Now, of course the requirements of the Rules are really strict although courts and lawyers are very

liberal on this. First

of all, if you want to postpone a trial on the ground of absence of evidence, there must be a verified affidavit. The affidavit
must show the materiality or relevancy of the evidence which is not available and that due diligence was used to procure it.
In other words, you tried your best to secure it earlier.

Now, what is the meaning of the second sentence: “If the adverse party admits the facts to be given in evidence, even if
he objects or reserves the right to their admissibility, the trial shall not be postponed”?

EXAMPLE:
LAWYER: “We are asking for postponement because our witness is not present. He is not available and his
testimony will be very material.”
ADVERSE PARTY: “Alright, what is going to be his testimony? What will he testify about in court?
LAWYER: “Well, this is his testimony …. he will prove this or he will prove that….”
ADVERSE PARTY: “OK. Admitted. I admit that if he is here, this is what he will say. Although I may object
to the admissibility of such testimony.”

Meaning, the other party may admit the evidence but object to its admissibility. That is two different things – admitting
the evidence but objecting to its admissibility in court. Meaning, objecting to the admissibility of the witness in court. Just
like under the Constitution, if a confession is made by a suspect without being afforded with the Miranda warnings, such
confession is not admissible. But such confession is evidence. Only, it is inadmissible.

So, I admit that, although I reserve my right to its admissibility. Then in such case, you have no more reason for
postponement because in the first place, there is no need to present your witness because the other party already admitted
what will be the substance of his testimony. Yaannn!

Sec. 4. Requisites of motion to postpone trial for illness of party

or counsel. A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon affidavit or sworn
certification that the presence of such party or counsel at the trial
is indispensable and that the character of his illness is such as to
render his non-attendance excusable. (5a, R22)

The same thing for illness (2nd ground). Kung may sakit, there must be affidavit or sworn statement. So you must have
a sworn medical certificate and that the presence of such party or counsel is indispensable and the character of his witness is
such as to render his non-attendance excusable.

Now, of course the SC has already stated in some cases that when the sickness is sudden and unexpected such as
accident, you cannot require on the spot a medical certificate. Meaning, how can I produce something if he got sick only an
hour ago? So, the court should take that into consideration. They cannot object to the requirement of medical certificate.

So, a motion for postponement which is not verified upon the ground of illness of a party or counsel without a medical
certificate should be granted if it appears that the claim of the movant is meritorious.

Normally, we just say that if the other party insists on a medical certificate, we will submit it this afternoon or
tomorrow because there are things in which we cannot get a medical certification on time unless he has been sick for so
long.

In the ultimate analysis, what is the policy of the SC on postponements? Motions for postponements is always
addressed to the sound discretion of the court (Casilan vs. Gancayco, 56 O.G. 2799, March 28, 1960; People vs. Martinez,
57 O.G. 7923, Oct. 30, 1961).

So if the motion for postponement is denied or granted or either way, it is so hard to have it overturn because the SC
will always give way to the discretion and rarely will it happen in court where it will interfere without discretion unless
there is grave abuse of discretion.
 ORDER OF THE TRIAL

The order of trial in civil cases is a little bit more complicated compared to criminal cases.

Sec. 5. Order of trial. Subject to the provisions of section 2 of

Rule 31, and unless the court for special reasons otherwise directs,
the trial shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his
defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his
defense, counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of
the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their defense, in the
order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance of
justice, permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to argue
or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court shall
determine the relative order of presentation of their evidence. (1a,
R30)

Take note that the law says “the trial shall be limited to the issues stated in the pre-trial order.” That is now
emphasized under the Rule 30. That jives with Rule 18, Section 7 on what is the importance of a pre-trial order:

Sec. 7. Record of pre-trial. - The proceedings in the pre-trial

shall be recorded. Upon the termination thereof, the court shall issue
an order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed to the
pleadings, and the agreements or admissions made by the parties as to
any of the matters considered. Should the action proceed to trial, the
order shall explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest injustice.
(5a, R20)

The pre-trial order shall limit the issues and shall control the subsequent course of the action. We already emphasized
that the pre-trial order prevails over the pleadings. The pre-trial order has the effect of superseding the complaint and the
answer. Whatever issues are stated in the pre-trial order shall be the issues to be tried during the hearing on the case.

Now going back to Rule 30, that is now emphasized. The trial shall be limited to the issues stated in the pre-trial order.
So, the pre-trial order will be a very important document to determine what are the issues to be tried.

Q: How will the trial proceed? In what order?

A: Section 5, paragraphs [a] to [g], including the last paragraph of Section 5.

Q: What is the reason for the rule prescribing an order of trial?

A: The reason is for orderly procedure, which must be followed if injurious surprises and annoying delays in the
administration of justice are to be avoided. Evidence cannot be given piece-meal. (Dir. of Lands vs. Archbishop of Manila,
41 Phil. 120)
 You will notice the order of trial in civil cases follows more or less the same pattern with the trial in criminal case. The
pattern is the same although there may be cross-claims, third (fourth, etc.) party complaints, especially when there are more
than one defendant.

BASIC PATTERN (No cross-claim, counterclaim or 3rd-party complaint, etc.):

1.) Plaintiff presents evidence to prove his claim or cause of action. That is what you call EVIDENCE IN CHIEF,
also called as the MAIN EVIDENCE; (paragraph [a])

2.) Defendant presents evidence in chief or main evidence to prove his defense – negative or affirmative defense;
(paragraph [b])

3.) Plaintiff will present what we call REBUTTAL EVIDENCE to rebut defendant’s main evidence. (paragraph
[f])

4.) Defendant is given the chance to present rebuttal evidence to rebut the rebuttal of evidence of the plaintiff. In
legal parlance, we call that SUR-REBUTTAL evidence; (paragraph [f])

5.) ARGUMENTS. Normally, it is what we call the filing of MEMORANDUM (written arguments) – the parties
will submit their respective memoranda, unless the case will be submitted for decision without arguments or
memorandum. (paragraph [g])

So, normally, that is the basic pattern of the order of trial. Now, plaintiff presents evidence ahead, after him defendant
presents evidence to prove his defense.

Now, in the case of

YU vs. MAPAYO
44 SCRA 163

FACTS: The plaintiff filed a complaint against the defendant to collect a loan which, according to the
plaintiff, the defendant has not paid. The defendant filed an answer admitting the loan but ang kanyang
affirmative defense is, the obligation is paid.
During the trial, the plaintiff said that he is no longer going to present any evidence to prove his
cause of action because anyway, the defendant has admitted the obligation; and since the defendant
is the one invoking payment, it is, therefore, his burden to prove payment.
The trial court agreed with the plaintiff, “Yes. Alright defendant, you present evidence that the obligation
is paid. Anyway, you are admitting that you borrowed money.”
Now, according to the defendant, the procedure is improper the order of the trial being altered,
“Why will the defendant prove his defenses ahead. The plaintiff is supposed to present evidence bago ako. Bakit
uunahin ako?” That is the objection of the defendant.

ISSUE: Can the defendant present his evidence first?

HELD: AH YES! Anyway, by admitting the obligation, you are invoking the affirmative defense of
payment. So, it is incumbent upon you to prove that it is paid.
Under Rule 16, the defendant is not obliged to file a motion to dismiss. That is optional. In fact,
the defendant is allowed, instead of filing a motion to dismiss, to file an answer invoking the ground
for a motion to dismiss as an affirmative defense. And then the defendant could even ask for a
preliminary hearing for his affirmative defenses as if a motion to dismiss has been filed.
Therefore, in the hearing for a motion to dismiss, the defendant is now converting his defense into a
ground for a motion to dismiss. In which case, the affirmative defense will be heard ahead of the main action.
So, that is allowed under Rule 16.
So, there is nothing basically wrong with an affirmative defense being heard ahead of the plaintiff,
especially when the plaintiff has nothing to prove anymore.
 Well, of course that is more apparent in criminal procedure. In the order of trial in criminal procedure, the court may
even direct the accused to present evidence ahead of the prosecution when the accused is already admitting the facts
constituting the crime but only invokes a defense such as self-defense – when you are accused of homicide and your defense
is that you acted in self-defense. So, wala ng i-prove ang prosecution. Automatically, you are admitting that you killed the
victim. The burden now is shifted to you to justify the killing. That’s what they call “TRIAL IN REVERSE.”

So, in criminal cases where the law authorizes a reversed trial where the accused is directed to present evidence ahead
of the prosecution, there is no reason why the same procedure cannot also apply in civil cases. That is the essence of the
MAPAYO ruling. So, more or less, that is the deviation from the normal order of trial.

Section 5 [f]: The parties may then respectively adduce rebutting

evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon their
original case;

Paragraph is actually presentation of rebuttal evidence.

Q: What is the difference between the evidence mentioned in paragraph [f] and the evidence mentioned in paragraphs
[a] and [b]?
A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF to prove your main cause of action or your
defense. In paragraph [f], the evidence is not evidence in chief but REBUTTAL EVIDENCE to dispute the side of the other
party.

Q: Is a party allowed to present evidence in chief in the rebuttal stage?

A: GENERAL RULE: NO, because paragraph [f] provides that the parties may then respectively adduce rebutting
evidence only. In other words, you do not go back to paragraphs [a] and [b]. If you have evidence to prove your cause of
action or defense, you should have done it earlier.

So generally, evidence in chief is not allowed during the rebuttal stage. But there is an exception: EXCEPTION:
“Unless the court, for good reasons and in the furtherance of justice permits them to adduce evidence upon their original
case.” Meaning, it permits them to adduce evidence in chief. But you need the permission of the court because normally,
you should have done that under paragraphs [a] and [b] and not in paragraph [f].

Q: Give instances when the court may allow the party to present additional evidence in chief during rebuttal to prove
his cause of action.
A: In the following instances:
1.) When it is newly discovered;
2.) When the evidence was omitted through inadvertence or mistake;
3.) When the purpose is to correct evidence previously offered; (Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material and not merely cumulative or impeaching (64 C.J. 160-163)

Those are the possible instances when the court in the interest of justice may allow the parties to present evidence in
chief during the rebuttal stage which is normally not allowed.

And that is what I saw exactly years ago how this paragraph [f] operates. There was case here we were watching before.
There was a veteran trial lawyer from Manila who tried a case here. I think it was a damage suit against KLM Royal
Airlines for breach of contract of carriage because some of the passengers were from Davao City. Alright when they are
already in the rebuttal stage, the lawyer for the Airlines was presenting evidence and the counsel for the plaintiff argued,
“Objection Your Honor, it is not rebuttal evidence. It is evidence in chief which he is presenting. So it is not proper during
this stage.”

And the trial court agreed, “Yes, it is improper. The evidence in chief should have been presented earlier. Therefore,
objection is sustained.” Lawyer for the Airlines, “So, you honor, may we move for a reconsideration because we believe it
is rebuttal evidence and it is very important.” So, balik na naman sila sa argument. And then the court said, “The motion for
reconsideration is denied, you are not allowed.”

So, patay siya. And it’s really true that what was presented was evidence in chief and not rebuttal evidence. So, hindi
siya ba makalusot or hindi siya makapasok. So, for a while, he closed his eyes and said, “Your Honor, in the interest of
justice may we be allowed to present evidence in chief for the rebuttal stage.” And the court said granted, “Sure pare basta
ikaw! [Mas OK pa sa ALRIGHT]!” So pasok na naman!

In other words, saan niya kinuha ito? When I looked at the Rules, iyon pala! He knows how to invoke it. In other
words, you can see the skill of a veteran lawyer. The rules are at his fingertips. So, that is how I saw this provision operates.

Section 5 [g]: Upon admission of the evidence, the case shall be

deemed submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further pleadings.

Now, of course, pag tapos na kayo, main evidence and rebuttal, tapos na ang kaso. Meaning, the case is ready for
decision. But normally, the lawyer of the parties would say, “We would like to argue.” And the argument is normally not
oral but in writing where you will be asked to file what you call MEMORANDUM.

A MEMORANDUM is practically a thesis where you will summarize your position and you argue why you should
win. That is where you cite evidence. You convince the court that you have proven your cause of action or defense. Then
you cite the testimonies, the exhibits, the transcripts and of course, the argument, the jurisprudence, the law. That is where
you argue. You do not argue in your pleading. Pleadings, complaint, answer is not the time to argue. There, you only state
the facts. You argue after the trial where you interpret now the evidence and convince the court.

Sec. 6. Agreed statement of facts. The parties to any action may

agree, in writing, upon the facts involved in the litigation, and
submit the case for judgment on the facts agreed upon, without the
introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court shall
prescribe. (2a, R30)

Alright, why do the parties present evidence 1, 2, 3, 4. What is the purpose there? To prove facts. Normally, we cannot
agree on the facts. I say something and you will say that is not true and this is what happened. So, normally, cases arise
because of the issue of what happened.

Q: Now, is there a possibility that the court will decide whether there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts or
the case for decision. That is what we call JUDGEMENT ON AGREED STATEMENT OF FACTS or the more popular
term: JUDGEMENT BASED ON STIPULATION OF FACTS.

EXAMPLE: The plaintiff and the defendant agree on all the facts. “These are the facts,” sabi ng plaintiff. Then sabi ng
defendant, “Yes, I agree those are the facts.” Now if we agree on the facts, there is nothing more to prove. And what we are
now quarreling is who should win based on the facts agreed upon. So, ano ngayon ang kaso? That is purely a legal
question. There is nothing to prove because everything is admitted. They disagree only on the conclusion.

So, with that, par. 1, 2, 3, 4 all these steps are useless. There is nothing to prove. In which case, we will go immediately
to step no. 5. So, if the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts
for decision, that is JUDGEMENT BASED ON STIPULATION OF FACTS which is encouraged by the law. This is one of
the purposes of Pre-Trial (Rule 18, Section 2 [d]) where the parties are encouraged to stipulate on facts, because really, it
would save a lot of time.

The best example of agreed facts would be examination problems. The facts are already given – this is what happened.
You cannot change that anymore. And you will be asked, “DECIDE: Is A correct or is B correct.” So in other words, you
simply apply the law. You do not apply anymore the issue of what happened because it is already agreed. Your answer
would be similar to a JUDGMENT BASED ON STIPULATION OF FACTS.

Q: Why is an agreed statement of facts sufficient basis for a judgment?

A: The reason is that an agreed statement of facts is conclusive on the parties, as well as on the court. Neither of the
parties may withdraw from the agreement, nor may the court ignore the same. (McGuire vs. Manufactures Life Ins. Co., 87
Phil. 370)

Q: Now suppose they can agree on some facts but they cannot agree on others.
A: There is no problem. You can have a partial stipulation of facts and then we can try the rest with respect to the other
disputed facts.

That is why the second paragraph says, “If the parties agree only on some of the facts in issue, the trial shall be held as
to the disputed facts in such order as the court shall prescribe.” At least, it would still be faster because the disputed facts
are now limited. Rather than proving ten (10) issues of facts, it will be reduced to 3 or 4. So, the trial would still be faster.

The court is not bound to find out what happened when the parties already agreed on what happened. EXAMPLE: The
parties will stipulate, “This case involves a piece of land with an area of 50 hectares, planted with coconut trees of about
5,000.” So, parties agreed and then the court says, “No, I do not believe you. It might be more than 59 hectares.” NO.
When the parties agree, sundin mo yan because they themselves agree on the facts. You only determine the facts if they
cannot agree. That is why the court is bound by the stipulations made by the parties.

Sec. 7. Statement of judge. During the hearing or trial of a case

any statement made by the judge with reference to the case, or to any
of the parties, witnesses or counsel, shall be made of record in the
stenographic notes. (3a, R30)

Take note that the trial is a formal court proceeding. Everything is recorded there – the statement of parties, their
lawyers, including the statement of the judge. Any statement made by the judge with reference to the case or to any of the
parties, witnesses, or counsel shall be made of record in the stenographic notes.

Sec. 8. Suspension of actions. The suspension of actions shall be

governed by the provisions of the Civil Code. (n)

This is mentioned in Rule 18, Section 2 [h] which discusses the possibility of suspension of the proceedings. Meaning,
huwag munang gumalaw ang kaso – in suspended animation baah!

Q: And what is the possible good legal ground for the parties to ask for suspension of the hearing? Meaning, held in
abeyance ba. What would be the best possible ground?
A: The best possible ground is the one mentioned in Article 2030 of the New Civil Code:

Art. 2030. Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by
one or both parties; or
2. If it appears that one of the parties, before the commencement of
the action or proceeding, offered to discuss a possible compromise but
the other party refused the offer.
The duration and terms of the suspension of the civil action or
proceeding and similar matters shall be governed by such provisions of
the rules of court as the Supreme Court shall promulgate. Said rules of
court shall likewise provide for the appointment and duties of amicable
compounders. (n)

According to Article 2030 of the civil code, if at anytime while the case is going on, one of the parties would like to
discuss a POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the suspension of proceedings.
Why? The court of the law favors compromises or amicable settlements in civil cases.

So at anytime that one party expresses its desire to settle, even in the middle of the case, the court is authorized to
suspend the action to give the parties opportunity to settle because of the policy of the law to encourage the parties to settle
amicably.

That is why even former U.S. President Lincoln, who is more remembered as president rather than as a lawyer, was
quoted, “Discourage litigation. Persuade your neighbor to compromise whenever you can. Point out to them how the
nominal winner is often the real loser in fees, expenses and waste of time. As a peace -maker [Long Live the
PeaceMakers!], the lawyer has the superior opportunity of being a good man. There would still be business enough.”

Meaning, aregluhin ba hanggang maari, you better settle. When you settle, nobody is loser and nobody is winner. Both
of you win. Walang masakit ang loob ba. And marami pang negosyo, marami pang kaso. Do not make such money out of
one case. If you can settle, i-settle muna. Huwag mong sabihing “sayang iyong income” dahil marami pang kaso na
darating. That was what he said.

Now, of course, what happens if the party cannot agree to settle? Well, the procedure is, let the trial go on. That is why
in the 1992 case of

GOLDLOOP PROPERTIES, INC. vs. COURT OF APPEALS

212 SCRA 498 [1992]

FACTS: The parties in a civil action manifested the possibility of submitting amicable
settlement. The court gave them 15 days to submit their compromise agreement. 15 days passed,
no amicable settlement was submitted by the parties. With that, the court dismissed the case.

ISSUE: Was the court correct in dismissing the case when the parties cannot settle?

HELD: The dismissal is WRONG. “Since there is nothing in the Rules that imposes the sanction of
dismissal for failing to submit a compromise agreement, then it is obvious that the dismissal of the complaint
on the basis thereof amounts no less to a gross procedural infirmity. While a compromise is encouraged, very
strongly in fact, failure to consummate one does not warrant any procedural sanction, much less an authority
to jettison a civil complaint. What the court should have done was to continue the action.”

In other words, why should you dismiss the complaint when the parties cannot settle? By that, technically, natalo ang
plaintiff. Kung hindi magkaareglo, then go on with the trial. You have no authority to dismiss the case simply because the
parties cannot settle.

However, there are certain matters which cannot be the subject of compromise. Practically, compromise is allowed on
anything under the sun, except certain matters such as those mentioned in Article 2035.

Q: What are the matters that cannot be the subject of compromise?

A: Under the Article 2035, New Civil Code, the following:

(1) The civil status of persons; (whether legitimate or illegitimate)

(2) The validity of a marriage or a legal separation; (w/n a marriage settlement exists)
(3) Any ground for legal separation;
(4) Future support; (always depends on the means of the party giving support)
(5) The jurisdiction of courts;
(6) Future legitime.

So you cannot agree on these. You cannot compromise as a legitimate when in fact you are illegitimate. Where is the
basis of that? You cannot compromise that the marriage is valid when in fact it is not, or it is null and void. These things
cannot be the subject of agreement.

Sec. 9. Judge to receive evidence; delegation to clerk of court. The

judge of the court where the case is pending shall personally receive
the evidence to be adduced by the parties. However, in default or ex
parte hearings, and in any case where the parties agree in writing, the
court may delegate the reception of evidence to its clerk of court who
is a member of the bar. The clerk of court shall have no power to rule
on objections to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of his report
and the transcripts within ten (10) days from termination of the
 hearing. (n)

The Rules now expressly allows the court to delegate the reception of evidence to the clerk of court who must be a
member of the bar. Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS OCCIDENTAL and junking
forever the ruling in LIM TANHU vs. REMOLETE because in the case of REMOLETE, it was ruled that the judge cannot
delegate the reception of evidence to the clerk of court. Now, puwede na.

A good example is DEFAULT. But actually, it could also be a case where the parties agreed in writing or other cases
where it can be heard ex-parte other than default. Because there are many cases na to my mind that the judge does not really
need to be there listening.

Like for example, a petition for the issuance of lost or transfer of certificate – yung titulo mo nawala – your title is lost
or you misplaced it and you will prove na nawala. That should be heard in court but to my mind that is not a controversy, eh
because there is only one party there. So it is possible for the court to delegate that to the clerk of court in order that they
(judges) can attend to other controversial cases.

Now, please connect this provision with Section 3 of Rule 9 on Default:

Sec. 3. Default; declaration of. - If the defending party fails to

answer within the time allowed therefor, the court shall, upon motion
of the claiming party with notice to the defending party, and proof of
such failure, declare the defending party in default. Thereupon, the
court shall proceed to render judgment granting the claimant such
relief as his pleading may warrant, unless the court, in its discretion
requires the claimant to submit evidence. Such reception of evidence
may be delegated to the clerk of court. (1a, R18)

So in default hearing, it is now the discretion of the court either to conduct an ex-parte reception of evidence which can
be delegated to the clerk of court, or the court may render judgment based on the pleadings. So, it is optional.

Now, to my mind, kung ang case is a collection case or any other cases which are simple, pag na-default ang defendant,
puwede na decision dayon. Pero kung controversial cases, do not render judgment based on the pleadings. You better
conduct an ex-parte reception of evidence and you may delegate the reception of evidence to the clerk of court.

Yun iyong mga out of ordinary cases which are really controversial where the court should require the presentation of
evidence. Pero yong mga kaso na not so complicated, no need of reception of evidence in order to expedite the process of
adjudication.
 Rule 31
CONSOLIDATION OR SEVERANCE

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. (1)

To consolidate cases is to join 2 or more cases together as distinguished from separate trial where the different claims
are tried separately. So, separate trials – pag-hiwa-hiwalayin. Consolidation – pagsasama-samahin.

Q: When is consolidation of actions proper?

A: Consolidation is proper:
1.) when two or more actions involve the same or a common question of law or fact; and
2.) the said actions are pending before the same court. (Section 1, Rule 31; PAL vs. Teodoro, 97 Phil. 461)

First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A

COMMON QUESTION OF LAW OR FACT

Did you notice that phrase – “two or more actions involve the same or a common question of law or fact”? That phrase
seemed to be familiar. ”Common question of law or fact,” where did we meet that requirement before? That is in joinder of
causes of action – two or more causes of action can be joined in one pleading if they involve a common question of fact or
law. Rule 3, Section 6:

SEC. 6 Permissive joinder of parties – All persons in whom or against

whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise
provided in these rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the
court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest.

The phrase answers the questions:

Q: When may 2 or more parties be joined together in one complaint, either as co-plaintiffs or co-defendants?
A: There must be a common question of fact or law involved in their causes of action.

Q: When may actions be consolidated?

A: One of the requisites is: when the actions involve a common question of law or fact.

In other words, there must be a connection somewhere between the rule on Consolidation of actions in Rule 31, with
the rule on Permissive Joinder of Parties in Rule 3.

When we were in Rule 3, an EXAMPLE was given: Suppose 30 people were riding on a bus which met an accident and
all the plaintiffs were injured. After the incident, the 30 of them decided to file claims for damages against the bus
company. They hired the same lawyer.

Q: Can the lawyer file 30 complaints for each plaintiffs?

A: YES.
 In criminal cases, only one offense can be the subject of one complaint or information. consolidation of
criminal actions is exclusively for joint trial;

Q: Can you file one complaint or information embodying two or more crimes?
A: NO. You cannot. That is what you call duplicitous complaint or information. There is no such
thing as joinder of crimes. Therefore, the so-called consolidation of criminal actions is not actually filing
one information but it is only for the purpose of joint trial.

2.) In civil cases, the opposite of consolidation is severance under Section 2; whereas
In criminal cases, the opposite of consolidation is separate trial. In reality, there is actually no consolidation of
criminal cases. There is only joint trial of criminal cases.

Under the rules on Criminal Procedure the accused may reserve the right to file the civil action separately when the
criminal action is filed, the civil action is deemed instituted unless the offended party will make a reservation to file it
separately. Or, when the civil action was instituted ahead, the subsequent filing of the criminal case will mean there is no
more civil action there. And Section 2 of Rule 111, suppose the offended party made a reservation to institute a civil action
and a criminal case is filed, he cannot file the civil action – that’s the rule. He must wait for the outcome of the criminal
case. The criminal case enjoys priority.

Q: What happens if na-una na-file yung civil action?

A: According to Section 2, Rule 111 from the moment the criminal case is filed, the trial of the civil case is suspended
to wait for the outcome of the criminal case.

Q: Is this prejudicial to the offended party? What is the remedy of the offended party?
A: There is a way out according to Section 2, Rule 111. The first thing for him to do is to file a petition to consolidate
the trial of the criminal and civil case for them to be tried together and the evidence already presented in the civil case is
deemed automatically reproduced in the criminal case. This is what you call the consolidation of the civil and criminal
action under Section 2, Rule 111:

“…Nevertheless, before judgment on the merits rendered in the civil

action, the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the criminal
action…” (Section 2, Rule 111)

Q: Is this consolidation mandatory?

A: NO. It is permissive. Actually, the offended party is the one to initiate this because if not, then he has to wait for the
criminal case to be terminated before he can file the civil case.

Q: Can you move to consolidate in one court the criminal and the civil case when actually the degree of proof required
in one case is different from the degree of proof required in another case?
A: That was answered in the affirmative in the case of

CAÑOS vs. PERALTA

115 SCRA 843

FACTS: This case originated in Digos, Davao del Sur, involving the late Dr. Rodolfo Caños, who
owned the Caños Hospital there. The respondent here was former CFI Judge Elvino Peralta. There
was an incident which led to the filing of a criminal case by A against B. A reserved the right to file a
separate civil action under the rules on criminal procedure. A filed a separate civil case, but arising
out of the same incident. Both of the cases were assigned to Judge Peralta.
When Judge Peralta noticed that the 2 actions arose out of the same incident – and the accused
in the criminal case is also the defendant in the civil case, and the offended party in the criminal case
is the plaintiff in the civil case, he ordered the consolidation of the 2 cases under Rule 31, Section 1,
to be tried together.
Dr. Caños objected to the consolidation because according to his lawyer, consolidation of cases under
Rule 31, Section 1 applies only when there are 2 or more civil cases to be considered.
 ISSUE #1: Was the consolidation proper?
HELD: The order of consolidation is correct. Rule 31, Section 1 allows the consolidation of a criminal
and civil case because of the fact that there is a common question of fact or law between them and that they
are pending before the same court. As a matter of fact, before the same judge.

ISSUE #2: How do you reconcile these cases because the degree of proof in the criminal case is not the
same in the civil case?
HELD: The consolidation was proper under Rule 31 because there is a common question of fact and law.
They can be consolidated but for purposes of decision, the court will now apply two (2) different criteria:
Proof beyond reasonable doubt in the criminal case and preponderance of evidence in the civil case. So there
is no incompatibility.

SEC. 2. Separate trials. - The court, in furtherance of convenience

or to avoid prejudice, may order a separate trial of any claim, cross-
claim, counterclaim, or third-party complaint, or of any separate issue
or of any number of claims, cross-claims, counterclaims, third-party
complaints or issues. (2a)

Section 2 is the exact opposite of Section 1. In Section 1, there are 2 or more cases which shall be joined together for
joint trial. In section 2, there is one case with several claims, i.e. counterclaims, cross-claims and third-party complaints.
The rule states that they should be tried together, one after the other, and then one decision.

So for example, you ask the judge for a separate schedule for your 3rd-party claim. Then there will be a separate
schedule for the 3rd–party complaint rather than following the order of trial under Rule 30. Under the order of trial, I have
to wait for my turn to prove my 3rd-party claim. If we follow Rule 30 (order of trial) before it reaches the 3rd-party
complaint, matagal masyado.

But under Section 2, the court may grant a separate trial for your 3rd-party claim or permissive counterclaim especially
when there is no connection between my permissive counterclaim with the main action.
 Rule 32
TRIAL BY COMMISSIONER

Trial by commissioner applies when there is something to be tried which requires some technical expertise, like
accounting ba, which the court feels it does not possess, and it will be a waste of time if everything will be tried in court. So,
the court will refer it to a commissioner, “You hear that and then you submit a report. Submit you report, you finding and
your recommendation.” And that person is known as a commissioner.

SEC. 1. Reference by consent – By written consent of both parties,

the court may order any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the parties or to be appointed
by the court. As used in these Rules, the word “commissioner” includes
a referee, an auditor and an examiner.

This was mentioned when we were talking about pre-trial. This is one of the purpose of a pre-trial. That is Rule 18,
Section 2 [f]: “(f) The advisability of a preliminary reference of issues to a commissioner; ” This provision is actually
referring to Rule 32.

Example #1:
Prof. X and Magneto had continuous transactions. After a long while, their records do not anymore reconcile.
Prof. X filed a case against Magneto on the ground that Magneto has not yet paid an obligation which is already
due. Based on Magneto’s records, bayad na lahat. Wala na syang utang. This is a question of accounting.
The court will have to determine whose records are correct and accurate – invoices, receipts, etc… must be
presented, which might be hundreds or thousands in volume. This will consume a lot of time of the court.
The fact that the case involves accounting and the judge is not an accountant (it is different if the judge is a
CPA/lawyer, hindi mahirap), the judge then should appoint an accountant to assist him. That accountant is known
as the commissioner. That will certainly shorten the time and expedite the resolution of the case.
The judge can then attend to other cases while the parties are presenting all their invoices and receipts before
the accountant/commissioner.

Example #2:
Prof. X and Magneto are owners of adjoining properties. Magneto put up a fence. Prof. X sued Magneto for
forcible entry on the ground that Magneto encroached on Prof. X’s ground, and praying for the recovery of, say,
200 meters. Magneto contends that he built the fence on the boundary line.
The judge will look at the title of the land: “point degree 9, etc..” – only surveyor or a geodetic
engineer understands that! In this case, the court may appoint a geodetic engineer, order the submission
of the titles of the lands to him, he will go to the area, sukat-sukatin niya, and he will draw a sketch and
then based on the sketch, he will determine whether or not there is an encroachment. The appointed
surveyor or geodetic engineer is called a commissioner.

This is what you call trial by commissioner. And take note that under Section 1, trial by commissioner is possible by
mutual agreement of the parties. The parties must agree. Either you can agree on who is the CPA, who is the engineer, or
you can ask the court to appoint somebody

Q: Suppose the parties cannot agree, or one party files a motion asking for the appointment of a commissioner. Is the
court still empowered to apply Rule 32?
A. YES, under section 2:

SEC. 2. – Reference ordered on motion – When the parties do not

consent, the court may, upon the application of either or of its own
motion, direct a reference to a commissioner in the following cases:
a.) When the trial of an issue of fact requires the examination of a
long account on either side, in which case the commissioner may be
directed to hear and report upon the whole issue or any specific question
involved therein;
b.) When the taking of an account is necessary for the information of
the court before judgment, or for carrying a judgment or order into
effect;
 c.) When a question of fact, other than upon the pleadings, arises upon
motion or otherwise, in any stage of a case, or for carrying a judgment or
order into effect.

Section 1 is reference by consent and Section 2 is reference ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.

In (a), it requires an examination of a long account. The best example here is example #1 – accounting.

In (b) and (c), notice that a commissioner may be appointed for carrying a judgment or order into effect. Thus, a
commissioner, can be appointed not only to help the court render a decision, but also help the court enforce a decision –
even if tapos na ang case. Because sometimes, problems arise on how to implement a decision of the court. Example:

There was a case of boundary dispute. Prof. X built his house near the boundary of his property. According to his
neighbor, Magneto, a portion of the house of Prof. X encroached on his land. About 25 sq. m. lang. Prof. X lost. The court
says to Prof. X: “You are directed to return the 25 sq. m. which you occupied.” The sheriff will go there to return the 25 sq.
m. Which part of the house will the sheriff demolish? The sheriff returns to the court because he cannot understand and he
does not know how to implement the decision. So, the court solves that by appointing a surveyor as a commissioner to find
out where that 25 sq. m. will be taken from the portion of the house.

Q: Give other examples of trial by commissioner.

A: The following:
5.) Special Civil Action of Expropriation under Rule 67 – when the court has to determine just compensation.
Under Rule 67, it is mandatory for the court to appoint a commissioner in order to determine as to how much
the value of the property;
6.) Special Civil Action of Partition under Rule 69. When the heirs cannot agree on how to partition a property
under co-ownership, the court may appoint a commissioner to study and submit its report.

So take note that trial by commissioner is allowed not only for the purpose of the court rendering the judgment but also
for the purpose of carrying a judgement or order into effect.

SEC. 3. Order of reference; powers of the commissioner. - When a

reference is made, the clerk shall forthwith furnish the commissioner
with a copy of the order of reference. The order may specify or limit
the powers of the commissioner, and may direct him to report only upon
particular issues, or to do or perform particular acts, or to receive
and report evidence only, and may fix the date for beginning and
closing the hearings and for the filing of his report. Subject to the
specifications and limitations stated in the order,the commissioner has
and shall exercise the power to regulate the proceedings in every
hearing before him and to do all acts and take all measures necessary
or proper for the efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of reference, he may rule upon
the admissibility of evidence. The trial or hearing before him shall
proceed in all respects as it would if held before the court. (3a, R33)

So a commissioner is parang judge rin. In effect he is an assistant judge. Biro mo, he can issue subpoenas, swear
witnesses, and unless otherwise provided in the order of reference, may rule upon the admissibility of evidence, of course,
subject to the final approval of the court.

Compare that with Rule 30 when there is an ex-parte reception of evidence where the clerk of court is delegated to
receive evidence. But the clerk of court cannot rule on the admissibility of evidence.

To my mind, for example, in cases involving accounting, the best commissioner would be a CPA-lawyer because he
knows about the law on evidence and accounting. Kung boundary conflicts naman, the best commissioner would be a
geodetic engineer-lawyer. However, you rarely find that combination.
 SEC. 4. Oath of commissioner. - Before entering upon his
duties the commissioner shall be sworn to a faithful and honest
performance thereof. (14, R33)

SEC. 5. Proceedings before commissioner. - Upon receipt of the

order of reference and unless otherwise provided therein, the
commissioner shall forthwith set a time and place for the first
meeting of the parties or their counsel to be held within ten
(10) days after the date of the order of reference and shall
notify the parties or their counsel. (5a, R33)

SEC. 6. Failure of parties to appear before commissioner. - If

a party fails to appear at the time and place appointed, the
commissioner may proceed ex parte or, in his discretion, adjourn
the proceedings to a future day, giving notice to the absent
party or his counsel of the adjournment. (6a, R33)

SEC. 7. Refusal of witness. - The refusal of a witness to obey

a subpoena issued by the commissioner or to give evidence before
him, shall be deemed a contempt of the court which appointed the
commissioner. (7a, R33)

EXAMPLE: I, as a commissioner, subpoenaed you and you will not show up. I will report you to the court which
appointed me and the court which appointed me will declare you in contempt of court. Remember, the commissioner is
acting by authority of the judge. That’s why he has powers under the law.

SEC. 8. Commissioner shall avoid delays. - It is the duty of the

commissioner to proceed with all reasonable diligence. Either party,
on notice to the parties and commissioner, may apply to the court for
an order requiring the commissioner to expedite the proceedings and to
make his report. (8a, R33)

The commissioner shall expedite the proceedings. He should hurry up the report.

Sec. 9. Report of commissioner. - Upon the completion of the trial

or hearing or proceeding before the commissioner, he shall file with
the court his report in writing upon the matters submitted to him by
the order of reference. When his powers are not specified or limited,
he shall set forth his findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial evidence
presented before him. (9a, R33)

SEC. 10. Notice to parties of the filing of report. - Upon the

filing of the report, the parties shall be notified by the clerk, and
they shall be allowed ten (10) days within which to signify grounds of
objections to the findings of the report, if they so desire.
Objections to the report based upon grounds which were available to the
parties during the proceedings before the commissioner, other than
objections to the findings and conclusions therein set forth, shall not
be considered by the court unless they were made before the
commissioner. (10, R33)

Of course, the parties are given a copy of the report. And if it is against you, you can question the findings
of that commissioner. Sometimes, it is very difficult because there is already a court appointed commissioner
but you have to get another CPA to check on his report.

SEC. 11. Hearing upon report. - Upon the expiration of the period of
 ten (10) days referred to in the preceding section, the report shall be
set for hearing, after which the court shall issue an order adopting,
modifying, or rejecting the report in whole or in part, or recommitting
it with instructions, or requiring the parties to present further
evidence before the commissioner or the court. (11a, R33)

When the commissioner files his report with the court, the court will now schedule it for hearing. The parties will be
furnished copies and during the hearing, if you do not agree with the report, you can present objections thereto or criticize
the report. You can defend or attack it. The court will then determine whether to accept the report or not.

That’s why under Section 11, the court shall issue an order adopting, modifying, rejecting the report, in whole or in
part, or recommitting (ibalik) it to the commissioner with instruction, or requiring the parties to present further evidence.
The court is not bound 100% to swallow everything in the report. But the court rarely rejects the report of the
commissioner, unless talagang there is no basis for it. Chances are, when the report has support, talo ka na. Although it is
not conclusive.

Now take note that when the court approves a report, the findings of the commissioner becomes the findings of the
court.

Q: So, can the findings of the commissioner on question of fact be questioned by the parties?
A: YES, under Section 11.

Q: Is there an exception that the finding of the commissioner on factual issues become final and no longer be
questioned?
A: YES, under Section 12:

SEC. 12. Stipulations as to findings. - When the parties stipulate

that a commissioner's findings of fact shall be final, only questions
of law shall thereafter be considered. (12a, R33)

This is the only instance where you cannot question the commissioner’s report – when there is already an agreement
beforehand that the findings of fact by the commissioner are final, we accept. So the principle of estoppel applies in this
case and only questions of law will then be considered. Meaning, factual issues are binding upon the parties.

SEC. 13. Compensation of commissioner. - The court shall allow the

commissioner such reasonable compensation as the circumstances of the
case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires. (13, R33)

Q: Is the commissioner entitled to compensation?

A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a reputable CPA tapos walang bayad? Sinong
papayag niyan?

Q: How is the commissioner paid?

A: To be taxed as costs against the defeated party, or apportioned. In most cases it is apportioned – 50-50 [isa gatos
tanan!]
 Rule 33
DEMURRER TO EVIDENCE

Q: Define demurrer to evidence.

A: Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case, on the
ground of insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)

SEC. 1. Demurrer to evidence. - After the plaintiff has completed

the presentation of his evidence, the defendant may move for dismissal
on the ground that upon the facts and the law the plaintiff has shown
no right to relief. If his motion is denied, he shall have the right
to present evidence. If the motion is granted but on appeal the order
of dismissal is reversed he shall be deemed to have waived the right to
present evidence. (1a, R35)

Now, there is a similar rule in criminal procedure under Rule 119, Section 23 – demurrer to evidence in criminal cases.
Rule 33 is demurrer to evidence in civil cases.

DEMURRER TO EVIDENCE IN CRIMINAL CASES (Review)

Q: By way of review what is the rule on demurrer to evidence in criminal cases all about? What is the procedure on
demurrer in criminal cases?
A: In the rules on criminal procedure: Trial. The prosecution presents evidence to prove the crime and that the accused
committed the crime. After that, tapos na – the prosecution has rested. It is now the turn of the accused to present evidence
to prove his defense. Alright, that’s the procedure.

But under the rules on demurrer to evidence in criminal cases, the accused, instead of presenting evidence, may opt to
file instead a demurrer. It is a motion by the accused to dismiss the criminal case on the ground that the prosecution failed to
prove his guilt. Remember that under the Constitution, the accused is presumed innocent until his guilt is proven. It is the
burden of the prosecution to prove his guilt, to destroy the presumption of innocence.

Now, suppose the prosecution fails to prove the crime or the guilt of the accused. There is no evidence. The evidence
is insufficient to prove that the accused is guilty. So, the prosecution failed to meet its burden. It failed to rebut the
presumption of innocence. The accused may ask, “why will I present evidence? Why will I prove my innocence when I’m
still presumed innocent? Because my guilt has not been established.” Therefore, the accused will file a demurrer. Actually,
it is a motion to dismiss challenging the sufficiency of the evidence for the prosecution.

SEC. 23. Demurrer to evidence. – After the prosecution rests its

case, the court may dismiss the action on the ground of insufficiency
of evidence (1) on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence filed by the
accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused
waives the right to present evidence and submits the case for judgment
on the basis of the evidence for the prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-
extendible period of five (5) days after the prosecution rests its
case. The prosecution may oppose the motion within a non-extendible
period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days from notice.
The prosecution may oppose the demurrer to evidence within a similar
period from its receipt.
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or by
 certiorari before judgment. (n)

It is now emphasized in Section 23, Rule 119 that a demurrer may be filed with or without leave of court. If you file
demurrer with or without leave and it is granted, then you have no problem because the accused will be acquitted.

The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence to prove at least the
guilt of the accused. If the demurrer was filed with prior leave of court and it is subsequently denied, the accused is allowed
to present evidence to prove his defense.

But if he filed the demurrer without prior leave of court and the demurrer is denied, then you are already convicted
because the accused has forfeited his right to present evidence. It is practically equivalent to a waiver of his right to present
evidence. So conviction automatically follows.

NOTE: Under the new rules on Criminal Procedure, when the accused will file a leave of court to file a demurrer, he
must specifically state the grounds. (c.f. Rule 119, Section 23, third paragraph)

Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.

DEMURRER TO EVIDENCE IN CIVIL CASES

Q: Under the Rule on Trial, who presents evidence first?

A: It is the plaintiff. The plaintiff presents evidence to prove his cause of action. He must prove his case or his claim
by preponderance of evidence.

Q: Suppose after the plaintiff has rested, the plaintiff has not proven his cause of action?
A: I’m the defendant, why will I prove my defense when you have not proven your claim? So, instead of presenting
evidence, the defendant may move to dismiss the complaint on the ground of insufficiency of evidence and that is known as
the demurrer.

To borrow the language of the law, after the plaintiff has completed the presentation of his claim, the defendant may
move for dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. Meaning, you
have not proven your cause of action by preponderance of evidence.

Q: Now, suppose the defendant filed that motion to dismiss (demurrer) but the court disagrees with the defendant. In
the opinion of the court, plaintiff had presented sufficient evidence to prove his cause of action. Meaning, the motion is
denied. What will happen now?
A: Defendant will now present evidence to prove his defense. That is why under Section 1, “If his motion is denied, he
shall have the right to present evidence.”

So, no harm done ‘no? Because if I will file my motion to dismiss and it is denied, I will be given my right to present
my side. So, there is no prejudice on the part of the defendant by filing a motion to dismiss and his motion to dismiss is
denied. What is risky is when your motion is granted.

“If the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence.”

Q: Suppose the court agrees with the defendant and his motion is granted. In other words, the defendant has succeeded
in dismissing the complaint without even presenting his own side – I won a boxing bout without even throwing a single
punch. What will happen now?
A: The court will dismiss the case. BUT if plaintiff appeals to the CA and insists that his evidence is sufficient to prove
his cause of action, therefore the order of the dismissal by the RTC is wrong, and CA agrees with the plaintiff – that the
plaintiff’s evidence is sufficient to prove his claim – the CA will reverse the order of dismissal. The CA will immediately
now decide the case in favor of the plaintiff and the plaintiff will automatically win.

Q: The defendant may argue: “Well, the order was reversed. Eh di ibalik ang kaso. Let’s go back to the RTC and let me
present my side.” Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial court and is reversed on appeal, the defendant loses
forever his right to present his evidence. Therefore defendant has no more right to present his side. That is tantamount to
saying the defendant automatically loses the case.

So, that is what a demurrer in civil cases is all about. Very risky no? If you file a demurrer and your motion is denied,
Okay lang – no prejudice – I will present my evidence. You do not waive your right to present evidence. BUT if the court
agrees with you and grants your motion, that is the start of your headache. In other words, if the plaintiff appeals, you better
pray that the appellate court will sustain or affirm the order of dismissal. Otherwise if it is reversed, talo ka na automatically
and you cannot say, “Alright, ibalik natin ang kaso. Let’s return the case to the RTC because I will now present my side.”
No, you have already waived it.

Favorite BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases with the rule of
demurrer in criminal cases?
A: The following are the distinctions:

1. In CIVIL cases when the demurrer is denied, the defendant will now present his evidence to prove his
defense because the defendant does not waive his right to present in the event the demurrer is denied;
whereas
In CRIMINAL cases, if the demurrer of the accused is denied the accused is no longer allowed to present
evidence if he had no prior leave of court;

2. In CIVIL cases, if the defendant’s demurrer is granted and the case is dismissed and the plaintiff appeals to
the appellate court and on appeal the court reverses the order of dismissal, the appellate court renders
judgment immediately in favor of the plaintiff. Goodbye! – talo na ang defendant. There is no more
remanding. The defendant loses his right to present evidence; whereas
In CRIMINAL cases, if the demurrer is granted, there is no more appeal by the prosecution because the
accused has already been acquitted. Otherwise, there will be a case of double jeopardy;

3. In CIVIL cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests without any
demurrer by the defendant. There is no such thing as motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own initiative after giving the prosecution the
chance to present its evidence.

In both cases, the motion is raised only after the prosecution or the plaintiff has presented his case and the ground is
based on insufficiency of evidence.

Take note that under Rule 9 of the Old Rules of Court, defenses and objections not pleaded either in a motion to dismiss
or in the answer are deemed waived. Among the exceptions (lack of jurisdiction, res adjudicata, etc.) is “when there is no
cause of action.” Meaning, the ground of no cause of action cannot be waived. The same can be raised at any stage during
the trial or even on appeal.

Now, such ground is not anymore found under the New Rules. What does it mean? Do you mean to tell me that such
ground is waivable now? NO. The ground of no cause of action is now incorporated under Rule 33, such that during the trial
when there is really no cause of action, your remedy is to file a demurrer to evidence under Rule 33. So there is no need to
refer to Rule 9 anymore.

Q: One thing, what is the difference between the “no cause of action” under Rule 16 and the “no cause of action”
under Rule 33?
A: Under Rule 16, the ground of no cause of action is based on the complaint, while under Rule 33, the ground of no
cause of action is based on the plaintiff’s evidence.

NOTE: If the complaint states cause of action, the defendant cannot file a motion to dismiss under Section
1[g], Rule 16 because he hypothetically admits the allegations in the complaint. So they have to go to trial. Now, if
during the trial, the plaintiff failed to prove his cause of action (meaning, there is really no cause of action), it is
now proper for the defendant to file a motion to dismiss on the ground of insufficiency of evidence under Rule 33,
and not under Rule 16 because in the first place, the plaintiff’s complaint states cause of action.

ENOJAS vs. COMELEC

 283 SCRA 229 [1997]

HELD: “The motion to dismiss on the ground of jurisdiction can be easily be differentiated from
a motion to dismiss on demurrer to evidence in that, in the latter case, the movant admits the truth
or factual allegations in the complaint and moves for the dismissal of the case on the ground of
insufficiency of evidence. The legal effect and consequence of a demurrer to evidence is that in the
event that the motion to dismiss on demurrer to evidence is granted and the order of dismissal is
reversed on appeal, the movant loses his right to present evidence in his behalf.”
“However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does not lose his right
to present evidence.”
“It likewise bears stressing that a demurrer to evidence under Rule 33 is in the nature of a motion to
dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests its case. It thus
differs from a motion to dismiss under Rule 16 which is grounded on preliminary objections and is presented
at the outset of the case, that is before a responsive pleading is filed by the movant and within the period for
the filing thereof.”
 Rule 34
JUDGMENT ON THE PLEADINGS

SEC. 1. Judgment on the pleadings.- Where an answer fails to tender

an issue, or otherwise admits the material allegations of the adverse
party's pleading, the court may, on motion of that party, direct
judgment on such pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved. (1a, R19)

Judgment on the pleadings is an expeditious way of terminating a civil action. There is no more trial and judgment will
be rendered based on what the plaintiff says in his pleadings.

Illustration:

PROBLEM: Plaintiff files a complaint. Defendant files an answer. The answer contains what you call defenses –
negative, affirmative defenses. Now, after the defendant files the answer, his issues are joined. Next step is pre-trial. If
the case is not terminated in pre-trial, next step is trial. That’s the procedure.
But suppose I will file a complaint against you and you file your answer where you admitted everything that I said
in my complaint. All the allegations in the complaint are admitted and no defense was interposed by the defendant. So,
meaning, the defendant filed an answer which contains no defense at all. Everything is admitted. Should the case go to
trial? Should the plaintiff prove his cause of action? What is there to prove when you admitted everything? So, there is
no more trial because everything is admitted by the defendant.

Q: In the above case, what should the plaintiff do?

A: The plaintiff will now apply Rule 34. He will file a motion in court which is known as Judgment on the
Pleadings. He will ask the court to render judgment based on what the complaint says and what the answer says. No
more evidence. Eto ang sabi ng complaint, “Oh! You borrowed money, and you did not pay.” Sabi ng answer, “admit!
admit! admit!” Oh, ano pa? What is there to be tried? You admitted everything, so the court will now decide! You
can render a decision based on what the complaint says and what the answer says and the court will immediately render
judgment for the plaintiff. So wala ng trial.

Rule 34 is one of the procedures or remedies under the Rules of Court for the prompt expeditious resolutions of civil
actions – one of the fastest ways of resolving a civil dispute because plaintiff files the complaint, defendant files his answer,
plaintiff asks for judgment and the case is decided. No more pre-trial, no more trial. Why? There is nothing to try kasi
wala ka mang depensa. Everything that I say in my complaint you admit.

Q: Under Rule 34, what are the grounds for Judgment on the Pleadings?
A: The following are the grounds:
3.) When an answer fails to tender an issue; or
4.) When an answer otherwise admits all the material allegations of the adverse party’s pleading.

Q: When does an answer fails to tender an issue?

A: An answer fails to tender an issue:

1.) when it neither admits nor denies the allegations in the complaint;
It neither admits nor denies. So, you cannot do that. Either you admit or you deny the allegations in
the complaint. You cannot say, “Defendant does not admit, he does not also deny the allegation.”
Meaning you are trying to be evasive. That is not allowed.

2.) when all the denials in the answer are general denials and not specific.
A denial is general if the pleader does not state the facts relied upon in support of his denial –
“Defendant denies the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.” That is an answer which does
not tender an issue because all the denials are general, or no knowledge or information sufficient to form a
belief. Just like what happened in the case of CAPITOL MOTORS vs. YABUT.

So if an answer contains evasive allegations, denials which are general, it does not also tender any issue aside from the
fact that it also admits the law. Consider it as an admission of the material allegations of the complaint. Therefore plaintiff
will now move for an immediate judgment in his favor. That is why it is called judgment on the pleadings.

Now, judgment on the pleadings has already been mentioned in the previous rule that we took up. Let’s go back to pre-
trial in Rule 18 because there is a mention there on judgment on the pleadings. Section 2, Rule 18:

SEC. 2. Nature and purpose. - The pre-trial is mandatory. The

court shall consider:
xxx
g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
found to exist.
xxx

In other words, during the pre-trial, the defendant there and based on his pleadings, meron siyang defense. But during
the pre-trial, he makes now an admission, “Actually, your honor, wala akong depensa ba. I have no defense.” Court: “Ah,
wala ka ba? Okay. Judgment on the pleadings!” – tapos!

Or, another example: Collection case. According to the defendant in his answer the obligation is paid. And then during
the trial, the court asks the defendant, “Are you serious that the obligation is paid?” Defendant: “Actually your honor,
wala pa. Hindi pa bayad.” Court: “Ganoon ba? O plaintiff, what do you say?” Plaintiff: “I move for judgment on the
pleadings.” Tapos! The case is finished because the admission is made in the course of the pre-trial that he has no valid
defense.

EXCEPTIONS TO THE RULE ON JUDGMENT ON THE PLEADINGS

Q: Give the exceptions to the rule on judgment on the pleadings.

A: Judgment on the pleadings does not apply:
1.) in actions for declaration of nullity or annulment of marriage; or
2.) in actions for legal separation;
3.) when the issue is the amount of unliquidated damages because there must always be evidence to prove such
amount (Rule 8, Section 11);
4.) when only conclusions of law are being alleged.

So, judgment on the pleading is not allowed on actions for nullity of marriage or for legal separation. It cannot be
resolved based only on what the complaint and what the answer says. Otherwise, if we will allow Rule 34 in that kind of
action, then it is very easy for husbands and wives to have their marriages annulled or in obtaining a legal separation. So,
the husband and the wife, they quarrel and they decide: “O, sige. I-admit mo lahat para judgment on the pleadings na! Eh,
di tapos!”

My golly! The court will never allow that to succeed simply because the other party admitted everything. That would
be a license for collusion. It’s not as easy as that. Walang judgment on the pleading sa marriage. In other words, no
allegation is deemed admitted even if the other party admits. You still have to prove or disprove.

So, the premise is similar to Rule 9 on Defaults. There is no default judgment in actions for legal separation based on
the same principle eh! It is a one-sided story and collusion or connivance between the parties is possible.
-oOo-
 Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In judgment on the pleadings, the
answer does not put up a defense while in summary judgment, here it puts up a defense but the defense is not genuine – it is
a false defense which should easily be exposed by way of affidavits for summary judgment.

Now take note, there is no genuine issue because if you look at the complaint and the answer there is an issue because
the answer alleges payment. That is an issue. But in reality that is a false issue. That is why it is not a genuine issue.

Some text writers call the law on summary judgment another name – it is known as the law on Accelerated Judgment.
Meaning, the process will accelerate, you can easily go to trial. Instead of going to trial, there is no more trial. The motion
for summary judgment will determine who is telling the truth and who is not telling the truth…immediately. So at least, the
delay has been avoided.

What is the example I gave you, no? “A party seeking to recover a claim…” Ako, I will file against you a case of
recovery of an unpaid debt. “or cross-claim etc. at any time after the pleading if answer thereto has been served…”
meaning , after your answer has been served, I will move with supporting affidavits, depositions or admissions for a
summary judgment in my favor.

So my motion for summary judgment must be supported with affidavits, or depositions, or admissions. These will be
the basis unlike in the previous rule (Rule 34), there are no affidavits to support a judgment on the pleadings. All you have
to do is ask the court , “Look at the complaints and look at the answer…” But here, you will prove that the defense is false
and you demolish it by way of affidavits.

Q: Is summary judgment applicable to all kinds of civil actions?

A: YES, because in most cases, defendants will file an answer with defenses but they are all false. In other words,
these defenses are only interposed to delay the case. So, summary judgment is applicable to accelerate the decision. That’s
why it is similar to Judgment on the Pleadings.

Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like declaration of nullity of
marriage, annulment of marriage, legal separation, based on the same principle that there must always be a trial in these
cases, where a ground was established based on the same principle of analogy.

Q: Is Summary Judgment available only to the plaintiff? Can a defendant move for Summary Judgment against the
plaintiff?
A: YES, that is also allowed under Section 2:

Sec. 2. Summary judgment for defending party. - A party against

whom a claim, counterclaim, or cross-claim is asserted or a declaratory
relief is sought may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor as to all
or any part thereof. (2a, R34)

Normally, the party who avails of summary judgment is the plaintiff. But this remedy is not limited to the plaintiff. The
defendant can also file a motion for Summary Judgment against the plaintiff because the cause of action is sham. SO, if the
remedy of Summary Judgment is available to the plaintiff, it can also be availed by the defendant. How?

EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause of action, but I know very
well that your cause of action is false, although it’s very rare, usually it is the defendant who is delaying the case. Well, I
could always file an answer and there would be pre-trial but sabi ko, “Matagal pa iyon!” So under Section 2, instead of
filing an answer, I can file a motion for Summary Judgment and I will attach to my motion affidavits to show that the cause
of action is not genuine. And if the plaintiff believes that his cause of action is genuine, he might as well oppose my motion
with counter-affidavits. Now, if you will not, then the court will rule in my favor, dismissing your complaint.

So you notice, Summary Judgment may be availed of by either party – either the defense is not genuine or the cause of
action is not genuine.

SEC. 3. Motion and proceedings thereon. - The motion shall be

served at least ten (10) days before the time specified for the
 hearing. The adverse party may serve opposing affidavits, depositions,
or admissions at least three (3) days before the hearing. After the
hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file,
show that, except as to the amount of damages, there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law. (3a, R34)

If I will file a motion for Summary Judgment, I must set it for a hearing just like any other motion. Now, generally, if I
will file a motion for Summary Judgment, you must be served a copy at least 10 days before the hearing. That’s an
exception to the general rule in Rule 15 (general rule: you are only required to give the other party 3 days).

The reason is the other party should also be given time to oppose it with affidavits. That’s why you have to give him a
longer period to oppose and if he decides to oppose, he must also file his opposition together with affidavits but he must
furnish me with his copy of opposition at least 3 days before the hearing.

Under the rule on deposition, I can take the deposition of my own opponent and based on your deposition, I can prove
that your defense is false. So depositions can be used not only during the trial but to support or oppose a motion for
Summary Judgment.

Rule 23, SEC. 4. Use of depositions – At the trial or upon the

hearing of a motion or an interlocutory proceeding, any part or all of
a deposition, so far as admissible under the rules of evidence, may be
used against any party who was present or represented at the taking of
the deposition, or who had due notice thereof, in accordance with any
one of the following provisions:
xxx

So, depositions can be used at the trial or upon the hearing of a motion.

Q: Give examples of a motion where you can use a deposition to support your motion.
A: The following:
3.) a motion for Summary Judgment. Under Rule 35, the motion should be supported by affidavits, depositions,
etc… based on what the other party will admit. And based on Rule 23 Section 4, the deposition of the adverse
party may be used for any purpose. So I can use it to prove that your cause of action or defense is false, or
another way of supporting a motion for Summary Judgment under Rule 35, affidavits, depositions and
admissions.
4.) Rule 26 – Request for Admission – I can avail of the Mode of the Request for Admission based on your
admissions.

According to Section 3, all the issues which are not genuine can be resolved immediately EXCEPT as to amount of
damages. Meaning the amount of damages to be recovered by the plaintiff cannot be adjudicated through a motion for
Summary Judgment because you still have to present evidence as to how much really is the damages.

Practically every issue can be resolved summarily except the exact amount of damages. Some people find this hard to
imagine, “Paano ba yon? I will file a motion for Summary Judgment and then there will be a judgment except as to the
amount of damages? Ano ba ‘yan?”

EXAMPLE: An action for damages based on quasi-delict where I will accuse you of negligence and then you deny that
you are negligent. Now, the issue is: who is negligent and who is not. Suppose I will file motion for Summary Judgment
and the court will decide in my favor. Therefore the I am telling the truth, the defendant is telling a lie. And then the court
will say, “Let the case be heard to determine exactly how much damages the plaintiff is supposed to recover.” So there will
be a trial but during the trial, I will just prove how much I am entitled. But the issue of negligence, tapos na, talo ka na,
terminated na ‘yung issue. Damages generally cannot be granted without evidence. You have to support really the exact
amount you are entitled to receive.

If you will notice, the issue as to the fact that damages, especially unliquidated damages,which is also subject to proof,
is also mentioned in Rule 8, Section 11:
 Rule 8, SEC. 11. Allegations not specifically denied deemed
admitted – Material averment in the complaint, other than those as to
the amount of unliquidated damages, shall be deemed admitted when not
specifically denied.

Meaning, how much are you entitled cannot be just given to you even if your opponent will not deny an allegation. You
must still prove it and that is very clear even in Rule 35 – summary judgment can be granted except as to the amount of
damages.

SEC. 4. Case not fully adjudicated on motion. - If on motion under

this Rule, judgment is not rendered upon the whole case or for all the
reliefs sought and a trial is necessary, the court at the hearing of
the motion, by examining the pleadings and the evidence before it and
by interrogating counsel shall ascertain what material facts exist
without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts
that appear without substantial controversy, including the extent to
which the amount of damages or other relief is not in controversy, and
directing such further proceeding in the action as are just. The facts
so specified shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly. (4a, R34)

Q: Is there such a thing as a motion for partial Summary Judgment?

A: YES. Well, if you say Motion for Partial Summary Judgment, some issues are genuine, some are not. So the court
can decide immediately on the issues which are not genuine but with respect to issues which are genuine, the law says, trial
shall be conducted on the controverted facts summarily under Rule 35 on the issues which are not genuine.

SEC. 5. Form of affidavits and supporting papers. - Supporting and

opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein. Certified true copies of all papers of parts thereof
referred to in the affidavit shall be attached thereto or served
therewith. (5a, R34)

Q: What are the forms of affidavits under Rule 35?

A: The following:
1.) Supporting affidavits – to support the motion for Summary Judgment;
2.) Opposing (counter-) affidavits – to oppose the motion for Summary Judgment.

Q: Give the requisites of supporting or opposing affidavits to a motion for Summary Judgment.
A: The following:
1.) The affidavit shall be made based on personal knowledge;
2.) It shall set forth such facts as would be admissible in evidence;
3.) The affiant is competent to testify to the matters stated therein; and
4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall be attached thereto or served
therewith.

“The affidavits of your witnesses, or your affidavit must be made on personal knowledge and shall set forth such facts
as would be admissible in evidence and shall show affirmatively that the affiant is competent and the matters stated
therein.”

What does that mean? Suppose the case will go to trial, so the witness will take the witness stand. He will testify.
When a witness testifies under the Rules on Evidence, there must be a showing that what he is talking about is known by
him. Otherwise, it will be hearsay. And based on the law of evidence, the testimony is inadmissible. What I will say should
be admissible under the law on evidence otherwise my testimony will not be allowed and I must show that I’m in a position
to know what I’m talking about.

That’s what the witness will have to demonstrate in court. Since in a motion for Summary Judgment, there is no more
trial, there is no more witnesses who will testify in court, what will take the place of a witness is his affidavit which must
also show that the witness has personal knowledge, etc. Meaning, what you should show during the trial, if you are, they
must also be shown in your affidavit.

If your testimony in court is not admissible, because you are telling only what you heard from other people, then an
affidavit which contains the same thing would also be inadmissible. So, in other words, the affidavit merely takes the place
of oral testimony in court.

Q: What procedure is similar where the one who will decide, who will only read the affidavits of both sides and render
a decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation – the fiscal conducts a preliminary investigation on the
affidavits lang. The complainant will submit his affidavit. The respondent will file his counter-affidavit. Then the fiscal
will go over the affidavits and will resolve the issues and determine whether there is probable cause to file the information
or none. So, the resolution is practically based on affidavits. So walang hearing.

SEC. 6. Affidavits in bad faith. - Should it appear to its

satisfaction at any time that any of the affidavits presented pursuant
to this Rule are presented in bad faith, or solely for the purpose of
delay, the court shall forthwith order the offending party or counsel
to pay to the other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including attorney's
fees. It may, after hearing, further adjudge the offending party or
counsel guilty of contempt. (6a, R34)

Well, of course, the affidavits required by law must be filed in good faith.

EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment against you alleging that your
defense is false and I will support it with affidavit. Ang defendant, malakas ang loob, he opposed my motion claiming that
his defense is true and genuine and he also supported it with affidavits. Once the opposing party does that, the court will
automatically deny my motion. The court is not in the position now to know who is telling the truth. Both maintaining
under oath that he is telling the truth. So if you oppose my motion with supporting affidavits, the court will deny my motion
for Summary Judgment and the courts says let’s go to trial and during the trial, mabisto na naman and it turned out really
that you have no defense, talo ka pa rin.

Q: What is the penalty for you for filing earlier an opposition to my motion supported by affidavits in bad faith?
A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable expense which the filing of
affidavits caused me to incur, including attorney’s fees. The court may also, after hearing, adjudge you or your lawyer
guilty and I will add what is not found in the law, I will file a case of perjury against you for executing a false statement.

That is a criminal sanction under the RPC. I can also file a case of disbarment against the lawyer for assisting in the
filing of an affidavit in bad faith.

So in other words, if you execute an affidavit in bad faith, you must be ready to face all these later – damages,
contempt, perjury under the RPC and the lawyer to face disciplinary proceedings.

SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)

Their similarity is that, both of them are methods for promptly disposing civil actions, wherein a civil case can be
adjudicated without undergoing any trial.

Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34).
A: The following are the distinctions:

1.) as to the ground

Summary Judgment is proper if there is no genuine issue of fact to be tried; whereas
Judgment on the Pleadings is proper where there is no issue of fact at all to be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)
 2.) as to how the judgment rendered
Summary Judgment is rendered on the basis of facts appearing in the pleadings, affidavits, depositions
and admissions on file, whereas
Judgment on the Pleadings is rendered on the basis only of the pleadings; (Nagrampa vs. Mulwaney, Etc.,
97 Phil. 724)

3.) as to who can ask for the judgment

Summary Judgment is a remedy available for both claimant and defendant; whereas
Judgment of Pleadings is available only on the claimant because the answer fails to tender an issue.

VERGARA, SR. vs. SUELTO, ET AL

156 SCRA 753

ISSUE: When does an answer fail to tender an issue? When is there no genuine issue?
HELD: “Section 1, Rule 19 (now Rule 34) of the Rules of Court provides that where an answer fails to
tender an issue, or otherwise admits the material allegation of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. The answer would fail to tender an issue, of course, if
it does not comply with the requirements for a specific denial set out in Section 10 (or Section 8) of Rule 8;
and it would admit the material allegations of the adverse party's pleadings not only where it expressly
confesses the truthfulness thereof but also if it omits to deal with them at all.”
“Now, if an answer does in fact specifically deny the material averments of the complaint in the
manner indicated by said Section 10 of Rule 8, and/or asserts affirmative defenses (allegations of
new matter which, while admitting the material allegations of the complaint expressly or impliedly,
would nevertheless prevent or bar recovery by the plaintiff) in accordance with Sections 4 and 5 of
Rule 6, a judgment on the pleadings would naturally not be proper.”
“But even if the answer does tender issues — and therefore a judgment on the pleadings is not proper — a
summary judgment may 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.”

Now, Summary Judgment is related to Rule 17 Section 1 in which summary judgment is first mentioned:

Rule 17, Section 1. Dismissal upon notice by plaintiff. - A

complaint may be dismissed by a plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for
summary judgment. xxx

Q: Can the plaintiff dismiss his complaint as a matter of right?

A: YES, at any time before the defendant has filed his answer or of a motion for summary judgment. (Rule 17, Section
1)

The second time that it was mentioned was in Rule 18 Section 2:

Rule 18, Sec. 2. Nature and purpose. - The pre-trial is

mandatory. The court shall consider:
xxx
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
found to exist;
xxx

During the pre-trial conference, it is possible for the court to render a judgment on the pleadings under Rule 34 or a
summary judgment under Rule 35. Judgment can be rendered summarily during the pre-trial.
 DIMAN vs. ALUMBRES
299 SCRA 459 [Nov. 27, 1998]

FACTS: The plaintiff files a motion for summary judgment where he said under oath that the defense is
false. The trial court denied it, “A summary judgment is not proper where the defendant presented defenses
tendering factual issues which call for the presentation of evidence.” Is the trial court correct.

HELD: “Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the judge are proper
for the denial of a motion for judgment on the pleadings – as to which the essential question, as already
remarked, is: are these issues arising from or generated by the pleadings? – but not as regards a motion for
summary judgment – as to which the crucial question is: issues having been raised by the pleadings, are those
issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions accompanying the
application therefor?” So those are the questions to be answer in a summary judgment, not whether or not
there is an answer.
“Errors on principles so clear and fundamental as those herein involved cannot but be deemed so
egregious as to constitute grave abuse of discretion, being tantamount to whimsical or capricious exercise of
judicial prerogative.”

Last point to remember: as a General Rule, you cannot secure judgment by motion alone. This is because a MOTION
is defined as any petition for relief other than the relief prayed for in the pleadings. (Rule 15, Section 1)
A motion prays for relief other than through a pleading. The other way of stating it is, a motion prays for relief other
than through a judgment because a judgment is prayed in a pleading and not in a motion. So a motion as a rule, cannot pray
for immediate judgment.

But there are three (3) known exceptions where a motion can already pray for immediate relief. They are:
5.) Rule 33 – Demurrer to evidence;
6.) Rule 34 – Judgment on the Pleadings; and
7.) Rule 35 – Summary Judgment.

In those exceptions, the movant is already asking for a judgment which normally is not stated in a motion.
–oOo-
 Rule 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

There are three (3) important stages in a civil action.

Q: What are these three (3) stages?

A: The following:

1.) First stage: Issue Formulation Stage

It is the stage in which we are trying to find out what are the issues we are quarreling about. This is done
by filing a complaint, answer to know the defenses, counterclaim, answer to counterclaim, third party
complaint. This is the stage of formulation of issues.
After the last pleading is filed, we go to pre-trial where we will discuss the simplification of issues ,
advisability of amending the pleadings, etc. Therefore, during pre-trial we are still formulating issues to be
tackled. When the pre-trial is terminated and there is no settlement, we proceed to stage 2:

2.) Second stage: Stage of Proof (Rule 30 on Trial)

We are now on trial where the parties will now offer their evidence. It is called the stage of proof.
Plaintiff presents evidence to prove his claim. Defendant presents evidence to prove his defense. Parties
present rebutting evidence. So this is the stage where the parties will prove their respective contentions.
After the case has been tried and everything has been argued under Rule 30, the last stage is….
[sound plis… tadadadan!tadan!]

3.) Third stage: Judgment Stage (Rule 36)

This is the stage where the court will now decide and render judgment.

Q: Define Judgment.
A: Judgment is the final consideration and determination by a court of the rights of the parties as those rights presently
exists, upon matters submitted to it in an action or proceeding. (Gotamco vs. Chan Seng, 46 Phil. 542)

Q: What are the requisites of a valid judgment?

A: There are five (5) requisites for a valid judgment:

1.) the court rendering judgment must have jurisdiction over the subject matter;

2.) the court rendering judgment must have jurisdiction over the person of the defendant, and in case the
defendant is a non-resident, the court rendering judgment must have jurisdiction over the res;

3.) the court rendering judgment must have jurisdiction over the issues, that is, the judgment shall decide only the
issues raised by the parties in their pleadings;

4.) the court rendering judgment must be validly constituted court and the judge thereof, a judge de jure or de
facto; Thus, the court has not been abolished; the judge has been appointed and has not retired nor separated
from service. That is why there is a rule even in criminal cases that if the judgment is promulgated after the
judge has already retired, the judgment is void. There must be another promulgation.

EXAMPLE: Judge tries a case, prepares the decision and signs it. Before the decision is promulgated,
the judge died or retired. In this case, any promulgation to be made cannot be valid. The next judge must
be the one to promulgate it – write the decision again and sign it. What is important is the judge who
rendered.
ABC DAVAO AUTO SUPPLY vs. COURT OF APPEALS
284 SCRA 218 [January 16, 1998]

FACTS: The case was tried by a judge (Agton) who was temporarily assigned to Mati. He wrote
the decision and had it released but by that time, he was already back in Mati. The losing party
contended that the judgment was not valid.
 HELD: The judgment is VALID because when the new judge denied the motion for
reconsideration, he effectively adopted in toto the decision of the Mati judge. And besides, the Mati
judge was still a judge when he rendered his decision.
“The subsequent motion for reconsideration of Judge Agton's decision was acted upon by Judge
Marasigan himself and his denial of the said motion indicates that he subscribed with and adopted in
toto Judge Agton's decision. Any incipient defect was cured. Branches of the trial court are not
distinct and separate tribunals from each other. Jurisdiction does not attach to the judge but to the
court.”

5.) the judgment must be rendered after lawful hearing, meaning that due process must be observed. (Busacay vs.
Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L-13764, Jan. 30, 1960; Rojas vs. Villanueva, 57 O.G.
7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct. 26, 1966)
There must be a trial where both sides are given the chance to be heard. In case of a defaulted defendant,
due process was observed because he was given the opportunity to defend himself. But he did not file an
answer. The essence of due process is the fact that you are given the opportunity to be heard.

Sec. 1. Rendition of judgments and final orders. - A judgment or

final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by him,
and filed with the clerk of the court. (1a)

Q: What are the FORMAL requisites of a valid judgment?

A: There are four (4) formal requisites:
1.) The judgment shall be in writing;
2.) It shall be personally and directly prepared by the judge;
3.) It shall state clearly and distinctly the facts and the law on which it is based; and
4.) It shall be signed by the judge and filed with the clerk of court.

First formal requisite: THE JUDGMENT SHALL BE IN WRITING

There is no such thing as an oral judgment.

BAR QUESTION: After the parties presented their evidence, the judge asked the lawyers, “Are you going to argue?”
The parties said, “No more, Your honor. We are waiving our right to argue.” So the judge dictated the decision to the clerk
of court. The judgment was against the defendant. The defendant appealed next day. Do you count the period of appeal
from that date when he heard the decision?
ANSWER: NO. You still have to wait for the written decision. Presumably, what is dictated by the judge will be
transcribed. From the time you receive it is the reckoning period for appeal, notwithstanding the hearing of such decision in
open court. That is not yet the formal decision because under the law, there is no such thing as oral decision. The judgment
must be in writing.

Officially the decision is known to you on the date you received the written judgment. Not the date when he dictated it
in your presence. There are judges before who could do that. Even now those judges in Manila who became justices today
do practice such type of judgment. At present, judges no longer possess such skill. They are given 90 days to decide the
issue and yet at times, they could not do so within the period mandated by law. How much more on the spot decision?

Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY PREPARED

BY THE JUDGE

It is presumed that the judgment will be made by the judge himself. Although sometimes it happens otherwise. The
judge should not delegate the writing to other people. There must be no ghost writer.

Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT IS
BASED
 The most important – the decision should state clearly and distinctly, the facts and the law on which it is based .
Meaning, there must be a justification for the dispositive portion. The judge must argue why the party won or lost.

Normally in the facts, either the facts presented by plaintiff are right and the facts presented by the defendant are
wrong or vice-versa. If you think the facts as presented by the plaintiff are correct or not, you have to state why do you
believe that it is correct or not, and also with the evidence of the defendant. The same thing with legal questions because
the plaintiff or the defendant relies on the provisions of the laws or decided cases.

You have to state why the position of the defendant is wrong, why is the law that he cited not applicable. You have
to state your facts and conclusions of law.

In the SCRA, the Supreme Court will discuss both sides, “According to the plaintiff like this…According to the
defendant like this…..and so forth.” Then the decision will start by saying, “While the petitioner is correct…” or, “While the
defendant is correct…”

It is called the discussion of the facts and the law on which the decision is based. It is a requirement in the Constitution,
Article VIII, Section 14:

Sec. 14. No decision shall be rendered by any court without

expressing therein clearly and distinctly the facts and the law on
which it is based. xxx (Article. VIII, 1987 Constitution)

If a judge will render a decision like this: “This is a civil action to collect an unpaid loan. According to the plaintiff:
He borrowed money for the sum of P80,000.00 payable on this date and despite demands, he did not pay. According to the
defendant in his answer: the obligation is fully paid. ISSUE: Whether the loan has been paid or not yet paid. Plaintiff, to
prove his cause of action presented the following witnesses and evidence. On the other hand, the defendant, to prove his
defense presented the following evidence. WHEREFORE, the court renders judgment dismissing the complaint.”

Such decision has no discussion on the findings of facts and the law. There is no basis of the dismissal of the
complaint. MY GOLLY! What kind of decision is that? There is no discussion on why is the evidence of the plaintiff
believable and why is the position of the defendant is like that. So there is no discussion of the facts and the law on which it
is based. That is a decision which violates the Constitution and Rule 36.

Another Illustration:
In an action for sum of money, plaintiff is unpaid. Defendant claims the loan has been paid. The following is the
evidence of the plaintiff and the following is the evidence of the defendant. Then the court now says: “After the meticulous
study and analysis of the evidence offered by both sides, the court is of the opinion that plaintiff’s evidence is more logical,
acceptable, probable and worthy of credit. THEREFORE, judgment is hereby rendered ordering the defendant to pay the
loan.”

Q: Is this decision correct?

A: NO. It still violates the law. There are no findings of facts or conclusions of the law. Therefore, when the court
said, “plaintiff’s evidence is more logical, acceptable, probable and worthy of credit” those are conclusions. They are not
findings of facts. Meaning you have to argue – why is it logical, why is it acceptable, why is it probable, why is it worthy of
credit. You must state it and rebut the other side.

If that is how decisions are prepared, you just recite what the plaintiff said or what the defendant said, and you will
conclude, “Therefore, find the plaintiff is logical…”, then every nincompoop person is qualified to be a judge – everybody
can write a decision.

It is just like asking questions in the examinations. You will not answer that “A is correct because his argument is
correct (period!).” You have to state why he is correct. That is also the case in the decision. You must support your answer
with details.

Now, every decision of every court must state the facts and the law on which it is based. It must be in every court, no
exceptions, whether SC or an MTC. The Constitutional provision on this requirement applies to all courts from the highest
to the lowest.
 HELD: “The decision of the trial court is exceedingly long, without any effort to trim the fat and
keep it lean. Judges are not stenographers transcribing the testimony of the witnesses word for
word. Judges must know how to synthesize, to summarize, to simplify. Their failure to do so is one
of the main reasons for the delay in the administration of justice. It also explains the despair of the
public over the foot-dragging of many courts and their inability to get to the point and to get there
fast.”

There is one MTC judge here, who is very fond of quoting the allegations of the parties: “An action for collection of
money. Plaintiff filed a complaint quoted as follows….” Every paragraph is quoted. “Defendant filed an answer quoted as
follows… Evidence of plaintiff, quoted as follows…” Then his decision is only one paragraph. My golly! How long will it
take your stenographer to type it. Can it not be reduced to 3 pages? This is what we call writing with style.

One of the best writers in the SC right now is Justice Panganiban. As a matter of fact, in one of the latest volumes of the
Lawyers Review, he has an article entitled, “My Style of Decision Writing.” Very nice. Every judge must read that. He is
giving tips on how to write elegant decisions.

But of course what applies to decision writing also applies to answering questions in the Bar. Some elegant, some
tedious. The same answer but different styles of presentation. Other get high scores, low scores because of style. So you
must also know how to answer. Especially in the Bar exams where the corrector is correcting more than 4,000 notebooks
and he has a deadline, your notebook must project itself as if your notebook is telling the corrector: Read me! Read me!!

Q: How do you distinguish a judgment from a decision?

A: Actually, the decision is the entire written effort from the first sentence, “This is an action for a sum of money” until
the end. It contains everything from the findings of facts, discussion of evidence.
The judgment is usually the last paragraph – ‘yung “WHEREFORE” – the dispositive portion or the decretal portion.
Sometimes it is called the fallo of the case.

The fallo is yung “WHEREFORE…” Iyung discussions, findings of facts, conclusion of law to justify the fallo is called
the ratio decidendi – the reasoning. (Contreras vs. Felix, 78 Phil. 570)

Q: In case of conflict between judgment and decision, which shall prevail?

A: The judgment shall prevail in case of such conflict, for it is an elementary rule of procedure that the resolution of the
court in a given issue, as embodied in the dispositive part of the decision, is the controlling factor that determines and settles
the rights of the parties and the issues presented therein. (Manalang vs. Rickards, 55 O.G. 5780, July 27, 1959)

ASIAN CENTER vs. NLRC

297 SCRA 727 [October 12, 1998]

FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating sa WHEREFOR (judgment), A’s
action is dismissed! And there was no statement in favor of B. A appeals. B contended that the judgment
prevails. Is B correct?

HELD: “The general rule is that where there is a conflict between the dispositive portion or the fallo and
the body of the decision, the fallo controls. This rule rests on the theory that the fallo is the final order while
the opinion in the body is merely a statement ordering nothing. However, where the inevitable conclusion from
the body of the decision is so clear as to show that there was a mistake in the dispositive portion, the body of
the decision will prevail.”

TYPES OF JUDGMENTS:

A.) Sin Perjuicio judgment

B.) Conditional judgment
C.) Incomplete judgement
D.) Nunc pro tunc judgment
E.) Judgment upon a compromise or Judgment upon an amicable settlement
 F.) Judgment upon a confession

A.) SIN PERJUICIO JUDGMENT

Q: What is an SIN PERJUICIO judgment?

A: A sin perjuicio is one which contains only the dispositive portion of the decision and reserves the making of findings
of fact and conclusions of law in a subsequent judgment. (Dir. of Lands vs. Sanz, 45 Phil. 117) So, there is a
“WHEREFORE” without a ratio decidendi. It does not state how the court arrived at a certain decision.

Q: Is a SIN PERJUICIO judgment valid?

A: A sin perjuicio judgment is a VOID judgment for it violates the constitutional provision that “no decision shall be
rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based”
(Sec. 14, Art. VIIII), and the provision of the Rules of Court that the judgment shall state “clearly and distinctly the facts
and the law on which it is based. (Rule 36, Section 1)

B.) CONDITIONAL JUDGMENT

Q: What is a CONDITIONAL judgment?

A: A conditional judgment is one which is subject to the performance of a condition precedent and is not final until the
condition is performed. (Jaucian vs. Querol, 38 Phil. 707)

EXAMPLE: A sued B. Then the court said: “The A is correct because so and so…. However, there is another
case now pending before the SC where the same issue is being raised. In the meantime, A is correct. But in the
event that SC decision comes out and is not favorable to A, then this decision should also be automatically
changed in favor of B.” So, this is a conditional judgment. Is it a valid judgment?

Q: Is a conditional judgment valid?

A: It is NOT valid. In truth, such judgment contains no disposition at all and is a mere anticipated statement of what the
court shall do in the future when a particular event should happen. For this reason, as a general rule, judgments of such
kind, conditioned upon a contingency, are held to be NULL and VOID. (Cu Unjieng y Hijos vs. Mabalacat Sugar Co., 70
Phil. 380)

C.) INCOMPLETE JUDGMENT

Q: What is an INCOMPLETE judgment? What is its effect?

A: An incomplete judgment is one which leaves certain matters to be settled in a subsequent proceeding. (Ignacio vs.
Hilario, 76 Phil. 605) There is a decision but there is still other matters to be incorporated later in such decision. Parang
interlocutory judgment.

EXAMPLE: There is judgment against B for a damage suit, “Wherefore, judgment is hereby rendered ordering
defendant to indemnify the plaintiff, moral and exemplary damages (period!).” It does not state how much.
Mamaya na natin malaman kung magkano. So kulang pa ang decision.

My golly! What is there to execute? You do not even know how much is the award. It does not settle any question that
may be the subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45) The judgment can never become final, it having left
certain matters to be settled for its completion in a subsequent proceeding. (Ignacio vs. Hilario, 76 Phil. 605) So, the
judgment is again defective.

D.) NUNC PRO TUNC JUDGMENT

Q: (Bar Question) What is a judgment NUNC PRO TUNC and what is its function?
A: A judgment nunc pro tunc literally means a ’judgment now for then.’ Its function is to record some act of the
court done at a former time which was then carried into the record. And the power to make such entries is restricted to
placing upon the record evidence of judicial action which has actually been taken. It may be used to make the record speak
the truth, but not to make it speak what it did not speak but ought to have spoken. (Lichauco vs. Tan Pho, 51 Phil. 862)
 Example: When a judge renders a decision, he must base his findings on what happened on the trial or on the evidence
presented. Normally, the judge cites facts as bases for his findings. Suppose, the judge, in his hurry, made some findings
but forgot to incorporate all those other important matters which can support his findings. Na-overlook ba! He rendered his
decision which was lacking in something – inadvertently omitted. The judge may now amend his judgment by including the
matters missed – such matters that have been admitted on record. Then, the judge now has an improved decision – the
judgment now is NUNC PRO TUNC. What are to be added are things which really happened. The judge has no power to
include something which did not actually happen. That would be irregular. How could you quote something which never
transpired during the trial.

So it is an amended judgment where certain matters which are contained in the records and transpired in court were not
incorporated. So when you made the decision, parang kulang. So in order to make it clearer, we will incorporate those
matters which should have been incorporated in the amended decision. That is known as judgment nunc pro tunc. But you
can only place there matters which transpired, not matters which did not transpire.

Q: In what cases is a judgment nunc pro tunc NOT proper?

A: A judgment nunc pro tunc is not proper in the following instances:

1. It cannot remedy errors or omission in an imperfect or improper judgment. (Lichauco vs. Tan Pho, 51 Phil.
862)
2. It cannot change the judgment in any material respect. (Henderson vs. Tan, 87 Phil. 466) and
3. It cannot correct judicial errors, however flagrant and glaring they may be. (Henderson vs. Tan, 87 Phil. 466)

E.) JUDGMENT UPON A COMPROMISE or

JUDGMENT UPON AN AMICABLE SETTLEMENT

Q: What is a JUDGMENT UPON A COMPROMISE?

A: A judgment upon a compromise is a judgment rendered with the consent of the parties for the purpose of effecting a
compromise or settlement of an action. (31 Am. Jur. 105-108)

This is the type of judgment which the law encourages because it is a judgment with the consent of the parties for the
purpose of effecting a compromise or settlement. Usually mga collection cases ito – tawaran – like i-condone ang interests,
or half of the amount na lang, etc. The court will render judgment copying word for word what the parties say. So the
compromise agreement becomes the judgment and for a as long as the agreement is not contrary to law, the court will
approve it.

Q: In a compromise judgment, is the court required to make findings of fact and conclusions of law? Why?
A: In a compromise judgment, the court is not required to make findings of fact and conclusions of law. In
contemplation of law, the court is deemed to have adopted the statement of facts and conclusions of law made and resolved
by the parties themselves in their compromise agreement; and their consent has made it both unnecessary and improper for
the court to make a preliminary adjudication of the matters thereunder covered. (Palarca vs. Anzon, L-14780, Nov. 29,
1960)

Q: How do you define a compromise?

A: Under Article 2028 of the New Civil Code:

Art. 2028. A compromise is a contract whereby the parties, by making

reciprocal concessions, avoid a litigation or put an end to one already
commenced. (Civil Code)

So the essence of compromise is reciprocal concessions – give and take. It is a mutual concession to avoid litigation or,
if there is already, that which will put an end. There are other definitions given by the SC although the essence or substance
is the same. In the case of

SMITH BELL AND CO. vs. COURT OF APPEALS

197 SCRA 201
 HELD: “A compromise is an agreement between two (2) or more persons who, in order to
forestall or put an end to a law suit, adjust their differences by mutual consent, an adjustment which
every one of them prefers to the hope of gaining more, balanced by the danger of losing more.”

If we go to trial, well, winner take all – either the plaintiff wins or the defendant wins. If you are not sure of your
position, then you might as well get something out of it rather than risk losing everything.

EXAMPLE: You sue me for P1 million. Then I say, “I would like to offer a settlement”. You would say, “How much
do you offer? Well, my complaint is 1 million, so you pay me P1 million.” That is not compromise, that is surrender. Kaya
nga umaareglo ako para makatawad. And if you will not receive anything less than a million, you are not asking for a
compromise, you are demanding total surrender. If that is so then, let us go to court and find out if you will get your P1
million and let us find out how many years from now you can get your money.

Kaya in a compromise agreement, there are no winners and there are no losers.

REPUBLIC OF THE PHILIPPINES vs. SANDIGANBAYAN

226 SCRA 314

FACTS: This is a case involving a compromise between the government and Benedicto, a crony
of President Marcos. He entered into a compromise with the PCGG and the Supreme Court
approved it.
HELD: “Any compromise has its very essence reciprocal concessions, one must give and one must take.
If only one takes all, then one must first win. But in a compromise, all win by taking some and giving some.”

Let’s go back to the law on Obligations and Contracts. There are four (4) types of defective contracts: (a) void; (b)
voidable; (3) rescissible; and (4) unenforceable. Under the Civil Code, if one party enters into a contract where he lacks the
requisite authority, the contract is unenforceable but it is a valid agreement.

Q: What is the effect of a compromise agreement entered into by a lawyer, without any special authority from his
client? Is it a null and void agreement?
A: A lawyer cannot, without special authority, compromise his client’s litigation. A judgment upon a compromise
entered by the court, not subscribed by the party sought to be bound by the compromise agreement, and in the absence of a
special authority to the lawyer to bind his client in the said agreement, is UNENFORCEABLE. (Dungo vs. Lopena, L-
18377, Dec. 29, 1962)

Q: Suppose in the above case, the client learned about what his lawyer did and he did not reject the agreement, as a
matter of fact he complied with it, what is now the effect on such agreement?
A: The agreement is now perfectly VALID and ENFORCEABLE because the party himself did not question his
lawyer’s authority. When it appears that the client, on becoming aware of the compromise and the judgment, failed to
repudiate promptly the action of his lawyer, he will not afterwards be heard to contest it. (Banco Español-Filipino vs.
Palanca, 37 Phil. 921)

Q: What are the legal effects of a judgment based upon a compromise agreement?
A: A judgment upon a compromise agreement produces the following legal effects:

1.) The compromise judgment is not appealable and it is immediately executory. (Reyes vs. Ugarte, 75 Phil. 505;
Serrano vs. Miave, L-14687, March 31, 1965)

2.) It cannot be annulled unless it is vitiated with error, deceit, violence or forgery of documents. (Morales vs.
Fontanos, 64 Phil. 19; Article 2038, Civil Code)

3.) It constitutes res adjudicata. (Art. 2037, Civil Code; Sabino vs. Cuba, L-18328, Dec. 17, 1966) Meaning, the
same subject matter or cause of action can no longer be reopened in the future in another litigation.

Q: Suppose you enter into a compromise agreement and there is a judgment. You want to escape from the compromise
judgment on the ground that your consent was vitiated by mistake, error, deceit, violence. How do you question it? What is
your remedy?

A: There are so many conflicting answers here. Some say you file a motion to set aside the compromise judgment
because your consent was vitiated. And if the motion is denied, you appeal from the order denying your motion to set aside.
But definitely, you cannot appeal from the compromise judgment because it is not appealable. You appeal from the order
denying your motion to set aside the compromise judgment. However, under the new rules, you cannot anymore appeal 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 (Section 1, Rule 41)

So an order denying a motion to set aside a judgment by compromise on the ground of fraud, mistake, or duress or any
other ground vitiating consent is not appealable. Therefore, whatever the answers before are not anymore true now. So what
is the REMEDY now?

It would seem that the correct remedy based on the new rules in relation to some new cases, among which was the case
of:

DOMINGO vs. COURT OF APPEALS

255 SCRA 189 [1996]

HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court
of Appeals pursuant to Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule 47)
“A compromise may however be disturbed and set aside for vices of consent or forgery. Hence,
where an aggrieved party alleges mistake, fraud, violence, intimidation, undue influence, or falsity
in the execution of the compromise embodied in a judgment, an action to annul it should be brought
before the Court of Appeals, in accordance with Section 9(2) of Batas Pambansa Bilang 129, which
gives that court (CA) exclusive original jurisdiction over actions for annulment of judgments of
regional trial courts.”

F.) JUDGMENT UPON A CONFESSION (COGNOVIT JUDGMENT)

Q: What is a judgment upon a confession?

A: A judgment upon a confession is a one entered against a person upon his admission or confession of liability
without the formality, time and expense involved in an ordinary proceeding. (Natividad vs. Natividad, 51 Phil. 613)

A judgment upon a confession is also known as “cognovit” judgment. (Pronounced as konyuvit)

EXAMPLE: You file a case against me. Without filing an answer, I simply appeared in court and tell the court that I
am not contesting the claim. I am admitting the complaint to be true and I am willing to have judgment rendered against
me. Or, I can also file my answer kunwari lang ba, and then in court I will admit my liability. That would be the basis of the
judgment upon a confession.

As distinguished from judgment on the pleadings (Rule 34), in judgment on the pleadings you have to go through the
process of filing an answer but actually your answer puts up no defense. In judgment upon a confession, I may not even file
an answer. Hindi talaga ako maglaban. Upon receiving the complaint, I just say that I am admitting liability. So there is no
need of a default order. In American Law, they call it no lo contendere, meaning no contest. Sa criminal case pa, I am
pleading “guilty.”

Judgment upon a confession, Judgment upon the pleadings, Default judgment – Magkahawig sila. Only they vary a
little bit. In default judgment, the defendant failed to file an answer. So, he is declared in default. In judgment upon the
pleadings, defendant filed an answer but the answer contains no defense. In judgment upon a confession, he will not file an
answer but will tell the court that he is admitting liability. So, lahat will end up on the same thing: There will be a judgment
rendered against the defendant.

Now, during the commonwealth era, there were many American lawyers who practiced law in the Philippines. Many
judges were Americans, even Justices of the Supreme Court – many of them were Americans. American lawyers brought to
the Philippines types of agreements in American contracts. There was one particular agreement known as “Warrant of
Attorney to Confess Judgment.” That is a standard clause in American contracts.

EXAMPLE: I am a bank. You borrow money from me and you sign a promissory note which contains stipulations
normally to the advantage and in favor of the bank. They usually insert the American clause “Warrant of Attorney to
Confess Judgment” that in the event that the bank will sue you on this promissory note, you are entering into a confession
judgment immediately. Meaning, I am not going to defend myself and I am immediately confessing judgment to the court.
And who will confess judgment to the court? The debtor will say “I hereby appoint the bank as my representative to
confess judgment to the court in my behalf.” Parang Special Power of Attorney ba. The bank will go to the court and say,
“Under this paragraph, I represent the defendant-debtor because he appointed me as his attorney-in-fact. And in behalf of
the defendant, I am confessing.”

The Supreme Court ruled that such stipulation is null and void in the old case of:

NATIONAL BANK vs. MANILA OIL

43 Phil 444

HELD: Such type of clause is null and void for being contrary to public policy because the
defendant waives his right in advance to defend himself. That is unfair because even before you are
sued, you have already waived your right to defend yourself.
But the judgment of confession is still allowed but one has to do it himself, and must not be
done in advance. Meaning, it must not be done like the above acts of American lawyers as such is
against public policy. One must be first be given a chance for defense which right be later on waived
through voluntary confession.

Q: Distinguish a judgment upon a COMPROMISE from a judgment upon a CONFESSION.

A: The following are the distinctions:

1.) In a judgment upon a COMPROMISE, the liability of the defendant is to be determined in accordance
with the terms of the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant confesses the action and consents to the judgment that the
court may render in accordance with the compromise and the prayer therein (31 Am. Jur. 108); and

2.) In a judgment upon a COMPROMISE, there is give and take; the parties haggle, bargain and agree on the
terms of the judgment; there is mutual or reciprocal concessions; whereas
A judgment upon a CONFESSION is unilateral. It comes from the defendant who admits his liability and
accepts that judgment be rendered against him.

Sec. 2. Entry of judgments and final orders. - If no appeal or

motion for new trial or reconsideration is filed within the time
provided in these Rules, the judgment or final order shall forthwith
be entered by the clerk in the book of entries of judgments. The date
of finality of the judgment or final order shall be deemed to be the
date of its entry. The record shall contain the dispositive part of
the judgment or final order and shall be signed by the clerk, with a
certificate that such judgment or final order has become final and
executory. (2a, 10, R51)

If you lose a case, what are your options? I can either appeal within the time provided by the Rules. Or, within the
same period, I will file a motion for a new trial or a motion for reconsideration. In any case, the finality of the judgment
will be stopped.

Q: Suppose the prescribed period has lapsed, there is no appeal, no motion for new trial or reconsideration, what
happens to the judgment?
A: The judgment now becomes final and executory.
 According to Section 2, once the judgment has become final, it shall be entered by the clerk of court in the Book of
Entries of Judgments. If you go to the office of the RTC, you will find an official book which contains a chronological
arrangement of cases, based on the date of filing. Malaking libro yan.

Now, the second sentence is new and its effects are also significant, “…the date of the finality of judgment or final
order shall be deemed to be the date of its entry.” The rule is, when does a judgment become final? After the lapse of the
period to appeal and no appeal is filed.

EXAMPLE: Today, March 4, the lawyer for the defendant received a copy of the judgment. The last day to appeal is
March 19. Suppose there is no appeal, then March 20 is the date of finality. On March 20 or immediately thereafter, the
clerk of court should know the judgment became final on March 20. Suppose the clerk of court placed it in the book on
March 30. So, the date of finality is March 20 but the date of entry is March 30.

Sometimes the clerk of court forgets to make the date of entry. That is why under the old rules, the date of finality of
judgment does not coincide with the date of entry of judgment because the clerk of court may do that thing months later.
This creates a lot of trouble. So to cure the discrepancy, the second sentence is now inserted by the new law: “the date of
finality of judgment shall be deemed to be the date of its entry.”

Meaning, the judgment became final on March 20 although the clerk of court noted it on March 30. Under the new
rules, the date of entry (March 30) retroacts to March 20. That is the significance of the second sentence, they will
automatically coincide. Kahit i-enter pa yan next month, everything will retroact to the date of finality. It is simplier now.

Q: When the judgment becomes final and executory, what are the effects?
A: The finality of a judgment produces three (3) effects, to wit:

1.) The prevailing party is entitled to have the judgment executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial duty of the court (Rule 39);

2.) The court rendering the judgment loses jurisdiction over the case so that it can no longer correct the judgment in
substance, except to make corrections of clerical errors and omissions plainly due to inadvertence or negligence.
(Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L-13927, Feb. 28, 1960; Maramba vs. Lozano, L-21533,
June 29, 1967)

If after the judgment is rendered, you file a motion for reconsideration or new trial, there is a possibility
for the court to change its mind and its judgment. But once the judgment has become final, the court has no
more power to change its judgment substantially. The error will also become final, you can no longer change
anything substantial.

EXCEPTION: There is one type of judgment which can be changed substantially even long after it
became final as an exception to this rule. In the study of Persons, Judgment for Support. The judgment for
support, which can be modified at any time because the obligation to give support depends not only on the
resources of the obligor, but also on the ever-changing needs of the obligee. (Malabana vs. Abeto, 74 Phil. 13)

EXAMPLE: The father refuses to support his minor child. After trial, the court orders the father to support
the child at P1,000 per month. Four years later, the father is already well-off and the child is already in
nursery or kindergarten. So the child tells his lawyer that the amount for support must be increased from
P1,000 to P5,000. The father says, “the court said P1,000 and if you change that to P5,000, that would be
substantial.” The father is wrong. The amount for support can be changed anytime. In the same manner. The
amount can also be lowered, as when the father loses his job.

3.) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May 15, 1962)

The same cause of action between the same parties can never be the subject matter of another litigation in
the future. Any subsequent case is barred by prior judgment.

Sec. 3. Judgment for or against one or more of several parties. -

Judgment may be given for or against one or more of several plaintiffs,
 and for or against one or more of several defendants. When justice so
demands, the court may require the parties on each side to file
adversary pleadings as between themselves and determine their ultimate
rights and obligations. (3)

Q: Suppose there are 2 plaintiffs A and B, can the court render judgment in favor of plaintiff A and against plaintiff B?
Or, is it possible that in one case, one defendant will win and the other defendant will lose?
A: YES, especially when the causes of action or defenses are not the same. One may invoke a defense that is only
applicable to him but not applicable to others.

Sec. 4. Several judgments. - In an action against several

defendants, the court may, when a several judgment is proper, render
judgment against one or more of them, leaving the action to proceed
against the others. (4)

Same concept. When there are 2 or more defendants, normally the court renders judgment sabay-sabay. That is
possible.

Q. Is it possible that more than one judgment will arise in a civil action?
A. YES. There’s a judgment in favor of the plaintiff against the defendant and the trial still continues with respect to
other defendants. That would involve more than one decision. Judgment in favor of one defendant is rendered already but
the trial will continue with respect to other defendants is possible under Section 4.

EXAMPLE: There was a case where the government filed a case for expropriation against several landowners. The
lands are adjoining each other and the government would like to expropriate all these properties. The government had to file
on complaint against several landowners. One landowner asked that his case be tried ahead of the others. He was allowed
under Rule 31 on Separate Trial. His case was tried ahead. After trial, the court rendered judgment against him. His land
was ordered expropriated. Now, what happened to the other defendants? The Supreme Court said let the case continue
against the other landowners. But there would be a judgment in so far as one defendant is concerned. (Municipality of
Biñan vs. Garcia, 108 SCRA 576)

Sec. 5. Separate judgments. - When more than one claim for relief is
presented in an action, the court, at any stage, upon a determination
of the issues material to a particular claim and all counterclaims
arising out of the transaction or occurrence which is the subject
matter of the claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining
claims. In case a separate judgment is rendered, the court by order
may stay its enforcement until the rendition of a subsequent judgment
or judgments and may prescribe such conditions as may be necessary to
secure the benefit thereof to the party in whose favor the judgment is
rendered. (5a)

Section 5 is also similar to Section 4.

Q: Can there be judgments at periods or stages of proceedings?

A: YES. There can be judgment insofar as one cause of action and the proceedings will continue as to other causes of
action.

Let us go back to Rule 30 on Order of Trial. You will notice that there is order of trial when there are several claims in
one action.

EXAMPLE: Plaintiff files a complaint against several defendants. One defendant files a cross-claim against another
defendant. Two defendants file permissive counterclaims against the plaintiff. One defendant will file a third-party
complaint against a third-party defendant. The court renders judgment. It may render judgment as far as complaint is
concerned, then the decision for the cross-claim, then for the counterclaim.
 The normal procedure is you try the case, tapusin mo lahat, then you render one judgment disposing of the complaint,
counterclaim, cross-claim and third-party complaint. Yet, separate judgments is also permissive under Section 5. If there are
separate trials for all these (counterclaim, cross-claim, etc), it is also possible that there would be separate trials.

Distinctions:
Section 3 – refers to an action by several parties
Section 4 – refers to an action against several defendants
Section 5 – refers to several claims for relief in an action

Sec. 6. Judgment against entity without juridical personality. -

When judgment is rendered against two or more persons sued as an entity
without juridical personality, the judgment shall set out their
individual or proper names, if known. (6a)

Does that sound familiar? Two or more persons sued as an entity without juridical personality. Let’s go back to Rule 3
Section 15 and Rule 14 Section 8.

PROBLEM: Three people are members of an entity without juridical personality. They transact business with Mr.
Alama. Mr. Alama has no idea who are really the members of the said entity. He wanted to sue the members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 – Mr. Alama will file a case against the defendants by using the name of the entity they are using.

Q2: How should summons served to these defendants?

A: Rule 14, Section 8 – Summons may be served on anyone of them or to the person in charge of the place of
business.

Q3: How should judgment be rendered against them?

A: Rule 36, Section 6 – when judgment is rendered, the judgment shall set out their individual and proper names.
 Rule 37
NEW TRIAL OR RECONSIDERATION

The counterpart of Rule 37 in criminal procedure is Rule 121. In criminal procedure, there is also the remedy of new
trial and reconsideration.

Section 1. Grounds of and period for filing motion for new trial or
reconsideration. Within the period for taking an appeal, the aggrieved
party may move the trial court to set aside the judgment or final order
and grant a new trial for one or more of the following causes
materially affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if
presented would probably alter the result.
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are
excessive, that the evidence is insufficient to justify the decision or
final order, or that the decision or final order is contrary to law.
(1a)

Q: When may an aggrieved party file a motion for new trial or a motion for reconsideration?
A: Within the period for taking an appeal. Meaning, before the judgment becomes final and executory.

We have not yet discussed the law on appeal but the general rule is just like in criminal cases. If you lose, you have 15
days to file an appeal. If there is no appeal within 15 days, the judgment will become final and executory.

Q: If I lose in a civil case, is there other remedy aside from appeal?

A: YES. You can file a motion for new trial but such motion must also be filed within 15 days. After 15 days, you can
no longer file a motion for new trial because the judgment becomes final and executory.

Q: What is the effect when judgment becomes final and executory?

A: Under Rule 36, the court loses jurisdiction over the case. The decision cannot be changed anymore. But as long as
judgment is not yet final, the court can change the decision.

Q: What is the effect of filing a motion for new trial or reconsideration on the period to appeal?
A: The period to appeal is suspended. When your motion is denied, you still have the remaining balance of the period to
appeal. Period to appeal is suspended except if your motion for new trial or reconsideration is pro-forma under Sections 2
and 5.

NEW TRIAL

Q: What are the grounds for a motion for new trial in civil cases?
A: Under Section 1, there are two (2) GROUNDS:

5.) Fraud, Accident, Mistake, Excusable negligence (FAME);

6.) Newly Discovered Evidence (NDE)

FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence (FAME)

Let us relate this to Rule 9, Section 3 [b] on Default. The ground to lift or set aside the order of default is also FAME –
that he failed to answer because of FAME. So, there is a connection between Rule 9 and the first ground of a motion for
new trial.
 Q: How do you determine when to use Rule 9 or Rule 37 when one is declared in default?
A: Use Rule 9, Section 3 [b] after notice of the order of default but before judgment;
Use Rule 37 if there is already a judgment but not yet final and executory. Rule 37 is the remedy in case the
defendant who is declared in default failed to avail of Rule 9, Section 3 [b].

But Rule 37 on motion for new trial on the ground of FAME is broader. It applies to plaintiff or defendant whether in
default or not because a defendant can still lose the case through FAME although he is not in default. Or, for example: The
plaintiff, because of his failure to appear in the case, the court dismissed the case. But the reason why the plaintiff failed to
appear is because of FAME. So the remedy for plaintiff is to move to set aside the dismissal and have the case continued by
filing a motion for new trial on the ground of FAME.

But definitely, Rule 37 also applies to a defendant declared in default and that is the connection between Rule 37 and
Rule 9.

FRAUD (Extrinsic)

What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: na-utis) Under the law, there are two (2) TYPES of
Fraud: EXTRINSIC FRAUD and INTRINSIC FRAUD

GARCIA vs. COURT OF APPEALS

202 SCRA 228 [1991]

HELD: EXTRINSIC FRAUD is that type of fraud which has prevented a party from having a trial or
from presenting his case in court. INTRINSIC FRAUD is based on the acts of a party in a litigation during the
trial, such as the use of forged instruments or perjured testimony, which did not affect the presentation of the
case, but did prevent the fair and just determination of the case.

Q: When is fraud a sufficient ground for new trial?

A: FRAUD, to be a ground for new trial, must be EXTRINSIC – where the aggrieved party was misled by the adverse
party, and by reason thereof, he was prevented from presenting his case properly. (Gisburne Supply Co. vs. Quiogue, 34
Phil. 913; Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-30694, Oct. 31, 1969)

So, intrinsic fraud is not a ground for a new trial.

EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The case will be tried
tomorrow. I called you up and asked you to postpone the trial, “I will tell the court that I talked to you and you agreed that
the trial will be postponed.” The following day, I appeared in court. When the case is called, I said that I’m ready. Court:
“Saan ang defendant?” I said, “Wala! Awan!” I then moved to continue the trial.

So, naisahan kita. I maneuvered a scheme in such a way that you will not appear in court. You lost your opportunity to
present your side. That is EXTRINSIC FRAUD. Your remedy now is to file a motion for new trial on the ground that you
have been a victim of EXTRINSIC FRAUD by the plaintiff’s lawyer.

EXAMPLE: There is a case between you and me. During the trial, I presented witnesses to prove my cause of action.
All my witnesses were lying – they testified falsely. I presented falsified documents to prove my case. And I won the case
because of those perjured testimonies and falsified documents. You file a motion for new trial alleging FRAUD – that the
testimonies and documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC because you were not prevented you from
going to court. So, your remedy is to expose my perjured and falsified evidence. You can present rebuttal evidence. It is
your obligation to prove that my witnesses are lying and my documents are false. Definitely, you cannot ask a motion for a
new trial.

ACCIDENT
 What is ACCIDENT? It is something unforeseen, something unexpected or unanticipated. When is accident a
sufficient ground for new trial?

EXAMPLE: A party failed to appear in court because he got sick at the last minute. Or, in the middle of the trial, the
lawyer of the party becomes sick. With that, the complaint was dismissed or there was a judgment against you. You can
move for new trial on the ground of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil. 983)

EXAMPLE: The defendant was declared in default because he did not file an answer but actually he filed an answer
through mail, but somehow the post office did not deliver it to the court (baka may anthrax). That is an accident. With that,
I can move for new trial or lift the order of default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)

EXAMPLE: The trial was this morning. But I received only the notice of trial on March 9, 1998 stating that the trial is
on March 5. So the notice of hearing was received days after the scheduled date. That is an accident which is a ground for
new trial. (Soloria vs. Dela Cruz, L-20738, Jan. 31, 1966)

MISTAKE

What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya pa, ‘nasayop.’

EXAMPLE: Defendant received summons and complaint. The defendant, instead of seeking assistance of a lawyer,
went to the plaintiff and asked for settlement. They kept on talking with the settlement but in the meantime, the period to
file answer is also running. Fifteen days had passed by they did not settle yet. Plaintiff moved to declare defendant in
default. The court issued judgment on default. Defendant said, “Layman man ako. Anong malay ko diyan sa ‘default-
default’ na yan.” The lawyer said, “Sana answer muna before you settle with the plaintiff.” So the lawyer filed a motion for
new trial on the ground of MISTAKE. The court granted it. (Salazar vs. Salazar, 8 Phil. 183)

GENERAL RULE: A client is bound by the mistakes of his lawyer and he cannot file a motion for new trial on the
ground of mistake of his lawyer. In the case of

BELLO vs. LABONG

L-10788, April 30, 1959

HELD: “The mistake of an attorney is not generally a ground for new trial. The mistake or lack
of foresight or preparation on the part of the attorney cannot be admitted as reason for new trial in
civil cases, otherwise there would never be an end to a suit so long as a new counsel could be
employed who could allege and show that the prior counsel had not been sufficiently diligent, or
experienced, or learned.”

What the SC is trying to say is this: Suppose we will grant a new trial for the party on the ground of mistake of his first
lawyer, and after the new trial, the party still lost. So such party will now hire a third lawyer who will say, “Do you know
why you lost? That is because of the mistake of your second lawyer so we will file a motion for new trial.” So the third
lawyer will allege mistake of the second lawyer and then we will grant again a new trial and then he loses again. Then he
gets a fourth lawyer and the fourth lawyer will allege the ground of mistake of the third lawyer.
So, there will never be an end to a case. So the general rule to remember is, a client is bound by the mistakes of his
lawyer and he cannot file a motion for new trial on the ground of mistake of his lawyer. So that is not the type of mistake
contemplated by Rule 37.

The only EXCEPTION is based on equity decision like the case of

PEOPLE vs. MANZANILLA

43 Phil. 167

HELD: “A new trial is sometimes granted where the INCOMPETENCY or NEGLIGENCE of the
party’s counsel in the conduct of the case IS SO GREAT that party’s rights are prejudiced and he is
prevented from presenting his cause of action or defense.”
 EXCUSABLE NEGLIGENCE

EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not a ground for new trial. But sometimes, it is
difficult to determine whether the negligence is excusable or inexcusable. That is also very difficult because there is
negligence whether you like it or not.

When is negligence excusable and when is it inexcusable? Our only guide here is decided cases because there are many
cases where the SC said that, it is excusable so we will grant a new trial. Or sometimes naman, wala, that is not excusable
so no new trial. So, we can go on the pattern and find out what type of negligence warranted a new trial and what type does
not warrant a new trial.

INEXCUSABLE NEGLIGENCE; Examples:

EXAMPLE #1: If a defendant lost a case because his lawyer failed to file an answer. And the excuse of the lawyer was,
“I forgot about the deadline. Nalimutan ko. I did not keep tract of the deadline to file an answer.” And the SC said, “No
dice. That is not excusable on the part of the lawyer.”

EXAMPLE #2: Your case was dismissed because you failed to appear in court. Here comes now your lawyer asking for
new trial on the ground of excusable negligence, “I failed to appear in court because I again forgot about that schedule” or
“because I failed to wake-up because the night before, I and my friends went to a (Wigmore) party and I went home drunk.”
Do you think the SC will honor that? Is that excusable? Of course not!

EXAMPLE #3: In many cases, the reason is, “I failed to appear in court because my secretary in my law office failed
to inform me about that notice. Hindi niya nalagay ‘yung notice that I have to appear in court today.” SC said, “You are
bound by the mistake of your secretary and the client is also bound by that mistake of the lawyer. In the first place, why did
you hire that kind of secretary?”

EXAMPLE #4: In some cases, “Well, you see your honor, I failed to appear in court because my secretary did not
calendar it.” O, bakit niya hindi inilagay? “Well, she’s just a newly hired secretary, she does not know yet the importance
of these things. First time niya.” The SC said, “Hung hang! Pasensiya ka! Why did you not orient her before hiring her.”

So all these things hindi lumusot. All these things failed to convince the SC that the negligence of the party of the
lawyer if excusable.

EXCUSABLE NEGLIGENCE; Examples:

EXAMPLE #1: The answer has to be filed the following day. The lawyer told the secretary, “I’m leaving tonight. I’ll
come back one week later. You better file tomorrow the answer because tomorrow is the deadline.” Then he left but the
secretary failed to file it because she also got sick. Ayan. Nagkapatong-patong na ang malas. Excusable iyan.

EXAMPLE #2: “I failed to appear in court because I had to come from Manila and the plane was delayed or the flight
was cancelled. But if the flight proceeded on time I would have been in Davao City by 7:00 A.M. and I would have been in
court at 8:30 A.M.” Sometimes that happens eh where the flight is cancelled or delayed. Ano ngayon yan? Sabihin, you
should have taken the flight the night before para sigurado. “Eh, the night before fully booked na! Anong magagawa ko?”
Ayan.

So in other words, these things, you could also consider it as what? Parang accident din no? Magkahawig eh! In other
words you should use your common sense. Whether the negligence is forgivable or not.

And to borrow the language of the SC, “The standard of care required of a party is that which an ordinarily prudent
man bestows on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)

So, for EXAMPLE: You are a businessman and you have an appointment with somebody who will give you a deal of
P50 million. And you are scheduled to see him on this date and on this time. Can you afford to forget that transaction? I
think there is something wrong with you if you forgot it. You do not know what is important and what is not important.
(Ang importante is yung mahalaga! Di ba?)
a new trial because I will now introduce a ground for new trial.” Obviously, it was discovered after trial. It was in your
possession for so long. And according to the SC, that is not a newly discovered evidence. (That is katangahan!) That is
forgotten evidence which is not a ground for new trial.

THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL

EVEN WITH EXERCISE OF REASONABLE DILIGENCE

Meaning, even if you try your best to look for it, you would not have found it. Now na natalo ka, you suddenly found it.

Now, because there are clients who are lazy eh. So, meron ka bang dokumento? “Wala eh. You see, marami akong file
diyan pero tingin ko wala eh.” “Wala gyud?” “Wala.” So, talo. Walang ebidensiya eh! After a while pag-halungkat, “Atty.,
naa man diay.” “My golly! Nganong karon man lang. I gave you several months to look for that. You’re so lazy. Now,
that you lost, you only find it for an hour.” In this case, you did not comply with the second requisites – that it could not
have been discovered before trial even with the exercise of reasonable diligence.

THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE RESULT

Meaning, if there is a new trial and the newly discovered evidence will be admitted, it would probably alter the result.
Probably lang. May fighting chance, pero ‘chance’ lang. You are not saying that if the new evidence will be admitted, you
will automatically win. There is a probability that you will win. And the court will say, “I think probable. Ok, new trial
granted. Then defendant, PASOK!” (cguro, d jdge hir is myk enriquez?) Then, the evidence will be presented and we will
find out if you can win.

NEW TRIAL vs. REOPENING OF TRIAL

The SC has already made pronouncements on what the reopening of trial meant. Reopening of trial is not found in the
law. There is no express rule, but it is admittedly allowed. Now give an example of reopening of trial.

EXAMPLE: Tapos na ang trial. What will come next is decision and then the party said, “Your honor, could we reopen
the trial? Meron kaming nakalimutan eh. I forgot an important piece of evidence.” Now, that cannot be new trial because
wala pa man ang judgment. Rule 37 applies only when there is already a judgment. In the example, is that a motion for new
trial? No. It should be called a motion for reopening of trial.

So if the motion is filed after the judgment is rendered, it is called motion for new trial. When the motion is filed before
a judgement is rendered, it should be called a motion for reopening of trial.

EXAMPLE: A judge after trying the case, “Alright, I will not decide yet. I want to go to the area and look at the
property.” Meaning, the court, on its own, would like to conduct an ocular inspection. That is a reopening of the trial. Now,
was there any motion by anybody? Wala man ba. The court itself initiated it. And that is allowed said by the SC. Reopening
of trial is bound by no rules. The judge with or without a motion can do it. The only ground for reopening of trial is interest
of justice. And that is very broad. So there are no rules.

The SC said: New trial should be distinguished from the exercise of the discretionary power of the court to REOPEN a
trial for the introduction of additional evidence, to clarify its doubts on material points. This discretionary power is subject
to no rule other than the paramount interest of justice and will not be reviewed on appeal unless the exercise thereof is
abused. (Arce vs. Arce, L-13035, Nov. 28, 1959) So it is one of the inherent powers of the court.

MOTION FOR RECONSIDERATION

Q: What is the ground for a motion for reconsideration?

A: Third paragraph of Section 1:

Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are
 excessive, that the evidence is insufficient to justify the decision or
final order, or that the decision or final order is contrary to law.
(1a)

Q: When do you file a motion for reconsideration?

A: Within the same period for filing a motion for new trial. Meaning, within the period for taking an appeal.

Q: What are the grounds for a motion for reconsideration?

A: The following are the GROUNDS for a motion for reconsideration:

4.) The damages awarded are excessive;

5.) The evidence is insufficient to justify the decision or final order;
6.) The decision or order is contrary to law. (in effect, the decision is wrong)

Motion for reconsideration is more common. Motions for new trial are very rare.

In a motion for reconsideration, you convince the court that the decision is wrong, “Dapat panalo ako, hindi siya.” You
convince the court, that its decision is wrong, that the decision is contrary to law. If you can convince the court, the court
will issue another decision reversing itself where from a loser [loooosseer!], you are now the winner and the original winner
is now the loser [loooosseer!]. Ganyan man yan ba, very common.

MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS

Sec. 2. Contents of motion for new trial or reconsideration and

notice thereof. The motion shall be made in writing stating the ground
or grounds therefor, a written notice of which shall be served by the
movant on the adverse party.
A motion for new trial shall be proved in the manner provided for
proof of motions. A motion for the cause mentioned in paragraph (a) of
the preceding section shall be supported by affidavits of merits which
may be rebutted by affidavits. A motion for the cause mentioned in
paragraph (b) shall be supported by affidavits of the witnesses by whom
such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the
findings or conclusions of the judgment or final order which are not
supported by the evidence or which are contrary to law, making express
reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or
conclusions.
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal. (2a)

Q: What should be the form of a motion for new trial?

A: It must be in writing. You must state the ground or grounds for the motion, whether it is FAME or newly discovered
evidence. Then, of course, you must serve a copy of the motion to the adverse party. Meaning, you comply with all the
requisites of a valid motion.

PEOPLE vs. COURT OF APPEALS

296 SCRA 418 [Sept. 25, 1998]

FACTS: Inday filed a motion for new trial without a notice of hearing (this is a violation of paragraph of
Section 2). But she filed the motion within 15 days. Inday filed a supplemental motion with notice of hearing
but filed beyond the 15-day period. Should the court deny the motion?

HELD: The motion should be denied. “A supplemental pleading subsequently filed to remedy the
previous absence of notice will not cure the defect nor interrupt the tolling of the prescribed period within
which to appeal.”
 “We are not impressed by the argument that the supplement filed by the appellants on May 30 should be
deemed retroactive as of the date the motion for reconsideration was filed and, therefore, cured the defect
therein. To so consider it would be to put a premium on negligence and subject the finality of judgments to the
forgetfulness or whims of parties-litigants and their lawyers. This of course would be intolerable in a well-
ordered judicial system.”

The second paragraph says, “A motion for new trial shall be proved in the manner provided for proof of motions…”
What does that mean? What is the proof of motions? The manner or proving motions is also found in Rule 15, Section 3:

Rule 15, Sec. 3. Contents. - A motion shall state the relief sought
to be obtained and the grounds upon which it is based, and if required
by these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers. (3a)

Q: Everytime you file a motion, is it necessary that the ground for your motion is supported by affidavits or other
papers?
A: If it is necessary –YES. If it is not necessary – NO NEED. If necessary, you must attach documents or supporting
affidavits like a medical certificate for a motion to postpone due to illness.

Q: Is it necessary that when you file motion for new trial, you must attach affidavits?

REQUIREMENTS WHEN THE GROUND IS F.A.M.E.

Section 2, second paragraph says, “A motion for the cause mentioned in paragraph [a] of the preceding section shall
be supported by affidavits of merits…” Paragraph [a] is FAME. So, a motion for new trial on the ground of FAME must be
accompanied by affidavits of merits.

Q: What is an affidavit of merits?

A: An AFFIDAVIT OF MERITS is one which recites the nature and character of FAME on which the motion is based
and stating the movant’s good and substantial cause of action or defense and the evidence he intends to present if the motion
is granted, which evidence should be such as to warrant reasonable belief that the result of the case would probably be
otherwise. (Paz vs. Inandan, 75 Phil. 608; Manila Surety vs. Del Rosario, 101 Phil. 412)

Meaning, you must state the facts surrounding FAME and your meritorious cause of action or defense whether you are
the plaintiff or the defendant. You explain why you are a victim of fraud, etc. and that you have a good cause of action or
defense which if there will be a new trial, you might win. It is not enough that you are a victim of FAME, you must also
have a meritorious cause of action or defense.

Q: What happens if you file a motion without affidavit of merits?

A: Then, your motion for new trial will be immediately denied. It is a fatal mistake. Your motion for new trial is
classified as a PRO-FORMA motion for new trial.

Q: Briefly, how do you classify a pro-forma motion for new trial?

A: It is a motion for new trial which does not comply in substance or in form with Sections 1 and 2 of Rule 37.

Q: What is the EFFECT of a pro-forma motion for new trial?

A: The period to appeal is NOT interrupted by the filing of such motion for new trial. Even the right to appeal may be
forfeited because of this defect. The effect is now stated in the last paragraph of Section 2:

A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal. (2a)

When you lose a case you have exactly 15 days to appeal. Let’s say on the tenth day, I file a motion for new trial under
Rule 37. And the motion was acted after one month. Shempre lampas na yung 15 days. Meaning, pag-tanggap ko ng
decision, ten days na ang nakaraan, and then another one month so 40 days na. But no problem because when you filed your
motion on the 10th day, the running of the period to appeal is interrupted. If denied, meron ka pang limang araw to appeal.
 But, if the court says, “Your motion is denied because it is pro forma, there is no affidavit of merits.” Then, you cannot
appeal anymore because when you filed your motion, the period to appeal keeps on running. So by the time your motion is
denied, even the right to appeal is also lost. Iyan ang epekto ng pro-forma motion for new trial. It never interrupts the
period to appeal. [Trivia: PRO-FORMA means, PuRO pORMA lang, wala namang sinabi]

Q: Suppose a movant will file a motion for new trial in the ground of FAME with the affidavits of merits and says “I
am a victim of fraud and if such motion is granted, I have a good and meritorious cause of action or good and meritorious
defense.” Is the affidavit sufficient?
A: SC –No, those are generalities, you must recite the facts constituting the FAME. You must describe exactly what
happened to you. To say that you have good cause of action or defense is INSUFFICIENT.

You must state what is the nature of that cause of action or defense and evidence you intend to present. So, there is an
affidavit of merit but it is fatally defective. Again what will happen to the motion. It will be treated as pro-forma. The
affidavit of merit is defective.

MANIPOL vs. LIM TAN

55 SCRA 202

FACTS : A defendant in an action for damages based on quasi-delict filed a motion for new trial citing
FAME. He says, “I have a good and meritorious cause of action or defense. I intend to prove that I exercised
due diligence in the selection or supervision of my drivers and which if proven relieves the employer from
liability.”

HELD: Affidavit of merits is defective. It is pro-forma motion. It does not state the meritorious defense.
There is only a general statement or conclusion of the defendant. The defendant should state the details of how
he supervised his employees. You go to specifics.

The law is very strict about affidavits of merits. It is not enough that you state your defense. You must demonstrate
that you have a meritorious claim of defense so that the motion for new trial will be granted. What is the used of granting a
new trial if after the new trial you will still end up losing the case? It would be a waste of time. According to SC, “ It
would be pointless to reopen a case if a party does not have a meritorious cause of action of defense for like a mirage it
would merely raise false hopes and at the end avail the movant nothing.” (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It
would raise false hope if you will grant a new trial when in fact the movant has no meritorious cause of action. It’s like a
mirage or illusion – seeing things which are not there. [malayo ang tingin, hindi naman duling…]

It seems that there are really two affidavits. Normally when a lawyer files motion for new trial, there is one affidavit
reciting FAME and reciting the meritorious cause of action or defense. If you follow the SC there are two (2) affidavits:
FIRST – affidavit regarding the FAME; and SECOND – affidavit regarding the meritorious cause of action of defense.

But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied that the real Affidavit Of Merits should be the
second one – that I have a good and meritorious defense. In reality, there should be two (2) affidavits – one reciting the
FAME and one reciting the substantial cause of action. That is why a motion for new trial on FAME should ordinarily be
accompanied by two affidavits. One setting forth the facts and circumstances alleged to constitute FAME and the other an
Affidavit of Merits setting forth the particular claims to constitute the movant’s meritorious defense or cause of action. The
real Affidavit of Merits is the second one.

REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE

Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for the cause mentioned in (Section 1) paragraph [b]
(NDE) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly
authenticated documents which are proposed to be introduced in evidence.”

Meaning, when the ground is newly discovered evidence, the motion shall be supported by affidavits also – affidavits
of the newly discovered witness – or a copy of the newly discovered document. You have to state what is the newly
discovered evidence, what the witness will say.

Q: What happen when such requirement is not complied with?

A: The motion for new trial on the ground of NDE is treated as PRO-FORMA and it never tolled the reglementary
period to appeal.

MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS

Q: Again, what are the grounds for a motion for reconsideration?

A: The following are the GROUNDS for a motion for reconsideration:

1.) The damages awarded are excessive;

2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong)

Q: Can you file a motion for reconsideration by just simply stating that “the decision is wrong or contrary to law,” or
“the findings of the judge are not supported by evidence”?
A: NO. Under Section 2, 3rd paragraph, you must point out specifically the findings or conclusions of the judgment or
final order which are not supported by the evidence or which are contrary to law, making express reference to the
testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.

So, you must point out what findings is not supported by evidence – what conclusion is contrary to law. Do not let the
judge look for it. The judge will never bother to look for it. You tell him what portion of the decision is wrong. You have to
cite the evidence too and the law which is violated or what provisions – ituro mo yan! Point it out clearly.

Q: What happen when you file a motion for reconsideration without making any reference, exhibit etc? Meaning, you
did not comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will never interrupt the reckoning of the prescriptive
period.

The SC once defined a pro forma motion as one filed for the sake of form. (Dapin vs. Dionaldo, G.R. No. 55488, May
15, 1992)

Another POINT: when you file an motion for reconsideration on the ground that the judgment is contrary to law, it is
not enough for you to say that. You must always point out clearly why it is contrary to law, otherwise your motion will be
denied or treated as pro-forma.

Q: When you file an motion for reconsideration and it is denied, does it mean to say that your motion is pro-forma?
A: NO, because maybe the judge was not convinced but you tried your best. The denial of motion for reconsideration
on the ground that the decision or judgment is wrong does not automatically make the motion a pro-forma. What makes it
pro-forma is, if your motion for reconsideration does not specifically point out why judgment is wrong. But if you comply
with Section 2, that is already sufficient.

In the case of
MARIKINA VALLEY DEV’T. CORP. vs. FLOJO
251 SCRA 87 [1995]

HELD: “A motion for reconsideration merely reiterates or repleads the same arguments which
had been previously considered and resolved in the decision sought to be reconsidered, the motion
is a pro forma one.”
“The circumstance that a motion for reconsideration deals with the same issues and arguments
posed and resolved by the trial court in its decisions does not necessarily mean that the motion must
be characterized as merely pro forma. A pleader preparing a motion for reconsideration must of
necessity address the arguments made or accepted by the trial court in its decision. The movant is
very often confined to the amplification or further discussion of the same issues already passed
upon by the trial court.” Precisely, when I filed a motion for reconsideration, we will go over the
 same points which the court has already discussed.
“Where the circumstances of a case do not show an intent on the part of the movant merely to
delay the proceedings, our Court has refused to characterize the motion as simply pro forma. The
doctrine relating to pro forma motions for reconsideration impacts upon the reality and substance of
the statutory right of appeal, that doctrine should be applied reasonably, rather than literally. The
right to appeal, where it exists, is an important and valuable right.”
“A motion for reconsideration which is not as starkly bare but which, as it were, has some flesh
on its bones, may nevertheless be rendered pro forma where the movant fails to make reference to
the testimonial and documentary evidence on record or the provisions of law said to be contrary to
the trial court’s conclusions. In other words, the movant is also required to point out succinctly why
reconsideration is warranted.”
“It is not enough that a motion for reconsideration should state what part of the decision is contrary to law
or the evidence; it should also point out why it is so. Failure to explain why will render the motion for
reconsideration pro forma.” Meaning, when I point out part of the decision that is contrary to the law, it is not
pro forma. But still it is pro forma if I will not state that it is contrary to law.
“Where a substantial bonafide effort is made to explain where and why the trial court should be regarded
as having erred in its main decision, the fact that the trial court thereafter found such argument unmeritorious
or as inadequate to warrant modification or reversal of the main decision, does not, of course, mean that the
motion for reconsideration should have been regarded, or was properly regarded, as merely pro forma.”

So, I point the decision but the court does not agree with me. That does not mean that my motion is automatically pro
forma because there was attempt to convince the court why it is wrong.

EFFECTS WHEN MOTION IS GRANTED

Sec. 3. Action upon motion for new trial or reconsideration. The

trial court may set aside the judgment or final order and grant a new
trial, upon such terms as may be just, or may deny the motion. If the
court finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly. (3a, R37)

Sec. 6. Effect of granting of motion for new trial. If a new trial

is granted in accordance with the provisions of this Rule, the original
judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former
trial, in so far as the same is material and competent to establish the
issues, shall be used at the new trial without retaking the same. (5a)

Q: In Section 3, how will the court resolved your motion for new trial?
A: The court may either deny or may set aside the judgment or final order and grant a new trial. Literally, if the
judgment is set aside, there will be a trial de novo, a Latin word for new trial.

BAR QUESTION: If Cholo files a Motion For New Trial and it is granted, will there always be a trial de novo?
A: It DEPENDS on the ground for the motion:
6.) If the ground is FAME, there will be a trial de novo because the proceeding will be set aside;
7.) If the ground is NDE, there is no trial de novo. The evidence admitted which is based on the same decision
will remain. The case will be opened only for the purpose of admitting the new evidence.

Q: If Cholo files a Motion For Reconsideration and it is granted, will there be a trial de novo?
A: There is NO trial de novo. The court will simply amend its judgment. It is only a re -study of provision. The court
will study its decision and go over the evidence and find out whether it made a mistake or not.

Sec. 4. Resolution of motion. A motion for new trial or

reconsideration shall be resolved within thirty (30) days from the time
 it is submitted for resolution. (n)

There is now a deadline for the court to act on the motion – within 30 days from the time it is submitted for resolution.

SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION

Sec. 5. Second motion for new trial. A motion for new trial shall
include all grounds then available and those not so included shall be
deemed waived. A second motion for new trial, based on a ground not
existing nor available when the first motion was made, may be filed
within the time herein provided excluding the time during which the
first motion had been pending.
No party shall be allowed a second motion for reconsideration of a
judgment or final order. (4a, R37; 4, IRG)

As a rule, the motion for new trial shall include all grounds then available and those not included are deemed waived.
So, if the motion for new trial is based on two (2) grounds – FAME and NDE – either or both grounds should be included in
the motion.

Q: Suppose a motion for new trial, which is based only on FAME, was denied, can there be a second motion for new
trial on the ground of NDE?
A: It DEPENDS:

3.) If the NDE is already existing when the first motion was filed, then the second motion for new trial will
be denied because of failure to raise it earlier – the second ground is deemed waived for failure to raise the
same;
4.) However, if the ground for the second motion for new trial is something not known or not existing or not
available when the party filed the first motion, then the second motion is allowed. The second motion is
not a pro forma motion.

So, what the law prohibits is you file a motion for new trial and you do not include all the grounds then available. If the
ground surfaced only later, then it is allowed. Therefore, the motion for new trial is an example of omnibus motion as
defined in Rule 15, Section 8:

Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of

Rule 9, a motion attacking a pleading, order, judgment, or proceeding
shall include all objections then available, and all objections not so
included shall be deemed waived. (8a)

Q: What happens if you file a second motion for new trial on a ground which is then available when the first motion
was filed?
A: The second motion is a pro forma motion and will not interrupt the remaining balance of the period to appeal after
the first motion was denied. There was a clear violation of omnibus motion rule.

Q: So, there are two (2) types of pro forma motion for new trial under Rule 37. What are they?
A: The following:
4.) A motion for new trial which is not supported by affidavits of merits – one which does not comply in
substance or in form with Section 2; and
5.) A second motion for new trial on a ground available to the party when the first motion was filed (Section 5).

Take note that the 2nd paragraph of Section 5 provides that “No party shall be allowed a second motion for
reconsideration of a judgment or final order.” Therefore, a second motion for reconsideration is always treated as a pro
forma motion because it is totally prohibited by Section 5.

NEW TRIAL vs. MOTION FOR RECONSIDERATION

 Take note that in New Trial, there could possibly be trial de novo. If granted, everything is set aside and the party will
now present their evidence. But in trial de novo, we will not erase everything. Proceedings or evidence admitted will
remain. Only, we will open it for the purpose of introducing the new evidence and then the court will study it all over again.

In Motion for Reconsideration, there is no reopening of the case because all the court has to do is to go over the
evidence again and go over the decision to find out whether its decision is wrong and should change it. So, there is actually
no trial de novo in a motion for reconsideration.

Q: Distinguish a Motion for New Trial from a Motion for Reconsideration.

A: The following are the distinctions:

4.) As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME and NDE, whereas
In a MOTION FOR RECONSIDERATION, the grounds are excessive damages, decision is not supported
with evidence, or decision is contrary to law;

5.) As to trial:
If a MOTION FOR NEW TRIAL is granted, there could be a trial de novo; whereas
If as MOTION FOR RECONSIDERATION is granted, there is no trial de novo. The court will only amend its
decision

6.) As to a second motion:

A second MOTION FOR NEW TRIAL is allowed if the ground was not existing when the first motion for new
trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always prohibited under the rules.

Sec. 7. Partial new trial or reconsideration. If the grounds for a

motion under this Rule appear to the court to affect the issues as to
only a part, or less than all of the matter in controversy, or only
one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest. (6a)

Q: Is there such a thing as motion for partial new trial or a motion for partial reconsideration?
A: YES, if the party is questioning only one aspect or portion of the case. Therefore, the rest can become final while the
disputed portion does not become final.

So, there could be a new trial or reconsideration only on such issues and there will be a final judgment with respect to
the other issues of the case. How could this happen? The best example is Rule 31, Section 2:

Rule 31, Sec. 2. Separate trials. The court, in furtherance of

convenience or to avoid prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims, counterclaims,
third-party complaints or issues. (2a)

If the cross-claim or third-party complaint are tried separately, there will be different judgments. And in effect, you can
file a partial motion for new trial or reconsideration to the facts contemplated by the case.

Sec. 8. Effect of order for partial new trial. When less than all of
the issues are ordered retried, the court may either enter a judgment
or final order as to the rest, or stay the enforcement of such judgment
or final order until after the new trial. (7a)

This is a continuation of Section 7.

Q: When there is a partial new trial, what will happen to the judgment on the undisputed facts?
 A: Either:
4. the court will enter judgment on it; or
5. the court may stay the enforcement until after the new trial.

The following rules will describe the situation in Section 8:

Rule 36, Sec. 5. Separate judgments. When more than one claim for
relief is presented in an action, the court, at any stage, upon a
determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the
subject matter of the claim, may render a separate judgment disposing
of such claim. The judgment shall terminate the action with respect to
the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered, the court by
order may stay its enforcement until the rendition of a subsequent
judgment or judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose favor the
judgment is rendered. (5a)

Finality of judgment with respect to one portion of the case and the trial continues with the other portion. There are
several judgments involving one action and technically, if one is finished, it can be enforced unless the court provided
otherwise. Another provision is Rule 39, Section 2 [b]:

Rule 39, Sec. 2. Discretionary execution.

x x x x x
(b) Execution of several, separate or partial judgments.— A several
separate or partial judgment may be executed under the same terms and
conditions as execution of a judgment or final order pending appeal.
(2a)

Discretionary execution or execution pending appeal. In case of an appeal, Section 1, Rule 41 [g]:

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
x x x x x
(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
x x x x x
Let’s go back to Rule 37.

Sec. 9. Remedy against order denying a motion for new trial or

reconsideration. An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal from the
judgment or final order. (n)

An order denying a motion for new trial or reconsideration is not appealable (c.f. Rule 41, Section 1 [a]. The remedy
being an appeal from the judgment or final order.

ILLUSTRATION: The judgment is against you. So you filed a motion for new trial or reconsideration. The court
denied your motion. So there is an order denying your motion for new trial or reconsideration. Now, you want to appeal.
Q: Appeal from what? From the main judgment or from the order denying your motion?
 A: You appeal from the judgment. You cannot appeal from the order denying your new motion for new trial. That is
related to Rule 41, Section 1 [a]:

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be
appealable.
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration;
x x x x x x

Well, of course, the filing of this motion will stop the running of the 15-day period, unless your motion for new trial is
pro-forma. Generally, the law does not allow an appeal from the order denying your motion for new trial. You appeal from
the decision, not from the order denying your motion. This provision will come out again when we reach the rule on appeal.

-oOo-

OUTLINE of the process: (after trial)

1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new trial or reconsideration;
4.) Appeal based on the decision/judgment and not based on the order denying your motion.
 Rule 38
RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS

Section 1. Petition for relief from judgment, order, or other

proceedings. When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence, he may file a
petition in such court and in the same case praying that the judgment,
order or proceeding be set aside. (2a)

Rule 38 is known as the remedy of petition for relief from judgment or final order. The grounds cited here are actually
the same as the grounds for new trial – FAME. We are meeting FAME for the third time. It seems to be a ground that keeps
on going back. First in Default, then New Trial, and now a ground for petition for Relief from Judgment.

Q: What are the different remedies available to a defaulted defendant granted by the rules?
A: The following:

6. Upon service of the order of default but before judgment upon default is rendered under Rule 9 you
can file a motion to set aside the order of default on the ground that his failure to file answer was because of
FAME;

7. If there is already a default judgment, the correct procedure is to file a motion for new trial under
Rule 37 on the ground of FAME within the period to appeal, meaning, before judgment becomes final and
executory;

8. If the judgment is already final and executory, the remedy is to file a petition for relief from judgment
under Rule 38 on the ground of FAME.

So if you are a passenger and you want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip, Rule 38 is last trip.

Are those the only remedy? For bar purposes pwede na! But if gusto mo ng mas maganda, marami pa. [abangan! See
discussions under Rule 47]

Q: Distinguish between relief from judgment under Rule 38 and new trial under Rule 37.
A: Rule 37 is substantially similar to Rule 38, the only difference being that the remedy is called Motion for New Trial
if filed before the judgment or final order has become final and executory, and Petition for Relief if filed thereafter but
within the period prescribed in Section 3, Rule 38.

And take note that only FAME could be the ground for Rule 38. There is no newly discovered evidence under Rule 38.
Newly discovered evidence is not a ground for petition for relief from judgment. Newly discovered evidence is available in
Rule 37 but not in Rule 38.

Q: In what court can you file a petition for relief from judgment?
A: “In such court and in the same case.” Meaning, in the very court where you lost and in the same case number. So,
para ka na ring nag-file ng motion for new trial because motion for new trial is filed before the same court and in the same
case.

Under the OLD RULES, when you want to file a petition for relief from the judgment of the RTC, you file your petition
for relief in the same RTC and in the same case. And if you want to file a petition for relief from judgement of the MTC,
you file it in the RTC like an appeal. The RTC will be the one to grant the relief from the judgment of the MTC. The MTC
has no power to set aside its own judgment. It can only be done by the RTC. But the RTC has the power to set aside its own
judgment just like a motion for new trial.

But NOW, under Section 1, you can file a petition for relief from judgment in ANY COURT on the ground of FAME,
IN SUCH COURT and in the same case. So, if you want to file a petition for relief from judgment of the MTC, you should
file it in the same MTC court. Now, MTC has authority to entertain petition for relief from judgment unlike the previous
rule. That is a major change.

Q: Can a petition for relief from judgment be filed in the CA?

A: YES because of “in any court.”

Can you file a petition for relief not from a judgment but from an order? Section 2:

Sec. 2. Petition for relief from denial of appeal. When a judgment

or final order is rendered by any court in a case, and a party thereto,
by fraud, accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a petition in such court
and in the same case praying that the appeal be given due course. (1a)

In most cases, or 95% of petition for relief, a party files a petition for relief from the judgment rendered against him.
Actually that is not true. The remedy of petition for relief is not only limited to judgments but the law says “orders, or other
proceedings.” That is very broad.

EXAMPLE: I lost the case and I filed an appeal and the appeal was beyond 15 days. So, there will be an order denying
my appeal because my appeal should be within 15 days.

Q: And suppose such order prevented me from taking an appeal because of FAME, can I file a petition for relief?
A: Yes, not from the judgment but from the order denying my appeal on the ground of FAME. And the court will grant
me relief by allowing me to appeal. So there, I am not questioning the judgment but I am only questioning the order not
allowing me to appeal.

But as I said, in most cases, petition for relief are based on Section 1 rather than Section 2. Bihira yung petition for
relief from the order denying the appeal.

Is there a deadline in filing a petition for relief from judgment? YES. Section 3:

Sec. 3. Time for filing petition; contents and verification. A

petition provided for in either of the preceding sections of this Rule
must be verified, filed within sixty (60) days after the petitioner
learns of the judgment, final order, or other proceeding to be set
aside, and not more than six (6) months after such judgment or final
order was entered, or such proceeding was taken; and must be
accompanied with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or defense, as the
case may be. (3)

Q: When you file a petition for relief from judgment, or final order, what are the formal requirements?
A: The formal requirements are:
8.) The petition must be verified;
9.) The petition for relief must be accompanied with affidavits showing the FAME relied upon and the
facts constituting the petitioner’s good and substantial case of action or defense as the case may be.

Q: Now, does that requirement sound familiar again, that there must be an affidavit showing the fame and the
petitioner’s substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial, affidavit of merits. Therefore, AFFIDAVIT OF MERITS
which is a requirement in Rule 37 is also a requirement in Rule 38. That is the identical feature of new trial of fame and
petition for relief.

Q: What will happen if a party files a petition for relief without any affidavit of merits, or with a defective affidavit?
A: The defect is FATAL and the petition will be denied outright because of lack of affidavit merits. It is the affidavit of
merits which serves as the jurisdictional basis for the court to entertain a petition for relief. (Fernandez vs. Tan Tiong Tick,
L-15877, April 28, 1961)

Q: When do you file a petition for relief?

 A: Once the judgment complained of has become final and executory because the remedy of new trial is lost. But it
does not mean that you can file your petition for relief anytime. There is also a deadline.

Q: What is the DEADLINE?

A: Under Section 3, the petition must be filed within:

7.) SIXTY (60) DAYS from the time the petitioner learns of the judgment, order, or other proceedings to
be set aside, AND
8.) Not more than SIX (6) MONTHS after such judgment or final order was entered, or such proceeding
was taken.

Q: What is the date of entry of judgment or final order?

A: It is the date of finality of judgment or final order (Rule 36, Section 2). So, the date of entry is deemed to be the date
of finality.

So there are two (2) periods: 60 days and 6 months; and BOTH periods must be complied with (Dirige vs. Biranya, L-
22033, July 30, 1966). Otherwise, if you fail to comply with the two periods the petition for relief will be denied for being
filed out of time.

PROBLEM: There was a judgment rendered against me in June 1997 and it became final and there was entry of final
judgment in June 1997, meaning talo na ako last year pa. But I learned about it only last week or seven days ago. Today is
February 1998. So I asked my lawyer to file a petition for relief this week.
Q: Is the petition filed on time?
A: NO. It is filed out of time. It is true that I only learned about it a week ago. But definitely, the filing is beyond 6
months from the date of its entry which is June 1997. You complied with the first period but you did not comply with
second period. Both periods must be complied.

PROBLEM: The judgment was entered against me last December 1997, and there was entry of final judgment in
December 1997. I learned about it last December also; and now March, 1998, I will file a petition for relief from judgment.
Q: Can I still file the petition for relief?
A: No more. Although it is within 6 months (December to March is only 3 months) from date of entry BUT definitely,
between December to March is more than 60 days. So the petition can no longer be filed. That is how you apply the two
periods. Both periods must be complied.

Q: Is the period for filing a petition for relief extendible?

A: The remedy allowed by Rule 38 is merely an act of grace or benevolence intended to afford a litigant a penultimate
opportunity to protect his interest. Considering the nature of such relief and of the purpose behind it, the periods fixed by
said rule are NON-EXTENDIBLE and is never interrupted; nor can it be subject to any condition or contingency because it
is itself devised to meet a condition or contingency. (Smith, Bell & Co. vs. Phil. Milling Co., 57 O.G. 2701, April 10, 1961;
Quijano vs. Tameta, L-16473, April 20, 1961)

Well, of course, petition for relief according to SC, is penultimate remedy given by the law to a victim of FAME.
Because, if you are a victim of FAME, you lose the case because of that reason. Somehow the law would like to help you
lalo na pagna-default ka. O.K., you have Rule 9, file ka nang motion to lift order of default. “Hindi ako nakahabol eh,
may-judgment na.” O sige, Rule 38 – petition for relief. But paglumampas ka dyan, sorry na lang.

Meaning, the law cannot help you forever. The law can only help you up to a certain period. If you still do not do
anything about it, pasensiya ka na.

Sec. 4. Order to file an answer. If the petition is sufficient in

form and substance to justify relief, the court in which it is filed,
shall issue an order requiring the adverse parties to answer the same
within fifteen (15) days from the receipt thereof. The order shall be
served in such manner as the court may direct, together with copies of
the petition and the accompanying affidavits. (4a)

You file a petition for relief, the court will issue an order requiring the other party to answer. It is like a complaint all
over again where you are given 15 days to answer. Meaning sagutin mo “Would you agree that your opponent is a victim of
FAME?” In other words, do you agree or disagree? – yan ang sagutin mo. “Do you agree that he has meritorious cause of
action (or defense)?” Meaning, you are given the right to oppose the petition for relief.

Sec. 5. Preliminary injunction pending proceedings. The court in

which the petition is filed, may grant such preliminary injunction as
may be necessary for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in favor of the adverse
party all damages and costs that may be awarded to him by reason of
issuance of such injunction or the other proceedings following the
petition; but such injunction shall not operate to discharge or
extinguish any lien which the adverse party may have acquired upon the
property of the petitioner. (5a)

Preliminary injunction actually is a type of provisional remedy which is governed by Rule 58. Injunction is to stop ba,
to enjoin somebody or stop the court from doing an act. That is the essence of injunction.

EXAMPLE: I lost in a case. The judgment became final and executory because I did not make an appeal. However, I
filed a petition for relief. In the meantime, my opponent is asking the court to execute the decision which is his right
because the judgment is already final and executory. In other words, I am questioning the judgment of the court while siya
naman, he is asking the court to enforce the judgment.

Q: Now, what is my remedy to stop the enforcement of the judgment?

A: Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop the enforcement of the
judgment. But I have to put up a BOND conditioned that in the event that my petition for relief is not meritorious, I will pay
for all the damages that the other party will incur because of the delay in the execution.

Sec. 6. Proceedings after answer is filed. After the filing of the

answer or the expiration of the period therefor, the court shall hear
the petition and if after such hearing, it finds that the allegations
thereof are not true, the petition shall be dismissed; but if it finds
said allegations to be true, it shall set aside the judgment or final
order or other proceedings complained of upon such terms as may be
just. Thereafter the case shall stand as if such judgment, final order
or other proceeding had never been rendered, issued or taken. The court
shall then proceed to hear and determine the case as if a timely motion
for a new trial or reconsideration had been granted by it. (6a)

BAR QUESTION: When a petition for relief from judgment is filed, what are the hearings that will be conducted by
the court?
A: In proceedings for relief from judgment, there may be two (2) hearings, to wit:

J.) a hearing to determine whether the judgment or order complained of should be set aside, and
K.) if the decision thereon is in the affirmative, a hearing on the merits of the principal case.

So, the FIRST HEARING is to determine whether the petition should be granted or not – is the petition meritorious or
not? Was there FAME? Is there affidavit of merit? Is the affidavit proper? Is the petition filed within the period allowed by
the law or not? Now, if the petition is denied that is the end of the story. Wala na.

Now, if the petition for relief is granted, the judgment will be set aside as if it never existed. Then we will now try the
case all over again as if a motion for new trial has been filed. That is the second hearing. The SECOND HEARING is the
trial on the merits or a trial de novo.

Now, somebody was commenting, “Ito bang petition for relief parang appeal din? Is this similar to appeal?” The
answer is NO. In the first place, there is no appeal here. Kaya nga the judgment has become final and executory because
there was no appeal. Now, in an appeal, for example: Natalo ka sa kaso. When you appeal and you win, the decision will
be overturned. From losing, you become the winner. That is the effect of appeal.
 But in petition for relief, you are not asking the court to change its decision. When a petition for relief from judgment is
granted, the decision against you will be set aside as if it was never rendered and we will try the case all over again. In a
petition for relief, the court has no power to change its decision because it has already become final and executory. But its
power under Rule 38 is to set it aside as if it was never rendered and conduct a new trial as if a motion for new trial has been
filed. So please do not confuse Rule 38 with the remedy of appeal.

Sec. 7. Procedure where the denial of an appeal is set aside. Where

the denial of an appeal is set aside, the lower court shall be required
to give due course to the appeal and to elevate the record of the
appealed case as if a timely and proper appeal had been made. (7a)

This is a continuation of Section 2 – what can be questioned in Rule 38 is not only a judgment but also an order, such
as an order denying an appeal.

Q: Can I file a petition for relief from the denial of an appeal?

A: YES.

Q: And if my petition for relief from the order denying the appeal is granted, what will happen?
A: According to Section 7, the court will now grant the appeal and allow the appeal to proceed as if it was filed on time.
Meaning, the judgment will not be set aside but I will be given the right to appeal if the failure to file an appeal as due to
FAME.

-oOo-
 Rule 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS

Rule 39 is on the subject of Execution, Satisfaction and Effect of Judgments. This is the longest rule in the study of
Civil Procedure. Take note that there are 48 Sections. Let us first review the fundamentals.

Q: Define execution.
A: EXECUTION is the remedy provided by law for the enforcement of a judgment. (21 Am. Jur. 18) It is the fruit and
the end of the suit and is very aptly called the life of the law (PAL vs. Court of Appeals, 181 SCRA 557).

It would be useless if there is judgment but you cannot enforce the same. When you receive the decision of court in
your favor, what will you do with that? If there is no way to enforce that decision, i-laminate mo na lang yan. Useless eh!

Q: Who will enforce the judgment?

A: The very same court which rendered the judgment.

Q: How is execution generally done?

A: It is generally done by filing a motion for execution by the prevailing party and the court will then issue an order of
execution, which will be followed with a writ of execution, and the sheriff will enforce the judgment.

So, we file a motion in court after the judgment has become final and executory.

Q: How can the court issue the order when it has already lost jurisdiction over the case? because from what we have
learned here is that, one of the effects of the finality of judgment is that the court loses jurisdiction over the case. And when
the court loses jurisdiction, it can no longer act on the case. So, how can it still issue orders in that case when actually, once
the judgment becomes final and executory, the trial court loses jurisdiction over the case and it can no longer act in that
case?
A: What is meant by that statement is that, the court can no longer change the judgment. That is why new trial and
reconsideration is not anymore available in this stage. The judgment is beyond the power of the court to change or alter.
BUT definitely the court can act on that case for the purpose of enforcing its judgment because it is absurd to claim that
a trial court has the power to try and hear a case but once the judgment has already become final, it has no more power to
enforce it. If you will really describe jurisdiction in its complete aspect, we can say jurisdiction is “the power of the court to
act on the case, to try, to decide and to enforce its judgment.” That would be more complete. Because enforcement is part
of the court's jurisdiction.

Q: Against whom shall the execution issue?

A: Generally, execution can issue only against a (losing) party to the case and not against one who is a complete
stranger because majority of judgments are in personam. They are only enforceable against the parties themselves or their
successors-in-interest – people who derive their rights from him. And a judgement can never be enforced against a complete
stranger who never had his day in court. (Cruzcosa vs. Concepcion, 101 Phil. 146; Castañeda vs. De Leon, 55 O.G. 625,
Jan. 26, 1959; Bacolod vs. Enriquez, 55 O.G. 10545, Dec. 21, 1959)

Q: What portion in the decision is normally the subject of execution ?

A: It is the dispositive portion – the “WHEREFORE…” – that is going to be enforced. (Robles vs. Timario, 58 O.G.
1507, Feb. 19, 1962)
CLASSES OF EXECUTION

Q: What are the classes of execution under the law?

A: The following:

I. As to their nature:
1.) COMPULSORY execution – known as Execution as a Matter of Right (Section 1)
2.) DISCRETIONARY execution – known as Execution Pending Appeal (Section 2)

II. As to how it is enforced (Section 6):

 1.) EXECUTION BY MOTION
2.) EXECUTION BY INDEPENDENT ACTION

COMPULSORY EXECUTION
(Execution as a matter of right)

EXECUTION AS A MATTER OF RIGHT;

FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL

Section 1. Execution upon judgments or final orders. – Execution

shall issue as a matter of right, on motion, upon a judgment or order
that disposes of the action or proceeding upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified true
copies of the judgment or judgments or final order or orders sought to
be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of examination.

Q: What are the conditions for compulsory execution?

A: The following are the conditions:
1.) FIRST CONDITION: If a judgment has disposed already of the action or proceeding then it can be executed ;
2.) SECOND CONDITION: The period to appeal has expired and no appeal has been filed/taken from the
judgment.

Under the first condition, if a judgment has disposed already of the action or proceeding then it can be executed
because if the judgment or order has not yet disposed of the action or proceeding, that is called an interlocutory judgment or
order.

One of the effects of finality of a judgment under Rule 36 is that the prevailing party is entitled to have the judgment
executed as a matter of right. And it is the ministerial duty of the court to execute its own judgment. So once the judgment
has become final, all that the winner or prevailing party has to do is to file an action in court for execution, the court has to
issue.

When the law says it is a matter of right upon a judgment or order that disposes the action or proceeding, it means that
after the judgment was rendered, there is nothing more for the court to do because its job is over. Therefore, if there is
something more that the court can do, as a rule, you cannot execute. That is why conditional judgments, incomplete
judgments cannot be executed.

Under the second condition, we must wait for the period to appeal to expire before we can move for execution. So, if
the period to appeal has not yet expired, then we cannot execute the judgment. As corollary to that rule we have this
question:

Q: May the court refuse to execute a judgment on the ground that the judgement was wrong or erroneous?
A: NO, because it is a matter of and the issuance of the corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which is compellable by mandamus. (Ebero vs. Cañizares, 79 Phil.
152) The principle is: No matter how erroneous a judgment may be, so long as the lower court had jurisdiction over the
parties and the subject matter in litigation, (in short the judgment is valid), the said judgment is enforceable by execution
once it becomes final and executory. The error also becomes final. If it is erroneous, the remedy is to appeal, otherwise the
error becomes final as well.

In execution, if you are not careful, there are lawyers who are very good in thwarting an execution where a series of
maneuvers are utilized - we can still be delayed by questioning this and that and sometimes courts are unwitting
accomplices. That is why in the 1994 of
 PELAYO vs. COURT OF APPEALS
230 SCRA 606

HELD: “We have time and again ruled that courts should never allow themselves to be a party
to maneuvers intended to delay the execution of final decisions. They must nip in the bud any
dilatory maneuver calculated to defeat or frustrate the ends of justice, fair play and prompt
implementation of final and executory judgment. Litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of justice that once a judgment has
become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the
verdict. Courts must therefore guard against any scheme calculated to bring about that result.
Constituted as they are to put an end to controversies, courts should frown upon any attempt to
prolong them.”

GENERAL RULE: Judgment is enforceable by execution once it becomes final and executory.
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)

1. When there has been a change in the situation of the parties, which makes the execution inequitable;
2. When it appears that the controversy has never been submitted to the judgment of the court;
3. When the judgment was novated by subsequent agreement of the parties;
4. When it appears that the writ of execution has been improvidently issued;
5. When the writ of execution is defective in substance;
6. When the writ of execution is issued against the wrong party; and
7. When the judgment debt has been paid or otherwise satisfied.

[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION OF THE PARTIES
WHICH MAKE THE EXECUTION INEQUITABLE. (Supervening Fact Doctrine)

One of the most important exceptions is the first one: When there has been a change in the situation of the parties
which make the execution inequitable. Meaning, from the time na nagkaroon ng final judgment up to the present, there has
been a change in the situation of the parties so that if we will execute, the judgment becomes inequitable already. So, this is
just another way of saying that there has been a SUPERVENING EVENT that happened which makes execution
inequitable.

EXAMPLE: There was a case where A filed a case to eject B from his property and B lost the case and there was a
judgment ordering him to vacate the property of A. But while the case was going on, A mortgaged his property to the bank.
In the meantime, he failed to pay his loan and the bank foreclosed the mortgage. So the property was sold at public auction.
And at the auction sale, B, the one occupying it, bought the property. The owner now is B. But there is a final judgment
ejecting him. Now, shall we insist on the judgment ejecting B? No because B is now the owner. The fact that B became the
owner is a supervening event.

PHIL. VETERANS BANK (PVB) vs. IAC

178 SCRA 645

NOTE: There was a time before that the PVB was closed for 5 to 6 years because I think they have some
problems. So the Central Bank has to take over. The Central Bank has ordered to stop the operation – placed
under receivership, the Central Bank will control. Now under the Central Bank Law, once the Central Bank
takes over the control of a private bank, all its assets has to be preserved. No assets will be sold or disposed of.
FACTS: There was somebody who sued PVB, and PVB lost. So there was a judgment which became
final. And the winner asked the court to execute. Practically, you have to levy on the property of the bank. In
the meantime, the PVB was placed under receivership, where under the law, it cannot be disposed of because it
is under the control of the Central Bank.

ISSUE: Can the prevailing party insist on the enforcement of the judgment and get and levy the property
of the PVB?
 HELD: NO. The placement of the bank under receivership is a SUPERVENING EVENT. “Once a
decision has become final and executory, it is the ministerial duty of the court to order its execution,
admits certain exceptions. The fact that petitioner is placed under receivership is a supervening
event that renders a judgment notwithstanding its finality unenforceable by attachment or
execution.”

SAMPAGUITA GARMENTS CORP. vs. NLRC

233 SCRA 260

FACT: An employee was terminated by his employer on the ground of theft. He stole company
property. The management filed also a case of theft against the employee. But in the meantime the
employee also filed a labor case against the employer for illegal dismissal and prayed for
reinstatement with back wages. After hearing, the NLRC ruled that there was illegal termination
and ordered the reinstatement of the employee and payment of backwages. The NLRC decision
became final. In the meantime, the accused was convicted in the criminal case for theft and ordered
to go to prison.

ISSUE: What happens now to the final judgment of the NLRC reinstating the employee?

HELD: “An employee’s conviction for theft, which was affirmed by the RTC and the CA, is a
SUPERVENING CAUSE that renders unjust and inequitable the NLRC decision mandating the
employee’s reinstatement with backwages.”

Take note however that for the supervening event to apply, the supervening event must happen after the judgment has
become final and executory. Not that the supervening event happened while the case was going on. If the case is going on
and something happened which you believe would make the decision against you unfair, your duty is to bring it to the
attention of the court so that the court deciding the case would take that into consideration. In the case of

VALENSONA vs. COURT OF APPEALS

226 SCRA 36

HELD: “While the rule is that a stay of execution of a final judgment may be authorized if
necessary to accomplish the ends of justice, as for instance, where there has been a change in the
situation of the parties which makes such execution inequitable, nevertheless the said rule cannot be
invoked when the supposed change in the circumstances of the parties took place while the case was
pending, for the reason that there was then no excuse for not bringing to the attention of the court
the fact or circumstance that affects the outcome of the case.”

The ruling in VALENZOLA was reiterated in

ABOITIZ vs. TRAJANO

278 SCRA 387 [1997]

HELD: “We are of course well aware of the rule authorizing the court to modify or alter a judgment even
after the same has become executory, whenever circumstances transpire rendering its execution unjust and
inequitable. However, this rule, we must emphasize, applies only to cases where the facts or circumstances
authorizing such modification or alteration transpired after the judgment has become final executory.”

[3] WHEN THE JUDGMENT WAS NOVATED BY SUBSEQUENT AGREEMENT.

 QUESTION: Can the parties enter into a compromise agreement when there is already a decision?
ANSWER: YES. Compromise agreement is welcome anytime – before the case is filed, while the case is going on,
while the case is on appeal.

Q: Now suppose there is a decision in my favor against you and then you approach me and say, “Pwede ba pag-usapan
na lang natin ito?” “Sige okay.” Then we arrive at another agreement which we signed, where the agreement is different
from the decision in my favor. Can it be done?
A: Yes, I can waive my rights under the judgment. There is now a new agreement between us.

Q: Can I execute on the original judgment?

A: No more, because the new agreement novated the judgment. Take note that in case of novation, the new obligation
must be totally incompatible with the first obligation.

A related question:
Q: Can one court by injunction or restraining order stop the execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to interference.
EXCEPTIONS:(when the enforcement of a final judgment may be stopped by way of injunction)

1.) Rule 38, Section 5:

Rule 38, Section 5: Preliminary injunction pending proceedings. –

The court in which the petition is filed, may grant such preliminary
injunction as may be necessary for the preservation of the rights of
the parties, upon the filing by the petitioner of a bond in favor of
the adverse party, conditioned that if the petition is dismissed or the
petitioner fails on the trial of the case upon the merits, he will pay
the adverse party all damages and costs that may be awarded to him by
reason of the issuance of such injunction or the other proceedings
following the petition; but such injunction shall not operate to
discharge or extinguish any lien which the adverse party may have
acquired upon the property of the petitioner.

In effect, there is a final and executory judgment but the court will issue an injunction to stop this enforcement
because of the pendency of a petition for relief from judgment.

2.) When there is an action for annulment of judgment of the RTC filed in the CA.

The CA may issue a writ of preliminary injunction – annulment of judgment, certiorari, or

prohibition cases where the CA will issue a preliminary injunction to stop the RTC from enforcing its
judgment pending the resolution of whether its judgment was rendered in excess or without
jurisdiction- annulment of judgement, certiorari, or prohibition cases where the CA will issue a
preliminary injunction to stop the RTC from enforcing its judgement pending the resolution of whether
its judgement was rendered in excess or without jurisdiction.

So, those are the exceptions.

EXECUTION AS A MATTER OF RIGHT;

SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT

Q: Is there any other instances where a judgement maybe executed as a matter of right?
A: YES, when the losing party appealed the RTC decision to the CA and the CA affirmed the decision of the RTC.
Kung may appeal, the judgment is not final, you cannot execute. The case is now in the CA, the CA decided in your favor,
the RTC judgment was affirmed and the CA decision has also become final and executory. So you can now execute.

Q: How do you execute in that situation?

A: That is now covered by the second and third paragraphs of Section 1:
 If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified true
copies of the judgment or judgments or final order or orders sought to
be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution.

Now the usual procedure no, when you win in the RTC and the losing party appeals, the records of the case will be
brought to the CA. Later, there will be a CA decision: The judgment of the RTC of Davao City is affirmed in toto. Now you
have to wait for the CA judgment to become final because that may be appealed further to the SC. If the judgment becomes
final, the clerk of court will make an entry of final judgment of the CA decision. Normally after that, the records from the
CA will be returned to Davao. It will be sent back to the court of origin. Once the record is back, the RTC is supposed to tell
you, the records are here. That is the time you file a motion for execution. You will file it in the RTC.

But sometimes, it takes months for the CA to return the records. That is the trouble with the CA. It takes them several
months, when the case is appealed, before they tell you that the record is here.

In the PRESENT rules, this is taken from the SC Circular 24-94 which took effect in 1994, hindi na kailangan hintayin
ang records na bumalik dito. Just get a certified copy of the CA decision, get a copy of the entry of final judgment of the
CA. You just attach a copy of the CA judgment and a certificate from the CA clerk of court that it is already final and
executory - meaning, that there is already entry of final judgment. This is much faster than waiting for the records to be
returned.

The first paragraph in Section 1 normally deals with judgment usually becoming final and executory in the RTC. The
rest of the paragraph deals with appeal which affirmed the decision of the RTC. So that is the procedure for execution – both
cases, execution is a matter of right because judgment is final and executory.

The alternative which is the last paragraph, in the interest of justice, you can file also your motion for execution in the
CA and the CA will direct the RTC to issue the writ of execution.

EXECUTION AS A MATTER OF RIGHT;

THIRD INSTANCE: CASES UNDER SECTION 4

Q: Is there another instance when execution becomes a matter of right?

A: This is the third instance found in Section 4:

Sec. 4. Judgments not stayed by appeal. - Judgments in action for

injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless otherwise ordered by the
trial court. On appeal therefrom, the appellate court in its discretion
may make an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or protection of
the rights of the adverse party. (4a)

GENERAL RULE: If there is an appeal, the judgment will be stayed.

EXCEPTIONS (Under Section 4): Judgments in actions for injunction, receivership, accounting, support, judgment
declared to be immediately executory.

So, actions for injunction, receivership, accounting, support. So for example: there’s an injunction from the court:
“The defendant is enjoined from trespassing on plaintiff’s land.” Then you appealed. So, the decision is not final. Now, if
the judgment is not yet final, what will you do in the meantime. So, you’ll say; “I’ll just continue to trespass because
anyway the judgment is not yet final.” Ah hindi yan pwede. Even if the judgment is not yet final, even if it is on appeal, you
have to honor the injunction. So, in effect, it is a matter of right.

Another Example: An order directing you to render an accounting. Take the case of recovery of possession of land with
accounting of the income that you received. After trial, “Okey, Defendant, you turn over the possession of the property to
the plaintiff and you render an accounting.” Appeal ka. Pag appeal mo, there must be an accounting in the meantime.

So, if there is a judgment for an action for support, you must comply with the judgment even before it becomes final.
So, the amendment now includes support and this phrase, “such other judgments as are now or may hereafter be declared
to be immediately executory.” Any judgment which is declared by law to be immediately executory has to be enforced even
before it becomes final and executory even if there is an appeal.

Q: Give an example of a law which declares a judgement to be immediately executory?

A: The best example would be the Summary Procedure – where a decision of the MTC in a civil case is appealed to the
RTC, the decision of the RTC is immediately executory even if we go to the CA. It has to be executed unless the appellate
court will stop the execution in the meantime.

EXECUTION AS A MATTER OF RIGHT;

FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES

Q: Is there another instance when execution becomes a matter of right?

A: YES, under Rule 70 – a judgment of the MTC in a forcible entry or unlawful detainer case is immediately executory
(i.e. subject to immediate execution) even if it is not yet final and executory.

TO SUMMARIZE:
Q: When is execution a matter of right?
A: In the following:
1.) Section 1, paragraph 1 – no appeal; judgment becomes final;
2.) Section 1, paragraph 2 – there is an appeal; once the CA judgment becomes final;
3.) Section 4 – Judgment in an action for injunction, receivership, accounting, support, judgment declared to be
immediately executory; and
4.) Rule 70 – Judgments in Forcible Entry and Unlawful Detainer cases.

DISCRETIONARY EXECUTION
(Execution pending appeal)

Section 2. Discretionary execution. –

(a) Execution of a judgment or final order pending appeal. – On
motion of the prevailing party with notice to the adverse party filed
in the trial court while it has jurisdiction over the case and is in
the possession of either the original record or the record on appeal,
as the case may be, at the time of the filing of such motion, said
court may, in its discretion, order the execution of a judgment or
final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments. - A
several, separate or partial judgment may be executed under the same
terms and conditions as execution of a judgment or final order pending
appeal.

We’ll now go to the second type of execution - discretionary or execution pending appeal. Discretionary, meaning, the
court may or may not order the execution.

Here, the prevailing party files a motion for execution within the 15 days period. So in other words, the
judgment is not yet final and executory, normally, within the period to appeal.
 Q: Normally, can you file a motion for execution within the period to appeal?
A: As a rule, you cannot because it is not yet final. But by EXCEPTION, Section 2 allows you, provided,
according to the last paragraph, discretionary execution may only issue upon ‘good reason’ to be stated in the
special order after due hearing.

Q: Therefore, what are the requisites for discretionary execution?

A: The following are the requisites for discretionary execution:
1.) There must be a motion filed by the prevailing party;
2.) There must be a notice of the motion given to the adverse party; and
3.) There must be good reasons to execute to be stated in a special order after due hearing.

Why discretionary? Because the court may or may not grant the execution depending on whether there is a good reason
or no good reason. Unlike in Section 1, when the judgment has become final and executory, you do not have to cite any
good reason. The only reason for the execution is that the judgment becomes final and executory. But in the case of
execution pending appeal, you must justify it – the party must convince the court to grant the execution. And remember
according to the SC, execution under Section 2 is not the general rule, that is the exception.

“The requirement of good reason is important and must not be overlooked, because if the judgment is executed and, on
appeal, the same is reversed, although there are provisions for restitution, oftentimes damages may arise which cannot be
fully compensated. Accordingly, execution should be granted only when these considerations are clearly outweighed by
superior circumstances demanding urgency, and the above provision requires a statement of those circumstances as a
security for their existence.” (City of Bacolod vs. Enriquez, 101 Phil. 644)

It is even a misnomer – execution pending appeal. For all you know, the losing party may or may not appeal. It is
actually called execution pending appeal because you are filing the motion within the period to appeal.

Q: What will happen if there are no good reasons?

A: The writ of execution is void because it does not state why you are executing a judgment. (AFWU vs. Estipona, L-
17934, Dec. 28, 1961) And remember that execution pending appeal is the exception rather than the rule. And there is a
possibility that the judgment in your favor will be reversed on appeal.

Q: Suppose we will execute the judgment pending appeal and the appeal will proceed then it will be reversed, what will
happen then?
A: If that happens, then there is Section 5 – eh di, magsaulian tayo if it is reversed totally, partially, or annulled on
appeal or otherwise. There will be MUTUAL RESTITUTION. That is the remedy under Section 5. But the trouble is ang
hirap man ng saulian, eh. There could not be a 100% perfect restitution. That is the same asking the question, how can you
unscramble an unscrambled egg? This is one reason why execution pending appeal is not favored.

Section 5. Effect of reversal of executed judgment. - Where the

executed judgment is reversed totally or partially, or annulled, on
appeal or otherwise, the trial court, may, on motion, issue such orders
and justice may warrant under the circumstances (5a)

Q: Give examples of GOOD REASONS which would justify execution pending appeal.
A: Following are example of good reasons:

1.) When there is danger of the judgment becoming INEFFECTUAL. (Scottish Union vs. Macadaeg, 91 Phil. 891);

In this case of MACADAEG, the plaintiff sued a foreign corporation doing business in the Philippines. So it
has assets no? The plaintiff sued the foreign company and he won, there was award, but hindi pa final. In the
meantime, plaintiff learned the foreign company is going to stop completely its business in the Philippines and they
are going to send back all their assets abroad. Sabi ng na plaintiff: “Aba delikado ako. Suppose after the appeal, I
still win and I will start running after the defendant na wala naman dito. It has no more office, no operations, no
assets; but in the meantime meron pa”? So the plaintiff filed a motion for execution pending appeal. If we will
wait for the judgment to become final, by that time the judgment will become ineffectual.
2.) OLD AGE; There was a case an old woman files a case against somebody to recover her land from the defendant
which the latter has deprived her of the property for years. The defendant enjoyed the property and the fruits. After
years of litigation she won, she was about 80. And then mag-aappeal pa yong kalaban. The old woman filed a
motion in court asking for immediate execution even if the judgment is not yet final on the argument that “I have
been deprived for years of the possession and of the property; and there is a probable appeal which may take
another couple of years. By the time I win the case on appeal, I may already be dead. I have not enjoyed the
property and the fruits.” The SC said, all right that is a good reason.

3.) Where the appeal is for the purpose of DELAY;

Q: How about the argument that the intended appeal is dilatory? It is only intended to prolong the supposed
execution and therefore the losing party has a chance to win the appeal. Is that a good ground for execution
pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300) and JAVELLANA vs. QUERUBIN (July 30,
1966) the SC said that, that is a good reason – when the appeal is interposed for delay.

However, in the case of AQUINO vs. SANTIAGO (161 SCRA 570) the SC said that it is not a ground because
it is as if the trial court is already acting like the CA. It is only the CA which has the power to claim that the appeal
is without merit. That’s another reasoning.

But in the case of HOME INSURANCE CO. vs. CA (184 SCRA 318), the SC ruled that, that would be a good
reason again specially that there are many factors to show the inequity of not executing the judgment immediately
(if coupled with other reason). That’s why in the case of

HOME INSURANCE CO. vs. COURT OF APPEALS

184 SCRA 318

HELD: “A good and sufficient reason upon which to issue execution of the judgment pending appeal
is when the appeal is being taken for the purpose of delay. While it is true that it is not for the trial court to
say that the appeal may not prosper or that it is frivolous [so, the SC is aware of these pronouncements],
there are circumstances which may serve as cogent bases for arriving at such a conclusion.” Dean I: An
example where the trial court maybe justified in saying that the appeal is dilatory is in default judgements
where there is no evidence for the defendant. And then the defendant appeals. Now what is the chance of
reversal when all the evidence is for the plaintiff? The possibility that the judgment will be reversed is
almost zero (0). Therefore the court can rule that the appeal is dilatory and then order the execution of the
judgment pending appeal upon motion of the plaintiff.
The SC continues: “Another vital factor which led trial court to allow execution pending appeal was
the pendency of the case for more than 17 years so that the purchasing power of the peso has undeniably
declined. Petitioner should be given relief before it is too late.”

PB COM. vs. COURT OF APPEALS

279 SCRA 364 [Sept. 23, 1997]

HELD: “It is significant to stress that private respondent Falcon is a juridical entity and not a natural
person. Even assuming that it was indeed in financial distress and on the verge of facing civil or even
criminal suits, the immediate execution of a judgment in its favor pending appeal cannot be justified as
Falcon's situation may not be likened to a case of a natural person who may be ill or may be of advanced
age.”
“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. Hence, it is not within competence of the trial court, in
resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the
same as its basis for finding good reason to grant the motion. Only an appellate court can appreciate the
dilatory intent of an appeal as an additional good reason in upholding an order for execution pending
appeal which may have been issued by the trial court for other good reasons, or in cases where the motion
for execution pending appeal is filed with the appellate court in accordance with Section 2, paragraph (a),
 Rule 39 of the 1997 Rules of Court.”

4.) When the successful party files a BOND;

Q: Here is a controversial question: How about an instance when the winning party offers to put up
a bond. He says; “Alright, I am asking for an order pending appeal. I will put up a bond to answer for any
damages that the defendant may suffer in the event that he wins the appeal.”
A: In the old case of HACIENDA NAVARRA vs. LABRADOR (65 Phil 635), the SC simply implied that
there is a good ground. HOWEVER, the SC denied that implication in later cases. Among which were the cases of
ROXAS vs. CA (157 SCRA 370) and PNB vs. PUNO, (170 SCRA 229) and PHOTOQUICK INC. vs. LAPENA,
JR. (195 SCRA 66).

PHILIPPINE NATIONAL BANK vs. PUNO

170 SCRA 229

HELD: “The mere filing of a bond would not entitle the prevailing party to an execution pending
appeal. Whatever doubts may have been generated by early decisions involving this matter, starting with
Hacienda Navarra, Inc. vs. Labrador, et al., have been clarified in Roxas vs. Court of Appeals, et al.”
“To consider the mere posting of a bond a ‘good reason’ would precisely make immediate execution
of a judgment pending appeal ROUTINARY, the rule rather than the exception. Judgments would be
executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do
was to post a bond to answer for the damages that might result therefrom. This is a situation, to repeat,
neither contemplated nor intended by law.”

So, we might say that the posting of a bond would be an ADDITIONAL GOOD REASON but it is NOT BY
ITSELF a good reason. So, the case of HACIENDA NAVARRA VS. LABRADOR has been misinterpreted.

The second paragraph of Section 2 [a]:

After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.

Q: Where can you file your motion for execution pending appeal?
A: It DEPENDS:
1.) TRIAL COURT - while it has jurisdiction over the case and the court is still in possession of the records
of the case. Meaning: (1.) the judgment has not yet become final - it is still within the 15 day period, and
(2.) the court still is in possession of the records of the case.
2.) APPELLATE COURT – after the trial court has already lost jurisdiction, the motion for execution pending
appeal may already be filed in the appellate court.

So, if the RTC has no more jurisdiction, then doon ka na mag-file ng motion sa CA.

Q: When will the court lose jurisdiction over the case ?

A: With regard to execution pending appeal, you can correlate this with RULE 41, SECTION 9 , to wit:

Rule 41, Section 9. Perfection of appeal; effect thereof. - A

party’s appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to his
with respect to the subject matter thereof upon approval of the record
of appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records on
 appeal filed in due time and the expiration of the time to appeal of
the other parties.
In either case, prior to the transmittal of the original record of
the record on appeal, the court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in accordance with
Section 2 of Rule 39, and allow withdrawal of the appeal. (9a)

The phrase “order execution pending appeal in accordance with Section 2 of Rule 39” was not there in the Old Rules.
Now, that has been added and it jives with Section 2 paragraph (a). Now, for as long as the motion is filed, before the court
loses jurisdiction and provided that the records are still with the trial court , even if the appeal is subsequently perfected, it
can still act on the motion for execution pending appeal.

Now, let us go back to Section 2, Rule 39 on execution of several, separate or partial judgments – meaning, there are
several judgments arising from the same case:

Rule 39, Section 2 [b]:

b) Execution of several, separate or partial judgments. - A several,

separate or partial judgment may be executed under the same terms and
conditions as execution of a judgment or final order pending appeal.
(2a)

Let us correlate this provision with Rule 36, Sections 4 and 5 AND Rule 37, section 8:

RULE 36, Sec. 4. Several judgments. - In an action against several

defendants, the court may, when a several judgment is proper, render
judgment against one or more of them, leaving the action to proceed
against the others. (4)

RULE 36, Sec. 5. Separate judgments. - When more than one claim
for relief is presented in an action, the court, at any stage, upon a
determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the
subject matter of the claim, may render a separate judgment disposing
of such claim. The judgment shall terminate the action with respect to
the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered, the court by
order may stay its enforcement until the rendition of a subsequent
judgment or judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose favor the
judgment is rendered. (5a)

RULE 37, Sec. 8. Effect of order for partial new trial. - When less
than all of the issues are ordered retried, the court may either enter
a judgment or final order as to the rest, or stay the enforcement of
such judgment or final order until after the new trial. (7a)

Q: Can there be two or more judgments arising out of one case?

A: YES. (Rule 36, Sections 4 and 5)

Q: Can the first judgment be immediately executed while waiting for rendition of the second judgment?
A: Generally, the court will decide. If the court agrees, there has to be a good reason.

There is one interesting case on execution pending appeal – the case of

 RCPI vs. LANTIN
134 SCRA 395

FACTS: The case of Lantin was an action for damages. The court awarded the plaintiff said damages. So,
the plaintiff moved for discretionary execution.

ISSUE: Whether or not execution pending appeal is proper in a judgment for damages.

HELD: The execution pending appeal may be proper for enforcing the collection of ACTUAL
DAMAGES, but it is not proper to enforce the payment of moral or exemplary damages. So, this is where the
SC distinguished.
Why is it that execution pending appeal is proper for the collection of actual damages? In actual or
compensatory damages, the amount is certain. Normally, there are receipts. The amount is based on evidence.
But the award for moral or exemplary damages is uncertain and indefinite. It is based on abstract factors
like sleepless nights, besmirched reputation. It is hard to quantify it based on evidence.
The SC said, in many cases the trial court awards a huge amount for exemplary damages but on appeal,
the CA refused to award or totally eliminate the award. So, if the award of moral or exemplary damages is not
certain or fixed, the execution pending appeal may not be proper to enforce its execution.

Sec. 3. Stay of discretionary execution. - Discretionary execution

issued under the preceding section may be stayed upon approval by the
proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part. The bond thus given may be proceeded
against on motion with notice to the surety. (3a)

Q: Now, assuming that there is an execution pending appeal in favor of the plaintiff under Section 2 and I am the
defendant, is there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now ask the court to fix a supersedeas bond to stop the
execution pending appeal. The bond will answer for any damages that the plaintiff may suffer if the defendant’s appeal is
not meritorious.

And once the supersedeas bond is filed, the court has to withdraw the execution pending appeal. Supersedeas bond
under Section 3 is conditioned upon the performance of the judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part.

GENERAL RULE: When a defendant puts up a supersedeas bond, the court shall recall the execution pending appeal
because discretionary execution is the exception rather than the general rule.
EXCEPTION: Notwithstanding the filing of the supersedeas bond by the appellant, execution pending appeal may still
be granted by the court IF THERE ARE SPECIAL AND COMPELLING REASONS justifying the same outweighing the
security offered by the supersedeas bond. (De Leon vs. Soriano, 95 Phil. 806)

EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may be executed pending appeal even
notwithstanding the filing of a supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil. 806) Support is something
which should not be delayed. What is the use of the supersedeas bond when the need of the plaintiff is today and not 5 or 6
weeks from now? [aber?]

Alright, let us go to the next important classification of execution. The other classification as to the manner of
enforcement could be by MOTION or by INDEPENDENT ACTION.

EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION

Sec. 6. Execution by motion or by independent action. - A final and

executory judgment or order may be executed on motion within five (5)
 years from the date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be enforced by motion
within five (5) years from the date of its entry and thereafter by
action before it is barred by the statute of limitations. (6a)

Q: How do you execute a judgment?

A: You file a motion for execution before the same court which rendered the judgment.

Q: How is the execution enforced?

A: There are two 2 modes under Section 6:
1.) Execution by motion – within five (5) years from the date of its entry; and
2.) Execution by independent action – within five (5) to ten (10) years.

Execution BY MOTION means that the prevailing party shall ask the court to issue a writ of execution by simply filing
a motion in the same case.

EXAMPLE: I am the plaintiff and I have a judgment here against the defendant. I do not know of any assets of the
defendant because the defendant for the meantime is as poor as a rat. But after a certain period of time he becomes a
wealthy man. All I have to do is to file a motion and the court will order the execution, provided the motion is filed within 5
years from the date of the entry of judgment. The date of the entry of judgment and the date of finality are the same (Rule
36, Section 2).

Q: Suppose the defendant becomes rich after 5 years, can I still file a motion to execute?
A: No more, because execution by motion must be filed within 5 years only from the date of its entry. If the judgment
was not executed within the 5-year period, the judgment has become dormant.

Q: What is a dormant judgment?

A: A DORMANT judgment is one that was not executed within 5 years.

Q: So, how can that (dormant) judgment be awaken?

A: The procedure is to file another civil action. A civil action for revival of judgment. That is what you call
EXECUTION BY INDEPENDENT ACTION which must be filed before it is barred by the statute of limitations. The
second sentence states, “after the lapse of such time (which is 5 years) and before it is barred by the statute of limitations, a
judgment may be enforced by action.”

Q: When will it be barred by the statute of limitations ?

A: According to Article 1144 of the New Civil Code, the judgment may be enforced only within ten (10) years.

Therefore, since the judgment will be enforced by motion for five (5) years, then after the fifth year, it will be enforced
by independent action. So, I will start the civil action for revival of judgment between or after the 5th year but before the
10th year. So, that is what we have to remember.

Q: Do you mean to tell me that I have to file the case all over again, practically repeating what happened 5 years ago?
A: NO, because the judgment in the independent action is a judgment reviving the first judgment.

For example, more than 5 years ago I sued you to collect on a promissory note and you alleged payment, and you lost
and the court said that you are liable to me. On the seventh year when I revived that judgment, my rights are no longer
based or derived on the promissory note but on such judgment. But you can still invoke other defenses such as lack of
jurisdiction, fraud. But you cannot question the correctness of the original judgment because that is already res adjudicata.
You are entitled to put up any defense that you have against me provided that you cannot question the correctness of the
original judgment. That is the rule.

Q: Discuss briefly the nature of the action for enforcement of a dormant judgment.
A: The action for enforcement of a dormant judgment is an ordinary civil action the object of which is two-fold,
namely, (a) to revive the dormant judgment, and (b) to execute the judgment reviving it, if it grants the plaintiff any relief.
Hence, the rights of the judgment-creditor depend upon the second judgment. Being an ordinary civil action, it is subject to
all defenses, objections and counterclaims which the judgment-debtor may have except that no inquiry can be made as to
the merits of the first judgment. Therefore, defenses that do not go to the merits of the first judgment, such as lack of
jurisdiction, collusion, fraud, or prescription, may be set sup by the judgment-debtor. (Cia. Gral. De Tabacos vs. Martinez,
17 Phil. 160; Salvante vs. Ubi Cruz, 88 Phil. 236) [Taken from Remedial Law Reviewer by Nuevas]

Q: Give the exception to the rule on dormant judgment.

A: The only exception is the judgment for support which does not become dormant, nor does it prescribe. You can
execute it anytime even beyond the 5-year period and any unpaid installment may be executed by motion. (Florendo vs.
Organo, 90 Phil. 483) So, even if the judgment is more than 5 years old, the defendant defaulted on the seventh year, you
just file a motion to collect that judgment.

Q: Suppose the judgment was executed and the property of the defendant was levied on the 4th year, and the next stage
is the auction sale.
A: The SC said the auction sale must also be WITHIN 10 years. So, even if the property was levied, the auction sale
must be within 10 years. Not only the levy of the property must be done within 10 years but also the including the auction
sale, otherwise, any auction sale done beyond 10 years in null and void.

Now, look at the last sentence in Section 6: “The revived judgment may also be enforced by motion within five (5) years
from the date of its entry and thereafter by action before it is barred by the statute of limitations.”

For example, I have here a judgment nine (9) years ago. I want to enforce it by action to revive judgment. You mean to
tell me that the revived judgment is good for another ten (10) years? Another 5 years for motion to a right of action and then
I can still revive it within 10 years?

Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the SC said that the period applies all over again
from the finality of the revived judgment. So, you have another ten (10) years. However, this principle is abandoned in the
later case of PNB vs. VELOSO (32 SCRA 266), the SC said that the original period is only computed from the date of the
original judgment.

And of course, because of those 2 conflicting cases, the court resolved those issues in the case of LUZON SURETY
CO. vs. IAC (151 SCRA 652) where the SC said, the later doctrine of VELOSO prevails. So, with that ruling, the 10-year
period applies only from the date of the original judgment, but you cannot say that once it is revived, you have another 10
years.

But now, you look at the new law: “The revived judgment may also be enforced by motion within five (5) years from the
date of its entry and thereafter by action before it is barred by the statute of limitations.” Ano yan? That is a revival of the
BONDOC ruling! Binalik yung original ruling which is, the revived judgment is good for another 10 years.

So, I repeat, the last sentence has resurrected the ruling in the case of PNB vs. BONDOC and superseded again LUZON
vs. IAC. You are entitled to another 10 years from the date of the revived judgment.

ILLUSTRATION:

Example: First judgment became final in 1990. You can enforce that until 2000 by motion (1990-1995) or by
independent action (1995 – 2000). Suppose in 2000, you were able to secure a second judgment reviving the first
judgment, under the new rules, there is another ten years. The first judgment by motion. The next 5 years is by independent
action. So, to illustrate:

1990 1995 2000 2005 2010

5 years 5 years 5 years 5 years

by motion by independent action by motion by independent action

10 years 10 years
Article 1144, Civil Code last sentence of Section 6
 ARCENAS vs. COURT OF APPEALS
299 SCRA 733 (December 4, 1998)

HELD: “The purpose of the action for revival of a judgment is not to modify the original judgment
subject of the action but is merely to give a creditor a new right of enforcement from the date of revival.”
“The rule seeks to protect judgment creditors from wily and unscrupulous debtors who, in order to evade
attachment or execution, cunningly conceal their assets and wait until the statute of limitation sets in.”

Sec. 7. Execution in case of death of party. - In case of the death

of a party, execution may issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee, upon the
application of his executor or administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against his
executor or administrator or successor in interest, if the judgment be
for the recovery of real or personal property, or the enforcement of a
lien thereon;
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the same may be
sold for the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or
administrator for any surplus in his hands. (7a)

This is related to Rule 3, Section 20.

Q: What is the effect of a death of a party on the execution of a judgment?

A: The following:

1.) If it is the obligee (the creditor) will die after he wins the case, his executor or administrator, his legal
representative or his heirs and successors in interest can enforce the judgment. They will be the one to
collect. (paragraph [a])
2.) If it is the defendant (obligor) who dies and there is final judgment which is recovery of real or personal
property, the judgment is executed against the administrator or executor because this is an action which
survives. (paragraph [b]);
3.) Under par. (c), it is the death of the obligor in a money claim. This is related to Rule 3, Section 20.
However, the timing of the death is different. Let us connect these with Rule 3, Sec. 20:

Sec. 20. Action on contractual money claims. - When the action is

for recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which
the action was pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff therein shall
be enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person. (21a)

So, for EXAMPLE: A filed a case against B to collect an unpaid loan. What is the effect to the case if B dies? It will
depend on what stage of the case he dies. If he died before final judgment could be rendered by the court (before entry of
final judgment), there will be a substitution of party and the case will continue until entry of final judgment.
Suppose, there is already entry of final judgment and he dies, it will depend whether there was already a levy on
execution. Meaning, there was already entry of final judgment but before the property is levied. This should not apply in
Rule 39 because Section 7 [c] states that “after execution is levied.”

But my question is no levy. The procedure there is found in the Special Proceedings. The judgment shall be enforced
in the manner provided for by the Rules on claims against the estate of the deceased under Rule 86. And that is also
mentioned in Rule 3, Section 20. It shall be enforced in the manner provided for against the estate.
 Q: Suppose the defendant dies when there is already a levy. What will happen?
A: The auction sale will proceed as scheduled in connection with Section 7 [c] because the law says “ the same may be
sold for the satisfaction of the judgment obligation.” Meaning, the auction sale or the execution sale shall proceed as
scheduled. No more substitution here.

So that question, “What is the effect of the death of a party on a pending civil case” is a question with so many angles –
anong klaseng kaso?; is it one which is personal in nature or not?; if it is not, is it one which survives or one which does
not?; if it does not survive, who died?; the plaintiff or the defendant? – if it is the defendant, did he die before entry of final
judgment?; did he die after entry of final judgment but before there could be levy or execution?; or did he die after levy or
execution? – This last question is answered by Section 7 [c].

Sec. 8. Issuance, form and contents of a writ of execution. - The

writ of execution shall:
(1) issue in the name of the Republic of the Philippines from
the court which granted the motion;
(2) state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and (3) require the
sheriff or other proper officer to whom it is directed to enforce the
writ according to its terms, in the manner hereinafter provided:
(a) If the execution be against the property of the judgment
obligor, to satisfy the judgment, with interest, out of the real or
personal property of such judgment obligor;
(b) If it be against real or personal property in the hands of
personal representatives, heirs, devisees, legatees, tenants, or
trustees of the judgment obligor, to satisfy the judgment, with
interest, out of such property;
(c) If it be for the sale of real or personal property, to sell
such property, describing it, and apply the proceeds in conformity with
the judgment, the material parts of which shall be recited in the writ
of execution.
(d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the same, describing
it, to the party entitled thereto, and to satisfy any costs, damages,
rents, or profits covered by the judgment out of the personal property
of the person against whom it was rendered, and if sufficient personal
property cannot be found, then out of the real property; and
(e) In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages, rents, or profits due
as of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought by
the movant. (8a)

WRIT OF EXECUTION is actually the document which is issued by the court addressed to the sheriff. The writ is
actually the instruction to the sheriff on what he should do. It would depend on what kind of decision – is it an action for
sum of money or is it for recovery of real property? Mimeographed iyan, addressed to the sheriff. These are standard forms
in court.

Now, with respect to Section 8, the changes can be found in paragraph [e] which mandates now that the writ of
execution must state the exact amount to be collected. That is why according to the last sentence of paragraph [e], “for this
purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant.”

Normally, when lawyers file a motion to execute they will just quote the principal, but they do not state the costs or
interests. Now, under the new rule, when you file the motion for execution, you must also state how much is the costs or
interests.
 EXECUTION OF MONEY JUDGMENT

How do you execute judgment for money? Contractual debts or damages. Example, the defendant is
ordered to pay defendant P1 million with interest, how does the sheriff enforce that? Section 9 provides a
detailed explanation on how judgment for money is enforced. Let us go over the first paragraph:

Sec. 9. Execution of judgments for money, how enforced. -

(a) Immediate payment on demand. - The officer shall enforce an

execution of a judgment for money by demanding from the judgment
obligor the immediate payment of the full amount stated in the writ of
execution and all lawful fees. The judgment obligor shall pay in cash,
certified bank check payable to the judgment obligee, or any other form
of payment acceptable to the latter, the amount of the judgment debt
under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall
be handed under proper receipt to the executing sheriff who shall turn
over the said amount within the same day to the clerk of court of the
court that issued the writ.

STEPS: (under paragraph [a])

1.) The sheriff must demand payment from the obligor;
2.) The obligor can pay in cash, certified bank check payable to the judgment obligee (creditor) or any other
form of payment acceptable to the latter. Kung sabihin ng obligor: “Yung kotse ko na lang.” That will be
alright so long as it is also alright with the obligee;
3.) The payment shall go to the obligee;
4.) The lawful fees shall be paid to the executing sheriff who shall turn over the said amount within the same
day to the clerk of court of the court that issued the writ.

This assumes that the obligee is present with sheriff. Suppose the creditor is not around? Let us go to the second
paragraph:

Section 9 [a], 2nd par. – If the judgment obligee or his authorized

representative is not present to receive payment, the judgment obligor
shall deliver the aforesaid payment to the executing sheriff. The
latter shall turn over all the amounts coming into his possession
within the same day to the clerk of court of the court that issued the
writ, or if the same is not practicable, deposit said amounts to a
fiduciary account in the nearest government depository bank of the
Regional Trial Court of the locality.

If the plaintiff is not there, the payment is made to the sheriff and he is supposed to endorse it to the clerk of court. The
clerk of court will look for the obligee to remit the money.

In the second sentence, this usually happens if the execution is to be done outside of the locality. For example, the
decision in Davao will be enforced in Cotabato. So, the sheriff in Cotabato will be the one to enforce and he will give the
payment to the clerk of court there who in turn will transmit the money to the clerk of court in Davao. This is because the
decision to be executed is one in Davao.

Let us go to the third paragraph:

The clerk of said court shall thereafter arrange for the remittance
of the deposit to the account of the court that issued the writ whose
clerk of court shall then deliver said payment to the judgment obligee
in satisfaction of the judgment. The excess, if any, shall be delivered
to the judgment obligor while the lawful fees shall be retained by the
 clerk of court for disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check be made payable to
him.

This assumes that the property of the defendant which was levied in Cotabato but judgment is one which originated in
Davao – clerk to clerk.

The last sentence says “In no case shall the executing sheriff demand that any payment by check be made payable to
him.” It shall be payable to the obligee. I think what the SC would like to avoid here is that which happened in the case of
PAL – a labor case where PAL paid check payable to the sheriff. The sheriff ran away with the check. PAL was made to pay
all over again.

(b) Satisfaction by levy. - If the judgment obligor cannot pay

all or part of the obligation in cash, certified bank check or other
mode of payment acceptable to the judgment obligee, the officer shall
levy upon the properties of the judgment obligor of every kind and
nature whatsoever which may be disposed of for value and not otherwise
exempt from execution giving the latter the option to immediately
choose which property or part thereof may be levied upon, sufficient to
satisfy the judgment. If the judgment obligor does not exercise the
option, the officer shall first levy on the personal properties, if
any, and then on the real properties if the personal properties are
sufficient to answer for the judgment.

So, under paragraph [a], the first step is when the judgment debtor has enough money, bayaran niya in cash or check.

Q: Suppose walang pera, or the cash is not sufficient. What will the sheriff do?
A: He shall levy upon the properties of the judgment obligor not otherwise exempt from execution. In the vernacular
term, sasabihing ‘na-sheriff’ ka.

Q: Define levy.
A: Levy is the act whereby a sheriff sets apart or appropriates, for the purpose of satisfying the command of the writ, a
part or the whole of the judgment-debtor’s property. (Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963) Normally, t his
is done on personal property. Kung lupa naman, they will annotate on the title. Parang mortgage ba.

Q: What is the importance of levy with respect to execution of a money judgment?

A: Levy is a pre-requisite to the auction sale. In order that an execution sale may be valid, there must be a previous
valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title. (Valenzuela vs. De Aguilar, L-
18083-84, May 31, 1963)

Q: What kind of property can be levied?

A: Any – real, personal, tangible, intangible – except those properties exempt from execution.

Q: Does the debtor has the right to tell the sheriff what property he should levy?
A: YES. The law gives the debtor or defendant the option to immediately choose which property or part thereof may be
levied upon sufficient to satisfy the judgment. Example: I am the debtor and I have many properties. And the sheriff would
like to levy on my house and lot, or ‘yung Toyota Altis ko. Under the law, I have the right to choose among them.

The phrase “giving the latter the option to immediately choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment.” This did not appear under the old law. This is taken from the case of PHILIPPINE
MILLS vs. DAYRIT (192 SCRA 177), where the SC said the debtor is given the option of which property shall be levied.

And the sequence of levying is to levy the personal properties first. Then real properties if personal properties are not
sufficient.
 Under the second paragraph of [b], when the sheriff levies on the property of the judgment debtor and the judgment
debtor has more than sufficient property to cover the judgment debt, the sheriff cannot levy all the properties. Or else, he
will be made liable. For example, the debt is only P 30,000, tapos ang i-levy mo kotse (Toyota Altis) at bahay, which worth
millions? My golly! That’s too much! You sell only up to the point that the judgment will be satisfied.

Q: But if it is real property or intangible personal property like shares of stock, debts, credits (collectibles), can you
levy on these?
A: YES. And under the last paragraph of [b] They may be levied upon in like manner and with like effect as under a
writ of attachment under Rule 57 on attachment.

GARNISHMENT – HOW TO LEVY

Paragraph [c] of Section 9 is on how to levy intangibles. When you want to levy or you want to execute on intangible
property, the legal term there is garnishment.

(c) Garnishment of debts and credits. - The officer may levy on

debts due the judgment obligor and other credits, including bank
deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery in the possession or
control of third parties. Levy shall be made by serving notice upon the
person owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled. The garnishment
shall cover only such amount as will satisfy the judgment and all
lawful fees.
The garnishee shall make a written report to the court within five
(5) days from service of the notice of garnishment stating whether or
not the judgment obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state how much funds
or credits the garnishee holds for the judgment obligor. The garnished
amount in cash, or certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the judgment obligee
within ten (10) working days from service of notice on said garnishee
requiring such delivery, except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees holding deposits or
credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or garnishees
who shall be required to deliver the amount due; otherwise, the choice
shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the judgment
obligee. (8a, 15a)

Q: So, what are these properties which may be the subject of garnishment?
A: Credits which include bank deposits, financial interests, royalties, commissions and other personal property not
capable of manual delivery – intangibles bah! You send a notice upon the person owing such debts or having in his
possession or control such credits. And it shall cover only such amount as will satisfy the judgment.

Example of garnishment: bank account. I will file a case against you, talo ka. I learned that you have a deposit with
Sanikoh Bank. Puwede kong habulin yan ba, because that is credit. In obligations and contracts, the relationship of the
depositor and the bank is that of a creditor and debtor. It is not a contract of deposit because actually, the bank is borrowing
money from you. Kaya nga, it pays you interest eh.

So, under garnishment, the bank is being commanded not to pay you but instead pay the sheriff. Yaan!! Yan ang concept
ng garnishment. Garnishee refers to the debtor, like the bank. When the bank deposit is garnished, the second paragraph tell
us what the bank will do. And if there are 2 or more banks na ma-garnish, under the next paragraph, the debtor obligor will
determine. If he does not exercise his option, then the judgment creditor will determine.
 EXECUTION OF JUDGMENT OTHER THAN MONEY

Section 10 is the procedure for executing a judgment other than to collect money. Sometimes, money is only incidental.
There are court decisions could be something else like specific performance, or accion publiciana. You are more interested
in recovering your property. Another is Unlawful Detainer where unpaid rentals may be paid but the plaintiff is more
interested in the ejectment – the unpaid rentals can be collected in the same manner as Section 9.

Sec. 10. Execution of judgments of specific act. -

(a) Conveyance, delivery of deeds, or other specific acts; vesting
title. - If a judgment directs a party to execute a conveyance of land
or personal property, or to deliver deeds or other documents, or to
perform any other specific act in connection therewith, and the party
fails to comply within the time specified, the court may direct the act
to be done at the cost of the disobedient party by some other person
appointed by the court and the act when so done shall have like effect
as if done by the party. If real or personal property is situated
within the Philippines, the court in lieu of directing a conveyance
thereof may by an order divest the title of any party and vest it in
others, which shall have the force and effect of a conveyance executed
in due form of law. (10a)
x x x x x

EXAMPLES of the first sentence:

1.) An action for reconveyance of property where you are asking the defendant, a title owner, to convey to you his
property. The property will be held in trust or that the title be in your name instead of his;
2.) Pacto de retro. I sold to you my land and I am repurchasing it, pero ayaw mo. You refuse to execute a deed of
sale returning the property to me;
3.) Public Land Law. I am the owner of a property under homestead or free patent and sold it after the prohibition
period. Under the public land law, I have the right to repurchase it within 5 years. Ayaw mong ibalik, so
idemanda kita. Of course, if I win, you will be directed to return to me the property and execute a deed of sale.
4.) An action for specific performance to compel you to return to me said property. And the court will order:
“Alright, execute a deed of sale.” You refuse. The court may order the clerk of court to sign the deed of sale or
the Register of Deeds will be ordered to register the same as if done by the obligor. The obligor’s signature is
not needed.

(b) Sale of real or personal property. - If the judgment be for

the sale of real or personal property, to sell such property,
describing it, and apply the proceeds in conformity with the judgment.
(8 [c] a)

The best example for [b] is an action for termination of co-ownership where there are 50 co-owners of one (1) hectare –
the property will be ordered sold and the proceeds will be distributed among the co-owners.

(c) Delivery or restitution of real property. - The officer

shall demand of the person against whom the judgment for the delivery
or restitution of real property is rendered and all persons claiming
rights under him to peaceably vacate the property within three (3)
working days, and restore possession thereof to the judgment obligee;
otherwise, the officer shall oust all such persons therefrom with the
assistance, if necessary, or appropriate peace officers, and employing
such means as may be reasonably necessary to retake possession, and
place the judgment obligee in possession of such property. Any costs,
damages, rents or profits awarded by the judgment shall be satisfied in
the same manner as a judgment for money. (13a)

Now, with respect to Section 10, particularly paragraph [c] – delivery or restitution of real property. – this is applicable
to actions for forcible entry, unlawful detainer, accion publiciana.

Q: So, what is the procedure?

A: The sheriff will give the defendant the chance to vacate the property, “I am giving you the chance to vacate within
three (3) working days and restore possession thereof.” And then ayaw mo pa rin, I will use force to oust you with the
assistance of the appropriate peace officers and place the judgment obligee in possession of such property.

And if there are damages or unpaid rentals, I will also levy the property under Section 9. Because sometimes, aside
from ousting the defendant, meron pang money judgment like unpaid rentals. So, the property of the defendant may be
levied. That is the procedure.

In the 1995 case of

SAN MANUEL vs. TUPAS
249 SCRA 466

HELD: “The immediate enforcement of a writ of ejectment execution is carried out by giving the
defendant a notice of such writ and making a demand that defendant comply therewith within a reasonable
period, normally from three (3) to five (5) days, and it is only after such period that the sheriff enforces the
writ by the bodily removal of the defendant and his personal belongings.”

(d) Removal of improvements on property subject of execution. -

When the property subject of the execution contains improvements
constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements except
upon special order of the court, issued upon motion of the judgment
obligee after due hearing and after the former has failed to remove the
same within a reasonable time fixed by the court. (14a)

Q: When you oust the defendant in regard of a possession case, is a writ of execution a sufficient basis for the removal
of improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment obligee still have to get a special order from the court by filing a
petition to authorize the destruction or removal of the improvements of the property after the defendant is given a
reasonable time to remove his shanty or house voluntarily.

In other words, there must be a special order. The writ of execution only authorizes you to oust the defendant
physically, but not to destroy any property. Just like in squatters, you need a special order for demolition.

(e) Delivery of personal property. - In judgments for the

delivery of personal property, the officer shall take possession of the
same and forthwith deliver it to the party entitled thereto and satisfy
any judgment for money as therein provided. (8a)

Paragraph [e] is related to REPLEVIN – action to recover personal property – where the plaintiff is trying to repossess
a personal property from the defendant. For example, bili ka ng appliance tapos hindi mo nabayaran, babawiin yan ng
appliance center. Or, the finance company or the car dealer will resort to replevin to recover the unit by filing an action for
replevin against the buyer.

Take note that the procedure for enforcing a money judgment is different from enforcing a judgment for ejectment, or
recovery of possession. Enforcement of money judgment is in Section 9 – you get the money. Kung walang money, you
levy on the property of the defendant. If it is ejectment or recovery of possession of property, you follow Section 10,
paragraph [c].

Now, here is an interesting case involving these two sections (Sections 9 & 10) –the 1995 case of

ABINUJAR vs. COURT OF APPEALS

243 SCRA 531
 FACTS: The case of Abinujar started when the plaintiff filed a case for unlawful detainer against the
Abinujar spouses for the latter to vacate their house in Manila. When the case was going on, the parties
executed a compromise agreement which became the basis of the judgment by the court, so a compromise
judgment.
The agreement stated that the Abinujar spouses shall pay the plaintiffs the amount specifically agreed
upon: P50,000 on January 31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until September 30. It
further states that failure on the part of the Abinujar spouses to pay three (3) consecutive payments, the
plaintiffs shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution on the ground that the Abinujars failed
to pay the three installments. The trial court granted the motion and the notice to the defendant to voluntarily
vacate the premises was served on the Abinujars.
The Abinujars attacked the validity of the sheriff’s notice to vacate by way of enforcing the
compromise judgment. They maintained that their obligation is monetary and therefore you should
apply Section 9 – you collect but do not eject us. The plaintiffs argued that what is applicable is
Section 10 on ejectment because this is an unlawful detainer case.

ISSUE: Which section shall be applied – Section 9? or Section 10?

HELD: The contention of the Abinujars is meritorious – meaning, you cannot eject the Abinujars.
“When the parties entered into a compromise agreement, the original action for ejectment was set aside
and the action was changed to a monetary obligation.
“A perusal of the compromise agreement signed by the parties and approved by the inferior court merely
provided that in case the Abinujars failed to pay three monthly installments, the plaintiffs would be entitled to
a writ of execution, without specifying what the subject of execution would be. Said agreement did not state
that Abinujars would be evicted from the premises subject of the suit in case of any default in complying with
their obligation thereunder. This was the result of the careless drafting thereof for which only plaintiffs were to
be blamed.
“As Abinujar’s obligation under the compromise agreement as approved by the court was
monetary in nature, plaintiffs can avail only of the writ of execution provided in Section 9, and not
that provided in Section 10.”

ORDINARY AND SPECIAL JUDGMENT

Sec. 11. Execution of special judgments. - When a judgment requires

the performance of any act other than those mentioned in the two
preceding sections, a certified copy of the judgment shall be attached
to the writ of execution and shall be served by the officer upon the
party against whom the same is rendered, or upon any other person
required thereby, or by law, to obey the same, and such party or person
may be punished for contempt if he disobeys such judgment. (9a)

There are two (2) types of judgment under the law: (1) SPECIAL and (2) ORDINARY.

ORDINARY JUDGMENT - if the judgment orders the defendant to pay money, like a collection case (Section 9) or to
deliver real or personal property (Section 10).

SPECIAL JUDGMENT – is a judgment which requires the defendant to perform an act other than payment of money
or delivery of property. It refers to a specific act which a party or person must personally do because his personal
qualifications and circumstances have been taken into consideration.

EXAMPLE of a special judgment: Usurpation of government office. You are the city treasurer and somebody else is
appointed city treasurer and you refuse to vacate. So there will be a quo warranto proceeding. Then the judgment will order
you to vacate your position, such judgment is a special judgment because you are not ordered to pay anything nor deliver
property.

Q: What is the difference between the Ordinary and Special judgments?

 A: A special judgment may be enforced by contempt if the defendant refuses to comply with the judgment. But if it is
an ordinary judgment and the defendant refuses to comply, it is not a ground for contempt.

Under Section 9, if the judgment-debtor refuses to pay his debt, you cannot cite him in contempt because under the
Constitution, no person shall be imprisoned for debt. The correct procedure under Section 9 is you look for properties of the
defendant and then ipa-levy mo. You do not send the debtor to jail.

Under Section 10 if the squatter refuses to vacate, you cannot cite him in contempt and send him to jail. Kung ayaw,
you get police for back up. That is the procedure.

But under Section 11, if defendant is ordered to vacate his office because he is no longer the city treasurer, the plaintiff
can have him arrested and brought to jail because that is a special judgment which can be enforced by contempt.

Q: Give an specific rule on special judgment.

A: Section 9 of Rule 65 – Special Civil Action for Certiorari, Prohibition and Mandamus, to wit:

Rule 65, Sec 9. Service and enforcement of order or judgment.- A

certified copy of the judgment rendered in accordance with the last
preceding section shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer or person concerned in
such manner as the court may direct, and disobedience thereto shall be
punished as contempt. An execution may issue for any damages or costs
awarded in accordance with section 1 of Rule 39. (9a)

Therefore, a judgement in a certiorari, prohibition or mandamus case, if not complied with, is punishable by contempt.

Sec. 12. Effect of levy on execution as to third persons. - The levy

on execution shall create a lien in favor of the judgment obligee over
the right, title and interest of the judgment obligor in such property
at the time of the levy, subject to liens and encumbrances then
existing. (16a)

This is related to Property Registration Decree.

EXAMPLE: I own a piece of land which I mortgaged with the bank. The bank annotated the mortgage on my title. My
land is now subject to a lien or an encumbrance. I also owe money to A. He sued me. He won and my land is levied.
Q: What happens to the mortgage lien of the bank? Will it be affected by the levy of A?
A: NO. Even if the property is sold at public auction and we will assume that it will go to A, that property is still under
mortgage. A has to respect the lien – nauna yung sa bank eh! Wherever the property goes, it is subject to the mortgage lien
of the bank because the bank’s lien is superior.

Therefore, an execution is always subject to the liens and encumbrances of the property then existing.

PROPERTIES EXEMPT FROM EXECUTION

We already discussed the rule that to satisfy a money judgment, the sheriff can levy on the properties of the judgment
obligor. All properties are subject, except those exempt from execution. What are the properties of a defendant-debtor
which cannot be subject to a levy or execution?

Sec. 13. Property exempt from execution. - Except as otherwise

expressly provided by law, the following property, and no other, shall
be exempt from execution:

(a) The judgment obligor's family home as provided by law, or the

homestead in which he resides, and land necessarily used in connection
therewith;

You have a house where your family resides. You call it “FAMILY HOME” – it is the house where the members of the
family reside, including the lot.

Q: For instance, you lost in a case where you are liable for P200T. You have no other property left except that house
where you live. Can the sheriff levy the house to answer such obligations?
A: NO. The judgment obligor’s family home and the land necessarily used in connection therewith is exempt. That is a
guarantee that no matter how many obligations you have, there is no way for you to be thrown to the street – to be a
homeless person. Your house cannot be levied; but in the Family Code, there’s a limit, if your house is a mansion worth
millions, that is not exempt. Please review your Family Code on this matter.

(b) Ordinary tools and implements personally used by him in his

trade, employment, or livelihood;

This is self-explanatory. If you are a carpenter, you earn your living by being a carpenter. What are the ordinary tools
that you must have? Saw, hammer, etc. By public policy and by legal provision, the tools and implements used by a
carpenter in his trade, employment, or livelihood cannot be levied by the sheriff.
Under the prior law, there was no word “ordinary” and “personally”. The old law says, “tools and implements used by
him”. In the new rules, the words “ordinary” and “personally” are added. What is the reason behind this? This provision is
in accordance with what the SC ruled in the 1990 case of

PENTAGON SECURITY vs. JIMENEZ

192 SCRA 492

FACTS: The Pentagon Security and Investigation Agency (PSIA) is a security agency owned by
somebody who is engaged in security services. Because of a money judgment against the agency in
a labor case, the sheriff levied all the firearms of the agency. PSIA claimed that the firearms are
exempt from execution under paragraph [b] since they are tools and implements used by the agency
in its trade, employment or livelihood because how can a security agency operate without firearms.

ISSUE: Is the argument of PSIA correct?

HELD: NO. The firearms owned by PSIA are not covered by the exemption.
“The term ‘tools and implements’ refers to instruments of husbandry or manual labor needed by an artisan
craftsman or laborer to obtain his living. Here, PSIA is a business enterprise. It does not use the firearms
personally, but they are used by its employees. Not being a natural person, petitioner cannot claim that the
firearms are necessary for its livelihood.”
“It would appear that the exemption contemplated by the provision involved is personal, available only to
a natural person, such as a dentist’s dental chair and electric fan. If properties used in business are exempt
from execution, there can hardly be an instance when a judgment claim can be enforced against the business
entity.”

Meaning, if the exemption is extended to a juridical person like a corporation, then practically all the properties needed
by the business could be considered as tools and implements. For EXAMPLE, you will sue a carrier like Bachelor Bus and
you won. Then you will levy on the bus. Bachelor will claims exemption because that is a tool or implement.

Or, you file a case against PAL. They lost. You levy on the airbus. PAL alleged exemption because it is a tool or
implement. My golly! Lahat ng properties, “tools or implements!”? Di pwede yan! That is not what the law contemplates.

Now, what is interesting in the PENTAGON case is that the SC says that firearms can be levied, they can be sold at
public auction. SC: “However, for security reasons, and to prevent the possibility that the firearms to be sold at the
execution sale may fall into the hands of lawless and subversive elements, the sale at public auction should be with the prior
clearance and under supervision of the PNP.” Otherwise, the persons who might bid are kidnappers, NPA, Abu Sayyaff,
(Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there
must be a prior clearance on the sale of the firearms during the auction sale.

(c) Three horses, or three cows, or three carabaos, or other

beasts of burden, such as the judgment obligor may select necessarily
used by him in his ordinary occupation;
 For example, you are a farmer. You plow your land by a carabao. You cannot levy the carabao. OR, if you are a
cochero, you have a horse for your caretela. You cannot levy the horse. [ang horse shit, pwede! Pero yung horse mismo, di
pwede!] And under the prior rules, only 2 horses, 2 cows or carabaos are exempt. The new rules make it three (3).

(d) His necessary clothing and articles for ordinary personal

use, excluding jewelry;

You cannot levy on the debtor’s wardrobe. These are articles for ordinary personal use. This article excludes jewelry.
Alahas, pwede i-levy. All other things for basic needs are exempt, like personal comb, toothbrush, etc.

(e) Household furniture and utensils necessary for housekeeping, and

used for that purpose by the judgment obligor and his family, such as
the judgment obligor may select, of a value not exceeding one hundred
thousand pesos;

Household furniture like dining table, dining chair, sala set, utensils necessary for housekeeping and used for the
purpose by the obligor and his family like plates, forks, spoons. How can you eat without those utensils. BUT there’s a limit
that the value does not exceed P100,000. If the value exceeds, it can be levied.

There was a sheriff who asked me (Dean I). According to him, he was enforcing a money judgment. The sheriff went
to the house of the debtor. He took the stereo, TV set, refrigerator. Defendant said, “Hindi pwede dahil hindi pa umabot ng
P100,000.” Sabi ko, you look at the law: You cannot levy those furnitures if not exceeding P100,000. In my (Dean’s) view,
covered yan. But utensils not necessarily for living are not covered by the exemption. They are luxury, not necessary. These
TV, sala set, refrigerator can be levied because they are not necessary for living as contrasted to kutsara, plato, etc. (Dean
however refused to answer the sheriff whether the properties in question can be levied. Tanungin mo ang abogado mo!)

(f) Provisions for individual or family use sufficient for four

months;

For example, one sack of rice for daily consumption, canned goods – provisions for consumption good for 4 months are
exempt. If you have one bodega of rice, ibang storya yan.

(g) The professional libraries and equipment of judges,

lawyers, physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professional, not exceeding three
hundred thousand (P300,000.00) pesos in value;

Your books, books of judges and professionals and equipment – maybe the computer, typewriter, dentist’s chair,
equipment of engineers are exempt provided the value does not exceed P300,000.

(h) One fishing boat and accessories not exceeding the total
value of one hundred thousand (P100,000.00) pesos owned by a fisherman
and by the lawful use of which he earns his livelihood;

Example: Fishing boat of a fisherman, the accessories – net, provided these do not exceed P100,000.

(i) So much of the salaries, wages, or earnings of the judgment

obligor for his personal services within the four months preceding the
levy as are necessary for the support of his family;

The salary of a person within 4 months is exempt. For example, you have backwages of 6 months. Only 2 months
salary can be levied. Exempt ang 4 months.

Technically, wages and salaries are exempt as long as they are necessary for support of living. If you earn a minimum
wage, everything may be exempted. But if you earn P50,000 a month and you support only two people, the court may levy
on the excess.

(j) Lettered gravestones;

Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on lettered gravestones? My golly!

(k) Monies, benefits, privileges, or annuities accruing or in

any manner growing out of any life insurance;

The proceeds of life insurance. The amount received by the beneficiaries cannot be levied, not a single centavo.

(l) The right to receive legal support, or money or property

obtained as such support, or any pension or gratuity from the
Government;

The right to receive legal support. The right ba! For instance, ako na lang ang mag receive ng support mo. Hindi pwede
yan. Also the money given monthly to you if you are receiving support cannot be levied. Any pension or gratuity from the
government – GSIS pension, for example.

(m) Properties specially exempted by law.

This is very broad – any other property exempt by special law.

Q: Give an example where a property is exempt from execution under the special law?
A: The following:
1.) Property obtained pursuant to a free patent application, HOMESTEAD. That is not subject to any claim
within 5 years. You cannot even sell that within 5 years, how much more kung embargohin sa iyo? That is
under CA 141 – Public Land Law;
2.) Under Social Legislation, SSS benefits are also exempt from execution, just like GSIS benefits;
3.) Under CARP law, the property acquired by a tenant under that law cannot be levied also.

Section 13, last paragraph:

But no article or species of property mentioned in this section

shall be exempt from execution issued upon a judgment recovered for its
price or upon a judgment of foreclosure of a mortgage thereon. (12a)

The last paragraph of Section 13 says that if for example, you ordered books and you failed to pay, you cannot claim
the exemption because the obligation arose from the same item. For example:

BAR PROBLEM: A lawyer went to Alemars professional books supply. He bought books worth half a million. That
was utang – P500,000. The store decided to sue the lawyer for such amount not paid. The bookstore got a judgment. There
was a levy on the lawyer’s property. The sheriff levied on the same books which became the source of the case. The lawyer
claimed exemption under Section 13 up to P300,000 because it forms part of his professional library. Is the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of Section 13 that no article or species of properties mentioned
in this section shall be exempt from execution issued upon a judgment recovered for the price or upon a judgment of
foreclosure of a mortgage thereon.

What the law says, is the properties mentioned here (in Section 13) are exempt, EXCEPT when that debt arose out of
that property. For example, here, why are you indebted to Alemars? Because of unpaid books. So the very books which gave
rise to an obligation are not exempt from execution.

But if another creditor will file a case against the lawyer, and that other creditor will win, that creditor cannot levy on
the books because they are exempt. But the creditor from whom the books were bought can levy on the same books which
gave rise to an obligation.

The same thing with FAMILY HOME. For example, you will build a family home and then, hindi mo binayaran ang
materials, labor and there was judgment against you. The creditor and the owner can levy on the house. He cannot claim
exemption because the debt arose out of that same family home.

Another example: You borrowed money from the bank. You mortgaged your house. Later on, you cannot pay the loan.
The bank foreclosed the mortgage. You cannot argue that your house cannot be levied. Kaya nga may utang ka because of
your house. Since you mortgaged it, that is not covered by the exemption.

Q: What is the REASON behind this exemption?

A: The reason for this exemption is PUBLIC POLICY. And common sense no? – the debtor should pay but this should
not deprive him of a means to earn his living. You can levy on his property but not to the extent of depriving him of his
provisions for support, means of livelihood by throwing him on to the street, homeless, penniless, despondent, dejected,
mournful, melancholy, forlorn…

LIFETIME OF WRIT OF EXECUTION – FIVE (5) YEARS

Sec. 14. Return of writ of execution. - The writ of execution shall

be returnable to the court issuing it immediately after the judgment
has been satisfied in part or in full. If the judgment cannot be
satisfied in full within thirty (30) days after his receipt of the
writ, the officer shall report to the court and state the reason
therefor. Such writ shall continue in effect during the period within
which the judgment may be enforced by motion. The officer shall make a
report to the court every thirty (30) days on the proceedings taken
thereon until the judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall set forth the whole of
the proceedings taken, and shall be filed with the court and copies
thereof promptly furnished the parties. (11a)

Under the OLD RULE, the lifetime of a writ of execution is only 60 days. After that, expired na yung writ. The sheriff
has to use the writ to levy on the property of the defendant within 60 days. If the defendant has no property at present, and
the writ has already expired, and assuming that there will be some properties found in the future, the procedure under the
old rules is, the plaintiff has to file a motion for an ALIAS WRIT of execution, because once it is issued, it is again good for
another 60 days.

Under the PRESENT RULE, the 60-day period is already obsolete. The effectivity now of a writ of execution is, for as
long as the judgment may be enforced by motion. And under Section 6, a judgment may be enforced by motion within five
(5) years. So in effect, the writ of execution is valid for FIVE (5) years. The lifetime now has been extended from 60 days to
5 years.

Of course, as much as possible, the writ must be enforced within 30 days and after that, the sheriff will tell the court
about what happened after 30 days.

So, the sheriff says based on the RETURN, “Wala pang property ang defendant.” Now, he just keeps on holding the
writ. And maybe after one or two years, meron na’ng property ang defendant, he can now enforce the writ. But definitely,
there is no need for the defendant to go back to the court to ask for another alias writ of execution because the writ can still
be enforced – for as long as the judgment may be enforced by motion.

Although every 30 days, the sheriff has to make a periodic report with the court. I do not know if the sheriffs here
follow this procedure. But definitely, a writ is good for 5 years and in every 30 days, the sheriff has to make a report.

NOTICE OF SALE

Sec. 15. Notice of sale of property on execution. - Before the sale

of property on execution, notice thereof must be given as follows:
(a) In case of perishable property, by posting written notice
 of the time and place of the sale in three (3) public places,
preferably in conspicuous areas of the municipal or city hall, post
office and public market in the municipality or city where the sale is
to take place, for such time as may be reasonable, considering the
character and condition of the property;
(b) In case of other personal property, by posting a similar
notice in the three (3) public places above-mentioned for not less that
five (5) days;
(c) In case of real property, by posting for twenty (20) days
in the three (3) public places above-mentioned a similar notice
particularly describing the property and stating where the property is
to be sold, and if the assessed value of the property exceeds fifty
thousand (P50,000.00) pesos, by publishing a copy of the notice once a
week for two (2) consecutive weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major regional language published,
edited and circulated or, in the absence thereof, having general
circulation in the province or city;
(d) In all case, written notice of the sale shall be given to
the judgment obligor, at least three (3) days before the sale, except
as provided in paragraph (a) hereof where notice shall be given at any
time before the sale, in the same manner as personal service of
pleadings and other papers as provided by section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale
which should not be earlier than nine o'clock in the morning and not
later than two o'clock in the afternoon. The place of the sale may be
agreed upon by the parties. In the absence of such agreement, the sale
of real property or personal property not capable of manual delivery
shall be held in the office of the clerk of court of the Regional Trial
Court or the Municipal Trial Court which issued the writ or which was
designated by the appellate court. In the case of personal property
capable of manual delivery, the sale shall be held in the place where
the property is located. (18a)

Auction sale follows levy. There must be notices because auction sale is open to the public. Notices must be posted in 3
public places preferably in the municipal hall, post office and public market. In paragraph [c], if the property to be sold is
REAL property, the notices must describe the property, its location, assessed value if exceeding P50,000. Aside from
notices, the law requires PUBLICATION in a newspaper so that many people can read it.

You try to go there in the Hall of Justice, may bulletin board diyan sa labas. Notices are posted there. If you are
interested in buying something, para mura, tingnan mo diyan.

The law is very detailed now. The notice must specify the date of the sale, time, place etc. And the SC ruled that these
requirements are to be strictly complied with.

For example: You do not comply with the posting in 3 conspicuous places. Dalawa lang sa iyo, that is VOID. The SC
said the requirements of the law for the holding of the public auction should be strictly followed. Why? Because in a public
auction, you are depriving somebody of his property – the judgment debtor. So, all the requirements of the law intended to
deprive the owner of his ownership over his property should be followed.

Even lawyers sometimes do not pay much attention to this Rule 39. It is perhaps because of the length of the rule or the
length of the provisions. Lawyers usually have a general idea, not really the details. Oftentimes, they rely on the sheriff eh.
They presume that the sheriff knows more about the details because the latter is responsible for enforcing it. Actually, the
sheriff knows less than the lawyers because many of them are not lawyers naman eh.

Illustration based on Dean’s experience:

There is a property located in Panacan which is owned by Corporation X. Corporation X sold the property to
Corporation Y. (xx end of tape xx) Dean does not know who was at fault. Definitely, the custodian, instead of registering
the transaction in the Register of Deeds so that a title may be issued in the name of the buyer, tinago! Nalimutan ang pag-
register ng Deed of Sale. Yun pala, the seller, Corporation X, has a creditor also in Davao. The creditor sued Corporation X
for a sum of money. Corporation X lost the case and the creditor looked for property to levy. He found that piece of land in
Panacan. Corporation X said, naibenta na iyan.
The buyer, Corporation Y did not know there was an auction sale of that property. The buyer entered into a deal with a
corporation in Japan. One of the requirements of the Japanese buyer is: please list down all your assets, all your properties.
Of course, Corporation Y included that land in Panacan in the list. Saan man ang titulo? Walaaa. Nalimutan i-register.
Who should bear the loss?? The BUYER CORPORATION because he did not register the sale. He was given the
option to pay the loan plus P200,000 damages and interest. But if Rule 39 is to be followed strictly, Dean says the sheriff
cannot make it. Meron talagang malimutan because sheriffs usually are not lawyers. Rule 39 is so detailed that you cannot
easily follow the requirements. Isa-isahin mo iyan, pag may nakita kang mali, you file a motion to annul the execution.
I (Dean) said: I will recommend to the plaintiff company na bayaran ka rin pero hindi naman P200,000. Masyadong
malaki yan. Nakabayad na ang buyer sa owner tapos babayaran pa rin ang utang sa creditor? I talked to the corporation and
made a compromise. We settled for P80,000. Kung ayaw niya ituloy ang kaso. Hindi nga na-register and Deed of Sale pero
mali-mali naman ang levy. What if ma-annul ang levy, the plaintiff will get nothing. Chances are, hahabulin niya ang seller
ng property. So, this is an example of a dead case being resurrected to life because of the principle: nagkamali ang sheriff sa
execution. Dean also stressed that if the trial for annulment of the execution proceeds, the court might dismiss it because the
sheriff’s mistakes ay maliit lang. It’s not really substantial. But Dean is proud that he had succeeded to scare the plaintiff!
[ehem!]

TERCERIA (THIRD-PARTY CLAIM)

SECTION 16. Proceedings where property claimed by third person. – If

the property levied on is claimed by any person other than the judgment
obligor or his agent, and such person makes an affidavit of his title
thereto or right to the possession thereof, stating the grounds of such
right or title, and serves the same upon the officer making the levy
and a copy thereof upon the judgment obligee, the officer shall not be
bound to keep the property, unless such judgment obligee, on demand of
the officer, files a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the property levied
on. In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution. No claim for
damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred
twenty days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such bond is
filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate
action, or prevent the judgment obligee from claiming damages in the
same or a separate action against a third-party claimant who filed a
frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff or levying officer
is sued for damages as a result of the levy, he shall be represented by
the Solicitor General and if held liable therefore, the actual damages
adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose. (17a)

Section 16 is a third-party claim procedure in execution. In Spanish, it is called the remedy of TERCERIA.

ILLUSTRATION: Lolo decided to go on a prolong vacation and he entrusted to Karen (ang paborito ni Lolo) all his
personal property like appliances – TV, refrigerator, car, etc. Karen used the property owned by Lolo while he was not
around. Unknown to Lolo, Karen has a pending civil case filed by Gina. Gina obtained a judgment against Karen. There
was levy on execution. The sheriff went to the premises of Karen, he found all these properties and he enforced the levy.
Lolo came home and went to get the property from Karen. Karen said, they were all levied by the sheriff. Lolo is a
person who is not the defendant but his properties were erroneously levied because the sheriff thought they belong to Karen
who was in possession of them.
Q: What is the remedy of Lolo who is not a defendant?
A: The remedy is to apply Section 16, Rule 39 – You file with the sheriff, copy furnish Gina, what is known as the
third-party claim or TERCERIA. Terceria is an affidavit asserting that he is the owner of the property levied. So with that
the sheriff is now placed on guard because the sheriff may be held liable if he continues to sell the property of the defendant.
So, he is not bound to the proceedings regarding the sale unless the judgment obligee, on demand of the sheriff, files a bond
approved by the court to indemnify a third party claimant in the sum not less than the value of the property levied on.

Suppose sabi ni Gina: “Huwag kang maniwala diyan. Kalokohan iyan. Drama lang yan ni Karen at Lolo. Proceed with
the auction sale!” Gina has to file a bond if he insists that the auction sale must proceed. Gina must put up a bond approved
by the court to indemnify the third-party claimant, a sum not less than the value of the property. If the property is worth half
a million, the bond must also be half a million. Then auction sale may proceed because there’s already a bond to answer for
the damages. The sale may go on despite the third party claim.

THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT

Now, do not confuse a third-party claim under Rule 39 with a third-party complaint under Rule 6.

Q: What is a third-party complaint under Rule 6?

A: A third-party complaint under Rule 6 is a PLEADING filed by a defendant against the third person not a party to the
action for contribution, indemnity, subrogation, or any other relief in respect of the plaintiff’s complaint.

Q: What is a third-party claim under Rule 39?

A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT made by a third person who claims to be entitled to
the property in the custody of a sheriff by virtue of a writ of execution.

The one who files a third party claim is technically called third-party CLAIMANT. The one who files a third party
complaint is called third-party PLAINTIFF. I notice that even in SC decisions, the SC commits that lapse: “The defendant
filed a third party complaint” or sometimes “third party claimant.” But actually, the correct term is third-party plaintiff.

Q: Now, under the law, where will you file your third-party claim?
A: You file it with the sheriff although legally, it is considered as it is filed in the court because the sheriff is only an
agent of the court. The sheriff does not have the power to rule on the legal issues. Only the judge can. And it is the court
which decides on the validity of a third party claim.

Q: If I am the third person and I want to vindicate my claim to that property, is a third party claim procedure the only
remedy I have under the law? Even if there’s a third party claim, auction sale may proceed as long as there’s a bond. But I
want the auction sale not to proceed and I want the property to be returned in my favor, do I have any other remedy?
A: YES. Second paragraph: “Nothing herein contained shall prevent such claimant or any third person from
vindicating his claim to the property in a SEPARATE ACTION.” So, the remedy of third-party claim is NOT exclusive.
There is nothing in Section 16 which says that a third person is deprived of a right to file a separate action.

As the lawyer of Lolo, I have another option: instead of filing a third party claim, I would file a case in court – the
separate case would name Gina as the defendant. The cause of action is that the sheriff mistakenly or erroneously levied the
properties not owned by Karen because I am the real owner. Since there was a mistaken levy, I am also asking the court to
declare the levy as null and void, the auction sale should not proceed.

The court might rule in my favor, so a separate action is allowed. Thus, a third-party claim is not the only remedy
available under the law for the third party claimant.

The second part also contains a new provision, “…or prevent the judgment obligee from claiming damages in the same
or a separate action against a third party claimant who files a frivolous or plainly spurious claim.”

Remember that it is possible for a third-party claimant to be a dummy when it is a frivolous claim, without basis or
spurious, para tulungan lang niya ang defendant. There are people like that. Now, under the new law, the prevailing party
has the right to claim damages against the third-party claimant for filing frivolous claims. He can claim the damages in the
same action or in a separate action.
 Now, many people do not really understand what is a third-party claim, even some lawyers:

Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng another case? Can I not just complain to the court which
rendered the decision? Can I not just file a motion asking the judge to order the release of the property? Is a separate action
not a violation of the rule against multiplicity of suits?
A: NO! You cannot bring out the issue to determine the ownership of the property. INTERVENTION here is not proper.
[Is this not a ground for intervention? GROUNDS FOR INTERVENTION: (1) the intervenor has legal interest in the
subject matter; (2) the intervenor has an interest in the success of either parties; (3) the intervenor has an interest against
both parties; and (4) The intervenor is adversely affected by a distribution of a property in the custody of a court or an
officer thereof.]
The SC said YOU CANNOT INTERVENE because under Rule 19, an intervention can only be done at any time before
judgment. But here in Rule 39, we are now on the stage of execution – meron ng judgment! Tapos na ang kaso…. [Gago!!]
Intervention comes to late. The judge has already decided the case. Now, bakit bigyan mo naman siya ng bagong trabaho?
That’s another issue different from a case already tried. So, a separate action is the proper remedy.

On the other hand, such doctrine should be reconciled with what the SC said in the case of

SY vs. DISCAYA
181 SCRA 378

HELD: If your property was erroneously levied under Rule 39, you can seek relief from the very same
court which rendered the judgment by simply filing a motion to question the actuation of the sheriff, because
execution is part of the process in that case and the sheriff is an officer of the court and the court has the
complete control over the actuation of the sheriff. Therefore, why require the 3rd-party to file another action
when he can seek relief in the same case? Meaning, the third party can seek relief in the same case but only to
determine whether the sheriff acted rightly or wrongly, BUT not for the purpose of determining the issue of
ownership. Questions of ownership cannot be decided here. There must be a separate action for the issue of
ownership.
“A third person whose property was seized by a sheriff to answer for the obligation of the
judgment debtor may invoke the supervisory power of the court which authorized such execution.
Upon due application by the third person and after summary hearing, the court may command that
the property be released from the mistaken levy and restored to the rightful owner or possessor.
What said court can do in these instances, however, is limited to a determination of whether the
sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment,
more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The
court does not and cannot pass upon the question of title to the property, with any character of
finality. It can treat of the matter only insofar as may be necessary to decide if the sheriff has acted
correctly or not.”

So, the court that renders the judgment cannot decide on the issue of ownership to a third person. So your remedy is to
file another case. But in the case of DISCAYA, the court which renders the judgment can determine whether the sheriff has
acted wrongly or correctly. And if it is wrong it can order the property erroneously levied to be released without need of
filing a separate action.

Q: So how do you reconcile the two doctrines?

A: If it is obvious that the sheriff committed a mistake – 100% mistake, i.e. he levied property belonging to a third
person who is not a defendant – to require a third person to go to court and file another case will be tedious. Why can he not
seek relief from the same court? Anyway if it is very obvious that the sheriff acted wrongly, that is only incidental.
But when the issue is whether the property is owned by the defendant or the third person, and the issue is controversial
– who is the rightful owner – that cannot be decided summarily by the court which rendered decision. It should be threshed
out in an independent separate civil action. So that will be the consideration.

The SC summarized all these remedies in the 1995 case of:

EVANGELISTA vs. PENSERGA

 242 SCRA 702

HELD: The remedies of a third person whose property was seized by the sheriff to answer for the
obligation of a judgment obligor are the following:

1. Invoke the supervisory power of the court which authorized such execution (Sy vs.
Discaya);
2. Terceria - third party claim (Rule 39, Section 16); and
3. Any proper action to vindicate his claim to the property, meaning a separate civil action.
(second paragraph, Section 16, Rule 39)

So these are the three remedies of a third person whose property was seized by a sheriff to answer for the obligation of
another person.

Sec. 17. Penalty for selling without notice, or removing or defacing

notice. - An officer selling without the notice prescribed by section
15 of this Rule shall be liable to pay punitive damages in the amount
of five thousand (P5,000.00) pesos to any person injured thereby, in
addition to his actual damages, both to be recovered by motion in the
same action; and a person willfully removing or defacing the notice
posted, if done before the sale, or before the satisfaction of the
judgment if it be satisfied before the sale, shall be liable to pay
five thousand (P5,000.00) pesos to any person injured by reason
thereof, in addition to his actual damages, to be recovered by motion
in the same action. (19a)

Notices in the auction sale should be posted in three public places. For example, you go to the hall of justice. You can
see there a bulletin board, maraming nakalagay, half man niyan mga notice of public aution ba. Now, do not go there and
kunin ang mga papel doon. Baka multahan ka. You are not supposed to remove or deface them.

Sec. 18. No sale if judgment and costs paid. - At any time before
the sale of property on execution, the judgment obligor may prevent the
sale by paying the amount required by the execution and the costs that
have been incurred therein. (20a)

Q: Can the debtor stop the auction sale? Is there a way for the debtor to prevent the sale of his property?
A: YES, if the obligor pay the amount required by the execution and the costs – bayaran mo lahat ang utang mo, ‘di
wala na. That’s what the law says. For example, the bank is foreclosing your mortgage and sell the property at public
auction. To stop the bank from proceeding with the sale, you go to the bank and pay all your obligations. So, wala ng
auction sale. But you have to pay all. “Kalahati lang ang bayaran ko.” Ah, hindi puydi yan.

Sec. 19. How property sold on execution; who may direct manner and
order of sale. All sales of property under execution must be made at
public auction, to the highest bidder, to start at the exact time fixed
in the notice. After sufficient property has been sold to satisfy the
execution, no more shall be sold and any excess property or proceeds of
the sale shall be promptly delivered to the judgment obligor or his
authorized representative, unless otherwise directed by the judgment or
order of the court. When the sale is of real property, consisting of
several known lots, they must be sold separately; or, when a portion of
such real property is claimed by a third person, he may require it to
be sold separately. When the sale is of personal property capable of
manual delivery, it must be sold within view of those attending the
same and in such parcels as are likely to bring the highest price. The
judgment obligor, if present at the sale, may direct the order in which
property, real or personal, shall be sold, when such property consists
of several known lots or parcels which can be sold to advantage
 separately. Neither the officer conducting the execution sale, nor his
deputies, can become a purchaser, nor be interested directly or
indirectly in any purchase at such sale. (21a)

Execution sale shall be done at public auction. The public is invited to bid kaya may public notice. There are even
publication for real property “TO THE HIGHEST BIDDER.” How does it happen? Normally, ang unang magbi-bid diyan is
iyong creditor. And normally, his bid will be equal to the judgment in his favor. For example, the judgment against B is P1
million which includes principal and interest. Ang bid ko P1 million din. Okay lang, bahala ka kung sinong mas mataas
diyan. That is how it normally happens.

Q: Now, suppose there are many properties levied. What is the process?
A: You sell them one by one. Hindi pwede sabay-sabay. [Maysa-maysa laeng balong!] After sufficient property has
been sold and that is enough to satisfy the debt, then do not sell anymore. Do not sell more than what is necessary to satisfy
the judgment.

“When the sale is of real property, consisting of several known lots, they must be sold separately.”

Years ago, I witnessed an auction sale of subdivision here. Obviously, the owner of the subdivision could not pay his
account. So there was a public auction. Of course, the subdivision consists of more than 100 lots — iba-iba ang location,
may mapa eh. Now, you cannot say, “Alright, 150 lots. Pila man?” Hindi puydi iyan. Isa-isa dapat – Lot #1, lot #2, lot #3…
“kaya pa ba iyan? I may be interested to buy only one lot.” So, lot #1, highest bidder, lot #2…until the proceeds are enough
to satisfy the account. So hindi pwedeng one time, garapalan iyan, kapal ng sheriff niyan. “Mga 170 lots…” ah hindi pwede
iyan—isa-isa dapat. That is how tedious it is.

The law says, the debtor, if he is present, he can intervene. He says, “Alright, unahin mo muna ito…” because he may
know of somebody who is willing to buy his property. So he can tell the sheriff, “If you want to sell unahin mo muna ito
because merong malaking bayad yan eh…” in order for his other properties to be saved from the execution.

Now, the last paragraph, the last sentence says, “neither the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any purchase at such sale”. So the sheriff and his deputy
cannot participate in the auction, these are prohibited interest.

I think there is also a prohibition in the Civil Code on this — on prohibited sales. The judge cannot be interested in the
sale of a property which is the subject matter of the litigation. The lawyer here cannot purchase a property involving a case
which he handled, to prevent conflict of interest.

Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay

the amount bid by him for property struck off to him at a sale under
execution, the officer may again sell the property to the highest
bidder and shall not be responsible for any loss occasioned thereby;
but the court may order the refusing purchaser to pay into the court
the amount of such loss, with costs, and may punish him for contempt if
he disobeys the order. The amount of such payment shall be for the
benefit of the person entitled to the proceeds of the execution, unless
the execution has been fully satisfied, in which event such proceeds
shall be for the benefit of the judgment obligor. The officer may
thereafter reject any subsequent bid of such purchaser who refuses to
pay. (22a)

Auction sale: “We are now going to sell this piece of property. Alright, highest bidder—P10,000, next P11,000,
P12,000, P13,000.” Sabi noong isa, “Alright, P40,000!” Sheriff: “Any other bid?—wala na? Ok wala na! then, it’s sold to
you. Saan ang pera mo?” Bidder: “Wala akong pera, biro lang iyon.”

My golly! Pwede kang i-contempt niyan ba! [nagpapatawa, hindi naman kalbo!] You can be declared in contempt of
court. Hindi ito biruan. This is a proceeding. So we will repeat the procedure kasi wala man. Kalokohan pala ito. Bwiset!

Q: May he bid again?

A: No more. The officer may thereafter reject any subsequent bid of such purchaser who refused to pay. So do not fool
around there when you make a bid. You must be serious and you must be ready to pay for you bid.
 Sec. 21. Judgment obligee as purchaser. When the purchaser is the
judgment obligee, and no third-party claim has been filed, he need not
pay the amount of the bid if it does not exceed the amount of his
judgment. If it does, he shall pay only the excess. (23a)

Q: Can the judgment obligee – the creditor-plaintiff – participate in the auction sale?
A: YES, under Section 21. The sale is open to the public. As a matter of fact, in normal auction sale, the first bidder is
the plaintiff himself.

A: Suppose, he is the highest bidder. So the property is declared sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on compensation – I owe you money on the purchase price
for your property but you also owe me money based on the judgment. So quits na tayo. Wala ng bayaran! Iyang property na
ang pinaka-bayad mo.

EXCEPTION: Two (2) instances when obligee may be required to pay for his bid:

1.) When his bid is higher than the judgment. So he has to pay the cash for the excess or

EXAMPLE: The judgment in my favor is P1 million, my bid is P1.2 million and I’m the highest bidder.
So I have to pay you the balance, the P200,000 because that is more than the judgment in my favor.

2.) when the property which is to be sold is a subject of a third party claim because it is really controversial whether
the property is really owned by the judgment debtor.

So, if there is a 3rd party claim, he has to pay because it is controversial - as to who really is the owner
of the property. Of course, iyong pera naka-deposit iyan. Your money will be returned to you if it turns out
the claim is frivolous. If the third party claim turns out to be valid, it will be given to the real owner because
the property that you bought turned out to be owned by somebody who is not your debtor.

Sec. 22. Adjournment of sale. By written consent of the judgment

obligor and obligee, or their duly authorized representatives, the
officer may adjourn the sale to any date and time agreed upon by them.
Without such agreement, he may adjourn the sale from day to day if it
becomes necessary to do so for lack of time to complete the sale on the
day fixed in the notice or the day to which it was adjourned. (24a)

Suppose the auction sale was scheduled today. Hindi natapos because there are many properties to be sold like 200 lots.
Then we can continue tomorrow.

Suppose we will continue next week. Then both parties must agree by written consent of the judgment obligor and
obligee if we will postpone it to another date na mas malayo.

Q: Do you know why these things are very important?

A: Because you already advertised that it will be held on this day. So any change on the date has to be strictly
complied with. That’s the reason behind these.

Q: Now, what properties can be sold at public auction?

A: It’s either personal property or real property. We are sure about that.

TWO TYPES OF PERSONAL PROPERTY:

1.) one capable of manual delivery; and
2.) one not capable of manual delivery – iyong mga intangibles ba!

Q: What is the procedure for the sale of personal property capable of manual delivery and one not capable of manual
delivery?
A: You have Section 23 and Section 24.
 Q: When it comes to real property, what is the procedure?
A: The procedure is Section 25.

So let’s go over there, conveyance to purchaser of personal property capable of manual delivery. Like a car and
appliance or any other tangible object.

Sec. 23. Conveyance to purchaser of personal property capable of

manual delivery. When the purchaser of any personal property, capable
of manual delivery, pays the purchase price, the officer making the
sale must deliver the property to the purchaser and, if desired,
execute and deliver to him a certificate of sale. The sale conveys to
the purchaser all the rights which the judgment obligor had in such
property as of the date of the levy on execution or preliminary
attachment. (25a)

Sec. 24. Conveyance to purchaser of personal property not capable

of manual delivery. When the purchaser of any personal property, not
capable of manual delivery, pays the purchase price, the officer making
the sale must execute and deliver to the purchaser a certificate of
sale. Such certificate conveys to the purchaser all the rights which
the judgment obligor had in such property as of the date of the levy on
execution or preliminary attachment. (26a)

Q: What is the procedure for the sale of property capable of manual delivery?
A: When the property is CAPABLE OF MANUAL DELIVERY, and you are the highest bidder, I will deliver the car to
you, and execute and deliver to you a certificate of sale. The certificate of sale should be signed by the sheriff to prove that
you are the highest bidder. And with that certificate of sale, you can register that with the LTO. Automatically, the LTO will
transfer the ownership and the registration of the car in your name.

Q: What is the procedure for the sale of property NOT CAPABLE OF MANUAL DELIVERY? Mga intangible assets?
A: There is nothing to physically give you. But according to Section 24, the officer making the same must execute and
deliver to the purchaser a certificate and that is actually tantamount to delivery already.

Q: When you buy a personal property at an auction sale and the sheriff executes a certificate of sale in your favor, do
you become the owner of the property?
A: Both sections say, “the sale conveys to the purchaser all the rights which the judgment obligor have in such
property as of the date of the levy on execution.” At the sale, you acquire all the rights which the obligor had in such
property. You become the owner because you acquire the judgment obligor’s right of ownership over such property.
BUT suppose the obligor holding the property is not the owner of the property although he has some right over the
property and his rights where sold, then you only acquire whatever rights he has over the property. You do not acquire
ownership. A spring cannot rise higher than its source.

EXAMPLE: You are the defendant but you enjoy rights over the property as usufructuary – you are the beneficial
owner of the property but not the naked owner. And your rights as usufructuary were levied. I am the purchaser. Can I
acquire naked ownership? Of course NOT. I only acquire beneficial ownership. I only acquire whatever right the debtor has
over the property.

The SC made a commentary on that issue on the nature of the sheriff’s sale and one of which is the case of
LEYSON vs. TAÑADA
109 SCRA 66 [1981]

HELD: “At a sheriff’s sale they do not sell the land advertised to sell, although that is a common
acceptation, but they simply sell what interest in that land the judgment debtor has; and if you buy
his interest, and it afterwards develops that he has none, you are still liable on your bid, because you
have offered so much for his interest in open market, and it is for you to determine before you bid
what is his interest in the property.”
 So, it is for you to determine what his interest is before you bid. That is why you look at the sheriff’s notice of sale,
meron mang warning ba: “Notice to prospective bidders. You are advised to find out whatever interest the debtor has.”

For EXAMPLE: You buy the land and it turns out na hindi pala may-ari iyong taong iyon, iba ang rights niya. Then you
are to uphold his rights, “Ah, I will hold the sheriff liable!” No you cannot. There is no warranty here on ownership.

So, do not confuse this with private sale of property—warranty against eviction—wala iyan sa sheriff’s sale. The sheriff
does not warrant the ownership of the property. The law only warrants the guarantee that you will acquire whatever interest
he has. And if his interest is less than what you expect, pasensha ka. This is a case of CAVEAT EMPTOR – let the buyer
beware. That is the thing you have to remember about action sale.

Sec. 25. Conveyance of real property; certificate thereof given to

purchaser and filed with registry of deeds. Upon a sale of real
property, the officer must give to the purchaser a certificate of sale
containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year
from the date of the registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of the
place where the property is situated. (27a)

If the property sold at public auction is a piece of land (real property), the sheriff will execute in your favor what is
known as the sheriff’s CERTIFICATE OF SALE. Ano’ng nakalagay diyan? It is practically what a normal deed of sale
provides – the description of the land, the property sold, the whole price paid, the lot if there are different parcels, how much
per parcel.

The important paragraph is [d]: “A statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale”.

Q: What is the main difference between a sale of personal property under Section 23 and sale of real property under
Section 25?
A: When the property sold at public auction is real property, the debtor has one (1) year to redeem the property. That’s
what you call the RIGHT OF REDEMPTION from the purchaser. But if the property sold at public auction is personal
property, like cars or appliances, there is no right of redemption.

There is no right of redemption in personal property. That is only recognized in real property. So if your (personal)
property is sold at public auction, and then there is a highest bidder, you cannot say, “Anyway, pwede ko namang bawiin
iyon.” NO, wala iyang bawi, kanya na yan. But if the property sold at public auction is real property, that is not kissing your
land goodbye. You have one year to redeem it. That is your last chance.

Q: Summary: If you are the highest bidder, when do you acquire ownership of the property sold in a auction sale?
A: It DEPENDS whether the property sold is personal or real:
a.) If it is PERSONAL PROPERTY, the title is transferred after payment of the purchase price and delivery upon
the purchaser. Delivery is either physical or symbolic; (Sections 23 & 24)
b.) If it is REAL PROPERTY, the title is transferred, not after the auction sale, but after expiration of the right to
redeem. (Section 25)

There is no right of redemption under personal property. It can only be exercised in real property.

Now, take note that the period to redeem is ONE YEAR FROM THE DATE OF THE REGISTRATION of the
certificate of sale in the office of the registrar of deeds. It is NOT from the date of the auction sale.

Under the old law, malabo eh: “from the date of sale.” Anong sale? Date of the auction sale or date of the issuance of
certificate of sale? According to the SC, the date of the registration. That is the start of the counting. Kaya nga if there is a
sale in your favor, pag i-delay mo ang registration, ikaw ang kawawa because the longer you delay it, the redemption period
is being stretched. Instead of cutting after one year, period of redemption has not been cut off kaya there must be a
registration.

Under the present rule, the right of redemption expires after one (1) year from the date of the registration of the
certificate of sale. Under the old law, it expires after twelve (12) months.

Q: Is the ‘one year’ under the present rule and the ‘12 months’ under the old rules the same?
A: NO, and we know that 12 months is 360 days. One month is 30 days times 12 is 360 days. But one year is 365 days.
So they are not the same.

That’s why before, the redemption period for extrajudicial foreclosure of mortgage is one year. And the redemption in
execution under Rule 39 is 12 months. So there is a difference. But NOW, pareho na.

That’s why the old case of STATE INVESTMENT HOUSE when the SC made the distinction between the one year
period for mortgage and the 12 months period under Rule 39 is already MEANINGLESS because the one year period.
NOW is uniform.

Q: Can you attack the validity of an auction sale?

A: GENERAL RULE: NO, you cannot attack the auction sale on the presumption that every fair sale is final. There is
a presumption of regular performance of duty by the sheriff.

EXCEPTION: When an execution may be set aside:

1.) When it is shown from the nature of the irregularity or from intrinsic facts injury resulted therefrom. (Navarro
vs. Navarro, 76 Phil. 122) Meaning, there were serious irregularities committed by the officer in conducting
the sale like no publication, no notice, no prior levy, etc.;

2.) When the price obtained at the execution sale is shockingly inadequate and it is shown that a better price can
be obtained at a resale. (Barrozo vs. Macadaeg, 83 Phil. 378) Meaning, the highest bid is shockingly
inadequate.

EXAMPLE: I owed you for P100,000 – P100,000 ang judgment! And what is levied is a brand new Mercedes Benz. So
sobra na yon na pambayad sa utang. But the highest bid is P30,000. Just imagine the highest bid is 30,000, tapos meron
pang deficiency judgment for P70,000 – of course, there is something wrong here. So, that is an exception, no! That is,
when the price obtained at the execution sale is SHOCKINGLY INADEQUATE to the senses and it is shown that a better
price can be obtained.

‘Shocking to the senses’ means hindi naman yung the difference is very slight.

EXCEPTION TO THE EXCEPTION: The rule that you can question the validity of the auction sale if the price
obtained is shockingly inadequate applies ONLY when the property sold is PERSONAL property. The exception does not
apply when the property sold is real property because if the property sold is a personal property, there is no right of
redemption. But if the property sold is real property, you cannot complain because, anyway, you have one year to pay and
the redemption price is lower. So, you are not really prejudiced. So why are you complaining? That’s what the SC said in
the case of

RAMOS vs. PABLO

146 SCRA 5 [1986]

HELD: “A reading of plaintiffs' (petitioners') complaint shows that inadequacy of price was raised as one
of the issues. Assuming that the price was shockingly low, the same cannot vitiate the auction sale for
redemption would be comparatively easier.”

That is because the property sold in RAMOS is real property. Pero kung personal property, I think it is really unfair.
You lose the property forever with a very small amount.
 Sec. 26. Certificate of sale where property claimed by third
person. When a property sold by virtue of a writ of execution has been
claimed by a third person, the certificate of sale to be issued by the
sheriff pursuant to sections 23, 24 and 25 of this Rule shall make
express mention of the existence of such third-party claim. (28a)

If the property sold at public auction is a subject of a third party claim under Section 16, the certificate of sale to the
property is issued subject to the outcome of the third party claim by a stranger.

Sec. 27. Who may redeem real property so sold. Real property sold as
provided in the last preceding section, or any part thereof sold
separately, may be redeemed in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his successor in interest in the whole
or any part of the property;
(b) A creditor having a lien by virtue of an attachment, judgment or
mortgage on the property sold, or on some part thereof, subsequent to
the lien under which the property was sold. Such redeeming creditor is
termed a redemptioner. (29a)

That is an important section.

Q: Who are entitled to redeem real property?

A: There are two (2):
1.) The judgment obligor or his successor-in-interest; and
2.) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent to
the lien under which the property was sold. He is know as the REDEMPTIONER.

JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST

Judgment obligor is clear – the defendant who lost the case – the defendant whose property was levied. Or, his
successor-in-interest. For EXAMPLE: During the one year period to redeem, the judgment debtor died. So it could be his
heirs, his children, his spouse who could exercise the right to redeem because they step into his shoes. Also, successor-in-
interest would also refer to a person to whom the obligor assigned or transferred his right to redeem.

Q: Can the defendant sell, aside from transferring, his right to another person?
A: YES, because the right to redeem is property by itself. My right to redeem is also property such as an interest to the
real property which can be the subject matter of a sale.

EXAMPLE: “Alright, may property ako worth P5 million. Na-sheriff for P2 million. Wala na, hindi ko na kaya. Ibenta
ko sa iyo for P3 million. Give me P1 million cash at ikaw na ang mag redeem sa purchaser.” Ginansiya ka pa rin di ba? P5
million gud iyon. So I can sell, and once I sell the right to redeem to you, you are classified as successor-in-interest for the
judgment obligor.

REDEMPTIONER

Q: Define redemptioner.
A: A redemptioner is a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or
on some part thereof, subsequent to the lien under which the property was sold.

ILLUSTRATION: Suppose there is a title owned by X and he has four (4) creditors. Let’s say the property is worth P10
million and he owes A for P2 million. So A levied the property. Now there’s another judgment in favor of B and there is no
other property, ito na lang. So ang ginawa ni B, tinatakan niya – another P2 million.
 Under the Law on Land Titles and Deeds, B has inferior rights. In other words, the right of A is superior to the right of
B. A has no obligation to respect the right of B but B is obliged to respect the right of A. And Assuming that there is a third
creditor – C – for another P2 million. Thus, subsequent holder din si C. If D is also a creditor, apat na sila.

Of course, the right of A is superior. He levies the property, may one year to redeem. Sabi ni X, “Wala na akong
property, so ano pang pakialam ko kay B?” Suppose X will not redeem, so A becomes the owner after one year. What
happens to B, C and D? Bura lahat kayo because you are underneath. A has no obligation to respect your liens.

In other words, A acquires the entire property for only P2M because hindi na interesado si X. Shempre si B interesado.
So B will pay A within the redemption period para matanggal si A. Yung utang ni X na P2M binayaran niya kay A. So P4
million na ang hawak ni B. And B will now be the number one. B will now acquire the property. Pero sabi ni C, “Hindi
pwede iyan, lugi ako!” Kasi pagna-acquire na ni B ang property, patay na naman si C and D. Sabi ni C, “Bababuyin, ah
este… Babayaran kita (B)! O ayan ang P4 million. Saksak mo sa baga mo!” D can do the same thing to C.

Iyan ang tinatawag na redemptioners – people who have lien subsequent because that is your only way to protect your
lien over the property. Anyway, even if D will pay everybody, hindi pa rin lugi because the property is worth P10 million.
But he spent P8 million because he had to buy or redeem it from people who are ahead of him. That is the illustration of
redemptioners, they have a personality or a right to redeem the property from whoever is ahead of him in order to protect his
lien over the property because if he will not redeem, the quickest one will acquire the property free from any lien or
encumbrance. Eh, kung wala na yung property? Patay na ako. What property will I get to satisfy the account wala na akong
property, isa nalang. That is the rule on redemption. That is what Section 27 is all about.

Take note that redemptioners cannot redeem if the judgment debtor redeems.

(For Review Class) Now, let us discuss the case of PALICTE vs. REMOLITE, infa. This case is instructive on the issue
of right of redemption under Rule 39 in relation to special proceedings – the estate of deceased person. This is what
happened:

PALICTE vs. REMOLETE

154 SCRA 132 [1987]

FACTS: A man lost a case and his properties were levied. So let’s say his properties were levied for P1
million. But during the 1-year period of redemption, he died. And he is survived by 5 children. And there is an
administrator appointed by the court to administer the properties of the deceased. During the one period to
redeem, one of five children, siguro mayaman, redeemed the properties of their father.

Take note that only one of the heirs redeemed the entire property from the judgment creditor- obligee. And
one of the issues raised is whether one heir alone has the personality to redeem from the creditor the property
of the estate when there is an administrator. Remember, ha – the legal representative under the law, is the
administrator.

ISSUE #1: So, who has the right to redeem? The heir or the administrator?
HELD: The HEIR has the right to redeem. “At the moment of the decedent’s death, the heirs start to own
the property, subject to the decedent’s liabilities. In fact, they may dispose of the same even while the property
is under administration. If the heirs may dispose of their shares in the decedent’s property even while it is
under administration with more reason should the heirs be allowed to redeem redeemable properties despite
the presence of an administrator.”

ISSUE #2: Must the one redeeming prove that the other co-heirs, the administrator and the court
expressly agreed to the redemption? Is it necessary for him to get their consent?
HELD: “There is NO NEED for such prior approval. While it may have been desirable, it is not
indispensable. There is likewise nothing in the records to indicate that the redemption was not
beneficial to the estate.” Anyway, the estate was benefited. The property was returned to the estate
rather than acquired by the creditors.

ISSUE #3: How can one specific heir redeem alone when his interest in the estate is not fixed and
determinate pending the order of distribution by the court? He is just a 1/5 owner and then he is redeeming
 everything, how can that be done?
HELD: “It may be true that the interest of a specific heir is not yet fixed and determinate pending the
order of distribution BUT, nonetheless, the heir’s interest in the preservation of the estate and the recovery of
its properties is greater than anybody else’s, definitely more than the administrator’s who merely holds it for
the creditors, the heirs, and the legatees.”

ISSUE #4: Can we not consider the administrator as the judgment-debtor himself and the only one
successor-in-interest?
HELD: NO. “The estate of the deceased is the judgment-debtor and the heirs who will eventually acquire
that estate should not be prohibited from doing their share in its preservation.”

ISSUE #5: So, sabi ng redeeming heir, “Okey, so now let the property be registered in my name
because pera ko man ang ginamit. I spent my money in paying the property including the shares of my
brothers and sisters who have no money.” Is the redeeming heir correct?
HELD: NO. “The motion to transfer the titles of the properties to the name of the redeeming heir cannot
prosper at this time. Otherwise, to allow such transfer of title would amount to a distribution of the estate.”
That is tantamount to premature distribution of the estate. You cannot distribute the estate in favor of one heir
immediately.
So, what is the solution? “The other heirs are, therefore, given a six-month period to join as co-
redemptioners in the redemption made by the petitioner before the motion to transfer titles to the latter’s name
may be granted.”

So meaning, if the other heirs are given 6 months, hindi nyo mabayaran, pwede na yan, kasi pera man niya ang ginamit.

Sec. 28. Time and manner of, and amounts payable on, successive
redemptions; notice to be given and filed. The judgment obligor, or
redemptioner, may redeem the property from the purchaser, at any time
within one (1) year from the date of the registration of the
certificate of sale, by paying the purchaser the amount of his
purchase, with one per centum per month interest thereon in addition,
up to the time of redemption, together with the amount of any
assessments or taxes which the purchaser may have paid thereon after
purchase, and interest on such last named amount at the same rate; and
if the purchaser be also a creditor having a prior lien to that of the
redemptioner, other than the judgment under which such purchase was
made, the amount of such other lien, with interest.
Property so redeemed may again be redeemed within sixty (60) days
after the last redemption upon payment of the sum paid on the last
redemption, with two per centum thereon in addition, and the amount of
any assessments or taxes which the last redemptioner may have paid
thereon after redemption by him, with interest on such last-named
amount, and in addition, the amount of any liens held by said last
redemptioner prior to his own, with interest. The property may be
again, and as often as a redemptioner is so disposed, redeemed from any
previous redemptioner within sixty (60) days after the last redemption,
on paying the sum paid on the last previous redemption, with two per
centum thereon in addition, and the amounts of any assessments or taxes
which the last previous redemptioner paid after the redemption thereon,
with interest thereon, and the amount of any liens held by the last
redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who
made the sale and a duplicate filed with the registry of deeds of the
place, and if any assessments or taxes are paid by the redemptioner or
if he has or acquires any lien other than that upon which the
redemption was made, notice thereof must in like manner be given to the
officer and filed with the registry of deeds; if such notice be not
 filed, the property may be redeemed without paying such assessments,
taxes, or liens. (30a)

ILLUSTRATION: Brown Sugar is a judgment obligor. She has four creditors (A, B, C, and D) and all of them obtained
judgment against her and all of them levied on the same property. Brown Sugar is given one year from the registration of the
sale to redeem it from A. Now, suppose SUGAR cannot redeem, B will be the one to redeem because the first redemptioner
and the judgment obligor have one year to redeem from the date of registration. That is what Section 28 says “the judgment
obligor, or redemptioner.” Now, C is given 60 days to redeem. After that, wala ng right. Suppose C was able to redeem, D
has another 60 days to redeem from C.

Q: So what is the period of redemption?

A: There are two periods of redemption: The judgment obligor and first redemptioner are given ONE YEAR from the
date of registration of the certificate of sale to redeem and after that all subsequent redemptioners are given 60 days.

So the second redemptioner can redeem it within 60 days. So, within 60 days, the 3rd redemptioner can redeem it. Pasa
yan, in order that the redemptioner can protect their lien over the property. So, the redemption period is ONE YEAR and 60
DAYS respectively.

Q: Now, suppose Brown Sugar or B would like to redeem the property from A. How much will the property be
redeemed?
A: Under Section 28, the purchase or the bid price for the property PLUS one percent per month interest, and
reimbursement for taxes of the property with interest also. But definitely, the redemption price = the bid price + 1% interest
month. So, if you will redeem after one year, the bid price and 12% of the bid price.

ILLUSTRATION: So kung P1 million ang bid price plus + P120,000 (1%/month) = P1.12 million

Now there are two interesting cases here which I want you to remember. The conflicting ruling in PNB vs. CA (140
SCRA 360) and the case of SY vs. CA (172 SCRA 125). The two cases involved a foreclosure of mortgage not execution
but the Rules of Court applies. Under the extra-judicial foreclosure of mortgage Act 3135, the provision of the Rules of
Court are also applicable to redemption in a foreclosure sale. So the provision in Section 28 also applies to the redemption
during an extrajudicial foreclosure of property.

PNB vs. COURT OFAPPEALS

140 SCRA 360 [1985]

FACTS: Suppose I will borrow money from the bank and stipulate an interest at 24% per annum. During
the auction sale, it was sold to the bank. Within one year, you approach me, gusto mo na i-redeem. Magkano
ang bid price—P2M plus interest of 2% per month for the next seven or eight months. Sabihin ng debtor, “No,
1% lang. Di ba nakalagay sa law 1% lang.” Pero ang usapan natin is 3% monthly.

ISSUE: So which prevails - the 1% per month under the Rules of Court or the 2% per month as
stipulated in the promissory note?

HELD: The 1% of the Rules of Court prevails. Why? The rights of the debtor or creditor, the bank for
example, under the promissory note, or even under the mortgage law, is only good up to the auction sale. From
the moment the auction sale is finished and there was already a bid, we are now talking of the one year period
to redeem. So the rate in the promissory note is no longer applicable.

The case of PNB was somehow modified by the SC in the subsequent case of Sy vs. CA (172 SCRA 125) where the
facts are identical.
SY vs. COURT OF APPEALS
172 SCRA 125 [1989]

FACTS: They borrowed money from the bank at 2% a month and they failed to pay the loan. Thus, there
was a foreclosure of mortgage then there was an execution of sale.

ISSUE: Within the one year period of redemption, pila man ang interest? The debtor will say 1% but
 according to the bank, it is 2% as stipulated. Which will prevail?

HELD: The 3% a month stipulated under the mortgage contract prevails. Why? Because of a special law
– Section 78 of the General Banking Act R.A. 337. Between Section 28 of Rule 39 and Section 78 of the
General Banking Act, the latter prevails because it is a special law. It applies to banks.
“The General Banking Act partakes of the nature of an amendment to the mortgage law in so far as the
redemption price is concerned. When the mortgagee or the creditor is a bank or banking credit institution,
Section 6 of the mortgage law in relation to Section 28 of Rule 39 of the Rules of Court is inconsistent with
Section 78 of the General Banking Act.” So the bank rate prevails.

Paano nangyari ito? I have only one single explanation. Hindi nakita ng mga abogado ng PNB ang provision na iyon.
They did not research very well. They failed to cite the provision of the General Banking Act which authorizes the bank to
continue charging the higher rate even during the redemption period. Ginamit ng SC ang general rule eh. So mas magaling
ang lawyer nung bank in the second case because they were able to detect an exception under the general rule.

You know, if you are a lawyer of a bank, you must know all the laws regarding banks. Just the same, if you are a labor
lawyer, you master all the labor laws. But if you are a bar candidate, you master all laws! Yaaaann!

Sec. 29. Effect of redemption by judgment obligor, and a

certificate to be delivered and recorded thereupon; to whom payments
on redemption made. If the judgment obligor redeems, he must make the
same payments as are required to effect a redemption by a redemptioner,
whereupon, no further redemption shall be allowed and he is restored to
his estate. The person to whom the redemption payment is made must
execute and deliver to him a certificate of redemption acknowledged
before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such certificate must
be filed and recorded in the registry of deeds of the place in which
the property is situated, and the registrar of deeds must note the
record thereof on the margin of the record of the certificate of sale.
The payments mentioned in this and the last preceding sections may be
made to the purchaser or redemptioner, or for him to the officer who
made the sale. (31a)

Q: Suppose Tikla redeems the property from Joshua. If the sheriff will execute in favor of Tikla a certificate of
redemption, to whom should Tikla pay?
A: The law says she can pay directly to the purchaser, the redemptioner or the person who made the sale.

Sec. 30. Proof required of redemptioner. A redemptioner must produce

to the officer, or person from whom he seeks to redeem, and serve with
his notice to the officer a copy of the judgment or final order under
which he claims the right to redeem, certified by the clerk of the
court wherein the judgment or final order is entered; or, if he redeems
upon a mortgage or other lien, a memorandum of the record thereof,
certified by the registrar of deeds; or an original or certified copy
of any assignment necessary to establish his claim; and an affidavit
executed by him or his agent, showing the amount then actually due on
the lien. (32a)

When the ORIGINAL OWNER wants to redeem the property from B, there is NO NEED for him to prove his right as a
judgment debtor. The judgment debtor has the automatic right to redeem.

But when it is B, C or D (REDEMPTIONERS) who wants to redeem, they MUST PROVE to the sheriff that they are
qualified to redeem. They must prove their status because not every person in the world has the right to redeem. The right to
redeem is only given to the debtor, the successor-in-interest or the redemptioner. Thus, you must prove your personality to
effect redemption.
 Sec. 31. Manner of using premises pending redemption; waste
restrained. Until the expiration of the time allowed for redemption,
the court may, as in other proper cases, restrain the commission of
waste on the property by injunction, on the application of the
purchaser or the judgment obligee, with or without notice; but it is
not waste for a person in possession of the property at the time of the
sale, or entitled to possession afterwards, during the period allowed
for redemption, to continue to use it in the same manner in which it
was previously used; or to use it in the ordinary course of husbandry;
or to make the necessary repairs to buildings thereon while he occupies
the property. (33a)

PROBLEM: Suppose X is the debtor, A is the purchaser because the highest bidder could be any person. During the 1-
year period to redeem, who is in possessor of the property? The purchaser or the debtor?
A: The DEBTOR. During the one-year period, iyo pa rin yan. The buyer or the purchaser cannot take over during the
institution. He has to wait for the one-year period to expire before he can take over. Therefore, X continues to occupy the
property. He continues to use it the same manner it was previously used. Use it in the ordinary course of husbandry, to make
the necessary repairs to buildings thereon while he occupies the property.

Q: Suppose 8 months has passed. Sabi ni X, “Mukhang wala na akong pag-asa. Hindi ko na ito mababayaran. Sige,
wasakin ko na lang ang property. Sirain ko na lang. I will make a waste of the land. I will cut all the coconut trees. I will
destroy all the improvements. Para pag-take-over mo, wala na. Bwahahaha!” What is the remedy of A?
A: He can ask the court to issue a writ of injunction according to Section 31 – an injunction to restrain the commission
of waste on the property. So, you can also stop him by injunction.

Sec. 32. Rents, earnings and income of property pending redemption.

The purchaser or a redemptioner shall not be entitled to receive the
rents, earnings and income of the property sold on execution, or the
value of the use and occupation thereof when such property is in the
possession of a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment obligor until
the expiration of his period of redemption. (34a)

Section 32 is the continuation of Section 31.

Q: My property was sold on execution in your favor. But my property earns income. May mga tenants diyan na
nagbabayad ng renta. During the one-year period, who will get the rentals? The purchaser or the debtor?
A: The DEBTOR. He continues to receive all the earnings. For defensive purposes, he is still the owner. Do not say
that, “Ako ang highest bidder, akin ang income!” (Gunggong!) You wait for the one-year redemption period to expire to get
the income.

Under the OLD rules, the 1964 Rules, during the one-year period to redeem, the debtor/defendant continues to get the
income of the property but when the creditor may opt: “Your Honor, akin ang income ha?” That’s allowed by the old law.
But everything is deductible also form the redemption price. NGAYON wala na yan. 100% the debtor is the one enjoying
the income over the property. That is a major amendment introduced by the 1997 Rules.

Q: Now, what happens if after the lapse of one year there is no redemption? What is the next step?
A: That is Section 33:

Sec. 33. Deed and possession to be given at expiration of

redemption period; by whom executed or given. If no redemption be made
within one (1) year from the date of the registration of the
certificate of sale, the purchaser is entitled to a conveyance and
possession of the property; or, if so redeemed whenever sixty (60) days
have elapsed and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner
is entitled to the conveyance and possession; but in all cases the
judgment obligor shall have the entire period of one (1) year from the
 date of the registration of the sale to redeem the property. The deed
shall be executed by the officer making the sale or by his successor in
office, and in the latter case shall have the same validity as though
the officer making the sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless a third party
is actually holding the property adversely to the judgment obligor.
(35a)

If the period to redeem expires, no more right of redemption. What will happen? The sheriff now will now execute in
favor of the highest bidder or purchaser what is known as the final deed of sale or DEED OF CONVEYANCE. Remember
that there are two documents here which the sheriff executes in case of real property.

Q: What are they (two documents which the sheriff executes in case of real property)?
A: The following:

1.) CERTIFICATE OF SALE. After the auction sale, he will execute in your favor the certificate of sale under
Section 25, by the time you register that, you start counting the one year.

2.) DEED OF CONVEYANCE. If after one year there is no redemption, a deed of conveyance is executed.
(Section 33)

Q: Which of the two documents transfers the ownership to the purchaser?

A: Only the DEED OF CONVEYANCE transfers title to the property.

The certificate of sale one year ago does not transfer the ownership of the land to the purchaser. It is only a memorial
that you are the highest bidder, that you paid so much and that you are the purchaser but there is no transfer of ownership.
Only the final deed of sale in Section 33 conveys title to property. So do not confuse the sheriff’s certificate of sale under
Section 25 with the final deed of sale under Section 33. Although in an extra-judicial foreclosure, there is no need of deed of
sale. Only affidavit of consolidation is needed under the mortgage law.

Q: How can the sheriff give it to you? Suppose the debtor refuse to vacate, is there a need to file another action of
unlawful detainer or forcible entry?
A: There is no more need of filing another action to eject the former owner. The procedure is, the purchaser can ask the
court to issue a WRIT OF POSSESSION under the Property Registration Decree to take over the property.

Now, another interesting case about this stage in relation to property exempted from execution, is the case of
GOMEZ vs. GEALONE
203 SCRA 474 [1991]

FACTS: The property of the defendant was levied and sold in a public auction to the highest bidder. One
year after, there was no redemption. Then after the period has expired, here comes the defendant questioning
the auction sale because the property was exempt from execution and the property really turned out to be
exempt from execution.

ISSUE: Is there a deadline for a judgment debtor to claim exemption from execution of his property? Can
the debtor still raise the issue that the property is exempt from execution after the expiration of the redemption
period.

HELD: The rules do not expressly mention up to what point “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 the levy or within a reasonable time
thereafter.” What is “reasonable time”?
“’REASONABLE TIME,’ for purposes of the law on exemption, does not mean a time after the
expiration of the one-year period for judgment debtors to redeem the property sold on execution,
 otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of
execution - to put an end to litigation.”
“We now rule that claims for exemption from execution of properties under Section 13 must be
presented before its sale on execution by the sheriff.”

Meaning, you raise the issue of exemption at the time of the levy but not later that the auction sale. There is a deadline
because if you claim exemption after that, masyadong ng atrasado—too late na ba. Thus, the claim for exemption must be
raised. That’s the ruling in the case of GOMEZ vs. GEALONE.

Sec. 34. Recovery of price if sale not effective; revival of

judgment. If the purchaser of real property sold on execution, or his
successor in interest, fails to recover the possession thereof, or is
evicted therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or set
aside, or because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property, he may
on motion in the same action or in a separate action recover from the
judgment obligee the price paid, with interest, or so much thereof as
has not been delivered to the judgment obligor; or he may, on motion,
have the original judgment revived in his name for the whole price with
interest, or so much thereof as has been delivered to the judgment
obligor. The judgment so revived shall have the same force and effect
as an original judgment would have as of the date of the revival and no
more. (36a)

Q: Suppose A is the highest bidder. There is a third-party claim which turned out to be valid. So the property is removed
from A. So, paano naman si A? Nakabayad gud siya diyan. Paano niya babawiin ang kuwarta niya?
A: A’s options under Section 34:
1.) Recover the money from obligee (A here is not the judgment obligee); or
2.) Have the judgment revived in your name and you look for other properties of the obligor to execute because:
a.) He lost possession of the property;
b.) He was evicted;
c.) There was irregularity of the proceedings;
d.) The judgment has been reversed or set aside on appeal;
e.) The property sold was exempt from execution; or,
f.) A third person has validity of his claim of the property.

That’s one way of property being removed from the purchaser. Your remedy is to recover the money from the obligee
ASSUMING that the obligee is different from the purchase. Or have the judgment revived in your name – hahabol ka na
lang sa ibang properties ng debtor. That’s the procedure alright.

Sec. 35. Right to contribution or reimbursement. When property

liable to an execution against several persons is sold thereon, and
more than a due proportion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or one of them
pays, without a sale, more than his proportion, he may compel a
contribution from the others; and when a judgment is upon an obligation
of one of them, as security for another, and the surety pays the
amount, or any part thereof, either by sale of his property or before
sale, he may compel repayment from the principal. (37a)

Q: The judgment is against A, B, and C, solidary debtors. A paid everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.

Or if the surety was made to pay the loan, he can claim reimbursement from the principal debtor. That’s under the Law
on Obligations and Contracts—right to reimbursement.
 REMEDIES IN AID OF EXECUTION

Another important portion of the rule to remember are the so-called provisions of the rules in aid of execution –
remedies “in aid of execution” – because execution is a difficult process. The purpose of the remedies in aid of execution is
to help the obligee realize the fruits of the judgment.

It is sometimes very hard to grasp out properties of the obligor especially if he knows how to hide them by conveying
remedies to assist him in locating the properties of the defendant and these remedies in aid of execution are found in Section
36 to Section 43. And the most famous are those found in Sections 36 and 37:

Sec. 36. Examination of judgment obligor when judgment unsatisfied.

When the return of a writ of execution issued against property of a
judgment obligor, or any one of several obligors in the same judgment,
shows that the judgment remains unsatisfied, in whole or in part, the
judgment obligee, at any time after such return is made, shall be
entitled to an order from the court which rendered the said judgment,
requiring such judgment obligor to appear and be examined concerning
his property and income before such court or before a commissioner
appointed by it, at a specified time and place; and proceedings may
thereupon be had for the application of the property and income of the
judgment obligor towards the satisfaction of the judgment. But no
judgment obligor shall be so required to appear before a court or
commissioner outside the province or city in which such obligor resides
or is found. (38a)

Sec. 37. Examination of obligor of judgment obligor. When the return

of a writ of execution against the property of a judgment obligor shows
that the judgment remains unsatisfied, in whole or in part, and upon
proof to the satisfaction of the court which issued the writ, that a
person, corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an order,
require such person, corporation, or other juridical entity, or any
officer or member thereof, to appear before the court or a commissioner
appointed by it, at a time and place within the province or city where
such debtor resides or is found, and be examined concerning the same.
The service of the order shall bind all credits due the judgment
obligor and all money and property of the judgment obligor in the
possession or in the control of such person, corporation, or juridical
entity from the time of service; and the court may also require notice
of such proceedings to be given to any party to the action in such
manner as it may deem proper. (39a)

So under Section 36, you can ask the court to render judgment to allow you to subpoena the obligor and take the
witness stand subject to questioning so that you can discover where his properties are. So in effect, Section 36 is related to
modes of discovery. This is actually a mode of discovery. This is a type of deposition taking. It is related to the subject of
deposition taking where the discovery of the witness stand to effect execution.

EXAMPLE: The sheriff did not find any property of the obligor. So the obligee can file a motion under Section 36 for
examination of the obligor under oath hoping that in the course of asking questions, he might make some admissions. And
the procedure is the same as in deposition but this is only done right inside the courtroom.

On the other hand under Section 37, you can also examine people whom you believe owe the obligor such as his
debtors, or those holding his property, so that you can discover all his collectibles and ask that the same be garnished. So
this time, it is the “obligor” of the judgment obligor who will be examined.

EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a sum of money. The obligee can file a motion
under Section 37 to subpoena Kenneth, Thadd and Francis to find out if it is true that they are indebted to the judgment
obligor. In this case, the obligee can as the court to garnish the money.
 So, those are the objects of Sections 36 and 37. Of course there are others, just go over them.

Sec. 38. Enforcement of attendance and conduct of examination. A

party or other person may be compelled, by an order or subpoena, to
attend before the court or commissioner to testify as provided in the
two preceding sections, and upon failure to obey such order or subpoena
or to be sworn, or to answer as a witness or to subscribe his
deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the proceedings may be
adjourned from time to time, until they are completed. If the
examination is before a commissioner, he must take it in writing and
certify it to the court. All examinations and answers before a court or
commissioner must be under oath, and when a corporation or other
juridical entity answers, it must be on the oath of an authorized
officer or agent thereof. (40a)

Section 38 is the continuation of Section 37. If the judgment obligor, or Kenneth, Thad and Francis refuse to comply
with the subpoena, they can be punished for contempt.

Sec. 39. Obligor may pay execution against obligee. After a writ of
execution against property has been issued, a person indebted to the
judgment obligor may pay to the sheriff holding the writ of execution
the amount of his debt or so much thereof as may be necessary to
satisfy the judgment, in the manner prescribed in section 9 of this
Rule, and the sheriff's receipt shall be a sufficient discharge for the
amount so paid or directed to be credited by the judgment obligee on
the execution. (41a)

Here, there is a change of the party creditor. The best example is garnishment from a bank. B is the debtor of the
judgment obligor. If B, instead of paying the judgment obligor, will pay the judgment creditor, B is no longer indebted to
the judgment obligor.

Sec. 40. Order for application of property and income to

satisfaction of judgment. The court may order any property of the
judgment obligor, or money due him, not exempt from execution, in the
hands of either himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the judgment,
subject to any prior rights over such property.
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his personal
services are more than necessary for the support of his family, the
court may order that he pay the judgment in fixed monthly installments,
and upon his failure to pay any such installment when due without good
excuse, may punish him for indirect contempt. (42a)

If upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of his family, the court may order that he pay the judgment
obligee in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may
punish him for indirect contempt.

Q: Can the salary of an employee be garnished?

A: Yes IF there is excess for support of his family. (Section 40) Section 40 related to Section 13, paragraph [i]
properties exempt from execution:

(i) So much of the salaries, wages, or earnings of the judgment

obligor for his personal services within the four months preceding the
 levy as are necessary for the support of his family;

Normally, you cannot levy on the earnings of a person which he needs for support of his family. But actually, it is not
the entire earnings because if you’re earning a lot, it is more than sufficient for your family. So the excess of your income
can be garnished under Section 40.

Sec. 41. Appointment of receiver. The court may appoint a receiver

of the property of the judgment obligor; and it may also forbid a
transfer or other disposition of, or any interference with, the
property of the judgment obligor not exempt from execution. (43a)

The court may appoint a receiver who is an officer of the court who will manage the property of the litigants pending
litigation. This remedy is found under Rule 59 on Receivership. The purpose of receivership is to preserve the property by
placing it in the hands of the court to remove it from the control of a party because a party may dispose of the property.

Sec. 42. Sale of ascertainable interest of judgment obligor in real

estate. If it appears that the judgment obligor has an interest in real
estate in the place in which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein can be ascertained
without controversy, the receiver may be ordered to sell and convey
such real estate or the interest of the obligor therein; and such sale
shall be conducted in all respects in the same manner as is provided
for the sale of real estate upon execution, and the proceedings thereon
shall be approved by the court before the execution of the deed. (44a)

EXAMPLE: The obligor turns out to have an interest in real property as a mortgagee, or he has a right to redeem, or
right to foreclose, or right to repurchase. The obligee can levy on these rights because these rights are property rights by
themselves. This time, it is not the property which is sold but your interest.

Sec. 43. Proceedings when indebtedness denied or another person

claims the property. If it appears that a person or corporation,
alleged to have property of the judgment obligor or to be indebted to
him, claims an interest in the property adverse to him or denies the
debt, the court may authorize, by an order made to that effect, the
judgment obligee to institute an action against such person or
corporation for the recovery of such interest or debt, forbid a
transfer or other disposition of such interest or debt within one
hundred twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may be modified
or vacated at any time by the court which issued it, or by the court in
which the action is brought, upon such terms as may be just. (45a)

EXAMPLE: The obligee cannot find any property of the obligor. But there is a rumor that Pong owes the obligor a sum
of money. Upon examination, Pong denies indebtedness. But the obligee believes that he has evidence that Pong owes the
obligor money. In this case, the obligee can ask the court that he be allowed to file a collection case against Pong on behalf
of the obligor.

Q: Can the obligee considered as a real party in interest in this case?

A: YES. The obligee is now considered as a representative party. Section 43 is an example of the phrase, “ or a party
authorized by law or these Rules…” under Rule 3, Section 3:

Sec. 3. Representatives as parties. x x x x x A representative may

be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. x x x x x x

SATISFACTION OF JUDGMENT
 Sec. 44. Entry of satisfaction of judgment by clerk of court.
Satisfaction of a judgment shall be entered by the clerk of court in
the court docket, and in the execution book, upon the return of a writ
of execution showing the full satisfaction of the judgment, or upon the
filing of an admission to the satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance of real property by the
judgment obligee or by his counsel unless a revocation of his authority
is filed, or upon the endorsement of such admission by the judgment
obligee or his counsel on the face of the record of the judgment. (46a)

Sec. 45. Entry of satisfaction with or without admission. Whenever a

judgment is satisfied in fact, or otherwise than upon an execution, on
demand of the judgment obligor, the judgment obligee or his counsel
must execute and acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding section, and after
notice and upon motion the court may order either the judgment obligee
or his counsel to do so, or may order the entry of satisfaction to be
made without such admission. (47a)

Q: What does satisfaction of judgement mean?

A: SATISFACTION OF JUDGMENT is the compliance with or fulfillment of the mandate thereof (31 Am. Jur. 354).

Execution is not the same as satisfaction. Execution is the method of enforcement of a judgment. Satisfaction refers to
compliance with or fulfillment of the mandate of judgment. Normally, execution precedes satisfaction. But you can satisfy
a judgment without execution by simply paying voluntarily. And when the judgment is satisfied, it has to be recorded the
manner of which is found in Sections 44 and 45 – either the sheriff himself will record “fully satisfied,” or, the creditor will
file an admission that the judgment is fully satisfied, or, the debtor on motion will ask that it be recorded that he has already
paid.

Q: Who may compel satisfaction of judgment?

A: Satisfaction of judgment may be compelled by the judgment-creditor by means of execution, or by the judgment-
debtor by means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236)

Now, here is an interesting question which has not yet been asked in the Bar. They were expecting it as early as 2 years
ago.

Q: Can a plaintiff appeal from the judgment and at the same time move for execution of the same? Can you do both
without being self-contradictory? Can you demand satisfaction of judgment and at the same time appeal said judgment?
A: PRIOR CASES say, you cannot do it because it is inconsistent. When you comply with the satisfaction of judgment,
you are already accepting the correctness of judgment. But when you are appealing it, you do not accept the same. That was
the old ruling which was MODIFIED in the case of

VITAL-GOSON vs. COURT OF APPEALS

212 SCRA 235 [1992] (en banc)

ISSUE: Whether or not a judgment creditor is estopped from appealing or seeking modification
of a judgment which has been executed at his instance.

HELD: It depends upon the nature of the judgment as being indivisible or not. This is the doctrine laid
down by this Court in a case decided as early as 1925, Verches v. Rios, where the judgment is INDIVISIBLE,
acceptance of full satisfaction of the judgment annihilates the right to further prosecute the appeal; and that
even partial execution by compulsory legal process at the instance of the prevailing party, places said party in
estoppel to ask that the judgment be amended.” Indivisible means either you accept it as correct or you appeal.
But you can not have your cake and eat it too.
“Where the judgment is DIVISIBLE, estoppel should not operate against the judgment creditor who
causes implementation of a part of the decision by writ of execution. This is the clear import of Verches .and
the precedents therein invoked. The principle is fully consistent not only with the opinion that acceptance of
 payment of only the uncontroverted part of the claim should not preclude the plaintiff from prosecuting his
appeal, to determine whether he should not have been allowed more, but also with logic and common sense.”
In other words, if a judgment is divisible, there is no prohibition.

EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or more causes of action – I am satisfied with one
cause but I am not with the other. So, my appeal is only on the 2nd cause of action where the award should be higher. I am
not appealing in the first cause of action and the defendant did not also appeal. So I can move to execute that portion of
judgment, as far as the first cause of action is concerned and continue with my appeal on the second. This is a divisible
judgment. This is allowed.

PROBLEM: Plaintiff sues for P1 million damages. The court gave an award of P500,000 only (one-half the damages
sued for). Defendant did not appeal because he is satisfied with the judgement. Meaning, he accepts the liability of up to
P500,000, “Judgment is good.” Plaintiff, however, is not satisfied, “It should be P1 million, so I will appeal.” He believes
that even if he loses the appeal, he is insured as to the P500,000.
Q: Can plaintiff move for the satisfaction of P500,000 and let the other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with respect to the first half. To my mind, this is a DIVISIBLE
judgment since defendant accepts it and even if plaintiff loses appeal, the former is still liable up to P500,000. So the
plaintiff might as well claim it now for it is final insofar as the defendant is concerned while plaintiff’s appeal is with
respect to the balance. This is a possibility under the ruling in VITAL-GOSON.

Sec. 46. When principal bound by judgment against surety. When a

judgment is rendered against a party who stands as surety for another,
the latter is also bound from the time that he has notice of the action
or proceeding, and an opportunity at the surety's request to join in
the defense. (48a)

When there is a judgment against the surety, the principal debtor is also bound by the judgment from the time he has
notice of the action or proceeding and an opportunity at the surety’s request to join in the defense. The surety is only liable
legally but the real party liable is the debtor.

RES ADJUDICATA

And finally, the most important section in Rule 39 is Section 47 – effect of judgment or final order. This is what we call
the principle of res adjudicata.

Sec. 47. Effect of judgments or final orders. The effect of a

judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as
follows:
(a) In case of a judgment or final order against a specific thing,
or in respect to the probate of a will, or the administration of the
estate of a deceased person, or in respect to the personal, political,
or legal condition or status of a particular person or his relationship
to another, the judgment or final order is conclusive upon the title to
the thing, the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or granting
of letters of administration shall only be prima facie evidence of the
death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to
the matter directly adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the commencement of
the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have been
 so adjudged, or which was actually and necessarily included therein or
necessary thereto. (49a)

We know what this is all about – when the matter is already decided or finish already, you cannot re-open that easily.
The direct provision of law which enunciates that principle is Section 47, which is composed of 3 portions: paragraphs [a],
[b] and [c].

Now, paragraph [a] is the principle of res adjudicata as applied in judgment in rem (binding on the whole world) or at
least quasi in rem. Paragraphs [b] and [c] are the application of the same doctrine with respect to judgment in personam
(binding only on the parties).

RES ADJUDICATA and RES JUDICATA are the same. In the Philippines, that is influenced by Roman Law and
Spanish Law (Pua vs. Lapitan, 57 O.G. 4914) But the principle is known worldwide, although maybe known by another
name. In Anglo-American law, it is known as the doctrine of Estoppel By Judgment (Fajardo vs. Bayona, 98 Phil. 659). But
it is the same. The concept is similar. That is why in the 1994 case of

SALUD vs. COURT OF APPEALS

236 SCRA 384 [1994]

HELD: “The rules of res judicata are of common law origin and they initially evolved from court
decisions. It is now considered a principle of universal jurisprudence forming a part of the legal system of all
civilized nations.”

Q: What is the FOUNDATION PRINCIPLE upon which the doctrine of res judicata rests?
A: It rests from the principle that parties ought not to be permitted to litigate the same issue more than once; that when
a right or fact has been judicially tried and determined by a court of competent jurisdiction, or where an opportunity for
such trial had been given, the judgment of the court shall be conclusive upon the parties and those in privity with them.
Otherwise, without this doctrine, litigation would become interminable, rights of parties would be involved in endless
confusion, courts would be stripped of their most efficient powers, and the most important function of government, that of
ascertaining and enforcing rights, would go unfulfilled. (Zambales Academy vs. Villanueva, L-19884, May 8, 1969; People
vs. Macadaeg, 91 Phil. 410; Oberiano vs. Sobremesana, L-4622, May 30, 1952; Peñalosa vs. Tuazon, 22 Phil. 303)

I think we agree with that. Imagine, if two persons litigated for years over the ownership of a parcel of land. Then after
years of litigation, all the way to the SC, defendant won. Final. After one generation, both plaintiff and defendant are dead
but their children would continue. Here comes the children of the plaintiff raising the same issue of ownership. So, there is
no end if there is no res judicata.

REQUISITES OF RES ADJUDICATA

What are the requisites of res adjudicata? How do we know, since there are 2 cases here? Does it mean that simply
because there is a case between us, there will be no more case between us in the future? NO.

Q: So what are the requisites of res adjudicata?

A: There is res judicata if the following REQUISITES are present:

1.) The judgment or order invoked as res adjudicata must be final;

2.) The court rendering the same must have jurisdiction over the subject matter and of the parties;
3.) The judgment or order must be upon the merits; and
4.) There must be, between the two cases, identity of parties, identity of subject matter, and identity of cause of
action.

So the elements are similar with litis pendentia. Actually, they are based on the same rule – splitting of the cause of
action. The only difference is, in litis pendentia, the first action is still pending. In res adjudicata, the first action has already
been decided and the decision has already become final.

First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL

 When it says ‘final’, the previous judgment has been final and executory (Hubahib vs. Insular Drug, 64 Phil. 119)
Meaning, it can no longer be changed. This is because there is such a thing as final and appealable. A final and executory
judgment is already beyond the power of the court to alter while a final and appealable judgment is still subject to
modification by the appellate court. (Macapinlac vs. CA, 86 Phil. 359)

So where there is a judgment now that you received, and before it becomes executory, you filed another case, it is not
res judicata. It is litis pendentia because the first case is still pending.

EXAMPLE: Jessa files a case against Charles. Charles lost and then appealed. While his appeal is pending, Jessa filed
the same case against Charles. Charles filed a motion to dismiss the second case. The ground for the motion to dismiss
should be Litis Pendentia because while there is already a decision, the same is not yet final and executory. It is still on
appeal. In such case, it is improper to invoke the principle of res adjudicata because the first element is missing.

Q: Now, when did the first judgment become final? Is it before the second case is filed? Or is it after the second case
filed?
A: Either one. It could have been final before the filing of the second action or after, provided when the defendant
invoked it, the first judgment is already final. (Galiancia vs. CA, 173 SCRA 42)

Second Requisite: THE COURT RENDERING THE SAME MUST HAVE JURISDICTION OVER THE SUBJECT
MATTER AND OF THE PARTIES

Meaning, the first judgment is valid because if the court never acquired jurisdiction over the subject matter and the
parties and rendered judgment, the judgment is void and cannot be invoked as res judicata. (Banco Español-Filipino vs.
Palanca, 37 Phil. 921)

Q: May a voidable judgment be invoked as res adjudicata?

A: YES because such kind of judgment is binding upon the parties until annulled. (Reyes vs. Barretto-Datu, 94 Phil.
446)

Now, the classic example of the second element is the case which I mentioned to you when we were in Rule 17 – the
case of

REPUBLIC PLANTERS BANK (RBP) vs. MOLINA

166 SCRA 39 [1988]

FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned
because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After
a while the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent.
So, following Section 3 of Rule 17, the dismissal is with prejudice – “it shall have the effect of an
adjudication upon the merits, unless the order provides otherwise.”
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed
the compliant. Defendant moved to dismiss because when the first complaint was dismissed and the
order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under
Rule 39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the
case both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he was
never served with summons. Therefore, such dismissal did not have the effect of res adjudicata. The second
element of res judicata is missing.

Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE MERITS

What do we mean by this? A judgment on the merits for the purpose of res judicata is one finally settling the issues
raised in the pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it is after trial when there is presentation of
evidence.

Therefore, when a complaint is dismissed for lack of jurisdiction or improper venue, even if said dismissal becomes
final, the plaintiff can re-file the case because the dismissal upon improper venue or lack of jurisdiction is not upon the
merits. It never dealt with the correctness or validity of the cause of action. There should be trial, generally.

So, GENERALLY, a dismissal without a trial is not an adjudication upon the merits EXCEPT in Rule 17, Section 3
where the case was dismissed for failure of the plaintiff to appear during the presentation of his evidence in chief, or to
prosecute his action for an unreasonable, period of time, or failed to comply with the rules or order of the court. There is no
trial there but according to Rule 17, Section 3, the dismissal shall have the effect of an adjudication upon the merits. This is
the exception even if there was no trial in the first case.

Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES, IDENTITY OF PARTIES, IDENTITY OF
SUBJECT MATTER, AND IDENTITY OF CAUSE OF ACTION

I. IDENTITY OF PARTIES

Q: When there is identity of parties for the purpose of res judicata?

A: There is identity of parties for the purpose of res judicata:

1.) When the parties in the second action are the same as the parties in the first action; or

2.) When the parties in the second action are successors-in-interest of the parties in the first action, such as heirs
or purchasers who acquired title after the commencement of the first action.

EXAMPLE: The example I gave you, the quarrel between parents, then the children did the
same. That is the same parties. The children are the successors-in-interest of the original parties,
although literally they are not the same parties.

One good illustration of res adjudicata on identity of parties as applied in a labor case was the case of
DELFIN vs. INCIONG
192 SCRA 151 [1990]

NOTE: The doctrine of res adjudicata applies not only to the decisions of regular courts but can be
invoked even in administrative cases. It also applies to decisions of administrative bodies.
FACTS: In the case of DELFIN, a union filed a case of unfair labor practice (ULP) against the employer.
Then later on, the case was dismissed by the NLRC. When the case was dismissed, the employees filed
another case based on the same ULP. The employer invoked res adjudicata and the complainants said, “No, it
is not the same parties. In the first case, it was the union. Now it is us (employees).”

HELD: NO! When the union filed the first case, it was filing in behalf of the employees. This is what you
call representative party. In effect, it is the same party.
“While it is true that the complainants in the first charge was the union, in reality it had no
material interest in the outcome of the case. The real party who stands to be benefited or defeated by
a case brought in the name of the union are the union members themselves. Since the judgment
therein had become final and executory, the subsequent filing of another ULP charge against the
employer for the same violations committed during its existence, is barred by res judicata.”
“The bringing of the same action in the name of the individual members of the union will not take out the
case from the ambit of the principle of res judicata.” So, it is still the same parties.

II. IDENTITY OF SUBJECT MATTER

Q: When is there identity of subject matter?

A: There is identity of subject matter if in the second case, the same thing is involved or included in the first case.
(Agregado vs. Muñoz, 26 Phil. 546)

EXAMPLE: A judgment in an action for the recovery of a large tract of land shall be a bar for a subsequent action for
the recovery of a smaller parcel included in the large tract. (Rubiso vs. Rivera, 41 Phil. 39)

EXAMPLE: A judgment in an action for accounting of a certain funds would be a bar for a subsequent action for the
partition of the same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411)

EXAMPLE: A case for recovery of property was dismissed. The losing party file a second case for recovery of the
value of the property. In this case, there is res adjudicata. So, you can not deviate ‘no? Kahit konting retoke lang, it is the
same.

III. IDENTITY OF CAUSES OF ACTION

Q: When is there identity of causes of action for the purpose of res judicata?
A: There is identity of causes of action for the purpose of res judicata when the two actions are based on the same delict
or wrong committed by the defendant, even if the remedies be different (Qiogue vs. Bautista, L-13159, Feb. 2, 1962). You
cannot change the remedy in order to escape from the principle of res adjudicata.

Sometimes, it is one of the hardest – same cause of action – because sometimes there are 2 causes of action which are
interrelated, even between the same parties. Now, if there are 2 interrelated causes of action, there is no res adjudicata.
Interrelated only, because the law says similar causes of action. That is hard to determine.

That is why the SC had to give some tests to determine whether the causes of action are the same or not. Among these
tests given by the Court:

TESTS TO DETERMINE WHETHER OR NOT THE CAUSES OF ACTION ARE THE SAME:

1) SAME EVIDENCE Test as laid down in the case of

AQUILA ESTATE vs. BACOLOD-MURCIA MILLING CO.

144 SCRA 482

HELD: Res adjudicata can not be applied even though in the 2 cases there is identity of parties,
subject matter, and relief prayed for, the evidence adduced to sustain the cause of action in the first
case is not sufficient to sustain the second case. So, the evidence was sufficient to prove the first case
while the same evidence is not sufficient to prove the second case. Therefore, it must be different
cause of action for how come the same evidence will not suffice anymore. So, it must be a different
one.

2. INCONSISTENCY Test given in the case of

VALENCIA vs. RTC

184 SCRA 80

HELD: One test of the identity of cause of action is whether or not the judgment sought in the subsequent
case will be inconsistent with the prior judgment. Meaning, you are asking for a decision which is in conflict
with the original decision.

Q: Suppose there is an inconsistency, is this a sign of res adjudicata or no res judicata?

A: Well, I think if there is an inconsistency, that is a sign of res adjudicata because you are trying to change what has
already been rendered. To my mind, that is how it should be interpreted because if the judgment I am seeking is inconsistent
with what has been decided, then I think that is violating the rule of res adjudicata – I am re-opening something which was
already decided.
 3.) And the test in the 1995 case of
GUEVARRA vs. BENITO
247 SCRA 570

HELD: The causes of action can not be the same if the cause of action in one case only arose after the
judgment in the other. The principle of res judicata extends only to the facts and conditions as they existed at
the time the judgment was rendered.

Those are the important principles to remember (read the cases in short).

RARE INSTANCES WHERE SC REFUSES TO ALLOW RES JUDICATA DESPITE ITS EXISTENCE

Another point, res adjudicata is a rule of law, rule of convenience, of practicality and when the evidence are present, the
courts shall not allow second litigation. We know that but I have to admit that there are some rare cases where despite the
elements of res adjudicata, the courts refused to allow it.

This what we call EQUITY CASES. But this is very rare. When there is a higher principle to be observed rather than
the rule of res adjudicata – there are higher values of society which would be subverted if we will stick to res adjudicata. A
good example is the case of

SUAREZ vs. COURT OF APPEALS

193 SCRA 183 [1991]

FACTS: This involves a custody case. A certain Rosemarie Manese file a petition for habeas corpus for
the recovery of her minor child from her former live-in partner or common-law husband, Renato Suarez. Later,
Manese filed a motion to dismiss the habeas corpus case for she intended to pursue another remedy – custody
of minor under Rule 99 of the Rules of Court in Special Proceedings.
Actually, as observed by the SC, her move was wrong because you can obtain custody of your child
through habeas corpus. She though she had the wrong remedy, so she changed it. Actually she was correct.
The trouble is, she withdrew it. In the trial for the dismissal of the habeas corpus, it was with prejudice so
actually, it is on the merits ‘no?
Thereafter, she filed the custody case against Suarez. The latter moved to dismiss on the ground of res
adjudicata. All the evidence are admitted there. There was a decision on the merits.

HELD: “The principle of res judicata should be disregarded if its application would involve the sacrifice
of justice to technicality.” In other words, this is what we call EQUITY.
The application of the res adjudicata should be taken on a case to case basis; you cannot say you apply res
adjudicata through and through. It must be taken under the particular facts obtained. Meaning, there are certain
facts in that case which will warrant a deviation from the usual rule, to do “otherwise would amount to denial
of justice and/or bar to a vindication of a legitimate grievance.”
“It is worth stating here that the controversy in the instant case is not just an ordinary suit between parties
over a trivial matter but a litigation initiated by the natural mother over the welfare and custody of her child, in
which the State has a paramount interest.” This is not a simple collection case.
“The fundamental policy of the State as embodied in the Constitution in promoting and protecting the
welfare of children shall not be disregarded by the courts by mere technicality in resolving disputes which
involve the family and the youth.”

So there is a collision here between the family view found in the Constitution and the technical principle of res
adjudicata. If we sustain the principle of res adjudicata then the mother can no longer recover her child. But if we disregard
res judicata, the mother will be given a chance to get back her child, which is higher in value than res judicata.

This principle observed in SUAREZ was actually repeated in the 1994 case of

SALUD vs. COURT OF APPEALS

233 SCRA 284 [1994]
 HELD: “There should not be a mechanical and uncaring reliance on res judicata where more important
societal values deserve protection. The doctrine of res adjudicata is a rule of justice which cannot be rigidly
applied when it results to injustice.”

This is another pronouncement which leans on the equitable side of the situation rather than on the observance of the
technical rules of res adjudicata. You can disagree with the decision but the same can not be wrong. This is what you call
infallible. Infallible means no room for error. That is why Justice Jackson said commenting on the US SC: “We are not final
because we are infallible. But we are infallible because we are final.”

BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF JUDGMENT

If you have read the questionnaire in Remedial Law last September (1997), one of the questions asked by the examiner
is: Distinguish the concept of BAR BY A FORMER JUDGMENT and the concept of CONCLUSIVENESS OF
JUDGMENT.

The two concepts are found in Section 47. The concept of bar by a former judgment is in paragraph [b] and
conclusiveness of judgment is in paragraph [c]. These are two parts of the res adjudicata rule.

The two concepts were discussed by the SC in the case of SALUD: The concept of Bar By A Former Judgment is
known in traditional terminology as merger or bar; and in modern terminology, it is called CLAIM PRECLUSION; while
Conclusiveness Of Judgment is traditionally known as collateral estoppel and in modern terminology it is called ISSUE
PRECLUSION.

Q: Distinguish BAR BY A FORMER JUDGMENT and CONCLUSIVENESS OF JUDGMENT.

A: The following are the distinctions:

1.) As to Effect: If you analyze paragraph [b], there are two judgments – in BAR BY A FORMER JUDGMENT, the
first judgment constitute an absolute bar to all matters directly adjudged as well as matters that might have
been adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first judgment is conclusive only on matters actually litigated and
adjudged in the first action under paragraph [c].

2.) As to the Requisites: In BAR BY A FORMER JUDGMENT, there must be identity of parties, subject matter, and
cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is identity of parties or subject matter, it is not necessary
that there is identity of causes of action.

Of course, for purposes of the bar exams, that kind of answer will suffice but mas maganda if there is illustration: Kung
bar by prior judgment – the first judgment is res adjudicata to the second or matters that have been adjudged and matters
that could have been adjudged in relation thereto.

EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim. I filed a case against you for recovery of land.
Meron ka pa lang claim sa akin for reimbursement for necessary expenses. It must be set-up in the main action otherwise it
is barred forever. But you did not set it up and then afterwards, you file a case against me for reimbursement for necessary
expenses, I will move to dismiss. Your claim is already barred because you should have raised it as a compulsory
counterclaim in the first action. The barring of the counterclaim is considered as the application of res adjudicata by
applying the concept of bar by a former judgment.

EXAMPLE of Conclusiveness of Judgment: The debtor borrows from the creditor P3 million payable in 3 installments
without any acceleration clause. When the first installment fell due the creditor sue the debtor and the debtor raised the
defense of forgery, “That the promissory note is forged and as an alternative defense assuming that the promissory note is
valid, the first installment was already extinguished by payment.” After trial, the court decided against the defendant. Tapos
na. Now, the second installment fell due. It is another cause of action. Now, here comes the plaintiff filing the case to collect
the second installment.

Q: Can the debtor raise again, in the second case, the defense of FORGERY of the promissory note?
 A: NO. Tapos na yan. We have already decided that the promissory note was genuine and that there was no forgery.
This is the same promissory note that we are talking about. So, in other words, the issue of forgery is already adjudged in
the first case and therefore res adjudicata in the second installment.

Q: Can the debtor raise the defense of PAYMENT, that the second installment is already paid or is it also barred?
A: YES, because in the first case what was resolved was whether the first installment is paid. The judgment is already
conclusive on matters directly adjudged but not to matters which have not been adjudged. The issue on whether the second
or third installment have already been paid was never adjudged in the first case. That is the application. Take note that there
is no identity of cause of action.

Another example of Conclusiveness of Judgment was the ruling in the case

CARANDANG vs. VENTURANZA

133 SCRA 344 [1984]

FACTS: This involves a conflict between two brothers, B1 and B2. There is already bad blood between
them because according to B1, B2 appropriated all the properties of their parents. So there was this threat from
B1 to sue B2 to recover his share.
So B2 consulted his friend X. X suggested that B2 enters into a simulated sale with X. B2 sold his
property to X. As expected, B1 filed a case against both of them to annul or rescind the action. Unfortunately,
B1 has never proved that the sale was simulated. The case was dismissed.
Then later B1 died. After that, B2 said to X, “Isauli mo na sa akin ang mga properties ko.” X said, “What
are you talking about? I already bought it from you, akin na ito!” B2 filed a case against X. The defense of X
is res adjudicata.

HELD: There is NO res adjudicata. In the first place, one of the elements of res adjudicata is identity of
parties. Of course, both of them are also parties of the first case but they were not adverse to each other. They
were co-defendants in the first case.
Res adjudicata is only applicable between adverse parties in the former suit and not between parties.
Co-parties for the judgment therein ordinarily settle claims as to their relative rights and liabilities as
co-plaintiffs or co-defendants per se.
But the second reason is, the cause of action is completely different and therefore the judgment in the first
case is conclusive only insofar as the right of B1 is concerned. It cannot be conclusive as to the rights of B2
and X because it is a separate cause of action.

Another was the 1993 case of

VDA FISH BROKER vs. NLRC
228 SCRA 681 [1993]

FACTS: A complaint filed by an employee for non-payment of service incentive leave, COLA, 13th
month pay, holiday pay, is dismissed based on the finding that no employer-employee relationship existed
between the complainant and the respondent. The ruling became final.
Subsequently, the same complainants filed another case against the same respondent for reinstatement due
to illegal dismissal. (How can you file for reinstatement na wala man kayong ER -EE relationship in the first
case???)

ISSUE: Is the finding of no ER-EE relationship in the first case res adjudicata to the second case for
illegal termination?

HELD: YES. “The issue of employer-employee relationship is crucial in the determination of the rights of
the parties in both cases. Res adjudicata applies even when the cause of action is not similar under the concept
of conclusiveness of judgment. The ruling in the first case that there is no Employer-Employee relationship
between the parties is conclusive in subsequent cases although the cause of action is not the same.”
“If were we to ignore the principle of res judicata, an absurd situation would arise where the same
administrative agency would have diametrically opposed conclusions based on apparently similar
circumstances.” This is what will happen - for the second case, there is ER-EE relationship. It is the same
agency which said there is none in the first case. Conflict!
 OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH RES JUDICATA:
A.) LAW OF THE CASE
B.) STARE DECISIS

Another question that can be asked here is, how to explain and distinguish 3 concepts which appear to be similar. These
3 concepts are all anchored on the same thing: there is a final judgement. The concept of res adjudicata, law of the case and
stare decisis. That was also asked in the bar.

We already know RES ADJUDICATA – finality of judgment, or the issues decided in a case, once the decision has
become final and executory and cannot be litigated again by the same parties in a subsequent action involving the same
subject matter. (Peñalosa vs. Tuazon, supra.)

Q: What about the LAW OF THE CASE?

A: LAW OF THE CASE means that legal conclusions announced on a first appeal, whether on the general law of the
law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to strict obedience and
conformity thereto, but they become and remain the law of the case in all after steps, whether in the lower court of in the
appellate court on a subsequent appeal. (Zarate vs. Dir. of Lands, 39 Phil. 747)

EXAMPLE of law of the case: There is a case between us and then an issue is raised before the CA and there is a
ruling, right or wrong. That ruling will subsequently bind the parties in the same litigation. Once the case comes back, the
future now of the case will be governed by that ruling. Right or wrong, that principle will now be the controlling principle
affecting the parties. The principle will continue until the case is terminated.

TABACO vs. COURT OF APPEALS

239 SCRA 485 [1994]

ISSUE: Can a case be re-opened if the law of the case has been changed?

HELD: NO, because when the case was decided, it was the governing law at the time, even if it
turns out to be wrong.
“Under the law of the case concept, whatever is once irrevocably established as the controlling legal
principle or decision continues to be the law of the case between the same parties in the same case, whether
correct or not, so long as the facts on which such decision was predicated continue to be the facts of the case
before the court. Such stability and conclusiveness given to final judgments of courts of competent jurisdiction
are said to be grounded on reasons of public policy, judicial orderliness and economy as well as protection of
the time and interests of the litigants.”

A good EXAMPLE: File ako ng kaso – collection of an unpaid loan based on the provision of the Civil Code but the
debtor said, “There is no cause of action because the provision of the civil code is unconstitutional.” After trial the court
said, “Yes, article so-so of the Civil Code is unconstitutional. The debtor is not obliged to pay.” Tapos na. Final na ang
decision because there was no appeal. What will happen? We are bound. As far as this case is concerned, the Civil Code is
unconstitutional. That is the law of the case.
KILOSBAYAN vs. MORATO
246 SCRA 540 [1995]

HELD: The doctrine of the law of the case applies whenever the case before the court came for the
second time after a ruling of the appellate court (???).

Q: What you mean by STARE DECISIS?

A: Stare Decisis means that the decision of a court should stand as precedents for future guidance (Ballentine’s Law
Dict., 2nd Ed., 1228) Example is the decisions of the SC which stands as precedents for future cases. The purpose of this is
to attain stability and judicial order. That is why we are citing precedents.
 ROSALES vs. COURT OF FIRST INSTANCE
154 SCRA 153 [1987]

HELD: “Precedents are helpful in deciding cases when they are substantially identical with previous
litigations. Argumentum a simili valet in lege. Earlier decisions are guideposts that can lead us in the right
direction as we tread the 'highways and byways of the law in the search for truth and justice. These
pronouncements represent the wisdom of the past. They are the voice of vanished judges talking to the future.
Except where there is a need to reverse them because of an emergent viewpoint or an altered situation, they
urge us strongly that, indeed, the trodden path is best.”

‘Trodden Path’ – example is when you go on hiking like in Mt. Apo. If there is already a path or trail, you will not have
a hard time looking for your way up to the peak of Mt. Apo. There is already a way which will guide you to reach your
destination.

But the doctrine of stare decisis admittedly does not mean that courts should be slave forever to precedents. A doctrine
long standing has also been reversed. The SC explained also why once in a while it abandons the doctrine of stare decisis:

PEOPLE vs. MUÑOZ

170 SCRA 107 [1989]

HELD: “If we have seen fit to take a second look at the doctrine on which we were all agreed
before, it is not because of a change in the composition of this body. It is virtually the same Court
that is changing its mind after reflecting on the question again in the light of new perspectives. The
decisions of this Court are not petrified rules grown rigid once pronounced but vital, growing
things subject to change as all life is. While we are told that the trodden path is best, this should not
prevent us from opening a fresh trial or exploring the other side or testing a new idea in a spirit of
continuing inquiry.”

Q: Distinguish Res Adjudicata and Stare Decisis.

A: RES ADJUDICATA operates between two actions involving the same parties and the same cause(of action); while
STARE DECISIS refers to cases with different parties.

STARE DECISIS refers only to decisions of the SC (decisions of the CA are not a basis of stare decisis); while the
doctrine of RES ADJUDICATA refers to all courts: SC, CA, RTC and MTC.

Q: Distinguish Law Of The Case and Stare Decisis.

A: LAW OF THE CASE refers only to one case which may or may not be invoked in subsequent cases, while STARE
DECISIS may refer to various cases which are usually invoked in subsequent cases.

Sec. 48. Effect of foreign judgments or final orders. - The effect

of a judgment or final order of a tribunal or a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. (50a)

Sec. 48 is actually a law on conflict of laws - effect of foreign judgment. If a judgment is rendered in U.S. and is being
invoked in the Philippines, should we honor it? Yes. So, is it conclusive? Yes. The law says, in case of judgment upon a
specific thing, the judgment or final order is conclusive effectively.
 PROBLEM: Mortverine and Mistiqla were both in the U.S. and they quarreled about the ownership of a ring. They
went to an American court. After trial, the court ruled that Mortverine is the legitimate owner of the ring. The judgment
became final. Subsequently both of them came to the Philippines and Mistiqla filed a case against Mortverine to recover the
same ring. Sabi ni Mortverine, “Res adjudicata na ito eh, tapos na yan. Here is the decision in America. Therefore it is
settled.”
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign judgment upon a SPECIFIC THING, the judgment is conclusive
upon the parties. Hindi puwedeng buksan. That’s already litigated abroad, merong nang decision. We will respect it.

Suppose the judgment is against a person. The law says it is presumptive evidence of a right as between the parties.

EXAMPLE: A and B were both Americans. They were married in the U.S. and obtained a divorce in the states. They
came to the Philippines. The issue is whether the marriage was validly terminated. According to one party, “Yes, meron man
tayong divorce ba.” Is the decree of divorce abroad involving these American couple allowed in the Philippines considering
we have no divorce here? That is their law. It is presumptive evidence of a right of the parties.

EXAMPLE: H and W are Philippine citizens. They went abroad and somehow able to get a divorce in an American
court which became final. They came back here. Will the Philippine court honor the divorce? Here, the judgment may be
repelled by want of jurisdiction of the American court, etc. The judgment is presumed to be valid unless you can attack by
showing lack of jurisdiction.

What is the principle in private international law? A judgment of divorce rendered by an American court between 2
Filipinos is null and void. Why? The American court never acquired jurisdiction over the status of the parties (because they
are not U.S. citizens). But judgment in personam is honored here except when there is want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.

Q: How do you enforce a foreign judgment?

A: The usual procedure, you file a case against the same defendant here and the cause of action is enforcement of a
foreign judgment. And then the Philippine court will render a judgment enforcing it and then you can execute.

The SC commented on the enforcement of a foreign judgment in the Philippines in the case of

PHILSEC vs. COURT OF APPEALS

June 19, 1997

HELD: “While this court has given the effect of res judicata to foreign judgments in several cases, it was
after the parties opposed to the judgment had been given ample opportunity to repel them on grounds allowed
under the law. It is not necessary for this purpose to initiate a separate action or proceeding for enforcement of
the foreign judgment. What is essential is that there is opportunity to challenge the foreign judgment, in order
for the court to properly determine its efficacy. This is because in this jurisdiction, with respect to actions in
personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of
the justness of the claim of a party and, as such, is subject to proof to the contrary.”

With that, we are now through with Rule 39. (Wheew!)

-oOo-