.

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REMEDIAL LAW
mmemm@ryafid

Civil Procedure
Special Civil Actions
Special Proceedings
Criminal Procedure
Evidence
Special Laws
 $en $rM @ollege of {lb
2O11 CENTRALIZED BAR OPERATIONS

accurate because only jurisdiction over the

It is that part of the It refers to the subject mafter is confened by substantive
law which creates, legislation providing law. Jurisdiction over the parties, issues
defines or means or methods and res is governed by procedural laws.
regulates rights whereby causes of
concerning life, action may be REQUTSITES FOR THE VALID EXERCISE
liberty or property or eflbctuated, wrongs OF JURISDICTION
the powers of redressed and relief
agencies or
instrumentalities for
obfarned (also known
as ADJEGTIVE LAW),
3. That it must have jurisdiction over the
persons of the Parties.
the administration of
public affairs.
It makes vested It has NO vested rights.
rights possible.
It is prospective in It governs acts and It is acquired either by
It is acquired the
application. transactions which took his voluntary
moment he files his
place (Retroactive).
complaint, petition or appearance in court
It cannot be enacted The Supreme Court is initiatory pleading. and his submission to
by the Supreme expressly empowered its authority, or by
Court. to promulgate service of summons or
orocedural rules. other coercive process
upon him.
Judicial Power includes the duty of the courts
of justice tosettle actual controversies 4. That it must have iurisdiction over the
involving rights, which are legally demandable subiect mafter ol lhe controversY.
and enforceable, and to determine whether or
not there has been grave abuse of 'discretion Jurisdiction the subject matter is
amounting to lack or excess of jurisdiction on in the
the part of any branch or instrumentality o{ the
Government (Section 1, Article Vlll, 1987
Constitution).

The power of judicial review is the Supreme

Court's POWER TO DECLARE a law, treaty,
international or executive agreement,
presidential decree, proclamation, order,
instruction, ordinance, or regulation
UNCONSTITUTIONAL.

Jurisdiction (Latin: 'juris" and'dico" - I speak E.

of the law) is the power and authority of a a. ys.
court to try, hear, and decide a case and to April
carry its judgments into effect.
defendant
o The statement that 'Jurisdiction is
activelY I stages ofthe
confened bv substantive /aw" is NOT
EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA'VILLENA oveiall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA 5TA. ANA vice<hairpersori for operations, MIKHAIL MAVERICK TUMACDER vice-
chairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance, DIANA JEAN TUAZON vice<hairperson for edp, JASSEN
RALPH LEE vice<hairperson for logistics

SUBJECT COMMITTEE:
RYAN MERCADER subject chair, MARTA DESIREE FEDERIO assistant subje{t chair, IVA FREYRITZ ERICA CAYABAN edp, JANNA MAE
TECSON and KRISTINE TUPAZ civil procedure, KAREN KRISTI LACAP special civil actiont MYRTLE CALVAN special proceedings. KIMBERLY
JOY BARAOIDAN criminal procedure, CRISALYN LUMANGLAS evidence, HANZEL SANTOS special laws

MEMBERS:
Ethel Joy Arriola, Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan
Daniel Galang, Erika Gallego. Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, Ali Lorraine Manrique, Roniel Muioa
Kevin Averell Pangan, Rimiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabalog Norliza
Villanueva, Jose Angelo David, Kamille Deanne Lagasca, Raynan Larosa
 REMEDIAL LAW
INTRODUCTION

pro@edings before the trial court and withheld from the plenary powers of
invoked its authority by asking for an the court.
affirmative relief (Soliven vs. r LIMITED jurisdiction - Exercised over
Fastforms, lnc. G.R. No. 139031, Oct. and extends only to particular or
18,2004). specified cases.

r Jurisdiction is governed by the law As to NATURE of the Cause:

at the time the action is . ORIGINAL jurisdiction -
Exercised by
COMMENCED. courts in the first instance.
o APPELLATE jurisdiction Exercised -
That it must haye jurisdiction over the res by a superior court to review and
(thing or property under litigation). decide cases previously decided by a
r lt is acquired either by the seizure of lower court now elevated for judicial
the properg under legal process or as review.
a result of the institution legal of
proceedings, in which the power of the As to Nature and Extent of EXERGISE:
court is
recognized and made o EXCLUSIVE jurisdiction Confined to -
effective. a particular court to the exclusion of
other courts.
6. That it
must have jurisdiction over the . CONCURRENT jurisdiction
rcsues as raised in the pleadings or by Pertaining to different courts over the
their agreement in a pre-trial order or same subject matter at the same time
those tried by the implied consent of the and place. When two or more courts
parties. have concurrent jurisdiction over a
case, the court which has first validly
acquired jurisdiction takes it to the
exclusion of the others (also referred
Pertains to the authority Any act of the court to as confluent or coordinate
to hear and decide pursuant to such jurisdiction).
cases. authority including the
decision and its 4. As to SITUS:
consequences.
r TERRITORIAL jurisdiction - Exercised
within the limits of the place where the
Where there is an exercise of jurisdiction
court is located.
in the absence of jurisdiction, the court r EXTRA-TERRITORIAL jurisdiction -
would be commifting an error of Exercised beyond the confines of the
jurisdiction.
territory where the court is located.
Where on the other hand, the court acted
with jurisdiction but coqnmitted procedural COURTS OF LAW vs. COURTS OF EQUITY
errors or errors in the appreciation of the A COURT OF LAW decides a case according
facts or of the taw, the error would be a to what the promulgated law is while a COURT
mere error of judgment, not of OF EOUI
jurisdiction.

{'+ j\ ].
One where the court, One that the court may t*'\,dr"*;-tu] ffi .s} l:-l J"'tSll
"*l;{* a-r" }i.-:8df
:" i..,;'

officer or quasi-judicial commit in the exercr.se of

body acts wiihout or in
excess of jurisdiction, or
with grave abuse of
discretion.
It renders a judgment
void or at least voidable.
errors of procedure or
mistakes in the court's
Such an error does not
make the court's decision
void.

CLASSIFICATION OF JU RISDICTION
1. As to CASES Tried:
o GENERAL jurisdiction - Exercised
over all kinds of cases, excepf those

2
 5an Felc
2011 CENTRALIZED BAR OPERATIONS
Cannot be abolished May be abolished by
by Congress without Congress by just
amending the siniply repealing the
Constitution. lawwhich created
those courts.
Ex. The Gourt of Tax
Appeals
SUPERIOR COURT vs. INFERIOR COURT
SUPERIOR COURTS refer to those courts
which have the power of review or supervision
over another lower court while INFERIOR
COURTS are those which, in relation to
another are lower in rank and subject to review
and supervision of the latter.
COURTS OF RECORD
Those whose proceedings are enrolled and
which are bound to keep a wriften record of all
trials and proceqdings handled by lhem. R.A.
No. 6031 mandates all Municipal Trial Courts
to be courts of record.
POLICY OF JUDICIAL HIERARCHY
This policy means that a higher court will not
entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate
courts.
While it is true that the SC, CA, and the RTC
have concurrent original jurisdiction to issue
writs of Certiorari, Prohibition and Mandamus,
such concurrence does not accord litigants
unrestrained freedom of choice of the court to
which the application for the writ may be
directed. The application should be filed with
the court of lower level unless the importance
of the issue involved deserves the action of
the couft of higher level.
DOCTRINE OF JUDICIAL STABILITY
NON INTERFERENCE
General Rule: No court has the authority to
interfere by injunction with the judgment of
another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare
as unjust a judgment of
another court
(lndustrial Enterprises lnc. vs. CA, G.R. Na.
88550, Aprit 18, 1990).
Exception: The doctrine of judicial stability
does not apply where a third pafty claimant is
involved (Sanfos vs. Bayhon, G.R. No. 88643,
July 23, 1991).
@ollege ot Leb
DOCTRINE OF ADHERENCE TO
JURISDICTION
(Also Known As Continuity of Jurisdiction)
Once jurisdiction has been acquired, the court
retains it untilthe final termination of the case.
General Rule: Law enacted during the
pendency of a case which transfers jurisdiction
to another court does not affect cases prior to
its enactment.
Exceptions:
1. When the new law EXPRESSLY
PROVIDES for a retroactive application;
2. When the change of jurisdiction is
CURATIVE in character.
EXCLUSIONARY PRINCIPLE
The court first acquiring jurisdiction excludes
all others.
DOCTRINE OF PRIMARY JURISDICTION
Under this doctrine, courts will not resolve a
controversy involving a question which is
within the jurisdiction of an administrative
tribunal, especially where the question
demands the exercise of sound administrative
discretion requiring the special knowledge and
experience of said tribunal in determining
technical and intricate matters of fact (Villaflor
vs. CA, G.R. No. 95694, Oct. 8, 1997).
DOCTRINE OF ANCILLARY JURISDICTION
It involves the inherent or implied powers of
the court to determine issues incidental to the
exercise of its primary jurisdiction.
Under its aneillary jurisdiction, a court may
determine all questions relative to the matters
brought before it, regulate the manner in which
a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be
money
OR
$':dil C S;ft:*i
 REMEDIAL LAW
JURISDICTION
EXCLUSIVE 1. Actions involving personal property,
ORIGINAL whose value does NOT exceed
. P300,000 or in Metro Manila the
amount does NOT exceed P400,000;
Note: The
adjusted 2. Demand for money NOT exceeding
jurisdictional P300,@0 or in Metro Manila NOT
amount is based exceeding P400,000;
on Sec. 5 of R.A.
7691, this year Note: Exclusive of lnterest, Samages
being the 2nd 5- of whatever kind, gttorney's fees,
year period litigation gxpenses, and gosts
mentioned therein. flDALEC), the amount of which must
be specifically alleged but the filing fees
thereon shall be paid,
. The exclusion of the term
"damages of whatever kind"
applies to cases where the
damages are merely incidental to
or a consequence of the main
cause of action. However, in cases
where the claim for damages is
the main cause of action, or one of
the causes of action, the amount
of such claim shall be considered
in determining the jurisdiction of
the court;
3. Probate proceedings (testate or
intestate) where the gross value of the
estate does NOT exceed P300,000 or
in Metro Manila the value does NOT
exceed P400,000;
4. Actions involving title to or possession
of real property, or any interest therein
where the assessed value or interest
therein does NOT exceed p20,000 or
in Metro Manila, does NOT exceed
P50,000;
5. lnclusion and exclusion of voters (Bp
881, Sec.138); X
6. Admiralty and maritime cases where
demand or claim does NOT exceed
P300,000 or in Metro Manita, does
NOT exceed P400,000;
7. Those covered by the Rules on
Summary Pr;ocedure:
a. lorcible Entry and Unlawful
petainer (FEUD)
. With jurisdiction to resolve issue of
ownership to determine ONLY the
issue of possession;
o lrrespective of the amount of
damages or unpaid rentals sought
to be recovered.
Where attorney's fees are
1. The action is incapable of pecuniary
estimation;
2" Title to or possession of real property or
any interesttherein, the assessed value
EXCEEDS P20,000 or EXCEEDS
P50,000 in Metro Manila,
Admiralty and maritime cases where
demand or claim EXCEEDS P300,000
or EXCEEDS P400,000 in Metro
Manila;
Matters of Probate (testate & intestate)
where gross value of the estate
EXCEEDS P300,000 or EXCEEDS
P400,000 in Metro Manila;
5. All actions involving the contract of
maniage and family relations (See RA.
8369 amending BP. 129).
Family Courts now have exclusive
original jurisdiction over:
a. Petitions for guardianship, custody
of children, habeas corpus in
relation to the latter (but the SC
and the CA have not been
deprived of their original
jurisdiction);
b. Petitions for adoption of children
and the revocation thereof;
c. Complaints for annulment and
declaration of nullity of marriage,
matter relating to marital status
,
and property relations of husband
and wife or those living together
under different Status or
agreement, and petitions for
dissolution of conjugal partnership
"ry*
of gains;
d. Supp-qdandktaekrowledgment;
f. "Pbtition tor de.qlantipnlffiKftatus c
iffidn,iiloRihffi r#i nvot
cn u nta rft
# {pqmr'ffir#ffiftS$HrF.nrl
ic
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 9en Sr[s @ollege of
2011 CENTRATIZED BAR OPERATIONS
awarded, the same shall NOT
exceed P20,000.
Other civil cases, excepf probate
proceedings, where the total
amount of the plaintiffs claim does
NOT exceed P100,000 or does
NOT exceed P200,000 in Metro
Manila, exclusive of interests and
costs (as amended by A.M. No.
02-1 1-09-SC, effective November
25,2002).
{.sb
defendant upon verifi ed application
by the complainant or the victim for
relief fom abuse;
b. The court may order the temporary
custody of children in all
Civil actions for their custody,
support pendente /lfe, including
deduction from the salary, and use
ofconjugal home and other
properties in all civil actions for
support.
Cases NOT Win the exclusive
jurisdiction of any court, tribunal,
person or body exercising judicial or
quasi-judicial fu nctions (general
jurisdiction of RTC);
Civil actions and special proceedings
falling within the exclusive original
jurisdic'tion of Juvenile and Domestic
Relations Court and of Court of '
Agrarian Relations as now provided by
law;
All other caseslivhere demand
EXCLUSIVE of IDALEG or the value of
the property in controversy EXCEEDS
P300,000 or EXCEEDS P400,000 in
Metro Manila;
Under Sec. 5.2 of the Securities and
Regulations Code to hear and decide:
. Cases involving devices or
schemes employed by or any acts
ofthe board ofdirectors, business
associates, its officers or
partnership, amounting to fraud
and misrepresentation which may
be detrimental to the interest of the
public and/or of the stockholders,
with
 REMEDIAL LAW
JURISDICTION

management of a Rehabilitation
Receiver or Management
Committee.
CONCURRENT With SC - Actions affecting ambassadors,
public ministers and consuls.

With SC, CA and Sandigatnbayan -

lssuance of writs of certiorari, prohibition,
mandamus, habeas corpus; quo warranto,
injunction against lower courts.

With SC, CA and Sandiganbayan -

issuance of writ of amparo and habeas data

With MTC, etc. - NONE.

With lnsurance Commissioner - Claims

DELEGATED May be assigned by the SC to hear
cadastral or land registration cases where
there is no controversy over the land or in
case of contested lands, the value does
NOT exceed P100,000.
PetitiOn for Habeas Coryus OR application
for bail in criminal cases in the absence of
all RTC judges in the province or city.
NOT exceeding P100,000.
SC may designate certain branches of RTC
to try exclusively criminal cases, juvenile
and domestic relations cases, agrarian
cases, urban land reform cases not falling
wiip the jurisdiction of any quasi-judicial
body and other special cases in the interest
of justice.

All cases decided by the tourer courts in

their respective territorial j u risd iction ex cept
declsrbns of lower courts in the exercise of
delegatedjuisdiction. -

Petitions for certiorari, prohibition or

mandamus against: #re$* ffiWffifil,
a. CA;
b. COMELEG;
c. COA;
d. Sandiganbayan.
CONCURRENT With Court of Appeals (CA)
a.
Petitions for certiorari, prohibition or
Note: While the mandamus (CPM) against RTC,
Rules provide for habeas corpus, quo warranto;
concurrent b.
Petitions for certiorari, prohibition or
jurisdiction among mandamus against the NLRC.
the RTC, CA, and
SC, the same is
still subject to the
principle of
HIERARCHY OF
COURTS,
 $en Fcta @otlage of Leh
2011 CENTRALIZED BAR OPERATIONS

pursuant to Sec 4
of Rule 65.
Wth CA, the Sandrganbayan and RTC
a.Petitions for issuance of Writ of
Amparo;
b.Petitions for Habeas Data, where
the action involves public data or
government office.
With the CA , RTC and Sandiganbayan
a.Petitions for certiorari, prohibition or
mandamus against inferior courts
and other bodies;
b.Petitions for habeas corpus and quo
. warranto.
Wth RTC
Actions against ambassadors, other public
ministers and consuls
With GA, lhe Sandiganbayan and RTC
c. Petitions for issuance of Writ of
Amparo;
d. Petitions for Habeas Data, where
the action involves public data or
govemment office.
With CA only unless otherwise provided by
law
a. Petitions for certiorari, prohibition
or mandamus against quasi-
judicialagencies {like CSC, CBM,
CTA, etc.) (Amendments to Rule
65, A.M. No. 07-7-12-SC).
With the dC, nfC and Sandiganbayan
a. Petitions for certiorari, prohibition
or mandamus against inferior
courts and other bodies; and
b. Petitions for habeas corpus and
quo wananto.

APPELLATE Review, revise, reverse, modify, or affirm on Exclusive Appellate jurisdiction over all
appeal or certiorari the following: final judgments, decisions, resolutions,
a.All cases in which the orders or awards of RTC and quasi-judicial
constitutionality or validity of any agencies except those falling within the
treaty, international or executive appellate jurisdiction of the Supreme Gourt
agreement, law, presidential decree, in accordance with the Constitution, Labor
proclamalion, order, instruc'tion, Code, .8.P. 129 and of subparagraph 1 of
ordinance or regulation is in the {- paragraph and subparagraph 4 of
question; the 4" paragraph of section 17 of the
b. All cases involving the legality of any Judiciary Act of 1948.
tax, impost, assessment, or toll, or
any penalty imposed in relation
thereto;
c. All cases in which the jurisdiction of
any lower court is in issue;
d. All criminal cases in which the
penalty imposed is reclusion
perpetua or higher;
e. All cases in which only an error or
question of law is involved

EXCLUSIVE 1. Offenses punishable with 1. Offenses

ORIGINAL imprisonment NOT imposable
exceedingsix (6) years
irrespective of the
amount of fine, and
regardless of other
imposable accessory or 2. Offenses not
other penalties, including
the civil liability arising
from such offenses or court, tribunal or
predicated thereon,
inespective of kind,
nature, value or amount jurisdiction of the
 REMEDIAL LAW
JURISDICTION

thereof; Sandiganbayan. e. Other offenses or

felonies whether
2. Offenses involving Note: ln cases where the simple or complexed
DAMAGE TO only penalty is a fine, the with other crimes.
PROPERTY through amount thereof shall 2. The offender committing
criminal negligence. determine jurisdiction. lf the offense in items a, b, c,
the amount EXCEED and e is a public official
Note: ln cases where the only P4,000, RTC'S have occupying a position
penal$ is a fine, the amount jurisdiction (Adm. Cir. 09- elassified as salary grade
thereof shall determine e4). 27 and higher;
iurisdiction. lf the amount does 3. The offense was
NOT exceed P4,000, MTC's committed in relation to
have jurisdiction (Adm. Cir. 09- office.
94).
Those covered by the Family Court - Criminal Civil and criminal cases filed
Rules on Summary cases where: pursuant to and in connection
Procedure: a. One or more of the wilh Executive Order Nas. 1, 2,
a. Violations of traffic accused is/are below 14, and 14a (filed by PCGG).
laws, rules and eighteen (18) years
regulations; of age but not less
b. Violations of the than nine (9) years of
rental law; age; or
c. Violations of b. Where one of the
municipal or city victims is a minor at
ordinances; the time of the
d. Violations of BP 22, commission of the
otherwise known as offense;
Bouncing Checks c. Cases against minors
Law (4.M. No.00-11- cognizable under the
01-SC, effective April Dangerous Drug Ac{;
15,2003); d. Violations of RA
e. All other criminal 2610, otherwise
cases where the known as the
penalty is "Special Protection of
imprisonment not Children Against
exceeding 6months Child Abuse,
andlor P 1,000 fine Exploitation and
irrespective of other Discrimination Act'as
penalties or civil amended by RA
liabilities arising 7658; and
therefrom and in e. Cases of domestic
offenses involving violence against
damage to property women and children.
through criminal
negligence where the
imposable fine is not
exceeding P10,000. ;ilaF* #ffifr?$r
 $en Frls @ollege of
2O11 CENTRALIZED BAR OPERATIONS
APPELLATE All cases decided by the
MTC's in their respective
territorial jurisdiction.
Petition for certiorari, prohibition and
mandamus against Court of Appeals and
Sandiganbayan.
With the CA: petitions for certiorari,
prohibition and mandamus against the
RTC's.
With the CA and RTC: petitions for
certiorari, prohibition and mandamus
against the MTC's.
By petition for review on certiorari:
r From the CA;
. From lhe Sandiganbayan;
r From the RTC where only an error
or question of law is involved.
Note: In People vs. Mateo, G.R. Nos.
14767&87, July 7, 2004 lhe Supreme
Court held that while the Fundamental Law
a mandatory review by the
requires
Supreme Court of cases where the penalty
imposed is reclusion perpetua, life
imprisonment, or death, nowhere, however,
has it proscribed an intermediate review. lf
only to
ensure utmost circumspection
before the penalty of death, reclusion
perpetua or life imprisonment is imposed,
the Court now deems it wise and
compelling to provide in these cases a
review by the Court of Appeals before the
case is elevated to the Supreme Court. A
prior determination by the Court of Appeals
on, particularly, the factual issues, would
minimize the possibility of an error of
judgment. lf the Court of Appeals should
affirm the penalty of death, reclusion
perpetua or life imprisonment, it could then
render judgment imposing the
conesponding penalty as the
circumstances so warrant, refrain from
entering judgment and elevate the entire
records of the case to the Supreme Court
for its final disposition.
I.sb
Appeals from the final
judgments, resolutions or
orders of regular courts where
all the accused are occuPYing
positions lower than salary
grade 27 or not otherwise
covered by the preceding
enumeration.
Actions for annulment of judgment of the
Regional Trial Courts
Crimes of Terrorism under Human Security
Act of 2007.
With the SC: petitions for certiorari, prohibition
and mandamus against the RTC's.
With the SC and RTC: petitions for certiorari,
prohibition and mandamus against the MTC's.
By.Notice of Appeal:
From the RTC in the exercise of its original
iurisdiction, except those appealable to the
Sandiganbayan.
From the RTC where penalty imposed is
reclusion perpetua or life imprisonment or
where a lesser penalty is imposed but for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for which
the penalty of death, reclusion perpetua, or life
imprisonment is imposed (Section 3 Rule 122
as amended by AM. No.0O-U03-SC).
By automatic review (i.e. no notice of appeal is
necessary):
From the RTC, in cases wherein the death
penalty is imposed.
the
r;qli-{*#ffiffi #F LeW
 REMEDIAL LAW
JURISDICTION

ORIGINAL 1. All cases involving custody, guardianship, legitimacy, paternity and filiation
arising under the Code of Muslim Personal Laws;
All cases involving disposition, distribution and settlement of estate of
deceased Muslims, probate of wills, issuance of lefters of administration or
appointment of administrators or executors regardless of the nature or
aggregate value ofthe property;
3. Petitions for the declaration of absence and death for the cancellation or
correction of entries in the Muslim Registries mentioned in Title Vl, Book Two
of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are
Muslims, if they have not specified which law shall govern their relations; and
All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
dnd all other auxiliarv writs and in aid of its aDoellate
1.' Petitions by Muslim for the constitution of a family home, change of name and
cpmmitment of an insane person to an asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein
thb parties involved are Muslims except those for forcible entry and unlawful
detainer, which shall fall under the exclusive jurisdiction of the Municipal
Circuit Court, and
3. All special civil actions for interpleader or declaratory relief wherein the parties
are Muslims or the propertv involved belongs exclusively to Muslims.
Cases that can be filed 4
Offenses defined and punished under PD 1083
2. Disputes relating to :
a. Marriage
b. Divorce
c. Betrothal or breach of contrac{ to marry
d. Customary dower (mahr)
e. Disposition and distribution of property upon divorce
f. Maintenance and support,
S. Consolatory gifts (muf'a) and
h. restitution of marital rights
Disputes relative to communal properties.

10
 $an Fetu @otlege of Ltu
2011 CENTRALIZED BAR OPERATIONS

Applicability
1. Civil Action - one by which a party sues
another for the enforcement or protection
SECTION 1. TITLE OF THE RULES of a right or the prevention or redress of a
wrong.
The Rules of Court DO NOT HAVE retroactive
effect. They can, however, be made A civil action may either be ORDINARY
applicable to cases pending at the time of their
OR SPECIAL, BOTH are governed by the
passage and therefore are retroactive in that
rules for ordinary civil actions, SUBJECT
sense.
to the specific rules prescribed for a
special civil action.
The rule-making power of the Supreme Court
has the following limitations:
1. Simplified and inexpensive procedure for
2. Griminal Action - one by which the State
prosecutes a person for an act or omission
the speedy disposition of cases; punishable by law.
2. Uniform for all courts of the same grade;
and
3. Shall not diminish, increase or modify 3. Special Proceedings - a remedy by
which a party seeks to establish a gtatus,
substantive rights (Arf. Vlil Sec. S[S], 19A7
a gight, or a particular fact (SRP).
Phil. Constitution).
Glassifi cation of Actions
o ln the interest of just and expeditious
proceedings, the Supreme Court may B. As to Nature
suspend the application of the Rules of
Court and except a case from its
operation because the Rules were Governed by ordinary AIso governed by
rules. ordinary rules but
precisely adopted with the primary SUBJECT to specific
objective of enhancing fair trial and rules prescribed
expeditious justice.

SECTION 2. IN WHAT COURTS

APPLICABLE
These Rules shall apply in all the courts,
EXCEPT as otherwise provided by the *ffi t*ev{
Supreme Court.

SECTION 3. CASES GOVERNED

One party prosecutes
another for the
enforcement or
protection of a right or
the prevention or
A right possessed
by one against
another.
The moment said
claim is filed before
a court, the claim is
converted into an
action or suit.

EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA VILLENA overall chairperson, MINISTER MOISES DU chairperson for academics. DJOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA STA. ANA vice<hairperson for operations, MIKHAIL MAVERICK TUMACDER vice.
chairperson for secretariat, JACKIE Lou LAMUG vice_chairperson for ffnince, DIANA lren ruezoru vicechairperson for edp. JASSEN
RALPH LEE vice-chairperson for logistics

SUBJECT COMMITTEE:
RYAN MERCADER subject chair. MARTA DESIREE FEDERIo assisrant subject chair, tvA FREyRtrz ERtcA CAYABAN edp, JANNA MAE
TECSON and KRISTINE TUPAZ ciMI procedure, KAREN KRlSTl LACAP special civil actions, MYRILE CALVAN special proceedings, KIMBERLY
JOY BARAOIDAN criminal procedure, CRISALYN LUMANGI-AS evidence, HANZEL SANTOS special laws

MEMBERSI
Ethel Joy Arriola. Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan
Daniel Galang, Erika Gallego, Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, AIi Lorraine Manrique, Roniel Murioa
Kevin Averell Pangan, Ramiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabaloc, Norliza
blfrrleri-a Joe Angelo David, lGmille Deanne Lagasca, Raynan Larosa
 REMEDIAL LAW
CIVIT PROCEDURE

Note: An action could be real as to cause ard

in personam as to object (e.g., acrfun to
Jurisdiction over Jurisdiction over recover a piece of land). An action could also
the person of the person of the be personal as to cause and ,n /ern as to
the defendant is defendant is NOT
defendant is required.
object (e.9., action for annulment of maniage).
required as long
NOT required. as jurisdiction
over the res is The distinction is significant in determining the
VENUE of an action.
A proceeding An action to A proceeding to
to determine impose a subject the E. As to the Place of
the state or responsibility interest of a
condition of or liability
Must be brought in a Dependent on the place
upon a penion defendant over
particular place where the party resides
directly. a particular where the subject regardless of where the
property to an property or a portion cause of action arose
thereof is located, subjecl.
lien burdening unless there is an (Section 4, Rule 4).
it. agreement to the
Judgment is Judgment is Judgment is contrary (Section 4,
binding on the binding only binding upon Rule 4).
WHOLE upon PARTIES PARTICULAR
IMPLEADED Ex. Action to recover Ex. Action to recover
PERSONS.
OR THEIR real property sum of money
SUCCESSORS
IN INTEREST, Note: lf the action is founded on privity of
Ex. Action for Ex. Aclion for contract between the parties, then the action
specific partition; action whether debt or covenant, is TRANSITORy.
performance; to foreclose real But if there is no privity of contract and the
action for estate mortgage. action is founded on privity of estate only, such
breach of
as a covenant that runs with the land in the
contract.
hands of the remote grantees, then the action
The distinction is important in determining the is LOCAL and must be brought in the ptace
following: wherein the land lies (paper lndu'stries
1. Wh.ether or not jurisdiction over the person Corporation of the Philippines vs. Samson,
G.R. No. L-301 75, November 25, 1 975).
_
2.
of the defendant is required; and
Persons upon whom judgment is binding.
Actions lncapable of pecuniary Estimation
D. As to Carrca
An action CAPABLE of pecuniary estimation is
one wherein the action is'brought primarily
Ownership or Personal for the recovery of a sum of money; and the
Both real and
possessjon of property is personal properties amount of the claim shall determine where
real property sought to be are involved. the jurisdiction ties.
is involved. recovered
or where
damages for
breach of than th&&S&tWffi&vei*i
contract are
w{'LW"e.rW,WtgWW*shiw

Filed in the Filed in the The rules on venue

court where court where of real actions shall
the property the plaintiff govern.
or any part or any of the
thereof is defendants
situated. resides, at
the option of

Ex. Action
for a sum of

t2
 Sm Febu Gollege of LEb
2011 CENTRALIZED BAR OPERATIONS

secrrof 4. IN WHAT CASES NOT been left for dete.rmination by the court,
APPLICABLE the additional filing fee therefor shall
constitute a lien on the judgment.
NOT APPLICABLE lN: {ELCaNio)
1. llection Cases; . The amount of damages should be
2. land registration/qdastral cases; specified not onlY in the bodY of the
3. [aturalization; pleading but also in the PraYer.
4. lnsolvency proceedings; . lf the complete amount of the docket fee is
5. Qther cases not provided in the Rules of not paid, the prescriptive period continues
Court. to run as the complaint is deemed not filed
(Feria, 2001, p. 208).
Exception: The Rules of Court are applicable . An action can be commenced by filing the
to the above cases by analogy or in a complaint by registered mail. ln which
s u p pl eto ry ch a racte r and when eve r practicab e
I
case, it is the date of mailing that is
and convenient. considered as the date of filing and not the
date of the receipt thereof by the clerk of
SECTION 5. COMMENCEMENT OF ACTION court.

A civilaction is commenced by: SECTION 6, CONSTRUCTION

1. The FILING OF THE COMPLAINT (When
an additional defendant is impleaded in a General Rule: Liberal construction
later pleading, the action is commenced
with regard to him on the date of the filing Exceptions:
of such LATER PLEADING); and 1. Reglementary periods;
2. Rule on forum shopping;
Note: Civil actions are
deemed 3. Service of summons.
commenced from the date of the filing and
docketing of the complaint, without taking . The power of the Supreme Court to
into account the issuance and service of promulgate rules concerning pleading,
summons (Cabrera vs. Tiano, G. R. No" L- practice, and procedure includes the
17299, July 31, 1963). power fo suspend the effectivity of such
rules or to provide an exception from the
2. The PAYMENT OF DOCKET FEES operation of said rules. lt is within the
(Determined not only by the amount of the inherent power of the Supreme Court to
claim but also by the amount of damages) suspend its own rules in a particular case
in order to do justice (De Guia vs. De
ln Sun lnsurance Office, Ltd. v. Asunciotn fl7a Guia, G.R. No. 135384, APril 4, 2001).
SCRA 274, 1989) the Supreme Court laid
down the following rules: Reasons Which Would Warrant the
It is not simply the filing of the complaint or Suspension of the Rules
appropriate initiatory pleading but also the 1. The existence of special or compelling
payment of the prescribed docket fee that circumstances;
vests a trial court with jurisdiction over the
subject matter or nature of the action.
Where the filing of the initiatory pleading is
not accompanied by payment' of the
docket fee, the court may allow payment
of the fee within the reasonable time but in
no case beyond the applicable prescriptive
period.
b. The same rule applies to permissive
counterclaims, third-party claims and
similar pleadings which shall not be
considered filed until and unless the filing
fee prescribed therefor is paid.
Where the trial court acquires jurisdiction
over a claim by the filing of the appropriate
pleading and payment of the prescribed
filing fee, but subsequently, the judgment
awards a claim not specified in the
pleading, or if specified, the same has

13
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 1. ORDINARY GIVIL ACTIONS, The redress, The The thing,

BASIS OF protection, procedure or wrongful ad,
award or appropriate contract or
Every ordinary civil action must be based on a coercive legal form of property
cause of action. measure relief of which is
which the action which directly
plaintiff prays may be involved in the
SECTION 2. CAUSE OF ACTION, DEFINED the court to availed of by action,
render in his the plaintiff concerning
Gause of Action is the act or omission by favor as as the which the
which a party violates a right of another. consequence means to wrong has
ol the delict obtain the been done
Requisites of Right of Action: committed by desired and with
the defendant. relief. respect to
1. The existence of a LEGAL RIGHT of the which the
plaintiff;
controversy
2. A CORRELATIVE OBLIGATION of the has arisen.
defendant to respect plaintiffs right; and
3. An act or omission of the defendant in SECTION 3. ONE SUIT FOR A SINGLE
VIOLATION of the plaintiffs legalright.
CAUSE OF ACTION
lnjury is the illegal invasion of a legat right A party may not institute more than one suit for
while damage is the loss, hurt, or harm which
a single cause of action
results from the injury.
SECTION 4. SPLITTING A SINGLE CAUSE
Right of Action is right of a
person to OF ACTION, EFFECT OF
commence and prosecute an action to obtain
the relief sought.
Splifting of cause of action is the act of
dividing a single or indivisible cause of action
Requisites:
1. There must be a good cause (The into several parts or claims and bringing
several actions thereon. lt is NOT allowed.
existence of a cause of action);
2. A compliance with qll the conditions Purpose:
precedent to the bringing of the action; To avoid the following:
and
3. The action must be instituted by the proper
1. Multiplicity of suits;
2" Conflicting decisions; and
3. Unnecessary vexation and harassment of
defendants.
Delict or wrongful act or Remedial right or right
omission committed by to relief granted by law Applies NOT only to complaints but also to
the defendant in to a party to institute an counterclaims and cross-claims.
violation of the primary action against a person
rights of the plaintiff. who has committed a
delict or wrong against
him. q-5{P" #tCSA
The reason for ion to di3fi1iSb Cnl*tlrHdlound of:
the The remedy or means
aclion. afforded or the
tftwsffi65ry4;sff:1h,aw i
consequent relief.
The formal statement of The remedial right given
the operative facts that to a person because of
gives rise to remedial the occurrence of the
right. alleged facts.
A matter of procedure A matter of right and
and depends on the depends on substantive
pleadings filed by the law.
parties.
Not affected by Affected by affirmative
affirmative defenses defenses.
(Fraud, prescription,
estoppel, etc.).

14
 9en Fcls GoIIege ot leb
2011 CENTRALIZED BAR OPERATIONS

b. Exception: A contract to do several things b. The venue lies,thereon.

at several times is divisible, and judgmen!
for a single breach of a continuing contract
is NOT a bar to a suit for a subsequent
breach (e.9., promlssory note payable in
several installments so long as fhere ts no
acceleration clause).
c. Exception to the exception: All
obligations which have matured at the time
of the suit must be integrated as one
cause of action in one complaint, and
those not so included would be barred.
d. Doctrine of
Anticipatory Breach: An
UNQUALIFIED and POSITIVE REFUSAL
to perform a contract, though the
performance thereof is not yet due, may, if
the renunciation goes into the whole
contract, be treated as a complete breach
which will entitle the injured party to bring
his action at once (Elossom & Co. ys.
Manila Gas Corp., No. 32958, Nov. 8,
19s0).
The rule against splitting of a cause of action
appties only where the action is between the
same parties (ltogon Suoc Mneg lnc. vs.
Sangil-ltogon Worker's Union, G.R. No. l-
24189, August 30, 1968).
SECTION 5. JOINDER OF CAUSES OF
ACTION
4. Where the claims in the causes of action
are principally for recovery of money, the
aggregate amount claimed shall be the
test of jurisdiction (Totality Rule).
Totality Rute under BP 129: Where there are
several claims or causes of actions between
the same or different parties, embodied in the
same complaint, the amount of the demand
shall be the totality of the claims in all causes
of action, irrespective of whether the causes of
action arose out of the same or different
transaction.
The jurisdictional amount excludes: a)
interest, b) damages of whatever kind, c)
attorney's fees, d) litigation expenses and
costs. These matters however, shall be
included in determining the filing fees.
(Riano 2009, p.l79)
Note: Ihe exclusion of the term "damages of
whatever kind' in determining the iurisdictional
amount, applies fo cases where the damages
are merely incidental thereto or consequence
of the main cause of action.
Note: We will follow the totality rulein BP 129
because it is elementary in statutory
construction that in case of conflict,
substantive law prevails over procedural laws.

Joinder of c€ruses of action is purely

PERMISSIVE. The plaintiff can always file
separate actions for each cause of action.

Requisites for Joinder of Gauses of Action:

1. The party joining the causes of action
must comply with the rules on joinder of It causes multiplicity of It minimizes multiplicitY
parties; suits and double of suits and

Note: The following are the elements for a

joinder of parties (Sec. 6, Rule 3):
a. A right to relief in respect to or arising
out of the same transaction or series
. of transactions; and
b. A common question of law or fact.

2. The joinder shall not include special civil

actions or actions governed by special
rules;

3. the causes of action are between

Vly'here
the same parties but pertain to different
venues or jurisdictions, jurisdiction is with
the Regional Trial Court, provided that:
a. One of the causes of action falls within
the jurisdiction of the RTC; and

15
 EIALLAW
@il.PROCHX'RE

Phintiff - one having an interest in the matter

of the action or in obtaining the relief
demanded. The term may refer lo lhe claiming
SEIN 1. TO IAY BE PARTIES; party, the counter-claimant, the cross-
PLtfTrFAII I'EFEM)ANT claimant, or the third (fourth, etc.)- pafty
plaintiff.
fqimomsbra person to be a party to
a drt*lin:
Defendant - one claiming an interest in the
1. ib mrct be either: controversy or the subject thereof adverse to
a A nafural person; (e.9. Juan dela Cruz the plaintiff . The term may also include:
vs fudro Sanfos)
b. A juridical person, (e.9. Juan dela 1. An unwilling co-plaintiff or one who should
be joined as plaintiff but refuses to give his
Cruz vs ABC Corporation) or
c. An entity authorized by law. (e.g. consentthereto (Sec. 10, Rule 3);
corporations by estoppel,
partnership 2. The original plaintiff becoming a defendant
by estoppel- Juan Dela cruz vs Pedro to original defendant's counterclaim; and
Sanfos, et.al. doing buslness under 3. One necessary to a complete
the name ofXYZ Cgmpany) determination or settlement of the
questions involved therein,
2. He must have the legal capacity to sue;
and
3. He must be the reat party-in-interest. SECTION 2. PARTIES IN INTEREST

One need not be a natural or a juridical person
to be a party to a civil action. As long as an
entity is authorized by law to be a party, such
entity may sue, be sued or both (Riano, 2007,
p.179).
Note: Entities authorized by law to be parties
to a suit include:
1. The estate of a deceased person;
2. A political party incorporated under Act
1459 (now 8.P. Btg. 69, Corporation
Code); and
3. A registered labor union (Sec. 243, pD
442, Labor Code), with respect to its
property.
As to properties of the Roman Catholic
Church, the Archbishop of the diocese to
which they belong may be a party (Versoza vs.
Fernandez, G.R. No. L-25254, Nov" 22, 1926).
Real Party-in-lnterest is the party who stands
to be benefited or injured by the judgment in
the suit or the party entitled to the avails of the
suit.
Note: To be a real party-in-interest, the
interest must be 'real', which is a presenf
substantial interest as distinguished from a
mere expectancy or a future, contingent
subordinate or consequential interest.
ln Oposa vs- Factoran (G.R. No. 101083,
1993/, minors represented by their parents
were held as real parties in interest to file an
action to annul timber licenses issued by the
state under the following principles:
a. lnter-generational responsibility;
b. lnter-generational justice;
c. The right of the Filipinos to a balanced and
healthfulecology; and
d. Minors represent themselves and the

It refers to a plaintiffs The plaintiff is not the

general disability to sue. real party-i n-i nterest.
such as on account of
minority, insanity,
incompetence, lack of
juridical personality or
any other general
disqualifications of a
party.
It can be a ground for a It can be used as a
motion to dismiss on the ground for a motion to
ground o'f lack of legat dismiss based on the
capacity to sue. fact that the complaint,
on the face thereof, without
states no' cause of
action.

16
 ' 9m Ftls Gstlegt of Lclo
2O1I CENTRALIZED BAR OPERATIONS

an action (must he joined under
conditions).
Necessary parties - Those who are not
indispensable but ought to bb joined as
parties if complete relief is to be accorded
as to those already parties, or for
complete determination or settlement of
the claim subject of the aclion (may or
may not be joined).
all Where the action is allowed to be prosecuted
or defended by a representative or $omeone
acting in a fiduciaqi capacity, the beneficiary
shall be included in the title of the case ad
shall be deemed to be the real party-in-
interest.
a
An agent may sue or be sued without joining
his principal except when the contract involves
things belonging to the principal.

.3. Representative parties - Those acting in SECTION 4. SPOUSES AS PARTIES

fiduciary capacity such as trustees,
guardians, executors, or administrators.
The beneficiary shall be included in the
title of the case and shall be deemed to be
the real party in interest.
4. Pro forma parties -
Those who are
required to be joined as co-parties in suits
by or against another party as may
provided by the applicable substantive law
or procedural rule such as in the case of
spouses under Sec. 4.
5. Quasi parties - Those in whose behalf a
class or representative suit is brought.
General Rule: Husband and wife shall sue or
be sued jointly.
Exceptions (lJncler the Family Code):
1. A spouse without just cause abandons the
other or fails to comply with his or her
obligations to the f;amily with respect to the
be marital, parental or property relations.
2. A spouse of age mortgages, encumbers,
alienates or otherwise disposes of his or
her exclusive property.
3. The regime of separation of property
governs the property relations of the
spouses. (Feria, 2001, p. 231)

SECTION 5, MINOR OR INCOMPETENT

Under the present rules, a suit may be brought

Must be joined under Should be joined by or against a minor or incompetent but with
any and all conditions, whenever possible, the the assistance of his parents or his guardian.
their presence being a action can proe,eed even
sine qua non for the in their absence.
exercise of judicial A person NEED NOT be judicially declared
power. incompetent, it being sufficient that his
incompetency be ALLEGED in the
No valid judgment if The case may be
corresponding pleadings.
indispensable party is determined in court but
not joined. the judgment therein will
not resolve the entire SECTION 6. PERMISSIVE JOINDER OF
controversy if a
PARTIES
necessary party is not
joined. Permissive
rule on
They are those with such They are those whose
presence is necessary to be
an interest in the
controversy that a final adjudicate the
whole #JsrH{ffi#g& be
decree would controversy but whose s#ikut*w# r: #W **ew
necessarily affect their interests are so
tar
rights so that the court separable that a
final
cannot proceed without decree can be made in 1.
their presence. their absence without
affecting them. 2.
to
SECTION 3. REPRESENTATIVES AS 3.
PARTIES

A representative may be a trustee of an

express trust, a guardian, an executor or Series
administrator or a party authorized by law or
the Rules of Court.

L7
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 7. COMPULSORY JOINDER OF by ordering plaintiff to file an amended

INDISPENSABLE PARTIES
The indispensable party must always be
included in the suit. ln the absence of such
party, the court should order that the
indispensable party be included. lt shall not
order the dismissal of the suit outright.
complaint impleading the necessary party
therein as co{efendant.
Note: The failure to comply with the court's
order to include or join a necessary party
without justifiable cause shall be deemed a
waiver of the claim against such party.

Only when the party ordered to implead the
indispensable party refuses or fails to do so
shall the case be dismissed, on the ground of
disobedience to the Rules or orders of the
court under Sec. 3 of Rule 17.
The absence ofan indispensable party
renders all subsequent actuations of the court
null and void for want of authority to act not
only as to the absent parties but even as to
those present.
SECTION 8. NECESSARY PARTY
SECTION 10. UNW|LLING CO.PLAIXTIFF
lf the consent of any party who should be
joined as plaintiff cannot be obtained, he may
be made a defendant and the reason therefore
shall be stated in the complaint.
SECTION 1'1. MISJOINDER AND NON.
JOINDER OF PARTIES
A party is MISJOINED when he is made a
party to the action although he should not be
impleaded.

Also called PROPER PARTIES - those whose
presence is necessary to adjudicate the whole
controversy, but those interests are so far
separable that a final decree can be made in
their absence without affecting them
(Quisumbing vs. CA, G.R. No. 93339 Sepf.
13,1990).
The non-inclusion of a necessary party does
not prevent the court from proceeding with the
action and the judgment therein shall be
without prejudice to the rights of such
necessary party not impleaded.
Joint Debtor - He is an indispensable party in
a suit against him but a necessary party in a
suit against his co-debtor.
Solidary Debtor - ln a suit brought by a
creditor against one solidary debtor, the other
solidary debtor is NEITHER indispensabte nor
a necessary party.
SECTION 9. NON-JOINDER OF
NECESSARY PARTIES TO BE PLEADED
A party is NOT JOINED when he is supposed
to be joined but is not impleaded in the action
(Riano,2007, p. 195).
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of the action.
Exception: Secflon 7, Rule 3 in relation to the
disobedience to the rules or order of the court
for the inclusion of an indispensable party.
Note:Objections to defects in parties should
be made at the earliest opportunity, r.e., the
moment such defect becomes apparent, by a
MOTION TO STRIKE THE NAMES OF THE
PARTIES impleaded. Objedtions to misjoinder
cannot be raised for the first time on appeal.
sEcTtoN 12. CLASS SU|T
and

Duty of a pleader whenever a necessary

party is not joined or impleaded:
1. State the name pf the necessary party, if
known; and
2. State why said necessary party is omitted
in the pleading.
one of
Should the court find the reason for the
omission unmeritorious, it may order the
inclusion of the omitted necesiary party if that it is
jurisdiction over his person may be obtained

18
 5sr Fels €ollege of Let!
2O11 CENTRALIZED BAR OPERATIONS

3. Parties bringing the class suit are SECTION 15. ENTITY WTHOUT JURIDICAL
SUFFICIENT IN NUMBER AND PERSONALITY AS DEFENDANT
REPRESENTATIVE of the class and can
fully protect the interests of all concerned; Requisites: (TED)
and 1. There are lwo or more persons not
4. The representative sues or defends for the organized as a juridical entity;
benefit of all. 2. They gnter into a transaction; and
3. A wrong or g[elict is committed against a
Note: A taxpayer's suit or a stockholder's third person in the course of
such
derivative suit is in the nature of a class suit, transaction.
although subject to the other requisites of the
corresponding goveming law especially on the Persons associated in an entity without
issue of locus sfandl (Regalado p. 97). juridical personality may be sued under the
. Any party in interest shall have the right to
name by which they are generallY or
commonly known, but they cannot sue under
intervene to protect his individual interest. such name.
(Ihls rb an instance when a person may
intervene as a matter ot risht). The service of summons may be effected
upon all the defendants by serving upon any of
them, or upon the person in charge of the
office or place of business maintained under
There is one single There are multiple such name (Section 8, Rule 14).
cause of action causes of action
pertaining to numerous separately belonging to
INSTANCES WHERE SUBSTITUTION OF
persons. several persons.
PARTIES IS PROPER

SECTION 13. ALTERNATIVE DEFENDANTS A. SECTION 16. DEATH OF PARW; DUTY

OF COUNSEL
Where the plaintiff is uncertain against who of
several persons he is entitled to relief, he may This provision applies where the claim is
join any OR all of them in the alternative, NOT extinguished as in cases involving
although a right to relief against one may be property and property rights such as:
inconsistent with a right to relief against the Recovery of real and Personal
1. -property
other. against the estate;
2. Enforcement of liens on such
SECTION 14. UNKNOWN IDENTITY OR properties, or
NAME OF DEFENDANT 3. Recovery for an injury to Person or
property by reason of tort or delict
Requisites: commifted by the deceased.
1. There is a defendant;
2. Hls identity or name is unknown; ln this case, the heirs will be substituted
3. Fictitious name may be used because of for the deceased OR if no legal
ignorance of defendant's true name and court will
said ignorance is alleged in the complaint;
4. ldentifying description may be used: sued
as unknown owner, heir, devisee, or other
designation;
5. Amendment to the pleading when identity
or true name is discovered; and
6. Defendant is the defendant being sued,
not a mere additional defendant.

Service of summons upon a defendant whose

identity is unknown may be made by
publication in a newspaper of general
circulation in accordance with Section 14 of
Rule 14.

19
 REMEDIAL LAW
CMIL PROCEDURE
Note: lf the action does not survive (like
purely personal actions of support, annulment
of marriage and legal separation), the court
shall simply dismiss the case. Substitution will
not be required (Riano, 2007, p. 200).
B. SECTION 17. DEATH OR SEPARATION
OF A PARTY WHO IS A PUBLIC
OFFICER
Requisites:
1. Public officer is a PARTY TO AN
ACTION in his officiat capacity;
2. During the pendency of the action, he
either DIES, RESIGNS, OR
OTHERWISE CEASES to hotd office;
3. lt is satisfactorily shown to the court by
any party, within 30 .days afier the
successor takes office, that there is a
SUBSTANTIAL NEED for continuing
or maintaining the action;
4. That the successor ADOPTS OR
CONTINUES OR THREATENS TO
ADOPT OR CONTTNUE the action of
his predecessor; and
5. The party or ofiicer affected has been
given REASONABLE NOTTCE of the
application therefor and accorded an
opportunity to be heard.
C. SECTION 18. INCOMPETENCY OR
INCAPACITY
ln case a party becomes incompetent or
incapacitated, the action survives and may
be continued by or against th;
incompetent or incapacitated assisted by
his legal guardian or guardian ad titem,
who is his legalrepresentative.
D. SECTION 19. TRANSFER OF INTEREST
The transfer of interest that is referred to in
a
this section is bansfer that occurs
DURING THE PENDENGY of the action.
The transferor would no longer be the real
. party in interest if the transfer is made
before the commencement of the suit.
General rule: The rule does not consider
the transferee an indispensabte party.
Hence, the action may proceed witfrout ttre
need to implead him.
Exception; When the substitution by or
joinder of the transferee is ordered by
court.
20
A transferee pendente lite:
1. Stands in exactly the same position as
its predecessor-in-interest, the original
defendant; and
2. Bound by the proceedings had in the
case before the propefi was
transferred to it, even if not formally
included as a defendant. (Henera,
voLl p.405)
The case will be dismissed if the interest
of plaintiff is transferred to defendant
UNLESS there are several plaintiffs, in
which case, the remaining plaintiffs can
' proceed
with their own cause of action.
SECTION 20. ACTION ON CONTRACTUAL
MONEY CLAIMS
Requisites: (MAD)
1. The action must primarily be for recovery
ofggoney, debt , or interest thereon;
2. The claim, subject of the action, 3rose
from contract, express or implied; and
3. Defendant glies before the entry of final
judgment in the court in which the action
was pending.
Note: Under this section, the death of the
defendant will not result in the dismissal of the
action. The deceased shall be substituted by
his legal representatives in the manner
provided for in Sec. 16 of Rule 3 and the
action continues until the entry of final
judgment.
However, execution shall not issue in favor of
the winning party. The final judgment should
be filed as a claim against the estate of the
decedent without need of proving the claim.
SECTION 21. INDIGENT PARTY
docket
 9m Feta @ollr$e of I.sb
2011 CENTRALIZED BAR OPERATIONS

SECTION 22. NOTICE TO THE SOLICITOR SECTION 1. VENUE OF REAL AGTIONS

GENERAL
The venue is the place where the real property
or any portion thereof is located.
. lf property is located at the boundaries of
Venue is the place of trial or geographical two places: File case in either place at the
location in which an action or proceeding option of the plaintiff.
should be brought. . When the case involves two properties
located in two different places:
1. lf the properties are the objecl of the
same transaction, file it in any of the
Power of the court to two places;and
hear and decide a
2. lf they are the subjects of two distinct
case,
transactions, separate actions should
May be waived. Jurisdiction over the be filed in each place unless properly
subject matter and over joined.
the nature of the action
is conferred by law and
cannot be waived. SECTION 2. VENUE OF PERSONAL
ACTIONS
May be changed by Cannot be the subject Residence should be viewed or understood in
the written agreement of the agreement of the
of the parties. parties.
its popular sense, meaning the personal,
actual, or physical habitation of a person,
Not a ground for a Ground for a motu actual residence or place of abode (Raymond
motu pro prio disrfissal proprio dismissal
vs. Court of Appeals G.R. No.80380 Sept" 28,
(excepf in summary
procedure) 1988).
'

Venue of personal actions:

Requisites for venue agreement to be valid: or any of the
1. ln writing;and 1. Where the PLAINTIFF
principal plaintiffs resides;
2. Executed by the parties before the filing of 2. Where the DEFENDANT or anY of the
the action. principal defendants resides; or
3. There must be exclusivity as to the
3. ln case of a NON-RESIDENT
selection of the venue.
DEFENDANT, the action may be brought
in the place where he maY be found.
ln the absence of qualifying or restrictive
words (e.9. only, solely, exclusively in this Note: All at the ELECTION of the
caurt, in no other court save, particularly, PLAINTIFF.
nowhere else buUexcepf) venue stipulation
is merely permissive and not exclusive, Means of Waiving Venue:
meaning that the stipulated venue is in 1. Failure to object via motion to dismiss;
addition to the venue provided for in the rules
(Polytrade Corp. vs. Blanco, G.R. No. L-
2. Affirmative relief sought in the court where
27033, 1969).

When the stipulation as to . venue in a

passenger ticket of a vessel wguld be contrary
to public policy of making courts accessible to E,1 l^r;*ffi. ffiffi ##il t-drW
all who may have need of their service, the
stipulation is void and unenforceable (Sweef
Lrhes vs. Teves, G:R. No. 28324, May19,
1972).

Note: When the action is no longer based on

the agreement but ON THE TORTIOUS ACT
of sending collection telegrams despite the
fact that the obligation had already been paid,
venue is no longer based on the written
stipulation but at the ELECTION OF THE
PLAINTIFF as fixed by law (Herrera, 2007
Vot.l, p.636).

2l
 REMEDIAL LAW
CIVIL PROCEDURE

An action may be filed only when the case SECTION 2. MEANING OF TERMS
involves:
a. Personal status of plaintiff -Venue: Rules on Summary Procedure (Givil Cases)
Where plaintiff resides; and
b. Any property of said defendant located Filing of verified
complaint with the MTC
in the Phil. Venue: Where the
-
property or any portion thereof is
situated or found.
Court may dismiss
the case outright
The Supreme Court has the power to order a
change of venue to prevent a miscarriage of
justice.

Note: The court may NOT motu proprio

W/in 10 days from lf Defundant faib b an*
receipt of summons, in 10 days-
dismiss a complaint on the ground of improper defendant answers, Thecourt, mduprwps
venue (Dacoycay vs. lAC, G.R. No. 74854, incoporating on plaintiffs motion, may
April 2, 1991). An exception is provided in compulsory render judgment based on
counterclaim or alleged in the complaint
Secfibn 4 of the Rule on Summary Procedure. crossclaim, and serves w/o prejudice to
a copy on plaintiff. Rule 9, Sec. 3 (c).
SECTION 4. WHEN RULE NOT
APPLICABLE
lf plaintiff fails to appear in
The rule on venue is inapplicable in cases: preliminary conference,
Answer to counterclaim
1. Where a or /aw provides
specific rule and crossclaim within complaint may be dismissed.
Defendant entitled to
othenvise (i.e. an action for damages 10 days
decision based on his
arising from libel); or counterdaim, All crossdaims
2. The parties have validly agreed in writing dismissed.
before the filing of the action on the Preliminary
exclusive venue thereol (Sec. 4). conference within
30 days after last
answer is filed

lf sole defendant fails to

SECTION 1. UNIFORM PROGEDURE Win 5 days after appear, plaintiff is
conference, court issues entitled to judgment
record of preliminary based on complaint and
The procedure in the MTC shall be the same what is proved therein.
conference
as in the RTC, EXCEpT:
1. Where a particular provision expressly or
impliedly applies onty to either of said
courts; or
Win 10 days fom
2. ln civil cases governed by the Rule on receipt of order,
Summary Procedure. submission by the

#.&s{ ffiW#Pr
:.\a* & lLrilt

22
 $en Fela Gdlege of Leb
2011 CENTRALIZED BAR OPERATIONS

Prohibited Pleadings or Motions under the . Judgments of inferior courts in cases

Rule on Summary Procedure governed by summary procedure are
(DaBaNa PEMP'D DiRTt) appealable to the RTC.
1. Motion to glismiss the complaint or to
quash the complaint or information except procedure no longer applies.
on the ground of:
a. lack of jurisdiction over the subject o The decisions of the RTC (On appeal) in
matter, or civil cases under this rule, including
b. failure to comply with the preceding ejectment cases, are IMMEDIATELY
section; (refenal to lupon) EXECUTORY without prejudice to a
3. Motion for a lill of particulars; further appeal that may be taken.
4. Motion for new trial, or for reconsideration
of a judgment, or for reopening of triat; Note: Please refer to the special laws on the
5. letition for relief from judgment; salient features of the Rules on Summary
6. Motion for extension of time tofile Procedure.
pleadings, affidavits or any other paper;
7. Semoranda; Katarungang Pam baran gay Law
8. Petition for certiorari, mandamus, or (Title One, Book lll, RA 7160)
prohibition against any interlocutory order
issued by the court;
No complaint, petition, action, or proceeding
I Motion to gleclare the defendant in default;
involving any matter (BETWEEN
10. Dilatory motions for postponement;
INDIVIDUALS/NATURAL PERSONS) within
11. Eeply;
12. Third party complaint; and
the authority of the /upon shall be filed or
13. lntervention ' instituted directly in court or any other
government office for adj ud ication,
UNLESS:
o The filing of a prohibited pleading wiil not 1. There has been CONFRONTATION
suspend the period to file an answer or to
BETWEEN THE PARTIES before the
appeal.
lupon chairman or pangkat, and
o Although a motion to dismiss is a 2. That no conciliation or settlement has
prohibited pleading, its fiting after the been reached OR unless the settlement
answer had already been submitted does has been repudiated by the parties
not constitute a pleading prohibited by the thereto.
summary rules. What the rules proscribe is
a motion to dismiss that would stop the Cases NOT covered by the Katarungang
running of the period to file an answer and Pambarangay Law (SUBSTANTIVE
cause undue delay (Heirs of O/fuas ys. Exceptions: G-POP RDP J)
Flor,'G.R. No. 78343, May 21, I9B8).
. A motion to dismiss may be treated as an
1. Where one party is the government or any
subdivision or instrumentality thereof;
answer (Rosa/es vs. Court of Appeats,
G.R. No. 137566, Feb 28,2001).
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his
Note: While a motion to declare the defendant "offi,cial functions;
in default is prohibited by the rutes on
summary procedure, the plaintiff may
nevertheless file a motion to render judgmeit
as may be wananted when the defendant fails
to file an answer.

Trial Procedure in Civil Gases

No testimonial evidence is required nor cross-
examination of witnesses allowed. All that is
required is that wiinin 1tO; days from receipt
by the parties of the court,s pre-trial order, they
shallsubmit:
1. The affidavits of their witnesses; and
2. Other evidence on the factual issues set
ln the pre-triat order,
fgrt! position together with
their papers setting forth ttre taw
and the facts relied upon by them.

23
 REMEDIAL LAW
CIVIL PROCEDURE

b. The parties thereto agree to submit complaint in court or any government office for
their differences to amicable adjudication. (1 0 days to repudiate)
settlement by an appropriate lupon;
Rules on Venue under the Katarungang
7. Such other classes of disputes which the Pambanngayl-aw
president may determine in the interest of 1. Disputes between residents of the same
justice; and barangay shall be brought for settlement
8. Where one of the parties is a iuridical before lupon of said barangay.
entity. 2. Residents of difierent barangays within the
same city or municipality - ln the barangay
Note: The court in which non-criminal cases where the respondent or any of the
not falling within the authority of lhe lupon are respondents reside at the election of the
filed may, at any time before trial, motu proprio complainant.
refer the case to the lupon concerned for 3. Disputes involving real property or any
amicable settlement. interest therein - Where real property or
larger portion thereof is situated.
While the dispute is under mediation, 4. Disputes arising at the WORKPLACE
conciliation, or arbitration, the prescriptive where the contending parties are
periods for offenses and cause of action under employed or at the |NST|TUT|ON,where
existing laws shall be intemtpted upon filing of such parties are enrolled for study - ln the
the complaint with lhe punong barangay. barangay where such workplace or
Such interruption sfra// NOT exceed 60 days institution located.
from the time of the filing of the comptaint with
the punong barangay. Note: Please refer to the special laws on the
salient features of the law and on Katarungang
The pafties may go directly to court in the Pambarangay Chart.
following instances (PROCEDURAL
Exeeptions: CHAS LACT)
1. Where the accused is under police
gustody or detention;
2. Where the person has otherwise been SECTION 1. PLEADINGS DEFINED
deprived of personal liberty calling , for
fiabeas corpus proceeding; Pleadings are the written statements of the
3. Where the gctions are coupled with respective claims and defenses of the parties
provisional remedies such as preliminary
injunction, attachment, delivery of
submitted to the court fbr appropriate
judgment.
personal property, and support
pendente lite; Purpose of pleadings: (AlD)
4. Where the action may otherwise be barred 1. To apprise the Court of the rival claims in
by the gtatute of limitations; a judicial controversy submitted for trial
5. labor Disputes (Montoya vs. Escayq G.R. and decision;
No. 82211-12, March
21,1989);
6. Actions to annul judgment upon a
compromise (Sanchez vs. Tupaz,
G.R. No. 76690, Feb.21, 19BB).
7. QARL disputes; and
8. Disputes involving the lraditions of
indigenous cultural community.

The parties may, at any stage of the

proceedings, agree in writing to have the
matter in dispute decided by arbitration by
either the Punong Barangay or Pangkat.

The settlement and arbitration agreement may

be repudiated on the ground that consent is
vitiated by fraud, violence, or intimidation.
Such repudiation shall be sufficient basis for
the issuance of the certification for filing a

24
 9nu Fete @ollcge of Lsb
2011 CENTRALIZED BAR OPERATIONS

3. The g[etails of probative matter or

particulars of evidence, statements of law,
Only 9 kinds inferences and arguments; and
of Any application for
4, An gllegation that a contract is valid or
pleading are allowed relief not by a pleading
is a motion. void is a mere conclusion of law.
May be oral when
made in open court or SECTION 4. ANSWER
Must be written.
in the course of a
Answer is the pleading where the defendant
sets forth his affirmative or negative defenses.
Note: A motion to dismiss is NOT a May or may not contain a counterclaim.
pleading.
It may likewise be the response to a
HOWEVER, there are motions that actually counterclaim or a cross-claim.
seek judgment like a motion for judgment on
pleadings (Rule 34) and motion for summary SECTION 5. DEFENSES
judgment (Rute 35).
Two Kinds of Defenses that may be set
SECTION 2. PLEADINGS ALLbWED forth in the answer
1. Complaint; 1. Affirmative Defenses
2. Counterclaim; It is an allegation of a new matter which,
3. Cross-claim; while hypothetically admitting the material
4. Third-party Comptaint; allegations in the pleading of the claimant,
5. Complaint-inintervention; would nevertheless prevent or bar
6. Answer; .
recovery by him.
7. Reply;
8. Counter-counterclaim; and Affirmative defenses include fraud,
9. Counter-Crossclaim. prescription, release, payment, illegality,
statute of frauds, estoppel, former
SECTION 3. COMPLAINT recovery, discharge in bankruptcy, and
another matter by way of confession and
A complaint is the pleading aileging the avoidance.
plaintiffs cause or causes of acilon.
2. Negative Defenses
It should contain a concise staternent of the It refers to a specific denial of the
ultimate facts constituting the plaintiffs cause material facts or facts alleged in the
of action, not evidentiary facts or legal pleading of the claimant essential to his
conclusions. cause of action.

Ultimate facts refer to the essential facts lnsufficient denial or denial amounting to
constituting the plaintifPs cause of action. admissions
1. Generaldenial; and
A fact is essenfia/ if it cannot be stricken out
without leaving the statement of the cause of
action insufficient.

Test of sufficiency of the facts alleged in

the complaint
Determine whether upon the avernent of
facts, a. valid judgment may be properly
rendered.

What are NOT Uttimate facts: (ELDA)

1. lvidentiary or immaterial facts;
2. legal conclusions, conclusions or alleg
inferences of facts from facts not stated, or
inconect inferences or conclusions from
facts stated;

25
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 6. COUNTERCLAIM o ln Calo vs. Ajax lnt'l (G.R lrio.. 2t&,

March 16. 1968), frE remedy strcre a
Counterclaim is any claim which a defending counterdaim is beyond the jurisdiclbn of
party may have against an opposing party. the MTC is to set off the claims and file a
separate action to collect the balance.
Nature of a counterclaim
A counteiclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is not part of the answer. Upon its One which arises out It does not arise out of
filing, the same proceedings are had as in the of or is necessarily nor is it necessarily
original complaint. For this reason, it must be connected with the connected with the
answered within ten (10) days from service. transaction or subject matter of the
occurrence that is the opposing party's claim.
Gounterclaims may either be: subject matter of the
L Compulsory;or
2. Permissive. It does not require for
its adjudication the
It may require for its
adjudication the
presence of third presence of third
sEcTtoN 7. COMPULSORY parties of whom the parties over whom the
COUNTERCLAIM court cannd acquire court cannot acquire

Gompulsory Counterclaim is one which, It is NOT baned even

being cognizable by the regular courts, arises if not set up in the
out of or is connected with the transaction or action.
occurence constituting the subject matter of Need not be Must be answered,
the opposing party's claim and does not answeredi no default. otherwise, the
require for its adjudication the presence of defendant can be
third parties of whom the court cannot acquire deelared in defauft.
jurisdiction.
Notei A plaintifi who fails or chooses not to
Requisites of a compulsory counterclaim answer a compulsory counterclaim may not be
1. lt must arise out of, or be necessaily declared in default, principally because the
connected with, the transaction or issues raised in the counterclaim are deemed
occunence that is the subject matter of the automatically joined by the allegations of the
opposing party's claim; complaint (Gojo vs. Goyala, G.R. No. 26768,
2. lt does not require for its adjudication the Oct.30, 1970).
presence of third pafties of whom the court
cannot acquire jurisdiction; General Rule: A compulsory counterclaim not
3. lt must be within the jurisdiction of the set up in the answer is deemed barred.
court; and
4. lt must be cognizable by the regular courts Exceptions:
of justice. a. lf it is a counterclaim which either matured
or was acquired by a party after serving
Rules on Gompulsory Counterclaim his be pleaded
A counterclaim before the MTC must be within by
the jurisdiction of said court, boffr as fo fhe 9,
amount and nature thereof.
t::;#,bLy-w"ffix ## **ew
ln an original action before the RTC, the a-
counterclaim may be considered compulsory
regardless of the amount. or
of
However, the natuie of the aetion is always by
material such that unlawful detainer cannot be
set up in the RTC.

r lf a counterclaim is filed in the MTC in the

ex@ss of its jurisdictional amount, the
excess is considered waived (Agustin vs. are event
Bacalan, O.R. No. 46000, March 18, that a ground for
1egq. counterclaim
at the st choose only

26
 5un Fell GoIIege of L^tu
2O11 CENTRALIZED BAR OPERATIONS

one remedy. lf he decides to file a motion

to dismiss, he cannot set up his
counterclaim. But if he opts to set up his in which case,
counterclaim, he may still plead his ground it is called a
for dismissal as an affirmative defense in compulsory
his answer. counterclaim,
or it may not,
sEcTtoN 8. cRoss-clArM in which case
it is called a
permissive
Gross Glaim is any claim by one party against counterclaim.
a co-party arising out of the transaction or NO NEED for
occurrence that is the subject matter either of NO NEED for
a leave of a leave of
the original action or of a counterclaim therein. court.
court.

Requirements for a Cross- Glaim;

1. A claim by one party against a co-party; SECTION 9. COUNTER.COUNTERCLAIMS
2. lt must arise out of the subject matter of AND COUNTER.CROSS.GLAIMS
the complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the Gounter-Counterclaim is a claim asserted
claim against him by the opposing party. against an original counterclaimant.

Purpose: To seftle in a single proceeding all Counter-Grossclaim is a claim filed against

the claims of the different parties in the case an original cross-claimant.
against each other in order to avoid multiplicity
SECTION {0. REPLY
of suits (Republic vs. Paredes, G.R. No. l-
12546, May 20. 1960).
Reply is the response of the plaintiff to the
lf it is not set up in the action, it is BARRED. defendant's answer, the function of which is to
except: deny or allege facts in denial or in avoidance
1. When it is outside the jurisdiction of the of new matters alleged by way of defense in
court; or the answer and thereby join or make issue as
2. lf the court cannot acquire jurisdiction over to such new matters.
third parties whose presence is necessary
for the adjudication.of said cross-claim. ln Effect of Failure to File a Reply
which case, the cross-claim is considered
PERMISSIVE;or General Rule: Filing a reply is merely
3. Cross claim that may mature or may be optional. New facts that were alleged in the
acquired after service of the answer. answer are deemed controverted should a'
(Riano,2007, p.285) party fail to reply thereto.

o The dismissal of the complaint carries with Exceptions:

it the dismissal of a cross-claim which is Reply is required:
purely defensive, but not a cross-claim
1. Where the based an
AC Rule
seeking an affirmative relief.
; and

Against a
peison not a Note:
party to the
action.
c
deem
Must arise out May arise out Must be in tn
of the of or be respect of the
an
transaction necessarily opponent's
that is the connecled (Plaintiff) to file
subject matter with the claim.
of the original transaction or
action or of a the subject
counterclaim matter of the
therein. opposing
party's claim,

27
 REMEDIAL LAW
CIVIL PROCEDURE

sEGnoN {1. THTRD (FOURTH, ETC.) _
PARTY COMPLAINT
Third -
Party Comptaint is a claim that a
defending party may, with leave of court, file
against a person not a party to the aciion for
gontribution, lndemnity, gubrogation or gny
other relief (CISA), in respect of his
opponent's claim. There could also be a
fourth, etc.; - party complaint with the same ' this section.
purpose and function.
Tests to determine whether the third-party
complaint is in respect of plaintiff's claim
1. Whether it aiises out of the same
transaction on which the plaintiff's claim is
based, or although arising out of another
or different transaction, is connected with
the plaintiffs claim;
2. Whether the third-party defendant would
be liable to the plaintiff or to the defendant
for all or part of the plaintiffs claim against
the original defendant; and
3. Whether the third-parg defendant may
assert any defenses which the third-party
plaintiff has or may have to the ptaintiffs
claim.
SEGTION 12. BRINGING NEW PARTIES
Distinguished from a Third-party complaint
A third-party complaint is proper when not one
of the third-party defendants therein is a party
to the main action. lf one or more of the
defendants in a counterclaim or cross-claim is
already a party to the action, then the other
necessary parties may be brought in under
SECTION 13.
ANSWER THIRDTO
(FOURTH, ETC.) - PARTY COMPLAINT
PARTS OF A PLEADING
SECTION 1. CAPTION
The Caption contains the following:
1. The name of the court;
2. The title of the action; and
3. The docket number if assigned.
SECTION 2. THE BODY

e Leave of court to file a third-party The Body sets forth:

complaint may be obtained by motion 1. lts designation;
under Rule 15_
2. The allegation of the party's claims and
r Summons on third, fourth, etc.-party defenses;
defendant must be served for the court to 3. The relief prayed for; and
obtain jurisdiction over his person, since 4. The date of the pleading.
he is not an original party.
r Where the trial court has jurisdiction over Note: lt is not the caption of the pleading but
the main case, it also has jurisdiction over the allegations therein which determine the
the third-party complaint, regardless of the nature of the action and the court shall grant
amount involved as a third-party complaint relief warranted by the allegations and proof
is merely auxiliary to and is a continuation even if no such relief is prayed lor (Riano,
of the main action (Repu blic vs. Central 2007, p.46).
Surety & Insurance Co., G.R. A/o. L-
27802, act.26, 1968).
. A third-party complaint is not proper in an
action for declaratory reliel (Commissrbner
of Cusforns ys. Cloribet, G.R. /Vo. L- {{"&ft ffiffiWf4
21036, June 30, 1977).

Brings into the action

a third person who
was not originally a
party. in its
lnitiative is with the be
Initiative is with a
person already a non-party who seeks
party to the action. to join the action.

28
 9en Fe[a Gollege ot Ltr
2011 CENTRALIZED BAR OPERATIONS

Disciplinary action on counsel in the 9. Petition for Review from the RTC to the
following cases: Supreme Court (See Sec. 2[c], Rule 41,
1. Deliberately filing an unsigned pleading; Rules of Civil Procedure)
2. Deliberately signing a pleading in violation 10. Petition for Review from RTC to Court of
of the Rules; Appeals (See Sec. 1, Rule 42, Rules of
3. Alleging scandalous or indecent matter in CivilProcedure)
the pleading; or 11. Petition for Review under Rule 43, from
4. Failing to promptly report a change of his CTA and other quasi-judicial agencies to
address. Court of Appeals (See Sec. 5, Rule 43,
Rules of Civil Procedure)
SECTION 4. VERIFICATION 12. Appeal by Certiorari under Rule 45, from
Court ofAppeals to Supreme Court
Pleadings need NOT be verified
EXCEPT (See Sec. 7, Rule 45, Rules of Civil
when othenryise provided by the law or rules. Procedure)
13. Petition for Certiorari (special civil ac{ion)
How a pleading is verified: By an affidavit under Rule 64 (See Sec. 2, Rule 64, Rules
that the affiant: of Civil Procedure)
'l. Has read the pleading; and 14. Petition for Certiorari (special civil action)
2. That the allegations therein are true and under Rule 65 (See Sec. 7, Rule 65, Rules
correct of his personal knowledge or of Civil Procedure)
based on authentic documents. 15. Petition for Prohibition under Rule 65
(See Sec. Rule 65, Ru/es 'of Civil
2,
r The purpose of requiring a verification is to Procedure)
secure an assurance that the allegations '16. Petition for Mandamus under Rule 65
of the petitioi nave been made ii good (See Sec. Rule 65, Rules of Civil
3,
faith, or are true and correct, not merely Procedure)
speculative (Sarmiento v. Zaratan, G.R. 17. Petition for
appointment of guardian
No. 167471, February 5, 2A07). (See Sec. 2, Rule 93, Rules of Court)
18. Petition for leave filed by guardian to sell
List of pleadings that should be VERIFIED or encumber property of an estate
(NOT EXCLUSTVE) (See Sec. 1, Rule 95 Ru/es of Court)
1. Civil complaints or initiatory pleadings 19. Petition for declaration of competency of a
asserting claims for relief (including ward (See Sec. /, Rule 97, Rules of Court)
permissive counter-claims). (See Sec. 5, 20. Petition for habeas corpus (See Sec. 3,
Rule 7, Rules of Civil Procedure) Rule 102, Rules of Court)
2. Statement of Claim for Small Claims 21. Petition for change of name (See Sec. 2,
Cases, as well as the Response thereto Rule 103, Rules of Court)
(See Secs. 5 & 11, Rules of Procedure for 22. Petition for voluntary judicial dissolution of
SmallClaims Cases) a corporation (See Sec. 1, Rule 105,
3. Complaint for injunction (See Sec. 4, Rule Rules of Court; see also Sec. 119,
5fl Rules of Civil Procedure) Corporation Code)
4. Application for appointment of receiver 23. Petition for cancellation or correction of
(SeeSec. 1, Rule 59, Rules of Civil entries in Rule 108
Procedure)' See
Application for support pendente lite
(See Sec. 1, Rule 69, Rules of Civil
Procedure)
6. Petition for forcible entry or unlaMul
detainer, the answers thereto, and the
answers to any compulsory counter-claim
and cross-claim pleaded in the
answer (See Sec. 4, Rule 70, Rules of
CivilProcedure)
7. Petition for indirect contempt (See Sec. 4,
Rule 71, Rules of Civil Procedure)
8. Petition for relief from judgment or order.
(See Sec. 3, Rule 38, Rules of Civil
Procedure)

29

h
 REMEDIAL LAW
CIVIL PROCEDURE

TEST to determine the presence of forum the case, without prejudice, unless othenrvise
shopping: Whether in the two (or more) cases provided, upon motion (not motu proprio) and
pending, there is identity in terms of the after hearing.
following:
1. Parties or identity of interests represented Effect of Submission of False Certification
(Cf. Fkst Phil. lntemational Bank, et at. vs. or Non4ompliance with the Undertakings
C.A., G.R. No. 115849, January 24, 1996); Therein
2. Rights or causes of action; and 1. lndirect contempt; and
3. Relief sought. 2. Without prejudice to the filing of
aCministrative and criminal actions against
. The. certificate is to be executed by the counsel.
petitioner, and not by counsel, unless the
latrer is specifically authorized to do so. , Effect of Willful and Deliberate Forum
Shopping
Ratio: The party himself has actual knowledge 1. Shall be ground for summary dismissal of
or knows better than anyone else, whether he the case with prejudice; and
has initiated similar actions in other courts 2. Direct contempt, as well as a cause for
agencies or tribunals (Riano, 2007, p. 56). administrative sanctions.

Three Ways of Gommifting Forum

Shopping:
'1. Filing multiple cases based on the same
cause of action and with the same prayer,
the previous not having been resolved yet
(litis pendentia);
2. Filing multiple cases based on the same
cause of action and with the same prayert
the previous having been resolved with
finality (res judicata);
3. Filing multiple cases based on the same
causes of action but with different prayers
(splitting of cause of action, where the
ground for dismissal is also litis pendentia
or res judicata) (Ao-As vs. CA, et al., G.R.
No. 128464, June 20,2006).
SECTION I. IN GENERAL
Every pleading shall contain in a methodical
and logical form a plain, concise and direct
statement of the ultimate facfs, omitting the
statement of mere evidentiary facts.
Ultimate Facts refer to those which directly
form the basis of the right sought to be
enforced or the defense relied upon. lf the
ultimate facts are NOT alleged, the cause of
action would be insufficient.

Note: The certificate of non-forum shopping is Evidentiary Facts refer to those which are
a mandatory requirement in filing a compliint necessary to prove the ultimate fact or which
and olher initiatory pleadings assLrting a ctaim furnish evidence of the"existence of some
or relief (Sec. 5, Rule 7, Rutes of Court). other facts.

f!e96 initiatory pteadings inctude not onty the Test to Distinguish Conclusion of Law from
original complaint but also: Statement
1. Permissivecounterclaim;
2. Cross-claim;
3. Third (fourth, etc.) - party cornptaint;
4. Complaint-in-intervention; and
5. Petition or application wherein the party
asserts his claim for relief.

The rule does not require a certificate against

forum shopping for a compulsory counterclaim
because it cannot be subject to a separate and
independent adjudication. lt is
NOT AN
INITIATORY PLEADTNG (USf vs. Suda, G.R.
No. 129718, August 17, 1gg8).

Effect of Failure to Compty A party defenses

Not curable by mere amendment of the as he but each
pleading but shall be cause for the dismissal of

30
 Ssn Felu @ollege ot 1[.ub
2011 CENTRALIZED BAR OPERATIONS

Facts that may be Averred Generally: (CGC 2. By setting forth what is elaimed to be the
LeMJO) facts.
I
L Gonditions precedent (BUT there must still
be an allegation that the specific condition Where the actionable document is properly
precedent has been complied with, alleged, the failure to specifically deny
otherwise, it will be dismissed for lack of under oath the same rcsults in:
cause of action; Sec. 3); 1. The admission of the genuineness and
2. Capacity to sue or be sued (Sec. 4); due execution of said document, EXCEPT
3. Qapacity to sue or be sued in a that an oath is not required:
representative capacity ( Sec. 4) ; a. When the adverse party was not a
4. $gal existence of an organization (Sec. party to the instrument; OR
4), b. When compliance with an order for an
inspection was refused.
Note: A party desiring to raise an issue as 2. The document heed not be formally
to the legal existence or capacity of any offered in evidence.
party to sue or be sued in a representative
capacity shall do so by SPEC|FtC DENIAL Genuineness means that the instrument is:
which shall include supporting particulars 1. Not spurious, counterfeit, or of different
within the pleader's knowledge. import on its face from the one executed
by the party; or
5. Malice, intent, knowledge, or other 2. That the party whose signature it bears
condition of the mind (Sec. 5); has signed it; and
3, That at the time it was signed, it was in
Ratio: lt is dlfficutt to state the particulars words and figures exactly as set out in the
constituting these matters. pleadings.

6. judgments of domestic or foreign courts, Due Execution means that the document
tribunals, boards, of officers (no need to was:
show jurisdiction (for it is presumed; Sec. 1. Signed voluntarily and knowingly by the
6); and party whose signature appears thereon;
7. Qfficial document or act (Sec. 9). 2. That if signed by somebody else such
representative had the authority to do so;
pacts inat must be Averred particularly: and
The circumstances showing fraud or mistake 3. That it was duly delivered, and that the
in all averments of fraud or mistake (Sec. 5). formalities were complied with. (Hibberd
vs. Rhode, G.R. No. 84"N8. Dec. S, 1915)
SECTION 7. ACTION OR DEFENSE BASED
ON DOCUMENT The following DEFENSES, not being
inconsistent with the genuineness and due
Actionable Document refers to a written execution, are NOT WAIVED despite failure
instrument upon which the action or defense is to specifically deny under oath:
based. (FEW MPM DiSC)

Two permissible ways of pleading an

actionable document
1. By setting forth the substance of such #eYq ffiffi#e
document in the pleading and attaching
said document thereto as an exhibit tff,ffitr #Y"x*ewv
(contents of the document annexed are
controlling, in case of variance in the
substance of the document set forth in the
pleading and in the document attached);
or BUT
2. By setting forth said document verbatim in 1. F
the pleading.
an
SFCTION 8. HOW TO CONTEST SUCH 3. The
DOCUMENT its

How to Gontest an Actionable Document

1. By specific denial under oath; AND

31
 REMEDIAL LAW
CIVIL PROCEDURE

5. At the time the document was signed, it Exceptions:

was not in words and figures exactly as
set out in the pleading.
Note: Failure to specifically deny under oath
the genuineness and due execution of an
actionable document generally implies an
admission of the same by the other party.
However, such IMPLIED ADMISSION lS
DEEMED WAIVED if the party asserting the
same has allowed the adverse party to present
evidence contrary to the contents of such
document without objection (Central Surefy rzs.
Hodges, G.R. No. 12730, August 22, 1960).
SECTION 9. OFFICIAL DOCUMENT OR AGT
SECTION 10. SPECIFIC DENIAL
Three Ways of Making a Specific Denial
1. Allegations as to the amount of
unliquidated damages;
2. Allegations immaterial to the cause of
action; and
3. Conclusion of law.
Note: Admissions may be withdrarm by
amendments. The original pleadings .ue
superseded by the amended pleading (lnwlar
Veneer, lnc. vs. Plan, No. L40155, Sept. 10.
1976).
SECTION 12. STRIKING OUT OF PLEADING
OR MATTER CONTAINED THEREIN
Allegations of merely evidentiary or immaterial
facts may be expunged ftom the pleading or
may be stricken out on motion.

1. Specific Absolute Denial

By specifically denying the averment and,
whenever practicable, setting forth the
substance of the matters relied upon for
such denial;
2. Partial Specific Denial
Part admission and part denial; and
SECTION 1. DEFENSES AND OBJEGTIONS
NOT PLEADED
General Rule: Defenses and objections not
raised in a MOTION IO DISMISS or in the
ANSWER are deemed waived.

Disavowalof Knowledge Exceptions:

By an allegation of lack of knowledge or 1. Lack of jurisdiction over the subject matter;
information sufficient to form a belief as to 2. Litis pendentia;
the truth or falsity of the averment in the 3. Res judicata; and
opposing party's pleading. 4. Prescription of the action.
o This does not apply where the fact as . The court shall dismiss the claim if any of
to which want of knowledge is foregoing grounds appears from the
asserted is, to the knowledge of the pleadings or the evid€nce on record.
court, so plain and necessarily within . These defenses may be raised at any
. the defendant's knowledge that his stage of the proceedings even for the first
averment of ignorance must be time on appeal EXCEPT that lack of
palpably untrue.
ba
. A Negative pregnant is a form of
denialwhich at the same time involves #esd ffiffi#F-
an affirmative implication favorable to
' the opposing party. tt is in effect, an
admission of the averment to which it
is directed. lt is said to be a denial
pregnant with an admission of the
substantial facts in the pteading
responded to.

SECTION 11. ALLEGATION NOT

SPECIFICALLY DENIED DEEMED
ADMITTED

General Rule: Ailegatibns NOT specifically

denied are deemed admitted.

32
 5fir Sell Gollcge of Ldo
2011 CENTRALTZED BAR OPERATTONS

SEGTION 3. DEFAULT; DECLARATION OF Default tn Ordinary Procedure

DEFAULT
After the lapse
of time to file
It is the failure of the defendant to answer an answer,
within the proper period. lt is not his failure to the plaintiff
appear nor failure to present evidence. may move to
declare the
defendant in
Two Stages of Default: default
1. Declaration or Order of default; and
2. Rendition of Judgment by default.

lssued by the court, on Rendered by the court

plaintiffs motion for following a default Motion granted:
Court issues order
failure of the defendant order or after it
of default and
to file his responsive received, ex pat7e,
renders judgment,
or require plaintiff
to submit evidence
ex pafte.

Before judgment by
default is rendered,
defendant may:
1. Move to set
aside order of
default upon
showing of:
FAME and
that he has a
meritorious
defense;
2. Avail ot Rule
65 in proper
cases-

Court sets aside

order of default and
defendant is allowed

i1M ' ffiffi"rl

whd,&.
ffib$M
"Wffi5ffi ffiffd,,
*ffi*Fr,/
'*ffi[ sw'
/
h,w-/
ft:^ wf ^.,-, _&

33
 REMEDIAT LAW
CIVIT PROCEDURE

Note: Failure of the defendant to attend the Effect of an Order of Default

pre-trial is a cause for the court to order the 1. The court shall proceed to .erder
plaintiff to present his evidence ex parte and judgment granting the claimant such relief
for the court to render judgment on the basis as his pleading may warrant; OR in ils
thereof under the Rules. This consequence is discretion
NOT to be called a declaration of default (Sec. 2. Shall require the claimant to
submit
5, Rule 18). evidence;
3. Loss of standing in court of the defaulting
General Rule: Default order and consequenfly party (Cavile vs. Florendo G.R. No. 73039,
a default judgment are triggered by the fiailure Oct.9, 1987); and
of the defending party to file the required 4. Defendant is still entitled to notices of
answer (Sec. 3, Rule 9). subsequent proceedings

Exceptions: A judgment by defautt may be
rendered in the following cases despite an
answer having been filed:
1. lf a party refuses to obey an order
requiring him to compty with the various
modes of discovery gec. 3[c], Rute 29): or
2. lf a party or officer or managing agent'of a
party willfuily fails to appear before the
officer who is to take his deposition (Sec.
5, Rule 29) (Riano, 2007, p.297).
Elements of a Valid Declaration of Default:
1. The court must have vatidly ACQUIRED
JURISDICTION over the person of the
defendant either by service of summons or
2.
voluntary appearance;
The defendant FATLS TO ANSWER within
3.
the time allowed therefore;
There must be a MOTION to declare the
defendant in default;
4. There must be NOTICE to the defendant
by
_serving upon him a copy of such
motion;
5. There must be pROOF of such failure to
answer; and
6. There must be a HEARING to dectare the
defendant in default;
Wherb no Defaults are Ailowed: (ADLeS)
1 Annulment of marriage;
?. Qeclaration of nuilitybf mairiage;
3. lggalseparation;
4. Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is required
to be fited;
5. .$ummary Procedure.
Relief from Order of Default: filotion to Lift
Order of Default
Requisites:
1. Verified motion showing fraud, accident
mistake or excusable negligence; and
2. Meritoriousdefenses.
ln such a case, the order of default may be set
aside on such terms and conditions as the
judge may impose in the interest of justice
(Rule 9 Secflon 3 (b) Rules of Court).
Rights of a Party in Default:
Entitled to notice of -
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.
Note: A defendant declared in default cannot
take part in the trial, but he cannot be
disqualified from testifying as a witness in
favor of non-defaulting defendants (Cavite vs.
Florendo G.R. No. 73039,gcL 9, 19en.
. lf the defendant was declared in default
upon an original complaint, the fiting of the
complaint.
Hence to
##**$*#4ftffi {3fr *"._&w

May a defendant be. declared in default

while a motion to dismiss or a motion for are
bill_ of particulars remains pending and
undisposed of? RA
NO, because the filing of a motion to dismiss lnc.
or motion _for bill of particulars interrupts the
running of the period to answer. lt will run
again from the moment defendant receives the
order denying motion to dismiss or for bill of
particulars (Feria, 2001, p. 1Se.

34
 5sn Fels @ollege of {.Eb
2011 CENTRALIZED BAR OPERATIONS

Partial Default
1. The pleading asserting a claim states a
common cause of action against several
defending parties;
2. Some of the defending parties answer and SECTION 1. AMENDiIENTS IN GENERAL
the others fail to do so; and
3. The answer interposes a common Pleadings may be amendedby:
defense. 1. Adding an allegation of a party;
2. Adding the name or substitution of a party;
Effect of Partial Default 3. Striking out an allegation of a party;
The court will try the case against ALL 4. Striking out the name of a Party;
defendants upon the answer of some except 5. Correcting a mistake in the name of a
where the defense is personal to the one who party; and
answered, in which case, it will not benefit 6. Correcting a mistake or inadequate
those who did not answer. allegation or description in any other
respect.
The Extent of Relief to be awarded in a
Judgment by Default shall not: Types of Amendments:
1. Exceed the amount prayed for; NOR 1. Amendment as a matter of right - the
2. Be different in kind from that prayed for; party has the unconditional right to amend
NOR his pleading. The court has no right to
3. Award unliquidated damages. prevent him from amending. The'opposite
party has no right to oPPose the
Remedies from judgment by default (flow amendment (lf the court refused to admit
chart) the amended pleading as a matter of right,
it is correctible by mandamus.).

2. Amendment as a matter of iudicial

discretion - the court may or may not
allow the amendment. The'other party has
Motion for new trial or reconsideration at the right to oppose (Amendment by leave
any time after service of judgment by of coutt).
default and within 15 (30) days therefrom
SECTION 2. AMENDMENTS AS A MATTER
OF RIGHT
Failure to file motion for new trial/
Denial of said motion
Amendment a
is matter of right before a
responsive pleading /s SERVED, or in case of
a Reply, within 10 days after it was SERVED'

Perfect appeal from said judgment by Such right can only be exercised ONCE.
default within the balance of said Subsequent amendments should be made
15 (30) - day period only by party

S*d$i$ffiffio1"

Petition for relief frsm judgment within

60 days from notice of the judgment but
within 6 months from entry thereof

Annulment of Judgment
under Rule 47

35
 REMEDIAL LAW
CIVIL PROCEDURE

lnstances When Amendment is a Matter of r The cause of action stated the in

Right: supplemental complaint must be the same
1. Amendment of complaint before an as that stated in the original complaint.
answer is filed; Otherwise, the court should not admit the
2. Amendment of answer before a reply is supplemental complaint (Assef
filed or before the period for filing a reply Privatization lrusf vs. G.R. No. 121171
expires; Dec.29, 1998).
3. Amendment of reply any time within 10
days after it is served; and
4. Formal amendment.
Refers to ' facts Refers to facts arising
SECTION 3. AMENDMENTS BY LEAVE OF AT
existing THE AFTER THE FILING of
COURT TIME of the the original pleading.
mmmencement of
Leave of Court is required: the action.
1. lf the amendment is substantial;AND Takes the place of Taken together with
2. A responsive pleading had already been the original pleading.
served. Can be made as a Always with leave of
matterof right as court.
Requisites: when no responsive
1. There must be a motion filed in court; pleading has yet
2, Notice to the adverse party; and been filed.
3. Opportunity to be heard afforded to the When an amended A supplemental
adverse party. pleading is filed, a pleading does not
new copy of the require the filing of a
lnstances when amendment by leave of entire pleading must new copy of the entire
court may NOT BE ALLOWED: be flled. pleading.
1. When the cause of action, defense or
theory ofthe case is changed; SECTION 7. FILING OF AMENDED
2. Amendment is intended to confer PLEADINGS
jurisdietion to the court;
3. Amendment to cure a premature or non- An amendment which merely supplements
existing cause of action; and and amplifies facts originally alleged in the
4. Amendment for purposes of delay. complaint relates back to the date of the
commencement of the action and is not barred
SECTION 4. FORMAL AMENDMENTS by the Statute of Limitations which expired
after service of the originalcomplaint (Verzosa
SECTION 5. AMENDMENT TO CONFORM vs. CA, G.R. No 119511-13, Nov.24, 1998).
TO OR AUTHORIZE PRESENTATION OF
EVIDENCE sEcTroN 8. EFFECT OF AMENDED
PLEADING
When issues NOT RAISED in the pleadings
are tried with the express or implied consent of Effect of
parties:
1. They shall be treated as if raised in the ame
pleadings; rffi
2. Pleadings may be amended to conform to ffi#?egFffi
the evidence; and
3. Failure to amend does not affect the result
of the trial of these issues.

SECTION 6. SUPPLEMENTAL PLEADINGS

ts
Supplemental Pleadings - those which aver may be
facts occurring after lhe filing of the original
pleadings and which are material to the
matured claims and/or defenses therein
alleged (Herrera vol.l p. 603).

36
 9m Felu Gollege ot 1[,cb
2O1t CENTRALIZED BAR OPERATIONS

not be offered in evidence pursuant to counted from notice of the court order
Section 4 of Rule 129. admifting the same.

e The Rule shall apply to the answer to an

amended counterclaim, amended cross-
claim, amended third (fourth,etc.-party
complaint, and amended complaint-in-
SECTION 1. ANSWER TO THE COMPLAINT intervention).
. lf NO NEW ANSWER lS FILED, answerto
SECTION 2. ANSWER OF A DEFENDANT original pleading shall be deemed as
FOREIGN PRIVATE JURIDICAL ENTIW answer to the amended pleading.

ANSWER to a complaint SECTION 4, ANSWER TO COUNTERCLAIM

1. Wthin 15 days after service of summons,
UNLESS a different period is fixed by the
Court;
2. ln case the defendant is a foreign private
juridical entity:
a. lf it has a resident agent - Within 15
days after Fervice of summons to him;
b. lf it has no resident agent, but it has
an agentor officer in the Philippines
Within 15 days after service of
summons to said agent or officer;
c. lf it has no resident agent nor agent
nor officer - in which case service of
summons is to be made on lhe proper
government office (now the SEC)
which willthen send a copy thereof by
registered mail within 10 days to the
home office of the foreign private
corporation - within 30 days after
receipt of summons by the home
office of the foreign private entity.
3. ln case of service of summons by
publication - Within the time specified in
the order granting leave to serye
summons by publication, which shall NOT
be less than 60 days after nolice (Rule 14,
Sec. /5,); and
OR CROSS.CLAIM
A counterclaim or cross-claim must be
answered within 10 days from service.
sEcTroN 5. ANSWER TO THIRD (FOURTH,
ETC.)-PARTY COMPLATNT .
The third-party defendant is served with
- summons just like the original defendant.
Hence, he also has 15, 30, or 60 days from
service of summons, as the case may be, to
file his answer.
SECTION 6. REPLY
A reply may be filed within 10 days from
service of the pleading responded to.
SECTION 7. ANSWER TO SUPPLEMENTAL
COMPLAINT
Answer to a supplemental complaint must be
filed within 10 days from notice of the order
admitting the same unless a different period is
fixed by the court.

4. ln case of a'non-resident defendant on

whom extraterritorial service of summons
is made, the period to answer should be at
least 60 days.
. The court may extend the time to file the
pleadings BUT may NOT shorten them.
rough
(ExcepF in Quo Warranto proceedings)

SECTION 3. ANSWER TO AMENDED

GOMPLAINT

1. lf the filing of an amended complaint is a

matter of right - Within 15 days from
service of the amended complaint.
2. lf the filing of the amended complaint is
NOT a matter of right - Within 10 days

37
 REMEDIAL LAW
CIVIL PROCEDURE

lnstances When Amendment is a Matter of . The cause of action stated the in

Right: supplemental complaint must be the same
1. Amendment of complaint before an as that stated in the original complaint.
answer is filed; Otherwise, the court should not admit the
2. Amendment of answer before a reply is supplemental complaint
(Assef
filed or before the period for filing a reply Privatization lrusf vs. G.R. No. 121171,
expires; Dec.29, 19981.
3. Amendment of reply any time within 10
days after it is served; and
4. Formal amendment.

SECTION 3. AMENDMENTS BY LEAVE OF

Refers io - facts Refers to facts arising
AT
existing THE AFTER THE FILING of
COURT TIME of the the original pleading.
commencement of
Leave of Gourt is required: the action.
1. lf the amendment is substantial;AND Takes the place of
2. A responsive pleading had already been
served.
Can be made as a Always with leave of
matter of right as court.
Requisites: when no responsive
1. There must be a motion filed in court; pleading has yet
2. Notice to the adverse party; and been filed.
3. Opportunity to be heard afforded to the When an amended A supplemental
adverse party. pleading is filed, a pleading does not
new copy of the require the filing of a
lnstances when amendment by leave of entire pleading must new copy of the entire
court may NOT BE ALLOWED: be filed. pleading.
1. When the cause of action, defense or
theory of the case is changed; SECTION 7. FILING OF AMENDED
2- Amendment is intended to confer PLEADINGS
jurisdiction to the court;
3. Amendment to cure a premature or non- An amendment which merely supplements
existing cause of action; and and amplifies facts originally alleged in the
4. Amendment for purposes of delay" complaint relates back to the date of the
commencement of the action and is not barred
SECTION 4. FORMAL AMENDMENTS by the Statute of Limitations which expired
after service of the origina{ complaint (Verzosa
SEGTION 5. AMENDMENT TO CONFORM vs. CA, G.R. No 119511-13, Nov. 24, 1998).
TO OR AUTHORIZE PRESENTATION OF
EVIDENCE sEcTtoN 8. EFFECT OF AMENDED
PLEADING
When issues NOT RAISED in the pleadings
are tried with the express or implied consent of Effect of
parties:
1. They shall be treated as if raised in the
pleadings;
2. Pleadings may be amended to conform to
the evidence; and
3. Failure to amend does not affect the result
of the trial of these.issues.

SECTION 6. SUPPLEMENTAL PLEADINGS

ts
Supplemental Pleadings - those which aver may be
facts occurring after lhe filing of the original
pleadings and which are material to the
matured claims and/or defenses therein
alleged (Henera vot.l p. 603).

36
 $sn Ftlr @ollege ot iltb
2O11 CENTRALIZED BAR OPERATIONS

not be offered in evidence pursuant to counted from notice of the court order
Secfion 4 of Rule 129. admifting the same.

. The Rule shall apply to the answer to an

amended counterclaim, amended cross-
claim, amended third (fourth,etc.-party
complaint, and amended complaint-in-
SECTION 1. ANSWER TO THE COMPLAINT intervention).
. lf NO NEW ANSWER lS FILED, answer to
SECTION 2. ANSWER OF A DEFENDANT original pleading shall be deemed as
FOREIGN PRIVATE JURIDICAL ENTITY answer to the amended pleading.

ANSWER to a complaint SECTION 4. ANSWER TO COUNTERCLAIM

1. Within 15 days after service of summons,
UNLESS a different period is fixed by the
Court;
2. ln case the defendant is a foreign private
juridical entity:
a. lf it has a resident agent - Within 1b
days after gervice of summons to him.
b. tf ii has no resident agent, but it has
an agenlor officer in the philippines -
Within 15 days after service of
summons to said agent or officer;
c. lf it has no resident agent nor agent
nor officer - in which case service of
summons is to be made on lhe proper
government office (now the SEC)
which will then send a copy thereof by
registered mail within 10 days to the
home office of the foreign private
corporation - within 30 days after
receipt of summons by the home
office of the foreign private entity.
3. ln case of service of summons by
publication - Within the time specified in
the order granting leave to serve
summons by publication, which shall NOT
be less than 60 days after notice (Rute 14,
Sec.15); and
OR CROSS.CLAIM
A counterclaim or cross-claim must be
answered within 10 days from service.
sEcTroN 5. ANSWER TO Tl{rRD (FOURTH,
ETC.)-PARTY COMPLATNT
The third-party defendant is served with
summons just like the original defendant.
Hence, he also has 15, 30, or 60 days from
serviee of summons, as the case may be, to
file his answer.
SECTION 6. REPLY
A reply may be filed within 10 days from
service of the pleading responded to.
SECTION 7. ANSWER TO SUPPLEMENTAL
COMPLAINT
Answer to a supplemental complaint must be
filed within 10 days from notice of the order
admitting the same unless a different period is
fixed by the court.
SECTION 8. EXISTING COUNTERCLAIM OR

4. ln case of a'non-resident defendant on

whom extraterritorial service of summons
is made, the period to answer should be at
least 60 days,
. The court may extend the time to file the
pleadings BUT may NOT shorten them.
rough
{Except: in Quo Warranto proceedings)
SECTION 3. ANSWER TO AMENDED
COMPLAINT

1. lf the filing of an amended cornplaint is a

matter of right - Within 15 days from
service of the amended complaint.
2. lf the filing of the amended comptaint is
NOT a matter of right - Within 10 days

37
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 1{. EXTENSION OF TIME TO SECTION 3. GOMPLIANCE WTH ORDER

PLEAD
Period to comply with order granting the
Requisites: motion: Ten (10) days from notice of order
1. There must be a motion; unless a different period is fixed by the court.
2. With service of such motion to other party;
and The Bill of Particulars may be filed either in a
3. On such terms as may be just. separate or in an amended pleading, serving a
copy thereof on the adverse party.

SECTION 4. EFFEGT OF NON-

,t.
sEcTtoN WHEN APPLIED
PURPOSE
Bill of Particulars is a more definite
statement of any matter which is not avened
with sufficient defi n iteness or particularity.
Purpose: To aid in the preparation of a
responsive pleading.
. An action cannot be dismissed on the
ground that the complaint is vague or
indefinite. The remedy of the defendant is
to move for a bill of particulars or avail of
the proper mode of discovery (Galecin vs.
Galeon, G.R. No. L-30380, Feb. 28, 1973).
The motion for bill of particulars shail be filed
before responding to a pleading. Hence, it
must be filed within the period granted by the
Rules (Rule 11) for the fiting of a responsive
pleading.
The Motion shall point out
1. The defects complained of;
2. The paragraphs wherein they are
contained; and
3. The details desired.
. The motion must comply with the
requirements for motions under Sec" 4, 5
and 6 of Rule 75. Otherwise the motion
will not suspend the period to answer
(Filipino Fabricator vs. Magsino, G.R. No.
47574, Jan.29, 1988).
COMPLIANCE
FOR;
Effect of Non€ompliance:
1. lf the Order is not obeyed or in case of
insufficient compliance therewith, the
court:
a. May order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. Make such order as it may deem just.
2. lf the plaintiff fails to obey, his complaint
may be dismissed with prejudice UNLESS
otheruvise ordered by the courl (Rule 12,
Secfibn 4; Rule 17, Section 3);
3. lf defendant fails to obey, his answer will
be stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintift (Rule
12, Section 4; Rule 17, Section 4; Rule 9,
Section 3).
SECTION 5. STAY OF PERIOD TO FILE
RESPONSIVE PLEADING
Effects of Motion
1. lf the motion is granted,"in whole or in part,
the movant can wait until the bill of
particulars is served on him by the
opposing party and then he will have the
balance of the reglementary period within
such

Note: A motion for bill of particulars is not

directed only to a complaint. it is a motion that
APPLIES TO ANY PLEADING which in the
perception of the movant contains ambiguous
allegations (Riano, 2007, p. 256).

SECTION 2. ACTION BY COURT

The court may either:

1. Deny;
2. Grant it outright; or
3. Allow the parties the opportunity to be
heard.

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 $ln Selc €ollege of Lcb
2011 CENTRALIZED BAR OPERATIONS

SECTION 12. PROOF OF FILING

Filing is proved by its existence in the record

of the case.

Note: This Rule is not arranged per section lf it is not in the record, and
but per topic.

SECTION 1. COVERAGE
1. lf filed personally: Proved by the written
or stamped acknowledgment of its filing by
the clerk of court on a copy of the same; or
SECTION 2, FILING AND SERVICE,
DEFINED
2. by registered mail: Proved by the
lf .filed
registry receipt AND the affidavit of the
Notice given to a
party who is duly person who did the mailing with a tull
represented by counsel is a nullity, unless statement of:
service thereof on the party himself was
ordered by the court or the technical defect
a. The date and place of depositing the
was waived.
mail in the post office in a sealed
envelope addressed to the court;
Where party is represented by more than one
b. With postage fully paid; and
counsel of record, service of notice on any of
c. With instructions to the postmaster to
retum the mail to the sender after 10
the latter is sufficient.
days if undelivered.
SECTION 4. PAPERS REQUIRED TO BE
Service is the act of providing a party with a
FILED AND SERVED: (pAMNOJ-DORS)
copy of the pleading or paper concemed.
1. Pleading subsequent to the complaint;
2. Appearance;
3. Written 4qotion; SECTION 5. i'IODES OF SERVICE
4. Sotice;
5. Order; 1 Personal Service (Section 6)
6. judgment; a. Delivering personally a copy to the
7. pemand; party, who is not represented by a
8. Qffer of Judgment; counsel, or to his counsel; or
9. Resolution; or b. Leaving a copy in counsel's office with
10. Similar papers.
a
his clerk or with person having
charge thereof; or
Filing is an act of presenting the pleading or
other paper to the clerk of court"
c. Leaving the copy between 8 a.m. and
6 p.m. at the party's or counsel's
residence, if known, with a person of
SECTION 3. MANNER OF FILING
discretion then
is found
1. Personal service by presenting the
original copies thereof, plainly indicated as
such, to the clerk of court; or

2. Registered mail.

Filing by mail should be through the

REGISTRY SERVTCE which is made by
deposit of the pleading in the post office, and
not through other means of transmission.

o lf a private carrier is availed of by the of court

party, the date of actual receipt by the
court of such pleading and not the date of
delivery to the private carrier, is deemed to
be the date of the fiting of that pteading
(Benguet Electric Cooperative, lnc. ys.
NLRC, G.R. No. g9AT0 May 18, 1992).

39
 REMEDIALLAW
CIVIL PROCEDURE

SECTK)IiI 10. COMPLETENESS OF must be accompanied by a written explanation

SERVICE
1. PerconalService:
a. By handling a copy to defendant; or
b. Tendering him a copy if he refuses.
r Complete upon actualdelivery,
2. Service by Ordinary Mail:
. Complete upon expiration of 10
days after mailing, unless the court
provides otherwise.
3. Ssrvice by Registercd Mail:
. Complete upon actual receipt by the
addressee; or after 5 days from the
date he received the first notice of
the postmaster.
Note: Whichever date is earlier.
SECTION 13. PROOF OF SERVICE
Proof of Perconal Service
1 , Written admission of the party served; or
2. Official return of the server; or
3. Affidavit of the party serving, containing
the date, place and manner of service.
Proof of Service by Ordinary Mait: Affidavit
of the person mailing showing compliance of
Secflon 7, Rule 13.
Proof of service by registered mail:
1. Affidavit of mailer showing compliance of
Secfibn 7, Rule i3; and
2. R:gistry receipt issued by the maiting
ofiice.
SECTION 9.
SERVICE OF JUDGMENT,
FINAL ORDERS, OR I{ESOLUTIONS
1. By personal service;
2. By registered mail; or
3. By publication, if party is summoned by
publication and has failed to appear in the
action.
why the seruice or filing was not done
personally.
SECTION 14. NOTICE OF LIS PENDENS
Lis Pendens is a notice of a pendency of the
action between the parties involving title to or
right of possession over real property.
Requisites:
1. Action affects the title or the right of
possession ofthe real property;
2. Affirmative relief is claimed;
3. Notice shall contain the name of the
parties and the object of the action or
defense and a description of the property
affected thereby; and
4. Action in rem (AFP Mutual Benefit
Association, lnc. vs. CA, G.R. No.l04769,
March 3,2000).
o This serves as a warning to all persons
that a particular real property is in
litigation, and that one who acquires an
interest over said property does so at his
own risk, or that he gambles on the result
of the litigation over said property (Lee Tek
Sheng vs. CA, G.R. No. 115402, July 15,
1eeg).
e The defendant may also record a notice of
lis pendens when he claims an affirmative
relief in his answer.
Note: Section 76 of P.D. /529 provides that
no action to recover possession of real estate,
or to quiet title thereto, or b
remove clouds
upon the title thereof, or for partition, or other
proceedings of any kind in court directly
affecting the title to land or the use or
occupation thereof or the buildings thereon,
and no judgment, and no proceeding to vacate

Note: No substituted service.

SECTION 11. PRIORITIES IN MODES OF

SERVICE AND FILING

Personal service and filing is the general

rule, and resort to other modes of servi-ce and
filing is the exception.
filing
al notice
Except papers emanating from the court, a an
resort to modes other than by personal service

40
 $sll ptls @otlege of {.elr
2O11 CENTRALIZED BAR OPERATIONS

cancellation may be authorized ONLY upon
order of court, after proper showing that:
1. The notice is for the purpose of molesting
the adverse party; or
2. lt is not necessary to protect the rights of
the party who caused it to be recorded.
o But where the defendant was declared in
default on the original complaint and the
plaintiff subsequently filed an amended
complaint, new summons must be served
on the on the amended
defendant
complaint, as the original complaint was
deemed withdrawn upon such
amendment (Atkins vs. Domingo, G.R. No.
L-19565, March 24, 1923).

o Jurisdiction over the person of the General Rule: When an additional defendant
defendant in a civil case is acquired either is joined, summons must be served upon him.
by his VOLUNTARY APPEARANCE or
SERVICE OF SUMMONS upon him Exceptions:
(Minucher vs. CA G.R. IVo.142963, Feb. 1. When the administrator of a deceased
11,2003). party defendant substitutes the deceased;
2. Where upon the death of the original
Summons is the writ by which the defendant defendant his infant heirs are made
is notified of the action brought against him. parties; and
3. ln cases of substitution of the deceased
Purpose of Summons under Sec. 16 of Rule 3.
A. Actions in Personam:
1. To acquire jurisdiction over the person Note: ln these instances, the service of the
of the defendant in a civil case; and ORDER OF SUBSTITUTION is sufficient.
2. To give notice to the defendant that an
action has been commenced against SECTION 1. CLERK TO ISSUE SUMMONS
him (Rtghf to due process).
Summons to be issued:
B. Actions in Rem and Quasi in Rem: 1. Upon the filing of the complaint; and
Not to
acquire jurisdiction over the 2. Payment of the requisite legal fees.
defendant but mainly to satisfy the
constitutional requirement of due process. SECTION 2. CONTENTS
Jurisdiction over the defendant is not
required and the court acquires jurisdiction SECTION 3, BY WHOi'I SERVED
over an action as long as it acquires
jurisdiction over the res (Riano, 2007. P. Summons may be served by:
232). 1. Sheriff;
2. Sheriffls deputy; or
Effect of Non-Service 3. Other proper court officers; or
Unless the defendant voluntarily submits to the
jurisdiction of the court, NON-SERVICE or
4. For justifiable reasons, by any suitable
IRREGULAR SERVICE of summons renders
null and void all subsequent proceedings and
issuances in the action from the order of
default up to and including the judgment by
default and the order of execution. $.hffiffi#w e*ew
The non-service or invalidity of service of
summons may be a ground for dismissal, for
lack of jurisdiction over the person of the
defending party. the
of
Note: Where the defendant has already servrce,
been served with summons on the original
complaint, no further summons is required on
the amended complaint if it does not introduce
new causes of action (Ong Peng vs. Cusfodio, (Sec.6)
G.R. No. 14911, March 25, 1961). summons to

4L
 REMEDIAL LAW
CIVIL PROCEDURE

Z Sbndering itto him. any action where the defendant is designated

8. $tcfituted Service (S*tion T)
1. By leaving copies of the summons at
the defendant's residence with some
person of suitable age and discretion
residing therein; or
2. By leaving the copies at defendant,s
office or regular place of business with
some competent person in charge
thereof.
For substituted service of summons to be
vali4 it is necessary to establish the following;
1. The impossibiliiy of the personal serviojof
summons within a reasonable time;
2. The efforts exerted to locate the person to
be served; and
3. Service upon a person of sufficient age
and discretion residing in the same plate
as defendant OR some competent person
in charge of his office or regular piace of
business.
o ln substituted service, the sheriffs return
must show that an effort or attempt was
exerted to personally serve the summons
on the defendant and that the same had
failed (Spouses Venturanza vs. CA, G.R.
No.77760, Dec. 11, 1987).
C. Publication (Section 14)
Requisites:
1. Defundant's identity or where_
abouts are unknown and cannot be
ascertiained by diligent inquiry; and
^
z. there must be leave of court.
pumnno-ns by way of pubtication may with
leave of court be availed of where a defendant
involved in any action (in rem, quasi in im
an! in personam) is designaied as an
unknown owner or whenever his whereabouts
are unknown and cannot be ascertained. The
summons shallbe effected through publication
in a newspaper of general circrjtation.ano ln
such places and for such time as the court
sets.
as unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now
applies to any action, whether in personam, in
rem or quasi-in rem.
. lf property is attached and later the
defendant appears (and voluntarily
submits to the jurisdiction of the court), the
case becomes mainly a suit rn personam
(Villareal vs. CA, G.R. No. 107314, Sept.
17,1998I
Note: Summons is validly served if it is left
with some person of suitable age and
discretion then residing in the defendant's
residence, even if defendant was abroad at
that time. The fact that the defendant did not
actually receive the summons did not
invalidate the service of such summons
(Montalban ys. Maximo, G.R No. 22997,
March 15,1968).
Service of Summons on Different Entities
Upon any or all the defendants
being sued under common
name; or person in charge of the
office.
Minors and lN CASE OF MINORS: By
lncompetents serving upon the minor,
(Section l0) regardless of age, AND upon his
legal guardian, or also upon
either of his parents.
IN CASE OF INCOMPETENTS;
By serving on him personally
AND upon his legal guardian,
but not upon his parents, unless
they are his legal guardians.
IN ANY EVENT, if thc

ln Sanfos v, ?NAC G.R. No. 17lg4g,

September 25, 20OS), the Supreme eourt held
that.the in rem/in personam distinction was
srgnrficant under the old rule because it was
silent as to the kind of action to which the rule
was applicable. Because of this silence, the
court limited the apptication of the old rule to in
rem actions only. This has been changed. The
present rule expressly states that it applied
to

42
 $ux Fell @otlege of 1[sb
2011 CENTRALIZED BAR OPERATIONS

Foreign Serve on the resident agent; or if

private ,none; on the government official the by
juridical entity designated by law; or on any defendant registered
(Section 12) officer or agent of the from any mail to the
corporation within the interest in last known
any property address of
Public within the defendant;
IN CASE DEFENDANT IS THE
corporations Phil;or or
REPUBLIC OF THE
(Section 13) PHILIPPINES - By serving upon
. Property of c. Any other
the Solicitor General defendant manner the
IN CASE OF A PROVINCE, has been court deem
CITY OR MUNICIPALITY, OR
gttached in sufficient.
LIKE PUBLIC CORPOMTIONS the Phil.
Substituted
- by serving on its executive service or with
head or on such oiher ofiicer or
officers as the law or the court leave of court,
may direct. personal
servlce out of
the Phil. as
SECTION 14. SERVICE UPON DEFENDANT under
WHOSE IDENTITY OR WHEREABOUTS extraterritorial
ARE UNKNOWN service

SECTION 15. EXTRATERRITORIAL Note: ln all

SERVICE these cases, it
should be
noted that,
SECTION 16. RESIDENTS TEMPORARILY
defendant
OUT OF THE PHILIPPINES
must be a
Resident Any action (lt? resident of the
temporarily out rem, in Philippines.
of the personam or Otherwise, an
Phitippines quasi- in rem) adion in
t/Vith leave of (Section 16) personam
Resident but court, BY cannot be
identity or Any action (rn PUBLICATION broughf
whereabouts rem, in ina because
personam or newspaper of jurisdiction
unknown
(Section 14) quasi in rem) general over his
circulation. person is
essential to
ln rem or quasi make a
in rem. ll Service: binding
either:{AREAI a. lA/ith leave decision
r Affects the of c:ourt
personal serve
status of outside the
plaintiff; Phil. by tH ffiWWe
. personal
Relates to or
the subject servi@; or
of which is
b. Wth leave
Not a resident of court
property
and is not serve by
found in the within the
publication
Philippines Philippines
ina
(Sectian 15) in which
newspaper EBY
defendant
has a lien or of general
interest; circulation,
. Demands a
in which or
relief which
case copy ness or
of the affidavit a
consists
summons attached;
wholly or in
part in and order of
gxcluding court must
also be sent

43
 REMEDIAL LAW
CIVIL PROCEDURE
2. Affidavit showing the deposit of a copy of
the summons and order for publication in
the post office. (Henera vol.l p. 722)
SECTION 20. VOLUNTARY APPEARANCE
Any form of appearance in court, by the
defendant, by his agent authorized to.do so, or
by attomey, is equivalent to service of
summons EXCEPT where such appearance is
precisely to object to the jurisdiction of the
court over the person of the defendant.
. lnclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over
the person of the defendant shall NOT be
deemed a voluntary appearance.
SEGTION 1, MOTION, DEFINED.
Motion is an application for relief other than by
a pleading. A motion is not a pleading.
Kinds of Motions
1. Motion EX PARTE is made without the
presence or a notification to the other
party because the question generally
presented is not debatable (Le. Motion for
extension of time to file pleadings).
2. Motion OF COURSE is where the movant
is entitled to the relief or remedy sought as
a matter of discretion on the part of the
court.
3. LITIGATED Motion is the one made with
notice to the adverse party to give an
opportunity to oppose (i.e. Motion to
dlsmLss).
4. SPECIAL Motion is a motion addressed
to ihe discretion of the court.
General Rule: A motion cannot pray for
judgment.
Exceptions:
1. Motion for judgment on the pleadings;
2. Motion for summary judgment; and
3. Motion for judgment on demurrer to
evidence.
sEcTroN 2. MOTION MUST BE IN
WRITING
General Rule: Motions musl be in writing.
Exceptions: Those made in OPEN COTJRT or
in the COURSE OF HEARTNG orTR|AL.
44
SECTION 3. CONTENTS
Contents of the Motion:
1. The relief sought to be obtained;
2. The ground upon which it is based; and
3. lf required by the Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers.
Requisites of a Motion: (Not made in open
courl or in the course of a hearing or trial):
1. lt must be in WRITING;
2. HEARING OF MOTION set bY the
applicant;
3. NOTICE OF HEARING shall be addressed
to all parties concemed. Date of hearing
must not be later than 10 days from the
filing of the motion (Sec. 5);
4. Motion and notice of hearing must be
served at least 3 DAYS BEFORE THE
DATE OF HEARING (THREE DAY
NOTICE RULE); and
5. PROOF OF SERVICE (Sec.6).
Exceptions to the Three Day Notice Rule:
1. Ex-partemotions;
2. Urgent motions;
3. Motions agreed upon by the parties to be
heard on shorter notice or jointly submitted
by the parties; and
,
4. Motions for summary judgment which
must be served at least 10 days before its
hearing.
Note: Any motion that does not comply with
Secflons 4, 5 and 6 of this Rule (Requirements
4 and 5) is a mere SCRAP bf PaPeR.
r lt does not interrupt the reglementary
period for the filing of the requisite
pleading.
 5un Fe[e @otlegt of I.sb
2O11 CENTRALIZED BAR OPERATIONS

SEGTION 9. MOTION FOR LEAVE Types of Dismissal of Action

1. , Motion to dismiss before answer under
SECTION 10. FORM Rule 16;
2. Motion to dismiss underRule 17;
r Upon notice by plaintiff;
. Upon motion by plaintiff; or
. Due to fault of plaintiff,
A Motion to Dismiss is NOT a responsive 3. Motion to dismiss called a demurrer to
pleading. lt is not a pleading at all. evidence after plaintiff has completed the
presentation of his evidence under Rule
It is subject to the omnibus motion rule since it 33; and
is a motion that attacks a pleading. Hence, it 4. Dismissal of an appeal.
must raise all objections available at the time
of the filing thereof. sEcTroN 1. GROUNDS (D€ILL-RPF-CUN)
1. No jurisdiction over the person of the
However, the following grounds are NOT defending party;
DEEMED WAIVED: 2" No jurisdiction over the gubject matter of
1. Lack of jurisdiction over the subject matter; the claim;
2. Litis pendentia; 3. lmproper venue;
3. Res judicata; and 4. No legal capacity to sue;
4. Prescription (Sec.1 Rule 9). 5. litis pendentia;
General Rule: A court may nol motu proprio
6. Res judicata;
dismiss a case unless a motion to that effect is
7. lrescription;
filed by a party thereto.
8. lailure to state a cause of action;
9. Qlaim or demand has been paid, waived,
abandoned, or otherwise extinguished;
Exceptions: 10. Claim is gnenforceable under the Statute
1. Those cases where the court may dismiss of Frauds; and
2.
a case motu proprio (Sec. 1, Rule 9); 11. lon-compliance with a condition
Sec. 3, Rule 17 (Failure to prosecute)', and precedent for filing claim.
3. Rule on Summary Procedure (Section 4,
1991, Revised Rule on Summary . The language of the rule, particularly on
Procedure). the relation of the words "abandoned" and
"otherwise extinguished" to the phrase
"claim or demand deemed set forth in the
plaintiffs pleading " is broad enough to
include within its ambit the defense of bar
by laches (Pineda v. Heirs of Eliseo
Guevarra, G.R. No. 168557, February 19,
2007).
May be filed by any May be {iled only by
defending party against the defendant against
whom a claim is the complaint of the
asserted in the action. plaintiff.
the affiggf@W#dF# in
Should be filed withiir May be filed only after
the time for but prior to the plaintiff has
the filing of the answer completed the
of the defending party presentation of his
to the pleading evidence. parties
asserting the claim
against him.
lf denied, defendant lf denied, defendant
must file an answer, or may present
else he may be evidence.
declared in default. lf granted, plaintiff
lf granted, plaintiff may appeals and the Order
appeal or ifsubsequent of the dismissal is it may be
case is not barred, he reversed, the which party
may re-file the case. defendant loses his
right to present
evidence.

45
 REMEDIAL LAW
CIVIL PROCEDURE

lt
Note: is applicable between the same
parties only when the judgment to be rendered
in the action first instituted will be such that Order granting motion Refile the complaint.
regardless of which parg is successRrt, it wiii to dismiss is a final
amount to res judicata against the second order (without
action (HSBC vs. Aldecoa & Co., G.R. No. L- prejudice).
8437, March 23,1915). Order granting motion
to dismiss (with
r A motion to dismiss may be filed in either Preludice).
suit, not necessarily in the one instituted Order denying the File answer and
first. motion to dismiss is proceed with the trial, if
interlocutory. decision is adverse,
Requisites of Res Judieata appeal therefrom and
1. Previous final judgment or order; raise as error the denial
2. Jurisdiction over the subject matter and of the motion to dismiss.
the parties by the court rendering it; lf there is grave abuse
3. Judgment upon the merits; and of discretion.amounting
to lack or excess of
4. There must be identity of parties, of jurisdiction, Certiorari or
subject matter, and of cause of Prohibition may lie
action between the first and second under Rule 65.
actions.

Note: There could be res judicata without a

Non-Compliance with a Gondition
Precedent
trial, such as in a judgment on the pleadings
Non-compliance with P.D. 1548 (Katarungang
(Rule 34);a summary judgment (Rute 3S); or
Pambarangay Law) may result in dismissal of
an order of dismissal under Secfion 3 of Rule
the case on the ground of non-compliance with
17.
a condition precedent.
Prescription
A motion to dismiss on the ground of SECTION 2. HEARING OF MOTION
prescription will be given due course only if the
complaint shows on its face that the action has SECTION 3. RESOLUTION OF MOTION
already prescribed.
The court may:
1. Dismiss the action;
2. Deny the motion; or
It is concerned with the
effect of delay.
3. Order the amendment of the pleading
It is a matter of time. It is a mafter of Note: ln resolving motion to dismiss, the
court is required to give reasons for its
resolution.

Gomplaint States No Cause of Action

When the ground for dismissat is that the
complaint states no cause of action, such fact
can be determined only from the facts alleged
in the complaint.

Failure to State a Cause of Action and Not

Lack or Absence of Cause of Action is the
ground for a motion to dismiss. The former
means there is insufficiency in the allegations
in the pleading. The /affer means that there is
insufficiency in lhe factual basis of the action.

46
 5m Felu €ollege of i[,ab
2011 CENTRALIZED BAR OPERATIONS

Exception: The action cannot be re-filed if it
was dismissed on any of these grounds:
(PURE)
1. flrescription;
2. lnenforceability under the Statute of
Frauds
3. Res judicata; and
4. !,xtinguishment of the claim or demand;
. ln these instances, the remedy of the plaintiff
is APPEAL.
SECTION 5. PLEADING GROUNDS AS
AFFIRMATIVE DEFENSES
lf no motion to dismiss had been filed, any of
the grounds for dismissal provided for in Rule
16, INCLUDING IMPROPER VENUE, may be
pleaded as affirmative defenses in the answer
and a preliminary hearing may be had thereon
in the discretion of the court.
Note: lf the defendant would want to file a
counterclaim, he should NOT file a motion to
dismiss. lnstead,.he should allege the,grounds
of a motion to dismiss as affirmative defenses
in his answer with a counterclaim. A
preliminary hearing may be had thereon, and
in the event the complaint is dismissed, the
defendant can PROSECUTE his counterclaim.
The ld paragraph ofSecfion 6
clearly
provides that the dismissal of the complaint is
without prejudice to the prosecution of the
counterclaim.
SECTION 1. DISMISSAL UPON NOTICE BY
PLAINTIFF
The rule requires a COURT ORDER
confi rming the dismissal.
Such dismissal is WITHOUT PREJUDICE,
EXGEPT:
1. Where the notice of dismissal so provides;
or
2. Where the plaintiff has previously
dismissed the same case in a court of
competent jurisdiction Owo Dismissal
Rule).
o lf the plaintiff files a notice of dismissal
providing therein a reason that prevents
the refilling of the complaint, the dismissal
must be deemed one with prejudice. This
happens when the notice provides that the
plaintiff recognizes the fact of prescription
or extinguishment of the obligation of the
defendant or for reasons stated in Sec. 5
of Rule 16 (Riano, 2007, p. 225).
SECTION 2. DISMISSAL UPON MOTION OF
PLAINTIFF
Under this section, the dismissal of the
complaint is subject to the DISCRETION of the
court and upon such terms and conditions as
may be just.
lf a counterclaim has been pleaded by the
defendant PRIOR TO THE SERVICE upon
him of the plaintiff's motion for dismissal, the
dismissal shall be LIMITED TO THE
COMPLAINT.
Such dismissal shall be without prejudice to
the right of the defendant to either:
1. Prosecute his counterclaim in a separate
action;OR
2. To have the same resolved in the same

Dismissal is effected not by motion but by

mere NOTICE of dismissal which is a matter of
right BEFORE the SERVICE of:
1. The answer; or
2. A motion for summary judgment.

Note: The dismissal as a matter of right

ceases when an answer or a motion for
summary judgment is SERVED on the plaintiff
and NOT when the answer or the motion is to
FILED with the court. Thus, if a notice of
dismissal is filed by the plaintiff even after an
answer has been filed in courf but before the
responsive pleading has been served on the
plaintiff, the notice of dismissat is STILL A The ry in the
MATTER OF RIGHT (Riano,2007, p.224).

47
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 4. DISMISSAL OF
COUNTERCLAIM, CROSS.GLAIM, OF
Dismissal is at the Dismissal is not
THIRD.PARTY COMPLAINT
instance ofthe procured by plaintiff
plaintiff. though justified by
causes imputable to A dismissal or discontinuance of an action
him. operates to annul orders, rulings or judgments
previously made in the case, as well as all
Dismissal is a matter Dismissal is a matter
of procedure, without of evidence, an
proceedings had in connection therewith and
prejudice unless adjudication on the renders all pleadings ineffective (Servicewide
otherwise stated in the merits. Specia/rs[ lne. vs. CA, G.R. No. 110597, May
order of the court or on 8,1996).
plaintiffs motion to
dismiss his own
complaint"
Dismissal is without Dismissal is without
prejudice to the right of prejudice to the right of Prc-Trial is a mandatory ennference and
the defendant to the defendant to personal confrontation before the judge
prosecute his prosecute his
counterclaim in a
between the parties and their respective
counterclaim on the
separate action unless same or separate
counsel.
Min 15 days from action.
notice of the motion he SECTION 1. WHEN CONDUCTED
manifests his intention
to have his After the last pleading has been served and
counterclaim resoived filed, it shall be the duty of the plaintiff to
in the same action. promptly move ex-parte that the case be set
for pre-trial.
SECTION 3. DISMISSAL DUE TO FAULT OF
PLAINTIFF . Specifically, the motion is to be filed within
5 days after the last pleading joining the
Causes for Dismissal issue has been served and filed
1. Plaintiff fails to appear for no justifiabte (Administrative Circular No. 3-99 January
cause on the date of the presentation of 15, 1999). lf the plaintiff fails to file said
his evidence in chief on the complaint; motion within the given period, the branch
2. Plaintiff fails to prosecute his action for an clerk of court shall issue a NOTICE OF
unreasonable length of time (NoIIe . PRE- TRIAL (A.M. No. 03-109-SC, July
Prasequi);and 1s,2004).
3. Plaintiff fails to comply with these Rutes or
any order of the court. Note: The "LAST PLEADING' need not be
literally construed as the qctual filing of the last
. The plaintiffs failure to appear at the trial pleading. For purposes of the pre-trial, the
. after he has presented his evidence and expiration of the period for filing the last
rested his case DOES NOT WARRANT pleading is sufficient (Sarmiento vs. Juan,
the dismissal of the case on the ground of
failure to prosecute. lt is merely a waiver
of his right to cross-examine and to object
to the admissibility of evidence (Jatover vs.
Ytoriaga, G.R. No. L-359A9, Oct. 28,
1977).

Complaint may be dismissed:

1. Upon motion of the defendant; or
2. Upon the court'F own initiative.

Dismissal shall have the effect of an

ADJUDICATION UPON THE MERTTS (RES
JUDICATA), unress otherwise dectared by the
couft or if the court has not yet acquired
jurisdiction over the person of the defendant
(Henera, voL 1 p.798).

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Note: The prooess of securing SECTION 5. EFFECT OF FAILURE TO

admissions, whether of facts or evidence,
is essentially voluntary. When the parties
are unable to arrive at a stipulation of
agreed facts, the court must close the pre-
trial and proceed with the trial of the case
(Filoil Marketing Corp. vs. Dy Pac & Co.,
G.R. No.29636, Sepf. 30, 1982).
5. The limitation of the number of witnesses;
6. The advisability of a preliminary reference
of issues to a commissioner;
7. 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;
8. The advisability or necessity of
suspending the proceedings; and
9. Such ofher mafters as may aid in the
prompt disposition of the case.
SECTION 3. NOTICE OF PRE.TRIAL
The notice of pre-trial shall be served on
counsel, or on the party who has no counsel.
The counsel served with such notice is
charged with the duty of notifying the party
represented by him.
SECTION 4. APPEARANCE OF PARTIES
BOTH the parties and their counsel must
appear at the pre-trial.
When non-appearance of a party may be
EXGUSED:
1. lf a valid cause is shown therefor; AND
2. lf a representative shall appear in his
behalf fully authorized in writing to:
a. Enter into an amicable setflement;
b. Submit to alternative modes of dispute
resolution; and
c. Enter into stipulations or admissions of
facts and of documents.
APPEAR
Effect of Non-Appearance of Plaintiff:
Cause for the dismissal of the action. This
dismissal shall be with prejudice except when
the court orders othenrrrise.
Effect of Non-appeanance of Defendant:
Cause the plaintiff to present evidence ex
parte and for the court to render judgment on
the basis thereof.
Note: The non-appearance of the defendant in
the pre{rial is not a ground to declare him in
default.
SECTION 6. PRE.TRIAL BRIEF
Contents of.the Pre-Trial Brief
1. A statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereofi
2. A summary of admitted facts and
proposed stipulations of facts;
3. The issues to be tried or resolved;
4. The documents or exhibits to be presented
stating the purpose thereof;
5. A manifestation of their having availed or
to avail themselves of
their intention
discovery procedures or referal to
commissioners; and
6. The number and names of the witnesses,
and the substance of their respective
' testimonies
Note: Failure to file pre-trial brief has the
same effect as failure to appear at the pre-trial.
Principles lnvolved in
Agreements

o Written authority must be in the form of

Special Power of Attorney (Riano, 2007, p.
3Aq. ft the party is a corporation, the SpA
must be supported by a board resolution.

Note: The mere presentation of such written

authority is not sufficient, but must be
complemented by a showing of valid cause for
the non-appearance of the party himself.

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 REMEDIAL LAW
CIVIT PROCEDURE

3. The issues involved: (a) Factual and (b)

Legal;
4. Number of witnesses; and
5. The dates of trial. lntervention is a legal proceeding by which a
third person is permitted by the court to
r The proceedings in the pre-trial shall be become a party by intervening in a pending
recorded. action after meeting the conditions and
requirement set by the Rules of Court.
The contents of the PRE-TRIAL order shalt
control the subsequent course of the action, SECTION 1. WHO MAY INTERVENE
UNLESS:
1. Modified before trial to prevent manifest 1. One who has a legal interest in the matter
injustice (Rule 18, sec.7); in litigation;
2. lssues impliedly included therein or may 2. One who has a legal interest in the
be inferable therefrom by necessary success of either of the parties;
implication (Vetasco vs. Apostol, G.R. No. 3. One who has an interest against both
44588, May g, 1989); and parties; or
3. Amendment to conform to evidence (Rule 4. One who is so situated as to be adversely
l4 sec. O. affected by a distribution or
other
disposition of property in the custody of
A party is deemed to have waived the the court or of an officer thereof.
delimitations in a pre.trial order if he failed to
object to the introduction of evidence on an Note: Intervention is never an independent
issue outside of the pre-trial order, as well as proceeding but is ancillary and supplemental
in cross-examining the witness in regard to to an existing litigation. Hence, the final
said evidence. disrnissal of the principal action results in the
denial of a pending motion for intervention.

Exception: When intervention has been

allowed and the complaint in intervention has
already been filed before plaintiffs action had
been expressly dismissed (Metro Bank vs.
RTC-Manila, Br. 39, G.R. No. 89909, Sept. 21,
l- Setttement
"J"_J 1990).
I I

r Denial of motion to intervene does not

constitute res judicata. Remedy of
intervenor is to file a separate action.
I

I Agreerens I
(Asuncion vs. Pinedq G.R. No.L-47924,
I made by I

I parties; I
July 31, 1989).
I Amendments to I

I pbaflins; I Factorc to be Considered by the Gourt

I Schedule oftrial I
will unduly
delay
I

i
direct
and
lf evidence is r legal
insufiicient to prove
plaintitrs cause of
in the
which
action or defendant's
counterclaim, lhe
pla
court rules in favoi of
either one or 1989):
dismisses the case.

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Remedies for the Denial of lntdrvention:

1. APPEAL;or
Proper in any of the
2. MANDAMUS, if there is grave abuse of
Presupposes that the discretion.
four situations
mentioned in this Rule.
plaintiff has no interest
in the subject matter of
. lf there is improper granting of
the action or has an
intervention, the remedy of the party is
interest therein, which certiorari.
in whole or in part, is
not disputed by the
other parties to the
action.
The action is against Defendants are being
SECTION 1. CALENDAR OF CASES
either or both the sued precisely to
original parties to the implead them. Prefercnce shall be given to:
1. Habeas corpus cases;
2. Election cases;
SECTION 2. TIME TO INTERVENE 3. Specialcivilactions; and
4. Those so required by law.
The motion to intervene must be filed at any
time BEFORE REND|T|ON OF JUDGMENT SEGTION 2. ASSIGNMENT OF GASES
by the trial court.
Note: Assignment of cases is required to be
Note: After rendition of judgment, a motion to done exclusively by raffle.
intervene is barred, even if lhe judgment itself
recognizes the right of the movant.
The REMEDY of the movant is to file a
separate action.

Exceptions: An order to appear An order to answer

1. With respect to indispensable parties, and testify or to
produce books and
complaint.
intervention may be allowed even on documents.
appeal (Falcasantos ys. Falcasanfos, G.R.
No. L-4627,. May 13, 1952).
2. When the intervenor is the Republic (Lim
vs. Pacquing, G.R No. 115044, Jan. Needs tender of Does not need tender
27,
1995). kilometrage, of kilometrage and
3. lntervention may be allowed after attendance fee and
reasonable cost of
other fees.
judgment where necessary to protect
some interest which cannot otherurrise be
protected, and for the purpose of
preserving the intervenor,s right to appeal SECTION 1. SUBPOENA AND SUBPOENA
(Herrera vol.1 p. 847).

sEcTtoN 3. PLEADINGS.IN-
INTERVENTION
an
1. Complaint-in-intervention - lf the
by
his
intervenor asserts a claim against either or
all of the original parties.
2. Answer-in-intervention - lf the intervenor
unites with the defendant in resisting a
claim against the latter. with

SECTION 4. ANSWER TO A COMPLAINT.

lll{ilTERVENTION

Wthin 15 days from notice of the order

adni&r€ the same. Who
1. Court

51
 REMEDIAL LAW
CIVIL PROCEDURE

2. Court of the place where the deposition is sEcTtoN 6. SERVTCE

to be taken;
3. fficer or body authorized by law to do so Service of subpoena shall be made in the
in connection with investigations same manner as personal or substifuted
, Any Justiceby said officer or body; oi
4.
conducted service of summons.
of the SC or of the CA in any 1. The original shall be exhibited and a copy
case or investigation pending within thi thereof be delivered to the person on
Philippines. whom it is served;
Subpoena to a Prisoner
2. Tendering to him the fees for one day,s
attendance or kilometrage allowed by the
It must be for a valid purpose. lf prisoner . Rules; except that, when a subpoena is
required to appear in court is sentenced to issued by or on behalf of the Republic of
death, reclusion perpetua or life imprisonment the Philippines or an officer or agency
and is confined in prison - must be authorized thereof, the tender need not be made;
by the SC.
SECTION 3. FORM AND CONTENTS
3. The service must be made so as to allow
the witness a reasonable time for
A subpoena:
preparation and travel to the place of
attendance; and
1. Shall state the name of the court and the 4. lf the subpoena is duces tecum, the
title of the action or investigation; reasonable cost of producing the books,
2. lt shall be directed to the person whose documents, or things demanded shall also
attendance is required; and be tendered.
3. ln the case of a subpoena duces teeum, it
shall contain a reasonable description of SECTION 7. PERSONAL APPEARANGE IN
the books, documents or things demanded GOURT
which must appear to the court to be prima
facl'e relevant. General Rule:
SECTION 4. QUASHING A SUBPOENA
1. The court which issued the subpoena may
issue a WARRANT FOR THE ARREST
OF THE WITNESS and make him pay the
A. Subpoena Duces Tecum may be cost of such warrant and seizure, if the
quashed upon: (Mpura)
1 court should determine that his
flotion prompfly made;AND disobedience was willful AND without just
2. Proofthat: cause(Sec. 8).
3 lt is gnreasonable and oppressive;
b. The articles sought to be 2. The refusal to obey a subpoena without
produced do not appear prima
adequate c€tuse shall be deemed
CONTEMPT of the court issuing it (Sec.
facie to be relevant to'the issues; e).
or
c. The person asking for the SECTION 10. EXCEPTIONS
subpoena does not gdvance the
. cost for the production of the
articles desired. compelling of

B. Subpoena Ad Testificandum mav be

quashed if the witness is not bbund
his
thereby.

ln EITHER CASE, the subpoena may be

quashed for failure to tender ine witnesi'fees
and kilometrage allowed by the Rules not to

sEcTtoN 5. SUBPOENA FOR

DEPOStTtOtTtS

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 9er Fels Gollrgc of Lsb
2011 CENTRALIZED BAR OPERATIONS

. Depositions are different from affidavits

since the latter are ex pafte statements
SECTION 1. HOW TO COMPUTE TIME
without formal interrogation and
opportunity for cross-examination.
Affidavits are NOT admissible in evidence
SEct'IoN 2. EFFEcT oF INTERRUPTIoN
except in cases governed by the Rule on
. Summary Procedure or in ordinary cases
Any extension of time to file the required subject to cross-examination.
pleading should be counted from the
expiration of the period regardless of the
Depositions are intended as a means to
fact that the said due date is a Saturday,
compel disclosure of facts resting in the
Sunday, or legal hotiday (A.M. No. 0O-2-
knowledge of a party or other person, which
14-SC, as explained in Luz vs. National
are relevant in a suiU proceeding.
Amnesty Commission, G.R. No. lSgTO2g,
Sept.24, 2004).
Classifi cation of Depositions
RULES OF DISCOVERY
1. Depositions on oral examination and
Depositions upon wrifte n i nte rrog atorie s;
Discovery is a device employed by a party to
2- Depositions de bene esse - Those taken
for purposes of a pending action (Rule 23);
obtain information about relevant matters on
and
the case from the adverse party in the 3.
preparation fortrjat (Riano, 2007, p. 31 0).
Depositions in perpetuam rei memoriam -
Those taken to
perpetuate evidence for
purposes of an anticipated dction or
Purpose: To enable the parties to obtain the
further proceedings in a case on appeal
fullest possible knowledge of the issues and
(Rute 24).
evidence long before the trial to prevent such
trialfrom being carried on in the dark.
SECTION 1- DEPOSITION PENDING
ACTION, WHEN MAY BE TAKEN
Modes of Discovery under the Rules of
Court (D-DIAPP)
When Taken:
1. Depositions pending action (Rute 23); A. With Leave of Court
2. Depositions before action or pending 1. After jurisdiction has been obtained
, appeal (Rule 24);
3. lnterrogatories to parties (Rute 2S); over any defendant or over the
property which is the subject of the
4. {dmission by adverse party (Rute 26); action but BEFORE an answer has
5. lroduction or inspection of documents, or been filed.
things (Rule 27);and
6. f;hysical and mental examination of Ratio: Leave of court is necessary
because the issues are not yet joined
persons (Rule 28).
and the disputed facts are not yet
clear-
r Modes of Discovery are intended to be confined in
CUMULATIVE, and not alternative nor
mutually exclusive.

Note: Discovery is NOT MANDATORy but

failure to avail carries sanctions in Rules 25
and 26.
out of
safe
of an
ex
Deposition is a written testimony of a witness may
given in the course of a judicial proceeding in
court
advance of the trial or hearing upon oral 1, June
examination or in response to written
interrogatories and where an opportunity is
given for cross-examination.

53
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 2. SCOPE OF EXAMINATION 5. Upon application and notice, that such

exceptional circumstances exist as to
Scope of Examination in Depositions make it desirable in the interest of justice.
1. Matter which is relevant to the subject of
the pending action; Note: Gertiorari will not lie against an order
2. Not privileged; and admitting or rejecting a deposition in evidence.
3. Not restricted by a protective order The remedy is an appeal ftom the final
(Secfibns 16 and 18). judgment.

SEGTION 3. EXAIIIIINATION AND CROSS. Ratio: Because it is merely an error of law not
EXAilINATION grave abuse of discretion.

SECTION 4. USE OF DEPOSITIONS SECTION 5. EFFECT OF SUBSTITUTION OF

PARTIES
Where the witness is available to testify and
the situation is not one of those excepted SECTION 6. OBJECTIONS TO
under Secfibn 4, his deposition is inadmissible ADMISSIBILITY
in evidence and he should be made to testify.
SECTION 7. EFFECT OF TAKING
DEPOSITIONS
By any party for
contradicting or A party shall not be deemed to make a person
impeaching the his own witness for any purpose by taking his
testimony of deponent deposition because depositions are taken for
as witness. discovery and not for use as evidence.
A party or any one By an adverseparty
who at the time of the for any purpose. Exception: lf a party offers the deposition in
deposition was an
evidence, then he is deemed to have made
OFFICER,
DIRECTOR, oT the deponent his witness (Sec.8).
MANAGINGAGENT
of a public or private Exception to the exception: UNLESS the
corp., partnership, or deposition is that of an opposing party OR the
association which is a deposition is used to impeach or contradict the
party. deponent (Sec. 8).
\Mtness, whether or By any party for any
not a party. purpose if the court SECTION 9. REBUTTING DEPOSITION
finds the 5 instances
SECTION 10 AND 11. PERSONS BEFORE
wHoM DEPOSTIONS MAY BE TAKEN
. Depositions can be used as evidence by a
party_("for any purpose") under the specific Within the Philippines:
conditions in Section 4.

Five lnstances Where Deposition of .any

Witness may be Used for any purpose (DR.
usE)
1. The witness is dead;
2. The witness -gesides more than 100
kilometers from the place of trial or
hearing, or is out of the philippines. Unless
it appears that his absence was procured
- !y the party offering the deposition;
3. The witness is gnable to teitify because of
.
4.
age, sickness, infirmity, or imprisonment;
The party offering the deposition has been
unable to procure the attendance of the
witness by gubpoena; OR

54
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SECTION 12. GOMMISSION OR LETTERS SECTION {7. RECORD OF EXAMINATION;

ROGATORY OATH; OBJECTIONS
Gommission is an instrument issued by a SECTION {8. i'OTION TO TERMINATE OR
court of justice, or other competent tribunal, to LIMIT EXAMINATION
authorize a person to take depositions or do
any other act by authority of such court or May be Filed:
tribunal. 1. Any time during the taking of the
. deposition;
Letterc Rogatory is an instrument sent in the 2. On motion or petition of any party or of the
name and by the authority of a judge or court deponent; and
to another, requesting the latter to cause to be 3. Upon showing that the examination is
examined, upon interrogatories filed in a case conducted in:
pending before the former, a witness who is a. Bad faith;
within the jurisdiction of the judge or court to b. ln such manner as unreasonably to
whom such letters are addressed (Feia, 2001, annoy, embarass, or oppress the
p.518). deponent or party.
. When the constitutional privilege against
self-incrimination is invoked by deponent
lssued to a non-judicial lssued to the or his counsel, the trial court may stop the
foreign officer who will appropriate judicial examination (lsabela Sugar Co. ys.
directly take the officer of the foreign Macadaeg, G.R. No. L-5924, OcL 28,
testimony. country who will direct 1953).
somebody in said
foreign country to take
down testimony.
Applicable rules of Applicable rules of
procedure are those of procedure are those of
the requesting court. the foreign court Provides protection to Provides such protection
requested to act. the party or witness during the taking of
Resorted to if before the taking of deposition.
Resorted to if the
permission of the deposition.
execution ofthe
foreign country is commission is refused Motion is filed with the Motion or petition is filed
given. in the foreign cluntry. court in which the action in the court in which the
Leave of court is not is pending. action is pending OR the
RTC of the place where
the deposition is being
taken.
SECTION 13. DISQUALIFICATION BY
INTEREST
SECTION 19. SUBMISSION TO WTNESS;
NO deposition shall be taken before a person CHANGES;SlcNlNG
who is:
1. A relative within the { degree of affinity or
consanguinity;
.**ft gJS;!*t+t
2. An employee or caunset of any of the
parties;
3. A relative within the same degree, or
employee of such counsel; and
4. Financially interested in the action.
SECTION 14. STIPULATTONS REGARDING OF
TAKING OF DEPOSITONS

SECTION 15. DEPOSITION UPON ORAL

EXAMINATION; NOTTGE; TIME AND PLACE notice
of
SECTION 16. ORDERS FOR THE and his
PROTECTION OF PARTIES AND counsel
DEPONENTS

55
 REMEDIAL LAW
CIVIL PROCEDURE

SEGTION 25. DEPOSITION UPON WRITTEN
INTERROGATORTES; SERVTCE OF NOTTCE
AND OF INTERROGATORIES
SECTION 26. OFFICERS TO TAKE AND
PREPARE RECORD
. Depositions under this Rule do not prove
the existence of any right and the
testimony perpetuated is not in itself
conclusive proo{ either of the existence of
any right or even of the facts to whicfr they
relate, as it can be controverted at the tial

SECTION 27, NOTICE OF FILING AND

in the same manner as though no
perpetuation of testimony was ever had.
FURNISHING OF COPIES
However, in the absence of any objeciion to its
SECTION 28. ORDERS FOR THE taking, and even if the deponent did not testify
PROTECTION OF PARTIES AND at the hearing, the perpetuated testimony
DEPONENTS constitutes prima facie proof of facts referred
SECTION 29. EFFECT OF ERROR AND
to in the deposition.
t
IRREGULARITIES IN DEPOSITIONS SECTION 1, DEPOSITION BEFORE
AGTION; PETITION
1. As to notice - Waived unless written
objection is prompfly served upon the A petition may be filed by any person:
party giving the notice. 1. Who wants to perpetuate his own
2. As to disqualification of
officer testimony; or
Waived unless made before the taking of 2. Who wants to perpetuate the testimony of
the deposition begins or as soon thereJfter another person.
as the disqualification becomes known.
3. As to competency and relevancy of Note: This may be availed of ONLY in civil
evidence - NOT waived by failurb to cases and NOT in criminal cases.
make them before or during the taking of
the deposition unless the ground of tne For example, the petitioner has a cause of
objection is one which might have been action which has not yet accrued. In such a
obviated or removed if presented at that case, inasmuch as he cannot bring the action
time. until the cause of action arcrues, he may
4. As to oral examination - Waived unless perpetuate his testimony or that of another
reasonable objections thereto is made at person (Feria, 2001, p. 534).
the taking of the deposition.
5. As to fonn of written interogatories
- SECTION 2. CONTENTS OF PETITION
Waived unless served in writing upon the
party propounding them within the time The petition shall be verified and shail be filed
allowed. in the place of residence of any
6. expected
As to manner of prcparation -
Waived adverse party. lt shall contain the matters set
unless a motion to suppress the deposition forth in Sec. 2 of Rule 24.
or some part thereof is made wiEt
reasonable promptness after sucfr defect SECNON 3. NONCE AND SERVICE
is, or with due diligence might have been,
ascertained.

A deposition before action and a

of
deposition pending appeal are refened to
as perpetuation of testimony or peryetuam notice
rei memoriam because their objective is to
perpetuate the testinrony of a witness for
future use.
Depositions under this Rule are also taken
conditionally, to be used at the trial only in
case the deponent is not available.

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SECTION 6. USE OF DEPOSITION

lf deposition is taken under this Rule, it may be

used in any action invotving the SAME
SUBJECT MAfiER subsequentty brought.
SECTION 7. DEPOSITIONS PENDING
APPEAL

Depositions are taken pending appeatwith the

view to their being used in the event of further
proceedings in the COURT OF ORtGtN or
APPELLATE COURT.

For example, a party may perpetuate the SECTION 1. INTERROGATION TO

testimony of a witness which was objected by PARTIES; SERVICE THEREOF
the adverse party and ruled out by the court. lf
the appellate court should reverse the A party may serve written interrogatories:
decision/order of the lower court, it could admit 1. Without Leave of Gourt - After answer
the deposition as ADDITIONAL EVIDENCE or has been served, for the first set of
remand the case back to the lower court for interrogatories.
such ADMISSION in accordance with Secfrbns 2. Wth Leave of Court - Before answer has
4 and 5 of Rule 23 (Feria 2001, p. 537). been served.
Reason: At that time, the issues are not
yet joined and the disputed facts are not
yet clear.

Purpose of Written lnterrogatories: To elicit SECTION 2. ANSWER TO

facts from any adverse party (answers may INTERROGATORIES
also be used as admissions of the adverse
party).
The interrogatories shall be answered fully in
writing and shall be signed and sworn to by
o Written interrogatories and the answers the person making them.
thereto must both be FTLED and SERVED. o Answers cannot be made by an agent or
Hence, the answers may constitute as attomey; answers not made by the parties
JUDICIAL ADMTSSTONS (Sec. Rute 4 are nullities (Herrera vol2 p.44).
12e).
. A judgment by Cefautt may be rendered
against a party who fails to answer written
A party may properly
interrogatories.
A party may properly
seek disclosure of seek disclosure only of
matters of proof which matters which define
may later be made a the issues and become
part of the records as a part of the pleadings.
evidence.

\Mth' intervention of the No intervention.

officer authorized by Written interrogatories
the court to take are directed to the

57
 REMEDIAL LAW
CIVIL PROCEDURE

necessary for succeeding sets of 3. Under this rule, a matter of fact not related
intenogatories. to any documents may be presented to the
other party for admission or denial.
SECTION 5. SCOPE AND USE OF
INTERROGATORIES

The SCOPE of interrogatories shall be the

Proper when the Must be attached to the
matters mentioned in Sec. 2 Rule 23. The
genuineress of an complaint or copied
answers may be USED for the same purpose evidentiary document therein. lts
provided in Sec. 4 of the same Rule. genuineness and due
is sought to be
o Since answers to interrogatories may be admitted. lf not execution is deemed
used for the same purposes as denied under oath, its impliedly admitted
depositions, they may also be the basis of genuineness is unless specifically
a summary judgment under Rule 35. deemed impliedly denied under oath by
admitted. Essentially the adverse party.
SECTION 6. EFFECT OF FAILURE TO a mode of discovery.
SERVE WRITTEN INTERROGATORIES
SECTION 2. IMPLIED ADM|SSION
Unless a party had been served wriften
interrogatories, he may not be compelled by Each of the matters of which an admission is
the adverse party: requested shall be deemed admitted UNLESS
1. To give testimony in open court; or the party to whom the request is direcled files
2. Give a deposition pending appeal. and serves upon the party requesting the
admission a sworn statement either denying
The only EXCEPTION is when the court specifically the mafters of which an admission
allows it. for GOOD CAUSE shown and to is requested or setting forth the reasons why
prevent a failure of justice. he cannot either admit or deny those mafters.
Note: The sanction adopted by the Rules is o The REMEDY of the party, in this case, is
not one of compulsion in the sense that the to file a motion to be relieved of the
party is being compelled to avail of the consequences of the imPlied
discovery mechanics, but one of negation by admission. The amendment of the
depriving him of evidentiary sources which complaint per se €nnot set aside the legal
would otherwise have been accessible to him. effects of the request for admission since
its materiality has not been affected by the
amendment.

sEciloN 3. EFFECT Or iOmlSStOr.r

SECTION 1. REQUEST FOR ADMISSION
Use: An admission under this Section is for
Purpose of wriften rcquest for admission: the purpose of the PENDING ACTION ONLY
To expedite trial and relieve the parties of the
costs of proving facts which will not be
disputed on trial and the truth of which can be
ascertained by reasonable inquiry.

When rcquest may be made: At any time

after the issues have been joined (after the
responsive pleading has been served).

What request may include:

1. Admission of the genuineness of any
material and relevant document described
in and exhibited with the request;
2. Admission of the truth of any material and
relevant matter of fact set forth in the
request; or
action and

58
 9m Fell €othge of Lelr
t
2011 CENTRALIZED BAR OPERATIONS

must be only those within lhe possession, insane person, while the physical condition
control, or custody of a party. of the party is generally involved in
PHYSICAL INJURIES cases.
r Since the results of the examination are
intended to be made public, the same are
not covered by the physician-patient
privilege (Sec. 24b, Rule 130).
A means of compelling
production of evidence SECTION 2. ORDER FOR EXAMINATION
The Rules is limited to It may be directed to a
the parties to the person whether a party Requisites to Obtain an Order for
action. or not. Examination:
The order under this It may be issued upon 1. A MOTION must be filed for the physical
Rule is issued only an ex parte application. and mental examination;
upon motion with
notice to the adverse
2. The motion must show GOOD CAUSE for
the examination;
3. NOTICE to the party to be examined and
to all other parties; and
SECTION 1. MOTION FOR PRODUCTION 4. The motion shall SPECIFY the time, place,
OR INSPECTION; ORDER manner, conditions, and scope of the
examination and the person or persons by
Production of documents affords more whom it is made.
opportunity for discovery than a subpoena
duces tecum. However, the rule is not SEGTION 3. REPORT OF FINDINGS
intended for use as a dragnet or any fishing
expedition. lf requested by the party examined, the party
causing the examination to be made shall
The DOCUMENTS to be produced: deliver to him a copy of a detailed written
1. Should not be priviteged; and report of the examining physician.
2. Should constitute or contain evidence
material to any matter involved in the After such request and delivery, the party
action, and which are in his (the party causing the examination to be made shall be
ordered) possession, custody, or control. entitled upon request to receive from the party
examined a like report of any examination,
r ln a petition for the production of papers previously or thereafter made, of the same
and documents, they must be sufficienfly mental or physical condition.
described and identified. Othenrvise, the
petition €nnot prosper. sEcTroN 4. wAtvER or pnluleer
o This mode of discovery does not authorize
the opposing party or the clerk or other Where the party examined requests and
funclionaries of the court to distrain the obtains a e results of the
articles or deprive the person who
produced the same of their possession, He
even temporarily (Tanda vs. Atdaya, L- the
13423, Nov.23, 1959). and

tn
same
of any
SECTION 1. WHEN EXAMINATION MAY BE him or
ORDERED

This mode of discovery is available in an

action in which the mentat or physical
condition of a party is in controversy.

r The mental condition of a party is in

controversy in proceedings for
GUARDIANSHtp over an imbecile or

59
 f,
REMEDIAT LAW
CIVIL PROCEDURE

The court, upon proper

application, issue an order
Refusal to
requiring the other party to pay
Admit under
him reasonable expenses
1. The court, may, upon proper Rule 26 (Sec.4)
incurred, including aftorney's
application, compel a fees.
refusing deponent to answer
(Sec.1). The court, on motion and notice,
a. If granted and refusal to may:
answer is without substantial 1. Strike out all or any part of
justification, court may rcquire any pleading of disobedient
the refusing pafty to pay the Failure of Pafi Party;
proponent the amount of the to affend or 2. Dismiss the action or
re a son ab le expenses i nc u rred serye answers proceeding or any part
in obtaining the order, including to written thereof;
Refusal to attorney's fees. interrogatories 3. Enter a judgment by default
answer any b. lf denied and filed (Sec.5) against disobedient party;
question without su b sta nti a I justification, 4. Order payment of
auft may require the proponent reasonable expenses
to pay the refusing pafty the incurred by the other
amount of the reasonable
expenses incuned in obtaining
the order, including attomey's lf a party refuses to answer the whole written
fees.
interrogatories, Secflon 5 of Rule 29 applies.
2. A refusal to answer after
being directed by the court
Where a party refuses to answer a particular
to do so may be considered question, in the set of written intenogatories
as contempt ofcourt (Sec. and despite an order compelling him to
answer, still refuses to obey the order, Section
Refusal to be Cite the disobedient deponent in
3(c) will apply (Zepeda v. China Banking
Swom (Sec.2J Contempt of court Corpontion, G.R. rVo. 172175, October 9,
2006).
The court may make the Expenses and aftomey's fees are not to be
following orders: imposed upon the Republic of the Philippiries
1. Prohibit the disobedient under this rule.
party to introduce evidence
of physical or mental
condition
Refusal to
answer
disobedient party to support Trial is the judicial process of investigating
or oppose claims or and
designated defenses
questions or starting by the
3. Strike out pleadings or parts
refusal to
thereof
produce
4. Stay further: proceedings
documents or
to submit to 5. Dismiss the action or
Rdgf,ftLffi#ffi,"
physical or proceeding or any part
mental thereof
examination 6. Render a judgment by
(Sec.3/ default against disobedient
party
7. Direct the anest of any 1.
party or agent of a party 2.
disobeying any of such I
orders except an order to 4.
submit to a physical or 5.
mental examination 6.

7.

60
 REMEDIAL tAW
CIVIL PROCEDURE

The court, upon proper

application, issue an order
Refusal to
requiring the other party to pay
Admit under
him reasonable expenses
1. The court, may, upon proper Rule 26 (Sec.4)
incuned, including attorney's
application, compel a
fees.
refusing deponent to answer
(Sec.1). The court, on motion and notice,
a. lf granted and refusal to may:
answer is without substanilal 1. Strike out all or any part of
justifrcation, court may require any pleading of disobedient
the refusing pafty to pay the Failure of Party party;
proponent the amount of the to attend or 2. Dismiss the action or
rea son a b I e expenses i nc u rred serve answens proceeding or any part
in obtaining the order, inctuding to written thereot
Refusal to attomey's fees. interrogatories J. Enter a judgment by defaull
ansuter any b. lf denied and fited (Sec.5) against disobedient party,
question without substa ntial j ustification, 4. Order payment of
aurt may require the proponent reasonable expenses
to pay the rcfusing pafty the incurred by the other
amount of the reasonable fiaes.
expenses incuned in obtaining
the order, including attomey,s
fees.
lf a party refuses to answer the whole written
2. A refusal to answer affer
interrogatories, Secfibn S of Rute 29 applies.
being directed by the court Where a party refuses to answer a particular
to do so may be considered question, in the set of written interrogatories
as contempt of court (Sec. and despite an order compelling him to
answer, still refuses to obey the order, Section
Refusal to be Cite the disobedient deponent in
3(c) wtll apply (Zepeda v. China Banking
Swom (Sec.2/ Contempt of court Coryoration, G.R. No. 172175, October g,
2006).
The court may make the Expenses and attomey's lrees are not to be
following orders: imposed upon the Republic of the philippines
1. Prohibit the disobedient under this rule.
party to introduce evidence
of physical or mental
condition
Refusal to
2. Refuse to allow tre
disobedient party to support Trial is the judicial process
answer or oppose claims or
designated
defenses
and determinino the
questions or
refusal to
3. Skike out pleadings or parts
produce thereof
documents or 4. Stay further prooeedings
to submit to 5. Dismiss the action or
RurS'f,ft€ffi#ffi,"
pftysical or proceeding or any part
mental thereof
enrnination 6. Renderajudgmentby
fsec. 3, default against disob6dient
party
7. Direct the anest of any
qarty or agent of a party
disobeying any ofsuch
orders except an order to
submit to a physical or
mental examination

lLi
 5en Felu Gollege of Lab
2011 CENTRALIZED BAR OPERATIONS

SECTION 1. NOTICE OF TRIAL 4. REQUISITES OF MOTION TO

SECTION
POSTPONE TRIAL FOR ILLNESS OF
PARTY OR COUNSEL
Reception of evidence confined in trial but
and other processes: embraces several
Requisites:
the period for the stages of litigation, 1. A motion for postponement stating the
introduction of evidence including the pre-trial ground relied upon must be filed; and
2. The motion must be supported by an
Does not necessarily affidavit or sworn certification showing:
imply presentation of a. The presence of such party or
evidence in open court counsel at the trial is indispensable;
but the parties are and
afforded the opportunity
to be heard.
b. That the character of his illness is
such as to render his non-attendance
excusable.
SECTION 2. ADJOURNMENTS AND
POSTPONEMENTS
A court may adjourn a trial from day to day,
r Postponements are addressed to the
sound' discretion of the court. ln the
and to any stated time, as the expeditious and
absence of grave abuse of discretion, it
convenient transaction of
business may cannot be controlled by mandamus (O/sen
require.
v. Fresse/ & Co., G.R. No. 12955, Nov. 8
1917).
However, the court has no power to adjourn a
trial for:
SECTION 5. ORDER OF TRIAL
1. A period longer than one month for each
adjournment; OR
2. More than 3 months in all, except when
authorized in
writing by
the court
administrator, Supreme Court.
Defendant presents
SECTION 3. REQUISITES OF MOTION TO
evidence to support
POSTPONE TRIAL FOR ABSENCE OF his defense/
EVIDENCE counterclaim/
crossclaim/
Requisites: Third-party complaint
1. A motion for postponement stating the
ground relied upon must be filed; AND
2. The motion must be supported by an
affidavit showing:
a. . The materiality and relevancy of such
evidence; and
b. That due diligence has been used to
procure it.

. lf the adverse party admits the facts to

be given in evidence, the trial will not
be postponed even if he objects or
ffi {P u*^.},3-\"?.#

reserves the right to object to their

admissibility (Feria, Civit procedure
Annotated, Vot. 1, p. 565).

Note: This section DOES NOT appty to

criminal cases as the rule on postponenrents
in.cdminal cases is governed by Sbc. 2, Rule
119.

Qral arguments
. Submission of
memoranda
 REMEDIAL LAW
CIVIL PROCEDURE

Note: Subject to Secflon 2 of Rule 37 and SECTION 8. SUSPENSION OF ACTIONS

unless the court for special reasons, othenruise
directs, the trial shall be limited to the issues Under, ARTICLE 2030 of the Civil Code: Every
stated in the pre-trial order. civil action or proceeding shall be suspended:
1. lf willingness to discuss a possible
Reverse Order of Trial cornpromise is expressed by one or both
ln this situation, the defendant presents parties;OR
evidence ahead of the plaintiff. 2. lf it appears that one of the parties, before
the commencement of the action or
When Proper: proceeding, offered to discuss a possible
lf the defendant in his answer relies upon an compromise but the other party refused
affirmative defense, a reverse order of trial is the offer.
proper.
SECTION 9. JUDGE TO REGEIVE
Ratio: Plaintiff need not have to present EVIDENCE; DELEGATION TO CLERK OF
evidence since judicial admissions do not GOURT.
require proof (Sec. 2, Rute 129).
Note: Evidence offered in rebuttal is not General Rule: The judge shall personally
automatically excluded just because it would receive and resolve the evidence to be
have been more properly admitted in the case adduced by the parties.
in chief (Regalado, Remedial Law
Compendium, Volume I, gth Ed., p.375). HOWEVER, the reception of such evidence
may be delegated under the following
SECTION 6. AGREED STATEMENTS OF conditions:
FACT 1. The delegation may be made only ln
defaults or ex-pafte hearings, and in any
This is known as Stipulation of Facts and is case where the parties agree in writing;
among the purposes of a pre-trial. Under the 2. The reception of evidence shall be made
Rules, it must be in writing. But it may also be only by the clerk of that court who is a
verbally made in open court. member of the bar;
3. Said clerk shall have no power to rule on
Note: lf NO EVTDENCE tS PRESENTED objections to any question or to admission
and the case is submitted for decision on an of evidence or exhibits; and
agreement of the parties, the court should 4. He shall submit his report and transcripts
render' judgment in
accordance with said of the proceedings, together with the
agreement. The court cannot impose upon objections to be resolved by the court,
the parties a judgment different from their within 10 days ftom the.termination of the
compromise agreement. hearing.

However, the compromise agreement must

not be contrary to law, morals, good customs,
public order and pubtic poticy (phitippine Bank
of Communications v. Echiveni, G.R. No. L-
41795, Aug.29,1980).

. Stipulations gf Facts (SOF) are not

permifted in actions for annulment of
marriage and for legal separation.

May be signed by the

counsel alone who has Must be signed both by
a special power of the counsel and the
accused.

May be made verbally Strict; lt must always be

or in writing. in writing.

SECTION 7. STATEMENT OF JUDGE of duty

62
 $un Fete
2011 CENTRALIZED BAR OPERATIONS
2. Filed with different branches of the same
RTC and one of such cases has NOT
been partially tried.
Purpose: To avoid multiplicity of suits, guard
against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unfiecessary costs and
expenses.
Requisites for Consolidation:
1. Actions which involve a common question
of law or fact; and
2. There must be at least 2 actions pending
before the same court.
. lf filed with DIFFERENT courts, an
authorization from the SUPREME COURT
is necessary.
Three (3) Ways of Gonsolidating Cases
1. By recasting the cases atready instituted -
Reshaping of the cases by amending the
pleading and dismissing some caseJ and
. retaining only one case. There must be
joinder of causes of action and of parties;
2. By consolidation proper or
consolidating the existing cases - lt is a
joint trial with joint decision, the cases
retaining their original docket numbers;
and
3. By fesl-case method - by hearing only the
principal case and suspending the hearing
on the other cases until judgment has
been rendered iri the principal case. The
cases retain their originat docket numbers.
Consolidation of c€lses on appeal and
assigned to different divisions of ine SC anO
the CA is also authorized.
Note: The consolidation of civil with criminal
cases is allowed. This is now sanctioned
under Section 2(d, Rute 1'lt of the Rulei of
Criminal Procedure (Canas v. peralta, G.R.
No. L-38352, Aug. 19, 1982).
SECTION 2. SEPARATE TRIALS
SECTION 1. REFERENCE BYCONSENT
Gommissioner - a person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered (2 Martin, p.
142).
@stlege of i[eb
. Reference to a commissioner may be had
by the written consent of both parties.
General Rule: Trial by commissioner depends
largely upon the discretion of the court; BUT
the following are instances when such
appointment is mandatory:
1. Expropriation (Rule 67);
2. Partition (Rule 69);
3. Settlement of Estate of a Deceased
Person in case of contested claims; and
4. Submission of accounting by executors or
administrators.
Note: An irregularity in the appointment of a
commissioner must be seasonably raised in
the trial court where the defect could still be
remedied. lt can be WAIVED by consent of
the parties, express or implied.
SECTION 2. REFERENCE ORDERED ON
MOTION
Situations when reference to a Commissioner
may be made ON MOTION: IETC-AI
by 1. lxamination of a long account;
2. Taking of an account is necessary;
3. Garrying a judgment or order into effect; or
4. Question of fact, other than upon the
pleading arises.
SECTION ORDER3. bT
REFERENGE"
POWERS OF THE COMMISSIONER
Requisites of the Order of Reference:
1. lt must state the purpose;
2. lt must be in writing; and
3. lt may'specify or limit the power of the
commissioner.
Powerc of
the
63
 BEMEDIAT TATTY

CIVIL PROCEDURE

SECTION 5. PROCEEDINGS BEFORE THE questions of law shall thereafter be

COMMISSIONER considered.

SECTION 6. FAILURE OF PARTIES TO SECTION 13. COMPENSATION OF

APPEAR BEFORE COMMISSIONER COMMISSIONER
Where the order was merely to examine the
accounts involved in the counterclaim without
any direction to
hold hearings, the
commissioner do not need the presence of the
parties (Froilan v. Pan Oriental Shipping, G.R. SECTION 1. DEMURRER TO EVIDENCE
No. L-6060, September 30, 1 954).
Demurrer to Evidence is a motion to dismiss
SECTION 7. REFUSAL OF WTNESS based on the ground of insufficiency of
Disobedience to a subpoena issued by the evidence and is presented after the plaintiff
commissioner is deemed a contempt of the rests his case.
court which appointed the latter.
Nature: There is only a one-sided trial, i.e., it
SECTION 8. COMMISSIONER SHALL is only the plaintiff who has presented
AVOID DELAYS evidence.

SECTION 9. REPORT OF COMMISSIONER Purpose: To discourage prolonged litigations.

Clerk of court must be Commissioner need not

a lawyer. be a lawyer.
It is presented after the Presented before a
Clerk of court cannot Commissioner can rule plaintiff has rested his responsive pleading
rule on objections or on on objections or on case. (answer) is made by
the admissibility of admissibility of the defendant.
evidence. evidence.
It may be based on anY
Delegation is made Commissioner can be
of those enumerated in
during trial. appointed even afrer
Rule 16.
the case has become
lf the motion is denied, lf the motion to dismiss
the defendant may is denied, the
SECTION 10, NOTICE TO THE PARTIES OF present his evidence. defendant may file his
THE FILING OF REPORT responsive pleading.

lf the motion is granted, lf $e motion to dismiss

Upon the filing of the report of the the complaint is is granted, lhe
commissioner: dismissed. The complaint is dismissed
1. The parties shall be notified by the clerk; REMEDY of the plaintiff and depending on the
AND is APPEAL. ground, the complaint
2. The parties shall be allowed 10 days mav be re-filed.
within which to bbject to the findings of the
report.

Note: Objections to the report based upon

grounds which were available to the parties
during the proceedings before the
commissioner shall not be considered by the
court, UNLESS they were made before the
commissioner.

SECTION 11. HEARING UPON REPORT

SEGTION 12. STIPULATIONS AS TO

FINDINGS

When the parties stipulate that a

commissioner's finding shall be final, only

64
 5sn Frle €olhge of {lb
2O11 CENTRALIZED BAR OPERATIONS

present his evidence

Denial is
INTERLOCUTORY-
Sec. 1, Rule 36 (That
judgment should state
clearly and distincfly
the facls and the law
on which it is based),
will not apply.
The denial is NOT
appealable.
Order of the court is
An ADJUDICATION
ON THE MERITS.
Hence, the
requirement in Sec. /,
Rule 36 should be
complied with.
and submits the case
for decision based on
the prosecution's
evidence.
Judgment on Demurrer to Evidence is a
judgment rendered by the court dismissing a
case upon motion of the defendant, made after
plaintiff has rested his case, on the GROUND
that upon the facts presented and the law on
the matter, plaintiff has not shown any right to
relief.

Note: The requirement under this Rule

Defendant need not ask
for leave of court.
Ifthecourtfinds .-
plaintiffs evidence
insufficient, it will grant
the demurrer by
dismissing the
complaint.
The judgment of
dismissal is appealable.
lf plaintiff appeals and
judgment is reversed by
the appellate court, it
will decide the case on
the basis of the
plaintiff s evidence with
the consequence that
the defendant already
loses his right to
present evidence;
There is no res judicata
in dismissal due to
demurrer.
The plaintiff files a
motion to deny motion
to demurrer to
evidence.
lf court denies the
demurrer, defendant will
present his evidence.
May be filed with or would apply if the demurrer is granted, for in
without leave of court. this event, there would in fact be adjudication
Leave of court is
upon the merits of the case, leaving nothing
necessary so that the
accused could
more to be done (Nepomuceno v. COMELEC,
present his evidence G.R. No. L-60601, Dec.29, 1983).
if the demurrer is
denied"
lf the court finds the
prosecution's evidence
insufficient, it will grant
Judgment on the Pleadings is a judgment
the demurrer by rendered by the court if the answer fails to
rendering judgment
acquitting the
tender an issue, or otherwise admits the
accused. Judgment of
material allegations of the adverse party's
acquittal is not pleading.
appealable; double
ieopardy sets-in. It is rendered without a trial, or even without a
Judgment of acquittal pre-trial.
is not appealable;
double jeopardy sets-
in.
SECTION 1. JUDGMENT ON THE
PLEADINGS
A judgrnent on the pleadings must be on
motion of the claimant. HOWEVER, if at the
pre-trial the court finds that a judgment on the
pleadings is proper, it may render such
18).
One
The court may motu
fiF€Jii#ffiffi
propio deny the to
motion. to
,ANT
rty and
It court denies the
demurrer:
lf demurrer was with GR No.
leave, accused may
present his evidence.

lf demurrer was by Filing

without leave, of
accused can no lonoer 1. lneieva
2.

6s
 REMEDIAL LAW
CIVIT PROCEDURE

9 Allegations of damages in the complaint.

Grounds for Judgment on the pleadings

'l . The answer fails to -issue
tender an Based on the Based solely Based on the
because of. pleadings, on the complaint and
a. General denial of the material depositions, pleadings. evidence, if
allegations of the complaint; admissions presentation
b. lnsufficient denial of the material and affidavits. is required.
,
2.
allegations of the complaint; OR
The answer admits material allegations of
Available to Generally Available to
both plaintiff available only plaintiff.
the adverse party,s pleading. and to the plaintiff,
defendant. unless the
Note: By moving for judgment on the defendant
pleadings, plaintiff waives -his claim for presents a
unliquidated damages. Claim for such counterclaim.
damages must be alleged and proved. There is The answer No issue as
no genuine fails to tender no answer is
No Judgment on the Pleadings in Actions issue between an issue or filed by the
for: the parties, there is an defending
r.e. there may admission of paily.
't. Declaration of Nullity of Marriage;
be issues but material
2. Annulment of marriage; and these are allegations.
3. Legal Separation. irrelevant-
1O-day notice 3-day notice 3day notice
required, required. rule applies.
May be On the merits. On the merits.
Filed by a defendant to Fibd by the plaintiff if interlocutory
a complaint, the answer fails to or on the
counterclaim, cross- tender an issue merits.
claim or 3d-party Available only Available in Available in
complaint. in actions to any action any action
recover a except except
Ngte: lf the comptaint debt, or fora annulment of annulment of
states no cause of liquidated sum
actlon, a motion to dismiss should be filed maniage or marriage or
and of money or legal legal
not a motion for judgment on the pleadingi.
for declaratory separation separation
relief. cases. cases,
for Judgment on the pteadings
fInat
{etion
rs considered ex pafte
is one lf filed by There is There is no
becauie upon plaintiff, it already an answer filed.
fa.cts thus presented, the ptaintiF is
ryf:ul"i
enmted_to judgment, or motu proprio
must be filed answer filed.'
under at any time
fyP_18 (2s) (Dino v. vatencii, Gi. N".-r_
43886, Juty 19, 1989).
after an
answer is
served;
lf filedby *wa
adefendanffi
ffiay befilm ffi
W
Summary Judgment is a judgment rendered
ny a court without trial if it is clear that
ffi time eveffi efq
ffiffi.ffi&
there fiffiffie lhere,is"
exists NO GENUINE ISSUE or: controoerw-a" ffi$yeirh*t "trffiffi {pffi *" &wv
to any materiat fact, EXCEPT as to tn!-am6uilt
a
tlhn
d}
F^ftr4fr
of damages.
*ei ;ffiffi&;
Genuine lssue is an issue of fact which calls

M
( ff^u. EncSncair
for the presentation of eviOence -
. as
distinguished from an issue which l.
,fl"r, W made
fi ctitious,. contrived, a n d patenily, "
n.u U.i.nli"f ffir action
so as not to constitute a genuine issue for for

tru
trial.

ffi_
,&
66
 5m Fclc 6o[eqe of Irb
2011 CENTRALIZED BAR OPERATIONS

SECTIONS1 & 2. SUMMARY JUDGMENT Bases of Summary Judgment

FOR CLAIMANT; SUMMARY JUDGMENT 1. AFFIDAVITS made on personal
FOR DEFENDING PARTY knowledge
2. DEPOSITIONS of the adverse party or a
llYho can file: third par$ under Rule 23
1. Plaintiff: May file the motion after the 3. ADMISSIONS of the adverse party under
answer has been served, and therefore, Rule 26; and
must wait until the issues have been 4. ANSWERS to interrogatories under Rule
joined. 25. All intended to show that:
2. Defendant: He can move for summary a. There is no genuine issue as to any
judgment at any time. material fact, except damages which
must always be proved; and
Test: Whether or not the pleadings, affidavits b. The movant is entitled to a judgment
and exhibits in support of the motion are as a matter of law.
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of o Even if the answer does tender an issue,
law, there is no defense to the action or claim and therefore a judgment on the pleadings
is clearly meritorious (Estrada v. Consolacion is NOT proper, a summary judgment may
et al., G.R. No. L-40948, June 29,1976). still be rendered if the issues tendered are
NOT genuine, are sham, fictitious,
SECTION 3. MOTION AND PROGEEDINGS contrived, set-up in bad faith, and patently
THEREON unsubstantial (Vergara vs. Sue/fo, G.R.
No. L-74766, Deeember 2l, 1 987).
The motion mustalso satisfy the requirements
under Rule f5.

SECTION 4. CASE NOT FULLY

ADJUDICATED ON ITIIOTION
Judgment is the final consideration and
This authorizes rendition of partial summary determination of a court of competent
judgment but such is interlocutory in nature jurisdiction upon the matters submitted to it in
and is not a final and appealable judgrnent an action or proceeding.
(Guevana v. CA, G.R.'No. L-49017, eug. SO,
1e83). Parts of a Judgment
1. The opinion of the court - Contains the
SECTION 5. FORM OF AFFIDAVITS AND findings of facts and conclusions of law;
SUPPORTING PAPERS 2. The disposition of the case -The final
and actual disposition of the rights litigated
Requisites of Affidavits : (the dispositive part); and
1. Based on personal knowledge; 3. Signature of the'judge (Herrera, p. 145)
2. Set forth facts as would be admissibte in
evidence;
Affiant is competent to testify on matters
stated therein; and
Certified copies of all papers must be '
attached thereto and served on the
opposing party.

SECTION 6. AFFIDAVITS IN BAD FAITH

Sanctions:
1. Pay to the other party the amount of the
reasonable expenses including attomey,s
fees; and
2. After hearing, adjudged offending party
guilty of contempt.
the facts

67
 REMEDIAT tAW
CIVIL PROCEDURE

3 Allegations of damages in the complaint.

Grounds for Judgment on the pleadings

1. The answer fails to tender -irsu"
Based on the Based solely
"n Based on the
because ot pleadings, on the
a. General denial of the material depositions, pleadings.
complaint and
evidence, if
allegations of the complaint; admissions presentation
b. lnsufficient denial of the material and affidavits. is required.
allegations of the complaint; OR Available to Generally
2. The answer admits material allegations of both plaintiff available only
Available to
plaintiff.
the adverse party's pleading. and to the plaintiff,
defendant. unless the
{otei By moving for judgment on the
pleadings, plaintiff waives nis claim ior"
defendant
presents a
unliquidated damages. Claim for such counterclaim.
oamages must be alleged and proved. There is The answer No issue as
no genuine fails to tender no answer is
No Judgment on the pleadings in Actions issue between an issue or filed by the
fior: the parties, there is an defending
r.e. there may admission of party.
1 Annulment
Declaration of Nultity of Marriage;
be issues but material
? of marriage; and
3. Legalseparation. lhese are allegations.
inelevant.
1O-day notice 3-day notice 3day notice
required. required. rule applies.
May be On the merits. On the merits.
Filed by a defendant to Filed by the ptaintiff if interlocutory
a complaint, the answer fails to or on the
counterclaim, cross_ tender an issue merits.
claim or 3d-party
Available only Available in Available in
complaint. in actions to any action any action
recover a except except
N9!e: lf the comptaint states no cause of
debt, or for a annulment of annulment of
actton, a motion to dismiss should liquidated sum maniage or maniage or
be filed and of money or legal
not a motion for judgment on the pfeaOffi- ' legal
for declaratory separation separation
relief. cases, cases.
tor
Judgment on the pteadings is
fl{o!1on
rnar ls considered ex parte becauie one lf filed by There is There is no
upon plaintifi it already an answer filed.
fa.cts thus presented, tne piaintif;-is
!:f'gll"l judgment, or
enuiled-to
must be filed answer filed.
motu propio under at any time
ry!91s (29) (Dino v. vatencia,
43886, Juty 19, 1989).
N;.-i- ci. after an
answer is
served;
lf filed bv ^&
rlefo..t.'^ffi q

mal be fitfiffitr ffi

-{s&
lummary. Judgment is a judgment rendered
oy a court without trial if it is clear
ffi time everS efd
,&frffie
ffiffi."ffi&
that there there"is-
exists NO GENUTNE TSSUE ol: *ntrou"i.u-", ffib$vef-F*-{ .#4$ffi {#W *_ ewv
to-any materiat fact, EXCEPT as to t"-Jri6.,it $
of damages. nnffin p^*dl be
oeffiffi ;i&;U
Genuine lssue is an issue of fact which
f9r.. th9, presentation
distinguished from an issue whicn
of
eviOence
-ls
calls

,n"ill.
tnffiv
noW, ffi :":ffi
F,,q
made
fic{itious,. contrived, and patenty
so as not to constitute a genuine issue
for
"
;fi;"ianli;i
triii
speffi;1
for dtmffi
ffiffi
;ru ffi--{"{j
action

66
ffi
W
 $en Felu 6o[ege of llf
2011 CENTRALIZED BAR OPERATIONS

SECTIONS1 & 2. SUMMARY JUDGMENT Bases of Summary Judgment

FOR CLAIMANT; SUMMARY JUDGMENT
FOR DEFENDING PARTY
llVho can file:
1. Plaintiff: May file the motion after the
answer has been served, and therefore,
must wait until the issues have been
joined.
2. Defendant: He can move for summary
judgment at any time.
Test: Whether or not the pleadings, affidavits
and exhibits in supporl of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, there is no defense to the action or claim
is clearly meritorious (Estrada v. Consolacion
et al., G.R. No. L-40948, June 29,1976).
SECTION 3. MOTION AND PROCEEDINGS
THEREON
The motion must.also satisfy the requirements
under Rule 75.
1. AFFIDAVITS made on personal
knowledge
2. DEPOSITIONS of the adverse party or a
third party under Ru/e 23
3. ADMISSIONS of the adverse party under
Rule 26; and
4. ANSWERS to interrogatories under Rule
25. All intended to show that:
a. There is no genuine issue as to any
material fact, except damages which
must always be proved; and
b. The movant is entitled to a judgment
as a matter of law.
o Even if the answer does tender an issue,
and therefore a judgment on the pleadings
is NOT proper, a summary judgment may
still be rendered if the issues tendered are
NOT genuine, are sham, fictitious,
contrived, set-up in bad faith, and patenfly.
unsubstantial (Vergara vs. Sue/fo, G.R.
No. L-74766, December21, I987).

SECTION 4. CASE NOT FULLY

ADJUDICATED ON MOTION
Judgment is the final consideration and
This authorizes rendition of partial summary determination of a court of competent
judgment but such is interlocutory in nature jurisdiction upon the matters submitted to it in
and is not a final and appealable judgment an action or proceeding.
(G-uevana v. CA, G.R. No. L-49A17,'eig. SO,
1effi). Parts of a Judgment
1. -
The opinion of the court Contains the
SECTION 5. FORM OF AFFIDAVITS AND findings of facts and conclusions of law;
SUPPORTTNG PAPERS 2. The disposition of the case -The final
and actual disposition of the rights litigated
Requisites of Affidavits: (the dispositive part); and
1 Based on personal knowledge; 3. Signature of the'judge (Herrera, p. 145)
2. Set forth facts as would be admissibte in
evidence; MENTS
Affiant is competent to testify on matters
stated therein; and
Certified copies of all papers must be -
oT'
attached thereto and served on the
opposing party.

SECTION 6. AFFIDAVITS II.I BAD FAITH

Sanctions:
1. Pay to the other party the amount of the
reasonable expenses including attomey,s
fees; and
2. After hearing, adjudged offending party
guilty of contempt.
the facts

67
 REMEDIAL LAW
CIVILPROCEDURE
7. lt should contain a dispositive part and
should be signed by the judge and fited
with the clerk of court.
Kinds of Judgments
1. Judgment upon compromise;
2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro func (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rute 34);
9. Summary judgment (Rute 3S);
10. Several judgment (Sec. 4, Rute 36);
11. Separate judgment (Sec. 5, Rule 36);
12. Specialjudgment (9ec.11, Rute 39);
13. Judgment for specific acts (Sec. 10, Rute
3e);
14. Judgment on demuner to evidence (Rute
33);
15. Conditional judgment;
16. Finaljudgment;
17. Amended judgment; and
'1
8. Supplemental judgment
A. Judgment upon a Compromise
It is one rendered by the court on the basis
of a compromise agreement entered into
between the parties.
It is covered by Artictes 2028 to 2046 of
the New CivilCode.
Note: Judgment upon a compromise is
immediately executory upon the signing of
the compromise agreement in the absehce
of a motion to set aside on the ground of
fraud, mistake, etc. Hence, it haslhe effect
of res judicata (World Machine Enterprises
v. lAC, G.R. No. 72019, Dec. 20, 199e.
. The parties may submit to
compromise agreement at any stage
of the case, even if judgment has
already become final and executory,
even without approval of the court.
r lt cannot be annulled unless it
vitiated with enor, deceit, violence or
forgeryof documents.(Morales ys.
Fontanos, 64 phil. 19; Articb 2a3g,
CivitCode)
Advantage of Approval of Court: The
court could render a judgment based upon
a compromise and in case of breach of
any of the conditions, the party may ask
the court for Execution of Judgment under
Rule 39.
68
B. Judgment by Gonfession
It is one rendered by the court when a
party expressly agrees to the other party's
claim or acknowledges the validity of the
claim against him.
Two Kinds of Judgment by Confession
1. Judgment by COGNOVIT ACTIONEM
The defendant after service instead of
entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.
?. Judgment by CONFESSION RELICTA
VERIFICATIONE
After pleading and before trial, the
defendant both confessed the
plaintiffs cause of action and withdrew
or abandoned his plea or
other
allegations, whereupon judgment was
entered against him without
proceeding to trial.
Note: Remedy against judgment by
consent, confession or compromise is to
first file a MOTION TO SET lT ASIDE,
then if denied file the appropriate
PETITION UNDER RULE 65 (Sec.l Rule
41).
c. Judgment upon the Merits is one that is
rendered after consideration of the
evidence submitted by the parties during
the trial of the case.
D. Clarificatory Judgment is rendered to
clarify an ambiguous judgment or one
difficult to comply with. .
o
Where the judgment is difficult to
execute because of ambiguity in its
terms, the is to file a motion
a and not to
sef{ ffiffiffie
ffirffitrukc.!"&eA
is
toa
to its
only
and
fact and
 Sm Fell Gollege sf {.sb
2011 CENTRALIZED BAR OPERATIONS

G. Gonditional Judgment is one wherein the o The power to amend a judgment is

effectivity of which depends upon the
occurrence or non-occurrence of an event.
As a general rule, judgments of such kind,
conditioned upon a contingency, are held
to be NULL and VOID. (Cu Unjieng y Hijos
vs. Mabalacaf Sugar Co., 70 Phil. 380)
inherent to the court before judgment
becomes final and executory.
General Rule: After judgment has become
final and executory, the court cannot amend
the same.

H. lncomplete Judgment is one which Exceptions:

leaves certain matters to be setfled in a 1. To make corrections of clerical errors, not
subsequent proceeding (lgnacio ys. substantial amendments, as by
an
Hilario, 76 Phil. 605). There is a decision amendment non pro tunc;
but there are Still other matters to be 2. To clarify an ambiguity which is borne out
incorporated later in such decision. by and justifiable in the context of the
decision; or
3. ln judgments for support, which can
' always be amended from time to time.
The provisions and An affirmative and
terms are settled and voluntary act of the Rule: The validity of a judgment or order of a
agreed upon by the defendant himself. The court cannot be collaterally attacked.
parties to the action, and court exercises a certain
which is entered in the amount of supervision Exceptions:
record by the consent of over the entry of 1. Lack of jurisdiction; and
the court. judgment. 2. lrregularity of its entry apparent from the
face ofthe record.
Promulgation refers to the process by which
a decision is published, officially announced, o fi judge permanently transferred to
made known to the public or delivered to the another COURT OF EQUAL
clerk of court for filing, coupled with notice to . JURISDICTION (coordinate court) can
the parties or their counsel. render a decision on a case in his former
court which was TOTALLY HEARD by him
Memorandum Decision is a decision of the and submitted for decision, with the parties
appellate court which adopts the findings and having argued the case (Valentin vs.
the conclusion of the trial court. Sta" Maria, G.R. No. L-30158, Jan. 17,
1974).
Promulgation of Judgment r Minute resolutions of the Supreme Court
denying petition to review the decision of
Court renders decision the Court of Appeals are not decisions
within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Ca., Ltd. V.
File an appeat within Co., G.R.
15/30 days from notice
ofjudgment.
Losing Party

File a motion for

reconsideration or t*k {.}tr" fi"*s4b.d
motion for new trial
Accepts
within 15/30 days from
decision notice ofjudgment.
without further
contest.

some
lf no appeal S-year
is taken or lf granted, lf denied, losing 6, Rule
did not avail the court: party may appeal
of remedies, 1. Modifies within a fresh 1S
judgment decision; or day period. Remedial
becomes 2. Grants (Neypes vs. Court
final and new trial af Appeals.)
executory.

69
 REMEDIAL LAW
CIVIT PROCEDURE
7. lt should contain a dispositive part and
should be signed by the judge and fited
with the clerk of court.
Kinds of Judgments
1. Judgment upon compromise;
2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro func (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rule 34);
9. Summary judgment (Rule 35);
10. Several judgment (Sec. 4, Rule 36);
11. Separate judgment (Sec. 5, Rute 36);
12. Specialjudgment (5ec.11, Rute 39);
13. Judgment for specific acts (Sec" 10, Rute
3e);
14. Judgment on demurrer to evidence (Rule
33);
15. Conditional judgment;
16. Finaljudgment;
17. Amended judgment; and
18. Supplemental judgment
A. Judgment upon a Compromise
It is one rendered by the court on the basis
of a compromise agreement entered into
between the parties.
It is covered by Articles 2028 to 2046 of
the New CivilCode.
Note: Judgment upon a compromise
immediately executory upon the signing of
the compromise agreement in the absence
of a motion to set aside on the ground of
fraud, mistake, etc. Hence, it has the effect
of res judicata (Warld Machine Enterprises
u. lAC, G.R. No. 72019, Dec.20, 1990).
. The parties may submit to
compromise agreement at any stage
of the case, even if judgment has
already become final and executory,
even without approval of the court.
r lt cannot be annulled unless it is
vitiated with enor, deceit, violence or
forgery of documents.(Morales ys.
Fontanos, 64 phil. 19; Articte 2058,
CivitCode)
Advantage of Approval of Courtr The
court could render a judgment based upon
a compromise and in case of breach of
any of the conditions, the party may ask
the court for Execution of Judgment under
Rule 39.
68
B. Judgment by Gonfession
It is one rendered by the court when a
party expressly agrees to the other party's
claim or acknowledges the validity of the
claim against him.
Two Kinds of Judgment by Confession
1. Judgment by COGNOVITACTIONEM
The defendant after service instead of
entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.
2. Judgment by CONFESSION RELICTA
VERIFICATIONE
After pleading and before trial, the
defendant both confessed the
plaintiffs cause of action and withdrew
or abandoned his plea or other
allegations, whereupon judgment was
entered against him without
proceeding to trial.
Note: Remedy against judgment by
consent, confession or compromise is to
first file a MOTION TO SET lT ASIDE,
then if denied file the appropriate
PETITION UNDER RULE 65 (Sec.l Rule
41).
Judgment upon the Merits is one that is
rendered after consideration of the
evidence submitted by the parties during
the trial of the case.
is
D. Clarificatory Judgment is rendered to
clarify an ambiguous judgrnent or one
difficult to comply with."
o Where the judgment is difficult to
execute because of ambiguity in its
terms, the is to file a motion
a and not to
'#*ef$ ffitr#ilt&
WffiSfuhcWtd
toa
to its
only
and
fact and
bsequent
 Sm Fe[a €olbge of {.nb
2011 CENTRALIZED BAR OPERATIONS
(J. Conditional Judgment is one wherein the r The power to dmend a judgment is
effectivity of which depends upon the inherent to the court before judgment
occurrence or non-occurrence of an event. becomes final and executory.
As a general rule, judgments of such kind,
conditioned upon a contingency, are held General Rule: After judgment has become
to be NULL and VOID. (Cu tJnjieng y Hgos final and executory, the court cannot amend
vs. Mabalacat Sugar Co., 70 phit. 390) the same.

H. lncomplete Judgment is one which Exceptions:

leaves certain matters to be setfled in a 1. To make corrections of clerical errors, not
subsequent proceeding (lgnacio ys. substantial amendments, as by an
Hilario, 76 Phil. 605/. There is a decision amendment non pro tunc;
but there are still other matters to be 2. To clarify an ambiguity which is borne out
incorporated later in such decision. by and justifiable in the context of the
decision; or
3. ln judgments for support, which can
always be amended from time to time.
The provisions and An afflrmative and
terms are seftled and voluntary act of the Rule: The validity of a judgment or order of a
agreed upon by the defendant himself. The court cannot be collaterally aftacked.
parties to the action, and court exercises a certain
which is entered in the amount of supervision Exceptions:
record by the consent of over the entry of 1. Lack of jurisdiction;and
the court. judgment. 2. lrregularity of its entry apparent from the
face ofthe record.
Promulgation refers to the process by which
a decision is published, officially announced, o I judge permanently transferred to
made known to the public or delivered to the another COURT OF EQUAL
clerk of court for filing, coupled with notice to . JURISDICTION (coordinate court) can
the parties or their counsel. render a decision on a case in his former
court which was TOTALLY HEARD by him
Memorandum Decision is a decision of the and submitted for decision, with the parties
appellate court which adopts the findings and
the conclusion of the trial court.
having argued the case (Valentin vs.
Sta. Maria, G.R. No. L-3015e, Jan. i7,
1e74).
Promulgation of Judgment . Minute resolutions of the Supreme Court
denying petition to review the decision of
Court renders decision the Court of Appeals are not decisions
within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Co., Ltd. V.
File an appeal within
15/30 days from notice
ofjudgment.
Losing Party

File a motion for

reconsideration or
motion for new trial
Accepts
within 15/30 days from
decision
notice of judgment.
wilhout further
contest.

some
lf no appeal S-year
is taken or lf granted, lf denied, losing
did not avail the court: parly may appeal 6, Rule
of remedies, 1. Modifies within a fresh 15 3e)
judgment decision; or day period. relief
becomes 2. Grants (Neypes vs. Court
final and new trial of Appeals.)
executory.

59
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 3. JUDGMENT FOR OR AGAINST B. AFTER the finality of the judgment or

ONE OR MORE OF SEVERAL PARTIES final order:
1. Relief from judgment or final order;
SECTION 4. SEVERAL JUDGMENTS 2. An annulment of judgment;
3. A petition for certiorari; and
Several Judgment is one rendered by a court 4. Collateral attack of a judgment.
against one or more defendants and not
against all of them leaving the action to
proceed against the others.

Several judgment is PROPER where the

liability of each part is clearly separable and An order denying the
distinct from his co-parties such that the claims motion for new trial
against each of them could have been the
subject of separate suits, and the judgment for
or against one of them will not necessarily 2nomotion for new trial based on
affec{ the other. A several judgment is NOi grounds not existing or available
PfOPER in action against solidary debtors when the 1s motion was filed
(Fernandez y. Sfa. Maria, G.R. No. 16A730,
Dec.10, 2004|

SECTION 5. SEPARATE JUDGMENTS Appeal from the judgment or final

order and assign as one of the
enors the denial of the motion for
Separate Judgment is one rendered by a new trial
court disposing of a claim, among several
others, presented in a case after determination
of the issues material to a particular claim and
all counterclaims arising out of transaction or Fresh Period Rule
occurrence, which is the subject matter of said
claim. The aggrieved party has a "fresh period" of {5
o lt is proper when more than one claim for days within which to file his appeal. This
relief is presented in an action and a applies to Rules 40, 41, 42, 43 and 45
determination as to the issues material to (Neypes vs. CA, GR 141524, September 14,
the claim has been made. The action shall 2005).
proceed as to the remaining claims.
The fresh period of 15 days becomes
significant only when a party opts to file a
motion for new trial or reconsideration (Riano,
Civil Procedure, 2007 Editi6n, p. 355).
It is an entirely new It does not supersede
decision and the original decision. The fresh period rule does not refer to the
supersedes the original period within which to appeal from the order
judgment.
denying the but to
Court makes a thorough Serves to bolster or add from the
study of the original to the original judgment.
judgment and renders
the amended and
clarified judgment onlv
after considering all th6
#{#ffi {:k g".eldv
factual and legal issues.

Remedies Against Judgments or Final

Orders
A. BEFORE finatity of judgment or final order:
1. A motion for reconsideration; and
2. A motion for new trial; or or
3. An appeal. or
new steps are
taken.

70
 5an Fels Gollege of Lffi
2011 CENTRALIZED BAR OPERATIONS

Note.' Rule 9 Sec 3(b) on the rules from order

of default and Rule 37 on motion for new trial
have the same grounds- FAME. Rule 3T could
the time the l"tmotion only to final ordqrs or
also be a remedy in case the defendant who is judgments; hence, it
was made.
declared in default failed to avail of the remedy is allowed in
in Rule 9 Sec 3(b) and as a result, a judgment interlocutory orders.)
has already been rendered. This is because
lf a new trial is lf the court finds that
Rule 37 is broader.
granted, the original excessive damages
judgment or final have been awarded
One remedy available to a party declared in order is vacated. The or that the judgment
default is, lf the judgment has already been case stands for trial or final order is
rendered when the defendant discovered the de novo and will be \ contrary to the
default, but before the same has become final tried anew. evidence or law, it
and executory, he may file a mo6on for new may amend such
trial under Secfion 1 (a) of Rule 37 (Cerezo judgment or final
vs. Tuazon). order accordingly.
Available even on Available against the
Rule 9 sec3(b) v. Rule 37 appeal but only on the judgments or final
o Rule 9, Sectr'on 3 [b]- after notice of the ground of newly orders of both the trial
order of default but before judgment discovered evidence. and appellate courts.
c Rule 37- if there is already a judgment but Both are prohibited motions under
not yet final and executory. During the
period of filing an appeat.
Note: The motion for reconsideration under
Motion for a New Trial Rule 37 is one that is directed against a
judgment or final order, not of an interlocutory
When to file: Within the period for taking an order which for instance, precedes a petition
appeal. for eftionri.

Where to file: With the triat court which Fraud

rendered the questioned judgment.
Fraud as a ground for new trial must be
Motion for Reconsideration extrinsic.

When to file: Within the period for taking an Extrinsic Fraud connotes any faudulent
appeal. scheme executed by the prevailing party
oulside of the trial against the losing party who
Where to file: With the trial court which because of such fraud is prevented .from
rendered the judgment or final order sought to presenting his side of the case (ex. prevent
be reconsidered. wrfness tro m te dify in g).

Grounds: fraud, Grounds: damages

arcident, mistake or awarded are
excusable negligence excessive, that the
or newly discovered evidence is
evidence which could insufficient to justify
not, with reasonable the decision or final
diligence, have been order, or that the
discovered and decision or final order
produced at the trial, is contrary to law.
and which if
presented would
probably alter the
result.
Second motion may Second motion from
be allowed so long as the same party is
based on grounds not prohibited. (Ihe
existing or available at prohibition applies

77

Rule-' Negligence of counsel is binding on the
client.
Exception:,Such negligence of counsel may
be a ground for new trial if it was so great that
the party was prejudiced and preueiteJ
rarny presenting his case.
Requisites of Newly-Discovered Evidence
(Berry Rute)
1. lt must have been discovered after the
trial;
2. lt could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence; and
3. The evidence is of
,"(ni in"t if
"rcn'
admitted, would probably alter ilie resutt of
the action; and
4. lt must be material and not
merely
collateral, cumulative or corroborative.
These standards, also known as the ,,Bern,,
rule, trace their origin to the f ASf
Berry vs. State of Georgia.
o Newly discovered evidence need not be
newly created evidence. lt may anO Ooes
commonly refer to evidence already in
existence prior or during triat Out wiricir
could not have been secured
presented during the trial despite
"nO
reasonabLe diligenceon the part of 'the
(Tumans vs. Court of epi"iii,
[ig^anj - evidence should be such ls to warrant
G.R. Nos.82 346-47, Aprit 1 7, 1 gilgi.
Evjdence was noi-
Evidence was atieaOy
available to a party available to a party and
during the trial, and was not able to present
was discovered onlv it through inadvertence
thereafter. or negligence of
counsel; not a ground
for new trial.
REMEDIAL LAW
CIVIL PROCEDURE
SECTION 2. CONTENTS OF MOTION FOR
NEW TRIAL OR RECONSIDERATION AND
NOTICE THEREOF
A motion for new trial, based on FAME must
lro* include an affidavit of merit, which states:
1. The nature or character of FAME;
2. The facts constituting the movant,s good
and substantial defense or valid cause of
action;and
3. The evidence which he intends to present
if his motion is granted.
. A motion for new trial, based on newly
discovered evidence, must contain
affidavits of witnesses or duly
authenticated documents.
. A motion for reconsideration must
point out the findings or conclusions
not supported by the evidence or
contrary to law.
ca;-if
N-ote: A motion suspends or tolls the running
of the reglementary period for appeal except
when the same is pro-forma.
An AFFIDAVTT OF |UER|TS 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
if
present the motion is
granted, which
reasonable belief that the result of the case
wotd probably be otherwise (paz vs. lnandan,
75 Phil. 608; Manita Surety vs. Det Rosario,
101 Phil.412).
Without an affidavit of merits, the motion for
new trial is a mere pro-forma motion

Note: New trial should be distinguished

from
the exercise of the discretionary
h;";;ith"
court to REOPEN a triatfor the'iniroduction
ot
additionat evidence, to ctariff its OJrlis
on
material points. This discretion".V-por"r-i"
gubject to no rule other than tne'pirimount
interest of justice and wiil not U"
appeal unless the exercise thereol,
ieGweJin new
(Arce vs. Arce, L-13O35, Nov.
i" ;il";;
ia,leisl----' is not
* one
or tn

2.A a ground
motion

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lndications ol a Pro-Forma Motion issues, shall be used at the new trial taking the
1. lt is based on the same ground as that same.
raised in a denied motion under Ru/e 3Z;
2. lt contains the same arguments in the
opposition to a granted motion to dismiss
3. The new ground alleged in the second
motion for new trial already existed, was Specifically mentioned Not mentioned in the
available and could have been alleged in in the Rules. Rules but is
the first motion for new trial which was nevertheless a
denied; recognized
4. lt is based on the ground of insufficiency of procedural recourse
evidence or that the judgment is contrary deriving validity and
to law but does not specify the supposed acceptance from long
defects in the judgment; established usage.
5. lt is based on FAME but does not specify Note: lt is actually
mentioned in the
the facts constituting these grounds andior
Rules of Criminal
is not accompanied by an affidavit of merit; Procedure (Ra/e
and 119,5ec. 24) and as
6. Non-compliance with the requirements of a prohibited pleading
Rule 15. in the 1991 Revised
Rules on Summary
Note: A motion for reconsideration, if based Procedure (Sec.
on the same grounds as that of a new trial, is 19c).
considered a motion for new trial and has the Proper only after May properly be
same effect (Rodriguez v. Rovira, G.R. No. promulgation of presented only after
45252, 5ept.24,1936). judgment. either or both the
parties have formally
SECTION 3. ACTION UPON MOTION FOR offered and closed
their evidence before
NEW TRIAL OR REGONSIDERATION
judgment.

SECTION 4. RESOLUTION OF MOTION Based upon specific Controlled by no

grounds set forth under other rule than the
Rule 37 in civil cases paramount interests
SECTION 5. SECOND MOTION FOR NEW and Rule 121 in ofjustice, resting
TRIAL
criminal cases. entirely on the sound
discretion of a trial
"Single motion" Rule - a party shall not be court, the exercise of
allowed to file a second motion for which discretion will
reconsideration of judgment or a final order. not be rwkwed on
(Riano,2009) appeal UNLESS a
dear abuse thereof is
While a second motion for reconsideration is shown.
not allowed, a second motion for new trial is
authorized by the rules. A motion for new trial
shall include all grounds then available
otheruvise they are deemed waived. A second
motion for new trial, based on a ground not
existing nor available when the first motion
was made within the period allowed but
excluding the time during which the first
motion had been pending.

SECTION 6. EFFECT OF GRANTING OF

MOTION FOR NEWTRIAL
ORDER
When motion is granted, the originaljudgment OR
is thereby vacated and the action stands for REC
trial de noyo, but the recorded evidence taken
upon the former trial so far as the same is Not appeal from
material and competent to establish the the denial appeal from the
judgment or

73
 REMEDIAL LAW
CIVIL PROCEDURE

. Denial of the motion; the "fresh period"

rule- if the motion is denied, the movant
Available BEFORE Available AFTER
has a fresh period offifteen (15) days from
iudgment becomes final judgment has become
receipt or notice of the order denying or and executory. final and executory.
dismissing the motion for reconsideration
within which to file a notice of appeal. This Applies to Applies to judgments, final
JUDGMENTS oT FINAL orders and other
"fresh period" rule applies not only to Rule
ORDERS only. proceeding;
41, but also to Rule 40, Rule 42, Rule 43 Land Registration;
and Rule 45. (Neypes vs Court of Appeals, Special Proceedings;
G.R. No. 141524, September 14,2005). Order of Execution.
GROUNDS: GROUNDS:
a. FAME; and a. FAME
b. Newly discovered
evidence.
Note: This is not applicable to the Supreme Filed within the time to Filed within 60 days fom
Court because it is not a TRIER of FACTS. appeal. knowledge of the
judgment and
SECTION 1. PETITION FOR RELIEF FROM Within 6 months from
JUDGMENT, ORDER OR OTHER entry of judgment.
PROCEEDING lf denied, the order of lf denied, the order
denial is NOT denying a petition for relief
This remedy presupposes that judgment has appealable, hence is NOT appealable; the
already become final and executory. remedy is appeal from remedy is appropriate civil
the judgment. action under Rule 65.
Nature: Not an independent action but a
CONTINUATION of the otd case. tt is fited with
the same court which decided the case.

Grounds:
1. When judgment or final order is entered
into or any other proceeding is thereafter
taken against the petitioner through
FAME.
The phrase "other proceeding', includes an
order or writ of execution, or an order
dismissing an appeat (Medran v. CA, g3
Phit 164)
2. When petitioner has been prevented from
taking an appeatby FAME.
Note: A petition for relief has been held to be
applicable to all kinds of speciat proceedings,
such as land registration, intestate setfleme-nt
and guardians[ip proceedings (Regatado,
RemedialLaw Compendium, Vot. t, dh-fa., p.
432).
A party who has filed a timely motion for new
trial and/or reconsideration cannot file a
petition for relief after his motion has been
denied. These remedies'are exclusive of each
other. lt is only in appropriate cases where a
party aggrieved by the judgment has not been
able to file amotion for new trial and/or
reconsideration that a petition for relief can be
filed (Francisco vs. Puno, G.R.No. L-55694,
October 23, 1981).
SECTION 3. TIME FOR FILING PETITION;
CONTENTS AND VERIFICATION
A:

SECTION 2. PETITION FOR RELIEF FROM

DENIAL OF AN APPEAL Lines,

The petitioh is, in effect, a second opportunity

for an aggrieved party to ask for a'new triai.
Hence, the grounds mentioned have the same
concepts that they have in motion for new trial.

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201 1 CENTRALIZED BAR OPERATIONS

3. The affidavit of merit accompanying the SECTION 6. PROCEEDINGS AFTER

petition must also show thefacts ANSWER IS FILED
constituting the petitioner's good and
substantial cause of action or defense as Two Hearings under Rule 38
the case may be. 1. Hearing to determine whether the
judgment should be set aside; and
Affidavit of Merit is one which recites the 2. lf in the affirmative, a hearing on the merits
nature and character of fraud, gccident, of the case.
gqistake or g,xcusable Negligence (FAME) on
which the motion is based. SECTION 7. PROCEDURE WHERE THE
DENIAL OF AN APPEAL IS SET ASIDE
It serves as the jurisdictional basis for the
court to entertain a petition for relief. However, Remedies it Rule 38 No Longer Available
it is not a fatal defect to warrant denial of the 1. Petition for Annulment of Judgment under
petition so long as the facts required to be set Rule 47; and
out also appear in the verifled petition. 2. A direct or collateral attack if judgment is
void ab initio for lack of jurisdiction.
lnstances When an Affidavit of Merit is NOT
Necessary Note: Under A.M. No. 08-8-7 SG, otherwise
1. Where there is no jurisdiction over the Known as the RULE OF PROCEDURE FOR
defendant; SMALL CLAIMS CASES, a Motion fOr New
2. Where there is no jurisdiction over the Trial or Reconsideration (Ru/e 37),' and a
subject matter; Petition for Relief ftom Judgment (Rule 38) are
3. Where judgnnent was taken by default; prohibited pleadings.
4. Where judgment was entered by mistake
or was obtained by fraud; or Both remedies, likewise, are prohibited
5. Other similar cases. pleadings under the RULE ON SUMMARY
PROCEDURE.
SECTION 4. ORDER TO FILE AN ANSWER

This remedy precludes the issuance of

summons upon its filing. lf the petition is
sufficient in form and in substance, the court
shall issue an order requiring the adverse Execution is a process provided by law for the
parties to answer within 1S days from receipt enforcement of a finaljudgment.
thereof.
Against Whonr lssued: Execution can only
Failure to file answer does not warrant issue against a party and not against one who
declaration of default. has not had his day in court.

SECTION 5. PRELIMINARY INJUNGTION Writ of Execution is judicial writ issued to an

PENDING PROCEEDINGS

Rule: Execution of judgment is not stayed

UNLESS a writ of preliminary injunction is R$ffieffi#tftritof
issued by the court. ;. Of
or
Upon Filing of the Petition:
1. The court in which the petition is filed may the
grant such PREL|MINARY TNJUNCTTON
as may be necessary for the preservation
o-f the right of the parties, upon the fiting by which
. the petitioner of a bond in favor of ,the or
adverse party. or
2. Such injunction shail NOT DTSCHARGE court
ANY LIEN which the adverse party may been
have acquired upon the property of thi
petitioner.

75
 REMEDIAL LAW
CIVIL PROCEDURE

Test to Determine Whether a Judgment or 3. lquitable grounds like a change in

Order is Final or lnterlocutory situation of the parties which makes
lf the judgment or order leaves nothing more execution inequitable; (Supervening fact
for the court to do with respect to the merits of doctrine)
the case, it is a FINAL ORDER. Otherwise, it 4. Execution is gnjoined
is an INTERLOCUTORY ORDER. e.g. Petition for Relief from Judgment or
Annulment of Judgment with TRO or writ
Classes of execution of prel i m i n ary inj u n ctio n
A. As to their nature:
1. Compulsory execution - known as 5. Judgment has become dormant; except:
Execution as a Matter of Right support which can be executed by motion
(Section 1) 6. Execution is gnjust or impossible.
2. Discretionary execution -
known as
Execution Pending Appeal (section 2) Note: lssuance of'the corresponding writ of
execution upon a final and executory judgment
B. As to how it is enforced (Section 6): is a ministerial duty of the court to execute
'1. Execution by motion which is compellable by mandamus. (Ebero
2. Execution by independent action vs. Cafiizares,79 Phil. 152)

SEGTlOirl 1. EXECUTTON UPON Take note that for the supervening event to
JUDGMENTS AND FINAL ORDERS. apply, the supervening event must happen
after the judgment has become final and
Execution as a Matter of Right executory.
1. On motion;
2. Upon a judgment or order that disposes of lnstances where execution is a matter of
the action or proceeding; right:
3. Upon expiration of the period to appeal 1. Secfircn 1, paragraph I - no appeal;
therefrom and NO appeal has been duly judgment becomes final;
perfected. 2. Section 1, paragraph 2 - there is an
appeal; once the CA judgment becomes
Execution of Judgment final;
3. Section 4 - Judgment in an action for
Execution is a Discretionary injunction, receivership, accounting,
matter of right after
expiration of period
execution upon support, judgment declared be to
good reasons stated immediately executory; and
to appeal and no
appeal is perfected.
in a special order 4. Rule 70 - Judgments in Forcible Entry and
afterdue hearing. Unlawful Detainer cases.

Quashal of Writ of Execution When Proper:

Sheriff enforces writ of execution. (c-wwDss)
1. A ghange in the situation of the parties
renders execution inequitable;

losilg party is made to indemnify thru:

1. Payment with interest;
? Levy and sale of personal property;
9
4.
Levy and sale of ieal propertyi
Delivery of personal and real-property.
to

of the
General Rule: lt is a matter of right on the part
of the winning party. The court cannot refuse
execution.

Unless: (l- NEED - U) of

1. Where the judgment turns out to be for
lncomplete or conditional;
2. Judgment govated by parties; a decision

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2011 CENTRALIZED BAR OPERATIONS

decidendi (Mutual Security Ins. Corp. vs.
CA, GR /Vo. L-47018, September
1987); and
2. Where extensive and explicit discussion
and settlement of the issue is found in the
body of the decision (Witson Ong Ching
Kian Clzung, et al vs. Chinese National
Cereals Oil and Foodstuffs lmport and
Export Corp., et at., GR No 131502, June
8,20Aq.
Note: When the writ of execution varies the
terms of the dispositive portion, the defeated
party CAN FILE:
1. Motion to quash the writ of execution, if
denied; and
2. File petition for certiorari under Ru/e 65
with prayer for TRO (Atbano, Remediat
Law Reviewer).
SECTION 2. DISCRETIONARY EXECUTION
"The requirement of good reason is important
11, and must not be overlooked, because if the
judgment is executed and, on appeal, the
same is reversed, although there are
provisions for restitution, qftentimes 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 securig for their existence." (City of
Bacolod vs. Enriquez, 101 Phil. 644)
Examples of good reasons:
1. When there is danger of the judgment
becoming INEFFECTU AL. (Scottish Union
vs. Macadaeg, 91 Phil. 891);
2. OLDAGE;
3. Where the appeal is for the purpose of
DELAY;
4. When the successful party files a'BOND
(but is not by itself alone, a good reason);

May issue before the

Period to appeal has
An award for actual and compensatory
lapse of period to damages may be ordered executed pending
already lapsed and no
appeal, and even
appeal is perfected.
appeal, but not an award for moral or
exemplary damages.
Discretionary upon the
court, there is inquiry Ministerial duty of the Ratio: Moral and exemplary damages are
on whether there is court PROVIDED there dependent on the outcome of the appeal.
GOOD REASON for are no supervening While the amounts of actual damages are
events.
execution. fixed and certain (Radio Communications of
the Phils., lnc. v. Lantin, G.R. No. L-59311,
Execution Pending Appeal January 31, 1985).

By the Appellate Gourt

SECTION 3. STAY OF DISCRETIONARY
EXECUTION
It can order the execution of judgment pending
appeal for good reasons.
The party against whom an execution is
By the Trial Gourt
May also do so in the exercise of its residual
jurisdiction under Rule 41 and 42.

Grounds:
1. lnsolvency of the judgment debtor; and
2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time
within which to appeat, pROVtDED:
1. There is a motion for execution filed by the
winning party;
2. There is notice of said motion to the
adverse party; and
3. There are good reasons stated in a special is NOT
order after due hearing.

77
 REMEDIAL LAW
CIVIL PROCEDURE

Test to Determine Whether a Judgment or 3. lquitable grounds like a change in

Order is Final or Interlocutory
lf the judgment or order leaves nothing more
for the court to do with respect to the merits of
the case, it is a FINAL ORDER. Otherwise, it
is an INTERLOCUTORY ORDER.
Glasses of execution
A. As to their nature:
1. Compulsory execution - known as
Execution as a Matter of
(Section 1)
2. Discretionary execution -
known as
Execution Pending Appeal (Section 2)
B. As to how it is enforced (Section 6):
1. Execution by motion
2. Execution by independent action
situation of the parties which makes
execution inequitable; (Supervening fact
doctrine)
4. Execution is gnjoined
e.g. Petition for Relief from Judgment or
Annulment of Judgment with TRO or writ
of pre li m in ary i nju n ctio n
5. Judgment has become dormant; except:
Right support which can be executed by motion
6. Execution is unjust or impossible.
Note: lssuance of'the corresponding writ of
exeeution upon a final and executory judgment
is a ministerial duty of the court to execute
which is compellable by mandamus. (Ebero
vs. Cafiizares,79 Phil. 152)

SEGTION 1. EXECUTION UPON Take note that for the supervening event to
JUDGMENTS AND FINAL ORDERS. apply, the supervening event must happen
after the judgment has become final and
Execution as a Matter of Right executory.
1. On motion;
2. Upon a judgment or order that disposes of lnstances where execution is a matter of
the action or proceeding; right:
3. Upon expiration of the period to appeal 1. Secfion f, paragraph I - no appeal;
therefrom and NO appeal has been duly judgment becomes final;
perfected. 2. Section 1, paragraph 2 - there is an
appeal; once the CA judgment becomes
Execution of Judgment final;
3. Section 4 - Judgment in an action for
Execution is a Discretionary injunction, receivership, accounting,
matter of right after execution upon support, judgrnent declared to be
expiration of period good reasons stated immediately executory; and
to appeal and no
appeal is perfected.
in a special order 4. Rule 70 - Judgments in Forcible Entry and
after due hearing. Unlawful Detainer cases.

Quashal of Writ of execution When Proper:

Sheriff enforces writ of execution. (c-wwDss)
1. A ghange in the situation of the parties
renders execution inequitable;
Losing party is made to indemnify thru:
1. Payment with interest;
?.
3
Levy and sale ofpersonal property;
Levy and sale ofreal propertyl
4. Delivery of personal and real property.

General Rule: lt is a mafter of right on the part

of the winning party. The court cannot refuse
execution.

Unless: (l- NEED - U) yof

1. Where the judgment turns out to be for
lncomplete or conditional;
2. Judgment qovated by parties;

76
 9m Bela @olbgr ot Leb
2011 CENTRALIZED BAR OPERATIONS

decidendi (Mutual Security lns. Corp. vs.
CA, GR No. L-47018, September
1987); and
2. Where extensive and explicit discussion
and settlement of the issue is found in the
body of the decision (Wilson Ong Ching
Kian Chung, ef al ys. Chinese Nationat
Cereals Oil and Foodstuffs lmport and
Export Corp., et at., GR No 131502, June
8,2000).
Note: When the writ of execution varies the
terms of the dispositive portion, the defeated
party CAN FILE:
1. Motion to quash the writ of execution, if
denied; and
2. File petition for ceftiorai under Ru/e 65
with prayer for TRO (Albano, Remedial
Law Reviewer).
SECTION 2. DISCRETIONARY EXECUTION
'The requirement of good reason is important
11, and must not be overlooked, because if the
judgment is executed and, on appeal, the
same is reversed, although there are
provisions for restitution, ofientimes 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)
Examples of good reasons:
1. When there is danger of the judgment
becoming INEFFECTU AL. (Scattish Union
vs. Macadaeg,91 Phil. 891);
2. OLDAGE;
3. Where the appeal is for the purpose of
DELAY;
4. When the successful party files a BOND
(but is not by itself alone, a good reason);

May issue before the

Period to appeal has
An award for actual and compensatory
lapse of period to damages may be ordered executed pending
already lapsed and no
appeal, and even
appeal is perfected.
appeal, but not an award for moral or
during appeal. . exemplary damages.
Discretionary upon the
court; there is inquiry Ministerial duty of the Ratio: Moral and exemplary damages are
on whether there is court PROVIDED there dependent on the outcome of the appeal.
GOOD REASON for are no supervening While the amounts of actual damages are
execution, events. fixed and certain (Radio Communications of
the Phils., lnc. v. Lantin, G.R. No. L-59311,
Execution Pending Appeal January 31, 1985).

By the Appellate Gourt SECTION 3. STAY OF DISCRETIONARY

EXECUTION
It can order the execution of judgment pending
appeal for good reasons.
The party against whom an execution is
By the Trial Court directed may fi[,-_

May also do so in the exercise of its residual

jurisdiction under Rule 41 and 42.

Grounds:
1. lnsolvency of the judgment debtor; and
2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time
within which to appeat, pROV|DED:
1. There is a motion for execution filed by the
winning party;
2. There is notice of said motion to the
adverse party; and
3. There are good reasons stated in a special is NOT
order after due hearing.

77
 REMEDIAL LAW
CIVIL PROCEDURE

Exceptions: same court that decided the case. lt shalt be

1. When the terms of the judgment are not
very clear; and
2. When the order of execution varies with
the tenor of the judgment.
SECTION 4. JUDGMENTS NOT STAYED BY
APPEAL
Rule: Judgment is stayed by appeat
Exceptions: lnstances when judgment
immediately executory: 0RASO)
1. lnjunction;
2. leceivership;
3. {ccounting;
4. $upport;and
5. Such gther judgments declared to be
immediately executory unless otherwise
ordered by the trial court. e.g. A judgment
in forcible entry or untawful detaineiwhen
favorable to the ptaintiff (Sec- 19 Rute 70).
The REASON for the non-stay of judgment for
support is because support is immediately
needed and its delay may unduly prejudice the
one in need of it. .
. 1.
Note: The rule on immediate execution of
judgment in an injunction case does not apply
to_ a
judgment in an action for prohib'ition
(Embroidery & Apparet Controt Board v.
Cloribel, June 2A 1967).
filed in the RTC as one incapable of pecuniary
estimation. lt must also satisfo requirements of
venue in Rule 4.
A DORMANT judgment is one that was not
executed within five (5) years.
. Five (5) - year period may be extended if
delay is traceable to the f;autt of the
judgment debtor.
is o A revived judgment is a new judgment
thus another five or ten (5/10) - year
period lo execute and revive is given the
party. That second revived judgment can
again be enforced under Sec. 6.
The five (5) - year period is to be counted not
from the date the judgment became final in the
sense that no appeal could be taken therefrom
but when it became executory in the sense
that it could already be enforced (Tan Ching Ji
v. Mapalo, G.R. No. 21933, Feb.22, 1971).
SEC.6 DOES NOT APPLY IN:
Judgments for support;
2. Contempt Orders in unauthorized reentry
on the land by an ejected defendant;
3. lssuance of Writs of Possession; and
4. Special Proceedings (i.e. land registration
cases)

SECTION 5. EFFECT OF REVERSAL OF

EXECUTED JUDGMENT
It is canied out through
the filing of a motion in
lf reversed totally or partially, or annulled (Rr,r/e
court.-
47), on appeal or otherwise, the trial court
may, on motion, issue orders of restitution or Assumes that there is no Assumes that a
judgment is executed
reparation of damages as equity and justice execution within the first
five (5) years. within the first five (5)
may warrant under the circumstances.

SECTION 6. EXECUTION BY MOTION OR

INDEPENDENT ACTION

Modes of Enforcement
1. By motion within S years from date of its
entry;
2. By independent action for revival of
judgment after five (5) years from entry
AND before it is barred by statute of
limitations which is ten (10i years from
entry under Arf. 1144 (3) of Civit Code
(This action is a person al one and not
quasiin rem.).

Note: The independent action to revive

judgment will not necessa;ily be filed
with the

78
 $sn Eels Oolleqe of fub
2011 CENTRALIZED BAR OPERATIONS
B. ln case of death of JUDGMENT
OBLIGOR
1. BEFORE LEW:
o Execution will issue if the action is
for the recovery of real or personal
property or any lien thereon.
. Execution will NOT issue if the
action is for the recovery of a sum
of money. ln this situation, the
judgment obligee should file a
claim against the estate of the
judgment obligor under Rule 86.
2. AFTER LEVY
o Execution will issue in any case.
Ratio: After a
valid levy, the property is
already separated from the estate of the
deceased and is deemed tN CUSTODIA
LEGlS.
SECTION 8.
ISSUANCE, FORM AND
CONTENTS OFA WRIT OF EXECUTION
Note: Appeal is the remedy for an order
DENYING the issuance of a writ of execution,
However, an order GRANTING the issuance
of a writ of execution of a final judgment is not
appealable under Ru/e 41; lhe remedy is to file
an appropriate special civil action under Rule
65.
SECTION 9- EXECUTION OF JUDGMENTS
FOR MONEY, HOW ENFORCED
lf Award is for Payment of Money:
1. lmmediate payment on demand;
2. Satisfaction by levy;
3. Garnishment of debts and credits.
The judgment obligor shail pay in cash, or
bertified bank ;heck payable to the judgment
obligee or any other form of payment
acceptable to the obligee (Sec 9[a/).
Levy
It is an act by which an officer sets apart or
appropriates a part of the whole property of
the judgment debtor for purposes of the
execution sale.
Levy is a pre-requisite to the auction sale. ln
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)
. The sheriff can validJy levy any property of
the judgment obligor which may be
disposed of for value but not exempt from
execution. The judgment obligor has the
option to choose which property to levy
upon.
r lf he does not exercise the option, the
officer shall FIRST levy on the personal
properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment
' (Sec 9[b]).
o Real or personal property or any interest in
either may be levied upon in like manner
and with like effect as under a writ of
attachment.
. Real Propefi: by filing with the Register of
Deeds a copy of the order together with
the description of the property and a notice
that it is attached (Secfion 7(a) Rule 57).
. Personal Property: lf capable of. manual
delivery, by taking and safely keeping it in'
the custody of the sheriff after isuuing the
conesponding receipt therefor (Secfibn
7(b) Rule 57).
Garnishment
It is an act of appropriation by the court when
the property of debtor is in the hands of a third
person.
. A specie of attachment for reaching any
property or credits pertaining or payable to
a judgment debtor.
. The sheriff may levy on debts due the
judgrnent 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
(Sec.
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 REMEDIAL LAW
CIVIL PROCEDURE
SECTION 10. EXECUTION OF JUDGMENTS
FOR SPECIFIC ACT
1. Conveyance, delivery of deeds, or other
specific acts, vesting tiile;
2. Sale of real or personal property;
3. Delivery or restitution of real property;
4. Removal of improvements on property
subject of execution;
5. Delivery of personal property.
A. lf the party REFUSES TO VACATE THE
PROPERTY:
The remedy is NOT CONTEMpT. The
Sheriff must oust the party. But if
demolition is involved, there must be a
specialorder.
B. lf the party REFUSES TO DELTVER:
A writ of execution direciing the sheriff to
cause the defendant to vacate is in the
nature of a habere facias possessionern
and authorizes the sheriff to break open
the premises where there is no occupant
therein (Arcadio v. ytagan, A.C. No. 2754,
July 30, 1986).
C. When the party REFUSES TO COMpLy:
.The court can appoint some other person
at the expense of the disobedieni party
and the act done shall have the same
effect as if the required party performed it.
General Rute: The judgment debtor CANNOT
be
.cited in contempt of court. Generally,
contempt is not a remedy to enforce a
judgment.
Exceptions:
1. Refusal to perform a particular act or
Special Judgments under Sec. 11 where
^
2.
he may be cited in contempt;and
ln case of the provisio-nal remedy of
support,pendente lite under Ru/e 6t; the
judgment debtor may stilt be cited for
contempt even if the decision is not
specialjudgment and requires the latter to
pay money.
SECTION 11. EXECUTION OF SPECIAL
JUDGMENTS
Specialjudgment is one which can only be
complied yit! by the judgment obiigor
oecause of his personal qualifications -or
circumstances.
When judgment requires the performance of
any act other than judgment for money and
80
judgments for specific act, a certified copy of
the judgment shall be attached to the writ.
The writ of execution shall be served upon the
party required to obey the same and such
party may be punished for CONTEMPT if he
disobeys.
Note: A specialjudgment 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.
SECTION 12. EFFECT OF LEVY ON
EXECUTION AS TO THIRD PERSONS
The levy on execution creates a lien in favor of
the judgment obligee over the right, title and
interest of the judgment obligor such in
property at the time of the levy, subjec-t to liens
and encumbrances then existing.
SECTION {3. PROPERTY EXEMPT FROM
EXECUTION
EXCEPT as othenrise expressly provided by
law, the following property, and no other, shall
be exempt from execution:
1. The judgment obligor's famity home as
provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
2. Ordinary tools and implements personally
used by him in his trade, employment, or
livelihood;
3. 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;
4. His necessary clothing and articles for
a
other
not
 5sr Seta Gollegr of {.sb
2O11 CENTRALIZED BAR OPERATIONS

pesos owned by a fisherman and by the selected by raffle (whether in English,

lawful use of which he earns his livelihood' Filipino, or any major regional language
So much of the salaries, wages, or" published, edited and circulated or, in the
earnings of the judgment obligor for his absence thereof, having general
personal services within the 4 months circulation in the province or city).
preceding the tevy as are necessary for
the support of his family; Note: lN ALL CASES, a written notice of the
9. Lettered gravestones; sale shall be given to the judgment obligor, at
10. Monies, benefits, privileges, or annuities least three (3) days before the sale, except as
accruing or in any manner growing out of provided in par (a,) hereof where notice shall
any life insurance; be given at any time before the sale.
11. The right to receive legal support, or
money or property obtained as such SECTION 16. PROCEEDINGS WHERE
support, or any pension or gratuity from PROPERTY CLAIMED BY THIRD PERSON
the Government; and
12. Properties specially exempted by law. Remedies of a third-party claimant
1. Summary hearing before the court which
But no article or species of property mentioned authorized the execution;
in this section shall be exempt from execution 2. TERCERIA or third-party claim filed with
issued upon a judgment recovered for its price the sheriff;
or upon a judgment of foreclosure of a 3. Action for damages on the bond posted by
mortgage hereon. judgment creditors, or
4. lndependent reivindicatory action.
SECTION 14. RETURN OF THE WRIT OF . The remedies are cumulative and
EXECUTION may be resorted to by the third party
claimant independently of
or
The lifetime of such writ corresponds to the separately from the others.
period within which the judgment may be o lf the winning party files a bond, it is
enforced by motion, that is, within 5 years from only then that the sheriff can take the
entry thereof. properly in his possession. lF THERE
lS NO BOND, the sale cannot
SECTION 15. NOTICE OF SALE OF proceed.
PROPERTY ON EXECUTION
Note: The officer shall not be liable for
Notice Requirement damages to any third-party claimant if such
bond is filed for the taking or keeping of the
A. lf perishable property: property.
By posting written notice of the time and
place of the sale in three (3) public places, However, the judgment obligee can claim
preferably in conspicuous areas of the damages against a third-party claimant who
municipal or city hall, post office and public
market where the sale is to take place, for
such time as may be reasonable,
considering the character and condition of
the property;

B. Other personal property:

By posting similar notice in three (3) public
places above-mentioned for not less than
five (5) days;

C. lf real property:
By posting for 20 days in three (3) pubtic
places particularly describing the property
and stating where the property is to be
sold, and if the assessed value of the
property exceeds P50,000, by publishing a
copy of the notice once a week for two (2)
consecutive weeks in one (1) newspaper

81
 REMEDIAL tAW
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SECTION 17. PENALTY FOR SELLING

WTHOUT NOTICE, OR REMOVING OR
DEFACING NOTICE
Title acquired after the
The following are liable for actual and expiration of the Title acquired upon the
punitive damages: redemption period confirmation and
'1. An officer selling without the notice when final deed of registration of the
prescribed by Sec. 15;' and conveyance is foreclosure sale
2. A person willfully removing or defacing the execut€d
notice posted, if done before the sale, or
before the satisfaction SECTION 20. REFUSAL OF PURCHASER
of judgment if
TO PAY
satisfied before the sale.

SECTION 18. NO SALE IF JUDGMENT AND
COSTS PAID
At any time before the sale of property
execution, the judgment obligor may prevent
the sale BY PAYING the amount required by
the execution and the costs that have been
incurred therein.
The officer may AGAIN SELL the property to
the highest bidder and shall not be responsible
for any loss occasioned thereby.
on
But the court may order the refusing purchaser
to pay to the court the amount of such loss,
with costs, and may punish him for contempt if
he disobeys the order.

SECTION ,l9. HOW PROPERry SOLD ON SECTION 21. JUDGMENT OBLTGEE AS

EXECUTION; WHO MAY DTRECT MANNER PURCHASER
AND ORDER OF SALE
When the purchaser is the judgment obligee,
All sales of property under execution must be and no third party claim has been filed, he
made: need not pay the amount of the bid if it does
1. At public auction; NOT exceed the amount of his judgment. lf it
2. To the highest bidder; does, he shall pay only the excess.
3. To start at the exact time fixed in the
notice. SECTION 22. ADJOURNMENT OF SALE
r After sufficient property has been sold
r
to satisfy the execution, NO more shall lF with written consent of the judgment
be sold and any EXCESS shall be obligor and obligee: To any date and time
promptly delivered to the judgment agreed upon.
obligor or his authorized
r lF without such agreement: From day to
representative, unless otherwise day if it becomes necessary to do so for
directed by the judgment or order of lack of time.
the court.
SECTION 23. CONVEYANCE TO
PURCHASER OF PERSONAL PROPERTY

be confirmed by
the court in order to
Need not be confirmed divest the rights in the
by the court property of the parties
and to vest the rights in

There is no riqht of
redemption, exceptby
Right of redemption the mortgagor where
exists the mortgagee is a
bank or a banking
institution

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SECTION 25. CONVEYANCE OF REAL the judgment debtor of any further rights to the
PROPERTY; CERTIFICATE THEREOF property.
GIVEN TO PURCHASER AND FILED WTH
REGISTRY OF DEEDS Right of Redemption:
1. Personal Property NONE; Sale is
CONTENTS of the certificate of sale: ABSOLUTE.
1. A particular description of the real property 2. Real Property -' There is a right of
sold; redemption.
2. The price paid for each distinct tot or
parcel; Who may redeem (Sec.27):
3. The whole price paid by him; and 1. Judgment obligor, or his successor rn
4. A statement that the right of redemption interest, in the whole or any part of the
expires one (1) year from the date of the property;OR
registration of the certificate of sale. 2. Redemptioner who is a creditor having a
lien by virtue of an ATTACHMENT
Note: Confirmation of the sale is not needed JUDGMENT oT MORTGAGE on the
unlike in judicial foreclosure of mortgage. The property sold, SUBSEQUENT to the lien
certificate of
sale is
merely provisional under which the pi'operty was sold.
(Raymundo v. Sunico, G.R. No. 8241, Sept.
27, 1913). Note: lf his lien is PRIOR to the judgment, he
is not a redemptioner because his interests in
May the validity of an auction sale be his lien are fully protected (relate to'Section
attacked? 12).

General Rule: NO
because of
the When can redemption be made (Sec.28):
presumption of regular performance of duty by A. BY THE JUDGMENT OBLIGOR:
the sheriff. Within one (1) year from the date of
registration of the certificate of sale.
Exception: B. BY THE REDEMPTIONER:
1. When from the nature of the irregularity or Within one (1) year from the date of
from intrinsic facts, injury resulted registration of the certificate of sale if he is
therefrom (Navano vs. Navarro, 76 phil. the first redemptioner; or
122).
Within sixty (60) days from the last
2. When the price obtained is shockingly redemption, if he be a subsequent
inadequate and it is shown that a better redemptioner, provided that the judgment
price can be obtained at a resale (Barrozo debtor has not exercised his right of
vs. Macadaeg, 83 Phit. 378). redemption.

Exception to the Exception: The rule that BUT, in all cases the judgment obligor shall
you can question the validity of the auction have the entire (1) year from the
gle if the price obtained is shockingly date of to redeem
inadequate does not apply when the property
sold is realproperty.
*
SECTION 26. CERTIFICATE OF SALE ffiffi &*eaW{
WHERE PROPERW CLAIMED BY THIRD
PERSON
.

The certificate of sale to be issued shall make

express mention of the existence of such third- not
party claim. may,

SECTIONS 27 &28= REDEMpTtoN

This right of redemption is transferable and

may be voluntarily sold, but it cannot be levied
upon by the judgment creditor so as to deprive

83
 REMEDIAL LAW
CIVIL PROCEDURE

Redemption Price (Sec.28) SECTION 29. EFFECT OF REDEMPTION BY

A. 8y The Judgment Obligor: JUDGMENT OBLIGOR, AND A
1. Purchase price; CERTIFICATE TO BE DELIVERED AND
2. 1% interest thereon, up to the time of RECORDED THEREUPON; TO WHOiI
redemption; PAYMENTS ON REDEMPTION MADE
3. Any amount of assessments or taxes
which the purchaser may have paid Redemption of the property sold under a
thereon after purchase and interest on foreclosure sale by the judgment mortgagor
such last named amount at the same eliminates from his title thereto the lien created
rate; and by the levy on attachment or the registration of
4. lF the purchaser be also a creditor the mortgage thereon (Javellana v. Mirasol,
having a prior lien to that of the G.R. No. L-14881, February 5,1920).
redemptioner, other than the judgment
under which such purchase was SECTION 30. PROOF REQUIRED OF
made, the amount of such other lien, REDEMPTION
with interest.
Redemptioner must produce to the officer, or
B. By The Redemptioner: person from whom he seeks to redeem, and
1. Amount paid on the last redemption; serve with his notice to the officer:
2. 2% interest thereon; 1. A copy of the judgment or final order
3. Any amount of assessments or taxes certified by the clerk of court wherein the
which the last redemptioner may have judgment or final order is entered; OR
paid thereon after redemption by nim 2. lf he redeems upon a mortgage or other
with interest on such last-named lien, a memorandum of the record thereof,
amount; and certified by the RD; OR
4. Amount of any liens held by said last 3. An original or certified copy of any
redemptioner prior to his own, with assignment necessary to establish his
interest. claim;OR
4. An affidavit executed by him or his agent
The redemption price for subsequent showing the amount then actually due on
' redemption shall be the same the lien.
(redemption price becomes higher and
higher). SECTION 31. MANNER OF USING
PREMISES PENDING REDEMPTION;
May redemption be paid in any form other WASTE RESTRAINED
than cash?
YES. The rule is construed liberally in allowing SECTION 32. RENTS, EARNINGS AND
redemption (to aid rather than def6at the rightJ
and it has been allowed in the case ol a
INCOME OF PROPERTY PENDING
REDEMPTION
cashieds check, certified bank checks and
even checks. Rights of the judgment debtor: (RE-UNUC)
1. Remain in possession of the property;
The offer to redeem must be accompanied 2.
with a bona fide tender or delivery of the
redemption price.

HOWEVER, a formal offer to redeem with a

tender is not necessary where the right to
redeem is exercised through the filing of a
complaint to redeem in the courts, within the
period to redeem.

Note: The periods for redemption in Sec. 2g

are not extendible or interrupted. The parties
may, however, agree on a longer peiioO ot
redemption but in such case, ii would be a
matter of conventionat redemption (Lazo v.
l."pyUic Surety & lnsurance Co., tnc., G.R.
No. 27365, Jan. 30, 1 970).

84
 5sn Prtu Gollege of {lh
201 1 CENTRALIZED BAR OPERATIONS

SECTION 33. DEED AND POSSESSION TO 2. ls evicted due to:

BE GIVEN AT EXPIRATION OF
REDEMPTION PERIOD; BY WHOM
EXECUTED OR GIVEN
The PURCHASER is entitled to
CONVEYANCE AND POSSESSION of the
property if there is no redemption made within
1 year from date of the registration of the
certificate of sale, or LAST REDEMPTIONER
whenever 60 days have elapsed and no other
redemption has been made.
He is substituted to and acquires all the rights,
title, interest and claim of the judgment obligor
to the property at the time of levy.
Two (21 documents which the sheriff
executes in case of real property:
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. tf after one (1)
year there is no redemption, a deed of
conveyance is executed. (Section 33)
o The deed of conveyance is what operates
to transfer to the purchaser whatever
rights the judgment debtor had in the
property. The certificate of sale after
execution sale merely is a memorial of the
fact of sale and does not operate as a
conveyance.
. The purchaser acquires no better right
than what the judgment debtor had in the
property levied upon" Thus, if the judgment
debtor had already transferred the
property executed prior to the levy and no
longer has an interest in the property, the
execution purchaser acquires no right
(Pacheco v.CA, G.R. No. L-48689,
August31,1987).
a. lrregularities in the proceedings
concerning the sale; or
b. Judgment has been reversed or set
aside; or
a c. The property sold was exempt from
execution; or
d. A third person has vindicated his claim
to the propefi.
When the sale was not effective under the
circumstances in this section, the
purchaser may:
1. File a motion in the same action or file a
separate action to recover from the
judgment creditor the price paid;
2. File a motion for revival of judgment in his
name against the judgment debtor; or
3. Bring an action to recover possession of
property.
SECTION 35. RIGHT TO CONTRIBUTION
OR REIMBURSEMENT
Contribution and reimbursement may be
obtained in a separate action, unless cross-
claims have been filed and adjudicated in the
same action, in which case, execution may
issue to compel contribution or reimbursement
(Feia, Civil Procedure Annotated, Vol. 2, 2001
Ed., p. 108}
Remedies of the Judgment Greditor in aid
of execution or if Judgment is not fully
Satisfied
1. lf the execution is retumed unsatisfied, he
may cause examination of the iudgment
debtor as to his property and income'
(Sec. 36)
2. He may cause exalnination of the debtor
of the as to any debt
of the

When a third person is in possession: The :in

procedure is for the court to order a hearing the
and determine the nature of such adverse the
possession.

SECTION 34. RECOVERY OF PRICE IF

SALE lS NOT EFFECTIVE; REVTVAL OF
JUDGMENT
of the
The purchaser may necover the purehase sufficient
price when:
1. The purchaser or his successor-in-interest
FAILS TO RECOVER pOSSESSTON of
the property; or

85
 REMEDIAL !.AW
CIVIL PROCEDURE

exempt from execution or forbid a transfer

or disposition or interference with such
property. (See.41) e.g. Iand registration e.9. accrcn
7. lf the court finds that the judgment debtor cases reinvindicatoria
has an ascertainable interest realin
property either as mortgagor, mortgagee, 2. Conclusiveness of Judgment also -
or otherwise, and his interest can be known as Estoppel by Verdict, or Estoppel
ascertained without controversy, the court by Record, or Collateral Estoppel by
may order the sale of such interest. (Sec. Judgment or Preclusion of lssues or Rule
42) of Auter Action Pendant. lt
covers
8. lf the person alleged to have the property paragraph (c).
of the judgment debtor or be indebted to
him, claims an adverse interest in the Public Policy Principle:
property, or denies the debt, the court may The inalterability of a final and executory
authorize the judgment-creditor to institute judgment. The decisions of the court must be
an action to recover the property, forbid its immutable at some definite period of time, no
transfer and may punish disobedience for matter how erroneous a judgment may be.
contempt. (Sec.43) Otherwise, there would be no end to litigation.

SECTION 44. ENTRY OF SATISFACTION Res Judicata (A Matter Adjudged)

OF JUDGi,IENT BY CLERK OF COURT
SECTION 45. ENTRY OF SATISFACTION
I'IIITH OR WTHOUT ADMISSION
SEGTION 46. WHEN PRINCIPAL BOUND BY
JUDGMENT AGAINST SURETY
It is a rule that a finaljudgment rendered by a
court of competent jurisdiction on the merits is
conclusive as to the rights of the parties and
their privies, and, as to them, constitutes an
absolute bar to a subsequent action involving
the same claim, demand or causes of action
(Black's Law Dietionary).

The principal is bound by the same jpdgment Requisites:

from the time he has notice of the action or 1. A FINAL judgment or order;
proceeding and has been given an opporlunity
at the surety's request, to join the defense.
2. JURISDICTION over the subject matter
and the parties by the court rendering it;
SECTION 47. EFFECT OF JUDGIUENT OR
3. Judgment UPON THE MERITS;
FINAL ORDERS
4. Between the two cases:
a. There is identi$ of PARTIES; and
This refers to judgments which are considered
b. ldentity of SUBJECT MATTER; and
as conclusive and may be rebutted direcfly by
c. ldentity of CAUSE OF ACTION.
means of relief from judgment or annulment of THERE IS IDENTIry OT CNUSC OF ACTION
judgment or indirecily by offering them in when the two actions are based on the same
evidence under the parole evidence rule.
delict or wrong committed by the defendant
even if the remedies are different.
Two Parts
1. Res Judicata * also known as Bar by
Former Judgment or Direct Estoppel by
Judgment. lt covers paragraphs (a) and
(b) of Section 47.

The decision is The judgment or final

conclusive upon title of order is conclusive
the thing, the will or between parties and
administration or the their successors in
condition, status or interest, litigating for
relationship of the the same thing and
person. under the same title
and in the same
caDacitv.

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 5en Fele @ollege of Lslr
2011 CENTRALIZED BAR OPERATIONS

Under the doctrine of res judicafa, no matter SECTION 48. EFFECT OF FOREIGN
how erroneous a judgment may be, once it JUDGMENT OR FINAL ORDERS
becomes final, it cannot be corrected.
Public Policy Principle: A judgment by a
Gonclusiveness of judgment court is enforceable only within its territorial
The issues actually and directly resolved in a jurisdiction.
former suit cannot again be raised in any
future case between the same parties Effect of Foreign Judgments
involving a different cause of action. Provided that the foreign tribunal had
jurisdiction:
r lt has the effect of preclusion only of 1. ln case of judgment against a specific
issues. thing, the judgment is conclusive upon the
. The parties in both actions may be the title to the thing; or
same but the causes of action are 2. ln case of a judgment against a person,
different. the judgmenlis presurnptive evidence of a
right as between the parties and their
successors-in-interest by a subsequent
title.
There is identity of There is ONLY
parties, subject matter identity of PARTIES There are two ways of giving effect to a foreign
and causes of action. AND SUBJECT judgment (a) an ordinary action to enforce the
MATTER. foreign judgment may be filed in court or (b) it
The first judgment The first judgment is may be pleaded in an answer or a motion to
constitutes as an ' conclusive only as to dismiss (Herrera, Remedial Law, Vol. ll, 2007
ABSOLUTE BAR TO matters directly Ed., p. 5*31).
ALL MAfiERS direcfly adjudged and actually
adjudged and those litigated in the first Note: ln BOTH instances, the judgment may
that might have been action. Second action be repelled by evidence Of (JN CFC)
adjudged. can be prosecuted. a. Want of iurisdiction;
It has the effect of It has the effect of b. Want of notice;
preclusion of claims. preclusion only of c. Qollusion;
issues. d. Fraud; or
e. Qlear mistake of law or fact.
Doctrine of law of the case - according to
this principle, whatever is once irrevocably
established as the controlling legal rule or
decision between the same parties in the case
continues to be the law of the case whether Three Modes of Appeal:
correct on general principles or not, so long as 1. Ordinary Appeal (Rule 40 and 41)
the facts on which such decision \ /as a. Notice on appeal
predicated continue to be the facts of the case
before the court. (RCPI vs. Coutt of Appeats,
G.R. /Vo. 139763, Aprit26, 2006)

Note: This rule DOES NOT AppLy to is ap#&#ffiffiffip;s612

resolutions rendered in connection with the
case wherein no rationale has been
expounded on the merits of that action
(Jarantilla v. CA, G.R. No. 80194, Mar. 21,
1ege).
poses
Sfare Decrsis
It means the decision of the court should stand
as precedents for future guidance.

judgment
to the

87
 REMEDIAL LAW
CIVIL PROCEDURE

Note: Only FlNALjudgments or orders can be
appealed as distinguished from interlocutory
judgments ororderswhich are not appealable.
Ordinary Appeal is an appeal by notice of
appeal from a judgment or final order of a
lower court on questions of fact and law.
r The right to appeal is not a natural right or
a part of due process. lt is merely
statutory privilege and may be exercised
only in the manner and in accordance with
the provisions of the law (producers Bank
of the Philippines ys. CA, GR No 126620,
Aprill7,2002).
Note: A question that was never raised in
the court below cannot be allowed to be raised
for the first time on appeal, without offending
basic rules of fair play, justice and due process
(Villanueva ys. Sps Satvador, G.R No.
*
139436, January 25,2006).
SECTION 1. WHERE TO APPEAL
motion for reconsideration (Neypes vs. CA,
G.R. No. 141524, September 14, 2005).
Ratio and Basis:
. Pursuant to its sole prerogative to amend
procedural rules, the SC deems it
necessary to change the afore-stated rule
in order to standardize the appeal periods
provided in the Rules of Court, to be
counted from receipt of the order denying
the motion for new trial dr motion for
reconsideration (whether full or partial or
any final order or resolution) and to afford
a litigants fair opportunity to appeal their
cases.
The fresh period shall apply to:
1. Rule 40
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45
Note: No motion for extension of time to file a
motion for new trial or reconsideration shall be
allowed. But if the appeal requires the filing of
a record on appeal, a motion for extension to
submit record on appeal is allowed.

Appeal to the RTG SECTION 3. HOW TO APPEAL

Mode of Appieat - Notice of Appeal within
fifteen (15) days from receipt of decision. A. By Notice of Appeal:
1. File a notice of appeal with the trial
Afier an appeal to the RTC has been court;
perfected, the MTC loses its jurisdiction over 2. The notice of appeal must indicate:
the case and any motion for the execution of
the judgment should be fited with the RTC.
a. Parties;
b. Judgment or final order appealed
from;
Note: The Rule on Summary procedure no c. Material date showing timeliness
longer applies when the case ij on appeal. ' of appeal.
SECTION 2. WHEN TO APPEAL
3. A copy served on the adverse party;
and
4- Pffifeesand
1. Within 15 days after notice of judgment or
final order;
2. Where a record on appeal is required,
with.in 30 days from notice of judgment or
final order by filing a notice of apleal and
a record on appeal.

Note: Sec. 2 of Rule 40 provides that the

period of appeal shalt be intem.rpted by a
timely motion for new trial or reconsideration.

But, under the ,,Fresh period Rule", a party

litigant may either fite his notice oi aipeat
within 15 days from receipt of the niC,s
decision or file it within 15 days from receiptof
the order denying his motion for new trial or

88
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APPEAL FROITIIMTC TO RTC

Notice and record on
appeal are filed with Appeai decision of MTC by filing notice of
the court of origin. appeal and pay within 15 days from
receipt of judgment.
The case was decided The case was decided
by the RTC pursuant by the RTC pursuant
to its original to its appellate
jurisdiction. The case jurisdietion
was originally filed in
15 days from perfection of appeal, MTC
the RTC.
clerk transmits record to RTC

MaterialData Rule
The notice of appeal must also be
Notice to parties that an appeal is being
accompanied by a statement of thematerial
taken from the decision of MTC
dates showing the timeliness of the appeal.

SECTION 4. PERFECTION OF APPEAL;

EFFECT THEREOF Within 15 days from notice of appeal:
r Appellant submits memorandum to the
Governed by the provisions of Section 9, Rule RTC
41. r Appellee files his own memorandum
15 days from receipt of appellants'
memnranrfirm
SEGTION 5. APPELLATE COURT DOCKET
AND OTHER LAWFUL FEES
lf uncontested, Any party may
Payment of appellate court docket fees is judgment is appeal by filing a
jurisdictional. Failure to do so is a ground for petition for
entered in the
dismissal of appeal (Sec.1c Rute S0). book of entries. review with the
cA.
However, non-payment of docket fees does
not automatically result in dismissal of appeal,
the dismissal being discretionary in the court if
there are justifications for non-payment SECTION 7, PROCEDURE IN THE
(Fontanarvs. Bonsubre, G.R. No. 56315, Nov. REGIONAL TRIAL COURT
25, 1986).
1. Upon receipt of the complete record or
SEGTION 6. DUTY OF THE CLERK OF record on appeal, clerk of court of the RTC
COURT shall notify the parties of such fact;
2. Within 15 days from such notice, it shall be
Within 15 days fom the perfection of the the duty of the appellant to submit a
appeal, the clerk of court or the branch clerk of
court of the lower court shall transmit the
original record or the record on appeal,
together with the transcripts and exhibits, to
the appellate courU RTC.

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SECTION 8.
APPEAL FROM ORDERS Gases wherc multiple appeals ane
DISMISSING CASE WITHOUT TRIAL; LACK allowed:
OF JURISDICTION L Specialproceedings;
2. Actions for recovery of property with
A, lf the lower court dismissed the case accounting;
without trial on the merits, RTC MAy: 3. Actions for partition of property with
1. Affirm, if ground of dismissal is lack of accounting;
jurisdiciion over the subject matter, the 4. Special civil actions of eminent
RTC, if it has jurisdiction, shafi TRy domain (expropriation) ;
the case on the merits as if the case 5. Special civil actions for foreclosure of
was originally filed therein; mortgage. (Roman Catholic
2. Reverce,in which case, it shall of Manita v. CA, 2Sg
Archbishop
remand the case for further scRA 186)
proceedings.
SECTION 1. SUBJECT OF APPEAL
B. lf the case was tried on the merits by
the lower court without jurisdiction Appealable Cases:
over the subject matter:
. RTC shall not dismiss the case 1. Judgments or final orders that completely
if it disposes of the case;
has original jurisdiction, but shall 2. A particular matter in a judgment declared
DECIDE the case, and shail ADMTT by the Rules to be appealable.
amended pleadings or additional
evidence. Non-Appealable Gases (PtDSES-D)
1. An order denying a getition for relief or any
SECTION 9. APPLICABILITY OF RULE 4{ similar motion seeking relief from
judgment;
By virtue of this provision, the inferior courts 2. An lnterlocutory order;
also exercise residual jur.isdiction in the same 3. An order glisallowing or dismissing an
manner provided under par. 5 Sec. g of Rute appeal;
41. 4. An order denying a motion to get aside a
judgment by consent, con6ssion or
compromise on the ground of faud,
mistake or duress, or any other ground
vitiating consent;
Note: As amended by A.M. No. 07_7_12 SC, 5. An order of gxecution;
effective December 27 ,2OOT o. A judgment or final order for or against
one or more of several parties or in
Three modes of appeal from decisions of geparate claims, counterclaims, cross-
the RTC claims and third parg complaints, while
1. Or(inary appeal or appeal by writ of error, the main case is pending, unless the court
where judgment was rendered in a civil or allows an appealtherefrom; and
criminal action by the RTC in the exercise An order glismissing an action without
of original jurisdiction;
2. Petition for review, where judgment was
rendered by the RTC in the exercise of
appellate jurisdiction; and
3. Petition for review on ceftiorari to the ##*q-ffi4xffi mp.f.Akru-
Supreme Court.

}e .nrs! mode of appeat, govemed by Rute

41, is taken to the Court of Appeils on
questions of fact or mixed questions of fact
and l"y, _T!e second mode of appeat,
covered by Rute 42, is brought to the Cdurt of
Appeals on questions of faci of law, or mixed which
questions of fact and law. The third mode leave
of
appeal, provided for by Rule 45, is elevated to
the Supreme Court only on questions of law.

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TAKE NOTE:
The term 'finalt has two (2) possible meanings
in Civil Procedure:
1. Flnal in the sense that is already it
executory and that happens if there is no File a notie of File a verified File a verified
appeal. And that is for purposes of appeal or a petition for petition for
applying rule 39 on execution. record on review with review on
2. Final in the sense that it is not merely appeal with the CA. Pay certiorari with
interlocutory because it completely the court of the docket the SC (RuIe
disposes of the case or a particular matter origin (RTC) and lawful 45l Pay docket
therein and there is nothing more for the and give a fees, and P and lawful fues
court to do after its rendition (Bairan vs. copy to the 500 as and P 500 for
adverse party. deposit for costs.
Tan Sui Lay, L-19460, Dec. 28, 1966).
costs with the
CA. Furnish Submit proof of
TEST for determining whether a judgment RTC and service of a
or order is final or interlocutory: Does lf adverse party copy to the
leave something to be done in the triat court copy ofsuch lower court and
with respect to the merits of the case? lf it (Rule 42).
adverse party.
does, it is interlocutory, hence, you cannot
Within 15 Within 15 Within 15 days
appeal yet; if it
does not, is final andit days from the days from from notice of
therefore you can appeal. (Reyes vs. De Leon, notice of the notice of the the judgment or
L-3720, June 24, 1952) judgment for decision to be order oi denial
notice of reviewed or of the MR or
. A judgment based on compromise is not appeal and from the new trial.
appealable and,is immediately executory. within 30 days denial of a
r This rule refers to appeals from RTC for records on MR or new
exercising ORIcINAL JURtSDICTION. An appeal. trial.
appeal on pure question of law CANNOT
be taken to the CA and such improper SECTION 3. PERIOD OF ORDINARY
appeal will be dismissed pursuant to Sec. APPEAL
2, Rule 50 (Regalado, F. Remediat Law
Compendium Vot 1. dn ed. p. 526). The appeal shall be taken within:
1. Fifteen (15) days trom notice of the
SECTION 2. MODES OF APPEAL judgment or final order appealed from;
2. Thirly (30) days from notice of the
judgment or final order where a record on
appeal is required;
3. Forty-eight (48) hours from notice of the
judgment or final order appealed from in
Case is Case is
habeas corpus cases.
Case is
decided by the decided by decided by the
RTC in its the RTC in RTC, CA, CTA DOCKET
original the exercise and
jurisdiclion. of its Sandiganbayan
appellate
Appealed to iurisdiction. Appealed to
the CA. Petition for the SC.
review with
the CA.

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 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 6. RECORD ON AppEAL; FORM
AND CONTENTS THEREOF
'1. Full names of all the parties to the
proceedings stated in the caption of the
record;
2. lnclude the judgment or final order from
which the appeal is taken;
3. ln chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment for the proper
understanding of the issue involved;
4. Together with such data as will show that
the appeal was perfected on time
(Material Data Rute);
5. Every record on appeal exceeding 20
pages must contain a suUfect index.
SECTION 7. APPROVAL OF RECORD ON
APPEAL
Procedure if the appeal is through a record on
appeal:
1. File record on appeal;
2. Appellee may file an objection within five
(5) days from his receipt thereof;
-
3. lf there is no objectionihe court may:
a. Approve it as presented; OR
b. Direct its amendment on its own or
upon the motion of the adverse party.
4, lf an amendment is ordered the appellant
must redraft the record within the time
ordered or if there is no time, within ten
(10) days from receipt;
5. Submit the record for approval with notice
on the adverse party.
SECTION 8. JOINT REGORD ON APPEAL
Where both parties are appellants, they may
file a joint record on appeal within the time
provided.
perfection of the appeal filed in due time and
the expiration of the time to appealof the other
parties.
ln APPEALS BY RECORD ON APPEAL, the
court loses jurisdiction only over the subject
matter thereof upon approval of the records on
appeal filed in due time and the expiration of
the time to appeal of the other parties.
Residual power of the court afier losing
jurisdiction but prior to the transmittal of the
original record or record on appeal: [O PAPAI
1. Qrder execution pending appeal under
Rule 39, Sec.2 (motion for execution was
filed before the expiration of the period to
appeal);
2. To issue orders for the preservation of the
rights of the parties which do not involve
' matters litigated by appeal;
3. To gpprove compromise prior to the
transmittal of the record;
4. lermit appeal by an indigent;
5. {llow withdrawal of the appeal.
Duration of Residual Powerc
Until the records are Until the Court of
transmitted to the
appellate court.
Appeals gives due
course to the petition.
SECTIOITI DUTY OF THE GLERK oF
COURT OF'0.
THE LOWER COURT
Within 30 days after perfectio-n of the appeat, it
shall be the duty of the clerk of court:
1. To verify the correctness of the original
reeord or record on appeal, as the case
may be, and to make certification of its

SECTION 9. PERFECTION OF APPEAL;

EFFECT THEREOF

Appeal is Deemed perfected

1. BY NOTTCE OF AppEAL: As to him, upon
the filing of the notice of appeal in bue
time; and
2. BY RECORD ON AppEAL:As to him, with
respect to the subject matter thereof, upon
the approval of the record on appeal filed
in due time.

Effect of a perfected appeal

ln APPEALS By NOTTCE OF AppEAL, the
court loses jurisdiction over the case upon the

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 , $cn 8e!s Gollege of {.ab
2011 CENTRALIZED BAR OPERATIONS
SECTION 11. TRANSCRIPT
Upon perfection of the appeal, the clerk shall
direct the stenographer concemed:
1. To attach to the record of the case 5
copies of the transcript of testimonial
evidence;
2. Transcribe such testimonial evidence;
3. Shall affix an index containing the names
of the witnesses and pages where their
testimonies are found; and
4. List of the exhibits and pages wherein
each appears.
SECTION 12. TRANSMITTAL
The clerk of the trial court shall transmit to the
appellate court the original record or approved
record on appeal:
1
2.
Within 30 days from perfection of appeat;
Proof of payment of the appellate court
docket and other lawful fees;
3. Certified copy of the minutes of the
proceedings;
4. Order of approval;
5. Certificate of correctness;
6. Original documentary evidence; and
7. Original and three (3) copies of the
transcript.
SECTION 13. DISMISSAL OF APPEAL
Prior to the transmittal of the original record or
the record on appeal, the trial court may, mofa
proprio or on motion disiniss the appeal for:
1. Having been taken out of time, or
2. Non-payment of the docket and other
lavyfulfees within the reglementary period.
The requirement regarding the perfection of
the appeal within the reglementary period is
not only mandatory but jurisdictional.
Nature: This mode of appeal is not a matter of
right. lt is a matter of discretion on the part of
CA on whether or not to entedain the appeal.
SECTION 1. HOw APPEAL TAKEN; TIME
FOR FILING
The party desiring to appeal from a decision of
the RTC rendered in the exercise of its
APPELLATE JURISDICTION may:
1. File a verified petition for review with the
CA:
a. Within 15 days from notice of decision;
or
b. Within 15 days denial of petitione/s
Motion for New Trialor MR.
2. Pay the corresponding docket and other
lawfulfees, depositing P 500;
3. Furnish the RTC and the adverse party
with a copy of the petition.
The CA may grant an additional period of 15
days within which to file the petition for review.
No further extension shall be granted except
for the most compelling reason and in no case
to exceed 15 days.
SECTION 2. FORM AND CONTENTS
The petition shall be filed in seven (7) legible
copies, with the original copy intended for the
court being indicated and shall:
1. State the full names of the parties to the
case;
2. lndicate the specific material dates
showing that it was filed on time;
3. Set forth concisely a statement of the:
a. Matters involved;
b. lssues raised;
c. Specification of errors of facl or law, or
both, allegedly commifted by the RTC;
and
d. Reasons or arguments relied upon for
the allowance of the appeal;
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 $m FeLs Gollrge of Leb
2011 CENTRALIZED BAR OPERATIONS
14. Employees Compensation Commission; r No further extension shall be granted
15. Agricultural lnventions Board; except for the most compelling reason and
16. lnsurance Commission; in no case shall exceed 15 days.
17. Philippine Atomic Energy Commission;
18. Board of lnvestments; SECTION 5. HOW APPEAL TAKEN
19. Construction lndustry Arbitration
Commission; and 1. By filing a verified petition for review in
20. Voluntary arbitrators authorized by law. seven (7) legible copies;
2. With proof of service of a copy thereof on
A party adversely affected by a decision or the adverse party and on the court or
ruling of the CTA may file with the Supreme agency a quo;
Court a verified petition for review on certiorari
pursuant to Rute 45 (Sec. 12, RA g2g2 and
3. Pay to the clerk of court of CA docket and
other lawfulfees; and
A.M. 07-7-12-SC). 4. Deposit the sum of P 500 for costs.
Note: The Court of Appeals has jurisdiction
over orders, directives and decisions of the
Offtce of the Ombudsman in administrative Decision is immediately
disciplinary cases only. lt cannot, therefore, executory; not stayed
review the orders, directives or decisions of by an appeal.
the Office of the Ombudsman in criminal and Factual findings are
non-administrative cases (Golangco vs. Fung, conclusive upon CA if
Office of the Ombudsman, G,R.-Nos i4764'G supported by
1 47762, October-l 2, 2006| substantial evidence.

Findings of fact of the agency concemed, SECTION 6. CONTENTS OF THE PETITION

when supported by substantial evidence, shall
be binding on the CA.
SECTION 2. GASES NOT COVERED
Judgments and final orders or resolutions of
the NLRC are reviewabte by the COURT OF
APPEALS in an original action for certiorari
under RuIe 65 (St Maftin Funeral Home vs.
NLRC, GR. No. 130A66, Sept.16,199B).
SECTION 3. WHERE TO APPEAL
Appeal under this Rule may be taken to the
CA within the period and in ihe manner herein
provided, whether the appeal involves
questions of fact, of law, or mixed question of
law and fact.
1. State the full names of the parties to the
case;
2. Set forth concisely a stalement of the facts
and issues involved and the grounds relied
upon for review;
3. Accompanied by clearly legible duplicate
originals or certified true copy of the
award, judgment, final order or resolution
appealed from;
4. Certificate of non-forum shopping; and
5. State the specific material dates showing
that it was filed on time.
SECTION 7. EFFECT OF FAILURE TO

SECTION 4. PERIOD OF APPEAL

Fifteen (15) days from:

1. Notice of the award, judgment, final order
or resolution; or
2, Date of publication, if publication is
by law for its effectivity; or
- lequired
3. p_e1i1l of petitioner's MNT or tr,tR (Onty 1
MR shatt be ailowed).

o The.CA may grant additionat 15 days only

within which to file the petition for ieview, petition
upon proper motion and payment in full of has
docket fee.

95
 REMEDIAL LAW
CIVIL PROCEDURE
original or a legible certified copy of the entire
record of the proceeding under review.
SECTION 12. EFFECT OF APPEAL
Generat Rule: Appeal shall NOT stay the
award, judgment, final order or resolution
sought to be reviewed.
Exception: When the CA shall direct
otherwise upon such terms as it may deem
just.
sEcTloN 13. SUBiIilSStON FOR DECIS|ON
Similar to Secfibn 9 of Rute 42.
SECTION 1. TITLE OF CASES
ln all cases appealed to the CA under Rule 41,
the title of the case shall remain the same but
party appealing the case shall be referred to
as appellant and the adverse party as the
appellee.
SECTION 2. COUNSEL AND GUARDIAN
Counsel and guardians ad litem in the court of
origin, shall be considered as such in the CA.
When others appear or are appointed, notice
shall be served on the adverse party and filed
with the court.
SECTION 3. ORDER OF TRANSMITTAL OF
RECORD
lf not transmitted within 30 days after
perfection of the appeal, either party may file a
motion with trial court, with notice to the other
for the transmittal.
SECTION 4. DOCKETING OF THE CASE
SECTION 5. COMPLETION OF RECORD
SECTION 6. DISPENSING WTH COMPLETE
RECORD
lf completion of the record cannot be
accomplished within a sufficient period due to
insuperable or extremely difficult cause:
1. The court on its own motion; or
2. On motion of any of the parties
96
. May declare that the record and its
accompanying transcripts and exhibits are
already sufficient to decide the issues.
SECTION 7. APPELLANT'S BRIEF
It shall be filed, within FORTY-FIVE (45)
DAYS from receipt of the notice of the clerk of
court that all the evidence is attached to the
record:
1. SEVEN (7) COPIES ofhis legibly
typewritten, mimeographed or
printed
brief; and
2. With proof of service of two (2) copies
thereof upon the appellee.
. Failure to file appellant's brief on time is a
ground for dismissal of the appeal.
o lf a motion to dismiss an appeal has been
filed, it suspends the running of the period
for filing the appellant's briel as the same
would be unnecessary should the motion
be granted.
. The failure of the appellant to make
specific assignment of errors in his brief or
page referenies to the record as re{uired
in this sec;tion is a ground for dismissal of
his appeal.
SECTION 8, APPELLEE'S BRIEF
It shall be filed similar to appellant's brief upon
receipt thereof.
SECTION 9. APPELLANT'S REPLY BRIEF
Within 20 days from receipt of the appellee's
brief, appellant may file a rdply brief answering
points not covered in his main brief.
SECTION 10. TIME FOR FILING
MEi'IORANDA IN SPEGIAL CASES
 Sstt Fela Gollege of I'lb
2011 CENTRALIZED BAR OPERATIONS

8. ln cases not br:ought up by record on

appedt, appellant's brief shall contain, as
an appendix, a gopy of the judgment or
Contents specified by Shorter, briefer, only final order aPPealed from.
Rules. one issue involved -
No subject index or
SECTION 14. CONTENTS OF APPELLEE'S
assignment of enors
just facls and law BRIEF
applicable. 1. Subjec't index of the matter in the brief with
a digest of the arguments and Page
SECTION {1. SEVERAL APPELLANTS OR
references, and a table of cases
APPELLEES OR SEVERAL COUNSEL FOR
alphabetically arranged, textbooks and
statutes cited with references to the pages
EACH PARTY
where they are cited;
Several appellants or appellees each counsel 2. Under the heading "statement of Facts',
representing one or more but not all of them -
appellee shall state that he accepts the
siatement of facts in the appellanfs brief,
shall be served with only ONE (1) copy of the
briefs.
or under the heading 'Counter-Statement
of Facts", point out such insufficiencies or
Several counsels represent one appellant or inaccuracies as he believes exist in the
appellee, copies of the brief may be served appellant's statement of facts; and
upon any of them. 3. Under the heading "Argument," appellee
shall set forth his arguments in the case
SEGTION 12. EXTENSION OF TIME FOR on each assignment of error with page
FILING BRIEFS . references to the record' Authorities relied
upon shall be cited.
General Rule: NOT allowed.
SECTION 15. QUESTIONS THAT MAY BE
RAISED ON APPEAL,
Exception: For good and sufficient cause.
The appeal can raise only questions of law or
SECTION 13. CONTENTS OF
tuct that:
APPELLANT'S BRTEF (SAC FIARC)
1. Has been raised in the court below; and
1. Subject index of the matter in the brief with
2. Which is within the issues framed by the
parties.
a digest of the arguments and Page
references, and a table of cases
Rule: The reversal of a judgment on appeal is
alphabetically arranged, textbooks and
generally binding only on the parties. in the
statutes cited with references to the pages
where they are cited;
ippeatei case and does not affecl or inure to
the benefit of those who did not join or were
2, lssignment of errors; not made parties to the aPPeal.
3. Under heading of "Statement of the gase",
clear and concise statement of the nature
of the action, summary of the proceedings,
appealed rulings and orders of the court,
nature of the judgment and any matters
necessary to an understanding of the t^fr".ffi,ffiH ffiW *&W:€
nature of the controversy;
Under the heading "statement of facts,'
clear.and concise statement in a narrative
form of the facts admifted by both parties
and ofthose in controversy;
5. Clear and concise statement of the lssues
of fact or law;
6. Under the heading "$rgument," appellant's
arguments on each assignment of error.
Authorities relied upon shallbe cited;
7. Under the headin$ '$elief," specification of
the order or judgment which the appellant
seeks; and

97
 REMEDIAL LAW
CIVIL PROCEDURE

Note: The petition shall raise ONLY

QUESTIONS OF LAW which must be
distinctly set forth.

RTC, Sandrgan bayan, CTA or

CA renders decision Doubt or controversy or difference as
as to what the law is on to the truth or.
certain facts. falsehood of facts, or
as to probative value of
Any party files a pelition for review on the evidence
certiorari within 1S days from notice of
final judgment or order of lower court or lf the appellate court The determination
notice of denial of motion for can determine the involves evaluation or
reconsideration or new trial. issue raised without review of evidence.
reviewing or evaluating
the evidence.
Can involve questions Query invites
of interpretation of the calibration of the whole
Appellant serves copies of petition on lawwith respect to evidence considering
adverse parties and to the lower court, certain set of facts. mainly the credibility of
and pay the conesponding docket fees. witnesses, existence
and relevancy of
specific surrounding
circumstances and
relation to each other
SC may dismiss the petition or require
and the whole
the,apDellee to comment.
probabilities of the
situation.

General Rule: The findings of f;act of the CA

are final and conclusive and cannot be
reviewed on appealto the SC.

Exceptions to Conclusivenesi of Facts

Sq affirm, reverse, or modi!
m_ay 1. When the finding is grounded entirely on
iudqment of the lower court. specul ations, su rmise or conjectu re;
2. When inference made is manifesfly
SECTION 1. FILING OF PETITION wlTH absurd, mistaken or impossible;
SUPREME COURT 3. When the judgment is premised on a
m isreprese ntation of facts;
Appeals to the SC can be taken from a
4. When there is grave abuse of discretion in
judgment or final order or resolution the appreciation of facts;
of the CA, A
S31{tOanbayan, the Court of Tax Appeats, When the findings of fact are conflicting;
]fre When the CA in making its findings wenf
the RTC or such other courts as 'mavbe 6.
authorized by law and only by verified pefiiion
for review on certiorari.

The petition may include an application for a

writ of preliminary injunction otheror
provisional remedies. The petitioner may
seek
!19Lry" provisionat remedies by VEitFtED
MOTION filed in the same action or
proceeding at any time during its pendencv
/as
amended by A.M. 07-7-12-SC).

EXCEPT as provided in criminal cases in Sec

13(c) Rule 124 in retation fo Sec 3(e) Rute
122, whenever the CA imposes iectusion
perpetua, life imprisonmeni or a
lesser
pel?Ltyr judgment may be appeated to the SC
by NOTICE OF AppEAL filei'with the CA.

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 gstl Ftta €ollege
2011 CENTRALIZED BAR OPERATIONS
contradicted by the evidence on record;
and
11. When certain material facts and
circumstances have been oyerlooked by
the trial court which, if taken into account,
would after the result of the case in that
they would entitle the accused to
acquittal.
SECTION 2. TIME FOR FtLlNc; EXTENSTON
Within 15 days from notice of the judgment or
final order or resolution appealed from or
denial of the petitioner's motion for new trial or
MR filed in due time.
The SC may for justifiable reasons grant an
extension of 30 days only within which to file
the petition.
SECTION 3. DOCKET AND OTHER
LAWFUL FEES; PROOF OF SERV|GE
Unless he has theretofore done so, petitioner
shall pay the corresponding docket and other
lawful fees to the clerk of court of SC and
deposit P500 for costs.
Proof of service of a copy thereof on the lower
court concerned and on the adverse party
shall be submitted together with the petition.
SECTION 4. CONTENTS OF THE PETITION
1. State the full names of the appealing party
as the petitioner and the adverse party as
respondent,
2, lndicate the specific material dates
showing that it was filed on time;
3.' Set forth concisely a statement of the:
a. Matters involved;
b. Reasons or arguments relied upon for
the allowance of the appeal;
4. Accompanied by cteady legibte dupticate
original or certified true copy of the
judgment or final order or iesolution; and
5. Certificate of non-forum shopping.
SECTION 5. DISMISSAL OR DENIAL OF
PETITION
1. Failure of the petitioner to comply with any
of the foregoing requirements;
2. Appeal is without merit; or
3. ls prosecuted manifesfly for delay; or
4. That the questions raised therein are too
unsubstantial to require consideration.
of {,^rb
Note: SC may dismiss the petition motu
proprio.
SEGTION 6. REVIEW DISCRETIONARY
Review will be granted only when there are
special and important reasons therefore.
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of
the reasons which will be
considered:
a. Court a quo has decided a question of
substance, not theretofore determined by
the SC, or has decided it in a way
probably in accord with law or with the
applicable decisions of the SC; or
b. Court a gao has so far departed from the
accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervisibn.
SECTION 7, PLEADINGS AHD
DOCUMENTS THAT MAY BE REQUIRED;
SANCTIONS
For purposes of determining Sec. 5 or Sec. 4
SC may require or allow the filing of such
pleadings, briefs, memoranda or documents
within such periods and under such conditions
as it may consider appropriate.
SC may impose the corresponding sanctions
in case of non-filing or unauthorized filing or
non-compliance with the conditions.
SEGTION 8. DUE COURSE; ELEVATION OF
RECORDS
SECTION 9. RULE APPLICABLE TO BOTH
99
 REMEDIAL LAW
CIVIL PROCEDURE

Directed The court is in The Court is in

against an the exercise the exercise of Court
lnvolves the lnvolves the interlocutory of its appetlate its appellate exercises
review of order of the jurisdiction jurisdiction and original
review of the
judgment judgments, court or where and power of power of jurisdiction.
final orders or there is no review. review.
award or final
order on the resolutions of appeal or any
merits. COMELEC other plain, The petition
and COA. speedy or The petition The petition shall be filed
adequate shall be filed shall be filed with the RTC,
remedy. with the with the cA,
Supreme Supreme Sandiganbayan
Filed within 15 Filed within 30 Filed not later Court. Court. and
days from days from than 60 days COMELEC.
notice of notice of from notice of
judgment, judgment, final judgment,
final order or order or order or
Note: Rule on Writ of Amparo and Habeas
resolution resolution resolution Data
appealed sought to be sought to be
ftom. reviewed. reviewed. Any party may appeal from the finaljudgment
Shail not stay
or order to the Supreme Court under Rule 45.
Unless a writ
the execution of preliminary
The appeal may raise questions of fact or law
Stays the unless SC injunction or or both. The period of appeal shall be five (5)
judgment or shall direct temporary working days from the date of notice of the
order otherwise restraining judgment or order.
appealed upon such order is issued
from. terms as it does not stay
may deem, the challenged
just. proceeding.
The judge,
SECTION 1. TITLE OF CASES.
The appellant court, quasi-
and the judicial ln all cases originally filed in the CA, the party
appellee are The
COMELEC agency, instituting the action shall be called petitioner
the original tribunal, and the opposing party the respondent.
parties to the and COA shall
be public corporation,
action, and
the lower respondents board, officer
or person
sEcTroN 2. TO Wnar AcTtoNs
court or quasi- who are APPLICABLE.
impleaded in shall be public
judicial
the action. respondents
agency is not who are Original actions for
impleaded. impleaded in
the action.
Motion for
reconsideration
or for new trlal #{}L{*ffq$h
The filing of a is required;
motion for lf a motion for
reconsideratio reconsideration
Motion for n or new trial, or new trial is
reconsideration if allowed filed, the
is not under the period shall
required. procedural not only be
rules of the interrupted but
Commission, another 60
shall interrupt days shall be
period fixed. given to the
petitioner. (SC
Admin. Mafter
 $en Fell @oUegt ot Aab
2011 CENTRALIZED BAR OPERATIONS

5. ln actions filed under Rule 65, indicate the
material dates showing when notice of the
judgment or final order or resolution was
received;
6. Filed in seven (7) legible copies, with proof
of service on the respondent;
7. Accompanied by clearly legible duplicate
original or certified true copy of the
judgment or final order or resolution;
8. Gertificate of non-forum shopping;
9. Payment of docket and other lawful fees;
and
10. Deposit the amount of P500.
r Failure to
comply with the foregoing
requirements shall be sufficient ground for
the dismissal of the petition.
Substantial Compliance Rule
Rule 46 applies to actions for ceftiorarifiled in
the Court of Appeals but Rale 65 generally
supplements the same. Mere duplicate
originals are sufficient under Rule 46 even if
Rule 65 requires only certified true copies
(Republic v. Carmel Development, lnc., G.R.
No.1 42572, Feb. 20, 2002).
4. Court may require the filing of a REPLY or
. such other pleadings as it may deem
necessary;
5. Determination of FACTUAL ISSUES, the
court itself may conduct hearings or
delegate the reception of evidence on
such issues to any of its members or to an
appropriate court, agency or office (Sec.
and
6,);
6. Submission of Memoranda.
Note: The reception of evidence'may be
delegated to a member of the Court of
Appeals or a judge of the lower court who is
not a public respondent.
SECTION 7. EFFECT OF FAILURE TO FILE
COMMENT
The case may be decided on the basis of the
record, without prejudice to any disciplinary
action which the court may take agalnst the
disobedient party.

SECTION 4. JURISDICTION OVER SECTION {. COVERAGE

PERSON, HOW AGQUIRED
Annulment of judgment is a remedy in law
Jurisdiction ls Acquired independent of the case where the judgment
1. Over the PETITIONER - By filing of the sought to be annulled was rendered and may
petition; be availed of though the judgment has been
2. Over the RESPO/VDENf - By the service executed.
on the latter of the order or resolution
indicating the courts initial action on the Nature: lt is not a mode of appeal but an
petition or by his voluntary submission. independent civil action.
SECTION 5. ACTION BY THE COURT Where Filed:
The court may:
1. Dismiss the petition outright with specific
reasons for such dismissal; or
2. Require the respondent to file a comment
on the same.

SECTION 6. DETERMINATION OF
FACTUAL ISSUES

Procedural outline (original cases in the

court of appeals)
1. Filing of the petition;
2. Order to acquire jurisdiction over
respondents OR outright dismissal for
failure to comply with the requirements as
to form and payment of docket and other this
legalfees; The trial in, or
3. Require respondents to file COMMENT relief against,
within ten (10) days from NOTICE;

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 REMEDIAL LAW
CIVIL PROCEDURE

3. Contents of the documents, which should SEGTION 8. PERFECTION OF APPEAL;

accompany the petition. EFFECT

SECTION 4. ACTION ON THE PETITION 1. Deemed perfected as to the petitioner

The CA may:
1. Require the respondent to file a comment
on the petition, NOT a motion to dismiss,
within 10 days from notice; OR
2. Dismiss the petition if it finds the same to
be:
a. Patently without merit;
b. Prosecuted manifesily for delay; or
c. The questions raised therein are too
unsubstantial to require consideration.
SECTION 5. CONTENTS OF COMMENT
Comment of the respondent shall be filed in
seven (7) legible copies, accompanied by
certified true copies of such material portions
of the record refened to therein together with
other supporting papers and shall: (AlR)
1" Strate whether or not he gccefts the
statement of matters involved in the
petition;
2. Point out such lnsufficiencies or
inaccuracies as he believes exist in
petitioner's statement of matters but
without repetition; and
3. Reasons why the petition should not be
given due course.
upon the timely filing of the petition for
review and payment of the coresponding
fees; and
2. Court loses jurisdiction over the case upon
perfection of appeal on time and expiretion
of the period to appeal.
Residual Power of the court before the CA
gives due course to the petition (Same as in
Sec. 9, Rule 41).
Except in civilcases decided under the Rule
on Summary Procedure, the appeal shall stay
the judgment or final order unless the CA, the
law, or these Rules shall provide otherwise
(Sec.8[b]).
SECTION 9. SUBMISSION FOR DECISION
lf the petition is given due course:
1. Case may be set for oral argument; or
2. The parties may be required to submit
memoranda within 15 days from notice;
3. Case shall be deemed submitted for
decision upon filing of the last pleading or
memorandum.

SECTION 6. DUE COURSE

.Petition for review is not a matter

of right but
discretionary on the CA. tt may onty giie due
course to the petition if it shows on its face
(CA finds prima facie) that the lower court has
commifted an error of fact and/or law that will
warrant a reversal or modification of the
decision or judgment sought to be reviewed.
sEcTtoN {. scoPE
Appeals from awards, judgrirents, final orders
or resolution of or authorized by any quasi-
judicial agency in the exercise of its quasi-
judicial functions.

SECTION 7. ELEVATION OF RECORD

The
It is merely discretionary on the CA to order entralB#$dffi
the elevation of the records. This is because
until the petition is given due course, the trial 4.
court may still issue a wanant of execution 5.
pending appeal and in some cases such as o.
ejectment and those of Summary procedure, 7.
the judgments are immediately exbcutory. 8,

It is only when the bn 0""r, it necessary that 9.

the Clerk of the RTC will be ordered to elivate 10.
the records ofthe case. 11.

12, under RA
665
13. GSIS;

94
 REMEDIAL LAW
CIVIL PROCEDURE

the questioned judgment or final order or the case with the active participation of
resolution through no fault attributable to him. said party invoking the plea (Tijam vs.
Sibonghanoy, G.R. No. L-21450, April 15,
lf he failed to avail of those other remedies 1968).
without sufficient justification, he cannot resort
to annulment provided in this Rule, otherwise Attack of a Void Judgment
he would benefit from his own inaction or When the judgment is null and void on its very
negligence. face, the judgment may be attacked:
1. DIRECTLY; or
Note: Annulment of Judgment does not apply 2. COLLATERALLY;
to judgments rendered by quasi-judicial
bodrbs. lt does nbt apply also to decisions or When the nullity is not apparent on the face of
orders of the Ombudsman in administrative the judgment, the judgment can only be
cases whose decisions or orders may be DIRECTLY attacked.
appealed to the Court of Appeals under Rule
43 (Macalalag v. Ombudsman, G.R. No" DIRECT ATTACK
147995, Mar.5,2A04. An independent action must be filed to
challenge the validity of the judgment whose
SECTION 2. GROUNDS FOR ANNULMENT nullity is not patent on its face.

1. Extrinsic fraud or collateral fraud; COLLATERAL ATTACK

Extrinsic or Collateral Fraud refers to any
fraudulent act of the prevailing party in the
litigation which is committed outside of the
trial of the case, whereby the defeated
party has been prevented from exhibiting
fully and fairly presenting his side of the
case.
A collateral attack is made when, in another
action to obtain a different relief, an attack on
the judgment is made as an incident in said
action. This is proper only when the judgment
is on its face null and void such as in cases of
lack of jurisdiction to render the judgment.
SECTION 3. PERIOD FOR FILING ACTION

Note: Extrinsic ftaud shall not be a valid

ground if it was availed of, or could have
been availed of, in a motion for new trial or
petition for relief. Before it is barred
by laches or
estoppel.
2. Lack of jurisdiction over the subject
Effect of
matter and over the person. Court may on Set aside the
judgment motion order the questioned
trial court to try judgment and
Lack of jurisdiction the case as if a render the same
The defense of lack of jurisdiction may be timely MNT had null and void,
barred by esfoppe/ by laches, which is that been granted. without prejudice
failure to do something which should be to the original
done or to claim or enforce a right at a being re-
proper time or a neglect to do something the proper
. which one should do or to seek or enforce
a right at a proper time.

Note: The rule is that jurisdiction over the

subject matter is conferred upon the courts
exclusively by law, and as lack of it affects
the very authority of the court to take
cognizance of the case, the objection may
be raised at any stage of the proceedings.

However, considering the facts and

circumstances of the present case, a party
may be baned by /aches from invoking
this plea for the first time on appeal for the
purpose of annulling everything done in

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 5sn 8e[s
2O1 1 CENTRALIZED BAR OPERATIONS
5. Certificate of non-forum shopping.
SECTION.5. ACTION BY THE COURT ' MUNICIPAL TRIAL COURTS
Two stages:
'1. A preliminary evaluation of the petition for
prima facie merit therein; and
2. The issuance of summons as in ordinary
civil cases and such appropriate
proceedings thereafter as contemplated in
Sec. 6 (Regalado, p.572).
The rule allows the CA to dismiss the petition
outright as in special civil actions.
For the court to acguire jurisdiction over the
respondent, the rule requires the issuance of
summons should prima facie merit be found in
the petition and the same is given due course.
Note: Res judicata is not a bar to an action
for annulment of the judgment sought to be
annulled (Orbeta v. Sendiong, G.R. No.
155236, July 8, 2005).
SECTION 6. PRObEDURE
Procedure in ordinary cases shall
observed.
The reception of evidence may be referred to
a member of the court or a judge of RTC.
SECTION 7. EFFECT OF JUDGMENT
SEGTION 8. SUSPENSION
PRESCRIPTIVE PERIOD
Prescriptive period for the re,filing of the
aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment.
HOWEVER, the prescriptive period shall not
be suspended where the extrinsic fraud is
attributable to the plaintiff in the originat action.
SECTION 9. RELIEF AVAILABLE
Judgment may include award of damages,
attorney's fees and other relief.
lf already executed, the court may issue
ORDERS OF RESTITUTION or other retief as
justice and equity may warrant.
@ollege ot Atb
SECTION 10. ANNULMENT OF
JUDGMENTSOR FINAL ORDERS OF
. Filed in the RTC having jurisdiction over
the MTC.
o RTC is a court of general jurisdiction. All
cases, the jurisdiction over which is not
specifically provided for by law to be within
the jurisdiction of any other court fall under
its jurisdiction (Durisol Philippines, lnc. vs.
CA, G.R. No. 121106, Feb.20,2002).
General Rule: Annulment of judgment is
available only to a litigant.
Exception: A person need not be a party to
the judgment sought to be annulled. What is
essential is that he can prove his allegation
that the judgment was obtained by the use of
fraud and collusion and he would be adversely
affected thereby (lslamic Da'wah Council vs.
Court of Appeals, G.R, No. 80892 September
29,1e.89).
Note: Where a petition for annulment of
judgment was dismissed by the Court of
be Appeals, the Supreme Court is without
jurisdiction to entertain another petition for
annulment in the guise of a special civil action
tor certiorari under Rule 65. The remedy of
the petitioner is to file a petition for review on
certiorari under Rule 45 (Lapu-lapu
Developmenf v. Rrsos, G.R. 118633, Sepf. 6,
1996).
OF
Nature: Preliminary conference before the
appellate court is not mandatory. lts calling is
within the discretion of said court.
which may
103
 REMEDIAL LAW
CIVIL PROCEDURE

Failure to appear at the preliminary conference
a
is ground for dismissal of the petition
(Sec.l[h], Rule 50; Sec SIeJ, Rule 56).
SECTION 2. RECORD OF
CONFERENCE
SECTION 3. BINDING EFFECT OF THE
RESULTS OF THE CONFERENCE
ln the CA, this procedural device may
availed of not only in original actions but also
in cases on appeal wherein a new trial was
granted on the ground of newly discovered
evidence.
The CA can act as a trier of facts. HENCE, the
preliminary conference authorized is a
convenient adjunct to such power and
function.
SECTION 1. WHEN ALLOWED
At its own instance or upon motion of a party,
the court may hear the parties in orit
argument on the merits of a case or any
material incident in connection therewith.
SECTION 2. CONDUCT OF ORAL
ARGUMENT
5. Failure of appellant to gerve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
THE 6. fbsence of specific assignment of errors
in the appellant's briel or of page
references to the record as required in Sec
13, par a, c, d and f, Rule 44;
7. Failure of the appellant to take the
lecessary steps for the conection or
be completion of the record within the time
limited by the court in its order;
8. Failure of the appellant to eppear at the
preliminary conference under Rule 48 or to
comply with the orders, circulars, or
directives of the court without justifiable
cause; and
L The fact that the order or judgment
appealed from is 4ot appealable.
Note: With the exception of Section 1 (b),
dismissal of an appeal is DIRECTORY and not
mandatory (Advincula v. lAC, G.R. No.75310,
Dec. 10, 1987).
OTHER GROUNDS for the dismissal of an
appealare: (AMF)
1. By ggreement of the parties, as where the
case was amicably seitled by them;
2, Where the appealed case has become
gqoot or academic; and
3. Where the appeal is frivolous or dilatory.

SECTION 3. NO HEARING OR ORAL

ARGUMENT FOR MOTIONS Not jurisdictionat,
maybe waived by the
Motions in the SC and the CA do not contain padies
notices of hearing as no oral arguments will be
heard in support thereof; anO if the appellate Results in
Decision becomes
abandonment of
court desires to hold a hearing thereon, it will FINAL AND
appeal, which could
itself set the date with notice to the parties. EXECUTORY upon
lead to D/SM/SSAL

APPEAL (RF-PUSANAN)
z.#&$fuffi&ff4or
L Failure of the gecord on appeal to show on
its face that the appeal was taken within
to it
the period fixed by these ruleg;
these
2. Failure to lile the notice of appeal or the
record on appeal within the period
prescribed by these rules;
3. Failure of the appellant to pay the docket
and other lawfulfees as provide in Sec. 5,
Rule 40 and Sec 4, Rule 41;
4. lnauthorized alterations, omissions or
additions in the approved record on appeal
as provide in Sec 4, Rule 44;

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 5un Fell
2011 CENTRALIZED BAR OPERATIONS
A resolution of the Court of Appeals dismissing
the appeal and remanding the case to the trial
court for further proceedings is
merely
INTERLOCUTORY. Hence, a motion for its
reconsideration filed year later may be
entertained and granted.
The Court of Appeals may dismiss the appeal
outright even without motion.
The remedy if dismissed for improper appeal:
To re-file it in the proper forum but has ta be
within the prescribed period.
SECTION 3. WTHDRAWAL OF APPEAL
A matter of right before the filing of
appellee's brief.
Note: While under this section, an appeal
may be withdrawn by the appellants as a
matter of right at any time before the filing of
the appellee's brief; however the rule does not
apply where the notice of withdrawal fited by
new counsel did not bear the appellant's
conformity (Pioneer Insurance and Surety
Corp. v. De Dios Transportation, G.R. No.
147010, July 18,2003).
SECTION 1. WHEN CASE DEEII'IED
SUBMITTED FOR JUDGMENT
A. ln ordinary appeals
1. No hearing on the merits - Upon the
filing of the last pleading, brief, or
memorandum; or expiration of
period for its filing;
2. -
Hearing is held Upon its termination
or upon the filing of the last pteading
or memorandum as may be required
or permitted to be filed by the court; or
expiration of the period for its filing;
B. ln original actions and petitions for review
1. No comment is filed - Upon expiration
of the period to comment;
2. No hearing is held - Same as in A(1);
3. Hearing is held - Same as in A(2).
SEGTION 2. BY WHOM RENDERED
Members who participated in the deliberation
on the merits of the case before its assignment
to a member for the writing of the decision.
Gottege of Lsb
SECTION 3. QUORUITI AND VOTING IN THE
COURT
To be binding, a judgment must be duly signed
and promulgated during the incumbency of the
judge who signed it.
Note: Where the decision was promulgated
after two of the three justices necessary to
conptitute a quorum in a division had lost their
authority to act as justices, said decision is nUll
and void (Lao v. To-Chip, G.R. No. 76594,
Feb.26, 1988).
SECTION 4. DISPOSITION OF THE CASE
the
SECTION 5. FORM OF DECISION
The requirement for the statement of facls and
the law refers to a decision or for that 4after a
final resolution. The same are not required on
minute resolutions since these usually dispose
of the case not on its merits but on procedural
or technical considerations.
With respect to petitions for review and
motions for reconsideration, the Constitution
merely requires a statement of the legal basis
for the denial thereof or refusal of due course
thereto. The court may opt, but it is not
required to issue an extended resolution
thereon.
Decisions and resolutions of a court in
appealed cases shall clearly and distinctly
state the findings of fact and the conclusions
of law on which they are based, which may be
the contained in the decision or final resolution
itself, or adopted by reference from those set
forth in the decision, order, or resolution
does
parties
of
105
 REMEDIAL LAW
CIVIL PROCEDURE

General Rulei The appellate court can only SECTION 2. SECOND MOTION FOR
rule on the basis of grounds raised as erors RECONSIDERATION
on appeal.

Exceptions:
The rules prohibit a second motion for
reconsideration by the SAME party.
1. Those affecting jurisdiction over the
subject matter; Note: The prohibition does not include
2. Evidently plain and clerical errors within v. CA, G.R. No.
interlocutory orders (Dizon
the contemplation of law; 96296, June 18. 1992).
3. ln order to subserve the ends of justice;
4. Matters raised in the trial court having SECTION 3. RESOLUTION OF THE MOTION
some bearing on the issue which the
parties failed to raise or which the lower Ninety (90) days from the date the CA
court ignored; and declares it submitted for resolution.
5. Matters closely related to an eror
assigned. This time limit applies only to MR in CA. lt
does not apply to MR in SC, pursuant to the
SECTION 7, JUDGMENT WHERE THERE exception in Sec. 2 (b), Rule 56.
ARE SEVERAL PARTIES
SECTION 4. STAY OF EXECUTION
SECTION 8. QUESTIONS THAT MAY BE
DECIDED

Unless assigned or closely-related to or

dependent on an assigned erior, no enor shall
be considered.
Exceptions:
1, Error in the jurisdiction over the subject
matter; or
2. Validity of the judgment appeated from or
the proceedings therein.
SECTION 9. PROMULGATION AND NOTIGE
OF JUDGMENT
ln justifiable situations or by agreement in the
division, the fiting of diss6ntiig or' ."p"r"t"
opinions may be reserved oi tne majority
opinion may be promulgated without preiuOice
to the' subsequent Esuance of 'a 'more
extended opinion, provided the requisite votes
tor promulgation of judgment irave been
obtained and recorded.
.SECTION 1. PERIOD FOR FILING; GROUND
Filing of a motion for new trial is at any time
after the perfection of the appeal from the
decision of the lower court and before the
Court of Appeals loses jurisdiction over the
case.
. The ONLY GROUND is rueWly
DISCOVERED EVIDENCE which coutd
not have been,discovered prior to the trial
in the court below by the exercise of due
diligence and of such character as would
probably alter the result thereof. A second
motion for new trial in the CA would not be
possible, unlike in Sec. 5 Rule 37.
Note: Rule 53 is not applicable to the SC. lt

SECTION 10. ENTRY OF JUDGMENTS AND

FINAL RESOLUTIONS

SECTION 1{. EXECUTION OFJUDGMENT

SECTION 1. PERIOD FOR FILING

. Within 15 days from notice.

o The rules now require the service of the
motion to the adverse party.

106
 9m Fell €ollege of Lslo
2011 CENTRATIZED BAR OPERATIONS

SECTION 4. PROCEDURE

SECTION 5. GROUNDS FOR DISilIISSAL OF

SECTION 1. DISTRIBUTION OF CASES
AMONG DIVISIONS
APPEAL (TM - PReGEN)
SECTION 2. QUORUi'I OF THE COURT
1. Failure to lake the appeal within the
reglementary period;
2. Lack of gqerit in the petition;
3. Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs;
SECTION ,l. PUBLTCATION 4. Failure to comply with the ggquirements
regarding proof of service and contents of
SECTION 2. PREPARATION OF OPINTONS and the documents which should
FOR PUBLICATION accompany the petition;
Failure to gomply with any circular,
SECTION 3. GENERAL MAKE-UP OF directive or order of the SC without
VOLUMES justifiable cause;
6. Error in the choice or mode of appeal; and
Official reports of court decisions which are 7. Fact that the case 4ot appealable to the
published by the Govemment and, therefore, sc.
constitute primary authority thereon, are those
in the Philippine Reports, Official Gazette and Note: The dismissal of the appeal may be
Court of Appeats Reports, all of which are motu proprio or on motion of the respondent.
authorized by law (Regatado, F. RemediatLaw
Compendium Vol1.9th ed. p.659). SECTION 6. DISPOSITION OF IMPROPER
APPEAL

lmproper appeal means the choice or mode

of appeal is correct but the appellant raises
issues which the court could not resolve (E g.
A. ORIGINAL CASES Where petition for review on cefiiorari was
taken but factual issues are invoked for
sEcTtoN 1. ORIGINAL CASES resolution).
OOGNIZABLE
ln this instance the case may be referred to
The rule specifically states what cases may be the CA, although the SC may also dismiss the
originally filed with the Supreme Court. appeal.
1. Petition for ceftiorari, prohibition,
mandamus, qua warranto, habeas corpus; Erroneous appeal means error in the choice
-
2. Disciplinary proceedings against members or mode of appeal.(F9,"*yy[ere appeal taken to
of the judiciary and attorneys;
3. Cases affecting ambassadors, other public
ministers and consuls; and
*1*,ll,ffisteadora
4. Petitions for writ of amparo and habeas ffi*",nln&{ti-,a ffiFgg,ffi
ffifff,,r#d3b-€-S## ffiS
a,ffi".
" trffi
A,",qWs"
data.

SECTION 2. RULES APPLICABLE

Rules 46, 48, 49, 51, 52 and 56 subject to

certain exceptions.

B. APPEALEDCASES

SECTION 3. MODE OF APPEAL toa

of
An appeal to the Supreme Cou.rt may be taken his
only by a petition for review on ceftiorari (Rule pending
45). p.a36).

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 REMEDIAL LAW
CIVIL PROCEDURE
The FOLLOWING are the provisionat
remedies provided for in the Rules of Court:
1. Preliminary Attachment (Rute S7);
2. Preliminary lnjunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60);and
5. Support Pendente Lite (Rule 61).
These provisional remedies are also available
in criminal cases (Ru/e 127), and in some
special civil actions and special proceedings.
Purpose of Provisional Remedies:
Provisional remedies are resorted to
litigants for any of the following reasons:
1. To preserve or protect the rights or
interests of litigants while the main action
is pending;
2. To secure the judgment;
3. To preserve the stafus quo; and
4. To preserve the subject matter of the
action.
OTHER PROVISIONAL REMEDIES
A. lssued by a family court
1. Temporary Custody of Minor Children
2. Order allowing Visitation Rights of
Parents
B. lnterim Reliefs in a Petition for a Writ of
Amparo
1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness Protection Order
Note; PD 1818 prohibits the issuance of
injunctive writs not only against govemment
entities but also against any person or entity
involved in the execution, implementation, and
operatjon of govemment inftastructure
projects.
. lnferior courts can grant all appropriate
pgovisional remedies, provided the main
case is within its jurisdiction (Sec. 33 [1]
BP 12e).
Preliminary attachment is a provisional
remedy issued upon order of the court where
an action is pending to be levied upon the
property of the defendant so that it may be
held as security for the satisfaction of
whatever judgment may be rendered in the
case (Davao Light and Power, lnc. v. CA, 204
scRA 343).
108
. Being provisional in
character,
attachment depends for its existence and
effectivity upon the pendency of a
principal action in court.
r lt does not affect the decision on the
merits; the right to recover judgment on
the alteged indebtedness and the right to
attach the property of the debtor are
entirely separate and distinct, and the
judgment in the main action neither
changes the nature nor determines the
validity of the attachment.
by
SECTION 1. GROUNDS UPON WHICH
ATTACHMENT MAY ISSUE
The proper party may have the property of the
adverse party attached at the commencement
of the action or at any time before entry of
judgment.
Parties entitled to attachment:
1. Plaintiff
2. Any proper party
The term plaintiff or "any other plaintif in
whose favor an attachment is granted under
the rule, includes also the defendant whenever
he asserts a counterclaim against the plaintiff,
whether or not such counterclaim arises out of
the same transaction which is the subject
matter of plaintiffs original claim. lt also
includes defendant in interpleader when he
asserts a counterclaim against the plaintiff; in
this case, he may attach the funds in dispute.
When issued: (REPoGReS)
1. ln actions for gqcovery of a specified sum
of money or damages, except moral and
exemplary, on a cause of action arising
delict or
of
taken,
property
 $un Fell GoIIep of Lcb
2011 CENTRALIZED BAR OPERATIONS

disposed of to prevent its being found by Remedial Law Compendium Vot 1. * ed., p.
the applicant or any authorized person; 622).
4. ln actions against a person guilty of fraud
in contracting the debt (dolo causante) or THREE (3) STAGES in the grant of
incurring or performing an obligation upon Preliminary Attachment
, which the action is based (dolo incidente); 1. The court issues the order granting the
5. ln actions against a
party who has application;
removed or disposed of his property, or is 2. The writ of attachment issues pursuant to
about to do so, with intent to defraud his the order granting the writ;
creditors; 3. The writ is implemented.
6. ln actions against non-residents not found
in the Philippines, or on whom summons Note: For the initial two stages, it is NOT
is served by publication. necessary that jurisdiction over the person of
the defendant be first obtained.
Note: The foregoing enumeration is
EXCLUSIVE. Except for No. 6, all the grounds HOWEVER, once the implementation of the
contemplate the commission of fraud by the writ commences, the court must have acquired
person against whom it is issued. jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority
Purposes; to act in any manner against the defendant
1. To seize the property of the debtor in (Mangila vs. CA, GR /Vo. 125027, August 12,
advance of final judgment and to hold it for 2002).
. purposes of satisfying the said judgment
(lnsular Bank of Asia and America v. CA, Methods to procure attachment:
t90SCRA 629);and a.'Writ may be prayed for in the complaint
2. To enable the court to acquire jurisdiction itself providing that allegations warranting
over the action by the actual or its issuance are made therein.
constructive seizure of the property in b. May be issued pursuant to a separate
those instances where personal service of motion for attachment whenever the writ
summons on the creditor cannot be is not prayed for in the original complaint
effecled.
SECTION 2. ISSUANCE AND CONTENTS
OF ORDER

lssued either ex-parfe or upon motion with

It is an auxiliary remedy
to give security for a
judgment still to be
rendered.
There is no sale
because a decision has
not yet been rendered.
Resorted to at the
commencement of the
action or at any time
before entry of
judgment, for the
temporary seizure of
property of the adverse
party.
notice and hearing by the court in which the
action is pending.
It is a means for the
execution of a final
judgment, However, when issued ex-parte, the writ
cannot be enforced and may not be validly
It should always be
accompanied by a sale
at public auction.
Available after the
judgment in the main
action had become
executory, and for the
satisfaction of said
judgment.

The proceeds of the The prooeeds ofthe

safe are in custodia sale are turned over to
. the aftaching creditor.
legis. the writ

Proceeding in aftachment is in rem where the

defendant does not appear, and rh personam
where he appears in the action (Regalado, F.

109
 REMEDIAL LAW
CIVIL PROCEDURE
the writ totally defective as the judge issuing it
acts in excess of jurisdiction
Ratio: No notice to the adverse party or
hearing of the application is required, as the
time which the hearing wiil entail could be
enough to enable the defendant to abscond or
dispose of his property before the writ issues
(Regalado, F. Remedial Law Compendium Vot
1. dh ed., p.624).
Contents of the Affidavit
1. A sufficient cause of action exists;
2. Case is one of those mentioned in Sec. i;
3. No other sufficient security for the claim
sought to be enforced by action;
4. Amount due to the applicant or possession
of which is entitled to recover is as much
as the sum for which the order is granted
above all legal counterclaims.
SECTION 4. CONDITION OF APPLICANT'S
BOND
Bond posted by the attaching creditor answers
for the damages and costs which may be
adjudged to the adverse party arising from and
by reason of the aftachment.
. SECTION 5.
MANNER OF ATTAGHING
PROPERTY (Rule on prior or
Contemporaneous Service)
Note: Levy shall not be made unless preceded
y contemporaneously accompanied by:
(scABo)
1. $ervice of summons,
2. A copy of the comptaint;
3. Application for attachment;
1 Affidavit and lond of the appticant; and
5. Qrder and writ of attachment.
BUT'prior or contemporaneous service of
summons shall NOTApply when:
1. Summons could not be served personally
or by substituted service;
2. Defendant is a resident of the philippines
tempor4rily absent therefrom;
3. Defendant is a non-resident; and
4. The action is one rn rem or quas-in rem.
Note: All properties exempt ftom execution
are likewise exempt from attachment (Sec. J
Rule 57;Sec. 73, Rute 39).
SECTION 6. SHERIFF'S RETURN
110
SECTION 7. ATTACHMENT OF REAL AND
PERSONAL PROPERTY
What may be the subject of attachment:
1. Real property or any interest therein;
2. Personal property capable of manual
delivery;
3. Stocks or shares or interest therein;
4. Debts and credits, 'including bank
deposits, financial interest, royalties,
commissions and other personal property
not capable of manual delivery; or
5. lnterest of the party against whom
attachment is issued in properg belonging
to the estate of the decedent, whether as
heir, legatee, or devisee.
Par. (3) and (4) refer to gamishment. By such
notice of gamishment, the court acquires
jurisdiction over the garnishee and the latter
becomes a foreed intervenor in the case.
Debt means some definite amount of money,
ascertained or capable of being ascertained,
which may be paid over to the sheriff or to the
court, while credits and perconal property
are something belonging to the defendant, but
in possession and under the control of the
garnishee (Feria, Civil Procedure Annotated,
Vol.2, 2001 Ed., p.294).
. Property legally attached is property in
custodia legrs and cannot be interfered
with without the permission of the proper
court, but this is confined to cases where
the property belongs to the defendant or
one in which the defendant has proprietary
interest.
Principle of Seniority of Liens
Where the property attached by the judgment
that of the
 $sn 8t!s GoIIrge ot Leb
2OI1 CENTRALIZED BAR OPERATIONS

(Perla Compania de Seguros v. Ramolete, 4. Attachment is gxcessive, but the discharge

GR. No. 60884, Nov.13,1991). shall be limited to the excess (Sec. 13);
and
SECTION 9, EFFECT OF ATTACHMENT OF 5. Property attached is g,xempt from
INTEREST IN PROPERTY BELONGING TO execution.
THE ESTATE OF A DECEDENT
An ex-pafte discharge or suspension of the
SECTION {0. EXAMINATION OF PARTY attachment is a disservice to the orderly
WHOSE PROPERTY IS ATTACHED AND administration of justice and nullifies the
PERSONS INDEBTED TO HIM OR underlying role and purpose of preliminary
CONTROLLING HIS PROPERW; DELIVERY attachment in preserving the rights of the
OF PROPERTY TO SHERIFF parties pendente /rte as an ancillary remedy.
.PROCEEDINGS
Note: The examination in Rule 39 is proper SECTION 14. WHERE
only when the writ of execution is returned PROPERTY CLAIMED BY THIRD PERSON
unsatisfied-
Remedy of the third person:
r Examination under this section is not 1. File a terceria or third party claim
subject to a preliminary condition but is (similarto Sec. 16, Rule 39);
anticipatory in nature and may be resorted 2. File independent action to recover
to even if the writ of aftachment was not his property; or
returned because no property could be 3. File a motion for intervention (Ihts is
found to be levied upon thereunder. availabld only before a iudgment ls
rendered, hence, not allowed under
lf the garnishee does not admit the Rule 39.).
indebtedness or he claims the property, the
controversy must be determined in an Note: A third-party claim may be filed with
independent action (Bucra Corp. v. Macadaeg, the sheriff while he has possession of the
84 Phit493). properties levied upon, this being the only time
fixed for the purpose (Mangaoang v. Provincial
SEGTION 11. WHEN ATTACHED Sheriff of La Union, G.R. No. L-4869, May 26,
PROPERTY MAY BE SOLD AFTER LEVY 1952).
ON ATTACHTUENT AND BEFORE ENTRY
OF JUDGMENT SECTION 15. SATISFACTION OF
JUDGMENT OUT OF PROPERTY
ln case the property attached is perishable in ATTACHED; RETURN OF SHERIFF
nature, or that the interests of all the parties
will be subserved. SECTION 16. BALANGE DUE COLLECTED
UPON AN EXECUTION; EXCESS
The proceeds will be in cusfodr'a /egrs. DELIVERED TO JUDGMENT OBLIGOR

SECTION 12. DISCHARGE OF

ATTAGHMENT UPON GIVING
COUNTERBOND

SECTION 13. DISCFTARGE OF

ATTACHMENT ON OTHER GROUNDS

Grbunds for discharge of preliminary

attachment: ICIJEEI
1. Debtor has posted a counter-bond or has
made the requisite cash deposit (Sec. 12);
2. Attachment was improperly or lrregularly
issued (Sec. 13) as where there is no
ground for attachment, or affidavit and/or
bond filed therefore are defective or ACHED
insufficient (Sec.3); IS FOR
3. i[udgment is rendered against the PARTY
attaching credltor (Sec. 19);

tlL
 REMEDIAL LAW
CIVIL PROCEDURE

SECTION 20. CLAIM FOR DAMAGES ON Preliminary Mandatory lnjunction (PMI) is

ACCOUNT OF IMPROPER, IRREGULAR OR an order requiring the performance of a
EXCESSIVE ATTACHMENT particular act or ac{s.

When must application for damages be

filed; Before the trial or before appeal is Purpose is to prevent a Purpose is to require a
perfected, or before the judgment becomes person from the person to perform a
executory. performance of a particular act.

tt shall be awarded after hearing and inctuded The act has already
in the judgment. been performed and this
lf the judgment of the appettate court be act has violated the
favorable to the party against whom the
attachment was issued, he must claim
damages during the pendency of the appeal.
Requisites: (lRU)
Procedure for claiming damages ouilined in
Sec. 20 is EXCLUSIVE. Hence, such claims
1. lnvasion of the right is material and
substantial;
for damages cannot be the subject of an 2. light of the complainant is clear and
independent action.
unmistakable; and
Exception: 3. prgent and paramount necessity for the
writ to prevent serious damages.
1. Where the principal case was dismissed
for lack of jurisdiction by the trial court lnjunction may be an action in itself, brought
without giving an opportunity to the party
whose property was attached to apply for
specifically to restrain or command the
performance of an act. As an action, it is
and prove his claim; and
immediately executory under Sec" 4, Rule 39.
2. Where the damages by reason of the
attachment was sustained by a third
person who was not a party to the action General rule: lt will not issue against acts
' wherein such writ was issued.
already consummated.

Note: Any award of damages for the Exception: lf the acts complained of are
wrongful issuance of a provisional remedy continuing in nature and were in derogation of
plaintiffs rights at the outset.
should be recovered in the SAME CASE. The
recovery of damages cannot be had in a Where writ is not available:
separate action.
1. Foreclosure of a mortgage by a
government bank (PD 385);
2. Commencement and performance of
infrastructure projects by the government
SECTION 1. PRELIMINARY INJUNCTION (RA 8795); and
DEFINED; GLASSES patents or

lnjunction is a judicial writ, process or

proceeding whereby a party is ordered to do or
reftain from doing a particular act.
#$L{*#{frffi #ffi **e\M
Preliminary lnjunction (pl) is an order
granted at any stage of an action or
proceeding prior to the judgment requiring a
party or a court, agency or a person to refiain
from a particular act or acts.

Purpose: To preserve the sfafus guo or to

prevent future wrongs during the pendency of
the main action.

172
 Seir Fels GoIIege sf Ilb
2011 CENTRALIZED BAR OPERATIONS

Note: lf the main ac-tion is one for injunction,

an inferior court cannot grant the preliminary
It may be the main Always the main action. injunction.
action itself or just a
provisional remedy.
Ratio: An action for injunction is one incapable
of pecuniary estimation, hence, cognizable by
the RTC.
Does not exceed 20
days. Limitations as to Power of RTC to lssue
Writ of Preliminary lnjunction
Restrains or requires the
performance 1, lt could restrain acts being or about to be
of committed within its tenitorial jurisdiction
particular acJs.
only;
2. It could not issue said writ in unfair labor
Status Quo means the last, actual, peaceable practices;
and uncontested state of things which 3. It could not issue said writ against the
preceded the controversy. Securities and Exchange Commission
(SEC), Bureau of Patents, Trademarks
Status Quo Order is not a TRO. lt is more in and Technology Transfer, or the
the nature of a cease and desist order. lt has COMELEC; ahd
no specified duration and does not specifically It could not interfere by injunction with the
direct the performance of an act. lt lasts until it . judgment of a court of concurrent or
is revoked. lts duration may even be subject to coordinate jurisdiction.
agreement of the pgrties. NO bond is required
for its issuanc"e. (Riano, 2009, Bar 2006) SECTION 3. GROUNDS FOR ISSUANCE OF
PRELIMINARY INJUNCTION
Note: lt is resorted to when the projected (EnGoD)
proceedings in the case made the
conservation of the status quo desirable or 1. is gtitled to the
Applicant relief
essential, but the affected party neither sought demanded; or
such relief nor did the allegations in his 2. @mmission, continuance or non-
pleading sufficiently make out a case for a performance of the act complained of
TRO. would work injustice to the applicant; or
Party, court, agency or a person is gloing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some
act or acts probably in viqlation of the
rights of the applicant respecting the
subject of the action or proceeding.
Good for 20 days
including the first 72 sEcTroN 4. TION AND
hrs. BOND toR

SECTION 2. WHO MAY GRANT

PRELIMINARY INJUNCTION person
before
1. Supreme Court in its original and appellate
jurisdiction;
2. Court of Appeals whether or not in aid of ! resuft
its appellate jurisdiction; can be
3. Trial court in cases pending before it within
its territorial jurisdic,tion; temporary
4. Sandiganbayan; and only for 20
5. Court of Tax Appeals. party sought

113
 REMEDIAL LAW
CIVIL PROCEDURE

B. IF the matter is of extreme urgency and such damages as he may suffer.

the applicant will suffer grave injustice and PROVIDED, the defendant files a BOND
ineparable injury: to pay all the damages which the applicant
o The judge may issue ex parfe a TRO may suffer.
effective only for 72 hours from
issuance. SECTION 7. SERVICE OF COPIES OF
. lts effectivity may be extended afier BONDS; EFFECT OF DISAPPROVAL OF
conducting a summary hearing Win THE SAME
the 72-hour period until the application
for preliminary injunction can be SECTION 8. JUDGMENT TO INCLUDE
heard. DAMAGES AGAINST PARTY AND
SURETIES
The total period of effectivity of the TRO shall
not exceed 20 days, including the 72 hours. The procedure for claiming damages on the
bond is the same as that in preliminary
Note: lf application is denied or not resolved attachment.
within said period, the TRO is deemed
automatically v acated. Recovery of damages for irregular issuance of
injunclion, as where the main €se is
The effectivity of TRO is not extendible. There dismissed and the injunction is dissolved, is
is no need of a judicial declaration to that limited to the amount of the bond.
effect.
. A TRO issued by the CA or any of its SECTION 9: WHEN FINAL INJUNCTION
members is effective for 60 days from GRANTED
notice to the party sought to be
enjoined. lf after the trial of the action it appears that the
r A TRO issued by the SC or a member applicant is entitled to have the act or acts
thereof is effective until further orders. complained of permanently enjoined.

lnjury is considered .tRREPARABLE" if it is of

such constant and frequent recurrence that no
fair or reasonable redress can be had
therefore in court of law or where there is no issued in the
standard by which their amount can be Granted at any stage of judgment in the case
measured with reasonable accuracy (SSC an action prior to the permanently restraining
Bayona, G.R. No" L-ISSSS, May 30,i5A4.
v. judgment or final order the defendant or
therein. making the preliminary
Note: The triat court, the CA, the
Sandiganbayan or the CTA that issued a writ
of preliminary injunction against a lower court,
!o"19, officer, or quasi-judiciat agency shail
decide the main case or petition iithin'six (6) SECTION 1. APPOINTMENT OF RECEIVER
months from the issuance of the writ (As
Amended by A.M. No. 07-7-12-SC effeciive or
Dec.27,2007). the
actionffif'6,#ffp6#ked by
SECTION 6. GROUNOS FOR OBJECTION tbe)4suq$ i$ ipqTHFs.iFqw
TO, OR FOR MOTION OF DISSOLUTION
OF, INJUNCTION OR RESTRAINING Ty or
ORDER: such
lost,
1. lnsufficiency; 3Sa
2. On other grounds upon affidavits of the
party or person enjoined, which may be the
op9s9d by the appticant atso by or
affidavits; and is
3. lf injunction would cause irreparable the
damage to the person enjoined wirite the agreed
applicant can be fully compensated for

It4
 9m Fels Gollege ot Ltrb
2011 CENTRALIZED BAR OPERATIONS

3. After judgment, to preserve the property SECTION 5. SERVICE OF COPIES OF

during the pendency of an gppeal or to BONDS; EFFECT OF DISAPPROVAL
dispose of it according to the judgment or
to aid execution; SECTION 6. GENERAL POWERS OF
4. \I/hen appointment of receiver is the most RECEIVER.
gonvenient and feasible means of
preserving, administering or disposing of Powerc of the Receiver lncludes:
the property in litigation. (BTRC2'MPD2|)
1. Bring and defend, in such capacity,
Note: The property must be under litigation. actions in his own name;
2. Take and keep possession of the property
Purpose: For the preservation of the property in controversy;
involved in the suit and to protect the rights of 3. [eceive rents;
all the parties under the direction of the court. 4. Qollect debts due to himself as receiver or
to the fund, property, estate, person, or
A receiver is a person appointed by the court corporation of which he is the receiver;
in behalf of all the parties to an action for the 5. Sompound for and compromise the same;
purpose of preserving the property involved in 6. flake transfers;
the suit and to protect the rights of all the 7. lay outstanding debts;
parties under the direction of the court (Mallari 8. pivide the money and other property that
v. CA, G.R. No. L-26467, Juty 15, 1981). shall remain among the persons legally
entitled to receive the same;
A receiver is not a representative party under 9. Generally to glg such acts respecting the
Rule 3 but a real party in interest, BUT he property as the court may authorize; and
cannot file a case without the consent of the 10. lnvest funds in his hands, only by order of
receivership court. the court upon the written consent of all
the parties.
o Receivership, like injunction, may be the
principal action itself or just an ancillary . No action may be brought by or
remedy. against a receiver without leave of the
. Such appointment of the RTC, during the court which appointed him.
perfection of an appeal, is covered by its
residual jurisdiction under Sec. 9 of Rule SECTION 7.'LIABILITY FOR REFUSAL OR
41 , since this does not involve any matter NEGLECT TO DELIVER PROPERTY TO
litigated by the appeal. RECEIVER

Note: This provisional remedy may be A person who refuses or neglects to deliver a
resorted lo during the pendency of an appeal property, within his control and which is the
or even after the judgment has become final subject of the action, to the receiver may be
and executory. punished for CONTEMPT and liable to the

SECTION 2. BOND ON APPOINTMENT OF

RECEIVER

SECTION 3. DENIAL OF APPLICATION OR

DISCHARGE OF RECEIVER

Receivership may be denied or lifted:

1. lf the appointment sought or granted is
without sufficient cause (Sec. 3,);
2. Adverse party files a sufficient bond to
answer for damages (Sec. 3,);
3. Bond posted by the applicant for grant of
receivership is insufficient (Sec. 5,); or
4. Bond of the receiver is insufficient (Sec.
5).

SECTION 4. OATH AND BOND OF

RECEIVER

115
 REMEDIAL LAW
CIVIL PROCEDURE

and may be recovered in a separate action
(De la Rosa & Co. v. De Borja, G.R. No. L-
28611, January 30, 1929). 3.
d. Actual market value of the property.
Applicant must give a bond, executed to
the adverse party and double the value of
the property.

SECTION 3. ORDER
SECTION 1. APPLICATION
SEGTION 4, DUTY OF THE SHERIFF
A writ of replevin must be applied for at the
commencement of the action or at any time
SECTION 5. RETURN OF THE PROPERTY
before the defendant files his answer, for
which reason there can be no replevin before
the appellate courts.
SEGTION 6. DISPOSITION OF PROPERTY
BY SHERIFF

The sheriff shall retain the property for five (5)

days. Within such period, the adverse party
when the principal recovery of property is
may object to the sufficiency of the applicant's
action is recovery of only incidental to the bond or surety or he may file a redelivery
bond.
Gan be sought only May be resorted to
when defendant is in even if the property is After five (5) days and the adverse party faited
actual possession of 'in possession of a third to object or his redelivery bond is insufficient,
the sheriff shall deliver the property to the
Cannot be availed of Can be availed of even applicant.
when property is in if property is in
custodia legis. custodia legis. DEFENDANT is ENTITLED to the return of the
property under a Writ of Replevin:
1. Seasonably posts a redelivery bond;
2. Plaintiff's bond is found to be insufiicient or
defective and is not replaced with proper
bond; or
3. Property is not delivered to the plaintiff for
any reason.
Note: There can be no replevin and
preliminary aftachment in the same case SECTION 7.
PROCEEDINGS WHERE
because the purposes are different. ln Rule PROPERTY CLAIMED BY THIRD PERSON
52, it is for security. ln Rute 60, it is for
recovery of possession. Similar as in third-party ctaims in execution
and in aftachment.
SEGTION 2. AFFIDAVIT AND BOND
Note: ln Secfion 14 of Rute 5Z the affidavit
Procedure for the application for Replevin:
1. File an application at the commencement
of the action or at any time before
defendant answers.
2. Application must contain an affidavit.

The affidavit MUST SHOW that:

a. Applicant is the owner of the property
claimed, particularty describing it, or is
entitled to the possession thereof;
b. Property is wrongfully detained by the
adverse party;
c. Property has not been distrained or
' taken for a tax assessment or a fine of the
pursuant to law, or seized under a writ in DOES
of execution or under custodia tegis; NOT nor does
and

116
 $sn Fsls @ollege of {.eb
2011 CENTRALIZED BAR OPERATIONS

the property, as they only hold the property
subject to the finaljudgment in the action.
Surety's liability under the replevin bond
should be included in the final judgment to
prevent duplicity of suits or proceedings.
Note: Where the right to support is put in issue
by the pleading or the fact from which the right
is in controversy or has not been established,
the court cannot grant support pendente lite
(Francisco v. Zandueta, G.R. No. L-43794
August 9, 1935).

r Provisions of Secfion 20 of Rule 57 are SECTION 2. GOMMENT

applicable not only to the replevin bond ol
the plaintiff but also to the redelrvery bond SECTION 3. HEARING
posted by the defendantfor the lifting of
the writ. SEGTION 4. ORDER

Note: The judgment may be in the Note: lncludes "other forms of support",
ALTERNATIVE, i.e., for the detivery of the meaning medical attendance, housing,
property to the party entitled to it, or for the cloth ing, education, etc.
value of the property in case the same cannot
be delivered plus damages. SECTION 5. ENFORCEMENT OF ORDER

Replevin Bond is simply intended to Failure to comply with an order granting

indemnify the defendant against loss that he support pendente lite may warrant:
may suffer by being compelled to surrender . The issuance of an ORDER OF
the possession of the disputed property EXECUTION against the non-complying
pending trial of the action. party; and
. May likewise make him liable for
Note: A writ of replevin may be served contempt.
anywhere in the Philippines.
Note: Support pendente lite is
INTERLOCUTORY, thus, the same may be
modified at any stage of the proceedings.
Support Pendente Lfie is an amount of SECTION 6. SUPPORT IN CRIMINAL
support provisionalty fixed by the court in favor
CASES
of the person or persons entifled thereto
during the pendency ol an action for support.
Att. 345 RPC, in crimes against chastity, "(3)
ln every case to support the offspring."
Note: Under Sec/lon 4 of Rule 39, the
judgment in an action for support is
SECTION 7. RESTITUTION
immediately executory.
Remedies of party who was enoneously
Where filed: lt is exclusively cognizable by a
compelled to
Family Court.
1. A
by
Except: ln criminal actions, where right to
support arises by reason of crime and as long
as the civil aspect is tried together with it, the
RTC and MTC having jurisdiction may atso
issue this remedy.

SECTION 1. APPLICATION

At the commencement of the action or at any

time before judgment or final order.

This provisional remedy is availablg ONLY /n

an Action for Support, or where one of the
reliefs sought is Support for the Appticant
(Coquia v. Baftazar, G.R. No. L-2942
December 29, 1949).

r77
r.18
REMEDIAL LAW
CIVIL PROCEDURE

1. To have the property

of the adverse party
attached as security
for the satisfaction of
judgment that may be
recovered in cases To place the property
falling under Sec. /, subject of an action or
To require a party or a
Rule 57. proceeding under the
court, agency or a person
2. To enable the court to control of a third party for To compel adverse party
to refrain from doing a To recover possession of
acquire jurisdiction its preservation and to provide support while
particular act or acts or to personal property.
over the action by the administration pendente action is pending in court.
require the performance of
actual or constructive /ife or as an aid to
a particular act or acts.
seizure of the property execution.
in those instances
where personal
service of summons
on the creditor cannot
be effected. M
qws
ffi
w
ffief. Tr'n r" t dS
e#
Personal and Real
ee'.sonffikffiotof: ffi
Property
Particular acUacts Personal and Real
Prooertv of manua&Wiverfu s wre5
itr"$frff"fuftYY*

w
ffiffi
At any time prior to q3
satisfaction of judgment. ;nt of
At the commencement of At the cor$
At any stage prior to the Note: /f rnay be availed of
the action or any time prior
judgment or final order. even afterjudgment
the actiorffi ffi ffiffiffiffiwd*ffi tor
ime
to the entry of judgment. answer ist ffi
becomes final under Sec.
41 Rule39 w. u'ffi1
&ffiT
ffi
w,
#p'"" "%\&

File affidavits and
applicant's bond.
Not required. May be
issyed ex parfe.
Courts where action is
pending, the CA or the
SC even if action is
pending in the lower court.
. Sufficient cause of
aclion;
o Case is covered by
Sec.l Rule 57;
o No other sufficient
security for the claim
exists; and
r Amount due to
119
File verified application
and applicant's bond; if
File verifi ed application
application is included in
and applicant's bond;
the initiatory pleading, the
application may also be File affidavits and File verified application;
adverse party should be
included in initiatory applicant's bond. bond not required,
served with summons pleading in actions for
together with a copy of the
foreclosure of mortgage.
initiatory pleading and the
applicant's bond
Required.
Except: Great or
irreparable injury would
result/ extreme urgency Not required. May be
and applicant will suffer issued ex parfe.
grave injustice and
irreparable injury (Sec. 5
Rule 58).
Court where action is
Only the court where the pending, the CA or the
action is pending; Lower
SC even if action is
ffi#&rnot
court, CA or SC provided pending in the lower court. {3tr fu&Bfe
action is pending in the
Appellate court may allow
same court which issues
application for receivership
the injunction. Also with
to be decided by the court
Sandiganbayan and CTA.
. Applicant is entitled to r Applicant has interest
the relief demanded; in the property or
. Act/s complained of fund, subject matter of
would work injustice the action or
to the applicant if not proceeding; entitled to
enjoined; and . Properly or fund is in
r Acts sought to be danger of being lost
or removed or adverse
9en 8dE @ollegt ot Lslo
2011 CENTRALIZED BAR OPERATIONS
720
REMEDIAL tAW
CIVIL PROCEDURE

property he is entitled violates applicant's . Property is not

to recover is equal to rights respec'ting the
the sum which the subject of the action
order of attachment is or proceeding;
grantbd. . Threatened injury
incapable of
pecuniary estimation.
Appointment of distrained or taken for
receiver is the most a tax assessment or a
convenient and fine pursuant to law.
feasible means of
preserving,
administering or
disposing of the
properg in litigation.

When third-party claimant When third-party claimant

makes an affidavit of his makes an affidavit of his
title to the property or his title.to the property or his
right to the possession right to the possession
thereof, and serves such thereof, and serve such
affidavit to the sheriff and affidavit to the sheriff and
a copy thereofto the a copy thereof to the
aftaching party, the sheriff attaching party, the sheriff
shall not be bound to keep
lhe property unless the
attaching party files a
bond approved by the s"l t;+*#ff5
court to indemnify the
third-party claimant in a w, ## g*ew
sum NOT LESS THAN
THE VALUE OF THE
PROPERry bvied upon.
. Claim for damages for the
taking or keeping the
property must be filed
within 120 days from filing
ofthe bond.

Bond executed to the adverse party in the amount fixed by the court to cover the costs
which may be adjudged to the adverse party and all damages that he may sustain by
reason of the granting of provisional remedy prayed for, if the court shall finally property to the
adjudge that the applicant was not entitled thereto. parg if such return

By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge of the
provisional remedy granieO Oy filing a counter-bond in an amount equal to that fix'ed by the court to the value of the
property if with reipect to a particular property to secure the payment of any judgment that the adverse party may
recover in the action.
Cash deposit may be
made in lieu of the
counter-bond.
Other grounds: improper
or irregular issuance or
enforcement or
insufficiency of bond.
tzt
payment to the adverse
party ofsuch sum as he
may recover from the
Not applicable.
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof would
cause ireparable damage 2 BOND requirement:
to the party or person 1. Bond filed by the Amount of counter-bond
enjoined while the applicant; and should also be double the
applicant can be fullY 2. Bond filed by the
compensated for such receiver.
damages as he may
suffer; counter-bond alone s&fld
will not suffice to discharge n\t\1
;.kF?:
€ *f
rt"a
r
the injunction.
Appointment was
lnsufficiency of the
obtained without sufficient
application.
cause.
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9sn Dell @ollegt of Aeb
2011 CENTRALIZED BAR OPERATIONS
122
REMEDIAL LAW
CIVIL PROCEDURE

When judgment or final

order finds the person who
has been providing
support pendenfe /ife not
liable therefor:

. Court shall order the

r Owner of the property attached must file before trial or before perfection of appeal or before judgment recipient to return the
becomes executory an application for damages. amounts already
r Party who availed of provisional remedy and his surety or sureties must be notified, showing right to received with interest
damages and amount thereof. from the dates of actual
. Damages awarded only after proper hearing; included in judgment of the main case. payment.
. Recipient may obtain
lf judgment of appellate court is favorable to the party against whom provisional remedy was effected: reimbursement from
the person legally
. Application must be filed with the appellate court before the judgment of the appellate court becomes obliged to give support
executory. (separate action must
r Appellate court may allow application to be heard and decided by the trial court.
. lf bond or deposit given by the party availing of the provisional remedy be insufficieffi fail to

.
award.
Adverse party may recover damages in the same action. "ffiff- *'& ffiffiffirse the
fl?*?**9"-ffi

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