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San Beda College of Law

10

MEMORY AID

IN

REMEDIAL LAW

CIVIL PROCEDURE
RULE 1 GENERAL PROVISIONS Statutes regulating the procedure of courts will be construed as applicable to actions pending and undetermined at the time of their passage so long as vested rights will not be impaired. Under the 1987 Constitution, the rulema ing power of the Supreme Court has the following limitations! 1. shall provide a simplified and ine"pensive procedure for the speed# disposition of cases$ %. Uniform for all courts of the same grade, and &. Shall not diminish, increase or modif# substantive rights '(rt. )*** Sec. +,+-.. Section 3. Cases governed. ACTION CLAI
(n ordinar# suit in a court of /ustice ( right possessed b# one against another

'3. ACTION IN RE
:irected against the thing itself

ACTION IN ACTION PERSONA #UASI IN RE


:irected against particular persons :irected against particular persons

4udgment is 4udgment is 4udgment binding on the binding onl# binding upon whole world upon parties particular impleaded or persons, but their the real motive successors in is to deal with interest real propert# or to sub/ect said propert# to certain claims. 5". ;and 5". action to 5". Unlawful registration recover detainer or case$ probate damages$ forcible entr#$ proceedings action for /udicial for allowance breach of foreclosure of of a will. contract mortgage.

0ne part# prosecutes 1he moment said another for the claim is filed before a enforcement or court, the claim is protection of a right converted into an or the prevention or action or suit. redress of a wrong.

1he distinction determining the /udgment. 'C. REAL ACTION

is important in 5885C1 of the

CLASSI!ICATION O! ACTIONS. '(. ORDINAR" CIVIL SPECIAL CIVIL ACTION ACTION


2overned b# ordinar# rules (lso governed b# ordinar# rules but SU345C1 to specific rules prescribed '6ules 7% to 71..

PERSONAL ACTION

I$ED ACTION

8ormal demand of Special features not one9s legal rights in a found in ordinar# civil court of /ustice in the actions manner prescribed b# the court or b# the law

0wnership or personal propert# is 3oth real and possession of sought to be personal real propert# is recovered or where properties are involved damages for breach involved of contract are sought 8ounded on 8ounded on privit# 8ounded on privit# of of contract both estate e". (ccion 5". (ction for a sum e". (ccion reinvidicatoria of mone# publiciana with a claim for damages

1he distinction is significant in the determination of venue. <ith respect to mi"ed actions, the rules on venue of real actions shall govern, i.e., where the real propert# is located.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


11

MEMORY AID

IN

REMEDIAL LAW

':. LOCAL ACTION


=ust be brought in a particular place, in the absence of an agreement to the contrar# 5". (ction to recover real propert#

TRANSITOR" ACTION
2enerall#, must be brought where the part# resides regardless of where the cause of action arose 5". (ction to recover sum of mone#

Section +. Constr,ction. Genera- R,-e* ;iberal construction . E.ce/tions* a. reglementar# periods b. rule on forum shopping RULE 0 CAUSE O! ACTION Section 0. Ca,se o' Action1 de'ined. Essentia- e-e&ents o' ca,se o' action 1. 5"istence of a legal right of the plaintiff$ %. Correlative legal dut# of the defendant to respect one9s right$ &. (ct or omission of the defendant in violation of the plaintiff9s legal right$ and ?. Compliance with a condition precedent. CAUSE O! ACTION RIG2T O! ACTION
delict or wrongful act remedial right or right or omission committed to relief granted b# b# the defendant in law to a part# to violation of the institute an action primar# rights of the against a person who plaintiff has committed a delict or wrong against him 1he reason for the the remed# or means action afforded or the conse>uent relief the formal statement right that is given @ of alleged facts the right to litigate because of the occurrence of the alleged facts :etermined b# facts determined b# as alleged in the substantive law complaint and not the pra#er therein

Section %. Co&&ence&ent o' action. An action is co&&enced ()* 1. filing of the complaint 'the date of the filing determines whether or not the action has alread# prescribed.$ and %. pa#ment of the re>uisite doc et fees 'determined on the basis of the amount of the claim including the damages indicated in bod# or the pra#er of the pleading. *t is not simpl# the filing of the complaint or the appropriate initiator# pleading but also the pa#ment of the prescribed doc et fee that vests a trial court with /urisdiction over the sub/ect matter or nature of the action. 1he court ma# allow the pa#ment of the deficient doc et fee within a reasonable period but not be#ond the applicable prescriptive or reglementar# period. (n action can be commenced b# filing the complaint b# registered mail. *n which case, it is the date of mailing that is considered as the date of filing, and not the date of the receipt thereof b# the cler of court. 1he date of the filing of an amended complaint /oining additional defendant is the date of the commencement of the action with regard to such additional defendant.

RELIE!

RE ED"

SU34ECT ATTER

the redress, the the thing, protection, procedure or wrongful act, award or t#pe of contract or coercive action which propert# which measure which ma# be is

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


12

MEMORY AID

IN

REMEDIAL LAW

the breach total,C hence there can onl# be one action for damages (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226.
the plaintiff pra#s the court to render in his favor as a conse>uence of the delict committed b# the defendant availed of b# directl# the plaintiff involved in the as the means action, to obtain the concerning desired which the relief wrong has been done and with respect to which the controvers# has arisen.

Section %. 4oinder o' ca,ses o' action. 6ule in this section is D56=*SS*)5 and the plaintiff can alwa#s file a separate action for each cause of action. Par. 7a8* 1he /oinder of causes of action ma# involve the same or different parties. *f the /oinder involved different parties, it must compl# with Sec. 7 6ule &, thus, there must be a >uestion of fact or law common to both parties /oined arising out of the same or series of transactions. Par. 7(8 re9,ires t6at: onl# causes of action in ordinar# civil actions ma# be /oined, obviousl# because the# are sub/ect to the same rules. Par. 7c8 (s long as one cause of action falls within the /urisdiction of the 61C, the case can be filed there even if the =1C has /urisdiction over the others. Pars. 7d8 e&(odies t6e TOTALIT" RULE Section 33 BP129, as amended by RA 7691 - <here 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 totalit# of the claims in all the causes of actions, irrespective of whether the causes of action arose out of the same or different transactions. SPLITTING O! 4OINDER O! CAUSE O! ACTION CAUSES O! ACTION
1here is a single cause Contemplates several of action causes of action D60E*3*15:. Causes multiplicit# of suits and double ve"ation on the part of the defendant 5AC0U6(25:. =inimiFes multiplicit# of suits and inconvenience on the parties

Section 5. S/-itting a sing-e ca,se o' action1 e''ect o'. SPLITTING O! CAUSE O! ACTION @ is the practice of dividing one cause of action into different parts and ma ing each part sub/ect of a separate complaint. (pplies A01 onl# to complaints but also to counterclaims and crossclaims. Re&ed) against s/-itting a sing-e ca,se o' action* (. =otion to dismiss on the ground of! ;itis pendentia, if the first complaint is still pending '6ule 17, Sec. 1,e-.$ or 6es /udicata, if an# of the complaints is terminated b# final /udgment '6ule 17, Sec. 1,f-. 3. (n answer alleging either of the above-cited grounds as affirmative defense '6ule 17, Sec. 7. Genera- R,-e on Divisi(-e Contract ( contract to do several things at several times is divisible, and /udgment for a single breach of a continuing contract is not a bar to a suit for a subse>uent breach. Doctrine o' Antici/ator) 3reac6 5ven if the contract is divisible in its performance and the future periodic deliveries are not #et due, if the obligor has alread# manifested his refusal to compl# with his future periodic obligations, Bthe contract is entire and

Section +. is:oinder o' ca,ses o' action. Aot a ground for dismissal of an action. ( mis/oined cause of action ma# be

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


13

MEMORY AID
severed and proceeded with separatel#. 1here is no sanction against non-/oinder of separate causes of action since a plaintiff needs onl# a single cause of action to maintain an action. RULE 3 PARTIES TO CIVIL ACTIONS Section 1. ;6o &a) /-ainti'' and de'endant. (e /arties<

IN

REMEDIAL LAW

the part# entitled to the avails of the suit.

*mpleading the beneficiar# as a part# in the suit is now mandator#, in cases allowed to be prosecuted or defended b# a representative. CLASSI!ICATION O! PARTIES IN INTEREST 1. Indis/ensa(-e /arties @ those without whom no final determination can be had of an action. 'must be /oined. %. Necessar) 7or /ro/er8 /arties @ those who are not indispensable but ought to be parties if complete relief is to be accorded as to those alread# parties, or for a complete determination or settlement of the claim sub/ect of the action. 'ma# or ma# not be /oined. &. Re/resentative /arties @ someone acting in fiduciar# capacit#. =a#be a trustee, guardian, e"ecutor or administrator, or a part# authoriFed b# law or these 6ules. (n agent acting in his own name and for the benefit of an undisclosed principal ma# sue or be sued without /oining the principal e"cept when the contract involves things belonging to the principal ?. Pro 'or&a /arties @ those who are re>uired to be /oined as co-parties in suits b# or against another part# as ma# be provided b# the applicable substantive law or procedural rule such as in the case of spouses under Sec. ?. +. #,asi /arties @ those in whose behalf a class or representative suit is brought. Section %. /ersons. inor or inco&/etent

RE#UIRE ENTS !OR A PERSON TO 3E A PART" TO A CIVIL ACTION* 1. he must be a natural or /uridical person or an entit# authoriFed b# law$ %. he must have a legal capacit# to sue$ and &. he must be the real part# in interest. PLAINTI!!S- 1hose having an interest in the sub/ect matter of the action or in obtaining the relief demanded. DE!ENDANTS* 1. persons who claim an interest in the controvers# or the sub/ect thereof adverse to the plaintiff$ or %. who are necessar# to a complete determination or settlement of the >uestions involved therein$ or &. all those who ordinaril# should be /oined as plaintiffs but who do not consent thereto, the reason therefore being stated in the complaint. Aeither a dead person nor his estate ma# be a part# plaintiff in a court actionG Considering that capacit# to be sued is correlative of the capacit# to sue, to the same e"tent, a decedent does not have the capacit# to be sued and ma# not be named a part# defendant in a court action 'Ventura vs. Militante 316 SC ! 226". Section 3. Re/resentatives as /arties. REAL PART" IN INTEREST @ the part# who stands to be benefited in the suit or

Under the present rule, a person need not be /udiciall# declared to be incompetent in order that the court ma# appoint a guardian ad litem. *t is enough that he be alleged to be incompetent.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


14

MEMORY AID
1he suit can be brought b# or against the minor or incompetent person personall# 3U1 with the assistance of his parents or guardian.

IN

REMEDIAL LAW

4OINT DE3TORS @ indispensable part# with respect to own share and a necessar# part# with respect to the share of the others.

Section /arties.

+.

Per&issive

:oinder

o' SOLIDAR" DE3TORS @ either is indispensable and the other is not even a necessar# part# because complete relief ma# be obtained from either. Section =. Non>:oinder o' necessar) /arties to (e /-eaded. 1he non-inclusion of a necessar# part# ma# be e"cused onl# on meritorious grounds. 1he court ma# order the inclusion of the omitted necessar# part# if /urisdiction over his person ma# be obtained b# ordering plaintiff to file an amended complaint impleading the necessar# part# therein as co-defendant. 1he onl# sanction for failure to implead a necessar# part# when ordered b# the court and /urisdiction can be obtained over said part# is a waiver of the claim against him. 1his is considered as an e"ception to the provision on penalties imposed on a disobedient part# under Sec. & of 6ule 17 which would have entailed the dismissal of the complaint itself. Section 11. o' /arties. is:oinder and non>:oinder

PER ISSIVE 4OINDER @ the aggregate sum of all the claims, determines the /urisdiction of the court. Re9,isites o' /er&issive :oinder o' /arties. 1. 6ight to relief arises out of the same transaction or series of transactions$ %. 1here is a >uestion of law or fact common to all the plaintiffs or defendants$ and &. Such /oinder is not otherwise proscribed b# the provisions of the 6ules on /urisdiction and venue. SERIES O! TRANSACTIONS @ transactions connected with the same sub/ect of the action. INDISPENSA3LE PARTIES
1he action cannot proceed unless the# are /oined Ao valid /udgment if indispensable part# is not /oined

NECESSAR" PARTIES
1he action can proceed even in the absence of some necessar# parties 1he case ma# be determined in court but the /udgment therein will not resolve the entire controvers# if a necessar# part# is not /oined 1he# are those whose presence is necessar# to ad/udicate the whole controvers# but whose interests are so far separable that a final decree can be made in their absence without affecting them

Aeither mis/oinder nor non-/oinder of parties is a ground for dismissal of the action. 0b/ections to defects in parties should be made at the earliest opportunit# @ the moment such defect becomes apparent @ b# a =01*0A 10 S16*H5 1E5 A(=5S 08 1E5 D(61*5S impleaded. *f there is mis/oinder, a separate action should be brought against the part# mis/oined.

1he# are those with such an interest in the controvers# that a final decree would necessaril# affect their rights so that the court cannot proceed without their presence

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


15

MEMORY AID
1he absence of an indispensable part# renders all subse>uent actions of the court null and void for want of authorit# to act, not onl# as to the absent parties but even as to those present.

IN

REMEDIAL LAW

Service of summons upon a defendant whose identit# is un nown ma# be made b# publication in a newspaper of general circulation in accordance with Section 1? of 6ule 1?.

Section 10. C-ass s,it. RE#UISITES O! A CLASS ?REPRESENTATIVE SUIT. 1. sub/ect matter of the controvers# is one of common or general interest to man# persons$ %. parties affected are so numerous that it is impracticable to bring them all before the court$ &. parties bringing the class suit are sufficientl# numerous or representative of the class and can full# protect the interests of all concerned. C-ass S,it
1here is one single cause of action pertaining to numerous persons

Section 1%. Entit) Ait6o,t :,ridica/ersona-it) as de'endant. 1he# ma# be sued under the name b# which the# are generall# nown, but the# cannot sue under such name for lac of /uridical personalit#. 1he service of summons ma# be effected upon all the defendants b# serving upon an# of them, or upon the person in charge of the office or place of business maintained under such name. (Se#. $, ule 1%" INSTANCES ;2ERE SU3STITUTION O! PARTIES IS PROPER* A. Deat6 o' /art)< d,t) o' co,nse- 7Sec. 1+8 1his provision applies where the claim is not thereb# e"tinguished as in cases involving propert# and propert# rights such as! 1. recover# of real and personal propert# against the estate. %. enforcement of liens on such properties &. recover# for an in/ur# to person or propert# b# reason of tort or delict committed b# the deceased. *n this case, the heirs will be substituted for the deceased 06 if no legal representative is named then the court will order the opposing part# to procure the appointment of an e"ecutor or administrator for the estate of the deceased. *n case of minor heirs, the court ma# appoint a guardian ad litem for them.

Per&issive 4oinder o' Parties


1here are multiple causes of action separatel# belonging to several persons.

Section 15. Un@noAn identit) or na&e o' de'endant. Re9,isites* 1. there is a defendant %. his identit# or name is un nown &. fictitious name ma# be used because of ignorance of defendant9s true name and said ignorance is alleged in the complaint ?. identif#ing description ma# be used! sued as un nown owner, heir, devisee, or other designation +. amendment to the pleading when identit# or true name is discovered 7. defendant is the defendant being sued, not a mere additional defendant

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1

MEMORY AID
1he substitute defendant need not be summoned. 1he ORDER O! SU3STITUTION shall be served upon the parties substituted for the court to ac>uire /urisdiction over the substitute part#

IN

REMEDIAL LAW

Re9,isites* 1. 1he action must primaril# be for recover# of mone#, debt, or interest thereon, and not where the mone# sought therein is merel# incidental thereto. %. 1he claim, sub/ect of the action, arose from a contract, e"press or implied, entered into b# the decedent in his lifetime or the liabilit# for which had been assumed b# or is imputable to him. *f defendant dies before entr# of final /udgment in the court where it was pending at that time, the action shall not be dismissed but shall be allowed to continue until entr# of final /udgment thereon. Eowever, e"ecution shall not issue in favor of the winning part#. *t should be filed as a claim against the estate of the decedent. Section 01. Indigent /art). Indigent @ one who has no propert# or income sufficient for his support aside from his labor, even if he is selfsupporting when able to wor and in emplo#ment. Ee need not be a pauper to entitle him to litigate in 'orma pauperis. <hile the authorit# to litigate as an indigent part# ma# be granted upon an e" parte application and hearing, it ma# be contested b# the adverse part# at an# time before /udgment is rendered. RULE 5 VENUE O! ACTIONS VENUE @ the place where an action must be instituted and tried. VENUE 4URISDICTION

*f there is failure to notif# the fact of death! the case ma# continue and proceedings will be held valid, and /udgment will bind the successors in interest. 3. Deat6 or se/aration o' a /art) A6o is a /,(-ic o''icer 7Sec. 1B8 1he action ma# be maintained b# and against his successor. 1he action contemplated here is one brought against the public officer in his official capacit#. C. S,/ervening Inco&/etence or inca/acit) o' a /art) 7Sec. 1C8 1he action shall continue to be prosecuted b# or against him, personall# or assisted b# the corresponding guardian. D. Trans'er o' interest 7Sec. 1=8 Substitution of parties in this section is A01 mandator#, it being permissible to continue the action b# or against the original part# in case of transfer of interest pen&ente lite. Unless the substitution b# or the /oinder of the transferee is re>uired b# the court, failure to do so does not warrant the dismissal of the case. ( transferee pen&ente lite is a proper, and not an indispensable part#. 1he case will be dismissed if the interest of plaintiff is transferred to defendant UA;5SS there are several plaintiffs, in which case, the remaining plaintiffs can proceed with their own cause of action. Section 0D. Action &one) c-ai&s. on contract,a-

Dlace where the action Dower of the court to is instituted hear and decide a case

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!

MEMORY AID
=a# be waived 4urisdiction over the sub/ect matter and over the nature of the action is conferred b# law and cannot be waived Substantive

IN

REMEDIAL LAW

temporar#, at the time the action is instituted.

Drocedural

=a# be changed b# the Cannot be the sub/ect written agreement of of the agreement of the parties the parties

T6e r,-e on VENUE IS NOT APPLICA3LE in cases 1. <here a specific rule or law provides otherwise$ or %. 1he parties have validl# agreed in writing before the filing of the action on the e"clusive venue thereof 'Sec. ?.. Re9,isites 'or ven,e to (e e.c-,sive 1. ( valid written agreement %. 5"ecuted b# the parties before the filing of the action$ and &. 5"clusive nature of the venue. *n the absence of >ualif#ing or restrictive words, venue stipulation is merel# permissive meaning that the stipulated venue is in addition to the venue provided for in the rule (Pol(tra&e Corp. vs. Blan#o 3) SC ! 1$*" Section 1. Ven,e o' rea- actions. I' /ro/ert) is -ocated at t6e (o,ndaries o' tAo /-aces! file one case in either place at the option of the plaintiff. I' case invo-ves tAo /ro/erties -ocated in tAo di''erent /-aces* 1. *f the properties are the ob/ect of the same transaction, file it in an# of the two places. %. *f the# are the sub/ects of two distinct transactions, separate actions should be filed in each place unless properl# /oined. Section 0. Ven,e o' /ersona- actions. RESIDENCE @ the place where the part# actuall# resides with continuit# and consistenc#, whether permanent or

eans o' Aaiving ven,e* 1. failure to ob/ect via motion to dismiss %. affirmative relief sought in the court where the case is filed &. voluntar# submission to the court where the case is filed ?. laches Section 3. Ven,e o' actions against non>residents. RULES 1. NON>RESIDENT !OUND IN T2E P2IL. E a. for personal actions @ where the plaintiff resides$ and b. for real actions @ where the propert# is located. 0. NON RESIDENT NOT !OUND IN T2E P2IL. E (n action ma# be filed onl# when the case involves! a. Dersonal status of plaintiff @ venue! where plaintiff resides$ b. (n# propert# of said defendant located in the Dhil. @ venue! where the propert# or an# portion thereof is situated or found. 1he Supreme Court has the power to order a change of venue to prevent a miscarriage of /ustice. Dis&issa- o' Action 'or I&/ro/er Ven,e 1he court ma# not motu propio dismiss a complaint on the ground of improper

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1"

MEMORY AID
venue. (n e"ception is provided in Section ? of the 6evised 6ule on Summar# Drocedure.

IN

REMEDIAL LAW

8iling of verified complaint with the =1C

court ma# summon the defendant

court ma# dismiss the case outright

1he Court should not dismiss the complaint or counterclaim if the# are not verified. 1he re>uirement is merel# a formal one, and not /urisdictional. *t should therefore simpl# direct the part# concerned to have it verified. PRO2I3ITED PLEADINGS ? OTIONS UNDER T2E RULE ON SU AR" PROCEDURE. 1. =otion to dismiss the complaint or to >uash the complaint or information e"cept on the ground of lac of /urisdiction over the sub/ect matter or failure to compl# with prior baranga# conciliation 'referral to the ;upon. %. =otion for a bill of particulars &. =otion for a new trial or for reconsideration of a /udgment or for reopening of trial ?. Detition for relief from /udgment +. =otion for e"tension of time to file pleadings, affidavits, or an# other paper 7. =emoranda 7. Detition for certiorari, mandamus, or prohibition against an# interlocutor# order issued b# the court 8. =otion to declare defendant in default 9. :ilator# motions for postponement 1I. 6epl# 11. 1hird part# complaints 1%. *nterventions 1he filing of a prohibited pleading will not suspend the period to file an answer or to appeal.

<Jin 1I da#s from receipt of summons, defendant answers, incoporating compulsor# counterclaim or crossclaim, and serves a cop# on plaintiff

*f :efendant fails to answer in 1I da#s @ 1he court, motu propio or on plaintiff9s motion, ma# render /udgment based on facts alleged in the complaint wJo pre/udice to 69, S& 'c.

SU
(nswer to counterclaim and crossclaim wJin 1I da#s

RULES ON SU AR" PROCEDURE AR" PROCEDURE IN CIVIL


*f plaintiff fails to appear in prelim conference, complaint ma# be dismissed. :efendant entitled to decision based on his counterclaim. (ll crossclaims dismissed.

Dreliminar# conference wJin &I da#s after last answer is filed

CASES
*f sole defendant fails to appear, plaintiff entitled to /udgment based on complaint and what is proved therein

<Jin + da#s after conference, court issues record of preliminar# conference

<Jin 1I da#s from receipt of order, submission b# the parties of affidavits and position papers

6endition of /udgment CHAIRPERSON : Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae wJin &I Jocelyn da#s from %en!"ra, &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ receipt of last S/ecial Procee+in0s,Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence, affidavit, or wJin 1+ da#s after last
clarificator# paper

REMEDIAL LAW COMMITTEE

San Beda College of Law


1#

MEMORY AID
(lthough a motion to dismiss is a prohibited pleading, its filing after the answer had alread# been submitted does not constitute a pleading prohibited b# the summar# rules. <hat the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue dela#. <hile a motion to declare the defendant in default is prohibited b# the rules on summar# procedure, the plaintiff ma# nevertheless file a motion to render /udgment as ma# be warranted when the defendant fails to file an answer. 1he issuance of the pre-trial order is an important part of the summar# procedure because it is its receipt b# the parties that begins the ten-da# period to submit the affidavits and other evidence. TRIAL PROCEDURE IN CIVIL CASES Ao trial date is set. Ao testimonial evidence is re>uired nor crosse"amination of witnesses allowed. (ll that is re>uired is that within '1I. da#s from receipt b# the parties of the court9s pre-trial order, the# shall submit '1. the affidavits of their witnesses '%. and other evidence on the factual issues set forth in the pre-trial order, 1ogether with their position papers setting forth the law and the facts relied upon b# them. 4udgments of inferior courts in cases governed b# summar# procedure are appealable to the 61C. 1he decision of the 61C in civil cases under this rule, including e/ectment cases, are *==5:*(15;K e"ecutor#. FATARUNGANG PA 3ARANGA" LA;
7Tit-e One1 3oo@ III1 RA B1+D8

IN

REMEDIAL LAW

1. there has been a confrontation between the parties before the lupon chairman or pang at, AND %. that no conciliation or settlement has been reached OR unless the settlement has been repudiated b# the parties thereto.

CASES NOT CO !R!" 3" T2E FATARUNGANG PA 3ARANGA" LA;* 1. <here one part# is the government or an# subdivision or instrumentalit# thereof$ %. <here one part# is a public officer or emplo#ee, and the dispute relates to the performance of his official functions$ &. 0ffenses punishable b# imprisonment e"ceeding 1 #ear or a fine e"ceeding D+,III.II$ ?. 0ffenses where there is no private offended part#$ +. <here the dispute involves real properties located in different cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement b# an appropriate lupon$ 7. :isputes involving parties who actuall# reside in baranga#s of different cities or municipalities, E$CEPT where such baranga# units ad/oin each other and the parties thereto agree to submit their differences to amicable settlement b# an appropriate lupon$ 7. Such other classes of disputes which the Dresident ma# determine in the interest of /ustice. Eowever, the court ma#, at an# time before trial, motu proprio refer the case to the lupon concerned for amicable settlement, non criminal cases not

Ao complaint, petition, action, or proceeding involving an# matter within the authorit# of the lupon shall be filed or instituted directl# in court or an# other government office for ad/udication UNLESS

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


20

MEMORY AID
falling within latter. the authorit# of the

IN

REMEDIAL LAW

<hile the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under e"isting laws shall be interrupted upon filing of the complaint with the punong baranga#.

brought for settlement before lupon of said baranga# %. 6esidents of different baranga#s within the same cit# or municipalit# @ in the baranga# where the respondent or an# of the respondents reside at the election of the complainant &. :isputes involving real propert# or an# interest therein- where real propert# or larger portion thereof is situated

T2E PARTIES A" GO DIRECTL" TO COURT IN T2E !OLLO;ING INSTANCES* 1. <here the accused is under detention$ %. <here the person has otherwise been deprived of personal libert# calling for habeas corpus proceeding$ &. <here the actions are coupled with provisional remedies such as preliminar# in/unction, attachment, deliver# of personal propert#, and support pen&ente lite$ and ?. <here the action ma# otherwise be barred b# the statute of limitations. 1he parties ma#, at an# stage of the proceedings, agree in writing to have the matter in dispute decided b# arbitration b# either the Dunong 3aranga# or Dang at. *n such case, arbitrational hearings shall follow order of ad/udicative trials. 1he settlement and arbitration agreement ma# be repudiated on the ground that consent is vitiated b# fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or an# government office for ad/udication. RULES ON VENUE UNDER T2E FATARUNGANG PA 3ARANGA" LA; 1. :isputes between residents of the same baranga# shall be

?. :isputes arising at the <06HD;(C5 where the contending parties are emplo#ed or at the *AS1*1U1*0A where such parties are enrolled for stud# @ in the baranga# where such wor place or institution located.
C+! , -. /!,! 0.G!.G P!MB! !.G!1, S22 P!G2 22.

PROCEDURE IN REGIONAL TRIAL COURTS RULE + FINDS O! PLEADINGS Section 1. P-eadings de'ined. PLEADINGS @ the written allegations of the parties of their respective claims and defenses submitted to the court for appropriate /udgment. A &otion to dis&iss is NOT a /-eading. *t is the allegations or averments in the pleading that determines the /urisdiction of the court and the nature of the action.

PLEADING

OTION

*t relates to the cause (n application for an of action$ interested order not included in in the matters to be the /udgment included in the /udgment.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


21

MEMORY AID
=a# be initiator# Cannot be initiator# as the# are alwa#s made in a case alread# filed in court =a# be filed even after /udgment

IN

REMEDIAL LAW

ANS;ER @ the pleading where the defendant sets forth his affirmative or negative defenses.

(lwa#s filed before /udgment

Section 3. Co&/-aint. CO PLAINT @ is a concise statement of the ultimate facts constituting the plaintiff9s cause or causes of action, with

a specification of the relief sought, but it ma# add a general pra#er for such further relief as ma# be deemed /ust or e>uitable. ULTI ATE !ACTS - essential facts constituting the plaintiff9s cause of action. ;6at are NOT ,-ti&ate 'acts* 1. 5videntiar# or immaterial facts. %. ;egal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated. &. 1he details of probative matter or particulars of evidence, statements of law, inferences and arguments. ?. (n allegation that a contract is valid or void is a mere conclusion of law. TEST O! SU!!ICIENC"! if upon admission or proof of the facts being alleged, a /udgment ma# be properl# given. ( fact is essential if it cannot be stric en out without leaving the statement of the cause of action insufficient. Section 5. AnsAer

0 @inds o' de'enses t6at &a) (e set 'ort6 in t6e ansAer* a. A!!IR ATIVE DE!ENSES @ allegation of a new matter which while h#potheticall# admitting the material allegations in the pleading, would nevertheless prevent or bar recover# b# him. *t is in the nature of Confession and (voidance (. NEGATIVE DE!ENSES @ specific denial of the material facts or facts alleged in the pleading Ins,''icient denia- or denia- a&o,nting to ad&issions* 1. 2eneral denial %. :enial in the form of a negative pregnant Section +. Co,nterc-ai& COUNTERCLAI @ an# claim which a defending part# ma# have against an opposing part#. Nat,re o' co,nterc-ai&* ( counterclaim is in the nature of a cross-complaint. (lthough it ma# be alleged in the answer, it is not part of the answer. Upon its filing, the same proceedings are had as in the original complaint. 8or this reason, it must be answered within ten '1I. da#s from service. Section B. Co&/,-sor) Co,nterc-ai&

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


22

MEMORY AID
RULES ON COUNTERCLAI ( counterclaim before the =1C must be within the /urisdiction of said court, both as to the amount and nature thereof (3e Chua vs. 4!C".

IN

REMEDIAL LAW

8iling of complaint wJ the Dunong 3aranga# 'D3. <Jin the ne"t wor ing da# (t an# time during the DroceedingsG

*ssuance of summons to the parties and the witnesses

FATARUNGANG PA 3ARANGA" PROCEDUREDarties agree to


submit the dispute for arbitration

(rbitration Eearings =ediation 'hearing.

8ailure of mediation efforts

Settlement

Constitution of the Dang at

5"ecution wJin 7 months from date thereof

6epudiation of arbitration agreement within + da#s from date of agreement

Dang at convenes not later than & da#s from its constitution and summons the parties
Dang at must arrive at a settlement wJin 1+ da#s from the da# it convenes

(ward to be made after the lapse of the period to repudiate and wJin 1I days thereafter

5"ecution wJin 7 months from the date of the award

Conciliation 'hearing.

Settlement

6epudiation of settlement wJin 1I da#s from date thereof

5"ecution wJin 7 months from the date of settlement REMEDIAL LAW COMMITTEE

Note* 6epudiation shall onl# be allowed on ground of vitiation of consent b# fraud, violence or intimidation.

8ailure of Conciliation hearings at the Dang at ISSUANCE O! ;evel and of (rbitration CERTI!ICATION !OR CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae hearings shall an+ also lead to O! Alnai.a A %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il!ILING Proce+"re,Hasi$an )S/ecial Ci*il Ac!ions the issuance of S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,Elaine Mas"ka! )E*i+ence, CO PLAINT IN COURT certification for filing a complaint in court.

San Beda College of Law


23

MEMORY AID

IN

REMEDIAL LAW

DOCTRINE O! ANCILLAR" 4URISDICTION *n an original action before the 61C, the counterclaim ma# be considered compulsor# regardless of the amount 7Sec. B1 R,-e + 8. *f a counterclaim is filed in the =1C in e"cess of its /urisdictional amount, the e"cess is considered waived (!5ustin vs. Ba#alan8. *n Ca#o $s% A&a' (nt)-, the remed# where a counterclaim is be#ond the /urisdiction of the =1C is to set off the claims and file a separate action to collect the balance. CO PULSOR" COUNTERCLAI PER ISSIVE COUNTERCLAI

Section C. Cross>c-ai& CROSS>CLAI E an# claim b# one part# against a co-part# arising out of the transaction or occurrence that is the sub/ect matter either of the original action or counterclaim. *f it is not set up in the action, it is barred, e.ce/t* 1. when it is outside the /urisdiction of the court or$ %. if the court cannot ac>uire /urisdiction over third parties whose presence is necessar# for the ad/udication of said cross-claim. *n which case, the considered permissive. cross-claim is

0ne which arises out *t does not arise out of of or is necessaril# nor is it necessaril# connected with the connected with the transaction or sub/ect matter of the occurrence that is the opposing part#9s sub/ect matter of the claim. opposing part#9s claim. *t does not re>uire for *t ma# re>uire for its its ad/udication the ad/udication the presence of third presence of third parties of whom the parties over whom the court cannot ac>uire court cannot ac>uire /urisdiction. /urisdiction. *t is barred if not set up in the action. Aeed not be answered$ no default. *t is A01 barred even if not set up in the action. =ust be answered, otherwise, the defendant can be declared in default.

1he dismissal of the complaint carries with it the dismissal of a cross-claim which is purel# defensive, but not a cross-claim see ing affirmative relief. Cross C-ai& Co,nterc-ai& 3rd>/art) Co&/-aint

(gainst a co- (gainst an (gainst a part# opposing part# person not a part# to the action =ust arise out =a# arise out of =ust be in of the or be necessaril# respect of transaction connected with the that is the the transaction opponent9s sub/ect matter or that is the claim of the orig. sub/ect matter 'Dlaintiff. action or of a of the opposing counterclaim part#9s claim, in therein. which case, it is called a compulsor# counterclaim, or it ma# not, in which case it is called a permissive counterclaim.

GENERAL RULE* ( compulsor# counterclaim not set up in the answer is deemed barred. E$CEPTION* *f it is an after-ac>uired counterclaim, that is, such claim matured after filing of the answer. *n this case, it ma# be pleaded b# filing an amended answer or a supplemental answer or pleading.

Section 1D. Re/-).

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


24

MEMORY AID
REPL" - the response of the plaintiff to the defendant9s answer. E!!ECT O! !AILURE TO REPL"! new facts that were alleged in the answer are deemed controverted. Eence, the filing of the repl# is optional e"cept for the denial of the genuineness and due e"ecution of an actionable document used as defense in the answer. Section 11. T6ird 7'o,rt61 etc.8 E /art) co&/-aint. T2IRD 7!OURT21ETC.8 E PART" CO PLAINT E a claim that a defending part# ma#, with leave of court, file against a person not a part# to the action for contribution, indemnit#, subrogation or an# other relief, in respect of his opponent9s claim. T2IRD>PART" CO PLAINT
3rings into the action a third person who was not originall# a part#.

IN

REMEDIAL LAW

;eave of court to file a third-part# complaint ma# be obtained b# motion under 6ule 1+. Summons to new part# 'third, fourth, etc.. is needed for the court to obtain /urisdiction over his person, since he is not an original part#. <here the trial court has /urisdiction over the main case, it also has /urisdiction over the third part# complaint, regardless of the amount involved as a third part# complaint is merel# au"iliar# to and is a continuation of the main action ( epu6li# v. Central Suret( & 4nsuran#e Co. 782*$)2, -#t. 26, 196$". Section 10. 3ringing neA /arties. Disting,is6ed 'ro& 3rd>/art) co&/-aint* ( &rd-part# complaint is proper when not one of the third-part# defendants therein is a part# to the main action. 3ut if one or more of the defendants in a counterclaim or cross-claim is alread# a part# to the action, then the other necessar# parties ma# be brought in under this section. RULE B PARTS O! A PLEADING Section 3. Signat,re and address. 1he signature of the counsel is a certification that! 1. 1hat he has read the pleading$ %. 1here is good ground to support it$ and &. *t is not interposed for dela# 0nl# the original copies must be signed. UNSIGNED PLEADING ma# be stric en out as sham and false, and the action ma# proceed as though the pleading has not been served. (t *as no #e+a# e,,ect% Section 5. Veri'ication. Dleadings need A01 be verified 5LC5D1 when otherwise provided b# the law or rules.

CO PLAINT IN INTERVENTION
Same

*nitiative is with the *nitiative is with a person alread# a part# non-part# who see s to the action. to /oin the action.

TESTS to deter&ine A6et6er t6e t6ird> /art) co&/-aint is in res/ect o' /-ainti''Gs c-ai&* 1. <here it arises out of the same transaction on which the plaintiff9s claim is based, or, although arising out of another or different transaction, is connected with the plaintiff9s claim$ %. <hether the third-part# defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff9s claim against the original defendant$ and &. <hether the third-part# defendant ma# assert an# defenses which the third-part# plaintiff has or ma# have to the plaintiff9s claim.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


25

MEMORY AID
( verification must now be based on personal nowledge or based on authentic records. ANNER O!

IN

REMEDIAL LAW

AFING ALLEGATIONS IN A PLEADING

Dleadings should state ,-ti&ate 'acts essential to the right of action. Section %. Certi'ication against 'or,& s6o//ing. !ORU S2OPPING @ the filing of a two or more cases based on the same cause of action in different courts for the purpose of obtaining a favorable decision in either. Test to deter&ine t6e /resence o' 'or,&>s6o//ing* whether in the two 'or more. cases pending, there is identit# of 7a8 parties, 7(8 rights or causes of action, and 7c8 reliefs sought. 1he certificate is to be e"ecuted b# petitioner, and not b# counsel. 6e>uired 0A;K for initiator# pleadings. complaints or ULTI ATE !ACTS* those which directl# form the bases of the right sought to be enforced or the defense relied upon. *f the ultimate facts are A01 alleged, the cause of action would be insufficient. Section 5. Ca/acit). Capacit# to sue and be sued either personall# or in representative capacit# must be specificall# averred b# the part# suing or being sued, and specificall# denied b# the part# >uestioning such capacit#. Capacit# is challenged b# specific denial, motion to dismiss or bill of particulars. Section %. !ra,d1 &ista@e1 condition o' t6e condition !ACTS T2AT A" 3E AVERRED GENERALL"* 1. Conditions precedent '3U1 there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for failure to state a cause of action. %. =alice, intent, nowledge, or other condition of the mind &. 4udgments of domestic or foreign courts, tribunals, boards, or officers 'no need to show /urisdiction. ?. 0fficial document or act !ACTS T2AT UST 3E AVERRED PARTICULARL"* 1. Circumstances showing fraud or mista e in all averments of fraud or mista e %. Capacit#

Certificate of non-forum shopping is not re>uired in a compulsor# counterclaim (0S, +osp. vs. Surla". E!!ECT O! !AILURE TO CO PL"! 1. Aot curable b# amendment of said pleading %. shall be cause for the dismissal of the case, without pre/udice, unless otherwise provided, upon motion and after hearing E!!ECT O! SU3 ISSION O! !ALSE CERTI!ICATION OR NON>CO PLIANCE ;IT2 T2E UNDERTAFINGS T2EREIN* 1. indirect contempt %. administrative and criminal actions E!!ECT O! ;IL!ULL AND DELI3ERATE !ORU S2OPPING* 1. shall be ground for summar# dismissal of the case with pre/udice$ %. direct contempt. RULE C

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


2

MEMORY AID
ACTIONA3LE DOCU ENT @ written instrument upon which the action or defense is based.

IN

REMEDIAL LAW

1hat the document was signed voluntaril# and nowingl# b# the part# whose signature appears thereon. De'enses t6at t6e o//osing /art) &a) set ,/ even a'ter 'ai-,re to den) ,nder oat6: 1. =ista e$ %. fraud$ &. compromise$ ?. pa#ment$ +. prescription$ 7. want or illegalit# of consideration$ or 7. estoppel 3UT t6e 'o--oAing de'enses are Aaived* a. forger# in the signature$ b. want of authorit# of an agent or corporation$ c. want of deliver#$ or d. the part# charged signed the instrument in some other capacit# Section 1D. S/eci'ic DeniaT2REE ;A"S O! AFING A SPECI!IC DENIAL* 1. 3# specificall# den#ing each material allegation of the other part# and, whenever possible, setting forth the substance of the matters relied upon for such denial$ %. Dart admission or part denial$ &. 3# an allegation of lac of nowledge or information sufficient to form a belief as to the truth of the averment in the opposing part#9s pleading 'must be made in good faith.. ( denial must not be general. ( general denial is regarded as an admission of the facts stated in the complaint and entitles plaintiff to a /udgment on the pleadings. NEGATIVE PREGNANT @ a form of denial which at the same time involves an affirmative implication favorable to the opposing part#$ *t is in effect, an admission of the averment to which it is

TAo /er&issi(-e Aa)s o' /-eading an actiona(-e doc,&ent* 1. 3# setting forth the substance of such document in the pleading and attaching said document thereto as an anne" 'contents of the document anne"ed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached.$ or %. 3# setting forth said document verbatim in the pleading. ;6ere t6e actiona(-e doc,&ent is /ro/er-) a--eged1 t6e 'ai-,re to s/eci'ica--) den) ,nder oat6 t6e sa&e res,-ts in* 1. 1he admission of the genuineness and due e"ecution of said document, 5LC5D1 that an oath is not re>uired! a. <hen the adverse part# was not a part# to the instrument$ and b. <hen an order for the inspection of the original document was not complied with. %. 1he document need not be formall# offered in evidence. GENUINENESS 1hat the document is not spurious, counterfeit, or of different import on its face from the one e"ecuted b# the part#, or that the part# whose signature it bears has signed it and that at the time it was signed it was in words and figures e"actl# as set out in the pleadings. DUE E$ECUTION

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


2!

MEMORY AID
directed$ *t is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. Section 11. A--egation not s/eci'ica--) denied dee&ed ad&itted. GENERAL RULE* (llegations A01 specificall# denied deemed admitted 'such as allegations of usur# in the complaint, and the authenticit# and due e"ecution of actionable documents.. E$CEPTIONS* 1. (llegations as to the amount of unli>uidated damages %. *mmaterial allegations$ &. *ncorrect conclusions of fact. RULE = E!!ECT O! !AILURE TO PLEAD Section 1. De'enses and o(:ections not /-eaded. GENERAL RULE! :efenses and ob/ections that are not pleaded in a =01*0A 10 :*S=*SS or in the answer are deemed waived. E$CEPTIONS 'not waived even if not raised.! 1. ;ac of /urisdiction over the sub/ect matter %. ;itis pendentia &. 6es /udicata ?. Drescription of the action 1hese defenses ma# be raised at an# stage of the proceedings even for the first time on appeal 5LC5D1 that lac of /urisdiction over the sub/ect matter ma# be barred b# laches. ',i:am vs. Si6on5hano(.. 1he presence of these grounds authoriFes the court to motu proprio dismiss the claims. 1hese grounds must, however, appear from the pleadings or the evidence on record. Section 3. DE!AULT @ the failure of the defendant to ansAer within the proper period. *t is

IN

REMEDIAL LAW

not his failure to appear nor failure to present evidence. ORDER O! DE!AULT 4UDG ENT 3" DE!AULT

issued b# the court, 6endered b# the court on plaintiff9s motion following a default for failure of the order or after it defendant to file his received, e" parte, responsive pleading plaintiff9s evidence. seasonabl#. *nterlocutor# - not 8inal @ appealable appealable

A0 default ma# be declared in the following actions! 1. (nnulment of marriage %. :eclaration of nullit# of marriage &. ;egal Separation ?. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is re>uired to be filed 1he court cannot motu proprio declare a defendant in default. 8or defendant to be declared in default, the plaintiff must! 1. 8ile a =01*0A to declare defendant in default %. Drove that summons have been properl# served on the defendant &. Drove that the defendant reall# failed to answer within the proper period. CAUSES O! DE!AULT 1. 8ailure to answer within the proper period %. Aon-compliance with the order of the court to file a bill of particulars or in case of insufficient compliance therewith '6ule 1%, Section ?. &. 6efusal to compl# with the modes of discover# '6ule %9, Section &, par. c. ?. 8ailure to furnish plaintiff with a cop# of the answer *f the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


2"

MEMORY AID
withdrawal of the original complaint, hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default. E!!ECT O! ORDER O! DE!AULT* 1. <hile the part# in default cannot ta e part in the trial, he is nonetheless entitled to notice of subse>uent proceedings. %. Ee ma# still be called on as a witness, in behalf of the nondefaulting defendants.

IN

REMEDIAL LAW

PARTIAL DE!AULT* 1. 1he pleading asserting a claim states a common cause of action against several defending parties %. some of the defending parties answer and the others fail to do so &. the answer interposes a common defense E!!ECT O! PARTIAL DE!AULT* 1he court will tr# the case against (;; defendants upon the answer of some 5LC5D1 where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer. RE ED" !RO 4UDG ENT 3" DE!AULT 7!LO; C2ART8
4udgment b# default

DE!AULT
(fter the lapse of time to file an answer, the plaintiff ma# move to declare the defendant in default

=otion denied! :efendant allowed to file an answer

:efendant answers otion granted* Court issues order of default and renders /udgment, or re>uire plaintiff to submit evidence e" parte.

=otion for new trial or reconsideration at an# time after service of /udgment b# default and within 1+ '&I. da#s therefrom

8ailure to file motion for new trialJ


:enial of said motion

Court maintains 3efore /udgment b# default is rendered, defendant ma#! move to set aside order of default upon showing! 8(=5 Ee has a meritorious defense (vail of 6ule 7+ in proper cases order of default

Derfect appeal from said /udgment b# default within the balance of said 1+ '&I. - da# period

8ailure to appeal without defendant9s faul

Detition for relief from /udgment within 7I da#s from notice of the /udgment but within 7 months from entr# thereof

E$TENT O! RELIE!

TO

3E

Court sets aside order of default and defendant is allowed to file an answer *f plaintiff

Dresentation of plaintiff9s evidence e"parte

(nnulment of 4udgment under 6ule ?7

A;ARDED IN A 4UDG ENT 3" DE!AULT* Shall not e"ceed the amount 06 be different in ind from that pra#ed for

*f plaintiff fails to prove CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS : Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae allegations, his allega%en!"ra, Jocelyn &a'ala SU(JECT O'ia /udgment b# HEA S: Jona tions, case)Ci*il is Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence, Case set Procee+in0s,for default. dismissed. pre-trial

REMEDIAL LAW C OMMITTEE proves his

San Beda College of Law


2#

MEMORY AID
A06 award unli>uidated damages.

IN

REMEDIAL LAW

RULE 1D A ENDED AND SUPPLE ENTAL PLEADINGS A END ENTS Section 1. A&end&ents in genera-. <hen the complaint is amended, % situations ma# arise! 1. *f the complaint merel# corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint$ %. *f the amended complaint alleges a new cause of action, then that cause of action is deemed commenced upon the filing of the amended complaint. Section 0. A&end&ents as a &atter o' rig6t. (mendment for the first time is a matter of right before a responsive pleading is filed, or in case of a 6epl#, within 1I da#s after it was served. Since a motion to dismiss is A01 a responsive pleading, an amendment ma# be had even if an order of dismissal has been issued as long as the amendment is made before order of dismissal becomes final. Section 3. A&end&ents () -eave o' co,rt. Instances A6en a&end&ent () -eave o' co,rt &a) not (e a--oAed* 1. <hen cause of action, defense or theor# of the case is changed$ %. (mendment is intended to confer /urisdiction to the court$ &. (mendment to cure a premature or non-e"isting cause of action$ ?. (mendment for purposes of dela#. Section %. A&end&ent to con'or& to or a,t6oriHe /resentation o' evidence.

1ST PART* refers to amendment to conform to evidence when issues A01 raised b# the pleadings are tried with the e"press or implied consent of the parties - but failure to amend does A01 affect the result of the trial of these issues 0ND PART* refers to amendment to authoriFe presentation of evidence if evidence is ob/ected to at the trial on the ground that it is not within the issues made b# the pleadings. SUPPLE ENTAL PLEADINGS ( cause of action which accrued after the filing of the original complaint ma#, in the discretion of the court, be pleaded in a supplemental complaint if there was a valid subsisting cause of action at the time the original complaint was filed.

A ENDED PLEADING

SUPPLE ENTAL PLEADING

6efers to facts 6efers to facts arising e"isting at the time of after the filing of the the commencement original pleading. of the action. 1a e the place of the 1a en together with original pleading. the original pleading. Can be made as a (lwa#s with leave of matter of right as court when no responsive pleading has #et been filed

Section B. !i-ing o' a&ended /-eadings. 1he amended pleading supersedes the original pleading. (n amendment which merel# supplements and amplifies facts originall# alleged in the complaint relates bac to the date of the commencement of the action and is not barred b# the statute of limitations which e"pired after service of the original complaint. E!!ECT O! A ENDED PLEADING*

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


30

MEMORY AID
1. (dmissions in the superseded pleading can still be received in evidence against the pleader$ %. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. 1he amended or superseded, original pleading is not e"punged but remains on the record although the admission of the amended pleading amounts to withdrawal of the original pleading. RULE 11 ;2EN TO !ILE RESPONSIVE PLEADINGS AnsAer to t6e co&/-aint 1. <ithin 1+ da#s after service of summons, UA;5SS a different period is fi"ed b# the Court 'Sec. 1. %. *n case the defendant is a foreign private /uridical entit#! a. if it has a resident agent @ within 1+ da#s after service of summons to him b. if it has no resident agent, but it has an agent or officer in the Dhilippines @ within 1+ da#s after service of summons to said agent or officer c. if it has no resident agent nor agent nor officer @ in which case service of summons is to be made on the proper government office which will then send a cop# b# registered mail to the home office of the foreign private corporation @ within &I da#s after receipt of summons b# the home office of the foreign private entit#. &. *n case of service of summons b# publication @ within the time specified in the order granting leave to serve summons b# publication, which shall A01 be less than 7I da#s after notice '6ule 1?, Sec.1+..

IN

REMEDIAL LAW

?. *n case of a non-resident defendant on whom e"traterritorial service of summons is made, the period to answer should be at least 7I da#s. 1he court ma# e"tend the time to file the pleadings 3U1 ma# A01 shorten them. 1he 1+-da# period begins to run from receipt of summons. Section 3. AnsAer to a&ended co&/-aint. 1. *f the filing of an amended complaint is a matter of right within 1+ da#s from service of the amended complaint. %. *f the filing of the amended complaint is A01 a matter of right @ within 1I da#s counted from notice of the court order admitting the same. *f no new answer is filed b# the defendant in case an amendment has been made after he had filed his answer, the original answer of the defendant ma# serve as the answer to the amended complaint, and hence, cannot be declared in default. Section %. AnsAer to t6ird 7'o,rt61 etc.8>/art) co&/-aint. 1he third-part# defendant is served with summons /ust li e the original defendant, hence, he also has 1+, &I, 7I da#s from service of summons, as the case ma# be, to file his answer. Section B. AnsAer to s,//-e&entaco&/-aint. ;eave of court is re>uired in filing, the court ma# fi" a different period for answering the supplemental complaint in lieu of the reglementar# 1I-da# period. Section 1D. O&itted co,nterc-ai& or cross>c-ai&. 1he pleader ma# set up a counterclaim or cross-claim b# amendment before /udgment when he fails to set it up b# reason of oversight, inadvertence, or e"cusable neglect ort when /ustice re>uires. ;eave of court is necessar#%

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


31

MEMORY AID
RULE 10 3ILL O! PARTICULARS 3ILL O! PARTICULARS- a more definite statement of an# matter which appears vague or obscure in a pleading. PURPOSE* to aid in the preparation of a responsive pleading. =otion for bill of particulars must be filed within the reglementar# period for the filing of a responsive pleading. 1he filing of a motion if sufficient in form and substance, will interrupt the time to plead. 1he motion for bill of particulars ma# be granted in whole or in part as not all the allegations >uestioned b# the movant are necessaril# ambiguous as to re>uire clarification. ( bill of particulars ma# be filed either in a separate or an amended pleading. ( bill of particulars becomes part of the pleading which it supplements. E!!ECTS O! OTION 1. *f the motion is granted, the movant can wait until the bill of particulars is served on him b# the opposing part# and then he will have the balance of the reglementar# period within which to file his responsive pleading. %. *f his motion is denied, he will still have such balance of the reglementar# period to do so, counted from service of the order den#ing his motion. *n either case, he will have at least + da#s to file his responsive pleading. E''ect o' non>co&/-iance* 1. *f the 0rder is not obe#ed or in case of insufficient compliance therewith, the court! a. ma# order the stri ing out of the pleading or the portion thereof to

IN

REMEDIAL LAW

which the order is directed$ or b. ma e such order as it ma# deem /ust. %. *f plaintiff, his compliant will be stric en off and dismissed '6ule 1%, sec. ?$ 6ule 17, sec. &. &. *f defendant, his answer will be stric en off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff '6ule 1%, sec. ?$ 6ule 17, sec. ?$ 6ule 9, sec. &.. RULE 13 !ILING AND SERVICE O! PLEADINGS1 4UDG ENTS AND OT2ER PAPERS Aotice given to a part# who is dul# represented b# counsel is a nullit#, unless service thereof on the part# himself was ordered b# the court or the technical defect was waived. Section 3. anner o' 'i-ing. 1. Dersonall# %. b# registered mail 8iling b# mail should be through the registr# service which is made b# deposit of the pleading in the post office, and not through other means of transmission. *f registr# service is not available in the localit# of either sender or addressee, service ma# be done b# ordinar# mail. *f a private carrier is availed of b# the part#, the date of actual receipt b# the court of such pleading and not the date of deliver# to the carrier, is deemed to be the date of the filing of that pleading. NOTE* D56S0A(; and SU3S1*1U15: service as applied to pleadings have a different meaning compared to summons under 6ule 1?.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


32

MEMORY AID

IN

REMEDIAL LAW

ODES O! SERVICE PLEADINGS 1. D56S0A(; S56)*C5 a. :elivering personall# a cop# to the part# or his counsel or$ b. ;eaving a cop# in counsel9s office with his cler or with a person having charge thereof or$ c. ;eaving the cop# between 8 a.m. and 7 p.m. at the part#9s or counsel9s residence, if nown, with a person of sufficient age and discretion residing therein--if no person found in his office, or if his office is un nown, or if he has no office. %. S56)*C5 3K =(*; *f no registr# service is available in the localit#, of either sender or addressee, service ma# be done b# ordinar# mail. &. SU3S1*1U15: S56)*C5 :elivering the cop# to the cler of court with proof of failure of both personal and service b# mail. 4UDG ENTS1 !INAL ORDERS1 RESOLUTIONS 7Sec.=8 1. 3# personal service$ or %. 3# registered mail$ &. 3# publication, if part# is summoned b# publication and has failed to appear in the action. 1he# can be served onl# under the three modes. 1he# C(AA01 be served b# substituted service. NOTE* ( resort to modes other than b# personal service must be accompanied b# a ;ritten e<planation ;h( the servi#e or 'ilin5 ;as not &one personall( 'Sec. 11.. Section 1D. Co&/-eteness o' service. 1. Persona- service

a. b# handling a cop# to defendant$ or b. tendering him cop# if he refuses$ c. complete upon actual deliver# %. Service () ordinar) &ai-* Complete upon e"piration of 1I da#s after mailing, unless the court provides otherwise. &. Service () registered &ai-! a. Complete upon actual receipt b# the addressee$ or b. (fter + da#s from the date he received the 1st notice of the postmaster, whichever date is earlier. Section 10. Proo' o' 'i-ing. 8iling is proved b# its e"istence in the record of the case. *f it is not in the record, and! *f filed personall#! proved b# the written or stamped ac nowledgment of its filing b# the cler of court on a cop# of the same$ or *f filed b# registered mail! proved b# -the registr# receipt and the affidavit of the person who did the mailing. Section 13. Proo' o' service 1. Droof of personal service! a. <ritten admission of the part# served$ or b. 0fficial return of the server$ or c. (ffidavit of the part# serving. %. Droof of service b# ordinar# mail! (ffidavit of the person mailing$ &. Droof of service b# registered mail! a. (ffidavit, and b. 6egistr# receipt issued b# the mailing office. Section 15. Notice o' -is /endens. LIS PENDENS - a notice of a pendenc# of the action between the parties involving title to or right of possession over real propert#.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


33

MEMORY AID
*t serves as a warning to all persons, prospective purchasers or encumbrancers of the propert# in litigation to eep their hands off the propert# in litigation unless the# are prepared to gamble on the result of the proceedings. 1he defendant ma# also record a notice of lis pendens when he claims an affirmative relief in his answer. Aotice of lis pendens C(AA01 be cancelled on an e" parte motion or upon the mere filing of a bond b# the part# on whose title the notice is annotated, as section 1? provides that such cancellation ma# be authoriFed -.71 upon order of court, after proper showing that! 1. 1he notice is for the purpose of molesting the adverse part#$ or %. *t is not necessar# to protect the rights of the part# who caused it to be recorded. RULE 15 SU ONS PURPOSE O! SU ONS* 1. to ac>uire /urisdiction over the person of the defendant, and$ %. to give notice to the defendant that an action has been commenced against him. E!!ECT O! NON>SERVICE* Unless there is waiver, non-service or irregular service renders null and void all subse>uent proceedings and issuances in the action from the order of default up to and including the /udgment b# default and the order of e"ecution. <here the defendant has alread# been served with summons on the original complaint, no further summons is re>uired on the amended complaint if it does not introduce new causes of action. 3ut where the defendant was declared in default on the original complaint and the plaintiff subse>uentl# filed an amended complaint, new summons must be served on the defendant on the amended

IN

REMEDIAL LAW

complaint, as the original complaint was deemed withdrawn upon such amendment.

Section 3. 3) A6o& served. Summons ma# be served b#! 1. Sheriff %. Sheriff9s deput#, or &. 0ther proper court officers, or ?. 8or /ustifiable reasons, b# an# suitable person authoriFed b# the court issuing the summons. En,&eration is E$CLUSIVE. ALIAS SU ONS E issued when original has not produced its effect because it is defective in form or manner of service, and when issued, supersedes the first 'Section +.. FINDS O! SERVICE O! SU ONS* 1. personal service %. substituted service &. b# publication *n actions in personam where the defendant cannot be served with summons personall# or b# substituted service, the case must first be converted into an in rem or >uasi in rem action b# attaching the propert# of the defendant found in the Dhilippines before summons can be served b# publication. *f no propert# can be found, the action shall be archived but shall not be dismissed. (Citi=ens Suret( vs. Court !ppeals" SERVICE O! SU ONS ON DI!!ERENT ENTITIES
Servi#e on entit( Upon an# or all ;>o :uri&i#al defendants being sued personalit( under common name$ or person in charge of office Service upon minors and incompetents *n case of minors! b# serving upon the minor, regardless of age, (A: upon his legal guardian, or also upon either of his parents. *n case of incompetents! b# serving on him personall# (A: upon his

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


34

MEMORY AID
legal guardian, but not upon his parents, unless when the# are his legal guardians *A (AK 5)5A1, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for him. Service upon prisoner Service upon domestic private /uridical entit# 5A1*1K Serve on officer having management of the /ail or prison 1o the president, managing partner, general manager, corporate secretar#, treasurer, or in-house counsel. A015! Service upon a person other than those mentioned is invalid and does not bind the corporation. 1he enumeration is 5LC;US*)5. Serve on resident agent $ or if none$ on gov9t official designated b# law$ or on an# officer or agent of the corporation within the Dhilippines. in case defendant is the 6epublic of the Dhilippines - b# serving upon the Solicitor 2eneral in case of a province, cit# or municipalit#, or li e public corporations @ b# serving on its e"ecutive head, or on such other officer or officers as the law or the court ma# direct. 6e>uisites a. defendant does not reside or is not found within the Dhil. b. he action either! affects the personal status of plaintiff$ relates to or the sub/ect of which is propert# within the

IN

REMEDIAL LAW
Dhilippines in which defendant has a lien or interest$ demands a relief which consists wholl# or in part in e"cluding the defendant from an# interest in an# propert# within the Dhil$ or propert# of defendant has been attached in the Dhil.

Service upon foreign private /uridical entit#

Service upon public corporations

ode o' service a. with leave of court served outside the Dhil. 3# personal service$ or b.with leave of court serve b# publication in a newspaper of general circulation, in which case cop# of the summons and order of court must also be sent b# registered mail to the last nown address of defendant$ or c. an# other manner the court deem sufficient. Service upon a resident temporaril# out of the Dhil. Service upon an un nown defendant or whose whereabouts are un nown Substituted service or with leave of court, personal service out of the Dhil. as under e"traterritorial service <ith leave of court, b# publication in a newspaper of general circulatiuon

5"traterritorial service

Section 0D. Vo-,ntar) a//earance. (n# form of appearance in court, b# the defendant, b# his agent authoriFed to do so, or b# attorne#, is e>uivalent to service of summons 5LC5D1 where such appearance is precisel# to ob/ect to the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


35

MEMORY AID
/urisdiction of the court over the person of the defendant. *nclusion in a motion to dismiss of other grounds aside from lac of /urisdiction over the person of the defendant shall A01 be deemed a voluntar# appearance. RULE 1% OTIONS OTION @ is an application for relief other than b# a pleading. GENERAL RULE* =otions must be in writing. E$CEPTION* 1hose made in open court or in the course of hearing or trial. FINDS O! OTIONS

IN

REMEDIAL LAW

manner as shall ensure its re#eipt at least & da#s before the hearing. E$CEPTIONS* 1. 5" parte motions %. Urgent motions &. =otions agreed upon b# the parties to be heard on shorter notice or /ointl# submitted b# the parties, and ?. =otions for summar# /udgment which must be served at least 1I da#s before its hearing +. Aon-litigated motions. Section %. Notice o' 6earing. A01*C5 08 E5(6*A2 shall! 1. 3e addressed to all parties concerned %. Specif# the time and date of the hearing which must not be later than 1I da#s after the filing of the motion NOTE* (n# motion that does not compl# with Sections ?, + and 7 of this 6ule is a mere scrap of paper, should not be accepted for filing and, if filed, is not entitled to /udicial cogniFance and does not affect an# reglementar# period involved for the filing of the re>uisite pleading. O&ni(,s otion R,-e - (ll available grounds for ob/ection in attac ing a pleading, order, /udgment, or proceeding should be invo ed at one time, otherwise, the# shall be deemed waived. otion 'or -eave to file a pleading or motion shall be accompanied b# the pleading or motion sought to be admitted, otherwise, the latter will be denied. RULE 1+ OTION TO DIS ISS A otion to Dis&iss is NOT a responsive pleading. Section 1. Gro,nds. 1. Ao /urisdiction over the person of the defending part#

a. motion !- PART!- made without the presence or a notification to the other part# because the >uestion generall# presented is not debatable. b. motion O. CO/RS! @ where the movant is entitled to the relief or remed# sought as a matter of discretion on the part of the court. c. 0(T(1AT!" motion @ one made with notice to the adverse part# to give an opportunit# to oppose. d. SP!C(A0 motion- motion addressed to the discretion of the court. GENERAL RULE! ( motion cannot pra# for /udgment. E$CEPTIONS* 1. =otion for /udgment on the pleadings %. =otion for summar# /udgment &. =otion for /udgment on demurrer to evidence. Section 5. 2earing on &otion. 3>DA" NOTICE RULE GENERAL RULE* Service of the cop# of motions should be made in such a

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


3

MEMORY AID
%. Ao /urisdiction over the sub/ect matter of the claim &. *mproper venue ?. Ao legal capacit# to sue +. ;itis pendentia 7. 6es /udicata 7. Drescription 8. States no cause of action 9. Claim or demand has been paid, waived, abandoned, or otherwise e"tinguished 1I. Claim is unenforceable under the Statute of 8rauds 11. Aon-compliance with a condition precedent for filing claim

IN

REMEDIAL LAW

Eowever, such admission is limited onl# to all material and relevant facts which are well pleaded in the complaint. (n action cannot be dismissed on a ground not alleged in the motion even if said ground is provided for in 6ule 17. E$CEPT* 1. 1hose cases where the court ma# dismiss a case motu proprio 'Sec. 1, 6ule 9. %. Such ground appears in the allegations of the complaint or in plaintiff9s evidence RE#UISITES O! LITIS PENDENTIA 1. Darties to the action are the same %. 1here is substantial identit# in the cause of action and relief sought &. 1he result of the first action is determinative of the second in an# event and regardless of which part# is successful =otion to dismiss ma# be filed in either suit, not necessaril# in the one instituted first. RE#UISITES O! RES 4UDICATA 1. Drevious final /udgment %. 4urisdiction over the sub/ect matter and the parties b# the court rendering it &. 4udgment upon the merits ?. *n a case prosecuted between same parties +. *nvolving the same sub/ect matter 7. Same cause of action 1here could be res /udicata without a trial, such as in a /udgment on the pleadings '6ule &?.$ a summar# /udgment '6ule &+.$ or an order of dismissal under Section & of 6ule 17. <hen the ground for dismissal is that the complaint states no cause of action, such fact can be determined onl# from the facts alleged in the complaint.

OTION TO DIS ISS UNDER RULE 1+

OTION TO DIS ISS UNDER RULE 33 7de&,rrer to evidence8


based on insufficienc# of evidence.

2rounded on preliminar# ob/ections.

ma# be filed b# an# =a# be filed onl# b# defending part# the defendant against against whom a claim the complaint of the is asserted in the plaintiff. action. should be filed within =a# be filed onl# after the time for but prior the plaintiff has to the filing of the completed the answer of the presentation of his defending part# to the evidence. pleading asserting the claim against him. *f denied, defendant *f denied, defendant answers, or else he ma# present evidence ma# be declared in if granted, plaintiff default appeals and the 0rder *f granted, plaintiff of the dismissal is ma# appeal or if reversed, the subse>uent case is not defendant loses his barred, he ma# re-file right to present the case evidence.

E''ect o' &otion to dis&iss* ( motion to dismiss h#potheticall# admits the truth of the facts alleged in the complaint.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


3!

MEMORY AID
<here the plaintiff has not e.6a,sted a-ad&inistrative re&edies, the complaint not having alleged the fact of such e"haustion, the same ma# be dismissed for failure to state a cause of action. Aon-compliance with P.D. 1%DC 7Hatarungang Dambaranga# ;aw. ma# result to dismissal of the case on the ground of non-compliance with a condition precedent. (n action cannot be dismissed on the ground that the complaint is vague or indefinite. 1he remed# of the defendant is to move for a bill of particulars or avail of the proper mode of discover#. GENERAL T"PES O! A OTION TO DIS ISS 1. motion to dismiss before answer under 6ule 17 %. motion to dismiss under 6ule 17 a. upon notice b# plaintiff b. upon motion of plaintiff c. due to fault of plaintiff &. motion to dismiss on demurrer to evidence after plaintiff has rested his case under 6ule && ?. motion to dismiss the appeal filed either in the lower court '6ule ?1,Sec. 1&. or in the appellate court '6ule +I, Sec.1 ..

IN

REMEDIAL LAW

to dismiss, counted from his receipt of the denial order, but not less than + da#s in an# event. 1he same rule of granting onl# the balance of the period is followed where the court, instead of den#ing the motion to dismiss, orders the amendment of the pleading challenged b# the motion, in which case, the balance of the period to answer runs from his receipt of the amended pleading.

Section %. E''ect o' dis&issaGENERAL RULE! 1he action or claim ma# be refiled. E$CEPTION* 1he action cannot be refiled if it was dismissed on an# of these grounds! 1. 6es /udicata$ %. Drescription$ &. 5"tinguishment of the claim or demand$ ?. Unenforceabilit# under the Statute of 8rauds. Section +. P-eading gro,nds as a''ir&ative de'enses. *f no motion to dismiss had been filed, an# of the grounds for dismissal provided for in 6ule 17, *AC;U:*A2 *=D60D56 )5AU5, ma# be pleaded as affirmative defenses and preliminaril# heard in the discretion of the court. :ismissal under this section @ <*1E0U1 pre/udice to the prosecution in the same or separate action of a C0UA156C;(*= pleaded in the answer RULE 1B DIS ISSAL O! ACTIONS Section 1. Dis&issa- ,/on notice () /-ainti''. :ismissal is effected not b# motion but b# mere A01*C5 of dismissal which is a matter of right 358065 the defendant has answered or moved for a summar# /udgment.

E!!ECTS O! ACTION ON TD
0rder granting motion to dismiss is final order 0rder den#ing the motion to dismiss is interlocutor#

RE ED"
(ppeal from the order of dismissal Certiorari and prohibition if there is grave abuse of discretion amounting to lac or e"cess of /urisdiction under 6ule 7+

Section 5. Ti&e to /-ead. :efendant is granted onl# the balance of the reglementar# period to which he was entitled at the time he filed his motion

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


3"

MEMORY AID
3ut notice of dismissal re>uires an order of the court confirming the dismissal. Such dismissal is ;IT2OUT PRE4UDICE1 E$CEPT! 1. <here the notice of dismissal so provides$ %. <here the plaintiff has previousl# dismissed the same case in a court of competent /urisdiction 'T;O>DIS ISSAL RULE.$ &. 5ven where the notice of dismissal does not provide that it is with pre/udice but it is premised on the fact of pa#ment b# the defendant of the claim involved. Section 0. Dis&issa- ,/on &otion o' /-ainti''. <here the plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without pre/udice to the right of the defendant to either! 1. Drosecute his counterclaim in a separate action, *n this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. >OR> %. 1o have the same resolved in the same action. *n such case, defendant must manifest such preference to the trial court within 1+ da#s from notice to him of plaintiff9s motion to dismiss. 1hese alternative remedies of the defendant are available to him 652(6:;5SS 08 <E51E56 E*S C0UA156C;(*= *S C0=DU;S06K 06 D56=*SS*)5.

IN

REMEDIAL LAW

Dis&issa- ,nder t6is r,-e is ;IT2OUT PRE4UDICE1 5LC5D1! 1. <hen otherwise stated in the motion to dismiss$ %. <hen stated to be with pre/udice in the order of the court. 1he approval of the court is necessar# in the dismissal or compromise of a class suit. Section 3. Dis&issa- d,e to 'a,-t o' /-ainti''. CAUSES !OR DIS ISSAL 1. Dlaintiff fails to appear for no /ustifiable cause on the date of the presentation of his evidence in chief on the complaint %. Dlaintiff fails to prosecute his action for an unreasonable length of time '.-772 P -S2?04" &. Dlaintiff fails to compl# with these 6ules or an# order of the court. Un/ustifiable inaction on the part of plaintiff to have the case set for trial is a ground for dismissal for 'ai-,re to /rosec,te. Complaint ma# be dismissed 1. Upon motion of the defendant, or %. Upon court9s own motion. Dis&issa- s6a-- 6ave t6e e''ect o' an AD4UDICATION UPON T2E ERITS 7;IT2 PRE4UDICE81 ,n-ess ot6erAise dec-ared () t6e co,rt.

SECTION 0
:ismissal is at the instance of the plaintiff$

SECTION 3
:ismissal is not procured b# plaintiff though /ustified b# causes imputable to him$

:ismissal is a matter :ismissal is a matter of procedure, without of evidence, an pre/udice unless ad/udication on the otherwise stated in merits$

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


3#

MEMORY AID
the order of the court or on plaintiff9s motion to dismiss his own complaint$ :ismissal is without :ismissal is without pre/udice to the right pre/udice to the right of the defendant to of the defendant to prosecute his prosecute his counterclaim in a counterclaim on the separate action unless same or separate wJin 1+ da#s from action. notice of the motion he manifests his intention to have his counterclaim resolved in the same action

IN

REMEDIAL LAW

Civi- Code, a special power of attorne# is re>uired.

RULE 1C PRE>TRIAL PRE>TRIAL- a mandator# conference and personal confrontation before the /udge between the parties and their respective counsel. 1he plaintiff must promptl# move e" parte that the case be set for pre-trial , and this he must do upon the service and filing of the last pleading. 1he pre-trial and trial on the merits of the case must be held on separate dates. ;6en non>a//earance o' a /art) &a) (e e.c,sed 7Sec.58* 1. *f a valid cause is shown therefore %. *f a representative shall appear in his behalf full# authoriFed in writing to! a. 5nter into an amicable settlement b. Submit to alternative modes of dispute resolution c. 5nter into stipulations or admissions of facts and of documents ( special authorit# for an attorne# to compromise is re>uired under Sec. 031 R,-e 13C. Under Art. 1CBC 7c8 o' t6e

E!!ECT O! NON>APPEARANCE O! PLAINTI!!! Cause for dismissal of the action, with pre/udice, unless otherwise ordered b# the court. E!!ECT O! NON>APPEARANCE O! DE!ENDANT* Cause to allow the plaintiff to present evidence e" parte and the court to render /udgment on the basis thereof. Pre>tria- (rie'. *t is the mandator# dut# of the parties to seasonabl# file their pre-trial briefs under the conditions and with the sanctions provided therein. 8ailure to file pre-trial brief has the same effect as failure to appear at the pre-trial. Record o' /re>tria-. 1he contents of the D65-16*(; order shall control the subse>uent course of the action, UA;5SS modified before trial to prevent manifest in/ustice. ( part# is deemed to have waived the delimitations in a pre-trial order if he failed to ob/ect to the introduction of evidence on an issue outside of the pretrial order, as well as in cross-e"amining the witness in regard to said evidence.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


40

MEMORY AID
@- C+! , -. P 28, 4!7 P7S. S22 ,+2 .2A, P!G2.

IN

REMEDIAL LAW

1. 0ne who has legal interest in the matter in litigation %. 0ne who has legal interest in the success of either of the parties, &. 0ne who has an interest against both parties ?. 0ne who is so situated as to be adversel# affected b# a distribution or other disposition of propert# in the custod# of the court or of an officer thereof. !ACTORS TO 3E CONSIDERED 3" T2E COURT 1. <hether or not the intervention will undul# dela# or pre/udice the ad/udication of the rights of the original parties$

PRE>TRIAL

Ao Settlement

(micable Settlement

8ailure to (ppear

(greements made b# parties$ (mendments to pleading$ Schedule of trial

*f plaintiff is (bsent, when so re>uired to attend, the court ma# dismiss the case

*f defendant is absent, court ma# hear evidence of plaintiff e" parte

TRIAL *f evidence is insufficient to prove plaintiff9s cause of action or defendant9s counterclaim, court rules in favor of either one or dismisses the case

Co,rt renders decision

%. <hether or not the intervenor9s rights ma# be full# protected in a separate proceeding. RULE 1= INTERVENTION ;2O &a) interveneI 1he interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


41

MEMORY AID
and immediate character that the intervenor will either gain or lose b# the direct legal operation and effect of the /udgment.

IN

REMEDIAL LAW

SU3POENA

SU

ONS

INTERVENTION
(n ancillar# action. Droper in an# of the four situations mentioned in this 6ule.

INTERPLEADER
(n original action. Dresupposes that the plaintiff has no interest in the sub/ect matter of the action or has an interest therein, which in whole or in part, is not disputed b# the other parties to the action.

an order to appear and 0rder to answer testif# or to produce complaint boo s and documents ma# be served to a Served on the non-part# defendant needs tender of does not need tender ilometrage, of ilometrage and attendance fee and other fees reasonable cost of production fee

SU3POENA AD TESTI!ICANDU @ a process directed to a person re>uiring him to attend and to testif# at the hearing or the trial of an action, or at an# investigation conducted b# competent authorit#, or for the ta ing of his deposition. SU3POENA DUCES TECU @ a process directed to a person re>uiring him to bring with him boo s, documents, or other things under his control. Section 0. 3) A6o& iss,ed ;2O &a) iss,e 1. Court before whom the witness is re>uired to attend %. Court of the place where the deposition is to be ta en &. 0fficer or bod# authoriFed b# law to do so in connection with investigations conducted b# said officer or bod# ?. (n# 4ustice of the SC or of the C( in an# case or investigation pending within the Dhilippines. SU3D05A( 10 ( D6*S0A56 @ must be for a valid purpose$ if prisoner re>uired to appear in court is sentenced to death, reclusion perpetua or life imprisonment and is confined in prison @ must be authoriFed b# the SC. Section 5. #UAS2ING A SU3POENA. (. S,(/oena DUCES TECU ma# be >uashed upon proof that! 1. *t is unreasonable and oppressive$ %. 1he articles sought to be produced do not appear prima facie to be relevant to the issues$

:efendants are :efendants are being alread# original sued precisel# to parties to the pending implead them suit

Section 0. Ti&e to intervene. (t an# time before rendition /udgment b# the trial court.

of

4USTI!ICATION* 3efore /udgment is rendered, the court, for good cause shown, ma# still allow the introduction of additional evidence and that is still within the liberal interpretation of the period for trial. Since no /udgment has #et been rendered, the matter sub/ect of the intervention ma# still be readil# resolved and integrated in the /udgment disposing of all claims in the case. RE EDIES !OR T2E DENIAL O! INTERVENTION* 1. !PP2!7 %. M!.3!M0S if there is grave abuse of discretion *f there is improper granting of intervention, the remed# of the part# is certiorari. RULE 01 SU3POENA

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


42

MEMORY AID
&. 1he person as ing for the subpoena does not advance the cost for the production of the articles desired. 3. S,(/oena AD TESTI!ICANDU ma# be >uashed if the witness is not bound thereb#. *n 5*1E56 case, the subpoena ma# be >uashed for failure to tender the witness fees and ilometrage allowed () t6e R,-es. GENERAL RULE a. 1he court which issued the subpoena ma# issue a warrant for the arrest of the witness and ma e him pa# the cost of such warrant and seiFure, if the court should determine that his disobedience was willful and without /ust cause 'Sec. 8.$ b. 1he refusal to obe# a subpoena without ade>uate cause shall be deemed a contempt of the court issuing it 'Sec.9.. E.ce/tions* Drovisions regarding the compelling of attendance 'Sec. 8. and contempt 'Sec. 9. does not appl# where! a. <itness resides more than 1II m from his residence to the place where he is to testif# b# the ordinar# course of travel, generall#, b# overland transportation 7VIATOR" RIG2T8. b. Dermission of the court in which the detention prisoner9s case is pending was not obtained. RULES O! DISCOVER" DISCOVER" - is the procedure b# which one part# in an action is enabled to obtain before trial nowledge of relevant facts and of material evidence in the possession of the adverse part# or of a witness. Rationa-e o' discover)* to enable the parties to obtain the fullest possible

IN

REMEDIAL LAW

nowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dar . odes o' discover) ,nder t6e R,-es o' Co,rt 1. :epositions pending action '6ule %&.. %. :epositions before action or pending appeal '6ule %?.. &. *nterrogatories to parties '6ule %+.. ?. (dmission b# adverse part# '6ule %7.. +. Droduction or inspection of documents, or things '6ule %7.. 7. Dh#sical and mental e"amination of persons '6ule %8.. Discover) (e'ore ansAer. *t is onl# in the e"ceptional or unusual case that the need for discover# arises, or that it should be allowed before service of answer. =odes of :iscover# are intended to be CU=U;(1*)5, and not alternative nor mutuall# e"clusive. :iscover# is A01 =(A:(106K but failure to avail carries sanctions in R,-es 0% and 0+.

RULE 03 DEPOSITIONS PENDING ACTION DEPOSITION @ is a written testimon# of a witness given in the course of a /udicial proceeding in advance of the trial or hearing upon oral e"amination or in response to written interrogatories and where an opportunit# is given for crosse"amination. :epositions are intended as a means to compel disclosure of facts resting in the nowledge of a part# or other person, which are relevant in a suitJproceeding. CLASSI!ICATIONS O! DEPOSITIONS 1. :epositions on 06(; 5L(=*A(1*0A and :epositions upon <6*115A *A156602(106*5S

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


43

MEMORY AID
%. :epositions "! B!N! !SS! those ta en for purposes of a pending action '6ule %&. $ and &. :epositions (N P!RP!T/A2 R!( 2!2OR(A2 - those ta en to perpetuate evidence for purposes of anticipated action, or in the event of further proceedings in a case on appeal, and to preserve it against danger of loss '6ule %?.. ;2EN TAFEN <*1E ;5()5 08 C0U61 1. after /urisdiction has been obtained over an# defendant or over the propert# which is the sub/ect of the action and 358065 answer. %. :eposition of a person confined in prison. <*1E0U1 ;5()5 08 C0U61 (8156 answer (A: deponent is not confined in prison. Section 5. Use o' de/ositions. <here the witness is available to testif# and the situation is not one of those e"cepted under Sec. ?, his deposition is inadmissible in evidence and he should be made to testif#. *t can be used as evidence b# a part# for an# purpose under the specific conditions in Sec. ?. DEPONENT
(n# person <itness, whether or not a part#

IN

REMEDIAL LAW
3# an# part# for an# purpose if the court finds the + instances occurring

SCOPE O! IN#UIR" IN DEPOSITIONS* 1. =atter which is relevant to the sub/ect of the pending action$ %. Aot privileged &. Aot restricted b# a protective order Certiorari will not lie against an order admitting or re/ecting a deposition in evidence, the remed# being an appeal from the final /udgment. Section B. E''ect o' ta@ing de/ositions. ( part# shall not be deemed to ma e a person his own witness for an# purpose b# ta ing his deposition because depositions are ta en for discover# and not for use as evidence. E.ce/tion* *f a part# offers the deposition in evidence, then he is deemed to have made the deponent his witness 7Sec.C8 E.ce/tion to t6e E.ce/tion* Unless the deposition is that of an# adverse part#, and unless, of course, the deposition is used for impeaching or contradicting the deponent 7Sec.C8. Section 1D and 11. Persons (e'ore A6o& de/ositions &a) (e ta@en. ;IT2IN T2E P2ILIPPINES* 1. /udge %. notar# public &. an# person authoriFed to administer oaths, as stipulated b# the parties in writing OUTSIDE T2E P2ILIPPINES* 1. on notice, before a secretar# of embass# or legation, consul general, consul, vice-consul, or consular agent of the Dhil. %. before such person or officer as ma# be appointed b# commission or letters rogator#

USE
3# an# part# for contradicting or impeaching the testimon# of deponent as witness

( part# or an# one 3# an adverse part# for who at the time of an# purpose the deposition was an 088*C56, :*65C106, or =(A(2*A2 (25A1 of a public or private corp., partnership, or association which is a part#

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


44

MEMORY AID
&. an# person authoriFed to administer oaths, as stipulated b# the parties in writing Section 10. rogator). Co&&ission or -etters

IN

REMEDIAL LAW

CO

ISSION

LETTERS ROGATOR"

*ssued to a non*ssued to the /udicial foreign officer appropriate /udicial who will directl# ta e officer of the foreign the testimon# countr# who will direct somebod# in said foreign countr# to ta e down testimon# (pplicable rules of (pplicable rules of procedure are those of procedure are those of the re>uesting court the foreign court re>uested to act 6esorted to if 6esorted to if the permission of the e"ecution of the foreign countr# is commission is refused in given the foreign countr# ;eave of court is not ;eave of court is necessar# necessar#

of an# right nor even of the facts to which the# relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimon# was ever had. Eowever, in the absence of an# ob/ection to its ta ing, and even if the deponent did not testif# at the hearing, the perpetuated testimon# constitutes prima 'a#ie proof of facts referred to in the deposition. Section +. Use o' de/osition. *f deposition is ta en under this 6ule, it ma# be used in an# action involving the S(=5 SU345C1 =(1156 subse>uentl# brought. Section B. De/ositions /ending a//ea-. Sec. 7 is the procedure in perpetuating testimon# (8156 4U:2=5A1 *A 1E5 61C and :U6*A2 1E5 D5A:5ACK 08 (A (DD5(;.

Section 1C. otion to ter&inate or -i&it e.a&ination. A" 3E !ILED* 1. an# time during the ta ing of the deposition %. on motion or petition of an# part# or of the deponent$ or &. upon showing that the e"amination is conducted in ! a. bad faith b. in such manner as unreasonabl# to anno#, embarrass, or oppress the deponent or part# RULE 05 DEPOSITIONS 3E!ORE ACTION OR PENDING APPEAL :epositions under this 6ule are also ta en conditionall#, to be used at the trial onl# in case the deponent is not available. :epositions under this 6ule do not prove the e"istence of an# right and the testimon# perpetuated is not in itself conclusive proof, either of the e"istence

RULE 0% INTERROGATORIES TO PARTIES DU6D0S5 of <ritten *nterrogatories! to elicit facts from an# adverse part# 'answers ma# also be used as admissions of the adverse part#. <ritten interrogatories and the answers thereto must both be 8*;5: and S56)5:.

Interrogatories

3i-- o' Partic,-ars

( part# ma# properl# ( part# ma# properl# see disclosure of see disclosure onl# of matters of proof matters which define which ma# later be the issues and become made a part of the a part of the records as evidence. pleadings.

( part# ma# serve written interrogatories! 1. <*1E0U1 ;5()5 08 C0U61 @ after answer has been served, for the first set of interrogatories. %. <*1E ;5()5 08 C0U61 @ before answer has been served '65(S0A! at that time, the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


45

MEMORY AID
issues are not #et /oined and the disputed facts are not #et clear, when more than one set of interrogatories is to be served.. ( /udgment b# default ma# be rendered against a part# who fails to answer written interrogatories 0nl# one set of interrogatories b# the same part# is allowed. ;eave of court is necessar# for succeeding sets of interrogatories. Section +. E''ect o' 'ai-,re to serve Aritten interrogatories. 6ule %+ and 6ule %7 are directed to the part# who fails and refuses to 65S061 to the discover# procedures, and should not be confused with the provisions of 6ule %9 which provides for sanctions or other conse>uences upon a part# who refuses or fails to C0=D;K with discover# procedures dul# availed of b# opponent.
(s to :eponent Dart# or ordinar# witness

IN

REMEDIAL LAW
(s to :eponent part# onl#

(s to Drocedure (s to Drocedure <ith intervention of no intervention. the officer authoriFed <ritten b# the Court to ta e interrogatories are deposition directed to the part# himself (s to Scope :irect, cross, redirect, re-cross *nterrogatories no fi"ed time (s to Scope onl# one set of interrogatories *nterrogatories 1+ da#s to answer unless e"tended or reduced b# the court

RULE 0+ AD ISSION 3" ADVERSE PART" Section 1. Re9,est 'or ad&ission. DU6D0S5 08 written re>uest for admission is to e"pedite 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 b# reasonable in>uir#. <hen re>uest ma# be made! at an# time after the issues have been /oined. ;6at re9,est &a) inc-,de 1. (dmission of the genuineness of an# material and relevant document described in and e"hibited with the re>uest. %. (dmission of the truth of an# material and relevant matter of fact set forth in the re>uest. &. Under this rule, a matter of fact not related to an# documents ma# be presented to the other part# for admission or denial. Section 0. I&/-ied Ad&ission. 1he effect of a 8(*;U65 to ma e a repl# to a re>uest for admission is that each of the matters of which an admission is re>uested is deemed admitted. ( sworn statement either den#ing specificall# each matter or setting forth

1he /ustification for this provision is that the part# in need of relevant facts having foregone the opportunit# to in>uire into the same from the other part# through means available to him, he should not thereafter be permitted to undul# burden the latter with courtroom appearances or other cumbersome processes. Unless a part# had been served written interrogatories, he ma# not be compelled b# the adverse part#! 1. to give testimon# in open court, or %. give a deposition pending appeal. 1he onl# e.ce/tion is when the court allows it for 200: C(US5 shown and to prevent a failure of /ustice. De/ositions U/on Interrogatories to ;ritten Parties ,nder R,-e Interrogatories to 0% Parties ,nder R,-e 03 Sec. 0%

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


4

MEMORY AID
in detail the reasons wh# he cannot truthfull# admit or den# those matters must be filed and served upon the part# re>uesting the admission. Section 3. E''ect o' ad&ission. US5! (n admission under this section is for the purpose of the pending action onl# and cannot be used in other proceedings. 1he part# who fails or refuses to re>uest the admission of facts in >uestion is prevented from thereafter presenting evidence thereon UA;5SS otherwise allowed b# the court 7Sec.%8. RULE 0B PRODUCTION OR INSPECTION O! DOCU ENTS OR T2INGS Droduction of documents affords more opportunit# for discover# than a subpoena duces tecum because in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are re>uired to be produced. 1he TEST to be applied in determining the relevanc# of the document and the sufficienc# of their description is one of reasonableness and practicalit#. PRODUCTION OR INSPECTION O! DOCU ENTS OR T2INGS SU3POENA DUCES TECU

IN

REMEDIAL LAW

1he &enta- condition of a part# is in controvers# in proceedings for 2U(6:*(ASE*D over an imbecile or insane person, while the /6)sicacondition of the part# is generall# involved in DEKS*C(; *A4U6*5S cases. Since the results of the e"amination are intended to be made public, the same are not covered b# the ph#sician-patient privilege. Section 5. ;aiver o' /rivi-ege. <here the part# e"amined re>uests and obtains a report on the results of the e"amination the conse>uences are! 1. he has to furnish the other part# a cop# of the report of an# previous or subse>uent e"amination of the same ph#sical and mental condition, (A: %. he waives an# privilege he ma# have in that action or an# other involving the same controvers# regarding the testimon# of an# other person who has so e"amined him or ma# thereafter e"amine him. RULE 0= RE!USAL TO CO PL" ;IT2 DISCOVER" ODES O!

5ssentiall# a mode of means of compelling discover# production of evidence 1he 6ules is limited to ma# be directed to a the parties to the person whether a action part# or not 1he order under this ma# be issued upon an 6ule is issued onl# e" parte application. upon motion with notice to the adverse part#

RULE 0C P2"SICAL AND ENTAL E$A INATION O! PERSONS

SANCTIONS 1. Contempt$ %. Da#ment of reasonable fees$ &. 1he matters regarding which the >uestions were as ed, character or description of land et al., be ta en to be in accordance with the claim of part# obtaining the order$ ?. Drohibition on the refusing part# to produce evidence or support or oppose designated claims or defenses$ +. Stri ing out pleadings, order the dismissal of the action or sta# the action until compliance or to render /udgment b# default. 7. 0rder the arrest of the refusing part# e"cept in cases of ph#sical or mental e"amination.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


4!

MEMORY AID
RULE 3D TRIAL TRIAL @ /udicial process of investigating and determining the legal controversies starting with the production of evidence b# the plaintiff and ending with his closing arguments. GENERAL RULE* when an issue e"ists, trial is necessar#. :ecision should not be made without trial. E$CEPTIONS* when there ma# be /udgment without trial! 1. 4udgment on the Dleading '6ule &?. %. Summar# 4udgment '6ule &+. &. 4udgment on Compromise ?. 4udgment b# Confession +. :ismissal with Dre/udice '6ule 17. Section 3. Re9,isites o' &otion to /ost/one tria- 'or a(sence o' evidence. 1here must be an affidavit showing! 1. materialit# or relevance of such evidence$ and %. due diligence in procuring it. *f the adverse part# admits the facts for which evidence is to be presented, the trial will not be postponed.
Dlaintiff presents evidence

IN

REMEDIAL LAW

&otion to /ost/one tria- 'or i--ness o' /art) or co,nse-. 1here must be an affidavit or sworn certification showing! 1. presence of part# or counsel at the trial is indispensable$ and %. character of his illness is such as to render his non-attendance e"cusable. Section %. Order o' directed () t6e co,rt. tria,n-ess

Unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pretrial order. Section +. Agreed state&ents o' 'acts. 1his is nown as S1*DU;(1*0A 08 8(C1S and is among the purposes of a pre-trial. 1he parties ma# also stipulate verball# in open court. Such stipulations are binding unless relief therefrom is permitted b# the court on good cause shown, such as error or fraud. 3ut counsel cannot stipulate on what their respective 5)*:5AC5 consists of and as that /udgment be rendered on the basis of such stipulation. Stipulations of facts are not permitted in actions for (AAU;=5A1 08 =(66*(25 and for ;52(; S5D(6(1*0A. Section C. S,s/ension o' actions. Art. 0D3D o' t6e Civi- Code. 5ver# civil action or proceeding shall be suspended 1. *f willingness to discuss a possible compromise is

Section 5. Re9,isites

:efendant presents evidence to support his defenseJcountercla imJcrossclaimJ third part# complaint

:efendant files demurrer to evidence

o'

1hird part# defendant presents eidence, if an#

*f court grants motion! 6enders dismisal

*f court denies motion! Continues with hearing

6ebuttal 5vidence b# (fter RDarties EMEDIAL LAW COMMITTEE Dresentation of CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae evidence! %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ oral arguments S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence, submission of DECISION memoranda

San Beda College of Law


4"

MEMORY AID
e"pressed b# one or both parties$ or %. *f it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other part# refused the offer. Section =. 4,dge to receive evidence< de-egation to c-er@ o' co,rt. GENERAL RULE! the /udge must himself personall# receive and resolve the evidence of the parties. 2oAever, the reception of such evidence ma# be delegated under the following conditions! 1. 1he delegation ma# be made onl# in defaults or e" parte hearings, or an agreement in writing b# the parties. %. 1he reception of evidence shall be made onl# b# the cler of that court who is a member of the bar. &. Said cler shall have no power to rule on ob/ections to an# >uestion or to admission of evidence or e"hibits$ and ?. Ee shall submit his report and transcripts of the proceedings, together with the ob/ections to be resolved b# the court, within 1I da#s from the termination of the hearing. RULE 31 CONSOLIDATION OR SEVERANCE GENERAL RULE* Consolidation is discretionar# upon the court E$CEPTIONS* Consolidation becomes a matter of dut# when! 1. if the cases are pending before the same /udge 06 %. if filed with different branches of a court and one of such cases has A01 been partiall# tried. RE#UISITES !OR CONSOLIDATION* 1. <hen actions involving a common >uestion of law or fact, and %. 1he actions are pending before the same court

IN

REMEDIAL LAW

if filed with :*88565A1 courts, authoriFation from the SC is necessar#. 3 ;A"S O! CONSOLIDATING CASES* 1. b# 65C(S1*A2 1E5 C(S5S (;65(:K *AS1*1U15:, conducting onl# one hearing and rendering onl# one decision$ %. b# C0AS0;*:(1*A2 1E5 5L*S1*A2 C(S5S and holding onl# one hearing and rendering onl# one decision$ and &. b# E5(6*A2 0A;K 1E5 D6*AC*D(; C(S5 and suspending the hearing on the others until /udgment has been rendered in the principal case. 7TEST>CASE ET2OD8 Consolidation of cases on appeal and assigned to different divisions of the SC and the C( is also authoriFed. 2enerall#, the case which was appealed later and bearing the higher doc et no. is consolidated with the case having the lower doc et no. RULE 30 TRIAL 3" CO ISSIONER CO ISSIONER> a person to whom a cause pending in court is referred, for him to ta e testimon#, hear the parties and report thereon to the court, and upon whose report, if confirmed, /udgment is rendered. 6eference to a commissioner ma# be had b# the written consent of both parties. Situations when reference to a Commissioner ma# be made on motion 'Sec.%.! 1. 5"amination of a long account %. 1a ing of an account is necessar# &. Muestion of fact, other than upon the pleading arises$ or ?. Carr#ing a /udgment or order into effect. :isobedience to a subpoena issued b# the commissioner is deemed a contempt of the court which appointed the latter.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


4#

MEMORY AID
RULE 33 DE URRER TO EVIDENCE Section 1. De&,rrer to evidence.

IN

REMEDIAL LAW

DE URRER TO EVIDENCE
*t is presented after the plaintiff has rested his case

OTION TO DIS ISS

presented before a responsive pleading 'answer. is made b# the defendant 1he ground is based it ma# be based on an# on insufficienc# of of those enumerated evidence in 6ule 17

0 Scenarios OTION DENIED OTION GRANTED 3UT REVERSED ON APPEAL

=ovant shall have the =ovant is deemed to right to present his have waived his right evidence to present evidence. 1he decision of the appellate court will be based onl# on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence. denial is order of the court is *A156;0CU106K. Sec. an (:4U:*C(1*0A 0A 1 , 6ule &7 'that 1E5 =56*1S, hence, /udgment should state the re>uirement in clearl# and distinctl# Sec. 1, 6ule &7 the facts and the law should be complied on which it is based., with. will not appl#. 1he denial is A01 appealable.

if the court finds if the court finds the plaintiff9s evidence prosecution9s insufficient, it will evidence insufficient, grant the demurrer b# it will grant the dismissing the demurrer b# complaint. 1he rendering /udgment /udgment of dismissal is ac>uitting the appealable b# the accused. 4udgment of plaintiff. *f plaintiff ac>uittal is not appeals and /udgment appeallable$ double is reversed b# the /eopard# sets-in appellate court, it will decide the case on the basis of the plaintiff9s evidence with the conse>uence that the defendant alread# loses his right to present evidence no res /udicata in dismissal due to demurrer if court denies if court denies the demurrer, defendant demurrer! will present his *f demurrer was with evidence leave, accused ma# present his evidence *f the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution9s evidence

4UDG ENT ON DE URRER TO EVIDENCE is a /udgment rendered b# the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the 260UA: that upon the facts presented b# the plaintiff and the law on the matter, plaintiff has not shown an# right to relief. RULE 35 4UDG ENT ON T2E PLEADINGS ( /udgment on the pleadings must be on motion of the claimant. 'A0 SUDD061*A2 D(D56S (65 65MU*65: 35C(US5 5)561E*A2 *S 3(S5: 0A 1E5 D;5(:*A2S.. E0<5)56, if at the pre-trial the court finds that a /udgment on the pleadings is proper, it ma# render such /udgment motu proprio.

C*)*; C(S5S

C6*=*A(; C(S5S

:efendant need not as leave of court is for leave of court$ necessar# so that the accused could present his evidence if the demurrer is denied

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


50

MEMORY AID
GROUNDS* 1. (nswer fails to tender an issue because of! a. general denial of the material allegations of the complaint$ b. insufficient denial of the material allegations of the complaint $ or %. (nswer admits material allegations of the adverse part#9s pleading 3# moving for /udgment on the pleading, plaintiff waives his claim for unli>uidated damages. Claim for such damages must be alleged and proved.

IN

REMEDIAL LAW

;6o can !i-e 1. Dlaintiff! he must wait for the answer to be filed and served, and thus for the issue to be /oined, before he can move for summar# /udgment. %. :efendant! he can move for summar# /udgment at an#time, that is, an#time after filing and service of the complaint even before he answers 1he motion for summar# /udgment must be supported b# 718 affidavit, 708 depositions of the adverse part# or a third part#, or 738 admissions of the adverse part#, all intended to show that! a. there is no genuine issue as to an# material fact, e"cept damages which must alwa#s be proved, and b. the movant is entitled to a /udgment as a matter of law. 1he summar# /udgment ma# be a /udgment on the merits, in which case, an appeal ma# be ta en therefrom.

NO 4UDG ENT ON T2E PLEADINGS IN ACTIONS !OR 1. :eclaration of nullit# of marriage %. (nnulment of marriage &. ;egal Separation

otion to Dis&iss

otion 'or :,dg&ent on t6e /-eadings

SU AR" 4UDG ENT

8iled b# a defendant 8iled b# the plaintiff to a complaint, if the answer raises counterclaim, cross- no issue. claim or &rd-part# complaint *f the complaint states no cause of action, a motion to dismiss should be filed and not a motion for /udgment on the pleading.

4UDG ENT 4UDG ENT ON T2E 3" DE!AULT PLEADINGS 7R,-e =8

SU

RULE 3% AR" 4UDG ENTS

SU AR" 4UDG ENT 0ne granted b# the court for the prompt disposition of civil actions wherein it clearl# appears that there e"ists A0 genuine issue or controvers# as to an# material fact.

3ased on the based solel# on based on the pleadings, the pleadings. complaint and depositions, evidence, if admissions presentation is and affidavits re>uired. (vailable to generall# (vailable to both plaintiff available onl# plaintiff. and defendant to the plaintiff, unless the defendant presents a counterclaim. 1here is 1he answer no issues as no no genuine fails to tender answer is filed issue between an issue or b# the the parties, there is an defending i.e. there ma# admission of part#. be issues but material these are allegations. irrelevant 1I-da# notice &-da# notice &-da# notice re>uired re>uired rule applies.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


51

MEMORY AID
=a# be 0n the merits interlocutor# or on the merits 0n the merits

IN

REMEDIAL LAW

1he power to amend a /udgment is inherent to the court before /udgment becomes final and e"ecutor#. (fter /udgment has become e"ecutor#, the court cannot amend the same E$CEPT* 1. 1o ma e corrections of clerical errors, not substantial amendments, as b# an amendment n3nc 45o t3nc. %. 1o clarif# an ambiguit# which is borne out b# and /ustifiable in the conte"t of the decision. &. *n /udgments for support, which can alwa#s be amended from time to time. ANNER O! ATTACFING 4UDG ENTS* 1. Direct attac@ a. before finalit# 1. motion for new trial or reconsideration$ %. appeal b. after finalit# 1. relief from /udgment, rule &8 %. annulment of /udgment, 6ule 5B. 0.Co--atera- attac@

RULE 3+ 4UDG ENTS1 !INAL ORDERS AND ENTR" T2EREO! 4UDG ENT> final consideration and determination b# a court of the rights of the parties, upon matters submitted to it in an action or proceeding. 1he date of finalit# of the /udgment or final order shall be deemed to be the date of its entr#. RE#UISITES O! A 4UDG ENT* 1. *t should be in writing, personall# and directl# prepared b# the /udge %. =ust state clearl# and distinctl# the facts and the law on which it is based &. *t should contain a dispositive part and should be signed b# the /udge and filed with the cler of court. PRO ULGATION- the process b# which a decision is published, officiall# announced, made nown to the public or delivered to the cler of court for filing, coupled with notice to the parties or their counsel. E ORANDU DECISION- a decision of the appellate court which adopts the findings and the conclusion of the trial court. 4UDICIAL CO PRO ISE ( /udgment based on a compromise which has the force of law and is conclusive between parties. Aot appealable. A 4UDG ENT is considered RENDERED Upon filing of the signed decision. 1his includes an amended decision because an amended decision is a distinct and separate /udgment and must follow the established procedural rule.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


52

MEMORY AID
PRO ULGATION O! 4UDG ENT
Court 6enders :ecision

IN

REMEDIAL LAW

;osing Dart# 8iling appeal within 1+J&I da#s from notice of /udgment

(ccepts decision without further contest

<ithin 1+J&I da#s from notice of /udgment! =otion for reconsideration$ or motion for new trial

rendered to enter or record such /udgment as has been formerl# rendered but has not been entered as thus rendered its onl# function is to record some act of the court which was done at a former time, but which was not then recorded, in order to ma e the record spea the truth, without an# changes in substance or an# material respect.

Court maintains decision

*f no appeal is ta en or did not avail of remedies, /udgment becomes final and e"ecutor#

Court grants motion! 1.modifies decision$ or %.grants new trial

4,dg&ent ,/on Agree&ent or Co&/ro&ise ( compromise agreement between the parties to a case on which the decision of the court was based has upon the parties the effect and authorit# of res /udicata. *t is immediatel# e"ecutor#. 4,dg&ent () Con'ession 4udgment upon confession is one which is rendered against a part# upon his petition or consent. *t usuall# happens when the defendant appears in court and confesses the right of the plaintiff to /udgment or files a pleading e"pressl# agreeing to the plaintiff9s demand. TAo @inds o' :,dg&ent () con'ession 1. ( /udgment b# COGNOVIT ACTIONE @ here, the defendant after service instead of entering a plea, ac nowledged and confessed that the plaintiff9s cause of action was /ust and rightful. %. ( /udgment () CON!ESSION RELICTA VERI!ICATIONE @ after pleading and before trial, the defendant both confessed the plaintiff9s cause of action and withdrew or abandoned his plea or other allegations, whereupon /udgment was entere against him without proceeding to trial.

;osing part# ma# appeal within the remaining period

Section 5. Severa- :,dg&ents. Several /udgment is proper where the liabilit# of each part# is clearl# separable and distinct from his coparties such that the claims against each of them could have been the sub/ect of separate suits, and the /udgment for or against one of them will not necessaril# affect the other. ( several /udgment is A01 proper in actions against solidar# debtors. Section +. Se/arate 4,dg&ents Droper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. 1he action shall proceed as to the remaining claims.

4,dg&ent ,/on Co&/ro&ise 4,dg&ent N/NC PRO T/NC 'literall# means Bnow for thenC.

4,dg&ent () Con'ession

1he provisions and (n affirmative and terms are settled and voluntar# act of the agreed upon b# the defendant himself. parties to the action, 1he court e"ercises a

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


53

MEMORY AID
and which is entered in the record b# the consent of the court. certain amount of supervision over the entr# of /udgment.

IN

REMEDIAL LAW

P,r/ose* to set aside the /udgment or final order and grant a new trial. ;2EN to 'i-e* within period for ta ing appeal. ;2ERE to 'i-e* with the trial court which rendered the >uestioned /udgment.
RECONSIDERATION 1he grounds are! fraud, 1he grounds are! the accident, mista e or damages awarded are e"cusable negligence or e"cessive, that the newl# discovered evidence is insufficient evidence which could to /ustif# the decision not, with reasonable or final order, or that diligence, have the decision or final discovered and produced order is contrar# to at the trial, and which if law. presented would probabl# alter the result Second motion ma# be Second motion from allowed same part# is prohibited *f a new trial is granted if the court finds that the trial court will set e"cessive damages aside the /udgment or have been awarded or final order that the /udgment or final order is contrar# to the evidence or law, it ma# amend such /udgment or final order accordingl#

C-ari'icator) 4,dg&ent rendered b# the court, upon motion, when a /udgment previousl# rendered is ambiguous and difficult to compl# with. A ENDED OR CLARI!IED 4UDG ENT
*t is an entirel# new decision and supersedes the original /udgment Court ma es a thorough stud# of the original /udgment and renders the amended and clarified /udgment onl# after considering all the factual and legal issues

SUPPLE ENTAL DECISION


:oes not ta e the place of or e"tinguish the original /udgment Serves to bolster or add to the original /udgment

OTION !OR A NE; TRIAL

OTION !OR

RULE 3B NE; TRIAL OR RECONSIDERATION


0rder den#ing motion for new trial

Second motion for new trial based on grounds not e"isting or available when 1st motion was filed (ppeal from the /udgment or final order and assign as one of the errors the denial of the motion for new trial

(n order den#ing a motion for new trial is not a//ea-a(-e. NE; TRIAL - the rehearing of a case alread# decided b# the court but before the /udgment rendered thereon becomes final and e"ecutor#, whereb# errors of law or irregularities are e"punged from the record, or new evidence is introduced, or both steps are ta en.

RE#UISITES 'or NE;L">DISCOVERED EVIDENCE 1. =ust have been discovered after trial %. Could not have been discovered and produced at the trial &. *f presented, would alter the result of the action ?. 0therwise it is called 80620115A 5)*:5AC5. ( motion suspends or tolls the running of the reglementar# period for appeal e"cept when the same is pro-forma. PRO>!OR A OTION > when it does not compl# with 6ule 1+ and 6ule &7, e.g. it does not point out specificall# the findings or conclusions of the /udgment as are contrar# to law, ma ing e"press

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


54

MEMORY AID
reference to the testimonial or documentar# evidence or to the provisions of law alleged to be contrar# to such findings or conclusions, and is merel# intended to dela# the proceedings 06 if there is no affidavit of merit. Section +. E''ect o' granting o' &otion 'or neA tria<hen motion is granted, the original /udgment is thereb# vacated and the action stands for trial de novo, but the recorded evidence ta en upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial ta ing the same. 1he order den#ing a motion for new trial is NOT appealable. OTION !OR NE; OTION !OR TRIAL REOPENING O! T2E TRIAL
Aot mentioned in the 6ules but is nevertheless a recogniFed procedural recourse or device deriving validit# and acceptance from long established usage A015! *t is actuall# mentioned in the 6ules of Criminal Drocedure Droper onl# after =a# properl# be promulgation of presented onl# after /udgment either or both the parties have formall# offered and closed their evidence before /udgment 3ased upon specific Controlled b# no other grounds set forth rule than the under 6ule &7 in civil paramount interests of cases and 6ule 1%1 in /ustice, resting entirel# criminal cases on the sound discretion of a trial court, the e"ercise of which discretion will not be reviewed on appeal UA;5SS a clear abuse thereof is shown Specificall# mentioned in the 6ules

IN

REMEDIAL LAW

P,r/ose* 1o reconsider or amend /udgment or final order ;2EN to 'i-e* within period for ta ing an appeal ;2ERE to 'i-e* with the trial court which rendered the /udgment or final order sought to be reconsidered RULE 3C RELIE! !RO 4UDG ENTS1 ORDERS1 OR OT2ER PROCEEDINGS RE EDIES AGAINST !INAL AND E$ECUTOR" 4UDG ENTS OR ORDERS 1. Detition for 6elief from 4udgment '6ule &8. %. (nnulment of /udgments or final orders or resolutions '6ule ?7. on the ground of! o 5"trinsic fraud, to be filed within ? #ears from the discover# of the fraud$ o ;ac of /urisdiction, before it is barred b# laches or estoppel &. :irect or collateral attac against a void or voidable /udgment o :*65C1 (11(CH @ when the validit# of the /udgment itself is the main issue of the action, a petition for #ertiorari and action to annul /udgment on the ground of e"trinsic fraud or lac of /urisdiction o C0;;(156(; (11(CH @ if the /udgment can be resisted in an# other action in which it is involved.

RULE 3B
(vailable 358065 /udgment becomes final and e"ecutor# (pplies to 4U:2=5A1S or 8*A(; 06:56S onl#

RULE 3C
(vailable (8156 /udgment has become final and e"ecutor# (pplies to /udgments, final orders and other proceeding! 1.;and 6egistration %.Special Droceedings &. 0rder of 5"ecution

OTION !OR RECONSIDERATION

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


55

MEMORY AID
260UA:S! i. 8(=5 ii. Aewl# discovered evidence <E5A ()(*;5: 08! <ithin the time to appeal 260UA:S! 8(=5 <E5A ()(*;5: 08! within 7I da#s from nowledge of the /udgment (A: within 7 months from entr# of /udgment *f denied, the order den#ing a petition for relief is A01 appealable$ the remed# is appropriate civil action under 6ule 7+ 5>uitable remed# Detition must be verified

IN

REMEDIAL LAW

!INAL 4UDG ENT OR ORDER - one which disposes of the whole sub/ect matter or terminates the particular proceedings or action, leaving nothing to be done b# the court but to enforce b# e"ecution what has been determined. E$ECUTION O! 4UDG ENT
4udgment is e"ecuted b# motion within + #ears from date of its entr# *f the winning part# does not move for e"ecution wJin + #ears but before 1I #ears from the date of entr# of /udgment, the same can onl# be revived b# means of a new action J petition

*f denied, the order of denial is A01 appealable, hence remed# is appeal from the /udgment ;egal remed# =otion need not be verified

T;O 2EARINGS UNDER RULE 3C 1. Eearing to determine whether the /udgment should be set aside %. *f #es, a hearing on the merits of the case. 1he period fi"ed b# 6ule &8 is none"tendible and is never interrupted. RULE 3= E$ECUTION1 SATIS!ACTION AND E!!ECT O! 4UDG ENTS E$ECUTION @ remed# provided b# law for the enforcement of a final /udgment. AGAINST ;2O ISSUED* e"ecution can onl# issue against a part# and not against one who has not had his da# in court. ;RIT O! E$ECUTION* /udicial writ issued to an officer authoriFing him to e"ecute the /udgment of the court. ESSENTIAL RE#UISITE O! A ;RIT O! E$ECUTION! a writ of e"ecution to be valid, must conform strictl# to the decision or /udgment which gives it life. *t cannot var# the terms of the /udgment it see s to enforce

5"ecution is a matter of right after e"piration of period to appeal and no appeal is perfected

:iscretionar# e"ecution upon good reasons stated in a special order after due hearing

Sheriff enforces writ of e"ecution

TEST

TO

DETER INE

;osing part# is made to indemnif# thru! pa#ment with interest$ lev# and sale of personal propert#$ lev# and sale of real propert#$ deliver# of personal and real propert#

;2ET2ER A 4UDG ENT OR ORDER IS !INAL OR INTERLOCUTOR"* 1he test is whether the /udgment or order leaves nothing more for the court to do with respect to the merits of the case. SPECIAL 4UDG ENT @ one that re>uires the performance of an act 01E56 1E(A! 1. 1he pa#ment of mone#$ and

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


5

MEMORY AID
%. 1he sale of real or personal propert# Section 1. E.ec,tion U/on 4,dg&ents and !ina- Orders. E$ECUTION (SS/!S AS A ATTER O! RIG2T* 1. on motion %. upon a /udgment or order that disposes of the action or proceeding (A: &. upon e"piration of the period to appeal therefrom and A0 appeal has been dul# perfected. GENERAL RULE* court cannot refuse e"ecution UNLESS* 1. 5"ecution is UA4US1 06 *=D0SS*3;5 %. 5>uitable grounds li e a CE(A25 *A S*1U(1*0A of the parties which ma es e"ecution ine>uitable &. 4udgment A0)(15: b# parties ?. 5"ecution is en/oined +. 4udgment has become :06=(A1 MU(SE(; 08 <6*1 D60D56 <E5A! 1. *mprovidentl# issued %. :efective in substance &. *ssued against the wrong part# ?. 4udgment alread# satisfied +. *ssued without authorit# Section 0. Discretionar) E.ec,tion DISCRETIONAR" E$ECUTION
=a# issue before the lapse of period to appeal :iscretionar# upon the court$ there is in>uir# on whether there is 200: 65(S0A for e"ecution

IN

REMEDIAL LAW

GROUNDS !OR E$ECUTION PENDING APPEAL* 1. *nsolvenc# of the /udgment debtor. %. <astage of asset b# /udgment debtor. Section 3. Sta) o' Discretionar) E.ec,tion. 1he part# against whom an e"ecution is directed ma# file a supersedeas bond to sta# discretionar# e"ecution. SUPERSEDEAS 3OND- one filed b# a petitioner and approved b# the court before the /udgment becomes final and e"ecutor# and conditioned upon the performance of the /udgment appealed from in case it be affirmed wholl# or in part. Supersedeas bond guarantees satisfaction of the /udgment in case of affirmance on appeal, not other things li e damage to propert# pending the appeal 1he court ma#, in its discretion, order an e"ecution before the e"piration of the time within which to appeal provided! 1. 1here is a motion for e"ecution filed b# the winning part# %. 1here is notice of said motion to the adverse part#$ and &. 1here are good reasons stated in a special order after due hearing. GENERAL RULE! an order of e"ecution is A01 appealable otherwise there would be no end to the litigation between the parties. E$CEPTIONS* 1. <hen the terms of the /udgment are not ver# clear$ %. <hen the order of e"ecution varies with the tenor of the /udgment. Section 5. 4,dg&ents NOT Sta)ed 3) A//ea1. *A4UAC1*0A %. 65C5*)56SE*D

E$ECUTION AS A ATTER O! RIG2T


Deriod to appeal has alread# lapsed and no appeal is perfected =inisterial dut# of the court D60)*:5: there are no supervening events

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


5!

MEMORY AID
&. (CC0UA1*A2 ?. SUDD061 +. Such other /udgments declared to be immediatel# e"ecutor# unless otherwise ordered b# the trial court. Section +. E.ec,tion 3) Inde/endent Action. otion Or

IN

REMEDIAL LAW

must oust the part#. 3ut if demolition is involved, there must be a special order. *f part# 658US5S 10 3274V2 , sheriff will ta e possession and deliver it to winning part#. <hen the part# 658US5S 10 C-MP71, court can appoint some other person at the e"pense of the disobedient part# and the act done shall have the same effect as if the re>uired part# performed it, the disobedient part# incurs no liabilit# for contempt. Section 11. E.ec,tion o' S/ecia4,dg&ents. <hen /udgment re>uires the performance of an# act other than for mone# and deliver# of propert#. 1he writ of e"ecution shall be served upon the part# re>uired to obe# the same and such part# ma# be punished for contempt if he disobe#s. LEV" > act b# which an officer sets apart or appropriates a part of the whole of the propert# of the /udgment debtor for purposes or the e"ecution sale. 1he lev# on e"ecution shall create a lien in favor or the /udgment creditor over the right, title and interest of the /udgment debtor in such propert# at the time of the lev#. 1he lev# on e"ecution creates a lien in favor of the /udgment creditor sub/ect to prior liens and encumbrances. GARNIS2 ENT - act of appropriation b# the court when propert# of debtor is in the hands of third persons 1he garnishee or the &rd person who is in possession of the propert# of the /udgment debtor is deemed a 'orced intervenor.

=0:5 08 5A806C5=5A1 1. 3# motion within + #ears from date of its entr# %. 3# independent action after + #ears from entr# (A: before it is barred b# statute of limitations 4udgment for support does not become dormant, thus it can alwa#s be e"ecuted b# motion. +-#ear period ma# be e"tended b# the conduct of /udgment debtor. ( revived /udgment is a new /udgment thus another +J1I-#ear period to e"ecute and revive is given the part#. Section B. E.ec,tion In Case O' Deat6 O' Part). *f the obligor dies (8156 entr# but 358065 ;5)K on his propert#, e"ecution will be issued for recover# of real or personal propert# or enforcement of a lien thereon. 3ut for a sum of mone#, /udgment cannot be enforced b# writ but as a claim against his estateJprobate proceedings. *f he dies (8156 a )(;*: ;5)K has been made, e"ecution sale proceeds. Section 8. *ssuance, 8orm and Contents of a <rit of 5"ecution. Re&edies in an order granting or den)ing t6e iss,ance o' a Arit o' e.ec,tion (ppeal is the remed# for an order den#ing the issuance of a writ of e"ecution. Section 1D. E.ec,tion O' 4,dg&ents !or S/eci'ic Act. *f part# 658US5S 10 V!C!,2 D60D561K, remed# is A01 contempt. 1he Sheriff

ATTAC2 ENT

GARNIS2 ENT

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


5"

MEMORY AID
6efers to corporeal propert# in the possession of the /udgment debtor. refers to mone#, stoc s, credits and other incorporeal propert# which belong to /udgment debtor but is in the possession or under the control of a third person

IN

REMEDIAL LAW

Section 1+. Proceedings ;6ere Pro/ert) C-ai&ed 3) T6ird Person. RE EDIES o' T2IRD PART" CLAI ANT 1. Summar# hearing before the court which authoriFed the e"ecution$ %. T!RC!R(A or third part# claim filed with the sheriff$ &. (ction for damages on the bond posted b# /udgment creditors$ or ?. *ndependent reinvidicator# action. 1he remedies are cumulative and ma# be resorted to b# third part# claimant independentl# of or separatel# from the others. *f winning part# files a bond, it is onl# then that the sheriff can ta e the propert# in his possession. *8 A0 30A:, cannot proceed with the sale. SALE ON E$ECUTION Aotice of sale is re>uired before levied propert# can be sold at public auction 'Sec. 1+.. 6emed# against an irregular sale is =01*0A 10 )(C(15 06 S51 (S*:5 1E5 S(;5 to be filed in the court which issued the writ. REDE PTION 7Secs. 0B J 0C8 Rig6t o' Rede&/tion* 1. Dersonal Dropert# @ A0A5$ sale is absolute %. 6eal Dropert# @ there is a right of redemption ;2O &a) redee& 7Sec. 0B8 0nl# the following!

a. 4udgment obligor, or his successor in interest, in whole or an# part of the propert#$ 06 b. 6edemptioner who is a creditor having a! 1. ;ien b# attachment on the propert# sold subse>uent to the lien under which the propert# was sold, %. ;ien b# /udgment on the propert# sold subse>uent to the lien under which the propert# was sold$ &. ;ien b# mortgage on the propert# sold subse>uent to the lien under which the propert# was sold. ;2EN CAN REDE PTION 3E ADEI

3K 1E5 4U:2=5A1 03;*206! <ithin one '1. #ear from the date of registration of the certificate of sale. 3K 1E5 65:5=D1*0A56! 1. <ithin one #ear from the date of registration of the certificate of sale$ or %. <ithin si"t# da#s from the last redemption b# another redemptioner (, t*e &3d+ment ob#i+o5 5edeems, no ,35t*e5 5edem4tion is a##o6ed 7Sec% 298% 1he period of redemption is A01 suspended b# an action to annul the foreclosure sale. CAN REDE PTION 3E PAID IN OT2ER !OR S T2AN CAS2I "ES. 1he rule is liberalit# in allowing redemption 'aid rather than defeat the right. and it has been allowed in the case of a cashier9s chec , certified ban chec s and even chec s. 1he offer to redeem must be accompanied with a bona fide tender or deliver# of the redemption price. Eowever, a formal offer to redeem with a tender is not necessar# where the right to redeem is e"ercised through the filing

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


5#

MEMORY AID
of a complaint to redeem in the courts, within the period to redeem. RIG2TS O! T2E 4UDG ENT DE3TOR* 1. 6emain in possession of the propert# %. Collect rents and profits &. Cannot be 5/ected ?. Use the propert# in the same manner it was previousl# used +. =a e necessar# repairs Section 33. Deed and /ossession to (e given at e./iration o' rede&/tion /eriod< () A6o& e.ec,ted or given. 1he PURC2ASER is entitled to a C0A)5K(AC5 (A: D0SS5SS*0A of the propert# if there is no redemption. Ee is substituted to and ac>uires all the rights, title, interest and claims of the /udgment obligor to the propert# at the time of lev#. 1he deed of conve#ance is what operates to transfer to the purchaser whatever rights the /udgment debtor had in the propert#. 1he certificate of sale after e"ecution sale merel# is a memorial of the fact of sale and does not operate as a conve#ance. 1he purchaser ac>uires no better right than what the /udgment debtor has in the propert# levied upon. 1hus, if the /udgment debtor had alread# transferred the propert# e"ecuted prior to the lev# and no longer has an interest in the propert#, the e"ecution purchaser ac>uires no right. <E5A ( 1E*6: D56S0A *S *A D0SS5SS*0A, 1he procedure is for the court to order a hearing and determine the nature of such adverse possession. Section 35. Recover) o' /rice i' sa-e is not e''ective< reviva- o' :,dg&ent. T2E PURC2ASER A" RECOVER T2E PURC2ASE PRICE ;2EN +.

IN

REMEDIAL LAW

1. 1he purchaser or his successorin-interest 8(*;S 10 65C0)56 D0SS5SS*0A of the propert# or$ %. Durchaser after having ac>uired possession is evicted due to! a. *rregularities in the proceedings concerning the sale. b. 6eversal or setting aside of /udgment. c. 1he fact that the propert# was e"empt from e"ecution. d. ( third person has vindicated his claim to the propert#. RE EDIES O! T2E 4UDG ENT CREDITOR IN AID O! E$ECUTION 1. *f the e"ecution is returned unsatisfied, he ma# cause e"amination of the /udgment debtor as to his propert# and income 7Section 3+8 Ee ma# cause e"amination of the debtor of the /udgment debtor as to an# debt owed b# him or to an# propert# of the /udgment debtor in his possession 7Section 3B8 *f after e"amination, the court finds that there is propert# of the /udgment debtor either in his own hands or that of an# person, the court ma# order the propert# applied to the satisfaction of the /udgment 7Section 3B8 *f the court finds the earnings of the /udgment debtor are more than sufficient for his famil#9s needs, it ma# order pa#ment in installments 7Section 5D8 1he court ma# appoint a receiver for the propert# of the /udgment debtor not e"empt from e"ecution or forbid a transfer or disposition or interference with such propert# 7Section 518

%.

&.

?.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


0

MEMORY AID
7. *f the court finds that the /udgment debtor has an ascertainable interest in real propert# either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controvers#, the court ma# order the sale of such interest. 7Section 508 *f the person alleged to have the propert# of the /udgment debtor or be indebted to him, claims an adverse interest in the propert#, or denies the debt, the court ma# authoriFe the /udgment-creditor to institute an action to recover the propert#, forbid its transfer and ma# punish disobedience for contempt 7Section 538
*n respect to the personal, political, or legal condition or status of a particular person

IN

REMEDIAL LAW
Condition, status or relationship of the person

7.

Par 738 is re'erred to as K(ar () 'or&er :,dg&entL or R!S 9/"(CATA in :,dg&ents (N P!RSONA2 RES 4UDICATA > final /udgments on the merits b# a court of competent /urisdiction is conclusive as to the rights of the parties or their privies in all later suits on points determined in the former /udgment. RE#UISITES* 1. ( 8*A(; /udgment or order %. 4U6*S:*C1*0A over the sub/ect matter and the parties b# the court rendering it &. 4udgment UD0A 1E5 =56*1S ?. 3etween the two cases! *:5A1*1K 08 D(61*5S *:5A1*1K 08 SU345C1 =(1156 *:5A1*1K 08 C(US5 08 (C1*0A 1E565 *S *:5A1*1K 08 C(US5 08 (C1*0A when the two actions are based on the same delict or wrong committed b# the defendant even if the remedies are different. Under the doctrine of res /udicata, no matter how (ppeal decision of =1C b# filing notice of erroneous a appeal and pa# appellate court doc et /udgment ma# be, fee in the same =1C within 1+ da#s from once it becomes receipt of /udgment final, it cannot be corrected. 1he onl# grounds are lac of /urisdiction, 1+ da#s from perfection of appeal, collusion or fraud.
=1C cler transmits record to 61C

Section 5+. ;6en Princi/a- 3o,nd 3) 4,dg&ent Against S,ret). 1he principal is bound b# the same /udgment from the time he has notice of the action or proceeding and has been given an opportunit# at the suret#9s re>uest, to /oin the defense. Section 5B. E''ect O' 4,dg&ent Or !ina- Orders. 6efers to /udgments which are considered as conclusive and ma# be rebutted directl# b# means of relief from /udgment or annulment of /udgment or indirectl# b# offering them in evidence under the parole evidence rule. Par 7A8 re'ers to r,-e ON R!S 9/"(CATA in :,dg&ents (N R!2 4UDG ENT or !INAL ORDER
(gainst a specific thing Drobate of a will or administration of the estate of a deceased person

E!!ECT* CONCLUSIVE AS TO
1itle to the thing <ill or administration Eowever, 0A;K prima facie evidence of the death of the testator or intestate

Par. 7C8 is @noAn as Kconc-,siveness o' :,dg&entL or Aotice to parties that an appeal is being r,-e o' A/T!R ta en from the decision of =1C ACT(ON P!N"!NT CONCLUSIVENESS O! 4UDG ENT
<ithin 1+ da#s from notice of appeal! appellant submits memorandum to the 61C appellee files his own memorandum 1+ da#s from receipt of appellants memorandum

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae *f uncontested, (n# part# ma# %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ /udgment is appeal b# filing a S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

entered in the boo of entries

petition for review with the 61C

San Beda College of Law


1

MEMORY AID
has the effect of preclusion onl# of issues. parties in both actions ma# be the same but the causes of action are different. 3AR 3" !OR ER CONCLUSIVENESS O! 4UDG ENT 4UDG ENT
1here is identit# of 1here is 0A;K identit# of parties, sub/ect D(61*5S (A: SU345C1 matter and causes =(1156 of action 1he first /udgment 1he first /udgment is constitutes as an conclusive onl# as to (3S0;U15 3(6 10 matters directl# ad/udged (;; =(1156S and actuall# litigated in directl# ad/udged the first action. Second and those that action can be prosecuted. might have been ad/udged.

IN

REMEDIAL LAW

ORDINAR" APPEAL - an appeal b# notice of appeal from a /udgment or final order of a lower court on >uestions of fact and law. APPEAL TO T2E RTC =ode of (ppeal @ Aotice of (ppeal within fifteen '1+. da#s from receipt of decision. (fter an appeal to the 61C has been perfected, the =1C loses its /urisdiction over the case and an# motion for the e"ecution of the /udgment should be filed with the 61C. 1he Summar# 6ules no longer appl# when the cases is on appeal. Section 0. ;6en to A//ea-. 1. <ithin 1+ da#s after notice of /udgment or final order$ %. <here a record on appeal is re>uired, within &I da#s from notice of /udgment or final order b# filing a notice of appeal and a record on appeal$ &. Deriod to appeal shall be interrupted b# a timel# motion for new trial or reconsideration. ?. Ao motion for e"tension of time to file a motion for new trial or reconsideration shall be allowed. Section 3. 2oA to A//ea-. 3) Notice o' A//ea-* 1. 8ile a notice of appeal with the trial court. %. 1he notice of appeal must indicate! a. parties b. /udgment or final order appealed from c. material date showing timeliness of appeal &. ( cop# served on the adverse part#. ?. Da#ment in full of doc et fees and other lawful fees

Section 5C. E''ect O' !oreign 4,dg&ent Or !ina- Orders* T2E E!!ECT O! !OREIGN 4UDG ENTS Drovided that the foreign tribunal had /urisdiction! 1. *A C(S5 08 4U:2=5A1 (2(*AS1 ( SD5C*8*C 1E*A2, the /udgment is C0AC;US*)5 upon the 1*1;5 10 1E5 1E*A2$ %. *A C(S5 08 ( 4U:2=5A1 (2(*AS1 ( D56S0A, the /udgment is D65SU=D1*)5 5)*:5AC5 of a right as between the parties and their successorsin-interest b# a subse>uent title. *n both instances, the /udgment ma# be repelled b# evidence of want of /urisdiction, notice, collusion, fraud or clear mista e of law or fact. RULE 5D APPEAL !RO UNICIPAL TRIAL COURTS TO T2E REGIONAL TRIAL COURTS APPEAL !RO TC TO RTC

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


2

MEMORY AID

IN

REMEDIAL LAW

ORDINAR" APPEAL
=atter of right (ll the records are elevated from the court of origin Aotice of record on appeal is filed with the court of origin

PETITION !OR REVIE;


:iscretionar# Ao records are elevated unless the court decrees it 8iled with the C(

Section C. A//ea- 'ro& orders dis&issing case Ait6o,t tria-< -ac@ o' :,risdiction I' -oAer co,rt dis&issed case Ait6o,t tria- on t6e &erits* 61C ma#! 1. (ffirm, or %. 6everse, in which case, it shall remand the case for further proceedings. I' dis&issa- is d,e to -ac@ o' :,risdiction over t6e s,(:ect &atter* 61C ma#! 1. (ffirm$ if 61C has /urisdiction, shall tr# the case on the merits as if the case was originall# filed with it, or %. 6everse, in which case, it remand the case for further proceedings. I' t6e case Aas tried on t6e &erits () t6e -oAer co,rt Ait6o,t :,risdiction over t6e s,(:ect &atter* 61C shall not dismiss the case if it has original /urisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. RULE 51 APPEAL !RO REGIONAL TRIAL COURTS APPEALA3LE CASES 1. 4udgments or final orders that completel# disposes of the case. %. ( particular matter in a /udgment declared b# the 6ules to be appealable. NON APPEALA3LE CASES
1. %. &. 0rder dismissing an action without pre/udice 0rder of 5"ecution 4udgments or final orders for or against one or more of several

3) Record on a//ea-* 1. for special proceedings such as probate$ and %. in such other cases where multiple appeals are allowed as in partition and in e"propriation. Section 5. Per'ection o' A//ea-< e''ect t6ereo'. A//ea- is dee&ed /er'ected* 1. b# notice of appeal! as to him, upon the filing of the notice of appeal in due time$ %. b# record on appeal! as to him, upon the approval of the record on appeal filed in due time. E''ect o' a /er'ected a//ea-! 1he court loses /urisdiction upon the perfection or approval of appeal and when the period of appeal for other parties e"pire. Resid,a- /oAer of the court prior to the transmittal of the original record or record on appeal! 1. to issue orders for the preservation of the rights of the parties which do not involve matters litigated b# appeal$ %. to approve compromise prior to the transmittal of the record$ &. permit appeal b# an indigent$ ?. order e"ecution pending appeal under 6ule &9, Sec.% ' motion for e"ecution was filed before the e"piration of the period to appeal$ +. allow withdrawal of the appeal.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


3

MEMORY AID
parties or in separate claims while the main case is pending 0rders disallowing or dismissing an (ppeal *nterlocutor# orders 0rders den#ing! a. Detition for relief$ b. =otion for new trial or reconsideration$ and c. =otion to Set aside a /udgment, b# consent, confession or compromise on the ground of fraud, mista e, duress or an# ground vitiating consent.

IN

REMEDIAL LAW
8ile a verified petition for review on certiorari with the SC '6 ?+. Da# doc et and lawful fees and D +II for costs. Submit proof of service of a cop# to the lower court and adverse part#.

?. +. 7.

8ile a notice of 8ile a verified appeal or a petition for record on review with appeal with the the C(. Da# court of origin the doc et '61C. and give and lawful a cop# to the fees, and D adverse part#. +II as deposit for costs with the C(. 8urnish 61C and adverse part# cop# of such '6 ?%..

Re&ed) in cases A6ere a//ea- is not a--oAed Special civil action of certiorari or prohibition if there is lac or e"cess of /urisdiction or grave abuse of discretion or mandamus if there is no performance of dut#. INTERLOCUTOR" ORDER @ (n order which does not dispose of the case but leave something else to be done b# the trial court on the merits of the case. ( /udgment based on compromise is not appealable and is immediatel# e"ecutor#. Section 0. odes o' a//ea-.
Petition 'or revieA on certiorari MR,-e 5%N 1he case raises onl# a >uestion of law

<ithin 1+ da#s <ithin 1+ da#s <ithin 1+ from the notice from notice of da#s from of the /udgment the decision notice of the for notice of to be /udgment or appeal and reviewed or order or within &I da#s from the denial of the for records on denial of a =6 =6 or new appeal. 1he or new trial. trial. period for filing is interrupted b# a timel# motion for reconsideration or new trial.

Section B. A//rova- o' record on a//ea-. Drocedure if the appeal is through a record on appeal 1. file record on appeal %. appellee ma# file an ob/ection within + da#s from his receipt thereof &. if there is no ob/ection the court ma#! approve it as presented$ 06 direct its amendment on its own or upon the motion of the adverse part# ?. if an amendment is ordered the appellant must redraft the record within the time ordered or if there is no time, within 1I da#s from receipt +. submit the record for approval with notice on the adverse part#

Ordinar) Petition 'or a//earevieA 7a//ea- () Arit MR,-e 50N o' error8 Case is decided Case is b# the 61C in decided b# its original the =1C. /urisdiction (ppealed to (ppealed to the the 61C. C( Detition for review with the C(

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


4

MEMORY AID
1he period to appeal is =(A:(106K and 4U6*S:*C1*0A(;. 8ailure to appeal on time ma es the decision final and e"ecutor# and deprives the appellate court of /urisdiction. Eowever in few instances the court has allowed due course to such appeals on strong and compelling reasons of /ustice.

IN

REMEDIAL LAW

C0U61 08 (DD5(;S in an original action for certiorari under 6ule 7+ ' St. Martin @uneral +ome vs. .7 C, Sept. 16, 199$" . ( part# adversel# affected b# a decision or ruling of the C1( en 6an# ma# file with the Supreme Court a verified petition for review on certiorari pursuant to 6ule ?+ 7Sec% 12, RA 92:28.

RULE 50 PETITION !OR REVIE; !RO T2E REGIONAL TRIAL COURTS TO T2E COURT O! APPEALS Detition for review is not a matter of right but discretionar# on the C(. *t ma# onl# give due course to the petition if it shows on its face that the lower court has committed an error of fact andJor law that will warrant a reversal or modification of the decision or /udgment sought to be reviewed$ 06 dismiss the petition if it finds that it is patentl# without merit, or prosecuted manifestl# for dela#, or the >uestions raised therein are too unsubstantial to re>uire consideration. *t is merel# discretionar# on the C( to order the elevation of the records. 1his is because until the petition is given due course, the trial court ma# still issue a warrant of e"ecution pending appeal and in some cases such as e/ectment and those of Summar# Drocedure, the /udgments are immediatel# e"ecutor#. *t is onl# when the C( deems it necessar# that the Cler of the 61C will be ordered to elevate the records of the case. RULE 53 APPEALS !RO T2E COURT O! TA$ APPEALS AND T2E #UASI>4UDICIAL AGENCIES TO T2E CA 4udgments and final orders or resolutions of the A;6C are reviewable b# the

RULE 55 ORDINAR" APPEALED CASES Section =. A//e--antGs re/-) (rie'. 8ailure to file appellantNs brief on time is a ground for dismissal of the appeal. *f a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessar# should the motion be granted. 1he failure of the appellant to ma e specific assignment of errors in his brief or page references to the record as re>uired in this section is a ground for dismissal of his appeal. Section 1%. #,estions t6at &a) (e raised on a//ea-. 1he appeal can raise onl# >uestions of law or fact that 1. were raised in the court below$ and %. are within the issues framed b# the parties thereon. 3RIE! vs. E ORANDU

3RIE!

E ORANDU

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


5

MEMORY AID
0rdinar# appeals Certiorari, Drohibition, =andamus, Muo <arranto and Eabeas Corpus cases

IN

REMEDIAL LAW

8iled within ?+ da#s Contents specified b# 6ules

within &I da#s Shorter, briefer, onl# one issue involved - no sub/ect inde" or assignment of errors /ust facts and law applicable

(ppeals to the SC can be ta en from a /udgment or final order or resolution of the C(, the Sandiganba#an, the 61C or such other courts as ma#be authoriFed b# law and onl# b# verified petition for review on certiorari on >uestions of law e.ce/t onl# in appeals from /udgments of the 61C in criminal cases wherein the penalt# imposed is life imprisonment or reclusion perpetua which shall be elevated b# ordinar# appeal, or wherein the death penalt# is imposed which is sub/ect to automatic review.

RULE 5% APPEAL 3" CERTIORARI TO T2E SUPRE E COURT

GENERAL RULE! the findings of fact of the C( are final and conclusive and cannot be reviewed on appeal to the SC. E$CEPTIONS to CONCLUSIVENESS O! !ACTS* 1. <hen the finding is grounded entirel# on spe#ulations, surmise or #on:e#ture$ %. <hen inference made is mani'estl( a6sur&, mista en or impossible$ &. <hen the /udgment is premised on a misrepresentation o' 'a#ts$ ?. <hen there is 5rave a6use o' &is#retion in the appreciation of facts$ +. <hen the 'in&in5s o' 'a#t are #on'li#tin5$ 7. <hen the C( in ma ing its findings ;ent 6e(on& the issues o' the #ase and the same is #ontrar( to 6oth the a&missions o' appellants an& appellees$ 7. <hen the findings of fact of the C( are at varian#e ;ith those o' the trial court, the SC has to review the evidence in order to arrive at the correct findings based on the record$ 8. <hen the 'in&in5s o' 'a#t are #on#lusions ;ithout #itation of specific evidence on which the# are based$

61C, Sandiganba#an or C( renders decision

(n# part# files a petition for review on certiorari wJin 1+ da#s from notice of final /udgment or order of lower court or notice of denial of motion for reconsideration or new trial

(ppellant serves copies of petition on adverse parties and to the lower court, and pa# the corresponding doc et fees

SC ma# dismiss the petition or re>uire the appellee to comment

Section 1. Ait6 S,/re&e

!i-ing o' /etition Co,rt

*f given due course, parties ma# submit memoranda

SC ma# affirm, reverse, or modif# /udgment of the lower court

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


MEMORY AID
9. <hen the facts set forth in the petition as well as in the petitionerBs main an& repl( 6rie's are not &isputed b# the respondents$ 1I. 1he findings of fact of the C( is premise& on the suppose& evi&en#e and is contradicted b# the evidence on record$ 11. <hen certain material 'a#ts and circumstances have been overlooCe& b# the trial court which, i' taCen into account, ;oul& alter the result of the case in that the# would entitle the accused to ac>uittal.
IN

REMEDIAL LAW

order appealed from preliminar# in/unction or temporar# restraining order is issued does not sta# the challenged proceeding 1he petitioner and the 1he parties are the respondent are the aggrieved part# original parties to the against the lower action, and the lower court or >uasi-/udicial court or >uasi-/udicial agenc# and the agenc# is not prevailing parties impleaded =otion for =otion for reconsideration is not reconsideration or for re>uired new trial is re>uired *f a motion for reconsideration or new trial is filed, the period shall not onl# be interrupted but 7I da#sO! shall #UESTIONS O! LA; another #UESTIONS be given to the !ACT petitioner ' SC (dmin. doubt or controvers# doubt or =atter difference II%-I& . as to what the law is arises as to the truth on certain facts or falsehood of facts, 1he court is in the Court e"ercises or as to probative e"ercise of its original /urisdiction value of the evidence appellate /urisdiction presented and power of review if the appellate court the determination can determine the involves evaluation or issue raised without review of evidence reviewing or evaluating the evidence Can involve >uestions >uer# invites the of interpretation of calibration of the the law with respect whole evidence to certain set of facts considering mainl# the credibilit# of witnesses, e"istence and relevanc# of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

Certiorari ,nder R,-e 5% vs. certiorari ,nder R,-e +5?+% 7 s/ecia- civi- action8

CERTIORARI UNDER CERTIORARI UNDER RULE 5% RULE +5?+%


petition is based on >uestions of law petition raises the issue as to whether the lower court acted without /urisdiction or in e"cess of /urisdiction or with grave abuse of discretion Special civil action

*t is a mode of appeal

*nvolves the review of :irected against an the /udgment award interlocutor# order of or final order on the the court or where merits there is no appeal or an# other plain, speed# or ade>uate remed# =ust be made within filed not later than 7I the reglementar# da#s from notice of period /udgment, order or resolution appealed from Sta#s the /udgment or Unless a writ of

RULE 5+ ORIGINAL CASES Section 0. To A6at actions a//-ica(-e. Under 3.D. 3lg. 1%9, the C( has original

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


!

MEMORY AID
/urisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and >uo warranto, and au"iliar# writs or processes, whether or not the# are in aid of its appellate /urisdiction, and it has e"clusive original /urisdiction over actions for annulment of /udgments of 6egional 1rial Courts.

IN

REMEDIAL LAW

rendered and ma# be availed of though the /udgment has been e"ecuted. 0ne important condition for the availment of this remed# - the petitioner failed to move for new trial in, or appeal from, or file a petition for relief against, or ta e other appropriate remedies assailing the >uestioned /udgment or final order or resolution through no fault attributable to him. *f he failed to avail of those other remedies without sufficient /ustification, he cannot resort to annulment provided in this 6ule, otherwise he would benefit from his own inaction or negligence. Gro,nds 'or ANNUL ENT O! 4UDG ENT 1. e"trinsic fraud or collateral fraud$ %. lac of /urisdiction$ 5"trinsic fraud 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. E$TRINSIC OR COLLATERAL !RAUD is an# fraudulent act of the prevailing part# in the litigation which is committed outside of the trial of the case, whereb# the defeated part# has been prevented from e"hibiting full# and fairl# presenting his side of the case.

Section 5. 4,risdiction over /erson1 6oA ac9,ired. 4URISDICTION IS AC#UIRED* 1. 0ver the D51*1*0A56 - b# filing of the petition. %. 0ver the 65SD0A:5A1 - b# the service on the latter of the order or resolution indicating the courts initial action on the petition and A01 b# the service on him of the petition or b# his voluntar# submission. Section %. Action () t6e co,rt. PROCEDURAL OUTLINE 7origina- cases in t6e Co,rt o' A//ea-s8 1. 8iling of the petition %. 0rder to ac>uire /urisdiction over respondents 06 0utright dismissal for failure to compl# to re>uirements also form and pa#ment of doc et and other legal fees. &. 6e>uire respondents to file C0==5A1 within 1I da#s from A01*C5 ?. Court ma# re>uire the filing of a 65D;K or such other pleadings as it ma# deem necessar# +. :etermination of 8(C1U(; *SSU5S, the court ma# delegate the reception of evidence on such issues to an# of its members. RULE 5B ANNUL ENT O! 4UDG ENTS OR !INAL ORDERS AND RESOLUTIONS (nnulment of /udgment is a remed# in law independent of the case where the /udgment sought to be annulled was

E$TRINSIC !RAUD
Deriod of 8iling action 5ffect of /udgment

LACF O! 4URISDICTION

? #ears from 3efore it is barred discover# b# laches or estoppel 1rial court will tr# the case 0riginal action ma# be refiled

Section. %. Action () t6e co,rt. TAo stages* 1. ( preliminar# evaluation of the petition for prima facie merit therein, and

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


"

MEMORY AID
%. 1he issuance of summons as in ordinar# civil cases and such appropriate proceedings thereafter as contemplated in Sec. 7. 1he rule allows the C( to dismiss the petition outright as in special civil actions. 8or the court to ac>uire /urisdiction over the respondent, the rule re>uires the issuance of summons should prima facie merit be found in the petition and the same is given due course. RULE 5C PRELI INAR" CON!ERENCE Section 3. 3inding e''ect o' t6e res,-ts o' t6e con'erence *n the C(, this procedural device ma# be availed of not onl# in original actions but also in cases on appeal wherein a new trial was granted on the ground of newl# discovered evidence. 1he C( can act as a trier of facts, hence the preliminar# conference authoriFed is a convenient ad/unct to such power and function. RULE 5= ORAL ARGU ENT Section 3. No 6earing or ora- arg,&ent 'or &otions =otions in the SC and the C( do not contain notices of hearing as no oral arguments will be heard in support thereof$ and if the appellate court desires to hold a hearing thereon, it will itself set the date with notice to the parties. RULE %D DIS ISSAL O! APPEAL Section 1. Gro,nds 'or dis&issa- o' a//ea<ith the e"ception of Section 1 'b. dismissal of an appeal is director# and not mandator#. 0ther grounds for the dismissal of an appeal are!

IN

REMEDIAL LAW

1. b# agreement of the parties, as where the case was amicabl# settled b# them. %. where the appealed case has become moot or academic. &. where the appeal is frivolous or dilator#. Section 0. Dis&issa- o' i&/ro/er a//eato t6e Co,rt o' A//ea-s Ao transfer of appeals, erroneousl# ta en to it or to the Court of (ppeals, whichever of these tribunals has appropriate appellate /urisdiction, will be allowed. (lso, elevating such appeal b# the wrong mode of appeal shall be a ground for dismissal. ( resolution of the Court of (ppeals dismissing the appeal and remanding the case to the trial court for further proceedings is merel# interlocutor#, hence a motion for its reconsideration filed #ear later ma# be entertained and granted Section 3. ;it6draAa- o' A//eaCourt of (ppeals ma# dismiss the appeal outright even without motion. 1he remed# if dismissed for improper appeal is to refile it in the proper forum but has to be within the prescribed period. RULE %1 4UDG ENT LaA o' t6e Case E the opinion delivered on a former appeal. *t means that whatever is once irrevocabl# established, as the controlling legal rule or decision between the same parties in the same case, continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts before the court. 3ut this rule does not appl# to resolutions rendered in connection with the case wherein no rationale has been e"pounded on the merits of that action.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


#

MEMORY AID
Section %. !or& o' Decision 1he re>uirement for the statement of facts and the law refers to a decision or for that matter a final resolution. 1he same are not re>uired on minute resolutions since these usuall# dispose of the case not on its merits but on procedural or technical considerations. (lthough the court ma#, if it feels necessar#, briefl# discuss the matter on the merits in an e"tended resolution.

IN

REMEDIAL LAW

OTION !OR RECONSIDERATION 1he rules now prohibit a second motion for reconsideration. Sec. & provides a time limit of 9I da#s for the resolution of a motion for reconsideration filed with the Court of (ppeals from the date the same was submitted for resolution, which is normall# the filing of the last pleading re>uired b# the rules of court or the e"piration of such period. 6ules now re>uires the service of the motion to the adverse part#

<ith respect to petitions for review and motions for reconsideration, the Constitution merel# re>uires a statement of the legal basis for the denial thereof or refusal of due course thereto. 1he court ma# opt, but it is not re>uired to issue an e"tended resolution thereon. Section +. 2AR LESS ERROR 1he court, at ever# stage of the proceeding, must disregard an# error or defect which does not affect the substantial rights of the parties such as error in admission or e"clusion of evidence or error or defect in the ruling or order. Section C. #,estions t6at &a) (e decided 0nl# errors claimed and assigned b# a part# will be considered b# the court, e"cept errors affecting its /urisdiction over the sub/ect matter. 1o this e"ception has now been added errors affecting the validit# of the /udgment appealed from or the proceedings therein. 5ven if the error complained of b# a part# is not e"pressl# stated in his assignment of errors but the same is closel# related to or dependent on an assigned error and properl# argued in his brief such error ma# now be considered b# the court. RULE %0

RULE %3 NE; TRIAL 8iling of a motion for new trial is at an# time after the perfection of the appeal from the decision of the lower court and before the Court of (ppeals loses /urisdiction over the case 1he ground is newl# discovered evidence which could not have been discovered prior to the trial in the court below b# the e"ercise of due diligence and of such character as would probabl# alter the result. RULE %+ PROCEDURE IN T2E SUPRE E COURT A. ORIGINAL CASES 6ule specificall# states what cases ma# be originall# filed with the Supreme Court 1. petition for certiorari, prohibition, mandamus, >uo warranto, habeas corpus$ %. disciplinar# proceedings against members of the /udiciar# and attorne#s &. cases affecting ambassadors, other public ministers and consuls 3. APPEALED CASES =ode of (ppeal *n criminal cases where the penalt# imposed is death or reclusion perpetua, an appeal made to the Supreme Court is

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


!0

MEMORY AID
through a notice of appeal filed with the 61C in all other cases, an appeal made to the supreme court is through a petition for review on certiorari. PROVISIONAL RE EDIES (lso nown as ancillar# or au"iliar# remedies, are writs and processes available during the pendenc# of the action which ma# be resorted to b# a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final /udgment in the case.

IN

REMEDIAL LAW

depart from the Dhils. with intent to defraud his creditors$ %. *n actions for recover# of mone# or propert# embeFFled or fraudulentl# converted to his own use b# a public officer, or an officer of a corp., or an attorne#, factor, bro er, agent or cler , in the course of his emplo#ment as such, or b# an# person in a fiduciar# capacit#$ &. *n actions to recover propert# un/ustl# ta en or concealed, when the propert# or an# of its part, has been concealed or disposed of to prevent its being found b# the applicant or an# authoriFed person$ ?. *n actions against a person guilt# of fraud in incurring or performing an obligation upon which the action is based$ +. *n actions against a part# who has removed or disposed of his propert#, or is about to do so, with intent to defraud his creditors$ 7. *n actions against non-residents not found in the Dhils., or on whom summons is served b# publication. RULE %C PRELI INAR" IN4UNCTION Dreliminar# *n/unction @ an order granted at an# stage of an action or proceeding prior to the /udgment re>uiring a part# or a court, agenc# or a person to refrain from a particular act or acts. PRELI INAR" ANDATOR" In:,nction @ an order re>uiring the performance of a particular act or acts. Gro,nds 1. applicant is entitled to the relief demanded$ or

1he following are the provisional remedies provided for in the 6ules of Court 1. Dreliminar# (ttachment 7R,-e %B8 %. Dreliminar# *n/unction 7R,-e %C8 &. 6eceivership 7R,-e %=8 ?. 6eplevin 7R,-e +D8 +. Support Dendente ;ite 7R,-e +18 PD 1C1C prohibits the issuance of in/unctive writs not onl# against government entities but also against an# person or entit# involved in the e"ecution, implementation, and operation of government infrastructure pro/ects. RULE %B PRELI INAR" ATTAC2 ENT 1he proper part# ma# have the propert# of the adverse part# attached at the commencement of the action or at an# time before entr# of /udgment. ;2EN iss,ed 1. *n actions for recover# of a specified sum of mone# or damages, e"cept moral and e"emplar#, on a cause of action arising from law, contract, >uasi-contract, delict or >uasidelict against a part# about to

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


!1

MEMORY AID
2. commission, continuance or nonperformance of the act complained of would wor in/ustice to the applicant if not en/oined$ or 3. the acts sought to be en/oined probabl# violates the rights of the applicant respecting the sub/ect of the action and tending to render the /udgment ineffectual. Section %. 1here must be prior notice to the person sought to be en/oined and a hearing before preliminar# in/unction ma# be granted. *f great or irreparable in/ur# would result to the applicant, the court ma# issue e" parte a temporar# restraining order, effective onl# for %I da#s from service on the part# sought to be en/oined. *f the matter is of e"treme urgenc# and the applicant will suffer grave in/ustice and irreparable in/ur#, the /udge ma# issue a 160 effective onl# for 7% hours from issuance. *ts effectivit# ma# be e"tended after conducting a summar# hearing wJin the 7%-hrs period until the application for preliminar# in/unction can be heard. 1he total period of effectivit# of the 160 shall not e"ceed %I da#s, including the 7% hours. *f application is denied or not resolved within said period, the 160 is deemed automaticall# vacated. 5ffectivit# of 160 is not e"tendible. 1here is no need of a /udicial declaration to that effect. ( 160 issued b# the C( or an# of its members is effective for 7I da#s from service on the part# sought to be en/oined. ( 160 issued b# the SC or a member therof is effective until further orders.

IN

REMEDIAL LAW

GROUNDS !OR O34ECTION 1. insufficienc#$ %. if in/unction would cause irreparable damage to the person en/oined while the applicant can be full# compensated for such damages, D60)*:5: the former files a 30A:. Distinctions IN4UNCTION
directed against a part# in the action

PRO2I3ITION
:irected against a court, tribunal or a person e"ercising /udicial powers 3ased on the ground that the court against whom the writ is sought had acted without or in e"cess of /urisdiction (lwa#s the main action

does not involve /urisdiction of the court

it ma# be the main action itself or /ust a provisional remed#

RULE %= RECEIVERS2IP ;2EN A" 3E GRANTED 1. applicant has an interest in the propert# or fund sub/ect of the proceeding and such propert# is in danger of being lost or materiall# in/ured unless a receiver is appointed$ %. in foreclosure of mortgage, when the propert# is in danger of being wasted or dissipated and that its value is probabl# insufficient to discharge the mortgage debt or that it has been agreed upon b# the parties$ &. after /udgment, to preserve the propert# during the pendenc# of an appeal or to dispose of it accdg. to the /udgment or to aid e"ecution$ ?. when appointment of receiver is the most convenient and feasible means of preserving,

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


!2

MEMORY AID
administering or disposing of the propert# in litigation. ( person who refuses or neglects to deliver propert# within his control and which is the sub/ect of the action to the receiver ma# be punished for contempt and liable to the receiver for the mone# or the value of the propert# D;US damages. 1he receiver shall also file a bond before entering upon his duties separate from the bond filed b# the applicant. RULE +D REPLEVIN 1he sheriff shall retain the propert# for + da#s. <ithin such period, the adverse part# ma# ob/ect to the sufficienc# of the applicant9s bond or suret# or he ma# file a counter-bond. (fter + da#s and the adverse part# failed to ob/ect or his counter-bond is insufficient, the sheriff shall deliver the propert# to the applicant. Distinctions
REPLEVIN =a# be sought onl# when the principal action is recover# of personal propert#. ATTAC2 ENT (vailable even if recover# of propert# is onl# incidental to the relief sought.

IN

REMEDIAL LAW

RULE +1 SUPPORT OPENDENTE LITEG <hen ma# be applied for! at the commencement of the action or at an# time before /udgment or final order. 8ailure to compl# with an order granting support pendente lite ma# warrant the issuance of an order of e"ecution against the non-compl#ing part#. Ee ma# li ewise be liable for contempt. See matri< on provisional reme&ies more &etaile& in'ormation.

Can be sought onl# when =a# be resorted to even defendant is in actual if the propert# is in possession of the possession of a third propert#. person. C(AA01 be availed of Can be ()(*;5: of even when propert# is in if propert# is in custodia legis CUS10:*( ;52*S. (vailable before defendant answers (vailable from commencement but before entr# of /udgment 3ond is 8*L5: b# the court

3ond is :0U3;5 the value of the propert#

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,