued within 10 days after the
No termination of pre-trial for failure to settle termination of the pre-trial.
 The judge should not allow the termination of  The order recites the following in detail:
pre-trial simply because of the manifestation of 1. The matters taken up in the conference.
the parties that they cannot settle the case. 2. The action taken thereon.
 Instead, he should expose the parties to the 3. The amendments allowed to the
advantages of pre-trial. pleadings.
 If all efforts to settle fail, the trial judge shall 4. The agreements or admissions made by
endeavour to achieve the other purposes of pre- the parties as to any of the matters
trial like, among others, obtaining admissions or considered.
stipulations of fact. He may also require the  These admissions embodied in the pre-trial order
production of documents or things requested by a are binding upon the parties and conclusive upon
party under Rule 27 and the results of physical them.
and mental examination of persons under Rule  The pre-trial order
28. 1. Defines and limits the issues to be tried.
2. Controls the subsequent course of
Identification and marking of evidence action, except if it is modified before trial
 No evidence shall be allowed to be presented and to prevent manifest injustice.
offered during the trial in support of a party’s  A pre-trial order is not intended to be a detailed
evidence-in-chief than those that had been earlier catalogue of each and every issue that is to be
identified and pre-marked during the pre-trial. taken during the trial, for it is unavoidable that
there are issues that are impliedly included among
Legal effect of representations and statements in the pre- those listed or that may be inferable from those
trial brief listed by necessary implication which are as much
 The parties are bound by the representations and integral parts of the pre-trial order as those
statements in their respective pre-trial briefs. expressly listed.
 Such representations and statements are in the
nature of a judicial admission in accordance with Pre-trial in a civil case vs Pre-trial in a criminal case
Rule 129 Sec.4.
Civil Cases
One day examination of witness rule 1. It is set when the plaintiff moves ex parte to set
 Adherence to this rule shall be required where the the case for pre-trial.
witness shall be fully examined in one day only, 2. The motion to set the case for pre-trial in a civil
subject to the court’s discretion during the trial on case is made after the last pleading has been
whether or not to extend the examination for served and filed.
justifiable reasons. 3. Considers the possibility of an amicable
settlement as an important objective.
Most important witness rule 4. The agreements and admissions made in pre-trial
 Where no settlement has been effected, the court are not required to be signed by both parties and
shall follow this rule, where the court shall theirs counsels. However, AM No. 03-1-09-SC July
determine the most important witnesses, limit the 13,2004, now requires the proceedings during the
number of such witnesses and require the parties preliminary conference and signed by both parties
and/or counsels to submit to the branch clerk of and or counsel.
court the names, addresses, and contact numbers 5. The sanctions for non-appearance in a pre-trial
of witnesses to be summoned by subpoena. are imposed upon the plaintiff and the defendant.
6. A pre-trial brief is specifically required to be
submitted in a civil case.

62
Criminal Cases Modes of discovery
1. It is ordered by the court and no motion to set the  In general, is a device employed by a party to
case for pre-trial is required from either the obtain information about relevant matters on the
prosecution or defense. case from the adverse party in preparation for the
2. The pre-trial is ordered by the court after trial.
arraignment and within 30 days from the date the  As contemplated by the rules, the device may be
court acquires jurisdiction over the person of the used by all parties to the case.
accused.  Purpose is to permit mutual knowledge before
3. Does not include considering the possibility of trial of all relevant facts gathered by both parties
amicable settlement of criminal liability. so that neither party may compel the other to
4. There is a stricter procedure required, all disgorge facts whatever he has in his possession.
agreements or admissions made or entered  It is an additional device aside from a pre-trial.
during the pre-trial conference shall be reduced in  Duty of the court, aside from preparing the
writing and signed by both the accused and summons within 1 day from the receipt of the
counsel. Otherwise, they cannot be used against complaint, the court is required to issue an order
the accused. requiring the parties to avail of interrogatories to
5. The sanctions in a criminal case are imposed upon parties under Rule 25 and request for admission
the counsel for the accused or the prosecutor. by adverse party under Rule 26, or, at their
6. A pre-trial brief is not specifically required in a discretion, make use of depositions under Rule 23,
criminal case. or other measures under Rule 27 and 28 within 5
days from the filing of the answer. A copy of this
Preliminary conference under the 1991 Revised Rules on order shall be served upon the defendant
Summary Procedure together with the summons. A copy of the order
 A preliminary conference shall be held not later shall also be served upon the plaintiff.
than 30 days after the last answer is filed.
 The rules on pre-trial in ordinary cases shall apply Modes of discovery under the Rules of Court
except when inconsistent with the rules on 1. Depositions pending action. 23
summary procedure. 2. Depositions before action or pending appeal.24
 Preliminary conference is mandatory. 3. Interrogatories to parties. 25
 The failure of the plaintiff to appear in the 4. Admission by adverse party. 26
preliminary conference shall be the cause for 5. Production or inspection of documents or things.
dismissal of his complaint, and the defendant who 27
appears in the absence of the plaintiff shall be 6. Physical and mental examination of persons. 28
entitled to judgment on his counterclaim. All
cross-claims shall be dismissed. Depositions
 If a sole defendant fails to appear, the plaintiff  It is the taking of the testimony of any person,
shall be entitled to judgment. This rule is whether he be a party or not, but at the instance
inapplicable to several defendants, who are sued of a party to the action. This testimony is taken
under a common cause of action and pleaded a out of court.
common defense, shall appear at the preliminary  2 methods of taking depositions
conference. 1. Oral examination
 Within 5 days from the termination of the 2. Written interrogatory
preliminary conference, the court shall issue an  May be sought for a pending action (de benne
order stating the matters taken up in the esse), future action, or for use in a pending appeal
conference. (in perpetuam rei memoriam)

Preliminary conference in the Court of Appeals and Deposition pending action


Supreme Court  Leave of court is not required after an answer has
 A preliminary conference may be conducted in been served.
the Court of Appeals, but the same is not  Leave of court is required before the service of an
mandatory. answer but after jurisdiction has been acquired
 Rule 48, is also made applicable to the Supreme over any defendant or over the property subject
Court by the Rules in original cases for certiorari, of the action.
prohibition, mandamus, quo warranto and habeas  Ex abundanti cautela- out of abundant caution or
corpus. to be on the same side.

63
 Deposition of a prisoner- May only be taken with interposed during the course of the deposition
leave of court and upon such terms as the court although any objections shall be noted by the
may prescribe. officer upon the deposition.
 Within the Philippines, a deposition need not be  Any evidence that is objected to shall be taken but
taken before a judge, although it may be taken subject to the objection.
before one.
 It may also be taken before a notary public or Uses of depositions pending actions
before any person authorized to administer oaths 1. Against any party who was present or represented
if the parties stipulate in writing. at the taking of the deposition.
 Outside the Philippines, a deposition may be 2. Against one who had due notice of the deposition.
taken before; 3. The deposition or any of its parts, may be used at
1. A secretary of an embassy or legation, trial or upon the hearing of a motion or an
consul, consul-general, vice-consul, or interlocutory order.
consular agent of the Republic of the
Philippines. Purposes of deposition
2. Such person or officer as may be 1. For contradicting or impeaching the testimony of
appointed by the commissions or letters the deponent as a witness.
rogatory. 2. For any purpose by the adverse party where the
3. A person authorized to administer oaths deponent is a party or, at the time of taking the
by written stipulation of the parties. deposition was an officer, director, or managing
 No deposition shall be taken before a person agent of a public or private corporation,
who is a: partnership, or association.
1. Relative within the 6th degree of 3. For any purpose by a party, where the deponent is
consanguinity or affinity of the parties a witness whether or not a party, if the court finds
2. Employee or counsel of the parties that:
3. One financially interested in the action. a. The witness is dead
b. That the witness resides more than 100
Examination of the deponent km from the place of trial or hearing, or is
 A party desiring to take the deposition of any out of the Philippines, unless it appears
person upon oral examination shall give that his absence was procured by the
reasonable notice in writing to every party to the party offering the deposition.
action stating the time and place for the taking of c. That the witness is unable to attend or
the deposition and the name and address of each testify because of age, sickness, infirmity,
person to be examined. or imprisonment.
 After notice is served, the court may make any d. That the party offering the deposition
order for the protection of the parties and the has been unable to procure the
deponents. attendance of witnesses by subpoena.
 The attendance of witnesses may be compelled by e. Or when exceptional circumstances exist,
the use of a subpoena. upon application and notice.
 The deponent or witness may be examined or
cross-examined following the procedures for Effect of substitution of parties
witnesses in a trial. He may be asked questions on  The substitution of parties do not affect the right
direct, cross, re-direct, or re-cross. to use the depositions previously taken.
 He has the same rights as a witness and may be  The same rule also provides that when an action
impeached like a court witness. has been dismissed and another action involving
 Unless otherwise ordered by the court, the the same subject and between the parties, or
deponent may be examined regarding any matter their representatives or successors in interest, is
not privileged, which is relevant to the pending afterwards brought, all the depositions lawfully
action, whether relating to the claim or defense of taken and duly filed in the former action may be
any party, including the existence, description, used in the latter as if originally take. (Sec.5 Rule
nature, custody, condition and location of any 23)
books, documents, or other tangible things and
the identity and location of persons having Effect of taking of deposition of a person
knowledge of relevant facts.  A person whose deposition is taken by a party
 The officer before whom the deposition is taken does not, by reason of such deposition, make such
has no authority to rule on the objections person the witness of the said party.

64
 A party shall not be deemed to make a person his  If the deposition is not signed by the witness, the
own witness for any purpose by taking his officer shall sign it and state on the record the
deposition. attendant facts, together with the reason given,
for the non-signing of the deposition.
Effect of using the deposition of a person  The deposition may be used as fully as though it
 The introduction of the deposition, or any part was signed, unless on motion to suppress holds
thereof, makes the deponent the witness of the that the reasons given for the refusal to sign
party introducing the deposition if used for a require rejecting the deposition in whole or in
purpose other than that of contradicting or part.
impeaching the deponent.  The officer is required to certify on the deposition
 This however, does not make this rule applicable that the witness was duly sworn to by him and
to the use by an adverse party of a deposition that the deposition is a true record of the
mentioned in paragraph (b) of Sec.4 Rule 23 testimony given by the witness.
 He shall securely seal the deposition in an
Oral deposition envelope indorsed with the title of the action.
 A party desiring to take the deposition of any  He shall, likewise, promptly file it with the court in
person upon oral examination shall give to every which the action is pending r send it by registered
party to the action a reasonable notice in writing. mail to the clerk of court thereof for filing.
 Such notice is required to contain the following:  All parties shall promptly be notified of its filing by
1. The time and place for taking the the officer taking the deposition and upon
deposition. payment of reasonable charges, the officer shall
2. The name and address of each person to furnish a copy of the deposition to any party or to
be examined, if known, if not known, the deponent.
there must be a general description
sufficient to identify him or the particular Deposition upon written interrogatories
class or group to which he belongs.  A deposition need not be conducted through an
 Guidelines for oral depositions Sec.17 Rule 23 oral examination. It may be conducted through
1. The officer whom the deposition is taken written interrogatories.
shall put the witness on oath.  A party desiring to take the deposition of any
2. The testimony of the witness or person upon written interrogatories shall serve
deponent must be recorded and be taken the interrogatories upon every other party with a
stenographically, unlesws the parties notice stating the name and address of a person
agree otherwise. who is to answer them, the name and descriptive
3. All objections made at the time of the title and address of the officer before whom the
examination shall be noted. deposition is to be taken.
4. Evidence objected to shall be taken but  A party served with the interrogatories may also
subject to the objections. serve cross-interrogatories upon the party
 In lieu of participating in the oral examination, proposing to take the deposition within 10 days
parties served with notice of taking a deposition from service of the written interrogatories.
may transmit written interrogatories to the  The latter may, within 5 days after being served
officers, who shall propound them to the witness with re-direct interrogatories. Within 3 days after
and record of answers verbatim. being served with re-direct interrogatories, a
 When the testimony is fully transcribed, the party may serve re-cross interrogatories upon the
deposition shall be submitted to the witness for party proposing to take the deposition.
examination and read to or by him, unless such  A copy of the notice and copies of all
examination is waived by the witness and the interrogatories served, shall be delivered by the
parties. The witness may desire some changes in party taking the deposition to the officer
the form and substance, in which case such designated in the notice.
changes shall be entered upon the deposition by  He shall proceed to promptly take the testimony
the officer with a statement of the reasons of the of the witness in response to the interrogatories
witness for making such changes. and to prepare, certify, and file or mail the
 The deposition shall be signed by the witness, deposition, attaching thereto the copy of the
unless the signing is waived by the parties by notice and the interrogatories received by him.
stipulation or , the deposition cannot be signed
because the witness is ill, cannot be found or
refuses to sign.
65
Depositions before action under Rules 27b and 29 within 5 days from filing
 This type of deposition is availed of when a person of the answer.
desires to perpetuate his own testimony or that of
another person regarding any matter that may be Interrogatories to parties, written interrogatories vs bill
cognizable in any court of the Philippines. of particulars
 The perpetuation of a testimony is done by filing a
verified petition in the place of the residence of Bill of particulars- Is directed to a pleading and is designed
any expected adverse party. to seek for a more definite statement or for particulars of
 The deposition taken under this rule is admissible any matter not averred with sufficient definiteness in a
in evidence in any action subsequently brought pleading.
involving the same subject matter.
Interrogatories to parties- Are not directed against a
Depositions pending appeal particular pleading. Instead, they seek the disclosure of all
 If an appeal has been taken from a judgment of a material and relevant facts from a party.
court, including the Court of appeals in proper
cases, or before taking an appeal if the time Written interrogatories- Are not served upon the adverse
therefor has not expired, the court in which the party directly. They are instead delivered to the officer
judgment was rendered may allow the taking of designated in the notice. The service of written
depositions of witnesses to perpetuate their interrogatories is a mode of deposition separate and
testimony for use in the event of further distinct from interrogatories to parties.
proceedings in said court.
 The party who desires to perpetuate the Procedure
testimony may make a motion in said court for 1. The mode of discovery is availed of by filing and
leave to take the depositions. The notice and serving upon the adverse party written
service shall be made in the same manner as if the interrogatories to be answered by the party
action is pending. served. If the party is a juridical entity, the written
 The motion shall state the: interrogatories shall be answered by any of its
1. Names and addresses of the persons to officers competent to testify in its behalf.
be examined. 2. No party may, without leave of court, serve more
2. Substance of the testimony he expects to than one set of interrogatories to be answered by
elicit from each of the persons to be the same party.
examined. 3. The interrogatories shall be answered fully in
3. The reason for perpetuating such writing, signed, and sworn to by the person
testimony. making them. The party upon whom the
 The court shall allow the depositions if it finds interrogatories have been served shall file and
that the perpetuation of the testimony is proper serve a copy of the answers on the party
to avoid a failure or delay of justice. submitting the interrogatories within 15 days
 The depositions may be taken and used in the after service thereof. This period may, upon the
same manner and under the same conditions motion and for good cause shown, be extended or
prescribed for depositions pending actions. shortened by the court.
4. The party against whom it is directed may make
Interrogatories to parties Rule 25 objections to the interrogatories. If he does so,
 This mode of discovery is availed of by a party to said objections shall be presented to the court
the action for the purpose of eliciting material and within 10 days after service of the interrogatories.
relevant facts from any adverse party. The filing of the objections shall have the effect of
deferring the filing and service of answer to the
 The rules considers this mode of discover as
interrogatories until the objections are resolved.
important because within 1 day from the receipt
of the complaint, the rule mandates not only the
Effect of failure to serve written interrogatories
preparation of the summons but also the issuance
of an order requiring the parties to avail of the  A party not served with written interrogatories
interrogatories to parties under Rule 25 and may not be compelled by the adverse party to
request for admission by adverse party under Rule give testimony in open court, or give deposition
26. pending appeal, unless allowed by the court for
good shown and to prevent a failure of justice.
 The parties, however, may use, at their discretion,
depositions under Rule 23 or other measures

66
Purpose of admission by adverse party deferment may be effected by the filing with the
 The purpose of this mode of discovery is to allow court objections to the request for admission.
one party to request the adverse party, in writing,  Compliance shall be deferred until such objections
to admit certain material and relevant matters are resolved by the court.
which, most likely, will not be disputed during the  Admissions made under this mode of discovery,
trial. whether express or implied, are not final and
 To avoid unnecessary inconvenience to the parties irrevocable.
in going through the rigors of proof before the  The court may allow the party making the
trial, a party may request the other to: admission to withdraw or amend the admission
1. Admit genuineness of any material and upon such terms as may be just.
relevant document described in and  To effect the withdrawal, the admitting party
exhibited with the request, or. should file a motion to be relieved of the effects
2. Admit the truth of any material and of his admission.
relevant matter of fact set forth in
request. Production or inspection of documents
 A party may file and serve the written request at  Purpose is to allow a party to seek an order from
any time after the issues have been joined. the court in which the action is pending to:
1. Order any party to produce and permit
Effect of not filing a written request for admission the inspection and copying or
 As a consequence of the failure to avail of this photographing, by or on behalf of the
mode of discovery, the party shall not be moving party, of any designated
permitted to present evidence on facts that are documents, papers, books, accounts,
material and relevant and which are, or ought to letters, photographs, objects, or tangible
be, within the personal knowledge of the other things no privileged, which constitute or
party, unless otherwise allowed by court for good contain evidence material to any matter
cause shown and to prevent a failure of justice. involved in the action and which are in
his possession, custody or control.
Effect of failure to file and serve a sworn statement of 2. Order any party to permit entry upon
denial designated land or other property in his
 It is advisable for the party to whom the written possession or control for the purpose of
request is directed to file and serve upon the inspecting, measuring, surveying, or
party requesting the admission a sworn photographing the property or any
statement either: designated relevant object or operation
o Specifically denying the matters of which thereon.
admission is requested.  This mode of discovery is not only for the benefit
o If he does not deny the same, to set forth of a party, but also for the court and for it to
in detail the reasons why he cannot discover all the relevant and material facts in
truthfully admit or deny those matters. connection with the case before it.
 This sworn statement shall be filed and served  The scope of this discovery under this mode is to
within the period designated in the request but be liberally construed so as to provide the
which shall not less than 15 days from the service litigants with information essential to the fair and
of such request, or within such further time as the amicable settlement or expeditious trial of the
court may allow. case.
 The grant of the motion for production of
Effect of admission document is admittedly discretionary on the part
 Any admission made by a party as a consequence of the trial court judge, nevertheless, it cannot be
of the failure to comply with the request is only arbitrarily or unreasonably denied because to do
for the purpose of the pending action and shall so would bar access to relevant evidence that may
not be deemed an admission for any other be used by a party-litigant and hence, impair his
purposes. fundamental right to due process.
 Likewise, the admission cannot be used against  Test in determining the relevancy of documents
the admitting party in any other proceedings. is one of reasonableness and practicability.
 To avoid the implied admission, the party  Limitation of this discovery procedure: The
requested may have the compliance of the filing documents to be disclosed and produced should
and service of the sworn statement deferred. This not be privileged.

67
Filing of a motion thereafter made, of the same mental, or physical
 A motion must be filed by the party seeking the condition.
production or inspection of documents and  If the party examined refuses to deliver the
things, and the motion must show good cause report, the court may make an order requiring the
supporting the same. delivery on such terms as are just.
 The order shall specify the time, place, and  If it is the physician who fails or refuses to make a
manner of making the inspection and taking report, the court may exclude his testimony if
copies and photographs and may prescribe such offered at the trial.
terms and conditions as are just.
Waiver of privilege
Privileged documents (Sec.24 Rule 130)  By requesting and obtaining a report of the
1. Communication between husband and wife. examination or by taking the deposition of the
2. Communication between attorney and client. examiner, the party examined waives any
3. Communication between physician and patient. privilege he may have in that action or any other
4. Communication between priest and penitent. involving the same controversy, regarding the
5. Communication of public officers involving public testimony of every other person who has
interest. examined or may thereafter examine him in
Those privileged documents/communication not included respect of the same mental or physical
in the Rules: examination.
6. Editors may not be compelled to disclose the
source of published news Refusal to comply with the Modes of Discovery Rule 29
7. Voters may not be compelled to disclose for
whom they voted. Refusal to answer any question upon oral examination
8. Trade secrets  If a party refuses to answer any question upon
9. Information contained in tax census returns oral examination, the proponent may apply to
10. Bank deposits. the proper court, for an order to compel an
answer.
Physical and Mental Examination of Persons Rule 28  The same procedure may be availed of when a
 This mode of discovery applies to an action in party or witness refuses to answer any
which the mental or physical condition of a party interrogatory submitted pursuant to the rules on
is in controversy. the modes of discovery.
1. An action for annulment of a contract  If the application is granted, the court shall order
where the ground relied is insanity. the deponent or refusing party to answer the
2. A petition for guardianship of a person question or interrogatory.
alleged to be insane.  If the refusal is unjustified, the court may require
3. An action to recover damages for the refusing party or deponent or the counsel
personal injury where the issue is the advising the refusal or both of them to pay the
extent of the injuries of the plaintiff. proponent the amount of the reasonable
 A motion must show good cause for the expenses incurred in obtaining the order
examination, with notice to the other parties including attorney’s fees.
aside from the party to be examined.  Also a refusal to answer after being directed by
 The motion shall likewise, specify the time, place, the proper court may be considered a contempt
manner, conditions, and scope of the examination of that court.
and the person or persons by whom it is to be  The court may order that the matters, regarding
made. which the questions were asked, shall be taken as
 The motion is to be filed with the court where the established for the purposes of the action in
action is pending. accordance with the claim of the party obtaining
 The party examined may request the party them.
causing the examination to be made to deliver to  The court may issue an order refusing to allow
him a copy of a detailed written report of the the disobedient party to support or oppose
examining physician setting out his finding and designated claims or defenses or prohibiting him
conclusions. from introducing in evidence of physical or
 After such request and delivery, the party causing mental condition.
the examination to be made shall be entitled  The court may issue an order striking out
upon request to receive from the party examined pleadings or parts thereof, or staying further
a like report of any examination previously or proceedings until the order is obeyed or
68
dismissing the action or proceeding or any part When trial is unnecessary
thereof, or rendering a judgment by default a. When the pleadings of the parties tender no issue
against the disobedient party at all, a judgment of the pleadings may be
 The court may direct the arrest of any party or directed by the court.
agent of a party for disobeying any of the orders b. Where from the pleadings affidavits, depositions,
of the court, except an order to submit to a and other papers, there is actually no genuine
physical or mental examination. issue, the court may render a summary judgment.
 Refusal of a party to be sworn after being directed c. Where the parties have entered into a
by the court may be considered a contempt of compromise or an amicable settlement either
that court. during the pre-trial or while the trial is in progress.
 If a party refuses to admit the genuineness of any d. Where the complaint has been dismissed with
document or the truth of such matter of fact, the prejudice or when the dismissal has the effect of
court, upon proper application, may order the an adjudication on the merits.
former to pay the reasonable expenses in making e. Where the case falls under the operation of the
such proof including attorney’s fees. Rules on Summary Procedure.
 Failure to attend depositions or to serve answers f. Where the parties agree, in writing, upon the
to interrogatories consequences facts involved in the litigation, and submit the
o The court may strike out all or any part of case for judgment on the facts agreed upon,
the pleading of that party without the introduction of evidence. If however,
o Dismiss the action or proceeding or any there is no agreement as to all the facts in the
part thereof. case, trial may be held only as to the disputed
o Enter a judgment by default against that facts.
party.
o In its discretion, order him to pay Notice of trial
reasonable expenses incurred by the  Upon entry of the case in the trial calendar, the
other including attorney’s fees. clerk of court shall notify the parties of the date of
 The consequences will apply if a party refuses to trial in such manner as to ensure the receipt of
answer the whole set of written interrogatories the notice at least 5 days before such date.
and not just a particular question. Where the
party upon whom written interrogatories is Calendaring of cases
served, refuses to answer a particular question in  The clerk of court shall give preference to habeas
the set of written interrogatories and despite an corpus cases, election cases, special civil actions,
order compelling him to answer the particular and those required by law to be preferred.
question, still refuses to obey the order, Rule 29
will apply. Session hours
 The session hours of trial courts shall be from 8:30
Trial am to 12:00 pm and from 2:00 pm to 4:30 pm
 Is the judicial examination and determination of from Monday to Friday.
the issues between the parties to the action.  The hours in the morning shall be devoted to the
 Is a judicial process of investigating and conduct of the trial.
determining the legal controversies between or  The hours in the afternoon shall be utilized for
among the parties. the conduct of:
 During the trial, the parties present their a. Pre-trial conferences
respective evidence of their claims and defenses. b. Writing of decisions, resolutions, or
Such claims or defenses shall constitute the bases orders.
for the judgment of the court. c. Continuation of the trial on the merits
 Trial terminates when the judgment begins. whenever rendered necessary as may be
required by the Rules of Court, statute,
Trial vs hearing circulars in specified cases.
 This schedule may be modified upon request of
Hearing is a broader term. It is not confined to the trial and the Integrated Bar of the Philippines in multi-sala
presentation of the evidence because it actually embrace courts in places where there are few practicing
several stages in the litigation. It includes pre-trial, and the lawyers.
determination of granting or denying a motion.  Unless the docket of the court requires otherwise,
not more than 4 cases shall be scheduled for trial
daily.
69
General Rule: A court may adjourn a trial from day to need not be conducted because presentation of
day, and to any stated time, as the expeditious and evidence would no longer be necessary.
convenient transaction of business may require.
Order of trial Sec.5 Rule 30
Exceptions (Limitation on the authority to adjourn): 1. The plaintiff shall adduce evidence in support of
 The court has no power to adjourn a trial for his complaint.
a period longer than one month for each 2. The defendant shall then adduce evidence in
adjournment, nor more than 3 months in all, support of his defense, counterclaim, cross-claim,
except when authorized in writing by the and third-party complaint.
Court Administrator. 3. The third-party defendant, if any, shall adduce
 A motion for postponement should not be evidence of his defense, counterclaim, cross-
filed on the last hour especially when there is claim, and fourth-party complaint.
no reason why it could not have been 4. The fourth-party complaint and so forth, if any
presented earlier. shall adduce evidence of the material facts
 A party asking for postponement has no pleaded by them.
absolute right to expect that his motion 5. The parties against whom any counterclaim or
would be granted. cross-claim has been pleaded, shall adduce
 A grant or denial of motion for postponement evidence in support of their defense, in the order
is addressed to the sound discretion of the to be prescribed by the court.
court. Such discretion must be exercised 6. The parties may then respectively adduce
intelligently. rebutting evidence only, unless the court, for
good reasons, and in the furtherance of justice,
Postponement on the ground of illness requirements: permits them to adduce evidence upon their
a. A motion for postponement must be filed. original case.
b. The motion must be supported by an affidavit or 7. Upon admission of the evidence, the case shall be
sworn certification showing that: deemed submitted for decision, unless the court
a. The presence of the party or counsel at directs the parties to argue or submit their
the trial is indispensable. respective memoranda or any other pleadings.
b. That the character of his illness is such as 8. If several defendants or third-party defendants
to render his non-existence excusable. and so forth, having separate defenses appear by
 If the adverse party admits the facts to be given in different counsel, the court shall determine the
evidence, the trial shall not be postponed even if relative order of presentation of their evidence.
he reserves the right to object to the admissibility  Unless the court for special reasons otherwise
of the evidence. directs, the trial shall be limited to the issues
stated in the pre-trial order.
Reception of evidence  The above order of trial is only the general rule.
 The judge of the court where the case is pending The order of trial is subject to the
shall personally receive the evidence to be o Provisions of Sec.2 of Rule 31
adduced by the parties. o Unless, for special reasons, the court
 It may be delegated to the clerk of court who is a otherwise directs.
member of the bar, in any of the following cases:  The normal order of trial may be modified if the
o Default hearings court, in furtherance of convenience and to avoid
o Ex parte hearings prejudice, orders a separate trial of any separate
o In any case by written agreement of the issue or of any number of claims, cross-claims,
parties. counterclaims, third-party complaints, or issues.

Agreed statement of facts Reopening the case of a party for the purpose of
 The parties to any action may agree, in writing, introducing further evidence.
upon the facts involved in the litigation, and o The parties may be permitted by the court to
submit the case for judgment on the facts agreed adduce evidence on their original case even after
upon, without the introduction of evidence, but if the presentation of their original evidence
the parties agree only on some facts in the issue, provided:
the trial shall be held as to the disputed facts in 1. There are good reasons.
such order as the court may prescribe. 2. Such reasons are in the furtherance of
 If the parties have agreed to submit the case for justice.
judgment based on the facts agreed upon, a trial
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o The basis for a motion to reopen a party’s case to 2. Actual Consolidation- Where several
introduce further evidence is Sec. 5 (f) Rule 30. actions are combined into one, lose their
o Under this rule, a party who has the burden of separate identity and become a single
proof must introduce, at the first instance, all the action in which a single judgment is
evidence he relies upon and such evidence rendered. This is illustrated where
cannot be given piecemeal. several actions are pending between the
o The obvious rationale of the requirement is to same parties stating claims which might
avoid injurious surprises to the other party and have been set out originally in one
the consequent delay in the admission of justice. complaint.
o A party’s declaration of the completion of the 3. Consolidation for trial- Where several
presentation of his evidence prevents him from actions are ordered to be tried together,
introducing further evidence, but where the but each retains its separate character,
evidence is rebuttal in character, whose and requires the entry of a separate
necessity, for instance, arose from the shifting of judgment. This type of consolidation
the burden of evidence from one party to the does not merge the suits into a single
other, or where the evidence sought to be action or cause the parties to one action
presented is in the nature of newly discovered to be parties to the other.
evidence, the party’s right to introduce further
evidence must be recognized. Otherwise, the Demurrer to evidence
aggrieved party may avail of the remedy of o The regular order of trial requires the plaintiff to
certiorari. adduce evidence in support of his complaint.
o Generally, additional evidence is allowed when it During the trial, he presents all the evidences
is newly discovered, or where it has been omitted available to him- object, documentary, and
through inadvertence, or mistake or where the testimonial.
purpose of the evidence is to correct evidence o Instead of presenting his evidence, the defendant
previously offered. may move for the dismissal of the case on the
ground that, upon the facts and law, the plaintiff
Consolidation or severance has shown no right to relief.

Consolidation
o Is a procedural device, granted to the court as an Motion to dismiss vs demurrer to evidence
aid in deciding how cases in its docket are to be
tried, so that, the business of the court may be Motion to dismiss
dispatched expeditiously while providing justice to  A motion to dismiss under Rule 16 is made before
the parties. the filing of the answer.
o The actions to be consolidated must involve a  There are several grounds for a motion to dismiss.
common question of law or fact. (Sec.1 Rule 31)  If a motion to dismiss is denied, the defendant
o Consolidation or severance is not mandatory and may file his responsive pleading.
is within the sound discretion of the court.  If a motion to dismiss under Rule 16 is granted,
o He court may also order a separate trial of any the complaint may be refilled, depending on the
claim, cross-claim, or third-party complaint, or ground for dismissal.
issues. The court may do so in furtherance of Demurrer to evidence
convenience or to avoid prejudice.  Is made after the plaintiff rests his case, after the
o The purpose of this is: completion of the presentation of his evidence.
1. to avoid multiplicity of suits,  Only one ground under Rule 33- The plaintiff has
2. guard against oppression and abuse, shown no right to relief.
3. prevent delays,  The defendant may present his evidence.
4. clear congested dockets  The complaint may not be refilled and the remedy
5. and simplify the work of the trial court. of the plaintiff is to appeal from the order of
o Kinds of consolidation dismissal.
1. Quasi consolidation- Where all, except
one of the several of actions are stayed Stage of the proceedings when demurrer to evidence is
until one is tried, in which case the availed of
judgment in the one trial is conclusive as  A demurrer to evidence is availed of by the
to the others. defendant after the plaintiff has completed the
presentation of his evidence.
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Ground for a demurrer to evidence 3. The accused may adduce his evidence only if the
 The defendant may move for dismissal on the demurrer is filed with leave of court. He cannot
ground that upon the facts and law, the plaintiff present his evidence if he filed the demurrer
has shown no right to relief. without leave of court.
4. The court may, on its own motion, make a
Effect of denial of the demurrer to evidence demurrer.
 The defendant shall have the right to present his
evidence. Judgment
 When the court denies a demurrer to evidence, it  A judgment is the final ruling by a court of
should set the date for the reception of the competent jurisdiction regarding the rights or
defendant’s evidence in chief. It should not other matters submitted to it in an action or
proceed to grant the relief demanded by the proceeding.
plaintiff.  It is the court’s official and final consideration and
 An order denying a demurrer to evidence is determination of the respective rights and
interlocutory and is, therefore not appealable. It obligations of the parties.
can, however, be subject of a petition for
certiorari in case of grave abuse of discretion. Requisites of a valid judgment
 The provision of the Rules of Court governing 1. The court of tribunal must be clothed with
demurrer to evidence does not apply to an authority to hear and determine the matter
election case. before it.
2. The court must have jurisdiction over the parties
Effect of granting the demurrer to evidence and the subject matter.
 The case shall be dismissed. 3. Parties must have been given an opportunity to
 However, if on appeal, the order granting the adduce evidence in their behalf.
motion is reversed, the defendant loses his right 4. The evidence must have been considered by the
to present evidence. tribunal in deciding the case.
 It is not correct for the appellate court reversing 5. The judgment must be in writing, personally and
the order granting the demurrer to remand the directly prepared by the judge.
case to the trial court for further proceedings. The 6. The judgment must state clearly the facts and the
appellate court should, instead of remanding the law on which it is based, signed by the judge and
case, render judgment on the basis of the filed with the clerk of court.
evidence submitted by the plaintiff.
 Caution, however, must be exercised by the party  A decision need not be a complete recital of the
seeking the dismissal of a case upon this ground evidence presented. So long as the factual and
as, under the rules, if the movant’s plea for legal basis is distinctly and clearly set forth, the
dismissal on the demurrer to evidence is granted judgment is valid.
and the order of dismissal is reversed on appeal,  A decision with nothing to support it, is a patent
he loses his right to adduce evidence. nullity and should be struck down and set aside as
void.
Demurrer in a civil case vs Demurrer in a criminal case  A void judgment has no legal and binding effect,
force, or efficacy for any purpose. In
Civil Cases contemplation of law, it is non-existent.
1. Leave of court is not required before filing a
demurrer. Orders granting or denying a motion to dismiss
2. If the demurrer is granted, the order of dismissal  It is required that resolutions disposing of a
is appealable. motion to dismiss shall state clearly and distinctly
3. If the demurrer is denied, the defendant may the reasons therefore.
proceed to present his evidence.  The orders must clearly state the facts and the law
4. The court cannot, on its own make a demurrer. upon which they are based.

Criminal Cases Denial of a petition for review or of a motion for


1. A demurrer is filed with or without leave of court. reconsideration
2. The order of dismissal is not appealable because  The constitution of the Philippines requires that,
of the constitutional policy against double the refusal to give due course to, or the denial of a
jeopardy. petition for review or a motion for
reconsideration, must state the legal basis.
72
The dispositive portion and the body of the decision together with all its findings of fact and legal
 Two parts of a judgment conclusions are deemed sustained.
o Body of the judgment (ratio decidendi)
o Dispositive portion of the judgment Interlocutory orders
(fallo)  Interlocutory- Refers to something intervening
 Ratio decidendi (Body of the judgment)- Is not between the commencement and end of the suit
the part of the judgment that is subject to which decides some point or matter but is not a
execution. final decision of the whole controversy.
 Fallo (dispositive portion)- One that is subject to  They are those that determine incidental matters
execution because it is which constitutes the that do not touch on the merits of the case or put
judgment of the court. an end to the proceedings.
 The disposition should state whether the  Examples:
complaint or petition is granted or denied. o Order denying a motion to dismiss.
 It is the dispositive part of the judgment that o Order granting extension of time to file a
actually settles and declares the rights and pleading.
obligations of the parties, finally, definitely, and o One authorizing an amendment.
authoritatively, notwithstanding, the existence of o Granting or denying applications for
inconsistent statements in the body that may tend postponement or inspection of
to confuse. documents.
 General rule: Where there is a conflict between  They are not decisions or judgments within the
the dispositive portion or fallo of the decision and constitutional definition.
the body of the decision, the fallo controls. This  The proper remedy to question an improvident
rule rests on the theory that the fallo is the final interlocutory order is a petition for certiorari
order while the opinion in the body is merely a under Rule 65.
statement ordering nothing.  One cannot appeal from an interlocutory order.
 Exception: Where the inevitable conclusion from Permitting appeals on such an order may result in
the body of the decision is so clear that there was multiplicity of appeals in a single action, thus,
a mistake in the dispositive portion, the body of prolonging the action.
the decision will prevail.
Memorandum decisions
Clarificatory judgment  Is one rendered by an appellate court and
 Where the judgment is difficult to execute incorporates by reference the findings of fact and
because of the ambiguity in its terms, it is conclusions of law contained in the decision or
suggested that the remedy to avail of is to have order under review.
the court, which rendered the judgment, remove  The reason for allowing the findings of facts and
the ambiguity by filing of a motion for a conclusions of law to be incorporated by
clarificatory judgment and not to assail the reference is to avoid the cumbersome
judgment as void. reproduction and repetition of the decision of the
lower court in the decision of the higher court.
Resolutions of the Supreme Court  To be valid, however, such decision must not
 Resolutions of the SC denying petitions to review simply incorporate the findings of fact and the
decisions of the CA, are not “decisions” within the conclusions of law of the lower court by
purview of the constitution. reference. It must also provide direct access to
 Accordingly, a petition to review the decision of the facts and the law being adopted, which must
the CA is not a matter of right, but of sound be contained in a statement attached to the
judicial discretion. And so, there is no need to fully decision made an indispensable part of the
explan the court’s denial. decision.
 These are authorized by BP 129 and Rule 51 of
Minute resolutions the Rules of Court. Both provide; “Every decision
 Are likewise not decisions falling within the or final resolution of a court in appealed cases
constitutional requirement. shall clearly and distinctly state the findings of
 When a minute resolution is issued by the facts and the conclusions of law on which it is
Supreme Court denying or dismissing a petition or based, which may be contained in the decision or
a mtion for reconsideration for lack of merit, it is final resolution itself, or adopted by reference
understood that the challenged decision or order, from those set forth in the decision, order, or
resolution appealed from”.
73
 Although a memorandum decision is permitted Extension of period to render a decision
under certain conditions, it cannot merely refer to  May be set by the Supreme Court within which to
the conclusions of law of the lower court. The decide a case upon request by the judge
appellate court must make full findings of fact and concerned on the account of heavy caseload or by
conclusions of law on its own. other reasonable excuse.
 As long as a memorandum decision states the  Without an extension granted by the court, a
nature of the case, summarizes the facts with delay in the disposition of cases is tantamount to
references to the record, and contains a gross inefficiency on the part of the judge.
statement of the applicable laws and
jurisprudence and the tribunal’s assessment and Judgment penned by a judge who did not hear the
conclusions on the case, the constitutional evidence
requirement of a valid judgment will not be  It is not necessary that the judge who heard the
transgressed. evidence be the same judge who shall pen the
decision.
Rendition of judgment  The judge trying the case may die, resign, be
 Is the filing of the same with the clerk of court. disabled, or transferred to another court.
 It is not the pronouncement of the judgment in  In such an eventuality, another judge has to
open court that constitutes the rendition. continue and finish trial.
 Even if the judgment has already been put in  The succeeding judge can examine and evaluate
writing and signed, it is still subject to amendment the evidence already presented by the simple
if it has not yet been filed with the clerk of court. expedient of going over the transcripts of the
testimony of the witnesses in the same manner as
Period within which to render a decision the appellate courts review the evidence on
 Supreme Court- All cases filed must be decided or record.
resolved by the Supreme Court within 24 months
from the date of their submission for decision. Judgment penned by a judge who had ceased to be a
 Lower collegiate courts- unless reduced by the judge
Supreme Court within 12 months.  A decision penned by a judge after his retirement
 Lower courts- 3 months. cannot be validly promulgated and cannot acquire
 A case is deemed submitted for resolution upon a binding effect.
the filing of the last pleading, brief, memorandum  In a like manner, a decision penned by a judge
required by the rules or by the court. during his incumbency cannot be validly
 The ninety-day period for deciding the case promulgated after his retirement.
commences from the submission of the case for  When a judge retires, all his authority to decide
decision without memoranda. In case the court any case also “retired” with him.
requires or allows its filing, the case shall be  Presumption of regularity- The presumption that
considered submitted for decision upon the filing the RTC judge, in resolving the case and drafting
of the last memorandum, or the expiration of the his decision, reviewed, evaluated, and weighed all
period to do so, whichever is earlier. the evidence on record.
 In cases where the court allows the filing of
memoranda, no further orders announcing the Judgment penned by a judge who has transferred
submission of the case for decision is necessary  A judge who was permanently transferred to
before they are deemed submitted for decision. another court of equal jurisdiction before the case
 As a general principle, rules prescribing the time heard by him was decided, may validly prepare
within which certain acts must be done or certain and sign his decision on the said case and send
proceedings taken, are considered absolutely the same to the court where he was originally
indispensable to the prevention of needless assigned.
delays and to orderly and speedy discharge of  The judge who pens the decision of a case heard
official business. By their nature, these rules are by him before he was assigned or transferred to
regarded as mandatory. another district or branch of the court of equal
 The speedy disposition of cases by judges is, in jurisdiction is considered an incumbent judge,
fact, unequivocally directed by Canon 6 of the albeit assigned to a different branch at the time
Code of Judicial Ethics; “He should be prompt in the decision was promulgated.
disposing of all matters submitted to him,
remembering that justice delayed is often justice
denied.”
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Judgments of the Supreme Court it allows a second motion for reconsideration
 The decisions of the Supreme Court form part of contrary to the rule that forbids a second motion
the legal system. filed by the same party or when it allows a party
 Every court must take cognizance of the decisions to file a notice of appeal beyond the period
of the Supreme Court. allowed by the rules.
 Said decisions are proper subjects of mandatory  A ruling of such nature is deemed to be made pro
judicial notice. hac vice, means “One rendered for this one
 It is the duty of the lower courts to obey the particular case.”
decisions of the Supreme Court and render  A ruling expressly qualified as such cannot be
obedience to its status as the apex of hierarchy of relied upon as precedent to govern other cases.
courts.
Obiter dictum
Stare decisis  Is an opinion expressed by a court, which is not
 Civil Code Art.8- Judicial decisions applying or necessary to the decision of the case before it.
interpreting the laws or the constitution shall  It is neither enforceable as a relief nor a source of
form part of the legal system of the Philippines. a judicially actionable claim.
 When the Supreme Court has laid down a  It is a remark made, or opinion expressed by a
principle of law applicable to a certain state of judge in his decision upon a case, that is
facts, it will adhere to that principle and apply it to incidentally or collaterally, and not directly upon
all future cases where the facts are substantially the question before him, or upon a point not
the same. necessarily involved in the determination of the
 Stare decisis et non quieta movere (Let the cause, or introduced by way of illustration, or
decision stand and disturb not what is already analogy or argument.
settled) Holds a point of law, once established by  Such is not binding as a precedent.
the Court, will generally be followed by the same
court and by all courts of lower rank in Final judgment
subsequent cases involving a similar legal issue.  The term “final”, when used to describe a
 Absence of powerful countervailing judgment may be used in two senses:
considerations, like cases ought to be decided o Refers to a judgment that disposes of a
alike. case in a manner that leaves nothing
 Based on the principle that once a question of law more to be done by the court in respect
has been examined and decided, it should be thereto. In this sense, a final judgment is
deemed settled and closed to further argument. distinguished from an interlocutory order
which does not finally terminate or
Stare decisis vs Res judicata dispose of the case.
 The finality of judgment in this
Re judicata sense has the effect of ending
 The focal point of res judicata is the judgment. the litigation and an aggrieved
The principle states that a judgment on the merits party may then appeal from the
in a previous case rendered by a court of judgment.
competent jurisdiction would bind a subsequent o By implication from Sec.1 Rule 39, the
case if, between the first and the second actions, word “final” may refer to a judgment
there exists an identity of the parties of subject that is no longer appealable and is
matter, and of causes of actions. already capable of being executed
Stare Decisis because the period for appeal has
 The focal point of stare decisis is the doctrine elapsed without a party having perfected
created. The principle evokes the general rule an appeal or if there has been an appeal,
that, for the sake of certainty, a conclusion it has already been resolved by a highest
reached in one case should be doctrinally applied possible tribunal. In this sense, the
to those that follow if the facts are substantially judgment is commonly referred to as
the same even though the parties may be “final and executory.”
different.

Rulings pro hac vice


 There are instances when the court suspends the
application of a rule in a particular case, as when
75
Final judgment vs Interlocutory order Exceptions to immutability of judgments
1. The correction of clerical errors.
Final order- One which disposes of the subject matter in its 2. The so-called nunc pro tunc entries which cause
entirety or terminates a particular proceeding or action, no prejudice to any party and void judgments.
leaving nothing else to be done but to enforce by way of 3. Whenever circumstances transpire after the
execution what has been decided by the court. This is finality of the decision rendering its execution
appealable. unjust and inequitable.
4. Cases of special and exceptional nature as when
Interlocutory order- Does not dispose of the case facts and circumstances transpire which render
completely but leaves something to be decided upon by the judgment’s execution impossible or unjust,
the court. Its effects are merely provisional in character when necessary in the interest of justice to direct
and substantial proceedings have to be further conducted its modification to harmonize the disposition with
by the court in order to finally resolve the issue or prevailing circumstances.
controversy. It is not appealable. 5. When there is a strong showing that a grave
injustice would result from the application of the
Doctrine of Immutability of judgment or Conclusiveness rules.
of judgments 6. When there are grounds for annulment of the
 A judgment that has attained finality can no judgment or a petition for relief.
longer be disturbed.
 The doctrine, which is sometimes referred to as Effect of final judgments
“Preclusion of issues” or ”Collateral estoppel”, 1. If the judgment or final order is on a specific thing,
holds that, issues actually and directly resolved in the same is conclusive upon the title to the thing.
a former suit cannot again be raised in any future 2. If the judgment or final order is in respect to the
case between the same parties. probate of a will, or the administration of the
 The right of the winning party to enjoy the finality estate of a deceased person, the same is
of the resolution of the case is also an essential conclusive upon the will or administration, but the
part of public policy and the orderly probate of the will or granting of letters of
administration of justice. administration, shall only be prima facie evidence
of the death of the testator or intestate and not a
Two-fold purpose of the rule of immutability of conclusive presumption of death.
judgments 3. If the judgment or final order is in respect to the
1. To avoid delay in the administration of justice and personal, political, or legal condition or status of a
thus, procedurally, to make orderly the discharge particular person or his relationship to another,
of judicial business. the judgment or final order is conclusive upon the
2. To put an end to judicial controversies, at the risk condition, status, or relationship of the person.
of occasional errors, which is precisely why courts 4. In other cases, if the judgment be with respect to
exist. Controversies cannot drag on indefinitely. the matter directly adjudged or as to any other
The rights and obligations of every litigant must matter that could have been raised in relation
not hang in suspense for an indefinite period of thereto, the judgment or final order is conclusive
time. This doctrine is not merely technicality to be between the parties and their successors in
easily brushed aside, but a matter of public policy interest by title subsequent to the
as well as the time-honored principle of commencement of the action or special
procedural law. proceeding, litigating for the same thing and
under the same title and the same capacity.
Remedies against a final and executory decision 5. In any other litigation between the same parties
 The doctrine of immutability of judgment is or their successors in interest, that only is deemed
subject to an action for annulment and a petition to be adjudged in a former judgment or final
for relief. order which appears upon its face to have been
 A final and executory decision can only be adjudged, or which was actually and necessarily
annulled by a petition to annul judgment on the included therein or necessary thereto.
grounds of: 6. When it is a foreign court or tribunal which
o Extrinsic fraud renders a judgment that has become final, and it
o Lack of jurisdiction has jurisdiction to render such judgment or final
order, the same is conclusive upon the title to the
thing in case of a judgment or final order upon a
specific thing.

76
7. In case of a final judgment against a person, such clearly states the facts and the law on which it is
judgment or final order is presumptive evidence based.
of a right between the parties and their  A judgment dismissing an action for want of
successors in interest by a subsequent title. jurisdiction cannot operate as res judicata on the
8. Foreign arbitral awards may be enforce under RA merits.
9285, or the Alternative Dispute Resolution Act of
2004. The award when confirmed by the RTC shall Doctrine of law of the case
be enforced in the same manner as final and  Law of the case- Defined as the opinion delivered
executory decisions of courts of law of the on a former appeal.
Philippines.  Whatever is once irrevocably established as the
controlling legal rule or decision between the
In either of the above effects, the judgment or final order same parties in the case continues to be the law
may be repelled by evidence of: of the case, whether correct on general principles
1. Want of jurisdiction or not, as long as the facts on which such decision
2. Want of notice to the party was predicated continue to be the facts of the
3. Collusion case before the court.
4. Fraud  This doctrine finds application in cases where an
5. Clear mistake of law or fact. appellate court passes on a question and remands
the case to the lower court for further
The judgment or final order has the effect of res judicata proceedings.
between the parties.  The question there settled becomes the law of the
case upon subsequent appeal. Consequently, the
2 aspects of res judicata court reviewing the succeeding appeal will not
1. Bar by prior judgment (estoppel by relitigate the case,but instead, apply the ruling in
verdict)- The judgment or final order is a the previous appeal.
bar to the prosecution of a subsequent  This does not have the finality of res judicata. It
action based on the same claim or cause applies only to the same case, whereas re judicata
of action. forecloses parties or privies in one case by what
2. Conclusiveness of judgment (Rule of has been done in another case.
auter action pendent)- The judgment or  Law of the case applies only to questions of law.
final order precludes the relitigation of Whereas, res judicata, applies to the conclusive
particular issues or facts on a different determination of issues of fact. It is generally
demand or cause of action,. concerned with the effect of adjudication in a
wholly independent proceeding.
Judgment on the merits  The rationale of this rule is to enable an appellate
 When it amounts to a legal declaration of the court to perform its duties satisfactorily and
respective rights and duties of the parties, based efficiently, which would be impossible if a
upon the disclosed facts. question, once considered and decided by it, were
 Merits, has been, as a matter of substance in law, to be litigated anew in the same case upon any
as distinguished from a matter of form, refers to and every subsequent appeal. Without it, there
the real or substantial grounds of action or would be endless litigation.
defense, as contrasted with some technical or
collateral matter raised in the course of the suit. Several judgment
 There could be a judgment on the merits without  Is one rendered by a court against one or more
a trial. defendants, but not against all, leaving the action
 A ruling based on a motion to dismiss, without to proceed against the others.
any trial or formal presentation of evidence, can  It is proper when the liability of each party is
still be a judgment on the merits. clearly separable and distinct from that of his co-
 Dismissal on the ground of failure to state a cause parties, such that the claims against each of them
of action is still a judgment on the merits and could have been the subject of separate suits and
operates as res judicata on a subsequent case judgment for or against one of them will not be
involving the same parties, subject matter and necessarily affect the other.
cause of action as long as the dismissal ruled on  Example-judgment against joint debtors.
the issues raised.
 What appears to be essential to a judgment on
the merits is that it be a reasoned decision, which

77
Separate judgment concessions, avoid litigation or put an end to one
 This judgment presupposes that there are several already commenced.
claims for relief presented in a single action.  A compromise is perfected by mere consent,
 Example: Counterclaim, cross-claim, third-party manifested by the meeting of the offer and the
complaint. acceptance upon the thing and the cause which
 The court may, after determining the issues constitutes the contract.
relative to the claim and considering other
circumstances, may render separate judgment. Judgment upon a confession (Cognovit actionem)
 The judgment will terminate the action with  This is a judgment rendered by the court when a
respect to that claim and the action shall proceed party expressly agrees to the other party’s claim
as to the remaining claims. or acknowledges the validity of the claim against
it.
Conditional Judgment
 Is one the effectivity of which depends on the Judgment on the pleadings
occurrence or the non-occurrence of an event.  Is appropriate when an answer fails to tender an
Such a judgment is generally void because of the issue or otherwise admits the material
absence of a disposition. allegations of the adverse party’s pleading.
 It will come into operation when an answer is
Judgment sin perjuicio served and filed but the same fails to tender an
 Is traditionally understood to be a brief judgment issue or admits the material allegations of the
containing only the dispositive portion, without adverse party’s pleading.
prejudice to the making of amore extensive  This can only be rendered by the court when
discussion of the findings of fact and law to there is a prior motion to the effect filed by the
support it. This is not actually a final decision, appropriate party.
should be avoided and should not be looked with  Cannot apply to the following cases:
favour. o Actions for declaration of nullity of
 Its current use may also refer to a dismissal of an marriage
action without prejudice to its being refilled on a o Actions for legal separation
later date as in a dismissal. o Actions for annulment of marriage

Judgment nunc pro tunc (Now for then) Summary judgment


 Is one intended to enter into the record acts  “Acclerated judgment”
which had already been done, but which do not  Is proper where, upon a motion filed after the
yet appear in the record. issues had been joined and on the basis of the
 It is a judgment which orders the entry of pleadings and papers filed, the court finds that
something which was actually previously done. there is no genuine issue as to any material fact
 Its purpose is not to supply an omitted action by except as to the amount of damages.
the court but to enter into the record an action  It is not proper where there are factual issues to
previously done but which was not reflected on be resolved by the presentation of evidence.
the record by reason of inadvertence or mistake.  Even if there is a complicated question of law, if
 The power of the court to make such entries is there is no issue as to the facts, a summary
restricted to placing upon the record evidence of judgment is not barred.
judicial action which has been actually taken.  Where only the genuineness and due execution of
the promissory note are the matters deemed
Judgment upon a compromise admitted for the failure of the defendant to deny
 This is a judgment rendered by the court on the the same under oath, summary judgment is not
basis of a compromise agreement entered into proper.
between the parties to an action.  In an action for a sum of money, where the debt
 A compromise has upon the parties the effect of and the fact of its non-payment is admitted, and
res judicata, and under the principle of res the only issue raised is the rate of interest or the
judicata, an issue which had already been laid to damages payable, there is no genuine issue and a
rest by the parties themselves can no longer be summary judgment may be rendered.
relitigated.  Summary judgment is appropriate when there are
 A compromise- Civil Code, is defined as a contract no genuine issues of fact which calls for the
whereby the parties, by making reciprocal presentation of evidence in a full-blown trial.

78
 The defending party or the claimant as the case Executory judgment
may be, must invoke the rule on summary  Upon the expiration of the period to appeal from
judgment by filing a motion. a judgment or order that finally disposes of the
 The adverse party must be notified of the motion action or proceedings if no appeal has been duly
for summary judgment and furnished with perfected.
supporting affidavits, depositions, or admissions,  After an appeal taken from the judgment or order
before hearing is conducted. has been finally resolved.
 When judgment has become executory, execution
Genuine issue- Is an issue of fact which requires the becomes a matter of right on motion of the
presentation of evidence as distinguished from a sham, prevailing party.
fictitious, contrived, or false claim.  Within period of appeal from notice of judgment
or final order- Said judgment or final order is not
Judgment on the pleadings vs Summary judgment yet executory except those judgments which,
under the rules are immediately executory
Judgment on the pleadings
1. There is an absence of a factual issue in the case Post judgment remedies available to the aggrieved party
because the answer tenders no issue at all. 1. Before a judgment has become final and
2. A motion for the judgment on the pleadings is executory.
filed by a claiming party like a plaintiff or 2. After the same becomes executory.
counterclaimant.
3. Is based upon the pleadings alone. I. Before a judgment has become final and executory
4. Only a 3-day notice to the adverse party is 1. Motion for reconsideration.
required prior to the date of the hearing in a 2. Motion for new trial
motion for judgment on the pleadings base on the 3. Appeal
regular rules on motions. II. After judgment has become final and executory
Summary judgment 1. Petition for relief from judgment.
1. It involves an issue, but the issue is not genuine. 2. Action to annul a judgment
The issue is only as to the amount of damages but 3. Certiorari
not as to any material fact. 4. Collateral attack of a judgment.
2. A motion for summary judgment may be filed
either by the claiming party or defending party. Motion for reconsideration
3. A summary judgment is based on the pleadings,  Object of the motion-directed against a judgment
affidavits, depositions, and admissions. or a final order.
4. A 10-day notice to the adverse party is required in
a motion for summary judgment. The adverse When to file motion for reconsideration
party in turn may serve opposing affidavits,  A motion for reconsideration of a judgment or
depositions, or admissions at least 3 days before final order is filed within the period for taking an
the hearing. appeal.
 No motion for extension of time to file a motion
Entry of judgment for reconsideration shall be allowed.
 The entry of judgment refers to the physical act  The period for appeal depends on whether the
performed by the clerk of court in entering the appeal is by mere notice of appeal or by record of
dispositive portion of the judgment in the book of appeal.
entries of judgment after the same has become  Notice of appeal- The period for appeal referred
final and executory. to is 15 days after notice to the appellant of the
 The record shall contain the dispositive portion of judgment or final order appealed from.
the judgment or final order and shall be signed by  Record of appeal- The period is within 30 days
the clerk of court with certificate by said clerk of from notice of the judgment or final order. A
court that the judgment has already become final record on appeal shall be required only in Special
and executory. Proceedings and in other cases of multiple or
The date of the finality of the judgment or final order shall separate appeals.
be deemed to be the date of its entry.  The periods begin to run upon the receipt of
notice of the decision or final order appealed
from. Such periods begin upon receipt of notice
by the counsel of record, which is considered
notice to the parties. Service of judgment on the
79
party represented by counsel is not considered  The new period becomes significant if either a
the official notice and receipt of the judgment. motion for reconsideration or motion for new trial
has been filed but was denied or dismissed.
Effect of filing of a motion on the period to appeal  It applies not only to Rule 41 governing appeals
 The timely filing of a motion for reconsideration from the RTC but also to Rule 40 governing
interrupts the period of appeal. appeals from MTC to the RTC, Rule 42 on petitions
for review from the RTC to the CA, Rule 43 on
Grounds for a motion for reconsideration appeals from quasi-judicial agencies to the CA,
1. The damages awarded are excessive. and Rule 45 appeals by certiorari to the SC.
2. That the evidence is insufficient to justify the  Accordingly, this rule was adopted to standardize
decision or final order. the appeal periods provided in the rules and to
3. That the decision or final order is contrary to law. afford fair opportunity to appeal their cases and
to give the trial court another opportunity to
What to allege in the motion for reconsideration review the case and in the process, minimize any
 It is not sufficient to mention the ground relied error of judgment.
upon.  It is clear from the Neypes that the ruling shall not
 It is necessary for the motion for reconsideration be applied where no motion for reconsideration
to specifically point out the findings or conclusions or new trial has been filed, in which case, the 15-
of the judgment or final order which are not day period for appeal shall run from notice of the
supported by the evidence or which are contrary judgment.
to law, making express reference to the  The fresh period rule does not refer to the period
testimonial or documentary evidence or the within which to appeal from the order denying
provisions of law alleged to be contrary to such the motion for reconsideration or new trial, but to
findings or conclusions. the period within which to appeal from the
 Non-compliance with this requirement would judgment itself because an order denying a
reduce the motion to a mere pro forma motion. motion for reconsideration is not appealable.
 Applies both to civil and criminal cases.
Pro forma motion
 Is one which does not satisfy the requirements of Remedy when the motion is denied
the rules and will be treated as a motion intended  The remedy from an order denying a motion for
to delay the proceedings. reconsideration is not to appeal from the order of
 A pro forma motion for reconsideration shall not denial.
toll the reglementary period of appeal.  The remedy is to appeal from the judgment or
 Examples: final order itself subject of the motion for
o It was a 2nd motion for reconsideration. reconsideration.
o It did not comply with the rule that the  Effective December 27,2007, an order denying a
motion must specify the findings and motion for reconsideration is no longer assailable
conclusions alleged to be contrary to law by certiorari because of the amendment to Rule
or not supported by the evidence. 41 by A.M. No. 07-7-12-SC. Deleted from those
o It failed to substantiate the alleged matters from which no appeal can be taken, and
errors. from which order a Rule 65 petition may be
o It merely alleged that the decision in availed of, is an order denying a motion for new
question was contrary to law. trial or reconsideration. The remedy available,
o The adverse party was not given notice therefore, would be that prescribed under Sec.9
thereof. of rule 37 which is to appeal from the judgment or
final order.
Resolution of the motion
 The motion shall be resolved within 30 days from Effect of granting a motion for reconsideration
the time it is submitted for resolution.  If the court grants the motion, it may amend such
judgment or final order accordingly.
Fresh Period Rule or Neypes Rule  The amended judgment is in the nature of a new
 If the motion is denied, the movant has a fresh judgment which supersedes the original
period of 15 days from receipt or notice of the judgment.
order denying or dismissing the motion for
reconsideration within which to file an appeal.

80
Partial reconsideration Motion for new trial
 If the court finds that a motion affects the issues  A new trial is a remedy that seeks to temper the
of the case as to only a part or less than all of the severity of a judgment or prevent a failure of
matters in controversy, or only one, or less than justice.
all, of the parties to it, the order may grant a  The grant of a new trial is addressed to the sound
reconsideration as to such issues if severable discretion of the court which cannot be interfered
without interfering with the judgment or final with unless a clear abuse thereof is shown.
order upon the rest.
When to file a motion for new trial
Single motion rule  A motion for new trial is filed within the period for
 A party shall not be allowed to file a second taking an appeal.
motion for reconsideration of a judgment or a  No motion for extension of time to file a motion
final order. Sec.5 Rule 37. for new trial shall be allowed.
 The prohibition on a second motion for  Notice of appeal- The period for appeal is 15 days
reconsideration applies only when the motion is after notice to the appellant of the judgment or
directed against a judgment or final order. final order appealed from.
 The rule does not apply to a motion for  Record on appeal- The period for appeal is within
reconsideration of an interlocutory order. 30 days from the notice of the judgment or final
order
Motion for reconsideration in appealed cases
 A party may file a motion for reconsideration of a Form of the motion for new trial
judgment or final resolution within 15 days from  It shall be made in writing, stating the grounds or
notice thereof, with proof of service on the grounds therefor, a written notice of which shall
adverse party. be served by the movant on the adverse party.
 The motion shall be resolved within 90 days from
the date when the court declares it submitted for Grounds for new trial
resolution. 1. Fraud, accident, mistake, or excusable negligence
 The pendency of the motion for reconsideration which ordinary prudence could not have guarded
shall stay the execution of the judgment or final against and, by reason of which, such aggrieved
resolution sought to be reconsidered, provided party has probably been impaired in his rights.
that the motion is filed 2. Newly-discovered evidence, which he could not,
o On time with reasonable diligence have discovered and
o And by the proper party produced at the trial, and which, if presented,
o Unless, the court, for good reasons, would probably alter the result.
otherwise directs.
 The prohibition for a second motion for  A motion for the cause based on fraud, accident,
reconsideration does not apply when the court etc shall be supported by
grants express leave to file a second motion for o affidavits of merit.
reconsideration granted for extraordinary  A motion for the cause based on newly-
reasons. discovered evidence shall be supported by:
 No second motion for reconsideration of a o Affidavits of the witnesses by whom such
judgment or final resolution by the same party evidence is expected to be given.
shall be entertained, contemplates a situation o Or by duly authenticated documents
where a second motion for reconsideration is filed which are proposed to be introduced in
by the same party assailing the same judgment or evidence.
final resolution.  Non-compliance with this requirements would
 A second motion for reconsideration directed reduce the motion to a mere pro forma motion.
against an amended decision that totally reversed  An affidavit of merit should state facts and not
and set aside a previous ruling is not prohibited. mere opinion or conclusions of law.
 In case a party wants to appeal, the period to file
an appeal should be reckoned not from the denial Requisites: Newly discovered evidence
of the motion for reconsideration of the original 1. That the evidence is discovered after trial.
decision, but from the date of petitioner’s receipt 2. That such evidence could not have been
of the notice of denial of the motion for discovered and produced at the trial even with
reconsideration from the amended decision. the exercise of reasonable diligence.

81
3. That it is material, not merely cumulative, motion for new trial on the ground of newly-
corroborative, or impeaching. discovered evidence.
4. The evidence is of such weight that it would
probably change the judgment, if admitted. Period to resolve the motion
5. If the alleged newly-discovered evidence could  The motion shall be resolved within 90 days from
have been very well presented during the trial the date when the court declares it submitted for
with the exercise of reasonable diligence, the resolution.
same could not be considered newly-discovered
evidence. *The procedure in the new trial shall be the same as that
granted by a RTC. The CA may, however, direct otherwise.
*Gross negligence of counsel- Not a ground for new trial. It may therefore adopt its own rules.

Resolution of the motion- The motion shall be resolved Appeal


within 30 days from the time it is submitted for resolution.  The right to appeal is not part of due process but
a mere statutory privilege that has to be exercised
Remedy when the motion for new trial is denied only in the manner and in accordance with the
 The remedy is to appeal from the judgment or provisions of law.
final order.  The general rule: That the remedy to obtain
 Certiorari under Rule 65 not applicable. reversal or modification of judgment on the
merits is appeal. This is true even if the error, or
Effect of granting the motion for new trial one of the errors, ascribed to the court rendering
 The original judgment or final order shall be the judgment is its lack of jurisdiction over the
vacated, and the action shall stand for trial de subject matter, or the exercise of power is in
novo. excess thereof or grave abuse of discretion in the
 The recorded evidence taken upon the former findings of facts or law set out in the decision.
trial shall be used at the new trial without retaking  A party is not allowed to question the decision of
the same if the evidence is material and the court on the merits, and invoke the
competent. extraordinary remedy of certiorari under Rule 65
and an ordinary appeal under Rule 41 at the same
Partial new trial time.
 If the court finds that a motion affects the issues  Perfection of an appeal within the statutory or
of the case as to only a part, or less than all of the reglementary period and in the manner
matters in the controversy, or only one, or less prescribed by law is mandatory and jurisdictional.
than all, of the parties to it, the court may grant a
new trial as to such issues if severable without Judgments or orders that are appealable
interfering with the judgment or final order upon  A judgment or final order that completely
the rest. The effect of this order is a partial new disposes of the case.
trial.  Hence, an interlocutory order is not appealable
 The court may either enter a judgment or final until after the finality of the judgment on the
order as to the rest, or stay the enforcement of merits.
such judgment or final order until after the new  An order denying a motion for new trial or a
trial. motion for reconsideration.
 A dismissal with prejudice, because it is
Second motion for new trial considered an adjudication on the merits.
 While a second motion for reconsideration is not
allowed, a second motion for new trial is Judgments or orders that are not appealable
authorized by the Rules. 1. An order denying a petition for relief or nay
 A motion for new trial shall include all grounds similar motion seeking relief from judgment.
then available. Those not so included are deemed 2. Interlocutory orders
waived. 3. An order disallowing or dismissing an appeal
4. An order denying a motion to set aside judgment
New trial in appealed cases by consent, confession, or compromise on the
 At any time after the appeal from the lower court ground of fraud, mistake, duress or any other
has been perfected and before the CA loses ground vitiating consent.
jurisdiction over the case, a party may file a 5. Order of execution

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6. A judgment or final order for or against one or  Issues raised for the first time on appeal are
more of several parties or in separate claims, barred by estoppel.
counterclaims, cross-claims, and third party
complaints, while the main case is pending, unless When errors not raised on appeal may be considered
the court allows an appeal therefrom. 1. It is an error that affects the jurisdiction over the
7. An order dismissing an action without prejudice. subject matter.
2. It is an error that affects validity of the judgment
Remedy in case the judgment or final order is not appealed from.
appealable 3. It is an error which affects the validity of the
 A.M. NO. 07-7-12-SC- An aggrieved part may no proceedings.
longer assail an order denying a motion for new 4. It is an error closely related to or dependent on an
trial or motion for reconsideration by way of Rule assigned error, and properly argued in the brief.
65, such ground having been removed from the 5. It is a plain and clerical error.
enumeration in Sec.1 Rule 41. The proper remedy 6. Matters not assigned as errors on appeal but
is to appeal from the judgment. consideration of which is necessary in arriving at a
just decision and complete resolution of the case
Remedy against an order of execution to serve the best interests of justice or to avoid
 General rule: Sole remedy against order of dispensing piecemeal justice (Comilang vs
execution is certiorari under Rule 65, no appeal Burcena)
may be taken from an order of execution and a 7. Matters not specifically assigned as errors on
party who challenges such order may file a special appeal but raised on the trial court and are
civil action for certiorari under rule 65. matters of record having some bearing on the
 Exception: Exceptional circumstances, issue submitted which the parties failed to raise or
considerations of justice and equity dictate that which the lower court ignored. (Comilang vs
there be some mode available to the party Burcena)
aggrieved of elevating the question to a higher 8. Matters not assigned as errors on appeal but
court. It may be either by an appeal, certiorari, closely related to an error assigned.
prohibition, mandamus (City Government of 9. Matters not assigned as errors on appeal but
Makati vs Odena) upon which the determination of a question
properly assigned, is dependent. (Comilang vs
Issues that may be raised on appeal Burcena)
 It is already well-settled in this jurisdiction that a 10. Appeals in criminal cases- Opens the entire case
party may not change his theory of the case on for review. The court can correct errors
appeal. (Sec.15 Rule 44) unassigned in the appeal.
 A party cannot change the legal theory of this case
under which the controversy was heard and Role of the appellee
decided in the trial court.  The appellee’s role in the appeal process is
 It should be the same theory under which the confined only to the task of refuting the assigned
review on appeal is conducted. errors interposed by the appellant.
 Points of law, theories, issues, arguments not  Since the appellee is not the party who instituted
adequately brought to the attention of the lower the appeal, the court explained that he merely
court will not be ordinarily reviewed by the assumes a defensive stance and his interest is
reviewing court, inasmuch as they cannot be solely relegated to the affirmance of the judgment
raised for the first time on appeal. This will be appealed from.
offensive to the basic rules of fair play, justice,  It is highly erroneous for the appellee to either
and due process. assign any error or seek any affirmative relief or
 Defenses not pleaded in the answer may not be modification of the lower court’s judgment
raised for the first time on appeal. without interposing his own appeal.
 It would be unfair to the adverse party who would
have no opportunity to present evidence in contra Notice of appeal
to the new theory which it could have done had it  An appeal is made by filing a notice of appeal with
been aware of it at the time of the hearing before the court which rendered the judgment or final
the trial court. order appealed from and serving a copy thereof
 The appellate court shall consider no error unless upon the adverse party.
stated in the assignment of errors.

83
Record on appeal comply with orders, circulars, or directives of the
 No record on appeal shall be required except in court without justifiable cause.
special proceedings and other cases of multiple or 9. The fact that the order or judgment appealed
separate appeals where the law or the Rules of from is not appealable.
Court so require.
 In cases of multiple appeals are allowed, a party Diaz vs People
may appeal only a particular incident in the case  The dismissal of the appeal upon failure to file the
and not all of the matters involved in the same appellant’s brief is not mandatory, but
case. discretionary.
 The others which are not made subject of the  The failure to serve and file the required number
appeal remain to be resolved by the trial court. of copies of the appellant’s brief within the time
 The record on appeal is requires so that the provided by the Rules of Court does not have the
appellate court may have a record of the immediate effect of causing the outright dismissal
proceedings to resolve a separate and distinct of the appeal.
issue raised on appeal, and since the original  This means that the discretion to dismiss the
records remain with the trial court, it still can appeal on that basis is lodged in the CA, by virtue
resolve the other issues of the case not made of which the CA may still allow the appeal to
subject of the appeal. proceed despite the late filing of the appellant’s
 Multiple appeals are allowed in special brief, when the circumstances so warrant its
proceedings, actions for recovery of property with liberality.
accounting, actions for partition of property with
accounting, and special civil actions of eminent Grounds for dismissal of an appeal in the Supreme Court
domain and foreclosure of mortgage. Sec 5, Rule 56
 The rationale behind allowing more than one 1. Failure to take the appeal within the reglementary
appeal in the same case is to enable the rest of period.
the case to proceed in the event that a separate 2. Lack of merit in the petition.
and distinct issue is resolved by the court and held 3. Failure to pay the requisite docket fee and other
to be final. lawful fees or to make a deposit for costs.
4. Failure to comply with the requirements regarding
Grounds for dismissal of an appeal (Sec.1 Rule 50) proof of service and contents of and the
1. Failure of the record on appeal to show on its face documents which should accompany the petition.
that the appeal was taken within the period fixed 5. Failure to comply with any circular, directive or
by the rules. order of the Supreme Court without justifiable
2. Failure to file the notice of appeal or the record cause.
on appeal within the period prescribed by the 6. Error in the choice or mode of appeal.
rules. 7. The fact that the case is not appealable to the
3. Failure of the appellant to pay the docket and Supreme Court.
other lawful fees as provided in Sec.5 Rule 40 and
Sec.4 of Rule 41. Effects of non-filing of appellant’s brief with the CA
4. Unauthorized alterations, omissions, or additions (The Government of the Kingdom of Belgium vs CA)
in the approved record on appeal as provided in 1. The general rule is for the Court of Appeals to
Sec.4 Rule 41. dismiss an appeal when no appellant’s brief is
5. Failure of the appellant to serve and file the filed within the reglementary period prescribed by
required number of copies of his brief or the rules.
memorandum within the time provided by the 2. The power conferred to the CA is discretionary
rules. and directory and not ministerial or mandatory.
6. Absence of specific assignment of errors in the 3. The failure of an appellant to file his brief within
appellant’s brief, or of page references to the the reglementary period does not have the effect
record as required in Sec.13 paragraphs a,c,d, and of causing the automatic dismissal of the appeal.
f of Rule 44. 4. In case of late filing, the appellate court has the
7. Failure of the appellant to take the necessary power to still allow the appeal, however, for the
steps for the correction or completion of the proper exercise of the court’s leniency it is
record within the time limited by the court in its imperative that:
order. a. The circumstances obtaining warrant the
8. Failure of the appellant to appear at the court’s liberality.
preliminary conference under Rule 48 or to

84
b. That strong considerations of equity  A party’s appeal by notice of appeal is deemed
justify an exception to the procedural perfected as to him upon the filing of the notice of
rule in the interest of substantial justice. the appeal in due time.
c. No material injury has been suffered by  A party’s appeal by record on appeal is deemed
the appellee in the delay. perfected as to him with respect to the subject
d. There is no contention that the matter thereof upon the approval of the record
appellees' cause was prejudiced. on appeal filed in due time.
e. At least there is no motion to dismiss  The notice of appeal does not require approval of
filed. the court. The function of the notice of appeal is
5. In case of delay, the lapse must be for a merely to notify the trial court that the appellant
reasonable period. was availing of the right to appeal, and not to seek
6. Inadvertence of the counsel cannot be considered the court’s permission that he be allowed to pose
as an adequate excuse as to call for the appellate an appeal.
court’s indulgence except:  The trial court’s only duty with respect to a timely
a. Where the reckless or gross negligence of notice of appeal is to transmit the original record
counsel deprives the client of due of the case to the appellate court.
process of law.  Upon receipt of the complete record or the record
b. When application of the rule will result in on appeal, the clerk of court of the RTC shall
outright deprivation of the client’s liberty notify the parties of such fact.
or property.
c. Where the interests of justice so require. Submission of memorandum
 Within 15 days from such notice, it shall be the
Appeal from the Municipal Trial Court to the Regional duty of the appellant to submit a memorandum.
Trial Courts (Rule 40) Copy of which shall be furnished to the appellee.
 An appeal from a judgment or final order of a  For the appellant, the filing of a memorandum is
Municipal Trial Court may be taken to the vital to his appeal. The memorandum shall briefly
Regional Trial Court exercising jurisdiction over discuss the errors imputed to the lower court.
the area to which the former pertains.  The appellee may, if he so desires, file his
 An appeal may be taken within 15 days after memorandum within 15 days from receipt of the
notice to the appellant of the judgment or final appellant’s memorandum.
order appealed from.
 Where a record on appeal is required, the When the case is deemed submitted for decision
appellant shall file a notice of appeal and a record  The case shall be considered submitted for
of appeal within 30 days after notice of the decision upon the filing of the memorandum of
judgment or final order. the appellee or the expiration of the period to do
 The notice of appeal shall: so.
o Indicate the parties to the appeal.
o The judgment or final order or part Basis of the decision
thereof appealed from.  The RTC shall decide the case on the basis of the
o State the material dates showing the entire record of the proceedings had in the court
timeliness of the appeal. of origin and such memoranda as are filed.
 Within the period for taking an appeal, the
appellant shall pay to the clerk of court which Appeal from an order dismissing a case for lack of
rendered judgment or final order appealed from jurisdiction
the full amount of the appellate court docket and  If the dismissal in the MTC is made on the ground
other lawful fees. Proof of payment thereof shall of lack of jurisdiction over the subject matter, and
be transmitted to the appellate court together the RTC on appeal, affirms the dismissal, the
with the original record or record on appeal as the action of the latter court, if it has jurisdiction, shall
case may be. not be confined to a mere affirmation of the
 Within 15 days from the perfection of the appeal, dismissal if it has jurisdiction over the subject
the clerk of court of the lower court shall transmit matter. Instead, the rule requires the RTC to try
the original record or the record on appeal, the case on the merits as if the case was originally
together with transcripts and exhibits, which he filed with it.
shall certify as complete to the regional trial court.  When a case is dismissed pursuant to a motion to
dismiss or motu propio for lack of jurisdiction, the
order of dismissal is one without prejudice
85
because the plaintiff may refile the complaint with When to appeal
the court with the proper jurisdiction.  The appeal shall be taken within 15 days from the
 The order dismissing an action without prejudice notice of the judgment or final order appealed
is not appealable. The tenor, however, of Sec.8 from.
Rule 40 on the other hand, indicates that the rule  Where a record on appeal is required, the
allows an appeal from a order of the MTC appellant shall file a notice of appeal and a record
dismissing a case for lack of jurisdiction. Sec.8 on appeal within 30 days from the notice of
Rule 40 should be considered as an exception to judgment or final order.
Sec.1 of Rule 41 which precludes an appeal from  Habeas corpus cases- The appeal shall be taken
an order dismissing an action without prejudice. within 48 hours from notice of judgment or final
order.
Appeal from the Regional Trial Court to the Court of
Appeals (Rule 41) How to appeal
 Filing of notice of appeal with the court which
3 modes of appeal from the decision of the RTC rendered the judgment or final order appealed
1. Ordinary appeal or Appeal by writ of error- from.
Where the judgment was rendered by the court in  By serving a copy thereof upon the adverse party.
the exercise of its original jurisdiction. Governed  Within the period for taking an appeal, the
by Rule 41 and is taken to the CA on questions of appellant shall pay to the clerk of court, which
fact or mixed questions of fact and law. rendered the judgment of final order appealed
2. Petition for review- Where judgment was from, the full amount of the appellate court
rendered by the court in the exercise of its docket fee.
appellate jurisdiction. Governed by Rule 42 and is  Within 30 days after perfection of all the appeals,
taken to the CA on questions of fact or mixed the clerk of court shall verify the correctness and
questions of fact and law. completeness of the records and, if incomplete, to
3. Petition for Review on Certiorari or Appeal by take such measures to complete such records,
certiorari to the Supreme Court- This mode is certify to the correctness of the records, transmit
brought to the Supreme Court from the decision the same to the appellate court, and to furnish
of the RTC in the exercise of its original the parties with copies of his letter of transmittal
jurisdiction and only on questions of law. of the records to the appellate court.
 Upon receiving the original record on appeal and
2 Modes of appeal from the RTC to the CA the accompanying documents transmitted by the
1. By writ of error (ordinary appeal)- Where the lower court, as well as the proof of payment of
appealed judgment was rendered in a civil or the docket and other lawful fees, the clerk of
criminal action by the RTC in the exercise of its court of the CA shall docket the case and notify
original jurisdiction. the parties.
2. Petition for review- Where the judgment was  Within 45 days from the receipt of the notice of
rendered by the RTC in the exercise of its the clerk of court, the appellant shall file a brief
appellate jurisdiction. with proof of service upon the appellee.
 Within 45 days from the receipt of the appellant’s
An appeal under Rule 41 taken from the RTC to the CA brief, the appellee shall file his own brief with
raising only questions of law shall be dismissed, issues proof of service to the appellant.
purely of law not being reviewable by said court.
 Within 20 days from the receipt of the appellee’s
brief, the appellant may file a reply brief
Similarly, an appeal by notice of appeal, instead of by
answering points in the appellee’s brief not
petition for review from the appellate judgment of a RTC
covered in his main brief.
shall be dismissed.
 Extension of time for the filing of the briefs will
not be allowed, except for good and sufficient
Rule 41- Ordinary Appeal- Applies to appeals from the
cause and only if the motion for extension is filed
judgment or final order of the RTC In the exercise of its
before the expiration of the time sought to be
original jurisdiction
extended.
 In petitions for certiorari, prohibition, mandamus,
Rule 42- Petition for review- Applies to appeals from the
quo warranto and habeas corpus cases, briefs are
judgment or final order of the RTC in the exercise of its
not filed, instead, the parties shall file their
appellate jurisdiction.
respective memoranda within a non-extendible
period of 30 days from receipt of the notice issued
86
by the clerk that all evidences are already How to appeal under Rule 42
attached to the record.  The appeal is made by filing a verified petition for
review with the court of appeals.
Questions that may be raised on appeal  Paying at the same time to the clerk of court the
 While Rule 44 provides that the appellant may corresponding docket and other lawful fees,
include in his assignment of errors any question of depositing the amount of 500 for costs and
law or fact that has been raised in the court below furnishing the RTC and the adverse party with a
and is within the issues framed by the parties. copy of the petition.
 Issues raising only questions of law shall be  The appeal is perfected as to the petitioner upon
dismissed, issues purely of law not being the timely filing of a petition for review and the
reviewable by the court. payment of the corresponding docket and other
lawful fees.
Residual jurisdiction  The petition shall be filed in the proper form
 The term refers to the authority of a trial court to required in Sec.2 of Rule 42:
issue orders for the protection and preservation o Stating among others, a concise
of the rights of the parties, which do not involve statement of the matters involved, the
any matter litigated by the appeal, approve issues raised, the specification of errors
compromises, permit appeals of indigent litigants, of law or fact, or both, allegedly
order execution pending appeal in accordance committed by the trial court and the
with Sec. 2 Rule 39 and allow withdrawal of the reasons or arguments relied upon for the
appeal provided these are done prior to the allowance of an appeal.
transmittal of the original record or the record on o The petitioner shall , likewise, indicate
appeal, even if the appeals have already been the specific material dates showing that
perfected or despite the approval of the record on the petition was filed on time.
appeal, or in case of a petition for review under o The requirement to indicate the relevant
Rule 42 before the CA gives due course to the dates is commonly called the Material
petition. Data Rule and applies also to Rule 42 not
 The concept of residual jurisdiction of the trial only to a petition for certiorari under
court is available at a stage in which the court is Rule 65.
normally deemed to have lost jurisdiction over the o This petition also requires a certification
case or the subject matter involved in the appeal. against forum shopping.
 There is not residual jurisdiction to speak of  The failure to comply with any of the
where no appeal or petition has even been filed. requirements in Sec.2 Rule 42 regarding the
payment of docket fees and other lawful fees,
Petition for Review from the Regional Trial Courts to the deposit for costs, proof of service of the petition
Court of Appeal Rule 42 and the contents of and the documents which
 Rule 42 applies to an appeal from the judgment or should accompany the petition shall be sufficient
final order of the RTC to the CA in cases decided ground for the dismissal of the petition.
by the former in the exercise of its appellate  The CA may dismiss the petition if it finds the
jurisdiction. same to be patently without merit, prosecuted
 The appeal shall be made within 15 days from the merely for delay, or that the questions raised are
notice of the decision sought to be reviewed or of too unsubstantial to require consideration.
the denial of the petitioner’s motion for new trial  If the court does not dismiss the petition, it may
or reconsideration filed in due time after require the respondent to file a comment on the
judgment. petition within 10 days from notice. The
 The court may grant an additional period of 15 respondent shall file a comment not a motion to
days only provided the extension is sought: dismiss.
o Upon proper motion.  If the CA finds prima facie that the lower court has
o Payment of the full amount of the docket committed an error of fact or law that will
and other lawful fees and the deposit for warrant a reversal or modification of the appealed
costs before the expiration of the decision, it may, accordingly, give due course to
reglementary period. the petition.
 No further extension shall be granted except for  If the petition is given due course, the CA may set
the most compelling reason and in no case to the case for oral argument or require the parties
exceed 15 days. to submit memoranda within a period of 15 days
from notice. The case shall be deemed submitted
87
for decision upon the filing of the last pleading or appeal under Rule 45 only questions of
memorandum required. law may be raised, here the question
raised need not only be questions of law
Residual jurisdiction in Rule 42 but also questions of fact or of both law
 The Doctrine of Residual Jurisdiction applies to and fact.
Rule 42. 6. Appeals from a judgment or final order in
 The RTC loses jurisdiction over the case upon the a petition for a writ of habeas data. The
perfection of the appeals filed in due time and the appeal may raise questions of fact or law
expiration of the time to appeal of other parties. or both.
 However, the RTC, despite perfection of the  The mode of appeal prescribed under Rule 45
appeals, may still issue orders for the protection shall be applicable to both civil and criminal cases,
and preservation of the rights of the parties which except in criminal cases where the penalty
do not involve any matter litigated by the appeal. imposed is death, reclusion perpetua or life
 The residual jurisdiction of the RTC may be imprisonment.
exercised prior to the transmittal of the original
record or the record on appeal. Provisional remedies
 A petition for review on certiorari under Rule 45
Stay of judgment may include an application for a writ of
 Except in civil cases decided under the Rules on preliminary injunction or other provisional
Summary Procedure, the appeal, as a rule, shall remedies.
stay the judgment or final order unless the CA, the
 The petitioner may seek the same provisional
law or the rules shall provide otherwise.
remedies by verified motion filed in the same
Appeal by Certiorari to the Supreme Court (Rule 45) action or proceeding at any time during its
 Appeal by certiorari to the SC commonly known as pendency.
petition for review on certiorari applies in the ff
cases: Special and important reasons which the court may
1. Appeal from a judgment or final order of consider in allowing the petition
the RTC in cases where only questions of 1. When the court below has decided a question of
law are raised or are involved and the substance not yet determined by the Supreme
case is one decided by said court in the Court.
exercise of its original jurisdiction. This 2. When the court below decided a question of
rule applies only when the decision of substance in a way that is probably not in accord
the RTC is in the exercise of its original with law or the applicable decisions of the
jurisdiction. Because when the decision is Supreme Court.
rendered by the RTC is the exercise of its 3. When the court below has departed from the
appellate jurisdiction, regardless of accepted and usual course of judicial proceedings
whether the appellant raises questions of or so far sanctioned such departure by a lower
fact, questions of law, or mixed questions court, as to call for the exercise of the power of
of facts and law, the appeal shall be supervision of the Supreme Court.
brought to the CA by filing a petition for 4. Every appeal to the Supreme Court is not a matter
review under Rule 42 and even if only a of right, but of sound judicial discretion with the
question of law is raised. exception of cases where the death penalty or
2. Appeal from the judgment, final order, or reclusion perpetua is imposed.
resolutions of the CA where the petition
shall raise only questions of law distinctly Questions of law
set forth.  Arises when there is doubt as to what the law is
3. Appeal from the judgment, final order, or on a certain state of facts, while there is a
resolutions of the Sandiganbayan where question of fact when the doubt arises as to the
the petition shall raise only questions of truth or falsity of the alleged facts.
law distinctly set forth.  For a question to be one of law, the same must
4. Appeal from the decision or ruling of the not involve an examination of the probative value
Court of Tax Appeals En Banc. of the evidence presented by the litigants or any
5. Appeals from the judgment or final order of them. The resolution of the issue must rely
in a petition for a writ of amparo to the solely on what the law provides on the given set
Supreme Court. While in other cases of of circumstances. Once it is clear that the issue

88
invites a review of the evidence presented, the When questions of fact may be passed upon in a Rule 45
question is one of fact. petition in the Supreme Court:
 Sec. 1 Rule 45, the petition shall raise only 1. The conclusion of the CA is grounded entirely on
questions of law, which must distinctly set forth. speculations, surmises, and conjectures.
 As a general rule: A petition for review on 2. The inference made is manifestly mistaken,
certiorari filed with the court under Rule 45 shall absurd, or impossible.
raise only questions of law and the court is not 3. There is grave abuse of discretion.
duty-bound to analyse again and weigh the 4. The judgment is based on misapprehension of
evidence introduced in and considered by the facts.
tribunals below. 5. The findings of facts are conflicting.
 Test of whether the question is one of law or of 6. The CA, in making its findings, went beyond the
fact: Whether the appellate court can determine issues of the case and the same is contrary to the
the issue raised without reviewing or evaluating admissions of both appellant or appellee.
the evidence, in which case, it is a question of law, 7. The findings of fact of the CA are contrary to
otherwise it is a question of fact. those of the trial court.
8. The findings of fact are conclusions without
Factual-issue-bar rule citation of specific evidence on which they are
 In the exercise of its power of review, the based.
Supreme Court is not a trier of facts and, unless 9. The facts set forth in the petition, as well as in the
there are excepting circumstances, it does not petitioner’s main and reply briefs are not disputed
routinely undertake the re-examination of the by the respondents.
evidence presented by the contending parties 10. The findings of the CA are premised on the
during the trial of the case. supposed absence of evidence and contradicted
 The jurisdiction of the SC in cases brought before by the evidence on record.
it from the CA is limited to reviewing and revising
the errors of law imputed to it, its findings of fact Appeals from a judgment in a petition for a writ of
being conclusive. amparo or habeas data, writ of kalikasan
 Findings of fact of the CA when supported by  Any party in a petition for a writ of amparo may
substantial evidence, are conclusive and binding appeal from the final order or judgment of the
on the parties and are not reviewable by the court to the Supreme Court under Rule 45
Court.  Although rule 45 mandates raising only questions
 The court, likewise, has the policy of respecting of law, an appeal from a judgment in a petition for
the findings of facts of specialized administrative writ of amparo,habeas data, kalikasan by way of
agencies exception to the general rule, may raise not only
 The Court is generally precluded from resolving a questions of law but also questions of fact.
Rule 45 petition that solely raises the issue of
damages, an essentially factual question. Certiorari under rule 45 vs Certiorari under Rule 65

Review is only of the errors of the appellate court Rule 45


 Where a case was appealed to the CA, the 1. It is a mode of appeal.
decision of which was subsequently appealed to 2. Is a continuation of the appellate process over the
the SC, it is only the errors of the CA which is original case.
reviewed by the SC in a petition for review on 3. It seeks to review final judgment or final orders.
certiorari, and not those of the trial court, quasi- 4. Raises questions of law.
judicial agency, tribunal or officer which rendered 5. An appeal by certiorari under Rule 45 shall be filed
the decision in the first instance. within 15 days from the notice of judgment, final
order, or resolution appealed from.
Referral to the CA 6. It does not require a prior motion for
 The court, instead of denying the appeal may reconsideration.
refer the appeal to the CA. 7. Stays the judgment appealed from.
 An appeal by certiorari taken to the SC from the 8. The parties are original parties with the appealing
RTC submitting issues of fact may be referred to party as the petitioner and the adverse party as
the CA for decision or appropriate action. respondent without impleading the lower court or
its judge.
9. Certiorari as an appeal is filed only with the SC.

89
Rule 65  Or within 15 days from the notice of the denial of
10. Is a special civil action that is an original action the petitioner’s motion for new trial or motion for
and not a mode of appeal. reconsideration filed in due time.
11. It is not part of the appellate process but an  The SC for justifiable reasons, may grant an
independent action. extension of 30 days only within which to file the
12. May be directed against an interlocutory order or petition provided:
matters where no appeal may be taken from. o There is a motion for extension of time
13. Raises questions of jurisdiction. duly filed and served.
14. A petition for certiorari shall be filed not later o There is full payment of the docket and
than 60 days from notice of judgment, order, or other lawful fees and deposit for costs.
resolution sought to be assailed. In case a motion o The motion is filed and served and the
for reconsideration or new trial is timely filed, payment is made before the expiration of
whether such motion is required or not, the 60- the reglementary period.
day period shall be counted from notice of denial
of said motion. Form of the petition:
15. A prior motion for reconsideration is required.  The petition shall contain all the matters
16. It does not stay the judgment or order subject of mentioned in sec.4 of rule 45 including
the petition unless enjoined or restrained. compliance with the Material Data Rule which
17. The tribunal, board, officer exercising judicial or requires the petitioner to indicate the material
quasi-judicial functions is impleaded as dates showing when notice of the judgment
respondent. subject of the petition was received and when a
18. Certiorari as a special civil action, may be filed motion for new trial or reconsideration, if any,
with the RTC, CA, or the SC. was filed and when notice of the denial thereof
was received.
General rule: A party cannot simultaneously file a petition
both under Rules 45 and 65 of the Rules of Court because  Among others, the petition must be verified and
said procedural rules pertain to different remedies and also accompanied by a certification against forum
have distinct applications. They are mutually exclusive and shopping.
not alternative or cumulative.
The SC may, on its own initiative, deny the petition on the
When a party adopts an improper remedy, his petition may ground that:
be dismissed outright. 1. The appeal is without merit.
2. Is prosecuted merely for delay.
Exception: The court may set aside technicality for 3. That the questions raised therein are too
justifiable reasons as when the petition before the court is unsubstantial to require consideration.
clearly meritorious and filed on time both under Rule 45
and 65. In accordance with the liberal spirit and in the For purposes of determining whether the petition should
interest of justice, the court may treat the petition as be denied or given due course, the SC may require the
having been filed under Rule 45. filing of such pleadings, briefs, memoranda, or the
submission of documents as it may deem necessary.
When a Rule 65 petition is treated as a Rule 45 petition
1. When the petition has been filed within the 15 If the petition is given due course, the SC may require the
day reglementary period. elevation of the complete record of the case or specified
2. Public welfare and the advancement of public parts thereof within 15 days from notice.
policy dictate such treatment.
3. The broader interests of justice require such
treatment. Appeals from quasi-judicial bodies (Rule 43)
4. The writs issued were null and void.  The appeal under Rule 43 may be taken to the
5. The questioned decision or order amounts to an Court of Appeals whether the appeal involves a
oppressive exercise of judicial authority. question of fact, law or both.
 The appeal under Rule 43 may be taken to the CA
When to appeal by filing a verified petition for review with the CA.
 The appeal which shall be in the form of a verified  The appeal shay not stay the award, judgment,
petition, shall be filed within 15 days from the final order, or resolution sought to be reviewed
notice of the judgment, final order, resolution unless the CA shall direct otherwise upon such
appealed from. terms as it may deem.
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Review of decisions of the NLRC  The decision of the Ombudsman is immediately
 The remedy of a party aggrieved by the decision executory and may not be stayed by the filing of
of the NLRC is to promptly move for the an appeal or the issuance of an injunctive writ.
reconsideration of the decision and, if denied, to
timely file a special civil action for certiorari under Appeals from judgments of the Court of Tax Appeals
Rule 65 within 60 days from the notice of the  A party adversely affected by a decision or ruling
decision. of the CTA en banc may file with the SC a verified
 In observance of the doctrine of the hierarchy of petition for review on certiorari pursuant to Rule
courts, the petition for certiorari should be filed 45.
with the Court of Appeals.  A party adversely affected by a resolution of a
 From the CA, the remedy of the aggrieved party is division of the CTA on a motion for
an appeal via petition for review in certiorari to reconsideration or new trial may file a petition for
the SC. review with the CTA en banc.
 A.M. No. 99-2-01-SC February, 9,1999- All special
civil actions arising out of any decision, final Review of judgments of the COMELEC
resolution, or order of the NLRC filed with the SC  A judgment, resolution, or final order of the
after June 1 ,1999 shall no longer be referred to COMELEC may be brought by the aggrieved party
the CA but shall forthwith be dismissed. to the Supreme Court on certiorari under Rule 45
by filing the petition within 30 days from notice.
Appeals from the Sandiganbayan  The review by the SC is limited only to the
 Decisions and final orders of the Sandiganbayan jurisdictional issue of whether the COMELEC acted
shall be appealable to the Supreme Court by way without or in excess of its jurisdiction or with
of certiorari under rule 45 raising pure questions grave abuse of discretion amounting to lack or
of law. excess of jurisdiction.
 Findings of the COMELEC supported by substantial
Review of rulings of the Ombudsman evidence, shall be final and non-reviewable.
 In administrative disciplinary cases, the rulings of  Only in exceptional cases, however, when the
the office of the Ombudsman are appealable to action of the COMELEC on the appreciation and
the Court of Appeals- Rule 43. evaluation of evidence oversteps the limits of its
 However, it cannot therefore, review the orders discretion to the point of being grossly
of the Office of the Ombudsman in criminal or unreasonable, the court is not only obliged but
non-administrative cases. If tainted with grave has the constitutional duty to intervene.
abuse of discretion- Rule 65 with the SC. If in
criminal cases, there is lack of probable cause the Review of judgments of the Commission on Audit
remedy is also Rule 65 with the SC.  A judgment, resolution, or final order of the COA
 Remedy of an aggrieved party in criminal may be brought by the aggrieved party to the
complaints before the Ombudsman is to file with Supreme Court on certiorari under Rule 65 by
the Supreme Court a petition for certiorari under filing the petition within 30 days from notice.
Rule 65. The SC’s power of review is restricted
only to determining whether grave abuse of Appeals from judgments of the Civil Service Commission
discretion has been committed by it. The court is  A judgment, final order or resolution of the CSC
not authorized to correct every error or mistake may be taken to the CA under Rule 43.
the Office of the Ombudsman other than grave  The appeal shall be taken within 15 days from
abuse of discretion. notice.
 But the appeals from the Ombudsman in
administrative cases are now cognizable by the Appeals from judgments of the Office of the President
CA, nevertheless.  The judgments, resolutions, or final orders of the
 in cases in which it is alleged that the office of the president may be taken to the Court
Ombudsman has acted with grave abuse of of Appeals under Rule 43.
discretion amounting to lack or excess of
jurisdiction, a special civil action for certiorari Review of the resolution of the Secretary of Justice
under Rule 65 may be filed with the Supreme  The CA is clothed with jurisdiction to review the
Court to set aside the Ombudsman order or resolution issued by the Secretary of the DOJ
resolution. through a petition for certiorari under Rule 65
solely on the ground of grave abuse of discretion.

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Remedies after a judgment has become final and When to file
executory  The petition shall be filed within 60 days after the
1. Petition for relief from judgment (Rule 38) petitioner learns of the judgment, final order, or
2. Petition for annulment of a judgment (Rule 47) proceeding and not more than 6 months after
3. Direct action for certiorari under rule 65. such judgment or final order was entered or such
4. Collateral attack of a judgment that is void on its proceeding was taken. (60 days-6 months)
face.
Form of petition
Petition for relief from judgment  The petition must be verified and accompanied
 It is a legal remedy whereby a party seeks to set with affidavits showing fraud, mistake, accident,
aside a judgment rendered against him by a court or excusable negligence relied upon and the facts
whenever he was unjustly deprived of a hearing constituting the petitioner’s good and substantial
or was prevented from taking an appeal because cause of action or defense, as the case may be.
of fraud, accident, mistake, or excusable neglect.
 Is an equitable remedy that is allowed only in Order to answer
exceptional cases when there is no other available  If the petition is sufficient in form and substance
or adequate remedy. to justify relief, the court, in which it is filed, shall
 Also, a party who has filed a motion for new trial, issue an order requiring the adverse parties to
but which was denied, cannot file a petition for answer the same within 15 days from the receipt
relief. These two remedies are said to be exclusive thereof.
of each other. It is when a party aggrieved by a
judgment has not been able to file a motion for Hearing of the petition
new trial that a petition for relief can be filed.  After the filing of the answer or the expiration of
the period to file the answer, the court shall hear
Grounds for a petition for relief the petition.
1. When a judgment or final order is entered, or any
other proceeding is thereafter taken against the Action of the court
petitioner in any court through fraud, accident, or  After the hearing and the court finds that the
excusable negligence. allegations therein are not true, it shall dismiss
2. When the petitioner has been prevented from the petition.
taking an appeal by fraud, mistake, accident, or  If the court finds the allegations to be true, it shall
excusable negligence. set aside the judgment, final order or proceeding
complained of. The case then, shall stand as if
such judgment, final order, or proceeding had
In no. 1- The petition shall be filed with such court and in never been rendered, issued, or taken.
the same case. The petition shall pray that the judgment,  The court shall then proceed to hear and
order, or proceeding be set aside. determine the case as if a timely motion for a new
trial or reconsideration had been granted by it.
In no.2- The petition shall, likewise, be filed with such court  Where the prayer of the petitioner is to give due
and in the same case but the prayer this time is that the course to his appeal because he was prevented
appeal be given due course. from taking an appeal through fraud, accident,
mistake, or excusable negligence, and the court
Extrinsic Fraud finds the allegations of the petition to be true, the
 The fraud that is a ground for the filing of a court shall set aside the previous denial of the
petition for relief is extrinsic fraud. appeal and shall give due course to the said
 That fraud which the prevailing party caused to appeal. It shall then elevate the records of the
prevent the losing party from being heard on his appealed case as if a timely and proper appeal
action or defense. had been made.
 Such fraud concerns not the judgment itself but
the manner in which it was obtained. Preliminary injunction pending petition for relief.
 The court, may grant a preliminary injunction to
The petition is available only to the parties. preserve the rights of the parties upon the filing of
a bond in favour of the adverse party
The petition for relief is also available to a proceeding
taken after the entry of judgment or final order such as an
order of execution.

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No petition for relief in the following: Intrinsic fraud
 A petition for relief is not available to the CA and  Forgery or perjury- The use of forged
SC instruments or perjured testimonies during
 Rules on Summary Procedure trial is not an extrinsic fraud. Such evidence
 Small Claims cases does not preclude a party’s participation in
the trial.
Environmental cases- A petition for relief from judgment
shall be allowed in highly meritorious cases or to prevent a  Offering manufactured evidence is intrinsic
manifest miscarriage of justice. and not extrinsic fraud. Intrinsic fraud is not
sufficient to annul a judgment.
Annulment of judgments, final orders, or resolutions
(Rule 47) Lack of jurisdiction
 An action for annulment of judgment is a remedy  Over the subject matter or over the person of the
in law independent of the case where the defending party.
judgment sought to be annulled was rendered.  The petitioner must show not a mere grave abuse
 The purpose of such action is to have the final and of discretion but an absolute lack of jurisdiction.
executory judgment set aside so that there will be  The concept of lack of jurisdiction, as a ground to
a renewal of litigation. annul a judgment, does not embrace abuse of
 It is resorted to in cases where the ordinary discretion. A claim for grave abuse of discretion
remedies of new trial, appeal, petition for relief will support a certiorari under Rule 65.
from judgment or other appropriate remedies are
no longer available through no fault of the Period of filing the action
petitioner.  If based on extrinsic fraud- The action must be
 The remedy may not be invoked where the party filed within 4 years from its discovery.
has availed himself of the remedy of new trial,  If based on lack of jurisdiction- The action must be
appeal, petition for relief, or other appropriate brought before the action is barred by laches or
remedy and lost, or where he has failed to avail estoppel
himself of those remedies through his own fault
or negligence. Who may file the action:
 The petitioner need not be a party to the
How the action is commenced judgment sought to be annulled or acquire
 The action is commenced by the filing of a personality to file the action for annulment of
verified petition with the proper court. If it is judgment.
the judgment or final order of a RTC which is  What is essential is that the petitioner is one who
sought to be annulled, then the action shall can prove the allegation that the judgment was
be filed with the Court of Appeals. obtained by use of fraud and collusion and that he
was affected thereby.
Grounds for annulment of judgment  It is a remedy in law independent of the case
1. Extrinsic fraud where the judgment sought to be annulled is
2. Lack of jurisdiction promulgated.
3. Denial of due process*
Procedure
*The petition for annulment of judgment is an  A petition for annulment of judgment filed with
extraordinary action. By virtue of its exceptional character, the CA shall observe the procedure in ordinary
the action is restricted to the grounds specified in the civil cases.
Rules.  Should the CA find a trial necessary, the reception
of evidence may be referred to a member of the
*The rationale of the restriction is to prevent the court or to a judge of a RTC.
extraordinary action from being used by a losing party to  A petition filed in the RTC shall also be treated as
make a complete farce of a duly-promulgated decision that an ordinary civil action.
has long become final and executory.  Although treated as an ordinary civil action, the
court, upon filing of the petition may make an
*Extrinsic fraud shall not be a valid ground if it was availed outright dismissal of the petition as long as it has
of, or could have been availed of, in a motion for new trial specific reasons for its dismissal.
or petition for relief.  The dismissal may be made even before the
summons are served,.
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Effect of judgment of annulment court or tribunal, absent a temporary restraining
 A judgment of annulment based on lack of order or a preliminary injunction, or upon its
jurisdiction shall have the effect of setting aside expiration. Failure of the public respondent to
the questioned judgment and rendering the same proceed with the principal case may be a ground
null and void, but the judgment of annulment is for an administrative charge.
without prejudice to the refilling of the original  Then purpose of certiorari is to correct errors of
action in the proper court. jurisdiction only or grave abuse of discretion
 The prescriptive period for the refilling of the amounting to lack or excess of jurisdiction.
original action shall be deemed suspended from  Its principal office is only to keep the inferior court
the filing of such original action until the finality of within the parameters of its jurisdiction.
the judgment of annulment.  It is a limited form of review, it is restricted to
 This prescriptive period shall not, however, be resolving errors of jurisdiction not errors of
suspended where the extrinsic fraud is judgment.
attributable to the plaintiff in the original action.  Supervisory or Superintending writ- This remedy
 When the judgment or final order is set aside and is to annul or modify the proceedings of a
annulled on the ground of extrinsic fraud, the tribunal, board, officer, exercising judicial or
court, upon motion, may order the trial court to extrajudicial functions which has acted without or
try the case as if a motion for new trial was in excess of jurisdiction, or with grave abuse of
granted. discretion amounting to lack of jurisdiction.
 Aside from setting aside of the judgment or final  For this petition to prosper, it is necessary to
order and other effects, the judgment of allege and show that there is no more appeal, or
annulment may include the award of damages, any other plain, speedy, and adequate remedy in
attorney’s fees and other relief. the ordinary course of law.
 Grave abuse of discretion- Is the capricious and
Remedy when the questioned judgment has already been whimsical exercise of judgment, equivalent to lack
executed of jurisdiction. The discretion must be grave and
 The court may issue such orders of restitution or not mere abuse of discretion.
other relief as justice and equity may warrant  The petition shall be filed not later than 60 days
under the circumstances. from notice of the judgment, order or resolution
sought to be reviewed.
Annulment of judgments of quasi-judicial bodies  In case a motion for reconsideration was filed, the
 The silence of BP 129 on the jurisdiction of the CA 60-day period starts not from the notice of
to annul judgments or final orders and resolutions judgment but from the notice of the denial of the
of quasi-judicial bodies, indicates its lack of such motion for reconsideration.
authority.
 It is hence submitted, that a party aggrieved who Requisites for petition for certiorari Rule 65
desires an annulment of a judgment or resolution 1. The petition is directed against a tribunal, board,
of a quasi-judicial body, enumerated under Rule or officer exercising judicial or quasi-judicial
43, may avail of a petition for review to the CA functions.
under the said rule and not an action to annul the 2. Such tribunal, board, or officer has acted without
judgment or resolution. or in excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of
Certiorari (Rule 65) jurisdiction.
 A petition for certiorari is an original and 3. There is no appeal, or any plain, speedy, or
independent action and is not part of the adequate remedy in the ordinary course of law.
proceedings that resulted in the order assailed.
 Not being part of the proceedings that gave rise to The court may dismiss the petition on the following
the assailed order, the petition shall not interrupt grounds:
the course of the principal case, unless a 1. There is no showing of a grave abuse of discretion
temporary restraining order or writ of preliminary by any court, agency, or branch of the
injunction has been issued, enjoining the public government.
respondent from further proceeding with the 2. There are procedural errors, such as violation of
case. the Rules of Court or Supreme Court circulars, like
 The public respondent, in a petition for certiorari, the failure to implead private respondent, failure
shall proceed with the principal case within 10 to attach the pleadings and documents relevant
days from the filing of the petition with a higher to the petition, failure to file a motion for
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reconsideration or failure to allege material dates by law or these rules, the petition shall be filed
in the petition. with and cognizable only by the Court of Appeals
 In election cases involving an act or omission of a
Motion for reconsideration and its subsequent denial- municipal or regional trial court, the petition shall
Condition precedent for filing petition for certiorari. be filed exclusively with the COMELEC in aid of its
appellate jurisdiction.
Exceptions to the rule requiring a motion for
reconsideration Remedy in order to interrupt the course of the principal
1. Where the order is a patent nullity, as where the issue
court a quo has no jurisdiction.  The petitioner should secure a temporary
2. Where the questions raised in the certiorari restraining order or a writ of preliminary
proceeding have been duly raised and passed injunction enjoining the public respondent from
upon by the lower court, or are the same as those proceeding with the case and for the preservation
raised and passed upon in the lower court. of the rights of the parties pending such
3. Where there is an urgent necessity for the proceedings.
resolution of the question and any further delay  When so secured, the public respondent shall not
would prejudice the interests of the government proceed with the principal case during the period
or of the petitioner or the subject matter of the that the temporary restraining order or writ of
action is perishable. preliminary injunction is in effect.
4. Where, under the circumstances, a motion for
reconsideration would be useless. Collateral attack of a judgment
5. Where the petitioner was deprived of due process  As distinguished from a direct attack of
and there is extreme urgency for relief. judgment, a direct attack is made through an
6. Where in a criminal case, relief from an order of action or proceeding, the main object of
arrest is urgent and the granting of such relief by which is to annul, set aside or enjoin the
the trial court is improbable. enforcement of such judgment, if not yet
7. Where the proceedings conducted were ex parte carried into effect, or if the property has been
or in which the petitioner had no opportunity to disposed of, the aggrieved party may sue for
object. recovery.
8. Where the issue raised is one purely of law or  Collateral attack- Is made when, in another
public interest is involved. action to obtain a different relief, an attack
on the judgment is made as an incident in
Material date (data) rule said action. It is proper only when the
 3 material dates that must be stated in a petition judgment , on its face, is null and void as
for certiorari brought under Rule 65 where it is patent that the court, which
1. The date when the notice of the rendered said judgment has no jurisdiction.
judgment, final order, or resolution was
received. Execution and satisfaction of judgment
2. The date when a motion for new trial or
for reconsideration was filed. Execution- Is the remedy afforded for the satisfaction of a
3. The date when the notice of the denial judgment. Its object being to obtain satisfaction of the
thereof was received. judgment on which the writ is issued.
 This requirement is for the purpose of
determining the timeliness of the petition. Part of the judgment to be executed
 The dispositive portion (fallo) of the judgment is
Certification against forum shopping- Rule 65 requires the that part which is subject to execution under Rule
pleader to submit a certification against fourm shopping. 39 of the Rules of Court.
 Jurisprudence considers this portion of the
Observance of the hierarchy of courts judgment as that which finally vests upon the
 If the petition for certiorari relates to an act or parties, sets conditions for the exercise of those
omission of a municipal trial court, a board, officer rights, and imposes the corresponding duties and
or a person, it shall be filed with the RTC obligations.
exercising jurisdiction over the territorial area, as
defined by the SC. When execution shall issue:
 If the petition involves an act or omission of a  Execution is a matter of right upon the expiration
quasi-judicial agency, unless otherwise provided of the period of appeal and if no appeal was
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perfected from a judgment or order that disposes execution may instead file an appropriate special
of the action or proceeding. civil action under 65.
 Once a judgment becomes final and executory,
the prevailing party can have it executed as a Form and contents of the writ of execution
matter of right and the issuance of a writ of  The writ of execution is issued in the name of the
execution becomes the ministerial duty of the Republic of the Philippines and shall state the
court. following:
 Judgments and orders becomes final and o The name of the court which granted the
executory by operation of law, and not by judicial motion.
declaration. The trial court need not even o The case number and title
pronounce the finality of the order as the same o The dispositive portion of the judgment
becomes final by operation of law. or order subject of the execution.
o Shall require the sheriff or other proper
Execution shall issue on motion as clearly set forth under officer to whom it is directed to enforce
Sec.1 Rule 39. There is, therefore, a need to file a motion the writ according to its terms.
before the issuance of a writ of execution.  The writ of execution must conform to the
judgment which is to be executed, substantially to
Hence, a judge may not order execution of the judgment in every essential particular thereof, is settled. It
the decision itself. may not thus, vary the terms of the judgment it
seeks to enforce, nor go beyond its terms. Where
A motion for the issuance of a writ of execution shall the execution is not in harmony with the
contain a notice to the adverse party. A motion which does judgment which gives it life and exceeds it, it has
not contain a notice of hearing of the time and place for no validity.
the hearing of the motion as required by the rules, is a
worthless piece of paper which the clerk has no right to Lifetime of the writ of execution
receive and which the court has no authority to act upon.  The writ shall continue in effect during the period
within which the judgment may be enforced by
Where application for execution is made the motion.
 Execution shall be applied for in the court of  Hence, the writ is enforceable within the 5 year
origin. period from the entry of judgment as provided for
 If an appeal has been duly perfected and finally in sec.6 of rule 39 because within that period, the
resolved, the execution may be applied for also in writ may be enforced by motion.
the court of origin on motion of the judgment.
 In filing a motion for execution of an appealed The trial court may refuse to have the judgment executed
decision, there is no need to wait for the records on the following cases:
of the case to be remanded to the court of origin. 1. When the judgment has already been executed by
All that is required for the appeal to have been the voluntary compliance thereof by the parties.
duly perfected and finally resolved before 2. When the judgment has been novated by the
execution may be applied for. parties. (compromise)
 This is because the judgment oblige files a motion 3. When a petition for relief is filed and a preliminary
for execution in the court of origin, all he has to injunction is granted in accordance with Sec.5
do is to:Attach the certified true copies of the Rule 38. Also, when execution of the judgment is
o Judgment of the appellate court. enjoined by a higher court.
o Entry of said judgment with notice to the 4. When the judgment sought to be executed is
adverse party. conditional or when the judgment sought to be
 Even if the records have not as yet been executed is incomplete.
remanded to the court of origin. This procedure 5. When facts and circumstances transpire which
prevents needless delays in the execution of the would render execution inequitable or unjust.
judgment. 6. When execution is sought more than 5 years from
its entry without the judgment having been
No appeal from order of execution: revived.
 Than an appeal may be taken from a judgment or 7. When execution is sought against property
final order that completely disposes of the cases. exempt from execution.
 No appeal may be taken from an order of 8. When refusal to execute the judgment has
execution, A party desiring to assail an order of become imperative in higher interest of justice.

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Exceptional circumstances may prevent the execution of a Revival of judgment
judgment or allow the quashal of a writ of execution  An action for revival of judgment is no more
already issued: than a procedural means of securing the
1. When the writ of execution varies the judgment. execution of a previous judgment which has
2. When there has been a change in the situation of become dormant after the passage of 5 years
the parties making execution inequitable or without it being executed upon motion of the
unjust. prevailing party.
3. When the execution is sought to be enforced  It is a new and independent action, different
against property exempt from execution. and distinct from the original case, wherein
4. When it appears that the controversy has never the cause of action is the decision itself and
been submitted to the judgment of the court. not the merits of the action upon which the
5. When the terms of the judgment are not clear judgment sought to be enforced is rendered.
enough and there remains room for  Revival of the judgment is premised on the
interpretation thereof. assumption that the decision to be revived is
6. When it appears that the writ of execution has already final and executory.
been improvidently issued.  The action to revive a judgment must be filed
7. When it appears that the writ of execution is within 10 years from the date the judgment
defective in substance or is issued against the became final because an action to enforce a
wrong party or that the judgment debt has been judgment prescribes after 10 years from the
paid or otherwise satisfied or the writ was issued finality of judgment (Art 1144 (3) Civil Code)
without authority.  When a judgment is revived, such revived
judgment may also be enforced by motion
Duty of the sheriff in the execution within 5 years from the date of its entry and
 The sheriff’s duty in the execution of the writ is thereafter by action also before it is barred by
purely ministerial, he is to execute the order of the statute of limitations.
the court strictly to the letter. He has no  A revived judgment is deemed a new
discretion whether to execute the judgment or judgment separate and distinct from the
not. original judgment. It is not a continuation of
the original judgment.
Modes of execution of judgment  The action to revive the judgment is a new
1. Execution by motion if the enforcement of the action and results in a new judgment
judgment is sought within 5 years from the date constituting a new cause of action with a
of its entry. new period of limitations. Hence, the 10-year
2. Execution by independent action if the 5-year period to revive the revived judgment shall
period has elapsed and before it is barred by the commence to run from the date of the finality
statute of limitations. of the revived judgment and not from the
date of finality of the old, original judgment.
 The rule is that the court should issue a writ of  A party aggrieved by a decision of the court
execution by motion within 5 years from the may appeal the decision, but only insofar as
finality of the decision. the merits of the action for revival is
 A writ of execution issued after the expiration of concerned. The new original judgment which
that period is null and void. is already final and executory.
 There is a need for the interested party to file an
independent action for revival of judgment. Venue of an action to revive a judgment
 The judgment may be enforced after the lapse of  If real action- Court of the place where the real
this period and before the same is barred by the property is located.
statute of limitations, by instituting an ordinary  Personal action- Court of the place where the
civil action. plaintiff or defendant resides.
 The reason is that after the lapse of the 5-year
period, the judgment is reduced to a mere right of When 5-year period is interrupted
action, which judgment must be enforced, as all  While the rule is that the execution of a judgment
other ordinary actions by the institution of a can no longer be effected by mere motion after 5
complaint in the regular form. years from the date of entry of the judgment, the
 Such action must be filed within 10 years from the court in certain instances, allowed execution of
date the judgment became final, which is the date the judgment by mere motion despite the lapse of
of entry. the 5-year period.
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 In many instances, the delays in the execution of  It is called discretionary execution because it is
the judgment were through causes clearly not a matter of right. The execution of a judgment
attributable to the judgment debtor as when he under this concept is addressed to the
employs legal maneuvers to block the discretionary power of the court.
enforcement of the judgment. Delays attributable  A judgment subject to discretionary execution
to the defendant have the effect of suspending cannot be insisted upon but simply prayed and
the running of the prescriptive period for the hoped for because a discretionary execution is not
enforcement of the judgment. a matter of right.
 It has been held that in computing the time limit  Good reasons and compelling grounds for the
for enforcing the final judgment, the general rule issuance of the writ must be stated in a special
is that the time when execution is stayed, either order after due hearing.
by agreement of the parties, for a definite time,  It does not require a final and executory judgment
by injunction, or by taking of an appeal or writ of but simply a final judgment.
error shall not be included. Thus, the time during  It must be strictly construed because it is an
which execution is stayed should be excluded, and exception to the general rule.
the said time will be extended by any delay  Where it is not in conformity with the rules, the
occasioned by the debtor as when the writ of execution is null and void.
execution cannot be enforced within the 5-year  Good reasons- Call for the attendance of
period. compelling circumstances warranting immediate
execution for fear that favourable judgment may
When the 5-year and 10-year periods do not apply yield to an empty victory. In this regard, the Rules
1. Special proceedings do not categorically and strictly define what
2. Judgments for support. constitutes good reasons, and hence, its presence
Because the periods in these cases never prescribe. or absence must be determined in view of the
particular circumstances of the case.
Stay of execution of a judgment.
General rule: An appeal perfected in due time stays the Requisites for discretionary execution:
execution of the judgment. 1. There must be a motion filed by the prevailing
Exceptions: These judgments are not stayed by a pending party with notice to the adverse party.
appeal. (In general) 2. There must be a hearing of the motion for
1. Those judgments which by express discretionary execution.
provision of the rules are immediately 3. The motion must be filed in the trial court while it
executory and are not stayed by an has jurisdiction over the case and is in possession
appeal. of either the original record or the record on
2. Those judgments that have become the appeal.
object of discretionary execution. 4. There must be good reasons to justify the
discretionary execution.
Judgments not stayed by appeal (Specific) 5. The good reasons must be stated in a special
1. Judgment for injunction order.
2. Judgment for receivership
3. Judgment for accounting Posting of bond as reason for discretionary execution
4. Judgment for support.  The rule is now settled that the mere filing of a
*Not absolute, because the court is authorized to order bond by the successful party is not itself a good
otherwise reason for ordering the execution pending appeal,
because it is the combination of circumstances
Discretionary execution which is the dominating reason that would justify
 The concept of discretionary execution immediate execution, the bond being only an
constitutes an exception to the general rule that a additional factor.
judgment cannot be executed before the lapse of  If the mere posting of a bond is sufficient to justify
the period for appeal or during the pendency of immediate execution pending appeal, judgments
an appeal. would be executed immediately, as a matter of
 Execution shall issue only as a matter of right course, once rendered, if all that the prevailing
upon a judgment or final order that finally party needed was to post a bond, immediate
disposes of the action or proceeding upon the execution will then become a general rule rather
expiration of the period to appeal therefrom if no than the exception
appeal has been duly perfected.

98
Where to file an application for discretionary execution the judgment obligor. The judgment
 It shall be filed with the trial court while: obligor shall have the option to choose
o It has jurisdiction over the case and which property or part thereof may be
o While it is in possession of either the levied upon. If the judgment obligor does
original record or the record on appeal. not exercise the option, the officer shall
 After the trial court has lost jurisdiction, the first levy on the personal properties, if
motion for execution pending appeal may be filed any, and then, on the real properties if
in the appellate court. the personal properties are insufficient to
answer for the personal judgment but
Remedy where the judgment subject to discretionary the sheriff shall sell only so much of the
execution is reversed or annulled property that is sufficient to satisfy the
 Where the executed judgment is reversed totally judgment and lawful fees.
or partially, or annulled, on appeal or otherwise, 3. The officer may levy on the debts due the
the trial court may, on motion, issue such orders judgment debtor including bank deposits,
of restitution or reparation of damages as equity financial interests, royalties, commissions
and justice may warrant under the circumstances. and other personal property not capable
 There is no need of specifying in the judgment of manual delivery in the possession or
that there should be restitution because control of third parties. The process of
restitution is expressly provided for in the Rules. effecting this form of levy is
Said rule should apply in the absence of a garnishment.
disposition to the contrary in the judgment of the
appellate court. Money judgments are enforceable only against property
of the judgment debtor.
Execution in case the judgment obligor or obligee dies
 The death of the judgment oblige will not prevent Garnishment of debts and credits
the execution of the judgment. In case the  Garnishment shall be made by:
judgment oblige dies, execution may issue upon 1. Serving notice upon the third person
the application of his executor, administrator or having possession or control of the
successor in interest. credits in favour of the judgment obligor.
 The death of the judgment obligor will not 2. The third person or garnishee shall make
likewise prevent execution of the judgment. a written report to the court within 5
Execution shall still go on because under the days from the service of the notice of
Rules, execution shall issue against his executor of garnishment stating whether or not the
administrator or successor in interest, if the judgment obligor has sufficient funds to
judgment be for the recovery of real or personal satisfy the judgment. If sufficient, the
property, or the enforcement of a lien thereon. garnishee shall deliver the amount in
 If the death occurs after execution is actually cash or certified check directly to the
levied upon any of his property, the same may be judgment oblige within 10 working days
sold for the satisfaction of the judgment from service of notice of the garnishee.
obligation. If there be any surplus after the sale, The lawful fees shall be directly paid to
the officer making the sale shall account to the the court. If the amount is insufficient.
corresponding executor or administrator. The garnishee shall make a report as to
the amount he holds for the judgment
How to execute judgments for money obligor.
 The sheriff shall follow the following steps:
1. Demand from the judgment obligor the Levy of encumbered property
immediate payment of the full amount  In determining properties to be levied upon, the
stated in the judgment including the Rules require the sheriff to levy only on those
lawful fees in cash, certified check properties of the judgment debtor which are not
payable to the judgment oblige or any otherwise exempt from execution.
other form of payment acceptable to  For purposes of levy, a property is deemed to
him. belong to the judgment debtor if he holds a
2. If the judgment obligor cannot pay all or beneficial interest in such property that he can
part of the obligation in cash, certified sell or otherwise dispose or for value.
check or other mode of payment, the
officer shall levy upon the properties of
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 A mortgaged property may still be levied upon by dispossess him of the property and if after the
the sheriff to satisfy the judgment debtor’s dispossession, the judgment debtor should
obligations if not yet foreclosed. execute acts of ownership or possession or in any
manner disturb the possession of the judgment
Effect of levy and sale of property creditor, then and only he may be punished for
 The result of such execution was that title over contempt of court.
the subject property is vested immediately in the
purchaser subject only to the right to redeem the Removal of improvements on the property subject of
property within the period provided for by law. execution
 The right of the purchaser at an execution sale is  The officer shall not demolish or remove them.
inchoate and does not become absolute until These acts can only be done by the officer upon a
after the expiration of the redemption period special order by the court which will be issued
without the right of redemption having been upon motion by the judgment oblige and after
exercised. hearing only after the judgment obligor fails to
 Even if the right is inchoate, it is still entitled to remove them within a reasonable time fixed by
protection and must be respected until the court.
extinguished by redemption.
Section 13. Property exempt from execution. —
Execution for the performance of a specific act Except as otherwise expressly provided by law, the
 Said act must be performed, but if the party fails following property, and no other, shall be exempt from
to comply within the specified time, the court may execution:
direct the act to be done by someone at the cost
of the disobedient party and the act when so 1. The judgment obligor's family home as provided by law,
done shall have the effect as if done by the party. or the homestead in which he resides, and land necessarily
used in connection therewith;
Execution for a judgment for the delivery or restitution of
real property 2. Ordinary tools and implements personally used by him
 The officer shall demand from the judgment in his trade, employment, or livelihood;
obligor to vacate peaceably within 3 working days
and restore possession of the property to the 3. Three horses, or three cows, or three carabaos, or other
judgment oblige- Ejectment cases. beasts of burden, such as the judgment obligor may select
 Immediacy of the execution does not mean that necessarily used by him in his ordinary occupation;
instant execution. When a decision is immediately
executory, it does not mean dispensing with the 4. His necessary clothing and articles for ordinary personal
required 3 day notice. A sheriff who enforces the use, excluding jewelry;
writ without the required notice is running afoul
with the rules. 5. Household furniture and utensils necessary for
 If the judgment debtor refuses to vacate, then the housekeeping, and used for that purpose by the judgment
sheriff may enforce the writ by ousting the obligor and his family, such as the judgment obligor may
judgment debtor and all persons claiming a right select, of a value not exceeding one hundred thousand
under him, with the assistance, if necessary, of pesos;
appropriate peace officers and employing such
means as may be reasonably necessary to retake 6. Provisions for individual or family use sufficient for four
possession of such property. months;

Contempt 7. The professional libraries and equipment of judges,


 The writ of possession was not directed to the lawyers, physicians, pharmacists, dentists, engineers,
judgment debtor but to the sheriff who was surveyors, clergymen, teachers, and other professionals,
directed to deliver the property to the prevailing not exceeding three hundred thousand pesos in value;
party. As the writ did not command the judgment
debtor to do anything, he cannot be guilty of the 8. One fishing boat and accessories not exceeding
acts described in Rule 71 which is disobedience of the total value of one hundred thousand pesos owned by a
or resistance to a lawful writ, process, order, fisherman and by the lawful use of which he earns his
judgment or command of a court. The proper livelihood;
procedure is not for the court to cite the debtor in
contempt. What the officer should do is
100
9. So much of the salaries, wages, or earnings of the Principles to be remembered in execution sales
judgment obligor for his personal services within the four 1. A notice of sale is required before the property
months preceding the levy as are necessary for the support levied upon is sold on execution.
of his family; 2. All sales of property under execution must be
made at a public auction to the highest bidder,
10. Lettered gravestones; but the execution sale must be preceded by a
valid levy which is indispensable for a valid
11. Monies, benefits, privileges, or annuities accruing or in execution sale.
any manner growing out of any life insurance; 3. A levy is the act, whereby the sheriff sets apart or
appropriates a part of the whole of the properties
12. The right to receive legal support, or money or of the judgment obligor to satisfy the command of
property obtained as such support, or any pension or the writ.
gratuity from the Government; 4. A levy is necessary only if the obligor cannot
satisfy the judgment in cash, certified check or any
13. Properties specially exempted by law. other mode of payment acceptable to the
judgment creditor.
But no article or species of property mentioned in this 5. A levy upon real property is made by the officer
section shall be exempt from execution issued upon a by performing 2 acts:
judgment recovered for its price or upon a judgment of a. Filing with the register of deeds a copy of
foreclosure of a mortgage thereon. the order, description of the attached
property and notice of attachment.
Proceedings when property levied upon is claimed by b. Leaving with the occupant of the
third persons. property copy of the same order,
description, and notice.
Terceria-Remedy 6. Non-compliance with any of these requisites is
 A person, not a party to the action, claiming a fatal because a special statutory provision
property levied upon may execute an affidavit of respecting the manner of carrying out levy of
his title or right of possession over the property. attachment must strictly be complied with and
 Such affidavit must state the grounds of such right departure therefrom shall invalidate the levy.
or title. 7. After sufficient property has been sold to satisfy
 The affidavit shall be served upon the officer the execution, no more shall be sold.
making a levy and a copy thereof must also be 8. Any excess property or proceeds of the sale shall
served upon the judgment obligee. be delivered to the judgment obligor.
 The officer served with the affidavit of the 9. If the purchaser at the auction refuses to pay the
claiming third party shall not be bound to keep amount bid by him, the officer may again sell the
the property subject of the claim, unless the property to the highest bidder and the court may
judgment obligee, on demand of the officer, files require such purchaser to pay unto the court the
a bond approved by the court to indemnify the amount of whatever loss, with costs occasioned
claimant in a sum not less than the value of the by his refusal to pay and if he disobeys the order,
property levied upon. may punish him for contempt.
 No claim for damages for taking the property may 10. The judgment oblige may bid and if said party is
be enforced against the bond unless the action the purchaser and there is no third party claim, he
therefor is filed within 120 days from the date of need not pay the amount of the bid if it does not
the filing of the bond. exceed the amount of his judgment. If it does, he
 The officer shall not be liable to any third-party shall only pay the excess.
claimant for damages for the taking or keeping of 11. If the purchaser of personal property capable of
the property, if such bond is filed. manual delivery pays the purchase price, the
Other remedies may also be claimed by the third party officer making the sale must deliver the property
claimant to the purchaser and, if desired, shall execute a
 Because nothing contained in the Rules shall certificate of sale. The sale conveys to the
prevent the claiming third person from vindicating purchaser all the rights which the judgment
his claim to the property in a separate action. obligor had in such property as of the date of the
levy on execution or preliminary attachment.
12. When the purchaser of any personal property not
capable of manual delivery pays the price, the
officer making the sale must execute and deliver

101
to the purchaser a certificate of sale. Such
certificate conveys to the purchaser all the rights Property so redeemed may again be redeemed within sixty
which the judgment obligor had in such property (60) days after the last redemption upon payment of the
as of the date of the levy on execution or sum paid on the last redemption, with two per centum
preliminary attachment. thereon in addition and the amount of any assessments or
taxes which the last redemptioner may have paid thereon
Sale and redemption of property after redemption by him, with interest on such last named
amount, and in addition, the amount of any liens held by
Section 25. Conveyance of real property; certificate said last redemptioner prior to his own, with interest. The
thereof given to purchaser and filed with registry of deeds. property may be again, and as often as a redemptioner is
— Upon a sale of real property, the officer must give to the so disposed, redeemed from any previous redemptioner
purchaser a certificate of sale containing: within sixty (60) days after the last redemption, on paying
the sum paid on the last previous redemption, with two
(a) A particular description of the real property sold; per centum thereon in addition, and the amounts of any
assessments or taxes which the last previous redemptioner
(b) The price paid for each distinct lot or parcel; paid after the redemption thereon, with interest thereon,
and the amount of any liens held by the last redemptioner
(c) The whole price paid by him; prior to his own, with interest.

(d) A statement that the right of redemption expires Written notice of any redemption must be given to the
one (1) year from the date of the registration of the officer who made the sale and a duplicate filed with the
certificate of sale. registry of deeds of the place, and if any assessments or
taxes are paid by the redemptioner or if he has or acquires
Such certificate must be registered in the registry of deeds any lien other than that upon which the redemption was
of the place where the property is situated. (27 a) made, notice thereof must in like manner be given to the
officer and filed with the registry of deeds; if such notice
Section 27. Who may redeem real property so sold. be not filed, the property may be redeemed without
— Real property sold as provided in the last preceding paying such assessments, taxes, or liens. (30a)
section, or any part thereof sold separately, may be
redeemed in the manner hereinafter provided, by the Section 33. Deed and possession to be given at
following persons: expiration of redemption period; by whom executed or
given. — If no redemption be made within one (1) year
(a) The judgment obligor; or his successor in interest from the date of the registration of the certificate of sale,
in the whole or any part of the property; the purchaser is entitled to a conveyance and possession
of the property; or, if so redeemed whenever sixty (60)
(b) A creditor having a lien by virtue of an days have elapsed and no other redemption has been
attachment, judgment or mortgage on the property sold, made, and notice thereof given, and the time for
or on some part thereof, subsequent to the lien under redemption has expired, the last redemptioner is entitled
which the property was sold. Such redeeming creditor is to the conveyance and possession; but in all cases the
termed a redemptioner. (29a) judgment obligor shall have the entire period of one (1)
year from the date of the registration of the sale to
Section 28. Time and manner of, and amounts redeem the property. The deed shall be executed by the
payable on, successive redemptions; notice to be given officer making the sale or by his successor in office, and in
and filed. — The judgment obligor, or redemptioner, may the latter case shall have the same validity as though the
redeem the property from the purchaser, at any time officer making the sale had continued in office and
within one (1) year from the date of the registration of the executed it.
certificate of sale, by paying the purchaser the amount of
his purchase, with the per centum per month interest Upon the expiration of the right of redemption, the
thereon in addition, up to the time of redemption, purchaser or redemptioner shall be substituted to and
together with the amount of any assessments or taxes acquire all the rights, title, interest and claim of the
which the purchaser may have paid thereon after judgment obligor to the property as of the time of the levy.
purchase, and interest on such last named amount at the The possession of the property shall be given to the
same rate; and if the purchaser be also a creditor having a purchaser or last redemptioner by the same officer unless
prior lien to that of the redemptioner, other than the a third party adversely to the judgment obligor. (35a)
judgment under which such purchase was made, the
amount of such other lien, with interest.

102
Section 32. Rents, earnings and income of property
pending redemption. — The purchaser or a redemptioner
shall not be entitled to receive the rents, earnings and
income of the property sold on execution, or the value of
the use and occupation thereof when such property is in
the possession of a tenant. All rents, earnings and income
derived from the property pending redemption shall
belong to the judgment obligor until the expiration of his
period of redemption.

Remedy where judgment is unsatisfied


 When the return of the writ of execution shows
that the judgment is unsatisfied, the judgment
obligee is entitled to an order from the court
which rendered the judgment, requiring the
judgment obligor to appear and be examined
concerning his property and income before the
court or a commissioner appointed by the court.
 This remedy has a limitation because the
judgment obligor cannot be required to appear
before a court or commissioner outside the
province or city in which such obligor resides or is
found.
 It is not only the judgment debtor who may be
examined.
 A person, corporation, or other juridical entity
indebted to the judgment debtor may be required
to appeal before the court or a commissioner
appointed by it, at a time and place within the
province or city where such debtor resides or is
found, and be examined concerning the same.
 Pursuant to the above rules, in the examination of
a person, corporation, or other juridical entity
who has the property of the judgment debtor or is
indebted to him, the court may only authorize the
judgment oblige to institute an action against such
person or corporation for the recovery of such
interest or debt.
 Nothing in the rules gives the court the authority
to order such person or corporation to pay the
judgment oblige and the court exceeds
jurisdiction if it orders the person who denies the
indebted ness to pay the same.
 Execution of judgment can only be issued against
one who is a party to the action, and not against
one, who not being a party to the action did not
have his day in court.
 Due process demands that a court decision can
only bind a party to the litigation and not against
innocent third parties.

103
1991 Revised Rules on Summary Procedure 9. Dilatory motions for postponement.
Effective: November, 15, 1991 10. Reply
11. Third-party complaints
Scope: 12. Intervention
1. METC
2. MTC in cities Subpoena
3. MTC
4. MCTC Section 1. Subpoena and subpoena duces tecum.
— Subpoena is a process directed to a person requiring
A. Civil Cases him to attend and to testify at the hearing or the trial of an
1. All cases of forcible entry and unlawful detainer action, or at any investigation conducted by competent
irrespective of the amount of damages or unpaid authority, or for the taking of his deposition. It may also
rentals sought to be recovered. Where attorney’s require him to bring with him any books, documents, or
fees are awarded, the same shall not exceed other things under his control, in which case it is called a
20,000 pesos. subpoena duces tecum.
2. All other cases, except probate proceedings the
total amount of plaintiff’s claim does not exceed Section 2. By whom issued. — The subpoena may
100,000 or 200,000 in Metro Manila exclusive of be issued by —
interests and costs.
B. Criminal Cases (a) the court before whom the witness is required to
1. Violations of traffic law, rules, regulations. attend;
2. Violations of the rental law.
3. Violations of municipal or city ordinances. (b) the court of the place where the deposition is to
4. All other criminal cases where the penalty be taken;
prescribed by law is imprisonment not exceeding
6 months or a fine not exceeding 1,000 pesos or (c) the officer or body authorized by law to do so in
both, irrespective of other penalties accessory or connection with investigations conducted by said officer or
otherwise or of the civil liability arising therefrom. body; or
5. All offenses involving damage to property through
criminal negligence, the Rules shall govern if the (d) any Justice of the Supreme Court or of the Court
imposable fine does not exceed 10,000. of Appeals in any case or investigation pending within the
C. Not applicable to the following cases: Philippines.
1. Probate proceedings.
2. Civil cases where the plaintiff’s cause of action is When application for a subpoena to a prisoner is made, the
pleaded in the same complaint with another judge or officer shall examine and study carefully such
cause of action subject to ordinary procedure. application to determine whether the same is made for a
3. A criminal case where the offense charged is valid purpose.
necessarily related to another criminal case
subject to ordinary procedure. No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution
Prohibited motions and pleadings: shall be brought outside the said penal institution for
1. Motion to dismiss or to quash information except appearance or attendance in any court unless authorized
on the ground of lack of jurisdiction over the by the Supreme Court (2a, R23)
subject matter or failure to comply with the
referral to the appropriate lupon for conciliation. Section 3. Form and contents. — A subpoena shall
2. Motion for bill of particulars. state the name of the court and the title of the action or
3. Motion for New Trial, Reconsideration of a investigation, shall be directed to the person whose
judgment, Re-opening of trial. attendance is required, and in the case of a subpoena
4. Petition for relief from judgment. duces tecum, it shall also contain a reasonable description
5. Motion for extension of time to file pleadings, of the books, documents or things demanded which must
affidavits or any other paper. appear to the court prima facie relevant. (3a, R23)
6. Memoranda
7. Petition for certiorari, mandamus, prohibition Section 4. Quashing a subpoena. — The court may
against any interlocutory order issued by the quash a subpoena duces tecum upon motion promptly
court. made and, in any event, at or before the time specified
8. Motion to declare defendant in default. therein if it is unreasonable and oppressive, or the

104
relevancy of the books, documents or things does not a court, the disobedience thereto shall be punished in
appear, or if the person in whose behalf the subpoena is accordance with the applicable law or Rule. (12a R23)
issued fails to advance the reasonable cost of the
production thereof. Section 10. Exceptions. — The provisions of sections
8 and 9 of this Rule shall not apply to a witness who resides
The court may quash a subpoena ad testificandum on the more than one hundred (100) kilometers from his
ground that the witness is not bound thereby. In either residence to the place where he is to testify by the
case, the subpoena may be quashed on the ground that ordinary course of travel, or to a detention prisoner if no
the witness fees and kilometrage allowed by these Rules permission of the court in which his case is pending was
were not tendered when the subpoena was served. (4a, obtained. (9a, R23)
R23)

Section 5. Subpoena for depositions. — Proof of RULE 22


service of a notice to take a deposition, as provided in
sections 15 and 25 of Rule 23, shall constitute sufficient Computation of Time
authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the court of Section 1. How to compute time. — In computing
the place in which the deposition is to be taken. The clerk any period of time prescribed or allowed by these Rules, or
shall not, however, issue a subpoena duces tecum to any by order of the court, or by any applicable statute, the day
such person without an order of the court. (5a, R23) of the act or event from which the designated period of
time begins to run is to be excluded and the date of
Section 6. Service. — Service of a subpoena shall be performance included. If the last day of the period, as thus
made in the same manner as personal or substituted computed, falls on a Saturday a Sunday, or a legal holiday
service of summons. The original shall be exhibited and a in the place where the court sits, the time shall not run
copy thereof delivered to the person on whom it is served, until the next working day. (a)
tendering to him the fees for one day's attendance and the
kilometrage allowed by these Rules, except that, when a Section 2. Effect of interruption. — Should an act
subpoena is issued by or on behalf of the Republic of the be done which effectively interrupts the running of the
Philippines or an officer or agency thereof, the tender need period, the allowable period after such interruption shall
not be made. The service must be made so as to allow the start to run on the day after notice of the cessation of the
witness a reasonable time for preparation and travel to the cause thereof.
place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or The day of the act that caused the interruption shall be
things demanded shall also be tendered. (6a, R23) excluded in the computation of the period. (n)

Section 7. Personal appearance in court. — A


person present in court before a judicial officer may be
required to testify as if he were in attendance upon a
subpoena is sued by such court or officer. (10, R23)

Section 8. Compelling attendance. — In case of


failure of a witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the
failure of the witness, may issue a warrant to the sheriff of
the province, or his deputy, to arrest the witness and bring
him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of such
witness shall be paid by the witness if the court issuing it
shall determine that his failure to answer the subpoena
was willful and without just excuse. (11, R23)

Section 9. Contempt. — Failure by any person


without adequate cause to obey a subpoena served upon
him shall be deemed a contempt of the court from which
the subpoena is issued. If the subpoena was not issued by

105