CIVIL PROCEDURE

Course Outline

1. Introduction

1.1. Batas Pambansa 129 as amended

1.2. Courts and their jurisdiction

● (1) La Naval Drug Corp v CA 236 S 78

LOJ (Lack of Jurisdiction) over the person of the DEFENDANT may be waived EXPRESSLY or IMPLIEDLY.

HOW: When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so
wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the
court; otherwise, he shall be deemed to have submitted himself to that jurisdiction. The decisions promulgated heretofore by
this Court would likewise seemingly apply estoppel to bar the defendant from pursuing that defense by alleging in his answer
any other issue for dismissing the action.

● (2) Atwel v Concepcion Progressive Asso Inc GR 169370 April 14, 2008

GR: Jurisdiction over the subject matter is conferred upon the courts exclusively by law, and as the lack of it affects the very
authority of the court to take cognizance of the case, the objection may be raised at any stage of the proceedings.
E: LACHES (+ Active Participation on the person invoking the same)

● (3) Figueroa v People GR 147406 July 14, 2008

GR: Jurisdiction of the court to hear and decide a case is conferred by the law in force at the time of the
institution of the action.

E: Unless such statute provides for a retroactive application thereof.|||

1.3. How jurisdiction is obtained and exercised:

− over persons
− over subject matter
− over res

1.4. Doctrine of primary jurisdiction

● (4) Samar II Electric Cooperative Inc v Seludo Jr 671 S 78

Applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of
the claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special
competence of an administrative agency.

In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of
such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case
without prejudice.|||

2. General Provisions for Ordinary Civil Actions

2.1. Must be based on a cause of action

− What is cause of action
● (5) Belle Corporation v De Leon-Banks 681 S 351
BASIS: Section 2, Rule 2: cause of action as the acts or omission by which a party violates a right of another.

A cause of action is a formal statement of the operative facts that give rise to a remedial right. The question
of whether the complaint states a cause of action is determined by its averments regarding the acts committed by
the defendant.ll Thus, it must contain a concise statement of the ultimate or essential facts constituting the plaintiffs
cause of action.Failure to make a sufficient allegation of a cause of action in the complaint warrants its dismissal.

ELEMENTS OF COA:(ROA)
(1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created;
(2) an obligation on the part of the named defendant to respect or not to violate such right; and
(3) an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of
the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages
or other appropriate relief
 − No splitting of cause of action

● (6) City of Bacolod v San Miguel, 29 S 819

For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate
complaints for these several reliefs that constitutes splitting up of the cause of action. This is what is prohibited by the rule.

RATIONALE FOR THE PROHIBITION OF SPLITTING OF COA:

The rule against splitting a single cause of action is intended "to prevent repeated litigation between the same parties in
regard to the same subject of controversy; to protect defendant from unnecessary vexation; and to avoid the costs and
expenses incident to numerous suits." It comes from that old maxim nemo debet bis vexare pro una et eadem causa (no man
shall be twice vexed for one and the same cause).

● (7) Jalandoni v Martir-Guanzon, 102 P 859

RATIONALE FOR PROHIBITION: To allow them to be recovered by subsequent suit would be a violation of the rule against
multiplicity of suits (R2 S3&4) against the splitting of causes of action, since these damages spring from the same cause of
action that was pleading in the former case.

NOTE: That the former judgment did not touch upon these damages is not material to its conclusive effect; between the same
parties, with the same subject matter and cause of action, a final judgment on the merits is conclusive not only the questions
actually contested and determined, but upon all matters that might have been litigated and decided in the former suit, i.e., all
matters properly belonging to the subject of the controversy and within the scope of the issue

− Joinder and misjoinder of causes of action

− Test of single cause of action

● (8) Joseph v Bautista, 170 S 540

TEST OF SINGLE COA: A cause of action is understood to be the delict or wrongful act or omission
committed by the defendant in violation of the primary rights of the plaintiff. It is true that a single act or omission can
be violative of various rights at the same time, as when the act constitutes jurisdically a violation of several separate
and distinct legal obligations. However, where there is only one delict or wrong, there is but a single cause of action
regardless of the number of rights that may have been violated belonging to one person.

The singleness of a cause of action lies in the singleness of the delict or wrong violating the rights of one
person. Nevertheless, if only one injury resulted from several wrongful acts, only one cause of action arises

2.2. Parties to civil actions

− Who are parties in interest
− Competency of parties
− Indispensable and necessary parties
o (9) PNB v Heirs of Estanislao Militar etal 467 S 377

INDISPENSABLE PARTY NECESSARY PARTY

An indispensable party is one whose interest will be
affected by the court's action in the litigation, and
without whom no final determination of the case can
be had.
The party's interest in the subject matter of the suit and
in the relief sought are so inextricably intertwined with
the other parties' that his legal presence as a party to
the proceeding is an absolute necessity.
In his absence there cannot be a resolution of the
dispute of the parties before the court which is
effective, complete, or equitable.
His interest in the controversy or subject matter is
distinct and divisible from the interest of the other
parties and will not necessarily be prejudiced by a
judgment which does complete justice to the parties in
court.
He is not indispensable if his presence would merely
permit complete relief between him and those already
parties to the action or will simply avoid multiple
litigation.

TEST: IN SUM: Section 8, Rule 7 of the Rules of Civil Procedure

(1) Can relief be afforded the plaintiff without the
presence of the other party?
(2) can the case be decided on the merits without
prejudicing the rights of the other party?
defines a necessary party as one who is not
indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already
parties, or for a complete determination or settlement
of the claim subject of the action.

Necessary parties are those whose presence is

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 necessary to adjudicate the whole controversy, but
whose interests are so far separable that a final decree
can be made in their absence without affecting them.

Example: Petitioner therein sold her property through a deed of sale to three vendees. Two of the vendees then sold their
shares to the third buyer, who then sold the property to another set of persons. Thereafter, petitioner, who claimed that the
true intent of the first sale was an equitable mortgage, filed a complaint seeking the reformation of the deed of sale and the
annulment of the second sale. The question arose whether the two vendees who had since disposed of their shares should be
considered as indispensable parties or necessary parties. In concluding that they were only necessary parties, Court ruled that:

There are no rights of defendants to be safeguarded if the sale should be held to be in fact an absolute sale nor if the sale is
held to be an equitable mortgage. Defendant became the absolute owner of the subject property by virtue of the sale to him
of the shares of the aforementioned defendants in the property. Said defendants no longer have any interest in the subject
property. However, being parties to the instrument sought to be reformed, their presence is necessary in order to settle all the
possible issues of the controversy. Whether the disputed sale be declared an absolute sale or an equitable mortgage, the
rights of all the defendants will have been amply protected.

o (10) Republic vs Marcos-Manotoc 665 S 367

Indispensable Parties: Rule 3, Sec. 7: Indispensable parties are those parties-in-interest without whom there can be no final
determination of an action. They are those parties who possess such an interest in the controversy that a final decree would
necessarily affect their rights, so that the courts cannot proceed without their presence.

Parties are indispensable if their interest in the subject matter of the suit and in the relief sought is inextricably intertwined with
that of the other parties.
− Joinder and misjoinder of parties
− Death of party
− consequence of death of party

o (11) Sarsaba vs Vda dela Torre 594 SCRA 410

Death extinguishes liability IF the action does NOT survive death of party.
Counsel must inform the court of the death of client.

EFFECT OF FAILURE TO INFORM COURT: Failure of the counsel to comply with his duty to inform the court of the death of his
client, such that no substitution is effected, will not invalidate the proceedings and the judgment rendered thereon if the
action survives the death of such party. The trial court's jurisdiction over the case subsists despite the death of the party.

RATIONALE BEHIND DUTY TO INFORM: The purpose behind this rule is the protection of the right to due process of every party to
the litigation who may be affected by the intervening death. The deceased litigants are themselves protected as they
continue to be properly represented in the suit through the duly appointed legal representative of their estate.

TEST TO DETERMINE W/N ACTION SURVIVES DEATH OF PARTY: The question as to whether an action survives or not depends on
the nature of the action and the damage sued for.

Action that Survives Action that does NOT Survive

If the causes of action which survive Injury complained of is to the person

the wrong complained of affects primarily the property and rights of property affected
and principally property and property rights, being incidental
the injuries to the person being merely
incidental

o (12) Gonzales vs Pagcor 429 SCRA 533, 540

− what counsel should do on death of party
BASIS: R3 S16
Sec. 16. Death of party, duty of counsel. Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of
the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel
to comply with this duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted
within a period of thirty (30) days from notice.

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 If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail
to appear within the specified period, the court may order the opposing party, within a specified time, to procure the
appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.

2.3. Venue of actions

− Real and personal actions
● (13) United Overseas Bank Phils. V Rosemoore Mining & Development Corp. 518 S 123 (2007)

REAL ACTION PERSONAL ACTION

Actions affecting title to or possession of real property,
or interest therein
A personal action is one brought for the recovery of
personal property or for the enforcement of some
contract or for the recovery of damages for its breach,
or the recovery of damages for the commission of an
injury to the person or property.

Commenced and tried in the place Commenced and tried where the plaintiff or any of
where the property or part thereof lies. the principal plaintiffs resides, or where the defendants
or any of the principal defendants resides, at the
election of the plaintiff.

− Actions against non-residents

− Agreement on venue

2.4. Commencement of actions

− How and when deemed commenced

● (14) Magaspi v Ramolete, 115 S 193

A case is deemed filed only upon payment of the docket fee regardless of the actual date of its filing in court.

Amount of Docket Fees should be based upon the pleading. If amended, the amount should be based upon the amended
pleading. (REVERSED!!)

Docket fees are still deemed paid even if the amount in question is insufficient.
● (15) Manchester Dev Corp v CA, 149 S 562
The Court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. An
amendment of the complaint or similar pleading will not thereby vest jurisdiction in the Court, much less the payment
of the docket fee based on the amounts sought in the amended pleading.

The ruling in the Magaspi case in so far as it is inconsistent with this pronouncement is overturned and
reversed.

IN SUM: Amount of DF dependent on the OG complaint. (basis of assessment of the docket fee should be
the amount of damages sought in the original complaint and not in the amended complaint.)

● (16) Sun Insurance v Asuncion, 170 S 274

1. FILING + PAYMENT OF DF VESTS COURT WITH JURISDICTION. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction
over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by
payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond
the applicable prescriptive or reglementary period.
2. FILING + PAYMENT OF DF APPLICABLE TO INITIATORY PLEADINGS. The same rule applies to permissive
counterclaims, third party claims and similar pleadings, which shall not be considered filed until and unless the filing
fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no
case beyond its applicable prescriptive or reglementary period.
3. LIEN ON JUDGMENT - APPLICABLE WHEN AWARD GIVEN THAT IS NOT PRAYED FOR. Where the trial court
acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee
but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left
for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the
responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the
additional fee.

SUMMARY OF RULES ON PAYMENT OF DF:

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 GR: Manchester Dev. Corp.: Payment of DF vests Court with jurisdiction
E: Sun Insurance: Court may allow payment of DF within a reasonable time; when judgment is rendered,
the DF is considered a lien on the award given.

● (17) Heirs of the late Ruben Reinoso Jr versus CA, GR No. 116121, July 18, 2011
Liability for the difference between the actual fees paid and the correct payable docket fees to be
assessed by the clerk of court which shall constitute a lien on the judgment pursuant to Section 2 of Rule 141.1
− When does court acquire jurisdiction over a case?
− Effect of underpayment of docket fees
− Rule is payment may be allowed within reasonable time but within reglementary period
…but in several cases, both CA and SC have caused the dismissal of cases for non-payment of docket fees.

3. Procedure in Regional Trial Courts

3.1. Applicable also to Municipal Trial Courts

3.2. Pleadings in general

− Kinds of pleadings
− Formal requirements of pleadings
− Parts of a pleading
− Verification when required
Purpose: To secure an assurance that the allegations of the petition have been made in good faith; or are true and correct,
not merely speculative; Verification is only a formal not a jurisdictional requirement.

▪ Formal, not jurisdictional

● (18) Kilusan-Olalia v CA 528 S 45 (2007)

On Verification
Verification is a formal, not a jurisdictional requisite, as it is mainly intended to secure an assurance that the allegations therein
made are done in good faith or are true and correct and not mere speculation. The Court may order the correction of the
pleading, if not verified, or act on the unverified pleading if the attending circumstances are such that a strict compliance
with the rule may be dispensed with in order that the ends of justice may be served.

Certificate of Forum Shopping

GR: Certificate of non-forum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one
of them is insufficient.
E: However, the Court has also stressed that the rules on forum shopping, which were designed to promote and facilitate the
orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and
legitimate objective. The rule of substantial compliance may be availed of with respect to the contents of the certification.

▪ Verification by Counsel

● (19) In-N-Out Burger, Inc. v Schwani Inc. 575 S 535 (2008)

On Verification
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records. A party’s representative, lawyer or any other person who
personally knows the truth of the facts alleged in the pleading may sign the verification.

Jurat vs. Acknolwedgment

Jurat Acknowledgment

that part of an affidavit in which the notary certifies
that before him/her, the document was subscribed
and sworn to by the executor. Ordinarily, the language
of the jurat should avow that the document was
subscribed and sworn to before the notary public.
the act of one who has executed a deed in going
before some competent officer or court and declaring
it to be his act or deed. It involves an extra step
undertaken whereby the signor actually declares to
the notary that the executor of a document has
attested to the notary that the same is his/her own free
act and deed.

− Certification against forum-shopping in initiatory pleadings

1 SEC. 2. Fees in lien. Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that
claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien.
The clerk of court shall assess and collect the corresponding fees.
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 ▪ Definition of Forum Shopping

● (20)Tokio Marine Malayan Insurance Compnay Inc. et.al v Valdez GR No.

150107 28Jan2008

Forum shopping is the act of a litigant who repetitively avails of several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all
raising substantially the same issues either pending in, or already resolved adversely by some other court, or to increase his
chances of obtaining a favorable decision if not in one court, then in another.

RATIONALE FOR PROHIBITION: A party should not be allowed to pursue simultaneous remedies in two different courts as it
constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial
procedure, and adds to the congestion of the heavily burdened dockets of the courts.

● (21) Negros Slashers v Teng 666 S 629

Elements of Forum Shopping
For forum shopping to exist, it is necessary that
(a) there be identity of parties or at least such parties that represent the same interests in both actions;
(b) there be identity of rights asserted and relief prayed for, the relief being founded on the same facts; and
(c) the identity of the two preceding particulars is such that any judgment rendered in one action will, regardless of
which party is successful, amount to res judicata in the other action.

▪ Counsel cannot sign certification; exception

● (22) Digital Microwave Corp. v CA GR 128550 16Mar2000

Rationale why CNFS is required to be accomplished by Petitioner personally: only the petitioner himself has actual knowledge
of whether or not he has initiated similar actions or proceedings in different courts or agencies. Even his counsel may be
unaware of such fact.

CNFS with re: Corporations: The certification against forum shopping could be made by a duly authorized director or officer of
the corporation.

● (23) Guy v Court of Appeals GR 163707, September 15, 2006

The certification of non-forum shopping should be executed by the plaintiff or the principal party.

GR: CNFS should be executed by plaintiff/principal party (failure to comply warrants dismissal)
E: Substantial Justice
(Ex. When only the counsel signed + No intention to violate the rules)
● (24) Sy Chin v Court of Appeals GR 136233, November 23, 2000
While a petition for certiorari is flawed where the certificate of non-forum shopping was signed only by counsel and not by the
party, this procedural lapse may be overlooked in the interest of substantial justice.

Co-owner or Co-party may sign in behalf of co-owners or co-parties

▪
● (25) Cavila v Heirs of Clarita Cavile 400 S 255 (2003)
The execution by one of the petitioners of the certificate of non-forum shopping constitutes substantial compliance with the
Rules where all the petitioners, being relatives and co-owners of the properties in dispute, share a common interest thereon,
aside from sharing a common defense in the complaint for partition filed by the respondents; The merits of the substantive
aspects of the case may be deemed as “special circumstance” for the Court to take cognizance of a petition for review
although the certification against forum shopping was executed and signed by only one of the petitioners.

− Distinction between non-compliance of verification and certification against non-forum shopping

requirement

● (26) Sari-sari Group of Companies, Inc. v Piglas Kamao 561 S 569 (2008)
Verification vs. CNFS
Verification CNFS

It is simply intended to secure an assurance that the

allegations in the pleading are true and correct, and
that the pleading is filed in good faith.

Is to secure an assurance that the allegations of the Rooted in the principle that a party-litigant shall not be
petition have been made in good faith, or are true allowed to pursue simultaneous remedies in different
and correct, not merely speculative. fora, as this practice is detrimental to orderly judicial
procedure.

A pleading which is required by the Rules of Court to Generally not curable by the submission thereof after
be verified may be given due course even without a the filing of the petition. The submission of a certificate

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verification of the circumstances warranting the against forum shopping is thus deemed obligatory,
suspension of the rules in the interest of justice. albeit not jurisdictional.

Court may order correction of unverified pleadings. The rule on certification against forum shopping may,
(Interest of Justice) however, be also relaxed on grounds of “substantial
compliance” or “special circumstances or compelling
reasons.”

A mere formal, not jurisdictional defect, the absence

of which does not of itself justify a court in refusing to
allow and act on the case.

● (27) Median Container Corp. v Metropolitan Bank & Trust Co. 561 S 622
(2008)
See table for Verification vs. CNFS
A certification against forum shopping signed by a person on behalf of a corporation which is unaccompanied by proof that
the signatory is authorized to file the petition is generally likewise cause for dismissal.
− Substantial requirements of pleadings
− Sufficiency of allegations
▪ Ultimate facts only

● (28) Remitere v Yulo 16 S 251

Ultimate facts refer to the essential facts constituting plaintiff’s cause of action.
A pleading should state the ultimate facts essential to the rights of action or defense asserted, as distinguished from mere
conclusion of fact, or conclusion of law.

● (29) Philippine Stock Exchange v Manila Banking Corp. 559 S 352 (2008)
Ultimate facts refer to the principal, determinative, constitutive facts upon which rest the existence of the cause of action—the
term does not refer to details of probative matter or particulars of evidence which establish the material elements.

▪ Tests of sufficiency of complaint:

− Can judgment be rendered if admitted?
− Always reckon against grounds for dismissal
− Is bill of particulars applicable?

● (30) Philippine Bank of Communications v Trazo 500 S 242 (2006)

For the complaint to be dismissed for failure to state the cause of action, the insufficiency of the cause of action must appear
on the face of the complaint.

In determining whether the allegations of a complaint are sufficient to support a cause of action, the complaint does not
have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be done at the
trial on the merits of the case.

▪ Test of sufficiency of responsive pleading

− Not susceptible to summary judgment
− Does not amount to confession of judgment
− MUST tender an issue
− Must specifically deny “material allegations” lest they be deemed
admitted
o (31) Gaza et al vs Lim GR 126863 Jan 16, 2003
3 modes of Specific Denial

(1) by specifying each material
allegation of the fact in the
complaint, the truth of which the
defendant does not admit, and
whenever practicable, setting forth
the substance of the matters which
he will rely upon to support his
denial;
(2)by specifying so much of an
averment in the complaint as is true
and material and denying only the
remainder;
(3) by stating that the defendant is
without knowledge or information
sufficient to form a belief as to the
truth of a material averment in the
complaint, which has the effect of
a denial.

− Defenses and objections MUST be pleaded either in motion to dismiss or

answer, else waived
▪ Alternative causes of action or defenses may be pleaded even if inconsistent with each
other
− Purpose of rule is to allow for complete adjudication of any controversy

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 Counterclaims
−
▪ Rule on permissive and compulsory counterclaims
▪ Test to determine nature of counterclaim
● (32) Namarco v Federation of United Namarco Distributors Inc., 49 S 238
(NO DOCTRINE RE: COUNTERCLAIMS. MERELY TALKS ABT OBLICON?)

● (33) Bungcayao Sr v Fort Ilocandia 618 S 381

A compulsory counterclaim is any claim for money or any relief, which a defending party may have against an opposing
party, which at the time of suit arises out of, or is necessarily connected with, the same transaction or occurrence that is the
subject matter of the plaintiff’s complaint.

It is compulsory in the sense that it is within the jurisdiction of the court, does not require for its adjudication the presence of
third parties over whom the court cannot acquire jurisdiction, and will be barred in the future if not set up in the answer to the
complaint in the same case. Any other counterclaim is permissive.
● (34) Calibre Traders Inc v Bayer Philippines 633 S 34
A compulsory counterclaim is any claim for money or other relief, which a defending party may have against an opposing
party, which at the time of suit arises out of, or is necessarily connected with, the same transaction or occurrence that is the
subject matter of plaintiff’s complaint.

Tests to Determine whether a Counterclaim is Compulsory or Not:

(1) Are the issues of fact or law raised by the claim and the counterclaim largely the same?
(2) Would res judicata bar a subsequent suit on defen-ant’s claims, absent the compulsory counterclaim rule?
(3) Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? and
(4) Is there any logical relation between the claim and the counterclaim, such that the conduct of separate trials of the
respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court?”

Judicial Affidavit Rule A.M. 12-8-8-SC

-what will be filed

-judicial affidavits of witnesses
-documentary or object evidence, attached to the affidavit
-when to file
-not later than 5 days before trial or hearing of motion
-what should be contained
-matters to be testified on
-questions and answers
-attestation
-grounds for objection
-disqualify the witness
-admissibility grounds
-where applicable
-all actions, proceedings, incidents requiring presentation of evidence before
all courts except SC
-civil cases
-criminal cases
-penalty not more than 6 years
-where accused agrees, regardless of penalty

3.3. Effect of failure to plead

− Order of default
− by motion only, court cannot motu proprio declare party in default
− Consequences of order of default
− judgment by default, extent thereof limited by relief prayed for
− need for presentation of evidence
− Rationale for order of default

3.4. Amended/Supplemental Pleadings

− Amendment a matter of right before responsive pleading filed
− No limitation on extent of amendment, even changing cause of action set out in original
pleading
− Right to amend not affected by motion to dismiss or motion for summary judgment or even
motion for judgment on the pleadings which are not considered “responsive pleading”
− Rule when some but not all defendants filed responsive pleading

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 − When issues joined, substantial amendments discretionary and subject to the rule that the cause of action
is not substantially changed or the theory altered
● (35) Planters Development Bank v LZK Holdings & Development Co. 456 S 366
Supplemental pleading
- only serves to bolster or adds something to the primary pleading.
- exists side by side with the original.
- It does not replace that which it supplements.
- Assumes that the original pleading is to stand and that the issues joined with the original pleading remained
an issue to be tried in the action.
- A continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the
kind of relief with respect to the same subject matter as the controversy referred to in the original complaint.
- Purpose: To bring into the records new facts which will enlarge or change the kind of relief to which the
plaintiff is entitled; hence, any supplemental facts which further develop the original right of action, or extend to vary
the relief, are available by way of supplemental complaint even though they themselves constitute a right of action.

NOTE: While the parties may file supplemental pleadings only to supply deficiencies in aid of an original pleading, but not to
introduce new and independent causes of action, a broad definition of “cause of action” should be applied.

When the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the
original complaint, the court should not admit the supplemental complaint.

A supplemental complaint should have some relation to the cause of action set forth in the original pleading, the fact that the
supplemental pleading technically states a new cause of action should not be a bar to its allowance but only a factor can be
considered by the court in the exercise of its discretion; and of course, a broad definition of “cause of action” should be
applied here as elsewhere.

● (36) Young v Sy 503 S 151 (2006)

As its very name denotes, a supplemental pleading only serves to bolster or add something to the primary pleading—it exists
side by side with the original and does not replace that which it supplements; The purpose of the supplemental pleading is to
bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled.

● (37) PPA v WG&A GR 158401 January 28, 2008

The amendment may (now) substantially alter the cause of action or defense.” This should only be true, however, when
despite a substantial change or alteration in the cause of action or defense, the amendments sought to be made shall serve
the higher interests of substantial justice, and prevent delay and equally promote the laudable objective of the rules which is
to secure a “just, speedy and inexpensive disposition of every action and proceeding.”

− Amendment of the pleadings to conform to evidence presented during trial is allowed:

− when issues not raised by the pleadings are tried with the consent of the parties
− when, even if objected to, the court is satisfied no prejudice will befall the objecting party
− Supplemental pleadings not a matter of right

● (38) Leobrera v CA 170 S 711 (1989)

A supplemental complaint should, as the name implies, supply only deficiencies in aid of an original complaint It should
contain only causes of action relevant and material to the plaintiff’s right and which help or aid the plaintiff’s right or defense.

The supplemental complaint must be based on matters arising subsequent to the original complaint related to the claim or
defense presented therein, and founded on the same cause of action. It cannot be used to try a new matter or a new cause
of action.

● (39) Quirao v Quirao GR 148120, October 24, 2003

Amendments to pleadings are favored and should be liberally allowed in furtherance of justice, and this liberality is greatest in
the early stages of a lawsuit, decreases at it progresses, and changes at times to a strictness amounting to a prohibition.

− Effect of amended pleadings

− supersedes original pleading
− as a consequence, judicial admissions made in original pleadings need to be offered in evidence.
● (40) Director of Lands v CA, 196 S 94
NO DOCTRINE RE: AMENDED PLEADINGS

● (41) Dionisio v Linsangan GR 178159 March 2, 2011

An amended complaint that changes the plaintiff’s cause of action is technically a new complaint; The action is deemed
filed on the date of the filing of such amended pleading, not on the date of the filing of its original version; An amendment
supplements or amplifies the facts previously alleged, does not affect the reckoning date of filing based on the original
complaint.

To determine if an amendment introduces a different cause of action, the test is whether such amendment now requires the
defendant to answer for a liability or obligation which is completely different from that stated in the original complaint.

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 3.5. Responsive pleadings
− What is responsive pleading
− Answer – Judicial admissions binding on party
● (42) Santos v Lumbao 519 S 408 (2007)
Facts alleged in a party’s pleading are deemed admissions of that party and are binding upon him, but this is not an absolute
and inflexible rule.

An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence; In spite of the presence
of judicial admissions in a party’s pleading, the trial court is still given leeway to consider other evidence presented.

− Answer – Judicial admissions NOT binding on party

● (43) Gardner v CA 131 S 585

Judicial admissions in a pleading while binding on a party is not an inflexible rule. The testimony of a defendant who
repudiates the matters raised in his answer may be given credence.

− When to file?

o (44)San Pedro Cineplex v Heirs of Enano GR 190754 November 17, 2010

Where the answer is filed beyond the reglementary period but before the defendant is declared in default and there is no
showing that defendant intends to delay the case, the answer should be admitted. (Before a declaration of default and no
prejudice caused).

− Bill of particulars, motion to dismiss interrupt period to file responsive pleading

− Compulsory counterclaim or cross-claim should be set up in responsive pleading. However, it may be set
up anytime thereafter (but before judgment) if omitted through oversight, inadvertence or excusable
negligence
− Remedies of party declared in default
o (44) Otero v Tan 678 S 583
A defendant who fails to file an answer may, upon motion, be declared by the court in default; A party in default loses his
right to present his defense, control the proceedings, and examine or cross-examine witnesses.

Remedies available to Party declared in Default:

a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to set
aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable neglect,
and that he has meritorious defenses; (Sec. 3, Rule 18)
b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become
final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;
c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief
under Section 2 of Rule 38; and
d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition
to set aside the order of default has been presented by him.

3.6. Filing and service of pleadings and judicial papers

− Service on counsel is mandatory unless otherwise ordered by court
− Improper service is ineffectual and does not bind party
● (45) Cabili v Badelles, 6 S 190
Rules of Court applicable to election cases in a suppletory character; Service of decisions to counsel of record mandatory.

In accordance with the provisions of Rule 27, Section 2, service of decisions should be made to the lawyers on record and not
to parties.

When a party appears by an attorney who makes of record his appearance, service of pleadings is required to be made
upon said attorney and not upon the party; that a notice given to the client and not to his attorney is not a notice in law; that
service upon a party who has an attorney of record is not a compliance with Rule 27, Sec. 2, which makes service upon
counsel mandatory; and that personal information by a party of the rendition of a decision does not satisfy the right of counsel
to receive a copy of the decision rendered.

− Service of pleadings and court papers (other than judgments, final orders and resolutions) may be done
by substituted service if personal service and service by mail not successful
− Service of judgments, final orders and resolutions must be personal or by registered mail only (or by
publication where summons is served by publication)
− Service must be on counsel as service on party not permitted
− Where final order or judgment not served on party or lawyer, said judgment cannot become final
or executory.

3.7. Summons
− Rules on service is strictly construed, hence:

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 − For actions in personam
▪ against residents, service must be personal first then substituted if unsuccessful or
publication if whereabouts unknown or temporarily outside the country
▪ against non-residents, only personal service within the state can confer jurisdiction over
the defendant
− For actions in rem or quasi in rem
▪ against residents, same as above
▪ against non-residents, personal service outside the country, with leave of court, or
publication with leave of court
− For actions against domestic juridical persons, service only on those enumerated in the statute is
allowed
− For actions against foreign juridical entity, service must be on resident agent, government
regulator, or any of officers, agents within the country

● (46) Venturanza v CA 156 S 305

3 methods of SoS
1) personal service (Sec. 7);
2) substituted service (Sec. 8); and
3) service by publication.

Strict compliance with these modes of service is required in order that the court may require jurisdiction over the person of the
defendant. Service of summons upon the defendant is the means by which the court acquires jurisdiction over his person. This
process is for the benefit of the defendant, and is intended to af f ord the latter an opportunity to be heard on the claim
against him. In the absence of valid waiver trial and judgment, without such service, are null and void.

● (47) Samartino v Raon 383 S 664

In actions in personam, summons on the defendant must be served by handing a copy thereof to the defendant in person, or,
if he refuses to receive it, by tendering it to him.
If efforts to serve the summons personally to defendant is impossible, service may be effected by leaving copies of
the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion residing therein,
or by leaving the copies at the defendant’s office or regular place of business with some competent person in charge thereof.

IN SUM: Otherwise stated, service of summons upon the defendant shall be by personal service first and only when the
defendant cannot be promptly served in person will substituted service be availed of.
NOTE: The impossibility of personal service justifying availment of substituted service should be explained in the proof of service;
why efforts exerted towards personal service failed, otherwise substituted service cannot be upheld; Failure to do so would
invalidate all subsequent proceedings on jurisdictional grounds.

● (48) Valmonte v CA 252 S 92

In an action in personam, personal service of summons or, if this is not possible and he cannot be personally served, substituted
service, as provided in Rule 14, §§7-8 is essential for the acquisition by the court of jurisdiction over the person of a defendant
who does not voluntarily submit himself to the authority of the court. If defendant cannot be served with summons because he
is temporarily abroad, but otherwise he is a Philippine resident, service of summons may, by leave of court, be made by
publication. Otherwise stated, a resident defendant in an action in personam, who cannot be personally served with
summons, may be summoned either by means of substituted service in accordance with Rule 14, §8 or by publication as
provided in § 17 and 18 of the same Rule.

If the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court
jurisdiction so long as the court acquires jurisdiction over the res.

(49) Asiavest v CA 296 S 539

GR: In an action in personam wherein the defendant is a nonresident who does not voluntarily submit himself to the
authority of the court, personal service of summons within the state is essential to the acquisition of jurisdiction over
her person. This method of service is possible if such defendant is physically present in the country. If he is not found
therein, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case
against him.

EXPN: An exception was laid down in Gemperle v. Schenker wherein a non-resident was served with summons
through his wife, who was a resident of the Philippines and who was his representative and attorney-in-fact in a prior
civil case filed by him; moreover, the second case was a mere offshoot of the first case.

(50) Philam Gen vs Breva 442 S 217

It is not pertinent whether the summons is designated as an “original” or an “alias” summons as long as it
has adequately served its purpose. What is essential is that the summons complies with the requirements under the
Rules of Court and it has been duly served on the defendant together with the prevailing complaint. In this case, the
alias summons satisfies the requirements under the Rules, both as to its content and the manner of service. It contains

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all the information required under the rules, and it was served on the persons authorized to receive the summons on
behalf of the petitioner at its principal office in Manila. Moreover, the second summons was technically not an alias
summons but more of a new summons on the amended complaint. It was not a continuation of the first summons
considering that it particularly referred to the amended complaint and not to the original complaint.

(51) BPI v Santiago 519 S 389

Basic is the rule that a strict compliance with the mode of service is necessary to confer jurisdiction of the court
over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise, the
service is insufficient. The purpose is to render it reasonably certain that the corporation will receive prompt and
proper notice in an action against it or to insure that the summons be served on a representative so integrated with
the corporation that such person will know what to do with the legal papers served on him. Applying the aforestated
principle in the case at bar, we rule that the service of summons on BPI’s Branch Manager did not bind the
corporation for the branch manager is not included in the enumeration of the statute of the persons upon whom
service of summons can be validly made in behalf of the corporation. Such service is therefore void and ineffectual.
However, upon the issuance and the proper service of new summons on 11 March 2003, before the Writ of
Preliminary Injunction was issued on 20 March 2003, whatever defect attended the service of the original summons,
was promptly and accordingly cured.

In explaining the test on the validity of service of summons, Justice Florenz Regalado stressed that substantial
justice must take precedence over technicality and thus stated: The ultimate test on the validity and sufficiency on
service of summons is whether the same and the attachments thereto were ultimately received by the corporation
under such circumstances that no undue prejudice is sustained by it from the procedural lapse and it was afforded
full opportunity to present its responsive pleadings. This is but in accord with the entrenched rule that the ends of
substantial justice should not be subordinated to technicalities and, for which purpose, each case should be
examined within the factual milieu peculiar to it. Prescinding from the above, we deem it best to underscore that
there is no hard and fast rule pertaining to the manner of service of summons. Rather, substantial justice demands
that every case should be viewed in light of the peculiar circumstances attendant to each.

(52) San Pedro v Willy Ong and Normita Caballes GR 177598 October 17, 2008

There was a defect in the service of the summons on Dela Peña. The Sheriff immediately resorted to
substituted service of summons on Dela Peña without attempting first to effect personal service within reasonable
time. The Sheriff’s Return merely stated that he served a copy of the summons on Dela Peña’s sister-in-law who
refused to sign the same. Personal service of summons is preferred to substitute service. Only if the former cannot be
made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a)
indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the
defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing
in the address, or who is in charge of the office or regular place of business, of the defendant. It is likewise required
that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. The
failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the
service of summons ineffective. Indisputably, the Sheriff did not comply with any of the foregoing requirements, thus,
rendering his service of summons on Dela Peña invalid.

The improper service of summons on Dela Peña did not void the proceedings conducted by the RTC in Civil
Case No. 515-M-99, for lack of jurisdiction. As the Court has underscored herein, in quasi in rem proceedings, the
court need not acquire jurisdiction over the persons of the defendants, for as long as it has acquired jurisdiction over
the res. The defect in the service of summons merely infringed Dela Peña’s right to due process that precluded the
RTC from rendering a valid judgment with respect to her personal liability. And since Dela Peña’s right to due process
is personal and pertains to her alone, it could not be invoked by her other co-defendants in Civil Case No. 515-M-99
so as to escape the judgment of liability against them.

(53)Santos v PNOC Exploration GR 170943 September 23, 2008

In any action where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be
effected upon him by publication in a newspaper of general circulation and in such places and for such times as the
court may order. (emphasis supplied) Since petitioner could not be personally served with summons despite diligent
efforts to locate his whereabouts, respondent sought and was granted leave of court to effect service of summons
upon him by publication in a newspaper of general circulation. Thus, petitioner was properly served with summons by
publication.

The present rule expressly states that substituted service of summons applies “[i]n any actionwhere the
defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot
be ascertained by diligent inquiry.” Thus, it now applies to any action, whether in personam, in rem or quasi in rem.

Service of summons by publication is proved by the affidavit of the printer, his foreman or principal clerk, or
of the editor, business or advertising manager of the newspaper which published the summons. The service of
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summons by publication is complemented by service of summons by registered mail to the defendant’s last known
address. This complementary service is evidenced by an affidavit “showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last
known address.” The rules, however, do not require that the affidavit of complementary service be executed by the
clerk of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make
the complementary service by registered mail is imposed on the party who resorts to service by publication.

(54)Kawasaki Port Services vs Amores GR 58340 July 16, 1991

If the suit is purely an action for injunction, it is a personal action as well as an action in personam, hence,
personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer
jurisdiction on the court.

(55)Sansio Phils v Mogol GR 177007, July 14, 2009

Personal Service Substituted Service

Summons upon a respondent or a defendant must
be served by handing a copy thereof to him in
person or, if he refuses to receive it, by tendering it
to him.
Personal service of summons most effectively
ensures that the notice desired under the
constitutional requirement of due process is
accomplished.
The essence of personal service is the handing or
tendering of a copy of the summons to the
defendant himself, wherever he may be found; that
is, wherever he may be, provided he is in the
Philippines.
Substituted service derogates the regular
method of personal service. It is an
extraordinary method, since it seeks to bind the
respondent or the defendant to the
consequences of a suit, even though notice of
such action is served not upon him but upon
another whom the law could only presume
would notify him of the pending proceedings.
For substituted service to be justified, the
following circumstances must be clearly
established:
(a) personal service of summons within a
reasonable time was impossible;
(b) efforts were exerted to locate the party;
and
(c) the summons was served upon a person of
sufficient age and discretion residing at the
party’s residence or upon a competent person
in charge of the party’s office or place of
business.

(56)Guiguinto Credit v Torres GR 170926, September 15, 2006

Where the defendant is a natural person, service may be personal, substituted, by publication and such
other mode of service as the court may deem sufficient. In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the case.

How Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired

→ by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court.

If he cannot be personally served with summons within a reasonable time

→ substituted service may be made in accordance with Section 8 of the said Rule.

If he is temporarily out of the country, any of the following modes of service may be resorted to:
(1) substituted service set forth in Section 8;
(2) personal service outside the country, with leave of court;
(3) service by publication, also with leave of court; or
(4) any other manner the court may deem sufficient.

In these types of civil actions, summons on the defendant must be served by handing a copy thereof to the
defendant in person, or in case of refusal, by tendering it to him. If efforts to find defendant personally makes prompt

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 service impossible, service may be effected by leaving copies of the summons at the defendant’s dwelling house or
residence with some person of suitable age and discretion residing therein, or by leaving the copies at the
defendant’s office or regular place of business with some competent person in charge thereof. The proper service of
summons is a critical step in litigation because upon such service rests the court’s acquisition of jurisdiction over the
person of the defendant. In the absence of a valid waiver, trial and judgment without such service are null and void.

Where the process server hastily and capriciously resorted to substituted service of summons, failing to
ascertain the whereabouts of the defendants, such service of summons is not binding.

Where no valid substituted service was effected, the trial court does not acquire jurisdiction over the person
of the defendant.

(57)Potenciano v Barnes GR 159421, August 20, 2008

Service of summons on the defendant is the means by which the court acquires jurisdiction over the
defendant. Summons serves as a notice to the defendant that an action has been commenced against him,
thereby giving him the opportunity to be heard on the claim made against him. This is in accordance with the
constitutional guaranty of due process of law which requires notice and an opportunity to be heard and to defend
oneself.

Rule when service of summons cannot be made personally on the defendant

Section 6, Rule 14 of the Rules of Court underscores the importance of actual delivery or tender of the
summons to the defendant himself:

Section 6. Service in person on defendant.—Whenever practicable, the summons shall be served by

handing a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by tendering it to him.

Under this provision, service of summons should be made on the defendant himself. However, if for
justifiable reasons the defendant cannot be served in person within a reasonable time, substituted service of
summons is proper. Thus, Section 7, Rule 14 of the Rules of Court provides:

Section 7. Substituted service.—If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the
summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b)
by leaving the copies at defendant’s office or regular place of business with some competent person in charge
thereof.

The requisites of substituted service of summons

(1) the defendant cannot be served personally within a reasonable time; and
(2) the impossibility of prompt service should be shown by stating the efforts made to find the defendant personally
and the fact that such efforts failed, and this statement should be made in the proof of service.

In this case, the deputy sheriff never made any effort to serve the summons on Barnes himself. Neither was
the copy of the summons served at Barnes’ residence nor at his office or regular place of business, as provided under
Section 7 of Rule 14. The deputy sheriff just handed a copy of the summons to a messenger of E. Himan Law Office
who came to the office of the trial court claiming that E. Himan Law Office was the counsel of Barnes. Giving a copy
of the summons to a messenger of a law firm, which was not even the counsel of the defendant, cannot in any way
be construed as equivalent to service of summons on the defendant.

Effect when no service of summons on the defendant was effected

The trial court never acquired jurisdiction over him and the trial court’s order of default and the judgment
by default are void.

How else may the court acquire jurisdiction over the defendant apart from service of summons?

Other than valid service of summons on the defendant, the trial court can still acquire jurisdiction over the
defendant by his voluntary appearance, in accordance with Section 20, Rule 14 of the Rules of Court. However, this
is not the case here.

Dismissal of action (Rule 16)

Grounds
1. Lack of jurisdiction over subject matter
2. Litis pendentia
3. Res judicata
4. No cause of action

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 (58)Read Amigo v CA, 253 S 382

Jurisdiction over the subject matter Jurisdiction over the defendant

Jurisdiction over the subject matter of a case is
conferred by law and determined by the
allegations of the complaint.
Neither may petitioners feign absence of
jurisdiction over their persons. Jurisdiction over the
person of the defendant in a civil action is
acquired either by his voluntary appearance in
court and his submission to its authority or by
service of summons.

Jurisdiction over the subject matter may be
invoked at any stage of the proceedings (even on
appeal)
Jurisdiction over the person of the defendant,
however, as has been so held lately in La Naval
Drug Corporation v. Court of Appeals, must be
seasonably raised, and it can well be pleaded in
a motion to dismiss or by way of an affirmative
defense in an answer.

Lack of jurisdiction over subject matter

(59)La Naval v CA, 236 S 78

The lack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When
a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so
wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction
of the court; otherwise, he shall be deemed to have submitted himself to that jurisdiction. The decisions promulgated
heretofore by this Court would likewise seemingly apply estoppel to bar the defendant from pursuing that defense by
alleging in his answer any other issue for dismissing the action.

In Wang Laboratories, Inc. vs. Mendoza, this Court has ruled that if the defendant, besides setting up in a
motion to dismiss his objection to the jurisdiction of the court, alleges at the same time any other ground for dismissing
the action, he is deemed to have submitted himself to the jurisdiction of the court. In the process, it has equated the
matter to a situation where, such as in Immaculata vs. Judge Navarro, et al., the defendant invokes an affirmative
relief against his opponent.

When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the
person, it must be for the sole and separate purpose of objecting to the jurisdiction of the court. If his motion is for any
other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the
jurisdiction of the court. A special appearance by motion made for the purpose of objecting to the jurisdiction of the
court over the person will be held to be a general appearance, if the party in said motion should, for example, ask
for a dismissal of the action upon the further ground that the court had no jurisdiction over the subject matter.

(60)Ilocos Sur Electric v NLRC 241 S 36

It has been consistently held by this Court that while jurisdiction may be assailed at any stage, a part's
active participation in the proceedings before a court without jurisdiction will estop such party from assailing such
lack of it. It is an undesirable practice of a party participating in the proceedings and submitting his case for decision
and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse.

(61)Andaya v Abadia 228 S 705

Jurisdiction over subject matter is essential in the sense that erroneous assumption thereof may put at
naught whatever proceedings the court might have had. Hence, even on appeal, and even if the parties do not
raise the issue of jurisdiction, the reviewing court is not precluded from ruling that it has no jurisdiction over the case. It
is elementary that jurisdiction is vested by law and cannot be conferred or waived by the parties or even by the
judge. It is also irrefutable that a court may at any stage of the proceedings dismiss the case for want of jurisdiction.
For this matter, the ground of lack of jurisdiction in dismissing a case is not waivable. Hence, the last sentence of Sec.
2, Rule 9, Rules of Court, expressly states: “Whenever it appears that the court has no jurisdiction over the subject
matter, it shall dismiss the action.”

Hence, from the foregoing, even if no answer or motion to dismiss is filed the court may dismiss the case for
want of jurisdiction. In this sense, dismissal for lack of jurisdiction may be ordered by the court motu proprio.

(62)Republic v Bantigue Point Development Corp 668 S 158

The rule is settled that lack of jurisdiction over the subject matter may be raised at any stage of the
proceedings. Jurisdiction over the subject matter is conferred only by the Constitution or the law. It cannot be
acquired through a waiver or enlarged by the omission of the parties or conferred by the acquiescence of the court.
Consequently, questions of jurisdiction may be cognizable even if raised for the first time on appeal.

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 The ruling of the Court of Appeals that “a party may be estopped from raising such [jurisdictional] question
if he has actively taken part in the very proceeding which he questions, belatedly objecting to the court’s jurisdiction
in the event that the judgment or order subsequently rendered is adverse to him” is based on the doctrine of
estoppel by laches. We are aware of that doctrine first enunciated by this Court in Tijam v. Sibonghanoy, 23 SCRA 29
(1968).

In Tijam, the party-litigant actively participated in the proceedings before the lower court and filed
pleadings therein. Only 15 years thereafter, and after receiving an adverse Decision on the merits from the appellate
court, did the party-litigant question the lower court’s jurisdiction. Considering the unique facts in that case, we held
that estoppel by laches had already precluded the party-litigant from raising the question of lack of jurisdiction on
appeal.

In Figueroa v. People, 558 SCRA 63 (2008), we cautioned that Tijam must be construed as an exception to
the general rule and applied only in the most exceptional cases whose factual milieu is similar to that in the latter
case.

Pendentia litis

(63)Read Andersons Group v CA. 266 S 423

Litis pendens as a ground for the dismissal of a civil action refers to that situation wherein another action is
pending between the same parties for the same cause of action. To constitute the defense of lis pendens, it must
appear that not only are the parties in the two actions the same but there is substantial identity in the cause of
action and relief sought. Further, it is required that the identity be such that any judgment which may be rendered in
the other would, regardless of which party is successful, amount to res judicata on the case on hand.

In conceptualizing lis pendens, we have said that like res judicata as a doctrine, litis pendentia is a sanction
of public policy against multiplicity of suits. The principle upon which a plea of another action pending is sustained is
that the latter action is deemed unnecessary and vexatious.
A civil action is commenced by filing a complaint with the court. The phraseology adopted in the Rules of
Court merely states that another action pending between the same parties for the same cause is a ground for
motion to dismiss. As worded, the rule does not contemplate that there be a prior pending action, since it is enough
that there is a pending action. Neither is it required that the party be served with summons before lis pendens should
apply.

It must be emphasized that the rule on litis pendentia does not require that the later case should yield to the
earlier. The criterion used in determining which case should be abated is which is the more appropriate action or
which court would be “in a better position to serve the interests of justice.”

(64)Ramos v Peralta, 203 S 412

Under the rules and jurisprudence, for litis pendentia to be invoked as a ground for the dismissal of an
action, the concurrence of the following requisites is necessary:
(a) Identity of parties or at least such as represent the same interest in both actions;
(b) Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and
(c) The identity in the two cases should be such that the judgment that may be rendered in one would,
regardless of which party is successful, amount to res judicata in the other.

(65)Yap v Chua 672 S 411

Forum Shopping Litis Pendentia Res Judicata

Forum shopping is the institution of
two or more actions or
proceedings involving the same
parties for the same cause of
action, either simultaneously or
successively, on the supposition
that one or the other court would
make a favorable disposition.
Litis pendentia as a ground for Hornbook is the rule that
the dismissal of a civil action identity of causes of action
refers to that situation wherein does not mean absolute
another action is pending identity; otherwise, a party
between the same parties for could easily escape the
the same cause of action, such operation of res judicata by
that the second action changing the form of the
becomes unnecessary and action or the relief sought.
vexatious.

Forum shopping may be resorted The test to determine

to by any party against whom an whether the causes of action
adverse judgment or order has The underlying principle of litis are identical is to ascertain
been issued in one forum, in an pendentia is the theory that a whether the same evidence

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 attempt to seek a favorable
opinion in another, other than by
appeal or a special civil action for
certiorari.
Forum shopping trifles with the
courts, abuses their processes,
degrades the administration of
justice and congest court dockets.
What is critical is the vexation
brought upon the courts and the
litigants by a party who asks
different courts to rule on the same
or related causes and grant the
same or substantially the same
reliefs and in the process creates
the possibility of conflicting
decisions being rendered by the
different fora upon the same
issues.
Willful and deliberate violation of
the rule against forum shopping is
a ground for summary dismissal of
the case; it may also constitute
direct contempt.
party is not allowed to vex
another more than once
regarding the same subject
matter and for the same cause
of action. This theory is founded
on the public policy that the
same subject matter should not
be the subject of controversy in
courts more than once, in order
that possible conflicting
judgments may be avoided for
the sake of the stability of the
rights and status of persons.
The requisites of litis pendentia
are:
(a) the identity of parties, or at
least such as representing the
same interests in both actions;
(b) the identity of rights asserted
and relief prayed for, the relief
being founded on the same
facts; and
(c) the identity of the two cases
such that judgment in one,
regardless of which party is
successful, would amount to res
judicata in the other.
will sustain both actions, or
whether there is an identity in
the facts essential to the
maintenance of the two
actions. If the same facts or
evidence would sustain both,
the two actions are
considered the same, and a
judgment in the first case is a
bar to the subsequent
action.
Hence, a party cannot, by
varying the form of action or
adopting a different method
of presenting his case,
escape the operation of the
principle that one and the
same cause of action shall
not be twice litigated
between the same parties or
their privies.
Among the several tests
resorted to in ascertaining
whether two suits relate to a
single or common cause of
action are:
(1) whether the same
evidence would support and
sustain both the first and
second causes of action;
and

(2) whether the defenses in

one case may be used to
substantiate the complaint in
the other. Also fundamental
is the test of determining
whether the cause of action
in the second case existed at
the time of the filing of the
first complaint.

Res Judicata

(66)Read Vda de Cruzo v Cariaga, 174 S 330

Res judicata as a bar by former judgment Res judicata as merely a rule on the
conclusiveness of judgment

There is an identity in the cause of action in both The cause of action in the first case is different
cases involved from that in the second case.

Test to Determine Identity of Causes of Action

Whether the same evidence which is necessary to sustain the second action would have been sufficient to
authorize a recovery in the first, even if the forms or nature of the two actions be different. If the same facts or
evidence would sustain both, the two actions are considered the same within the rule that the judgment in the
former is a bar to the subsequent action; otherwise it is not. It has been said that this method is the best and most
accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it
has even been designated as infallible.

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 (67)Hacienda Bigaa Inc v Chavez 618 S 559

The doctrine of res judicata is set forth in Section 47 of Rule 39 of the Rules of Court, comprehends two
distinct concepts of res judicata: (1) bar by former judgment and (2) conclusiveness of judgment.

Res judicata as a bar by former judgment Res judicata as conclusiveness of judgment

Under the first concept, res judicata absolutely
bars any subsequent action when the following
requisites concur:
(a) the former judgment or order was final;
(b) it adjudged the pertinent issue or issues on
their merits;
(c) it was rendered by a court that had jurisdiction
over the subject matter and the parties; and
(d) between the first and the second actions,
there was identity of parties, of subject matter,
and of causes of action.
A bar by former judgment
proscribes subsequent actions.
Where no identity of causes of action but only
identity of issues exists.
Under this concept, the rule bars the re-litigation
of particular facts or issues involving the same
parties even if raised under different claims or
causes of action.
Conclusiveness of judgment finds application
when a fact or question has been squarely put in
issue, judicially passed upon, and adjudged in a
former suit by a court of competent jurisdiction.
The fact or question settled by final judgment or
order binds the parties to that action (and persons
in privity with them or their successors-in-interest),
and continues to bind them while the judgment or
order remains standing and unreversed by proper
authority on a timely motion or petition; the
conclusively settled fact or question furthermore
cannot again be litigated in any future or other
action between the same parties or their privies
and successors-in-interest, in the same or in any
other court of concurrent jurisdiction, either for the
same or for a different cause of action.

Thus, only the identities of parties and issues are

required for the operation of the principle of
conclusiveness of judgment.

Conclusiveness of judgment does not estops the

parties from raising in a later case the issues or
points that were raised and controverted, and
were determinative of the ruling in the earlier
case.

No cause of action

(68)Read San Lorenzo v CA, 288 S 115

A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically
admits the truth of the facts alleged therein. However, the hypothetical admission is limited to the “relevant and
material facts well pleaded in the complaint and inferences fairly deductible therefrom. The admission does not
extend to conclusions or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to
judicial notice.”

However, it should be pointed out at the outset that it is not “lack or absence of cause of action” that is a
ground for dismissal of the complaint, but rather, that “the complaint states no cause of action.”

(69)Calalang v IAC, 194 S 514

It is a well-settled rule that in a motion to dismiss based on the failure of the complaint to state a cause of
action, the question submitted for determination is sufficiency of allegation in the complaint itself. The sufficiency of
the cause of action must appear on the face of the complaint itself in order to sustain a dismissal on the ground. This
rule applies when the only affirmative defense is the failure of the complaint to state a cause of action. It does not
apply when the grounds relied upon by way of affirmative defenses state other matters.

The trial court dismissed the case against Ferdinand Calalang motu proprio based on the ground that there
is no valid cause of action against him. This is not a ground for dismissal of action under Rule 16; but the failure of the
complaint to state a cause of action. The pleadings, memorandum and motion for reconsideration and opposition,

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 thereto, might show that there is no valid cause of action against Ferdinand Calalang; still, the court is not allowed
by law to dismiss the case motu proprio. As long as there is a cause of action in the complaint itself, procedural due
process demands that there must be a hearing on the merits with the complaint as “prima facie evidence of the
facts therein stated.

(70)Perpetual v Fajardo, 233 S 720

“The rule is that a defendant moving to dismiss a complaint on the ground of lack of cause of action is
regarded as having hypothetically admitted all the averments thereof. The test of the sufficiency of the facts found
in a petition as constituting a cause of action is whether or not, admitting the facts alleged, the court can render a
valid judgment upon the same in accordance with the prayer thereof.

In determining the existence of a cause of action, only the statements in the complaint may properly be
considered. It is error for the court to take cognizance of external facts or hold preliminary hearings to determine their
existence. If the allegations in a complaint furnish sufficient basis by which the complaint may be maintained, the
same should not be dismissed regardless of the defenses that may be assessed by the defendants.

Requisites of Cause of Action:

(1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created;

(2) an obligation on the part of the named defendant to respect, or not to violate such right; and

(3) an act or omission on the part of the said defendants constituting a violation of the plaintiff’s right or a
breach of the obligation of the defendant to the plaintiff.

(71)City of Cebu v CA, 258 S 175

When the motion to dismiss is based on the ground that the complaint states no cause of action, no
evidence may be allowed and the issue should only be determined in the light of the allegations of the complaint.

Remedy in case of granting/denial of motion to dismiss

1. Order denying motion to dismiss is interlocutory, hence proper remedy is to appeal after a decision has been
rendered

(72)Indiana Aerospace University v Commission On Higher Education, 356 S 367

An order denying a motion to dismiss is interlocutory, and so the proper remedy in such a case is to appeal
after a decision has been rendered. A writ of certiorari is not intended to correct every controversial interlocutory
ruling; it is resorted to only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to
lack of jurisdiction. Its function is limited to keeping an inferior court within its jurisdiction and to relieve persons from
arbitrary acts—acts which courts or judges have no power or authority in law to perform. It is not designed to correct
erroneous findings and conclusions made by the court.

(73)Bangko Silangan v CA, 360 S 322

An interlocutory order does not terminate nor finally dispose of the case, but leaves something to be done
by the court before the case is finally decided on the merits. It is always under the control of the court and may be
modified or rescinded upon sufficient grounds shown at any time before final judgment. This proceeds from the
court’s inherent power to control its process and orders so as to make them conformable to law and justice. The only
limitation is that the judge cannot act with grave abuse of discretion, or that no injustice results thereby.

Our recent ruling in Españo, Sr. vs. Court of Appeals applies to the case at bar, to wit: “We find occasion
here to state the rule, once more, that an order denying a motion to dismiss is merely interlocutory and therefore not
appealable, nor can it be the subject of a petition for review on certiorari. Such order may only be reviewed in the
ordinary course of law by an appeal from the judgment after trial. The ordinary procedure to be followed in that
event is to file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final
judgment. Although the special civil action for certiorari may be availed of in case there is grave abuse of discretion
or lack of jurisdiction on the part of the lower court, that vitiating error is indubitably not present in the instant case.

(74)Yutingco v CA, 386 S 85

GR: An order denying a motion to dismiss is interlocutory and cannot be the subject of the extraordinary petition for
certiorari or mandamus. Petitioners’ recourse is to file an answer and to interpose as defenses the objections raised in
their motion to dismiss, proceed to trial, and in case of an adverse decision, elevate the entire case by appeal in due
course.

EXPNS:
(a) when the trial court issued the order without or in excess of jurisdiction;

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 (b) when there is patent grave abuse of discretion by the trial court; or

(c) when appeal would not prove to be a speedy and adequate remedy as when an appeal would not promptly
relieve a defendant from the injurious effects of the patently mistaken order maintaining the plaintiff’s baseless
action and compelling the defendants to needlessly go through a protracted trial and clogging the court dockets
with another futile case.

2. Order granting motion to dismiss disposes of the case hence, appeal under Rule 41 is applicable.

Dismissal of Action (Rule 17)

(75)Pinga v Heirs of Santiago GR 170354 June 30, 2006

Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the complaint due to the fault
of plaintiff does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise. In fact, the
dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim.

The express qualification in the provision that the dismissal of the complaint due to the plaintiff’s fault, as in
the case for failure to prosecute, is without prejudice to the right of the defendant to prosecute his counterclaim in
the same or separate action. This stands in marked contrast to the provisions under Rule 17 of the 1964 Rules of Court
which were superseded by the 1997 amendments. In the 1964 Rules, dismissals due to failure to prosecute were
governed by Section 3, Rule 17.

(76)Filinvest v CA GR 142439 December 6, 2006

A dismissal for failure to prosecute has the effect of an adjudication on the merits, and operates as res
judicata, particularly when the court did not direct that the dismissal was without prejudice.

(77)Heirs of Gaudiane v CA GR 119879 March 11, 2004

We cannot delve anymore into the legality and validity of the order of dismissal dated January 10, 1985 in
Civil Case No. 6817 because it has long become final and executory for failure of the petitioners to file an appeal. In
accordance with Section 3, Rule 17 of the 1997 Rules of Civil Procedure, said order had the effect of judgment on
the merits although no trial was conducted because it did not contain any statement that the case was dismissed
without prejudice to the filing of a similar future action. As such, based on the principle of res judicata, the petitioners
are barred in another action (involving the same subject matter, parties and issues) from raising a defense and from
asking for a relief inconsistent with an order dismissing an earlier case with prejudice.

(78)Cruz v CA GR 164797 February 13, 2006

The rule enumerates the instances where the complaint may be dismissed due to plaintiff’s fault: (1) if he
fails to appear on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an
unreasonable length of time; or (3) if he fails to comply with the rules or any order of the court. Once a case is
dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with
prejudice to the filing of another action unless otherwise provided in the order of dismissal. In other words, unless
there be a qualification in the order of dismissal that it is without prejudice, the dismissal should be regarded as an
adjudication on the merits and is with prejudice.

It is clear from the afore-mentioned order that said case was dismissed, upon petitioners’ motion, for failure
of private respondents and their counsel to attend several scheduled hearings for the presentation of their evidence.
Since the order did not contain a qualification whether same is with or without prejudice, following Section 3, it is
deemed to be with prejudice and shall have the effect of an adjudication on the merits. A ruling based on a motion
to dismiss, without any trial on the merits or formal presentation of evidence, can still be a judgment on the merits.

(79)Dael v Sps Beltran GR 156470 April 30, 2008

Under Sec. 1, Rule 17 of the 1997 Rules of Civil Procedure it is mandatory that the trial court issue an order
confirming such dismissal and, unless otherwise stated in the notice, the dismissal is without prejudice and could be
accomplished by the plaintiff through mere notice of dismissal, and not through motion subject to approval by the
court. Dismissal is ipso facto upon notice, and without prejudice unless otherwise stated in the notice. The trial court
has no choice but to consider the complaint as dismissed, since the plaintiff may opt for such dismissal as a matter of
right, regardless of the ground.

Respondents argue that the Motion to Dismiss they filed precedes the Notice of Dismissal filed by petitioner
and hence, the trial court correctly gave it precedence and ruled based on the motion. This argument is erroneous.
Section 1 of Rule 17 does not encompass a Motion to Dismiss. The provision specifically provides that a plaintiff may
file a notice of dismissal before service of the answer or a motion for summary judgment. Thus, upon the filing of the
Notice of Dismissal by the plaintiff, the Motion to Dismiss filed by respondents became moot and academic and the
trial court should have dismissed the case without prejudice based on the Notice of Dismissal filed by the petitioner.

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 (80)Mendoza v Paule GR 175885 February 31, 2009

Where the defendant has interposed a counterclaim (whether compulsory or permis-sive) or is seeking
affirmative relief by a cross-complaint, the plaintiff cannot dismiss the action so as to affect the right of the
defendant in his counterclaim or prayer for affirmative relief. The reason for that exception is clear. When the answer
sets up an independent action against the plaintiff, it then becomes an action by the defendant against the plaintiff,
and, of course, the plaintiff has no right to ask for a dismissal of the defendant’s action.

The present rule embodied in Sections 2 and 3 of Rule 17 of the 1997 Rules of Civil Procedure ordains a more
equitable disposition of the counterclaims by ensuring that any judgment thereon is based on the merit of the
counterclaim itself and not on the survival of the main complaint. Certainly, if the counterclaim is palpably without
merit or suffers jurisdictional flaws which stand independent of the complaint, the trial court is not precluded from
dismissing it under the amended rules, provided that the judgment or order dismissing the counterclaim is premised
on those defects. At the same time, if the counterclaim is justified, the amended rules now unequivocally protect
such counterclaim from peremptory dismissal by reason of the dismissal of the complaint.

(81)Benedicto v Lacson GR 142508 May 5, 2010

It is a settled rule that an Order denying a motion to dismiss is merely interlocutory and, therefore, not
appealable, nor can it be subject of a petition for review on certiorari. Such order may only be reviewed in the
ordinary course of law by an appeal from the judgment after trial. The ordinary procedure to be followed in that
event is to file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final
judgment.

Pre-trial
Definition
(82)Anson Trade Center v Pacific Banking, GR No. 179999 17 Mar 2009
Pre-trial, by definition, is a procedural device intended to clarify and limit the basic issues raised by the
parties and to take the trial of cases out of the realm of surprise and maneuvering. It is an answer to the clarion call
for the speedy disposition of cases. Hailed as the most important procedural innovation in Anglo-Saxon justice in the
nineteenth century, it thus paves the way for a less cluttered trial and resolution of the case.

(83)Interlining Corp. v Philippine Trust Co. 428 S 583 (2002)

The conduct of a pre-trial in civil actions has been mandatory as early as January 1, 1964, upon the
effectivity of the Revised Rules of Court. Pre-trial is a procedural device intended to clarify and limit the basic issues
between the parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to
simplify, abbreviate and expedite the trial, or totally dispense with it, as in the case at bar.

Prescinding therefrom, it is a basic legal precept that the parties are bound to honor the stipulations they
made during the pre-trial. The issue in the case at bar involves a determination of whether or not the counsel of
respondent agreed to stipulate as to the release of the individual petitioners from their solidary liability.

Setting for Pre-Trial

(84)Espiritu v Lazaro, GR. No.181020 20 Nov 2009
Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set the case for pre-trial after
the last pleading is served and filed. Under Section 3 of Rule 17, failure to comply with the said duty makes the case
susceptible to dismissal for failure to prosecute for an unreasonable length of time or failure to comply with the rules.

(84)Polanco v Cruz, GR. No. 182426 13 Feb 2009

Section 1, Rule 18 of the 1997 Rules of Civil Procedure imposes upon the plaintiff the duty to promptly move
ex parte to have the case set for pre-trial after the last pleading has been served and filed. Moreover, Section 3, Rule
17 provides that failure on the part of the plaintiff to comply with said duty without any justifiable cause may result to
the dismissal of the complaint for failure to prosecute his action for an unreasonable length of time or failure to
comply with the rules of procedure. It must be stressed that even if the plaintiff fails to promptly move for pre-trial
without any justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be
warranted if no substantial prejudice would be caused to the defendant, and there are special and compelling
reasons which would make the strict application of the rule clearly unjustified.

A.M. No. 03-1-09-SC or the new Guidelines To Be Observed By Trial Court Judges And Clerks Of Court In The
Conduct Of Pre-Trial And Use Of Deposition-Discovery Measures, which took effect on August 16, 2004, aims to
abbreviate court proceedings, ensure prompt disposition of cases and decongest court dockets, and to further
implement the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated January 15, 1999. A.M. No. 03-
1-09-SC states that: “Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that
the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC
shall issue a notice of pre-trial.” As such, the clerk of court of Branch 17 of the Regional Trial Court of Malolos should
issue a notice of pre-trial to the parties and set the case for pre-trial.

A.M. No. 03-1-09-SC [See previous paragraph]

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Failure to have Pre-trial
(85)Madrid v Spouses Mapoy, GR. 150887 14 Aug 2009
The petitioners-defendants, having been belatedly served summons and brought into the case, were
entitled to a pre-trial as ordained by Section 2, Rule 18 of the Rules of Court. Unless substantial prejudice is shown,
however, the trial court’s failure to schedule a case for new trial does not render the proceedings illegal or void ab
initio. Where, as in this case, the trial proceeded without any objection on the part of the petitioners-defendants by
their failure to bring the matter to the attention of the RTC, the petitioners-defendants are deemed to have
effectively forfeited a procedural right granted them under the Rules. Issues raised for the first time on appeal and
not raised timely in the proceedings in the lower court are barred by estoppel. Points of law, theories, issues and
arguments not brought to the attention of the trial court ought not to be considered by a reviewing court, as these
cannot be raised for the first time on appeal. To consider the alleged facts and arguments raised belatedly would
amount to trampling on the basic principles of fair play, justice, and due process.

Failure of defendant to appear

1. Will result in plaintiff presenting his evidence ex parte and for the court to render judgment thereon.
2. This is dissimilar to default from failure to plead where the sanction is for the court to render judgment based on the
complaint
3. Summary judgment or judgment on pleadings possible if facts are discovered in pre-trial to warrant such action
4. Effect of Pre-trial Order

General Rule: Binding on all parties, A.M. No. 03-1-09-SC

(86)Exception: Read Heirs of Reyes v CA, 519 S 250 (2007)
The Court is mindful of the rule that the determination of issues at a pre-trial conference bars the
consideration of other questions on appeal. A pre-trial is meant to serve as a device to clarify and narrow down the
basic issues between the parties, to ascertain the facts relative to those issues and to enable the parties to obtain the
fullest possible knowledge of the issues and facts before civil trials and thus prevent trials from being carried on in the
dark. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of
law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters.
The rule, however, is not to be applied with rigidity and admits of certain exceptions. There is merit in petitioners’
claim that the limitation upon the issue embodied in the pretrial order did not control the course of the trial. The issue
on the nature of the property was embodied in the pleadings filed by the parties subsequent to the complaint and
was actively litigated by them without any objection on the part of private respondents. In view thereof, the latter
are deemed to have given their implied consent for the RTC to try this issue. It is worthy to note that a careful perusal
of the RTC decision would reveal that the trial court found it unnecessary to make a categorical finding as to
whether the deed was simulated or fictitious, the focal point being the character of the property at the time of the
transfer to private respondents. While it is true that the RTC cited the evidence introduced by petitioners to establish
that the sale was simulated or fictitious, it did not make a clear and definitive ruling on this matter.

Intervention (Rule 19)

(87)Nordic Asia v CA 403 S 390
In Republic v. De los Angeles, this Court ruled that every complaint, including a complaint-in-intervention,
must state the ultimate facts upon which a party relies for his cause of action. A cause of action is the act or omission
by which a party violates the right of another.

Jurisprudence has laid down the requirements for intervention:

[a] it must be shown that the movant has legal interest in the matter in litigation; and
[b] consideration must be given as to whether the adjudication of the rights of the original parties may be
delayed or prejudiced, or whether or not the intervenor’s rights may be protected in a separate proceeding.

With respect to the first requisite, it has been explained that the interest which entitles a person to intervene
in a suit between other parties must be in the matter in litigation and of such direct and immediate character that
the intervenor will either gain or lose by direct legal operation and effect of the judgment. Otherwise, if persons not
parties to the action were allowed to intervene, proceedings would become unnecessarily complicated, expensive
and interminable. And this would be against the policy of the law. The words “an interest in the subject” mean a
direct interest in the cause of action as pleaded, one that would put the intervenor in a legal position to litigate a
fact alleged in the complaint without the establishment of which plaintiff could not recover.

(88)Salandanan v Sps Mendoza GR 160280 (2009)

Intervention is allowed at any time before rendition of judgment by the trial court. After the lapse of this
period, it will not be warranted anymore because intervention is not an independent action but is ancillary and
supplemental to an existing litigation. The permissive tenor of the provision on intervention shows the intention of the
Rules to give to the court the full measure of discretion in permitting or disallowing the same, but under Section 1,
Rule 19 of the Rules of Court, the courts are nevertheless mandated to consider several factors in determining
whether or not to allow intervention. The factors that should be reckoned are whether intervention will unduly delay
or prejudice the adjudication of the rights of the original parties and whether the intervenor’s rights may be fully
protected in a separate proceeding.

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 (89)Mactan Cebu Intl Airpot v Heirs of Minoza GR 186045 February 2, 2011
Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a
litigant therein to enable him, her or it to protect or preserve a right or interest which may be affected by such
proceedings. It is a proceeding in a suit or action by which a third person is permitted by the court to make himself a
party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the
claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third
person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an
original party to pending legal proceedings, by which such person becomes a party thereto for the protection of
some right of interest alleged by him to be affected by such proceedings.

In general, an independent controversy cannot be injected into a suit by intervention, hence, such
intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the
remedies. It is not proper where there are certain facts giving the intervenor’s case an aspect peculiar to himself and
differentiating it clearly from that of the original parties; the proper course is for the would-be intervenor to litigate his
claim in a separate suit. Intervention is not intended to change the nature and character of the action itself, or to
stop or delay the placid operation of the machinery of the trial. The remedy of intervention is not proper where it will
have the effect of retarding the principal suit or delaying the trial of the action.

(90)GSIS v Nocom GR 175989 February 4, 2008

Intervention is valid when a person has:

(1) a legal interest in the matter in litigation;
(2) or in the success of any of the parties;
(3) or an interest against the parties; (
4) or when he is so situated as to be adversely affected by a distribution or disposition of property in the
custody of the court or an officer thereof.

In Perez v. Court of Appeals, 480 SCRA 411 (2006), this Court ruled that the legal interest which entitles a
person to intervene must be in the matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by direct legal operation and effect of judgment.

(91)Ombudsman v Maximo Sison GR 185954 February 16, 2010

To warrant intervention under Rule 19 of the Rules of Court, two requisites must concur:
(1) the movant has a legal interest in the matter in litigation; and
(2) intervention must not unduly delay or prejudice the adjudication of the rights of the parties, nor should
the claim of the intervenor be capable of being properly decided in a separate proceeding. The interest, which
entitles one to intervene, must involve the matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by the direct legal operation and effect of the judgment.

Discovery
1. Compulsory process wherein litigants are forced, by court rules or orders, to disgorge private information to adverse
party
2. Purpose of discovery is to obtain knowledge of material facts within the knowledge of the adverse party or of third
parties; obtain admissions from adverse parties and to inspect relevant documents, objects and property.
3. What are discoverable?
4. Limitations on discoverability
5. Modes of discovery
a. Deposition
1. function
2. when may be availed of
(92)Pajarilla v CA 570 S 347 (2008)

Deposition is chiefly a mode of discovery, the primary function of which is to supplement

the pleadings for the purpose of disclosing the real points of dispute between the parties and
affording an adequate factual basis during the preparation for trial. It should be allowed absent
any showing that taking it would prejudice any party. It is accorded a broad and liberal treatment
and the liberty of a party to make discovery is well-nigh unrestricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds
of law. It is allowed as a departure from the accepted and usual judicial proceedings of
examining witnesses in open court where their demeanor could be observed by the trial judge,
consistent with the principle of promoting just, speedy and inexpensive disposition of every action
and proceeding; and provided it is taken in accordance with the provisions of the Rules of Court,
i.e., with leave of court if summons have been served, and without such leave if an answer has
been submitted; and provided further that a circumstance for its admissibility exists.

There is nothing in the Rules of Court or in jurisprudence which restricts a deposition to the
sole function of being a mode of discovery before trial. Under certain conditions and for certain
limited purposes, it may be taken even after trial has commenced and may be used without the
deponent being actually called to the witness stand. There is no rule that limits deposition-taking

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 only to the period of pre-trial or before it; no prohibition exists against the taking of depositions
after pre-trial. There can be no valid objection to allowing them during the process of executing
final and executory judgments, when the material issues of fact have become numerous or
complicated. Such being the case, there is really nothing objectionable, per se, with petitioner
availing of this discovery measure after private respondent has rested his case and prior to
petitioner’s presentation of evidence. To reiterate, depositions may be taken at any time after the
institution of any action, whenever necessary or convenient.

▪ de bene esse (pending action)

▪ perpetuam rei memoriam (prior to action)
▪ who do you depose
b. Interrogatories to parties
▪ effect of failure to serve written interrogatories
c. Requests for admission
(93)Sime Darby Employees Association v NLRC 510 S 204

Rule 26 as a mode of discovery contemplates of interrogatories that would clarify and

tend to shed light on the truth or falsity of the allegations in a pleading. That is its primary function.
It does not refer to a mere reiteration of what has already been alleged in the pleadings.
Otherwise stated, petitioner’s request constitutes “an utter redundancy and a useless,
pointless process which the respondent should not be subjected to.” The rule on admission as a
mode of discovery is intended “to expedite trial and to relieve parties of the costs of proving facts
which will not be disputed on trial and the truth of which can be ascertained by reasonable
inquiry.” Thus, if the request for admission only serves to delay the proceedings by abetting
redundancy in the pleadings, the intended purpose for the rule will certainly be defeated.

d. Production and inspection of things

e. Examination of persons
(94)Republic v Sandiganbayan, 204 S 212
The various modes or instruments of discovery are meant to serve:
(1) as a device, along with the pre-trial hearing under Rule 20, to narrow and clarify the basic
issues between the parties, and
(2) as a device for ascertaining the facts relative to those issues. The evident purpose is, to repeat,
to enable the parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the
issues and facts before civil trials and thus prevent that said trials are carried on in the dark.

To this end, the field of inquiry that may be covered by depositions or interrogatories is as broad as
when the interrogated party is called as a witness to testify orally at trial. The inquiry extends to all facts
which are relevant, whether they be ultimate or evidentiary, excepting only those matters which are
privileged. The objective is as much to give every party the fullest possible information of all the relevant
facts before the trial as to obtain evidence for use upon said trial.

Leave of court not necessary

In line with this principle of according liberal treatment to the deposition-discovery mechanism,
such modes of discovery as (a) depositions (whether by oral examination or written interrogatories) under
Rule 24, (b) interrogatories to parties under Rule 25, and (c) requests for admissions under Rule 26, may be
availed of without leave of court, and generally, without court intervention. The Rules of Court explicitly
provide that leave of court is not necessary to avail of said modes of discovery after an answer to the
complaint has been served. It is only when an answer has not yet been filed (but after jurisdiction has been
obtained over the defendant or property subject of the action) that prior leave of court is needed to avail
of these modes of discovery, the reason being that at that time the issues are not yet joined and the
disputed facts are not clear.

Leave of court, when required

On the other hand, leave of court is required as regards discovery by (a) production or inspection
of documents or things in accordance with Rule 27, or (b) physical and mental examination of persons
under Rule ,28, which may be granted upon due application and a showing of due, cause.

(95)Dasmarinas Garments v Reyes 225 S 622

Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure
of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in
court. Depositions, and the other modes of discovery (interrogatories to parties; requests for admission by
adverse party; production or inspection of documents or things; physical and mental examination of
persons) are meant to enable a party to learn all the material and relevant facts, not only known to him
and his witnesses but also those known to the adverse party and the latter’s own witnesses. In fine, the
object of discovery is to make it possible for all the parties to a case to learn all the material and relevant

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facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not suffer
from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid
before the Court, without omission or suppression.

Depositions are principally made available by law to the parties as a means of informing
themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual
testimony in open court of a party or witness. The deponent must as a rule be presented for oral
examination in open court at the trial or hearing. This is a requirement of the rules of evidence.

Indeed, any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of
the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground
that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the deponent at
the time that his testimony is offered. It matters not that that opportunity for cross-examination was afforded
during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a
party at the time that the testimonial evidence is actually presented against him during the trial or hearing.

However, depositions may be used without the deponent being actually called to the witness
stand by the proponent, under certain conditions and for certain limited purposes. These exceptional
situations are governed by Section 4, Rule 24 of the Rules of Court.

It is apparent then that the deposition of any person may be taken wherever he may be, in the
Philippines or abroad. If the party or witness is in the Philippines, his deposition “shall be taken before any
judge, municipal or notary public” (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the
deposition “shall be taken: (a) on notice before a secretary or embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the Philippines, or (b) before such person or officer as may
be appointed by commission or under letters rogatory”.

Leave of court is not necessary where the deposition is to be taken before “a secretary or
embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the
Philippines,”and the defendant’s answer has already been served (Sec. 1, Rule 24). After answer, whether
the deposition-taking is to be accomplished within the Philippines or outside, the law does not authorize or
contemplate any intervention by the court in the process, all that is required being that “reasonable
notice” be given “in writing to every other party to the action ** (stating) the time and place for taking the
deposition and the name and address of each person to be examined, if known, and if the name is not
known, a general description sufficient to identify him or the particular class or group to which he belongs.
**” (Sec. 15, Rule 24). The court intervenes in the process only if a party moves (1) to “enlarge or shorten the
time” stated in the notice (id.), or (2) “upon notice and for good cause shown,” to prevent the deposition-
taking, or impose conditions therefore, e.g., that “certain matters shall not be inquired into” or that the
taking be “held with no one present except the parties to the action and their officers or counsel,” etc.
(Sec. 16, Rule 24), or (3) to terminate the process on motion and upon a showing that “it is being
conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent
or party”.

A commission may be defined as “(a)n instrument issued by a court of justice, or other competent
tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal”
(Feria, J., Civil Procedure, 1969 ed., p. 415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory, on
the other hand, may be defined as “(a)n instrument sent in the name and by the authority of a judge or
court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause
pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters
are addressed.”

It further appears that the commission is to be coursed through the Department of Foreign Affairs
conformably with Circular No. 4 issued by Chief Justice Claudio Teehankee on April 6, 1987, pursuant to the
suggestion of the Department of Foreign Affairs—directing “ALL JUDGES OF THE REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS” “to course all requests for the taking of deposition of witnesses residing
abroad through the Department of Foreign Affairs” to enable it and “the Philippine Foreign Service
establishments to act on the matter in a judicious and expeditious manner;” this, “in the interest of justice,”
and to avoid delay in the deposition-taking.

Dasmariñas also contends that the “taking of deposition is a mode of pretrial discovery to be
availed of before the action comes to trial.” Not so. Depositions may be taken at any time after the
institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking
only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial.
Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the
judgment of a Regional Trial Court “to perpetuate their testimony for use in the event of further proceedings
in the said court” (Rule 134, Rules of Court), and even during the process of execution of a final and
executory judgment.

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 The ostensible reason given by the Trial Court for the condition—that the depositions be taken
“only upon written interrogatories”—is “so as to give defendant (Dasmariñas) the opportunity to cross-
examine the witnesses by serving cross-interrogatories.” The statement implies that opportunity to cross-
examine will not be accorded the defendant if the depositions were to be taken upon oral examination,
which, of course, is not true. For even if the depositions were to be taken on oral examination in Taipei, the
adverse party is still accorded full right to cross-examine the deponents by the law, either by proceeding to
Taipei and there conducting the cross-examination orally, or opting to conduct said cross-examination
merely by serving cross-interrogatories.

(96)Ayala Land vs Tagle 466 S 521

As defined, the term “deposition” is sometimes used in a broad sense to describe any written
statement verified by oath. In its more technical and appropriate sense, the meaning of the word is limited
to written testimony of a witness given in the course of a judicial proceeding in advance of the trial or
hearing upon oral examination. A deposition is the testimony of a witness, put or taken in writing, under oath
or affirmation, before a commissioner, examiner or other judicial officer, in answer to interlocutory and
cross-interlocutory, and usually subscribed by the witnesses. [A]nd the purposes of taking depositions are to:
1) Give greater assistance to the parties in ascertaining the truth and in checking and preventing
perjury;
2) Provide an effective means of detecting and exposing false, fraudulent claims and defenses;
3) Make available in a simple, convenient and inexpensive way, facts which otherwise could not
be proved except with great difficulty;
4) Educate the parties in advance of trial as to the real value of their claims and defenses thereby
encouraging settlements;
5) Expedite litigation;
6) Safeguard against surprise;
7) Prevent delay;
8) Simplify and narrow the issues; and
9) Expedite and facilitate both preparation and trial.

In the case of Jonathan Landoil International Co., Inc. v. Mangudadatu, this Court instructs: . . .
Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for
the purpose of disclosing the real points of dispute between the parties and affording an adequate factual
basis during the preparation for trial. The liberty of a party to avail itself of this procedure, as an attribute of
discovery, is “well-nigh unrestricted if the matters inquired into are otherwise relevant and not privileged,
and the inquiry is made in good faith and within the bounds of the law.” Depositions may be taken at
anytime after the institution of any action, whenever necessary or convenient.

On the objection of ALI owing to the lack of signature of the deponent, it should be noted that a
deposition not signed does not preclude its use during the trial. A deponent’s signature to the deposition is
not in all events indispensable since the presence of signature goes primarily to the form of deposition. The
requirement that the deposition must be examined and signed by the witness is only to ensure that the
deponent is afforded the opportunity to correct any errors contained therein and to ensure its accuracy. In
any event, the admissibility of the deposition does not preclude the determination of its probative value at
the appropriate time. The admissibility of evidence should not be equated with weight of evidence. The
admissibility of evidence depends on its relevance and competence while the weight of evidence pertains
to evidence already admitted and its tendency to convince and persuade.

This Court has observed that the trial court has painstakingly gone over every objection of ALI
contained in its Motion dated 30 January 1995 and ruled on every single objection in the Order dated 05
May 1995 and these objections were again taken up in the Order of the trial court dated 07 September
1995. On this point, we find no compelling reason to disturb the conclusions arrived at by the trial court. It
has been repeatedly held that the deposition-discovery rules are to be accorded a broad and liberal
treatment and the liberty of a party to make discovery is well-nigh unrestricted if the matters inquired into
are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of
the law, as in the case at bar.

(97)Hyatt Industrial v Ley Construction GR 147143 Mar 10, 2006

147143
- A deposition should be allowed, absent any showing that taking it would prejudice any party. It is accorded
a broad and liberal treatment and the liberty of a party to make discovery is well-nigh unrestricted if the matters
inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds
of law. It is allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open
court where their demeanor could be observed by the trial judge, consistent with the principle of promoting just,
speedy and inexpensive disposition of every action and proceeding; and provided it is taken in accordance with the
provisions of the Rules of Court, i.e., with leave of court if summons have been served, and without such leave if an
answer has been submitted; and provided further that a circumstance for its admissibility exists (Section 4Rule 23,
Rules of Court). The rules on discovery should not be unduly restricted, otherwise, the advantage of a liberal
discovery procedure in ascertaining the truth and expediting the disposal of litigation would be defeated.

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 - The importance of discovery procedures is well recognized by the Court. It approved A.M. No. 03-1-09-SC
on July 13, 2004 which provided for the guidelines to be observed by trial court judges and clerks of court in the
conduct of pre-trial and use of deposition-discovery measures. Under A.M. No. 03-1-09-SC, trial courts are directed to
issue orders requiring parties to avail of interrogatories to parties under Rule 45 and request for admission of adverse
party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rule 27 and
28 within 5 days from the filing of the answer. The parties are likewise required to submit, at least 3 days before the
pre-trial, pre-trial briefs, containing among others a manifestation of the parties of their having availed or their
intention to avail themselves of discovery procedures or referral to commissioners.

- The argument that the taking of depositions would cause unnecessary duplicity as the intended deponents
shall also be called as witnesses during trial, is also without merit. The case of Fortune Corp. v. Court of Appeals, 229
SCRA 335 (1994), which already settled the matter, explained that: x x x The right to take statements and the right to
use them in court have been kept entirely distinct. The utmost freedom is allowed in taking depositions; restrictions
are imposed upon their use. As a result, there is accorded the widest possible opportunity for knowledge by both
parties of all the facts before the trial. Such of this testimony as may be appropriate for use as a substitute for viva
voce examination may be introduced at the trial; the remainder of the testimony, having served its purpose in
revealing the facts to the parties before trial, drops out of the judicial picture.

- Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for
the purpose of disclosing the real matters of dispute between the parties and affording an adequate factual basis
during the preparation for trial

(98)Sime Darby v CA 510 S 204

- Rule 26 as a mode of discovery contemplates of interrogatories that would clarify and tend to shed light on
the truth or falsity of the allegations in a pleading. That is its primary function. It does not refer to a mere reiteration of
what has already been alleged in the pleadings.
- Otherwise stated, petitioner’s request constitutes “an utter redundancy and a useless, pointless process
which the respondent should not be subjected to.” The rule on admission as a mode of discovery is intended “to
expedite trial and to relieve parties of the costs of proving facts which will not be disputed on trial and the truth of
which can be ascertained by reasonable inquiry.” Thus, if the request for admission only serves to delay the
proceedings by abetting redundancy in the pleadings, the intended purpose for the rule will certainly be defeated.

● (99) Security Bank v CA 323 S 330

- In Republic v. Sandiganbayan,the Court discussed exhaustively the significance of the various modes of
discovery, an example of which is the aforecited provision. In sum, the Court held that the said Rule aims to enable
the parties to inform themselves, even before the trial, of all the facts relevant to the action, including those known
only to the other litigants. Through this procedure, “civil trials should not be carried on in the dark.”—We quote: “x x x
Indeed, it is the purpose and policy of the law that the parties before the trial if not indeed even before the pre-
trialshould discover or inform themselves of all the facts relevant to the action, not only those known to them
individually, but also those known to their adversaries; in other words, the desideratum is that civil trials should not be
carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism
set forth in Rules 24 to 29. The experience in other jurisdictions has been that ample discovery before trial, under
proper regulation, accomplishes one of the most necessary ends of modern procedure: it not only eliminates
unessential issues from trials thereby shortening them considerably, but also requires parties to play the game with the
cards on the table so that the possibility of fair settlement before trial is measurably increased
- As just intimated, the deposition-discovery procedure was designed to remedy the conceded inadequacy
and cumbersomeness of the pre-trial functions of notice-giving, issue-formulation and fact revelation theretofore
performed primarily by the pleadings. “The various modes or instruments of discovery are meant to serve (1) as a
device, along with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues between the parties, and
(2) as a device for ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable the
parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before
civil trials and thus prevent that said trials are carried on in the dark.”
- What is chiefly contemplated is the discovery of every bit of information which may be useful in the
preparation for trial, such as the identity and location of persons having knowledge of relevant facts; those relevant
facts themselves; and the existence, description, nature, custody, condition, and location of any books, documents,
or other tangible things. Hence, ‘the deposition-discovery rules are to be accorded a broad and liberal treatment.
No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts
underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to
proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.
The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the
time of trial to the period preceding it, thus reducing the possibility, of surprise
- Petitioner points out that a party may be compelled to produce or allow the inspection of documents if six
procedural requisites are complied with, viz.: “(a) The party must file a motion for the production or inspection of
documents or things, showing good cause therefor; (b) Notice of the motion must be served UT all other parties of
the case; (c) The motion must designate the documents, papers, books, accounts, letters, photographs, objects or

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tangible things which the party wishes to be produced and inspected; (d) Such documents, etc are not privileged;
(e) Such documents, etc constitute or contain evidence material to any matter involved in the action; and (f) Such
documents, etc are in the possession, custody or control of the other party.”
- The rule is that courts, in passing upon a motion for discovery, should be liberal in determining whether the
documents in question are relevant to the subject matter of the action. To repeat, the rule on discovery “requires the
parties to play the game with cards on the table so that the possibility of fair settlement before trial is measurably
increased.”
-
● (100) Solidbank v Gateway GR 164805 April 30, 2008
- The modes of discovery are accorded a broad and liberal treatment. Rule 27 of the Revised Rules of Court
permits “fishing” for evidence, the only limitation being that the documents, papers, etc., sought to be produced are
not privileged, that they are in the possession of the party ordered to produce them and that they are material to
any matter involved in the action. The lament against a fishing expedition no longer precludes a party from prying
into the facts underlying his opponent’s case. Mutual knowledge of all relevant facts gathered by both parties is
essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his
possession. However, fishing for evidence that is allowed under the rules is not without limitations. In Security Bank
Corporation v. Court of Appeals, 323 SCRA 330 (2000), the Court enumerated the requisites in order that a party may
compel the other party to produce or allow the inspection of documents or things, viz.: (a) The party must file a
motion for the production or inspection of documents or things, showing good cause therefor; (b) Notice of the
motion must be served to all other parties of the case; (c) The motion must designate the documents, papers, books,
accounts, letters, photographs, objects or tangible things which the party wishes to be produced and inspected; (d)
Such documents, etc., are not privileged; (e) Such documents, etc., constitute or contain evidence material to any
matter involved in the action, and (f) Such documents, etc., are in the possession, custody or control of the other
party.
- Solidbank was able to show good cause for the production of the documents. It had also shown that the
said documents are material or contain evidence relevant to an issue involved in the action. However, Solidbank’s
motion was fatally defective and must be struck down because of its failure to specify with particularity the
documents it required Gateway to produce. Solidbank’s motion for production and inspection of documents called
for a blanket inspection. Solidbank’s request for inspection of “all documents pertaining to, arising from, in
connection with or involving the Back-end Services Agreement” was simply too broad and too generalized in scope.
- A motion for production and inspection of documents should not demand a roving inspection of a
promiscuous mass of documents. The inspection should be limited to those documents designated with sufficient
particularity in the motion, such that the adverse party can easily identify the documents he is required to produce.

● (101) Rosete v Lim GR 136051 June 8, 2006

- The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or
under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to be compelled to
be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any
particular incriminatory question, i.e., one the answer to which has atendency to incriminate him for some crime.
However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline
to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a
subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a
particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on
the strength of the constitutional guaranty.
- It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand. The right
to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties
thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception—a
party who is not an accused in a criminal case is allowed not to take the witness stand—in administrative cases/
proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. It is likewise
the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as
the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character
of the suit involved but the nature of the proceedings that controls.
-
● (102) Jowel Sales v Sabin GR 133154 December 9, 2005
- While depositions may be used as evidence in court proceedings, they are generally not meant to be a
substitute for the actual testimony in open court of a party or witness. Stated a bit differently, a deposition is not to be
used when the deponent is at hand. Indeed, any deposition offered during atrial to prove the facts therein set out, in
lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground of
hearsay. However, depositions may be used without the deponent being called to the witness stand by the
proponent, provided the existence of certain conditions is first satisfactorily established. Five (5) exceptions for the
admissibility of a deposition are listed in Section 4, Rule 23, supra, of the Rules of Court. Among these is when the
witness is out of the Philippines.
- As a rule, the inadmissibility of testimony taken by deposition is anchored on the ground that such testimony
is hearsay, i.e., the party against whom it is offered has no opportunity to cross-examine the deponent at the time his
testimony is offered. But as jurisprudence teaches, it matters not that opportunity for cross-examination was afforded
during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at
the time the testimonial evidence is actually presented against him during the trial or hearing. In fine, the act of cross-
examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the
right to object to its admissibility as evidence in the trial proper. In participating, therefore, in the taking of the

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deposition, but objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions. He is
not, thus, estopped from challenging the admissibility of the deposition just because he participated in the taking
thereof.
- Lest it be overlooked, Section 29, Rule 23 of the Rules of Court, no less, lends support to the conclusion just
made. In gist, it provides that, while errors and irregularities in depositions as to notice, qualifications of the officer
conducting the deposition, and manner of taking the deposition are deemed waived if not objected to before or
during the taking of the deposition, objections to the competency of a witness or the competency, relevancy, or
materiality of testimony may be made for the first time at the trial and need not be made at the time of the taking of
the deposition, unless they could be obviated at that point.
- While perhaps a bit anti-climactic to state at this point, certiorari will not lie against an order admitting or
rejecting a deposition in evidence, the remedy being an appeal from the final judgment. For this singular reason
alone, the appellate court could have had already dismissed herein petitioner’s invocation of its certiorari jurisdiction.

− Sanctions for refusal to make discovery (Rule 29)

3.8. Trial
− Order of trial
− Reverse trial when complaint is admitted
● (103) Yu v Magpayo 44 S 163
- Under section 2 of Rule 129 of the Rules of Court, “admissions made by the parties in the pleadings, or in the
course of the trial or other proceedings do not require proof and cannot be contradicted unless previously shown to
have been made through palpable mistake.”
- Where the answer of the defendant admitted the obligation stated in the complaint, although special
defenses were pleaded, the plaintiff has every right to insist that it was for the defendant to come forward with
evidence in support of his special defenses.
− Reverse trial also in criminal cases
− When trial dispensed with; Absence of Party
o (104)Republic v Vda de Neri GR 139588 March 4, 2008
- The trial court dispensed with a full-blown trial because, precisely, the parties themselves agreed thereto, on
the claim that the issues raised may be resolved on the basis of the pleadings, the memoranda and the appended
documents, without need of presenting witnesses thereon. A party may waive its right to present testimonial
evidence and opt to adduce documentary evidence and thereafter, submit the case for resolution based solely on
their pleadings and documentary evidence. In this case, no less than the petitioner, represented by the Office of the
Solicitor General through Special Attorney Vicente Seriña, agreed to dispense with a full-blown trial.
o (105) Sps Calo v Sps Tan GR 151266 November 29, 2005
- That the absence of a party during trial constitutes waiver of his right to present evidence and cross-
examine the opponent’s witnesses is firmly supported by jurisprudence. Although a defendant who answered the
complaint but fails to appear at the scheduled trial cannot be declared in default, the trial, however, may proceed
without his presence. And if the absence of a party during the hearing was due to his own fault, he cannot later on
complain that he was deprived of his day in court.
- The absence of petitioners and their counsel at the aforesaid hearings cannot be justified by their belief
that the trial court would first require respondent spouses to comment to or oppose the motions before resolving
them. The Rules of Court requires only that the motion be heard; it does not direct the court to order the filing of
comments or oppositions to the motion before the motion is resolved. During the hearing on the motion, the
opposition to the motion and the arguments of the parties may be ventilated; thereafter, the court may rule on the
motion. Petitioners and their counsel should have known the significance of the hearing dates since petitioners
themselves chose one of the hearing dates and the hearing dates were accordingly fixed with due notice to all the
parties.

3.9. Consolidation
− Test is common questions of fact or of law
● (106) Active v CA, 181 S 774
- State Investment argues that the aforequoted provision of the rules mention only actions, which means an
ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right,
or the prevention or redress of a wrong. Civil Case No. 6518-M is such an action. On the other hand, LRC Case No. P-
39-84 involving the Petition for a Writ of Possession is an ex-parte proceedings and does not require notice to be
given to the other parties. The two, action and proceedings, being different, can not be consolidated. It is true that a
petition for a writ of possession is made ex-parte to facilitate proceedings, being founded on a presumed right of
ownership. Be that as it may, when this presumed right of ownership is contested and made the basis of another
action, then the proceedings for writ of possession would also become seemingly groundless. The entire case must
be litigated and if need be as in the case at bar, must be consolidated with a related case so as to thresh out
thoroughly all related issues. Thus in the case at bar, this technical difference between an action and a proceeding
becomes insignificant and consolidation becomes a logical conclusion. The consolidation of cases becomes
mandatory because it involves the same parties and the same subject matter which is the same parcel of land. Such
consolidation is desirable to avoid confusion and unnecessary costs and expenses with the multiplicity of suits. Thus
the rules do not distinguish between cases filed before the same branch or judge and those that are pending in
different branches, or before different judges of the same court, in order that consolidation may be proper, as long
as the cases involve the resolution of questions of law or facts in common with each other. Therefore it appears that

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the respondent court in denying the motion for consolidation, has sanctioned the departure of the trial court from
the usual course of judicial proceed-ings, thus calling for the exercise of the power of supervision of the Supreme
Court. The respondent court has, indeed, committed a reversible error. Consolidation of these two cases in Branch
XX, in which the earlier case filed now pends, is more promotive of their expeditious and less expensive determination
as well as the orderly administration of justice than if they were to remain in the two branches of the same court.
● (107)Superlines v Victor, 124 S 939
- There is, however, a more pragmatic solution to the controversy at bar; and that is to consolidate the
Gumaca case with the Cavite case. Considerations of judicial economy and administration, as well as the
convenience of the parties for which the rules on procedure and venue were formulated, dictate that it is the Cavite
court, rather than the Gumaca court, which serves as the more suitable forum for the determination of the rights and
obligations of the parties concerned.
- As observed by both the trial and appellate courts, to require private respondents who are all residents of
Kawit, Cavite, to litigate their claims in the Quezon Court would unnecessarily expose them to considerable
expenses. On the other hand, no like prejudice would befall the defendants transportation companies if they were
required to plead their causes in Cavite, for such change of venue would not expose them to expenses which they
are not already liable to incur in connection with the Gumaca case. The objection interposed by Superlines that it
has its offices in Atimonan, Quezon, should not detract from the overall convenience afforded by the consolidation
of cases in the Cavite Court. For apart from the fact that petitioner and its driver are represented by the same
counsel with offices located in Manila, defendants transportation companies can readily avail of their facilities for
conveying their witnesses to the place of trial.
- The ordered consolidation of cases, to our mind, crystallizes into reality the thinking of our predecessors that:
“x x x The whole purpose and object of procedure is to make the powers of the court fully and completely available
for justice.

● (108) Steel Corporation of the Philippines v Equitable PCI Bank 635 S 403
- It is a time-honored principle that when two or more cases involve the same parties and affect closely
related subject matters, they must be consolidated and jointly tried, in order to serve the best interests of the parties
and to settle expeditiously the issues involved. In other words, consolidation is proper wherever the subject matter
involved and relief demanded in the different suits make it expedient for the court to determine all of the issues
involved and adjudicate the rights of the parties by hearing the suits together.
-
- The purpose of this rule is to avoid multiplicity of suits, guard against oppression and abuse, prevent delays,
clear congested dockets, and simplify the work of the trial court. In short, consolidation aims to attain justice with the
least expense and vexation to the parties-litigants. It contributes to the swift dispensation of justice, and is in accord
with the aim of affording the parties a just, speedy, and inexpensive determination of their cases before the courts.
Further, it results in the avoidance of the possibility of conflicting decisions being rendered by the courts in two or
more cases, which would otherwise require a single judgment.
-
● (109) Deutsche Bank AG vs Court of Appeals 667 S 82
- Consolidation of actions involving a common question of law or fact is expressly authorized under Section 1,
Rule 31 of the 1997 Rules of Civil Procedure, to wit: SECTION 1. Consolidation.—When actions involving a common
question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in
issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay. Consolidation of cases is also allowed under Section 3, Rule
III of the 2009 IRCA, to wit: Consolidation of Cases.—When related cases are assigned to different Justices, they may
be consolidated and assigned to one Justice. (a) Upon motion of a party with notice to the other party/ies, or at
theinstance of the Justice to whom any of the related cases is assigned, upon notice to the parties, consolidation
shall ensue when the cases involve the same parties and/or related questions of fact and/or law. (b) Consolidated
cases shall pertain to the Justice—(1) To whom the case with the lowest docket number is assigned, if they are of the
same kind; (2) To whom the criminal case with the lowest number is assigned, if two or more of the cases are criminal
and the others are civil or special; (3) To whom the criminal case is assigned and the other are civil or special; and (4)
To whom the civil case is assigned, or to whom the civil case with the lowest docket number is assigned, if the cases
involved are civil and special. (c) Notice of the consolidation and replacement shall be given to the Raffle Staff and
the Judicial Records Division. (Emphasis and underscoring supplied) As can be gleaned from the aforequoted
provision, for consolidation to be proper, the cases sought to be consolidated must be related.
- Indeed, the consolidation of actions is addressed to the sound discretion of the court and its action in
consolidating will not be disturbed in the absence of manifest abuse of discretion. Grave abuse of discretion defies
exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion and hostility.
-
-
● (110) Producers Bank of the Philippines v Excelsa Industries 669 S 470
- Consoli-dation of cases may take place in any of the following ways: (1) Where all except one of several
actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is
not actually consolidation but is referred to as such. (quasi-consolidation) (2) Where several actions are combined
into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is
illustrated by a situation where several actions are pending between the same parties stating claims which might

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have been set out originally in one complaint. (actual consolidation) (3) Where several actions are ordered to be
tried together but each retains its separate character and requires the entry of a separate judgment. This type of
consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the
other. (consolidation for trial)
-
● (111) Teston v DBP GR 144374 November 11, 2005
- A court may order several actions pending before it to be tried together where they arise from the same
act, event or transaction, involve the same or like issues, and depend largely or substantially on the same evidence,
provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party
an undue advantage or prejudice the substantial rights of any of the parties. The obvious purpose of the rule
allowing consolidation is to avoid multiplicity of suits to guard against oppression or abuse, to prevent delays, to clear
congested dockets, to simplify the work of the trial court; in short the attainment of justice with the least expense and
vexation to the parties litigants. Consolidation of actions is addressed to the sound discretion of the court and its
action in consolidating will not be disturbed in the absence of manifest abuse of discretion.
- In the present case, although both cases which were raffled to the same branch of RTC Masbate (Branch
48), involve the prayer for determination and payment of just compensation, and petitioner and Colarina are
represented by the same counsel, Pejo Buenviaje & Associates, and respondents LBP and DAR Secretary are
common defendants, these are not sufficient justifications for joint trial and joint order dismissing both cases. It cannot
be denied that there is no real identity of parties, facts or rights asserted. SCC No. 4242 was instituted by Colarina in
his own name principally against GSIS and concerns fifteenparcels of agricultural land in BarrioMalaran and
Lamintao, Municipality of Dimasalong (now Uson), Masbate, while SCC No. 4243 was instituted by petitioner
represented by Colarina principally against DBP and concerns two parcels of agricultural land in Barangay
Lantangan, Mandaon, Masbate. Furthermore, a perusal of the complaints in SCC Nos. 4242 and 4243 plainly shows
that Colarina claims ownership as redemptioner while petitioner claims ownership as buyer. Clearly, the causes of
action in the two cases arose from different events or transactions, involve different issues, and ultimately will depend
on different evidence. Therefore, the RTC exceeded its jurisdiction in setting the joint trial of the two cases.
Consolidation should be denied when prejudice would result to any of the parties or would cause complications,
delay, cut off, or restrict the rights of a party, as in this case.
● (112) Gregorio Espinoza v UOB GR 175380 March 22, 2010
- The mere fact that the “presumed right of ownership is contested and made the basis of another action”
does not by itself mean that the proceedings for issuance of a writ of possession will become groundless. The
presumed right of ownership and the right of possession should be respected until and unless another party
successfully rebuts that presumption in an action for nullification of the foreclosure proceedings. As such, and in
connection with the issuance of a writ of possession, the grant of a complaint for nullification of foreclosure
proceedings is a resolutory condition, not a suspensive condi-tion. Given the foregoing discussion, it is clear that the
proceedings for the issuance of a writ of possession should not be consolidated with the case for the declaration of
nullity of a foreclosure sale. The glaring difference in the nature of the two militates against their consolidation.
- Petitions for the issuance of writs of possession, a land registration proceeding, do not fall within the ambit of
the Rules of Court. Thus, the rules on consolidation should not be applied.
− consolidation of civil and criminal cases
− consolidation of cases on appeal

3.10. Demurrer to Evidence

− Concept of demurrer
− Effect of denial or grant of demurrer to evidence
● (113) Nepomuceno v Comelec, 126 S 472
- Petitioners are obviously misled by the title of Rule 35 of the Rules of Court, "Judgment on Demurrer to
Evidence." Said Rule, consisting of only one section, allows the defendant to move for dismissal of the case after the
plaintiff has presented his evidence on the ground of insufficiency ofevidence, and provides for the effects of the
dismissal or non-dismissal, as the case may be, on the right of the defendant to present his cause. Otherwise stated, it
authorizes a judgment on the merits of the case without the defendant having to submit evidence on his part as he
would ordinarily have to do, if it is shown by plaintiff 's evidence that the latter is not entitled to the relief sought. The
demurrer, therefore, is an aid or instrument for the expeditious termination of an action, similar to a motion to dismiss,
which the court or tribunal may either grant or deny.
- lt is thus apparent that the requirement of Section 1 of Rule 36 would only apply if the demurrer is granted,
for in this event, there would in fact be an adjudication on the merits of the case, leaving nothing more to be done,
except perhaps to interpose an appeal. However, a denial of the demurrer is not a final judgment, but merely
interlocutory in character as it does not finally dispose of the case, the defendant having yet the right to present his
evidence, as provided for under Section 1 of Rule 35
- The challenged order being merely an interlocutory order and not a final judgment or decision, no abuse of
discretion was committed by respondent Comelec in its failure to state the facts and the law on which its order
denying petitioners' demurrer to evidence is based.
● (114) Radiowealth v Sps Del Rosario GR 138739 July 6, 2000
- In other words, defendants who present a demurrer to the plaintiff’s evidence retain the right to present
their own evidence, if the trial court disagreeswith them; if the trial court agreeswith them, but on appeal, the
appellate court disagrees with both of them and reverses the dismissal order, the defendants lose the right to present
their own evidence. The appellate court shall, in addition, resolve the case and render judgment on the merits,
inasmuch as a demurrer aims to discourage prolonged litigations.

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 - Applying Rule 33, Section 1 of the 1997 Rules of Court, the CA should have rendered judgment on the basis
of the evidence submitted by the petitioner. While, the appellate court correctly ruled that “the documentary
evidence submitted by the [petitioner] should have been allowed and appreciated x x x,” and that “the petitioner
presented quite a number of documentary exhibits x x x enumerated in the appealed order,” we agree with
petitioner that the CA had sufficient evidence on record to decide the collection suit. A remand is not only frowned
upon by the Rules, it is also logically unnecessary on the basis of the facts on record.
● (115) Casent Realty v Phil Banking GR 150731 September 14, 2007
- In Gutib v. Court of Appeals, 312 SCRA 365 (1999), we defined a demurrer to evidence as “an objection by
one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of
law, whether true or not, to make out a case or sustain the issue.
- What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is
entitled to the relief based on the facts and the law. The evidence contemplated by the rule on demurrer is that
which pertains to the merits of the case, excluding technical aspects such as capacity to sue. However, the plaintiff’s
evidence should not be the only basis in resolving a demurrer to evidence. The “facts” referred to in Section 8 should
include all the means sanctioned by the Rules of Court in ascertaining matters in judicial proceedings. These include
judicial admissions, matters of judicial notice, stipulations made during the pre-trial and trial, admissions, and
presumptions, the only exclusion being the defendant’s evidence.
- Rule 8, Section 8 specifically applies to actions or defenses founded upon a written instrument and provides
the manner of denying it. It is more controlling than Rule 6,Section 10 which merely provides the effect of failure to file
a Reply. Thus, where the defense in the Answer is based on an actionable document, a Reply specifically denying it
under oath must be made; otherwise, the genuineness and due execution of the document will be deemed
admitted. Since respondent failed to deny the genuineness and due execution of the Dacion and Confirmation
Statement under oath, then these are deemed admitted and must be considered by the court in resolving the
demurrer to evidence. We held in Philippine American General Insurance Co., Inc. v. Sweet Lines, Inc., 212 SCRA 194
(1992), that “[w]hen the due execution and genuineness of an instrument are deemed admitted because of the
adverse party’s failure to make a specific verified denial thereof, the instrument need not be presented formally in
evidence for it may be considered an admitted fact.”

3.11. Judgment on the pleadings

− Generally applicable when there is no tender of issue
− Denial in answer may not amount to tender of issue
● (116) Manufacturers v Diversified, 173 S 357
- The correctness, therefore, of the Trial Court’s denial of the motion to amend answer and the propriety of
the assailed judgment on the pleadings, are beyond cavil. Amendment in the circumstances was clearly subject to
said Court’s discretion the exercise of which cannot be faulted; and the defendants’ original answer in truth
tendered no issue, or otherwise admitted the allegations of the complaint material and necessary to a valid decision.
● (117) Pacific Rehouse Corporation v EIB Securities 633 S 214
- At the outset, we lay stress on the Court’s policy that cases should be promptly and expeditiously resolved.
The Rules of Court seeks to abbreviate court procedure in order to allow the swift disposition of cases. Specifically,
special strategies like demurrer to evidence, judgment on the pleadings, and summary judgment were adopted to
attain this avowed goal. Full-blown trial is dispensed with and judgment is rendered on the basis of the pleadings,
supporting affidavits, depositions, and admissions of the parties.
- Rule 34 of the Rules of Court provides that “where an answer fails to tender an issue or otherwise admits the
material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on
such pleading.” Judgment on the pleadings is, therefore, based exclusively upon the allegations appearing in the
pleadings of the parties and the annexes, if any, without considera-tion of any evidence aliunde. When what is left
are not genuinely issues requiring trial but questions concerning the proper interpretation of the provisions of some
written contract attached to the pleadings, judgment on the pleadings is proper.
- Based on the admissions in the pleadings and documents attached, the Court finds that the issues
presented by the complaint and the answer can be resolved within the four corners of said pleadings without need
to conduct further hearings. As explained by the Court in Philippine National Bank v. Utility Assurance & Surety Co.,
Inc., 177 SCRA 208 (1989), when what remains to be done is the proper inter-pretation of the contracts or documents
attached to the pleadings, then judgment on the pleadings is proper.
● (118) Reilo v San Jose GR 166393 June 18, 2009
- Where a motion for judgment on the pleadings is filed, the essential question is whether there are issues
generated by the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all
because of the failure of the defending party’s answer to raise an issue. The answer would fail to tender an issue, of
course, if it does not deny the material allegations in the complaint or admits said material allegations of the adverse
party’s pleadings by confessing the truthfulness thereof and/or omitting to deal with them at all.
● (119) Sps Song v Roban Lending GR 172592 July 9, 2008
- But neither is a judgment on the pleadings proper. A judgment on the pleadings may be rendered only
when an answer fails to tender an issue or otherwise admits the material allegations of the adverse party’s pleadings.
In the case at bar, respondent’sAnswer with Counterclaim disputed petitioners’ claims that the Memorandum of
Agreement and Dation in Payment are illegal and that the extra charges on the loans are unconscionable.
Respondent disputed too petitioners’ allegation of bad faith.
● (120) Doris Sunbanum v Aurora Go GR 163280 February 2, 2010
- The trial court has the discretion to grant a motion for judgment on the pleadings filed by a party if there is
no controverted matter in the case after the answer is filed. A judgment on the pleadings is a judgment on the facts

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as pleaded, and is based exclusively upon the allegations appearing in the pleadings of the parties and the
accompanying annexes.
- Petitioner, in moving for a judgment on the pleadings without offering proof as to the truth of her own
allegations and without giving respondent the opportunity to introduce evidence, is deemed to have admitted the
material and relevant averments of the complaint, and to rest her motion for judgment based on the pleadings of
the parties.

3.12. Summary Judgments

− Distinguished from judgment on the pleadings
● (121) Vergara v Suelto 156 S 753
- But even if the answer does tender issues—and therefore a judgment on the pleadings is not proper—a
summary judgmentmay still be rendered on the plaintiff's motion if he can show to the Court's satisfaction that
"except as to the amount of damages, there is no genuine issue as to any material fact," that is to say, the issues thus
tendered are not genuine, are in other words sham, fictitious, contrived, set up in bad faith, patently unsubstantial.
The determination may be made by the Court on the basis of the pleadings, and the depositions, admissions and
affidavits that the movant may submit, as well as those which the defendant may present in his turn. In this case, the
defendants' answer appears on its face to tender issues. It purports to deal with each of the material allegations of
the complaint, and either specifically denies, or professes lack of knowledge or information to form a belief as to
them. It also sets up affirmative defenses. But the issues thus tendered are sham, not genuine, as the slightest
reflection and analysis will readily demonstrate.
- The remedy properly available to the petitioner in the premises, however, is not the writ of mandamus. Well
known is the rule that mandamusissues only to compel performance of a mandatory, ministerial duty. The
determination that under the facts and circumstances obtaining in a case a summary judgment is proper and the
motion therefor should be granted and summary judgment consequently rendered, rests in the sound discretion of a
trial court and can not be regarded as a duty or ministerial function compellable by the extraordinary writ of
mandamus. In this case, the respondent Judge had discretion to make that determination. What happened was
that His Honor made that determination with grave abuse of discretion Despite the plain and patent propriety of a
summary judgment, he declined to render such a verdict. The writ of certiorari will he to correct that grave abuse of
discretion.
● (122) Diman v Alumbres, 299 S 459
- t is also the law which determines when a summary judgment is proper. It declares that although the
pleadings on their face appear to raise issues of fact—e.g.,there are denials of, or a conflict in, factual allegations—if
it is shown by admissions, depositions or affidavits, that those issues are sham, fictitious, or not genuine, or, in the
language of the Rules, that “except as to the amount of damages, there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law,” the Court shall render a summary judgment
for the plaintiff or the defendant, as the case may be.
- Parenthetically, the existence or appearance of ostensible issues in the pleadings, on the one hand, and
their sham or fictitious character, on the other, are what distinguish a proper case for a summary judgment from one
for a judgment on the pleadings under Rule 19 of the 1964 Rules. In the latter case, there is no ostensible issue at all,
but the absence of any, because of the failure of the defending party’s answer to raise an issue. Rule 19 expresses
the principle as follows: “Where an answer fails to tender an issue, or otherwise admits the material allegations of the
adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading.**” On the other
hand, in the case of a summary judgment, issues apparently exist—i.e., facts are asserted in the complaint regarding
which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth
set out in the answer—but the issues thus arising from the pleadings are sham, fictitious, not genuine, as shown by
admissions, depositions or admissions. In other words, as a noted authority remarks, a judgment on the pleadings is a
judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by
affidavits, depositions or admissions. Another distinction is that while the remedy of a judgment on the pleadings may
be sought only by a claimant (one seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory relief, supra), a summary judgment may be applied for by either a claimant or a defending party
● (123) Nocom v Camerino GR 182984 February 10, 2009
- Summary judgment is a procedural device resorted to in order to avoid long drawn out litigations and
useless delays. When the pleadings on file show that there are no genuine issues of fact to be tried, the Rules allow a
party to obtain immediate relief by way of summary judgment, that is, when the facts are not in dispute, the court is
allowed to decide the case summarily by applying the law to the material facts. Conversely, where the pleadings
tender a genuine issue, summary judgment is not proper. A “genuine issue” is such issue of fact which requires the
presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. Section 3 of the said rule
provides two (2) requisites for summary judgment to be proper: (1) there must be no genuine issue as to any material
fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be
entitled to a judgment as a matter of law. A summary judgment is permitted only if there is no genuine issue as to any
material fact and a moving party is entitled to a judgment as a matter of law. A summary judgment is proper if, while
the pleadings on their face appear to raise issues, the affida-vits, depositions, and admissions presented by the
moving party show that such issues are not genuine.

- Where a motion for judgment on the pleadings is filed, the essential question is whether there are issues
generated by the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue The present
case should not be decided via a summary judgment. Summary judgment is not warranted when there are genuine
issues which call for a full blown trial. The party who moves for summary judgment has the burden of demonstrating
clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so
as not to constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments and may

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do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties
are disputed or contested, proceedings for summary judgment cannot take the place of trial.at all because of the
failure of the defending party’s answer to raise an issue. The answer would fail to tender an issue, of course, if it does
not deny the material allegations in the complaint or admits said material allegations of the adverse party’s
pleadings by confessing the truthfulness thereof and/or omitting to deal with them at all
-
● (124) Evangelista v Mercator Finance 409 S 410
- Summary judgment “is a procedural technique aimed at weeding out sham claims or defenses at an early
stage of the litigation.” The crucial question in a motion for summary judgment is whether the issues raised in the
pleadings are genuine or fictitious, as shown by affidavits, depositions or admissions accompanying the motion.
- A genuine issue means “an issue of fact which calls for the presentation of evidence, as distinguished from
an issue which is fictitious or contrived so as not to constitute a genuine issue for trial.” To forestall summary judgment,
it is essential for the non-moving party to confirm the existence of genuine issues where he has substantial, plausible
and fairly arguable defense, i.e., issues of fact calling for the presentation of evidence upon which a reasonable
finding of fact could return a verdict for the non-moving party. The proper inquiry would therefore be whether the
affirmative defenses offered by petitioners constitute genuine issue of fact requiring a full-blown trial.
● (125) Monterey Foods Corp v Eserjose 410 S 627
- A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases
where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record,
or for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time
involved in a trial. Its object is to separate what is formal or pretended in denial or averment from what is genuine
and substantial so that only the latter may subject a party in interest to the burden of trial. Moreover, said summary
judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movant
cannot be allowed to obtain immediate relief. A “genuine issue” is such issue of fact which requires presentation of
evidence as distinguished from a sham, fictitious, contrived or false claim.
- Rule 35, Section 3 of the Rules of Court provides two (2) requisites for summary judgment to be proper: (1)
there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party
presenting the motion for summary judgment must be entitled to a judgment as a matter of law.
- Correspondingly, insofar as the complaint was concerned, there was no other genuine issue left for which
the complaint for sum of money and damages may be prosecuted. Also by reason of such admission, petitioners, in
effect, likewise waived whatever defenses they may have to deter recovery by respondent under the said contract.
Thus, respondent became entitled, as a matter of law, to the execution of the partial summary judgment. When
there are no genuine issues of fact to be tried, the Rules of Court allows a party to obtain immediate relief by way of
summary judgment. In short, since the facts are not in dispute, the court is allowed to decide the case summarily by
applying the law to the material facts.
-
− How motion for summary judgment is considered
− Hearing on motion is only for determining whether issues are genuine or not, not to receive
evidence on the issues set up in the pleadings
− motion is proven through affidavits, depositions and admissions submitted by movant
− Propriety of summary judgment
● .(126) Natalia v Vallez, 173 S 536
- It is settled that a summary judgment under Rule 34 of the Rules of Court is proper only if there is no genuine
issue as to the existence of any material fact. It is intended to expedite or promptly dispose of cases where the facts
appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record.
-

● (127) Grand Farms v CA, 193 S 748

- The Rules of Court authorize the rendition of a summary judgment if the pleadings, depositions and
admissions on file, together with the affidavits, show that, except as to the amount of damages, there is no issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law. Although an issue may be
raised formally by the pleadings but there is no genuine issue of fact, and all the facts are within the judicial
knowledge of the court, summary judgment may be granted.
- The real test, therefore, of a motion for summary judgment is whether the pleadings, affidavits and exhibits
in support of the motion are sufficient to overcome the opposing papers and to justify a finding as a matter of law
that there is no defense to the action or that the claim is clearly meritorious.
- Applying said criteria to the case at bar, we find petitioners’ action in the court below for annulment and/or
declaration of nullity of the foreclosure proceedings and damages ripe for summary judgment. Private respondent
tacitly admitted in its answer to petitioners’ request for admission that it did not send any formal notice of foreclosure
to petitioners. Stated otherwise, and as is evident from the records, there has been no denial by private respondent
that no personal notice of the extrajudicial foreclosure was ever sent to petitioners prior thereto. This omission, by
itself, rendered the foreclosure defective and irregular for being contrary to the express provisions of the mortgage
contract.
● (128) Monterey Foods Corp v Eserjose 410 S 627
- Rule 35, Section 3 of the Rules of Court provides two (2) requisites for summary judgment to be proper: (1)
there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party
presenting the motion for summary judgment must be entitled to a judgment as a matter of law.
-
-

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 ● (129) Evangelista v Mercator Finance 409 S 410 (supra)
− Movant may be either party

3.13. Judgments
− Requirements
− written and signed by judge
− must contain findings of facts and law applied
− must contain a dispositive portion
− filed with the clerk of court
− rendition reckoned from filing with clerk
− must be served on parties
− may be amended before finality upon motion or motu proprio
− entry upon finality
− entry determines prescriptive periods
− final judgment not subject to amendment
− separability of judgments

(130) Velarde v SJS GR 159357 April 28, 2004

- Indeed, elementary due process demands that the parties to a litigation be given information on how the
case was decided, as well as an explanation of the factual and legal reasons that led to the conclusions of the
court.

(131) Miranda v CA 71 S 295

- Rule 36 on judgments precisely recognizes that judgment at various stages may be rendered when more
than one claim for relief is presented in an action.
- A definitive judgment (is) one that decides finally the right of the parties upon the issues submitted, by
specifically denying or granting the remedy sought by the action.
-
- A definitive judgment is no longer subject to change, revision, amendment or reversal but must stand to
serve as the basis of the accounting ordered. Otherwise, if it were to be subject to change and amendment for as
long as the accounting has not been rendered and approved, the basis for the accounting would never be firmly
fixed and there would be no accounting nor completion of the relief nor termination of the litigation since the
accounting would not be completed and the appeal would be left hanging and could never be prosecuted for
final adjudication by the appellate courts.
-
(132) Republic v Nolasco 457 S 400
- As far as determinable, there is no legal or jurisprudential standard of “comprehensive fairness,” a phrase
that reeks of pomposity without admitting to any concrete meaning. Neither is there any mandatory rule directing a
court to conduct a hearing to receive evidence on a motion for reconsideration. Nonetheless, a motion for
reconsideration, as with all other motions which may not be acted upon without prejudicing the rights of the adverse
party, is required to be set for hearing by the applicant, and to be heard with due notice to all parties concerned. It
is certainly within acceptable bounds of discretion for the trial judge to require or allow the movant for
reconsideration to present evidence in support of the arguments in the motion, and in fact desirable if such
evidence should be necessarily appreciated for a fair and correct disposition of the motion for reconsideration. Yet
caution should be had. At this stage, the issues and evidence submitted for appreciation and resolution of the trial
court should be limited to the matters pertinent to the motion for reconsideration. In this case, the RTC in hearing the
motion for reconsideration, should have focused on the issues of lack of standing on the part of Nolasco and non-
suability of the State, as these were the grounds on which dismissal of the petition was predicated. It would entail a
fundamental reconsideration of these two key concerns for Nolasco’s motion to have been granted and the petition
readmitted.
- —The controverted portion of the Order, urging the DPWH Secretary “to consider” awarding the Project to
China International does not formpart of the dispositive portion or fallo. What should be deemed as the dispositive
portion in this case is the final paragraph of the Resolution, which reads: “WHEREFORE, in view of all the foregoing,
the Motion for Reconsideration of the Petition is hereby DISMISSED.” The Court recently explicated the contents of a
proper dispositive portion in Velarde v. Social Justice Society: In a civil case as well as in a special civil action, the
disposition should state whether the complaint or petition is granted or denied, the specific relief granted, and the
costs. The following test of completeness may be applied. First, the parties should know their rights and obligations.
Second, they should know how to execute the decision under alternative contingencies. Third, there should be no
need for further proceedings to dispose of the issues. Fourth, the case should be terminated by according the proper
relief. The “proper relief” usually depends upon what the parties seek in their pleadings. It may declare their rights
and duties, command the performance of positive prestations, or order them to abstain from specific acts. The
disposition must also adjudicate costs. We have ruled before against recognizing statements in the body of a
decision as part of the dispositive portion.
-
- At bare minimum, the allowance of a partial judgment at this stage would constitute a denial of
constitutional due process. It would condemn before hearing, and render judgment before trial. Had indeed partial
judgment been granted in the assailed Order, it would have been rendered before the Petitioner were afforded the
opportunity to rebut the evidence of Nolasco, or to present their own countervailing evidence. While the allowance
of partial judgments may expedite the litigation of claims, it cannot be sanctioned at a stage when the trial judge
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has not had the opportunity to hear all sides to the claim. In fact, it was highly imprudent for the respondent judge to
have concluded, as he did in his Order, that it was an admitted fact that the BAC had strayed from fairly applying
the Bidding Laws, Guidelines, Rules, and Regulations, and Bid Tender Documents, considering that the Petitioner had
not even filed an answer or been allowed the opportunity to present any evidence on its behalf.
(133) Briones-Vasquez v CA GR 144882 february 4, 2005
- As a general rule, therefore, final and executory judgments are immutable and unalterable except under
the three exceptionsnamed above: a) clerical errors; b) nunc pro tunc entries which cause no prejudice to any
party; and c) void judgments.
- From the above characterization of a nunc pro tuncjudgment it is clear that the judgment petitioner sought
through the motion for clarificatory judgment is outside its scope. Petitioners did not allege that the Court of Appeals
actually took judicial action and that such action was not included in the Court of Appeals’ Decision by
inadvertence. A nunc pro tunc judgment cannot correct judicial error nor supply nonaction by the court.
(134) Navarro v Metropolitan Bank GR 165697/166484 August 4, 2009 (no mention of judgment)

3.14. Remedies from judgments (same court, same case)

− New Trial or Reconsideration
− FAMEN
− Fraud as a ground must be extrinsic, not intrinsic. It is intrinsic when done by a party
during trial (use of forged documents etc), extrinsic when employed outside the court
(concealing a witness or colluding with a party)
− accident and mistake as ground must be based on well-engendered belief ordinary
prudence could not guard against
− excusable negligence as ground will depend on circumstance
− Newly discovered evidence
− must be material and not discoverable during trial

● (135) Banco Filipino v Campos 63 S 180

- —The petitioner in L-38280 is only St. Peter Memorial Park. Banco Filipino is not a party in that first
proceeding. Thus, whatever may be the effect of the filing of a petition for certiorari, on the pending appeal, cannot
affect the appeal of Banco Filipino.
- Even with respect to St.Peter Memorial Park, it cannot be said that there was abandonment of appeal.
There would have been abandonment if there was incompatibility between the two remedies sought by the
Memorial Park, that, is, between said appeal and the petition for certiorari.
- In L-38280, the Court issued a restraining order enjoining the respondent Judge from enforcing his decision
dated May 2, 1973. This restraining order was intended to retain the status quo insofar as said decision and other
circumstances surrounding are concerned. Any court action or order that would change any circumstance of the
decision is necessarily included in the scope of the restraining order. At the time the restraining order was issued, the
trial court’s decision was a decision on appeal. The order dismissing the appeal tended to change the status quo,
since by reason of the dismi ssal, the enjoined decision became final.
- Under paragraph (b), section 1, Rule 37 of the Rules of Court, the requisites for the grant of new trial based
on newly discovered evidence are (1) that such evidence has been discovered after the trial; (2) that even with the
exercise of reasonable diligence, it could not have been discovered and produced at that trial; and (3) that such
evidence is of such a nature as to alter the result of the case if admitted.
● (136) Bernaldez v Francia 398 S 488
- We have previously ruled that a motion for new trial on the ground of newly discovered evidence shall be
granted when the concurrence of the following requisites is established: (a) the evidence is discovered after trial; (b)
the evidence could not have been discovered and produced during trial even with the exercise of reasonable
diligence; and (c) the evidence is material and not merely corroborative, cumulative or impeaching and is of such
weight that if admitted, would probably change the judgment. In order that a particular piece of evidence may be
regarded as “newly discovered” for purposes of granting a new trial, it is essential to show that the offering party
exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed
to secure it.
● ( 137) Capuz v CA 233 S 471
- We agree that the verified motion of petitioner could be considered as a motion for new trial. The grounds
alleged by petitioner in his motion are the same as the grounds for a motion for new trial under Rule 37, which are: (1)
that petitioner’s failure to file his answer was due to fraud, mistake, accident or excusable negligence; and (2) that
he has a meritorious defense. Petitioner explained that upon receiving the summons, he immediately saw private
respondent and confronted him with the receipt evidencing his payment. Thereupon, private respondent assured
him that he would instruct his lawyer to withdraw the complaint. The prior payment of the loan sought to be
collected by private respondent is a good defense to the complaint to collect the same loan again. The only reason
why respondent court did not consider the motion of petitioner as a motion for new trial was because the said
motion did not include an affidavit of merit. The allegations contained in an affidavit of merit required to be
attached to a motion to lift an order of default or for a new trial need not be embodied in a separate document but
may be incorporated in the petition itself. As held in Tanhu v. Ramolete, 66 SCRA 425 (1975): “Stated otherwise, when
a motion to lift an order of default contains the reasons for the failure to answer as well as the facts constituting the
prospective defense of the defendant and it is sworn to by said defendant, neither a formal verification nor a
separate affidavit of merit is necessary.”
- Speaking for the Court in Circle Financial Corporation v. Court of Appeals, 196 SCRA 166 (1991), Chief
Justice Andres R. Narvasa opined that the affidavit of merit may either be drawn up as a separate document and

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appended to the motion for new trial or the facts which should otherwise be set out in said separate document may,
with equal effect, be alleged in the verified motion itself. Respondent court erred when it held that petitioner should
have appealed from the decision, instead of filing the motion to lift the order of default, because he still had two
days left within which to appeal when he filed the said motion. Said court must have in mind paragraph 3 of Section
2, Rule 41of the Revised Rules of Court, which provides that: “a party who has been declared in default may likewise
appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition for
relief to set aside the order of default has been presented by him in accordance with Rule 38.” Petitioner properly
availed of the remedy provided for in Section 1, Rule 65 of the Revised Rules of Court because the appeal under
Section 2, Rule 41 was not, under the circumstances, a “plain, speedy and adequate remedy in the ordinary course
of law.” In an appeal under Section 2, Rule 41, the party in default can only question the decision in the light of the
evidence on record. In other words, he cannot adduce his own evidence, like the receipt to prove payment by
petitioner herein of his obligation to private respondent.
● (138) Libudan v Gil 45 S 17
● (139) Delos Santos v Elizalde GR 141810, 141812, February 2, 2007
- —To reiterate, service upon the parties’ counsels of record is tantamount to service upon the parties
themselves, but service upon the parties themselves is not considered service upon their lawyers. The reason is
simple—the parties, generally, have no formal education or knowledge of the rules of procedure, specifically, the
mechanics of an appeal or availment of legal remedies; thus, they may also be unaware of the rights and duties of a
litigant relative to the receipt of a decision. More importantly, it is best for the courts to deal only with one person in
the interest of orderly procedure—either the lawyer retained by the party or the party him/herself if s/he does not
intend to hire a lawyer.
− Motion for reconsideration
− NT distinguished from reconsideration
− grounds
− results when granted
− remedy when denied (appeal from the judgment)
− Relief from judgment
− not available for lost remedy
● (140) Tuazon v CA, 256 S 158
- A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court. Under the
rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud,
accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good,
substantial and meritorious defense or cause of action. If the petition is granted, the court shall proceed to hear and
determine the case as if a timely motion for new trial had been granted therein.
- The failure of petitioner’s counsel to notify him on time of the adverse judgment to enable him to appeal
therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the
neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a
ground for setting aside a judgment valid and regular on its face.
- Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner’s confinement
and medical treatment as the reason for his non-appearance at the scheduled hearings. Petitioner has not given
any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the
trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private
respondent alone. To compound the negligence of petitioner’scounsel, the order of the trial court was never
assailed via a motion for reconsideration.
- A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where
there is no other available or adequate remedy. When a party has another remedy available to him, which may be
either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by
fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail
himself of this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the
judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be
used to revive the right to appeal which had been lost thru inexcusable negligence.
● (141) Sps Que v CA GR 1507397 August 18, 2005
- Under Section 1, Rule 38 (“Section 1”), the court may grant relief from judgment only “[w]hen a judgment or
final order is entered, or any other proceeding is taken against a party in any court through fraud, accident, mistake,
or excusable negligence x x x.” In their petition for relief from judgment in the trial court, petitioners contended that
judgment was entered against them through “mistake or fraud” because they were allegedly under the impression
that Atty. Ranot had prepared and filed “the necessary pleading.” This is not the fraud or mistake contemplated
under Section 1. As used in that provision, “mistake” refers to mistake of fact, not of law, which relates to the case.
“Fraud,” on the other hand, must be extrinsic or collateral, that is, the kind which prevented the aggrieved party from
having a trial or presenting his case to the court. Clearly, petitioners’ mistaken assumption that Atty.Ranot had
attended to his professional duties is neither mistake nor fraud.
- Under Section 1, the “negligence” must be excusable and generally imputable to the party because if it is
imputable to the counsel, it is binding on the client. To follow a contrary rule and allow a party to disown his counsel’s
conduct would render proceedings indefinite, tentative, and subject to reopening by the mere subterfuge of
replacing counsel. What the aggrieved litigant should do is seek administrative sanctions against the erring counsel
and not ask for the reversal of the court’s ruling.
- For a claim of counsel’s gross negligence to prosper, nothing short of clear abandonment of the client’s
cause must be shown. Here, what petitioners’ first, second, and third counsels did was fail to file the Answer, file a
belated and defective motion for reconsideration or new trial, and belatedly and erroneously file a petition for relief

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from judgment, respectively. While these acts and omissions can plausibly qualify as simple negligence, they do not
amount to gross negligence to justify the annulment of the proceedings below.
● (142) Monzon v Sps Relova GR 171827 September 17, 2008
- Failure to file a responsive pleading within the reglementary period, and not failure to appear at the
hearing, is the sole ground for an order of default (Rosario, et al. vs. Alonzo, et al., L-17320, June 29, 1963), except the
failure to appear at a pre-trial conference wherein the effects of a default on the part of the defendant are followed,
that is, the plaintiff shall be allowed to present evidence ex parte and a judgment based thereon may be rendered
against the defendant (Section 5, Rule 18). Also, a default judgment may berendered, even if the defendant had
filed his answer, under the circumstance in Sec. 3(c), Rule 29.
-
-
− available only versus final judgment
− distinguished from NT or reconsideration
▪ grounds
▪ when/how invoked
▪ result when granted
▪ remedy when denied (no more appeal)

− Annulment of Judgment (not same court, not same case)

▪ (143) Dare Adventure Farm Corporation v Court of Appeals 681 S 580
- A petition for annulment of judgment is a remedy in equity so exceptional in nature that it may be availed
of only when other remedies are wanting, and only if the judgment, final order or final resolution sought to be
annulled was rendered by a court lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional
in character, is not allowed to be so easily and readily abused by parties aggrieved by the final judgments, orders or
resolutions. The Court has thus instituted safeguards by limiting the grounds for the annulment to lack of jurisdiction
and extrinsic fraud, and by prescribing in Section 1 of Rule 47 of the Rules of Court that the petitioner should show
that the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer
available through no fault of the petitioner. A petition for annulment that ignores or disregards any of the safeguards
cannot prosper.
- The doctrine of immutability and unalterability serves a two-fold purpose, namely: (a) to avoid delay in the
administration of justice and thus, procedurally, to make orderly the discharge of judicial business; and (b) to put an
end to judicial controversies, at the risk of occasional errors, which is precisely why the courts exist. As to the first, a
judgment that has acquired finality becomes immutable and unalterable and is no longer to be modified in any
respect even if the modification is meant to correct an erroneous conclusion of fact or of law, and whether the
modification is made by the court that rendered the decision or by the highest court of the land. As to the latter,
controversies cannot drag on indefinitely because fundamental considerations of public policy and sound practice
demand that the rights and obligations of every litigant must not hang in suspense for an indefinite period of time.
- It is elementary that a judgment of a court is conclusive and binding only upon the parties and those who
are their successors in interest by title after the commencement of the action in court. xxx The principle that a person
cannot be prejudiced by a ruling rendered in an action or proceeding in which he has not been made a party
conforms to the constitutional guarantee of due process of law.
▪ (144) Sps Arenas v Quezon City Development Bank GR 166819 June 16, 2010
- Section 1, Rule 47 provides that it does not allow a direct recourse to a petition for annulment of judgment if
other appropriate remedies are available, such as a petition for new trial, appeal or a petition for relief. If petitioner
fails to avail of these remedies without sufficient justification, she cannot resort to the action for annulment of
judgment under Rule 47, for otherwise, she would benefit from her inaction or negligence.
- The Spouses Arcenas were declared non-suited for failure to appear at the pre-trial conference of Civil
Case No. 072-07-2002 on November 11, 2003, and respondent bank was allowed to present evidence on its
counterclaim on January 8, 2004. Such Order was received by the secretary of petitioner’s counsel on November 17,
2003. Petitioner did not move to set aside the RTC’s order of non-suit. While petitioner’s counsel claimed that he only
learned of such Order of non-suit on December 4, 2003, yet no motion to lift the order of non-suit was filed. Notably,
from December 4, 2003 to the scheduled hearing on January 8, 2004, petitioner did not take any remedial action to
lift the order of non-suit when she had the opportunity to do so. In fact, petitioner and her counsel did not also
appear on the scheduled January 8, 2004 hearing wherein respondent bank presented evidence on its counterclaim
and submitted the case for decision.
- Since petitioner claimed that there was extrinsic fraud committed by respondent bank’s counsel,she could
have filed a petition for relief under Rule 38 within the period provided for by the Rules of Court, but she did not.
Section 2, Rule 47 clearly states that extrinsic fraud shall not be a valid ground for annulment of order if it was availed
of, or could have been availed of, in a motion for new trial or petition for relief. Thus, extrinsic fraud is effectively
barred if it could have been raised as a ground in an available remedial measure. Petitioner tries to justify her failure
to avail of the appropriate remedies on a promise of settlement. However, such promise was not an excuse for
petitioner’s counsel not to lift the order of non-suit and to file a petition for relief.

3.15. Execution of judgments

− Only a final judgment that disposes of the action is subject to execution
− Final judgment versus final and executory judgment
● (145) Investment v CA 147 S 334

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 Final Judgment Final and Executory

One that finally disposes of a case, leaving nothing
more to be done by the Court in respect thereto,
e.g., an adjudication on the merits which, on the
basis of the evidence presented at the trial, declares
categorir-ally what the rights and obligations of the
parties are and which party is in the right; or a
judgment or order that dismisses an action on the
ground, for instance, of res adjudicata or
prescription.
The "final" judgment is then correctly
categorized as a "final and executory
judgment" in respect to which, as the
law explicitly provides, "execution shall
issue as a matter of right." It bears
stressing that only a final judgment or
order, i.e., "a judgment or order that
finally dispose of the action of
proceeding" can become final and
executory.

− Test of a final judgment: Does it leave something for the court to do with respect to the merits of the
case?
− Execution a matter of right when judgment final and executory, but only upon motion
− judgment becomes final by operation of law, i.e., when no appeal has been taken within the period
provided by law
− enforcement of judgment (execution) is ministerial and mandatory once it becomes final, subject to
certain exceptions
− execution before finality of judgment, only upon good reasons

● (146) BF Corp v Edsa Shangrila, 294 S 109

Even the danger of extinction of the corporation will not per se justify a discretionary execution unless there are showings of
other good reasons, such as for instance, impending insolvency of the adverse party or the appeal being patently dilatory.
− discretionary executions, when stayed

● (147) City of Manila v CA, 72 S 98

To stay the execution, a supersedes bond is necessary except where one has already been filed in the lower court. This bond
continues to be effective if the judgment of the regional trial court is appealed. But during the pendency of the appeal, the
defendant-appellant must continue to depositing with the appellate court the payments required in the appealed judgment.
The rentals accruing during the pendency of the appeal must be deposited on or before the date stipulated, if there is one,
and in the absence thereof, on or before the dates provided for in Sec. 8 of Rule 70. Failure to make such deposits or
payments is ground for execution of the judgment

● (148) Valencia v CA, 184 S 561

Section 2, Rule 39 of the Rules of Court, provides that upon motion, the court may, in its discretion, order execution to issue
even before the expiration of the time to appeal, upon good reasons to be stated in a special order. Petitioner, citing Echauz
vs. CA, et al., 199 SCRA 381, 386 (1991), states that generally, execution is allowed when superior circumstances demanding
urgency outweigh the damages that may result from the issuance of the writ.
− execution before or after death of judgment obligor will depend on the nature of the judgment, i.e.
recovery of property v money judgments

● (149)Session Delights Ice Cream v CA GR 172149, February 8, 2010

We state at the outset that, as a rule, we frown upon any delay in the execution of final and executory decisions, as the
immediate enforcement of the parties rights, confirmed by a final decision, is a major component of the ideal administration
of justice. We admit, however, that circumstances may transpire rendering delay unavoidable. One such occasion is when
the execution of the final judgment is not in accord with what the final judgment decrees in its dispositive portion. Just as the
execution of a final judgment is a matter of right for the winning litigant who should not be denied the fruits of his or her victory,
the right of the losing party to give, perform, pay, and deliver only what has been decreed in the final judgment should also
be respected.

● (150) Cayana v CA GR 125607, March 18, 2004

Conclusiveness of judgment—states that a fact or question which was in issue in a former suit and there was judicially passed
upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties
to that action and persons in privity with them are concerned and cannot be again litigated in any future action between
such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different cause
of action, while the judgment remains unreversed by proper authority. It has been held that in order that a judgment in one
action can be conclusive as to a particular matter in another action between the same parties or their privies, it is essential
that the issue be identical. If a particular point or question is in issue in the second action, and the judgment will depend on
the determination of that particular point or question, a former judgment between the same parties or their privies will be final
and conclusive in the second if that same point or question was in issue and adjudicated in the first suit. Identity of cause of
action is not required but merely identity of issues
● (151) Stronghold v Felix GR 148090, November 28, 2006
As a discretionary execution, execution pending appeal is permissible only when good reasons exist for immediately executing
the judgment before finality or pending appeal or even before the expiration of the period to appeal.15Good reasons,

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special, important, pressing reasons must exist to justify execution pending appeal; otherwise, instead of an instrument of
solicitude and justice, it may well become a tool of oppression and inequality.16 Good reasons consist of exceptional
circumstances of such urgency as to outweigh the injury or damage that the losing party may suffer should the appealed
judgment be reversed later.

● (152) Yau v Silverio GR 158848, February 4, 2008

There had been many instances where this Court allowed the execution by motion even after the lapse of five years. These
exceptions have one common denominator, and that is, the delay is caused or occasioned by actions of the judgment
debtor and/or is incurred for his benefit or advantage.

● 153) Jerome Solco v Provido GR 138978, February 11, 2008

Either party can move for the execution of the decision so long as the decision or any part of it is in favor of the moving party.
The rule on execution of final judgments does not make the filing of the motion for execution exclusive to the prevailing party.
● (154) Hi Yield Realty v CA GR 138978, February 12, 2002
The right of redemption should be exercised within the specified time limit, which is one year from the date of registration of
the certificate of sale. Moreover, the redemptioner should make an actual tender in good faith of the full amount of the
purchase price as provided above, which means the auction price of the property plus the creditors other legitimate
expenses like taxes, registration fees, etc.
● (155) Honrado v CA GR 166333, November 25, 2005
Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-
settled that the right of exemption must be claimed by the debtor himself at the time of levy or within a reasonable period
thereafter. It is self-evident that petitioner did not assert their claim of exemption within a reasonable time. Any claim for
exemption from execution of properties under Section 12 of Rule 39 of the Rules of Court must be presented before its sale on
execution by the sheriff. Petitioner and his wife failed to disclose in their petition for the judicial constitution of a family home
that Premium Agro-Vet Products, Inc. is one of their creditors considering the fact that the collection case filed against
Honrado was filed in 1997 or prior to the institution of said petition in 1998. Petitioner never raised the argument of exemption of
his family home before the trial court before and during the auction sale. We find that such actions reveal a dilatory intent to
render nugatory the sale on execution and defeat the very purpose of execution to put an end to litigation. Petitioner
previously failed to appear in the pre-trial conference, failed to submit his appellants brief and now conveniently raised the
issue of exemption almost a year from the auction sale.

● (156) Repubic v Antonio GR 166866, March 27, 2008

When a compromise agreement is given judicial approval, it becomes more than a contract binding upon the parties. Having
been sanctioned by the court, it is a determination of the controversy and has the force and effect of a judgment. It is
immediately executory and not appealable, except for vices of consent, forgery, fraud, misrepresentation and coercion.[34]
Thus, although a compromise agreement has the effect and authority of res judicata upon the parties even without judicial
approval, no execution may issue until it has received the approval of the court where the litigation is pending and
compliance with the terms of the agreement is thereupon decreed.

● (157) Corpuz v Sto tomas and OSG GR 186571, August 11, 2010
Direct involvement or being the subject of the foreign judgment is sufficient to clothe a party with the requisite interest to
institute an action before our courts for the recognition of the foreign judgment. In a divorce situation, we have declared, no
less, that the divorce obtained by an alien abroad may be recognized in the Philippines, provided the divorce is valid
according to his or her national law.

● (158) Republic v Gingoyon GR 166429, February 1, 2006

While the Government refers to a judgment rendered by a London court in favor of
Takenaka and Asahikosan against PIATCO in the amount of US$82 Million, it should
be noted that this foreign judgment is not yet binding on Philippine courts. It is
entrenched in Section 48, Rule 39 of the Rules of Civil Procedure that a foreign
judgment on the mere strength of its promulgation is not yet conclusive, as it can be
annulled on the grounds of want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. It is likewise recognized in Philippine
jurisprudence and international law that a foreign judgment may be barred from
recognition if it runs counter to public policy.

4. APPEALS

4.1. Nature of appeal as a remedy

− guard against judgments of unskilled and unfair judges
− prevention as much as correction of mistakes

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 − not a right but a mere privilege, thus may be lost

− (159) Dacuital v LM Engineering Corporation 629 S 702

Clearly, the NLRC properly took cognizance of the appeal of all the named complainants even though it was signed by only
one of them. While the right to appeal is a statutory and not a natural right, it is nonetheless an essential part of our judicial
system. Courts are, therefore, advised to proceed with caution, so as not to deprive a party of the right to appeal. Litigants
should have the amplest opportunity for the proper and just disposition of their cause free, as much as possible, from the
constraints of procedural technicalities.

4.2. Who may appeal

4.3. What are appealable

− what are final judgments
− when does a judgment or order become final
− final judgments vs judgments that are final and executory
− what are not appealable and why are they not?
− test of final nature is when it completely disposes of the case
− Exception Sec 1, Rule 41 (a-g) in which cases remedy is by Rule 65

− (160) D.M. Ferrer & Associates v UST GR 189496 February 1, 2012

While Section 1, Rule 41 of the 1997 Rules of Civil Procedure states that an appeal may be taken only from a final order that
completely disposes of the case, it also provides several exceptions to the rule, to wit:
(a) an order denying a motion for new trial or reconsideration;
(b) an order denying a petition for relief or any similar motion seeking relief from judgment;
(c) an interlocutory order;
(d) an order disallowing or dismissing an appeal;
(e) an order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake
or duress, or any other ground vitiating consent;
(f) an order of execution;
(g) a judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims
and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and
(h) an order dismissing an action without prejudice.
In the foregoing instances, the aggrieved party may file an appropriate special civil action for certiorari under Rule 65.

4.4. Modes of appeal

− ordinary appeal (by mere notice of appeal with court rendering judgment)
− MTC to RTC
− RTC to CA
− no extension of period to file notice of appeal
− interrupted by motion for NT or recon
− if NT or recon denied, fresh period to appeal

− (161) Neypes vs CA GR 141524 Sept 14, 2005

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

− payment of docket fees must accompany notice of appeal

− petition for review (by filing petition with CA under rule 42)
− second level of review
− review of judgment in exercise of appellate jurisdiction
− RTC (appellate jurisdiction) to CA
− not a matter of right; discretionary on part of CA

● (162) Ong v Tating. 149 SCRA 265

A "petition for review" is the correct mode of appeal from a judgment rendered by a CFI (RTC) in the exercise of appellate
jurisdiction i.e., when it decides a case appealed to it from the inferior court. In such a case, the appeal is not a matter of
right, its acceptance being discretionary on the Court of Appeals, which "may give it due course only when the petition shows
prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the
decision or judgment sought to be reviewed." On the other hand, when a CFI (RTC) adjudicates a case in the exercise of its
original jurisdiction, the correct mode of elevating the judgment to the Court of Appeals is by ordinary appeal, or appeal by
writ of error, involving merely the filing of a notice of appeal except only if the appeal is taken in special proceedings and
other cases wherein multiple appeals are allowed under the law, in which event the filing of a record on appeal is additionally
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required. Of course, when the appeal would involve purely questions of law or any of the other cases (except criminal cases
as stated hereunder) specified in Section 5(2), Article X of the Constitution, it should be taken to the Supreme Court by petition
for review on certiorari in accordance with Rules 42 and 45 of the Rules of Court. However, in criminal cases in which the
penalty imposed is death or life imprisonment, the appeal to the Supreme Court is by ordinary appeal on both questions of
fact and law. In cases where the death penalty is imposed, there is an automatic review by the Supreme Court.

− appeal by certiorari (filing petition with SC)

− appeal to the SC
▪ from RTC on questions of law only (Rule 41)
● (163) UMC v Velasco 98 S 545
Since the appeal was perfected in 1965 before the enactment of R.A. No. 5440 which took effect on September 7, 1968, a
record on appeal was submitted. (RRZ: IRRELEVANT ANG CASE)

− may be remanded to CA if involving question of fact (rule 56, sec 6), not
dismissed
▪ from final order or resolution of CA or SB (rule 45) but only on questions of law
− appeal to SC not a matter of right (Rule 45, sec 6)

● (164) Cheesman v IAC, 193 S 93

Now, it is axiomatic that only questions of law, distinctly set forth, may be raised in a petition for the review on certiorari of a
decision of the Court of Appeals presented to this Court.25 As everyone knows or ought to know, the appellate jurisdiction of
this Court is limited to reviewing errors of law, accepting as conclusive the factual findings of the lower court upon its own
assessment of the evidence. The creation of the Court of Appeals was precisely intended to take away from the Supreme
Court the work of examining the evidence, and confine its task to the determination of questions which do not call for the
reading and study of transcripts containing the testimony of witnesses. The rule of conclusiveness of the factual findings or
conclusions of the Court of Appeals is, to be sure, subject to certain exceptions,28 none of which however obtains in the case
at bar.

● (165) Sumbingco v CA, 155 S 24

It is axiomatic that appeals from the Court of Appeals are not a matter of right but of sound judicial discretion on the part of
this Court, and will be granted only when there are special and important reasons therefor. In other words, appeals from the
Court of Appeals are not entertained as a matter of routine; they may be rejected out of hand in the exercise of this Court's
sound judicial discretion. The prescribed mode of appeal is by certiorari, limited only to issues or questions of law which must
be distinctly set forth in the petition for review on certiorari. The findings of fact of the Appellate Court are conclusive even on
this Court, subject only to a few well defined exceptions (none of which is present in the instant case). It is incumbent on the
appellant to make out a sufficiently strong demonstration of serious error on the part of the Court of Appeals, and adduced
special and important reasons to justlfy the exercise by this Court of its discretionary appellate jurisdiction, failing in which this
Court will decline to wield its invoked power of review and will dismiss the appeal on the ground that it is without merit, or is
prosecuted manifestly for delay or the questions raised are too unsubstantial to require cons

▪ What is a question of law?

● See (166) Macawiwili and (167) Land Bank cases below

− petition for review on certiorari vs petition for certiorari

● (168) New York Marine v CA, 249 S 416
The proper remedy available to petitioner from a decision of the Court of Appeals is a petition for review on certiorari under
Rule 45 of the Rules of Court, not a petition for certiorari under Rule 65 of the Rules of Court. Mere errors of judgment cannot
be the proper subject of a special civil action for certiorari. Where the issue or question involved affects the wisdom or legal
soundness of the decision — not the jurisdiction of the court to render said decision — the same is beyond the province of a
special civil action for certiorari. Erroneous findings and conclusions do not render the appellate court vulnerable to the
corrective writ of certiorari. For where the court has jurisdiction over the case, even if its findings are not correct, they would, at
most, constitute errors of law and not abuse of discretion correctible by certiorari.
● (169) Ybanez v CA, 253 S 540
It is inappropriate for respondent court to reverse the RTC ruling that there was proper and valid substituted service of
summons over the persons of the petitioners. Petitioners properly assigned this issue and in fact, it was exhaustively argued in
their appeal, albeit without success. They subsequently failed to seasonably question the soundness of the RTC ruling before
respondent court via a petition for review. As it stands, therefore, the ruling of the RTC that substituted service of summons was
validly effected has long acquired finality. Raising this long settled issue in the annulment case could very well be petitioners
device and technique to acquire a fresh opportunity to assail this ruling, a chance they already lost because of their failure to
seasonably file a petition for review. This scheme is highly irregular and may as well constitute misuse of court processes. In
addition it stultifies and renders asunder the principle, well embedded in our jurisprudence, that a judgment properly rendered
by a court vested with jurisdiction, like the RTC, and which has acquired finality becomes immutable and unalterable, hence,
may no longer be modified in any respect except only to correct clerical errors or mistakes. Judgments of courts become final
at some definite time fixed by law and that parties, like the petitioners, should not be permitted to litigate the same issue/s
over again.

Rule on appeals summarized

(170) Macawiwili Gold Mining and Devt Co v CA 297 S 602
The rules on appeals from the judgments of the regional trial courts in civil cases may thus be summarized as follows:

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(1) Original Jurisdiction - In all cases decided by the regional trial courts in the exercise of their original jurisdiction, appeal may
be made to:
(a) Court of Appeals - where the appellant raises questions of fact or mixed questions of fact and law, by
filing a mere notice of appeal.
(b) Supreme Court - where the appellant solely raises questions of law, by filing a petition for review on
certiorari under Rule 45.
(2) Appellate Jurisdiction
All appeals from judgments rendered by the regional trial courts in the exercise of their appellate jurisdiction, whether the
appellant raises questions of fact, of law, or mixed questions of fact and law, shall be by filing a petition for review under Rule
42.
The question is whether the issues raised in the appeal of respondent Philex Mining are questions of law or of fact.
[F]or a question to be one of law, the same must not involve an examination of the probative value of the
evidence presented by the litigants or any of them. And the distinction is well-known: There is a question of law in a
given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question
of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts

(171) Land Bank of the Philippines v Ramos 685 S 540

RRZ: literally quoted Macawiwili

4.5. When does court lose jurisdiction relative to filing of notice of appeal
− May notice of appeal be contested? Dismissed by court?
− duty of court when notice of appeal filed
− dilatory appeals

4.6. Improper appeals

− to CA from RTC on questions of law
− to SC via notice of appeal
− to CA on notice of appeal from RTC decision rendered in appellate jurisdiction
− the above modes will merit dismissal; no transfer to correct court will be allowed
(Exception is when appeal to SC on questions of law and fact in which case, the case will be
remanded to CA)

5. PROVISIONAL REMEDIES

5.1. Preliminary Attachment

− Kinds of attachment
− preliminary
− garnishment
− levy on execution
− At what stage is preliminary attachment granted?
− grounds for attachment exclusive
− may be granted ex parte

● (172) Onate v Abrogar, 241 S 659

Thus, an exception to the established rule on the enforcement of the writ of attachment can be made where a previous
attempt to serve the summons and the writ of attachment failed due to factors beyond the control of either the plaintiff or the
process server, provided that such service is effected within a reasonable period thereafter.
Several reasons can be given for the exception. First, there is a possibility that a defendant, having been alerted of plaintiffs
action by the attempted service of summons and the writ of attachment, would put his properties beyond the reach of the
plaintiff while the latter is trying to serve the summons and the writ anew. By the time the plaintiff may have caused the service
of summons and the writ, there might not be any property of the defendant left to attach.
Second, the court eventually acquired jurisdiction over the petitioners six days later. To nullify the notices of garnishment issued
prior thereto would again open the possibility that petitioners would transfer the garnished monies while Sun Life applied for
new notices of garnishment.
Third, the ease by which a writ of attachment can be obtained is counter-balanced by the ease by which the same can be
discharged: the defendant can either make a cash deposit or post a counter-bond equivalent to the value of the property
attached. The petitioners herein tried to have the writ of attachment discharged by posting a counter-bond, the same was
denied by respondent Judge on the ground that the amount of the counter-bond was less than that of Sun Life's bond.

● (173) Davao Light & Water v CA, 204 S 343

The Court reiterates and reaffirms the proposition that writs of attachment may properly issue ex parte provided that the Court
is satisfied that the relevant requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require
prior hearing on the application with notice to the defendant; but that levy on property pursuant to the writ thus issued may
not be validly effected unless preceded, or contemporaneously accompanied, by service on the defendant of summons, a

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copy of the complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not
incorporated in but submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond

● (174)Sievert v CA, 168 S 692

Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or incorporated in the main complaint itself
as one of the forms of relief sought in such complaint. Thus, valid service of summons and a copy of the complaint will in such
case vest jurisdiction in the court over the defendant both for purposes of the main case and for purposes of the ancillary
remedy of attachment. In such case, notice of the main case is at the same time notice of the auxiliary proceeding in
attachment. Where, however, the petition for a writ of preliminary attachment is embodied in a discrete pleading, such
petition must be served either simultaneously with service of summons and a copy of the main complaint, or after jurisdiction
over the defendant has already been acquired by such service of summons. Notice of the separate attachment petition is
not notice of the main action. Put a little differently, jurisdiction whether ratione personae or ratione materiae in an
attachment proceeding is ancillary to jurisdiction ratione personae or ratione materiae in the main action against the
defendant. If a court has no jurisdiction over the subject matter or over the person of the defendant in the principal action, it
simply has no jurisdiction to issue a writ of preliminary attachment against the defendant or his property.
● (175) Carlos v Sandoval 471 S 266
Section 20 essentially allows the application to be filed at any time before the judgment becomes executory. It should be filed
in the same case that is the main action, and cannot be instituted separately. It should be filed with the court having
jurisdiction over the case at the time of the application. The remedy provided by law is exclusive and by failing to file a motion
for the determination of the damages on time and while the judgment is still under the control of the court, the claimant loses
his right to damages.

● (176) Spouses Yu v Ngo Yee Te GR 155868

Where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the
attachment plaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the
attachment was not merely wrongful but also malicious, the attachment defendant may recover moral damages and
exemplary damages as well. Either way, the wrongfulness of the attachment does not warrant the automatic award of
damages to the attachment defendant; the latter must first discharge the burden of proving the nature and extent of the loss
or injury incurred by reason of the wrongful attachment.

5.2. Preliminary Injunction

− preceded by a 72-hour TRO, 20-day TRO (RTC) or a 60-day TRO (CA)
− within TRO, hearing must be conducted
− may be granted at any stage of the proceeding
− requirements for issuance
− coordinate body may not be enjoined
− may be a provisional remedy and the principal remedy itself

● (177) Bacolod City Water District v Labayen 446 S 110

The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist
except only as part or an incident of an independent action or proceeding. As a matter of course, in an action for injunction,
the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for
injunction seeks a judgment embodying a final injunction which is distinct from, and should not be confused with, the
provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be
heard. A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It
persists until it is dissolved or until the termination of the action without the court issuing a final injunction.
A restraining order, on the other hand, is issued to preserve the status quo until the hearing of the application for preliminary
injunction which cannot be issued ex parte. Under Rule 58 of the Rules of Court, a judge may issue a temporary restraining
order with a limited life of twenty (20) days from date of issue. If before the expiration of the twenty (20)-day period the
application for preliminary injunction is denied, the temporary restraining order would be deemed automatically vacated. If
no action is taken by the judge on the application for preliminary injunction within the said twenty (20) days, the temporary
restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect
being necessary

● (178) China Banking Corp v Co GR 174569

Since a preliminary mandatory injunction commands the performance of an act, it does not preserve the
status quo and is thus more cautiously regarded than a mere prohibitive injunction. Accordingly, the issuance of a
writ of preliminary mandatory injunction is justified only in a clear case, free from doubt or dispute. When the
complainants right is thus doubtful or disputed, he does not have a clear legal right and, therefore, the issuance of
injunctive relief is improper.

● (179) Estares v CA GR 144755

It must be remembered that a writ of preliminary injunction is generally based solely on initial and incomplete
evidence. The evidence submitted during the hearing on an application for a writ of preliminary injunction is not

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 conclusive or complete for only a sampling is needed to give the trial court an idea of the justification for the
preliminary injunction pending the decision of the case on the merits

● (180) Buyco v Baraquia GR 177486 (December 21, 2009)

It is well-settled that the sole object of a preliminary injunction, whether prohibitory or mandatory, is to
preserve the status quo until the merits of the case can be heard. It is usually granted when it is made to appear that
there is a substantial controversy between the parties and one of them is committing an act or threatening the
immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before
a full hearing can be had on the merits of the case.

● (181) Heirs of the late JBL Reyes v CA 338 S 282

True, any member of the Court of Appeals may issue preliminary injunction or temporary restraining order. However, this power
is exercised only in case of extreme urgency, and in the tradition of the Supreme Court, the Court en banc or division ratifies or
confirms the act of the single justice at the very next session of the Court.

● (182) Brocka v Enrile 192 S 182

Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final. There
are however exceptions, among which are:
a. To afford adequate protection to the constitutional rights of the accused;
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
c. When there is a pre-judicial question which is sub judice;
d. When the acts of the officer are without or in excess of authority;
e. Where the prosecution is under an invalid law, ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by the lust for vengeance ; and
j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied

● ( 183) Medina v Greenfield Development GR 140228

Where the complainants right or title is doubtful or disputed, injunction is not proper. The possibility of irreparable damage
without proof of actual existing right is not a ground for an injunction. Equally pertinent is the rule that courts should avoid
issuing a writ of preliminary injunction, which in effect, would dispose of the main case without trial.

5.3. Receivership
− When is receiver appointed?
− object is preservation of property subject matter of litigation
− powers of a receiver

● (184) National Investment and Development Corp v Judge Aquino 163 S 153
The prevention of imminent danger to property is the guiding principle that governs courts in the matter of appointing
receivers. Under Sec. 1 (b), Rule 59 of the Rules of Court, it is necessary in granting the relief of receivership that the property or
fired be in danger of loss, removal or material injury.

● (185) Traders Royal Bank v IAC 273 S 521

It is, therefore, clear that when the services of a receiver who has been properly appointed terminates, his compensation is to
be charged against the defeated party, or the prevailing litigant may be made to share the expense, as justice requires.
Consequently, the trial court's order approving TRB's compensation to be charged solely against the funds under its
receivership is without legal justification; hence, it was correctly reversed by the Court of Appeals.
5.4. Replevin
− nature of a replevin suit
− question involved is one of possession but ownership may be resolved if raised
− plaintiff (claim) and defendant (counterclaim) can petition for replevin

● (186) Yang v Valdez 177 S 141

A defendant in a replevin suit may demand return of possession of the property replevied by filing a redelivery bond within the
periods specified in Sections 5 and 6 of Rule 60

● (187) Adoma v Gatcheco 448 S 299

If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the
bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicants
bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and

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found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any
reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.

● (188) Paat v CA 266 S 167

Dismissal of the replevin suit for lack of cause of action in view of the private respondents failure to exhaust administrative
remedies should have been the proper course of action by the lower court instead of assuming jurisdiction over the case and
consequently issuing the writ ordering the return of the truck. Exhaustion of the remedies in the administrative forum, being a
condition precedent prior to ones recourse to the courts and more importantly, being an element of private respondents right
of action, is too significant to be waylaid by the lower court.

● (189) Citibank v CA 304 S 679

It should be noted that a replevin bond is intended to indemnify the defendant against any loss that he may suffer by reason
of its being compelled to surrender the possession of the disputed property pending trial of the action. The same may also be
answerable for damages if any when judgment is rendered in favor of the defendant or the party against whom a writ of
replevin was issued and such judgment includes the return of the property to him. Thus, the requirement that the bond be
double the actual value of the properties litigated upon. Such is the case because the bond will answer for the actual loss to
the plaintiff, which corresponds to the value of the properties sought to be recovered and for damages, if any.

● (190) Smart Communications v Regina Astorga GR 148132 January 28, 2008

Replevin is a possessory action, the gist of which is the right of possession in the plaintiff. The primary relief sought therein is the
return of the property in specie wrongfully detained by another person. It is an ordinary statutory proceeding to adjudicate
rights to the title or possession of personal property. The question of whether or not a party has the right of possession over the
property involved and if so, whether or not the adverse party has wrongfully taken and detained said property as to require its
return to plaintiff, is outside the pale of competence of a labor tribunal and beyond the field of specialization of Labor Arbiters.

5.5. Support pendete lite

− concept of support is that the applicant is entitled to it by reason of some relationship (say, marital or
filial) with the adverse party
− judgment of support is never final, it can be amended at any time as long as the obligation to support
subsists
− Arts 194, 195, 201, 202 of Family Code

● (191) Reyes v Ines-Luciano GR 48219

In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the case, it
being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly
resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Mere
affidavits may satisfy the court to pass upon the application for support pendente lite.It is enough the the facts be established
by affidavits or other documentary evidence appearing in the record.

● (192) Lam v Chua GR 131286

The matter of support is a question that may be raised and threshed out before the Makati RTC as it was the court that
approved the Compromise Agreement, or before the Pasay RTC where the petition for declaration of nullity or annulment of
marriage is filed. In the interest of orderly administration of justice, the Court deems it proper that the issue on support should
be resolved by the Pasay RTC where the claim for support of the child was initiated by Adriana.

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