Gesman CPNotesPM

Civil Procedure Notes
Justice Alex Gesmundo

RULE 14 (REFER TO SC CIRCULAR) Sec. 1 Sec. 2 Court must issue an order to make them avail of the modes of discovery, rule 25 & 26; so 3 attachments to summons (copy of complaint, guardian at litem, and this order) but failure to attach them is not fatal to the service of summons Sec. 3 Sec. 4 Rule 3 sec 15 Raise the validity of service of summons for the first time on appeal? No! On the personal service of summons is there a limitation on the place of serving? Only in residence? No! It can be served anywhere he may be found, only SUBSTITUTED service is limited. Valid service is a condition precedent to acquire jurisdiction over the person of the defendant Can you serve by registered mail? No. However, Section 15-16, allows such other mode as the as the court may deems proper. If in the Philippines through personal or substituted service only. VALIDITY depends on certain factors: o o o Whether def is natural or juridical person (sec 11/14) Whether the def is a resident or nonresident Type or classification of action (in personam, in rem, quasi in rem) Resident: effective/ valid service of summons, voluntary appearance in court Substituted service? Must show why personal service failed. If he refuses to accept then tender it to him. Just leave him a copy!! Marcos case: o Sec. 7 Substituted service: o Sec. 5 Alias summons: o Defn Important to obtain jurisdiction o Must be set forth in the answer since motion to dismiss are dilatory o o
Post-Midterms
Extraterrirorial (1 personal 2 publication 3 other mode deemed appropriate by court) Must have authority from the court that issued the summons Court allowed lawyers to issue it in Hawaii, Marcos wouldnt accept it, so they just threw it over the fence and SC said its valid, so Marcoses declared in default. But he has to be made aware that he is being served summons and he refuses it. And that is what will be indicated in the return (Read Sec. 4 and 18 together) Why do you have to return your return along with the proof of service? So that the plaintiffs counsel will know when to start counting for the purposes of declaring the defendant in default (to reckon the date within which he must file the answer!!!)
Court only issues it one time, so if failed has to make a return, then if there is an opportunity to do it then the court will give an alias summons (cant get the original back) OR when the summons was lost
Personal service cannot be effected upon the defendant Requisites: Show diligent efforts to serve on the defendant failed, process server took extra effort to locate the defendant after a reasonable length of time or period Where effected? In the residence or regular place of business Must verify that it is in fact his residence since he can have several (Islamic Dawa v. Shariaa

MARIA LUISA ISABEL LEGASPI ROSALES IIC/08-09
Courts) service in ANY of his residence is valid To whom? To person of suitable age and discretion residing therein (concepts of who these people are are the same as the people referred to in Rule 13); competent person in charge thereof (just in charge of the office not necessarily assigned to receive summons) Sec. 8 Serve to any one of them, if noone is there then the one in charge of the place of business Notice that a person has been severed usually seen in the newspaper: when it says that this is to give notice that this person is no longer connected, or when he informs the partners of such Sec. 9 Warden becomes the sheriff, the return must be under oath is effected by persons other than sheriff or deputy bec they are basically not officers of the court!! Sec. 10 Sec. 11 Managing Partner: assigned to manage the business General Manager: Assistant and branch manager no longer allowed, more specific now! Since juris was in conflict before Corporate Secretary: citizen and resident of the Philippines elected, keeps the records of the board and minutes of the meeting (verifies pleadings) Technically not personal service bec its served on a person not a party but to its officers Treasurer: financial controller or chief financial officer Sec. 15 Why do you need to serve personally on incompetent/ minor/ insane? Bec he is a party to the action and his cause is only assisted! (rule 3) Sec. 14 Sec. 13 Sec. 12
In-house counsel: cant serve summons on retained counsel, he must the one who holds corporate office where the office of the corporation is located not the same as external retained counsel
Cor Code Sec. 127: Resident Agent may be either an individual residing in the Phil or a domestic corp lawfully transacting business in the Phil, provided that in the case of an indiv, he must be of good moral character and of sound financial standing
SEC is authorized to receive summons, Banking CB, Office of the Insurance Commissioner
If the CEO of the foreign corporation is in the Philippines is here then may serve summons on him
National Govt agency, departments, or dept secretaries SolGen is the only ne who has really specific qualifications (person learned in law, etc.) LGU: executive head (mayors, governors, city or provincial attorneys) GOCCs: Office of the Government corporate Counsel, or to the executive officials of the GOCCS
Rule 3, Sec. 14: Requirements of SEC: must state principal place of business in AIC, cant be found so apply this constructive service of summons by publication (need to file a motion for leave to serve summons by publication)
Newspaper of general circulation: one that comes out in regular intervals and has a bona fide list of subscribers
Where the action affects the personal action of the plaintiff (personal action) usually cant sue bec beyond the reach of the processes of our courts since usually limited to the territory o Legal sep, annulment, dec of nullity, dissolution of conjugal partnership, action for recognition of legit children

MARIA LUISA ISABEL LEGASPI ROSALES
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Remedy to be able to bind properties of the defendant who is not in the Phil: convert a personal action to one quasi in rem; search for properties in order to exclude or enforce a lien over the property (so foreclosure instead of collection of sum of money) service of summons then becomes one only for due process and no longer to acquire jurisdiction over the defendant bec the suit is now one quasi in rem!; object of the suit is no longer the defendant but the property so the court acquires jurisdiction over the res Section 5
i. ii. iii. iv.
If defendant is a natural or juridical entity if defendant is a foreign juridical entity or not if defendant is a resident or not Type or classification of the action
ACQUISITION OF JURISDICTION Resident defendant - valid service of summons or voluntary appearance in court; if action is personal(?) service is required
Alias summons - only 1 original summons is issued, if summons is lost or is defective in form or manner of service an alias summons shall be issued Section 6 How to serve summons Personal service, make him sign it Tendering it to him Marcos case - tendering means "throwing it over the fence", in other words, just by giving the defendant a copy but the defendant must know that what is being served is a summons Section 7 Elements of Substituted Service of Summons Efforts to serve the summons failed Extra effort was exerted in locating the defendant for a reasonable length of time Service upon a person of sufficient age and discretion residing therein or some competent person in charge of his office or regular place of business Note - Sufficient age is not legal age Residence - not equal to domicile, may have several residences. Case: Islamic da'wa Competent AND in charge of the office Section 8 - Service upon entity without juridical personality Service must be upon anyone one of them, or the person in charge of the office or place of business Severed personality - notice by publication(?) Section 9 - Prisoners Service by officer in charge of the prison/warden who is deemed deputized as sheriff Section 10 - Incompetents, insane or minor o o o o Complaint Appointment of Guardian ad litem To avail of modes N.B. Failure to attach these shall not be fatal
Newspaper in: rule doesnt specify! Sc says that no rule prohibits that it be published where you suspect the person to be but no harm in publishing it locally immaterial, local pub should suffice to notify defendant.
ABSENT (Cholo Mirandas Notes till 16) Revised rules on pre-trial procedure (cross-reference) RULE 14 Sec 1 - motions to dismiss are discouraged because they are dilatory in nature. Actions in personam - service must be personal Actions in rem - service must be by publication Rule 25 and 26 are now mandatory Rule 18 must be discussed with rules 23 to 29 3 things to attach to the summons
A writ - to inform defendant that a claim has been filed against him It vests jurisdiction over the person of the defendant (must be a valid service of summons)
Service by registered mail - This may be done. Sec 15 provides - "in any other manner the court may deem sufficient" In one case the court allowed service by registered mail to Spain.
Valid service of summons depend on:

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Why should an incompetent be given a summons? Because they are real parties in interest Section 11 - Domestic private juridical entity Service to president, managing partner, general partner, corporate secretary, treasurer, in house counsel (luge and co.) Better secretary vs. best secretary (Sir morning na!) Treasurer - financial comptroller, chief financial officer In-house counsel - not same as external retained counsel
The rule requires that an affidavit of the printer, copy of the actual publication Who is a foreman? Person who "points" to what to do. Effectively, they do not exist anymore. Similar to supervisor. Who is an editor? Person who is responsible for the contents of the newspaper. NOTE: registered mail in this section is mere compliance to due process but actual service is made by publication. Section 20 - Voluntary appearance
Section 12 - Foreign private juridical entity Section 127 or corporation code - definition of resident agent Service to resident agent or government officer authorized by law to receive it or any agents or officers within the Philippines Even if an officer is merely on vacation in the Philippines, service may be made upon him
Mere fact of adding other grounds other than lack of jurisdiction over the person is not considered voluntary appearance. Section 1 Rule 9 - failure to plead a ground is deemed waived (ratio) RULE 15 - MOTIONS Section 1 - Motion Defined
Section 13 - Public corporations Service made to Solicitor general, if LGU upon executive head (mayors, governors) or other officer (oggc)(gocc) Section 14 - unknown defendant Principal place of business - if corp is not in their principal place of office as indicated in their records with the SEC, service may be made by publication Diligent search must be proven Newspaper of general circulation Regular intervals and bona fide subscribers Section 15 - Extraterritorial service (rule 4) Personal action(!) - affects personal status of the plaintiff - leg separation, declaration of nullity, dissolution of conjugal partnership, recognition of legitimate children, etc. - convert it to quasi in rem to recover or execute judgment Place of publication of notice - in place of plaintiff (locally) Section 16 - Residents temporarily out of the Philippines Section 17 - Leave of Court Section 18 - Proof of service Section 19 - Proof of service by publication
They resolve incidental matters except of course certain grounds in rule 16 which pertain to merits of the case. A petition for relief other than by pleading. Something peripheral from the main case Addresses interlocutory matters (rule 41 section 1) Rule 11 - extension of time to plead Section 2 - Motions must be in Writing 3 Kinds of motions Ex parte - ex. Motion for extension of time to file pleading, no prejudice can be caused to the adverse party Motions in due course (Rule 132 Section 36) Move to strike out on basis of hearsay Need not be in writing, obviously Litigated or contentious motions Motion to dismiss; motion declaration of default Notice of hearing addressed to adverse party is required - otherwise it is a mere scrap of paper, placed in the records and is not acted on; not required in ex parte motions If calendar is full, the motion is reset and notice will be the responsibility of the clerk of court RULE 49 Section 3 - applies only in trial courts, in appellate courts there is no need to attach notice of hearing

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It is the division clerk of court will be responsible for scheduling the hearing; you have no say as to when your case will be heard Not rendered void by lack of notice All motions must be in writing except those motions in due course Section 3 - Contents Affidavits and supporting papers must be attached Rule 133 Section 7 - if court is not satisfied with the affidavit attached to your motion, Court will allow presentation of evidence in open court Section 4 - Hearing of motion 3 day notice rule - hearing must be set within the 10 day period from filing or mailing of motion but must be received by adverse party at least 3 days before hearing EXCEPTION: (Rule 35 Section 3) - 10 day notice rule, at least 10 days before hearing for summary judgment EXCEPTION : Urgent matters -TRO EXCEPTION: Parties agree Section 5 - Notice of Hearing Request + notice to adverse party Section 6 - Proof of service necessary Rule 13 - under the rule the court shall not act on a motion unless there is a proof of service on the adverse party Service preferentially must be done personally, use of other modes must be explained Effect of failure to comply with that rule- considered not filed Section 7 - Motion day Rule 20 Calendar of cases - responsibility of clerk of court to set motions for hearing Why should it be Friday? Courts are usually busy for trial most of the week, at least in one day ideally the court is free of trial Why should it be in the afternoon? This is the time the judge is free and relaxed Section 8 - Omnibus motion What is an Omnibus motion? This is basically reflected in Rule 9 Section 1 Generally includes all grounds for dismissal, you should include all grounds Motion Ad Cautelam - as a precautionary measure Section 4 - Time to plead Within time he was entitled to, but in no case shall not be less than 5 days Indubitable - not open to question or doubt Defendant may file petition for certiorari, prohibition against a court If denied, the defendant is not precluded from setting up defenses raised in the motion. Hypothetically admitted facts in the motion may not preclude the defendant to controvert such facts in trial. Rule 129 Section 4 - may be raised in trial Section 2 - Hearing of motion Section 3 - Resolution of motion Actions by the Court Deny Grant Amend the pleading if warranted Section 10 - Form Applies to pleadings and motions as far as concerns caption, designation, signature, and other matters of forms RULE 16 - MOTION TO DISMISS Section 1 - Grounds When do you file a motion to dismiss? Within time to file an answer Rule 14 summons Substantive law Rule 4 Rule 8 - Section 4 Rule 3 - Section3; Rule 9 - Section 1 Rule 2 Rule 2 Demurrer to evidence Rule 33 v. Motion to Dismiss Rule 16 timing Section 9 - Motion for leave Rule 1 Section 5 - irrespective of whether or not motion to admit additional defendant it granted by the court Pleading sought to be admitted must be attached to the motion for leave

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Section 5 - Effect of dismissal F-H-I, motion to dismiss upon these grounds shall bar the re-filing of the same action or claim Section 6 - Pleading grounds as affirmative defenses The party alleged the grounds in section 1 in the answer. (he is not precluded from raising it in his answer) But he is precluded from, rule 9 section 1, defenses not setup in the motion to dismiss deemed waived Rule 15 section 8 - omnibus motion Counterclaim is permitted to be resolved notwithstanding the dismissal of the original action Dismissal for failure to comply with conditions precedent Exhaustion of administrative remedies Lupon tagapamayapa Family cases - attempt for amicable reconciliation Who are covered? Parent, child, ascendants and descendants, brothers and sisters Motion to dismiss even after filing of an answer? Grounds Barred by prescription Res judicata Statute of frauds Litis pendentia Has been extinguished Knowledge only upon appearance (?) Motion to dismiss on ground of lack of jurisdiction on person, should the court dismiss the action? No. The court should serve summons to him. RULE 16 Special Motions: Rule 14, Sec. 15, Service summons - extra-territorial by motion Effect if a person does not file a motion to dismiss on the ground of improper venue and instead takes part in the proceedings: estoppel, must be raised at earliest opportunity Ground if improperly dismissed: either petition for review/ certiorari/ prohibition If dismissed bec improper venue: party can still go on Sec. 6 Sec. 5
Prescription if not evident in the pleading: can still be used States no cause of action: can have it amended Consider matters not included in complaint? No except Exhaustion of administrative remedies: can be suspended till the resolution of the admins proceedings Conditions precedent when not availed of may warrant dismissal: o Earnest efforts at compromise between members of the same family (husband & wife, parent & child, ascendants & descendants, brothers & sisters) o o o Presence of a 3rd party excuses this Referral to katarungan pambarangay Exhaustion of Admin Remedies Payment of Docket fee
Grounds that will allow a party defendant to file even after an answer has been filed: o o o o o o Lack of jurisdiction over SM Statute of Limitations Rule 9, Sec 1 (f, h, i) Res judicata Litis pendentia Grounds which appear at the time of the trial On the ground that it is vague or indefinite: No! Bec file for a Bill of Particulars Ground is summons was served defectively: No need to dismiss, since hes before the court can serve him immediately (alias summons) Period: no less than 5 days Barred by statute of limitation vis--vis extinguished as in (h): estoppel or prescription (1139-55 of CC) vis--vis Art. 1231 of the CC (1117-1138 of CC) It is averred it in the answer Precluded from raising certain grounds in the Motion to dismiss and some in the answer (CHOOSE ONE since the ones not in MOD are deemed waived according to Sec 1 & rule on omnibus motion, Sec. 8 Rule 15)

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Filing of a motion to dismiss are in fact discouraged Rule 17, Sec 2 & 3 can choose to have counterclaim pursued in an independent action o Especially when counterclaim is compulsory
filed, it cannot be revived at any other point in time) Prior to the service limited only to the dismissal of the complaint 15 days given bec: in sec 3, it is at the behest of the defendant that the action is dismissed so when he does it he can already manifest that he wishes to proceed. Here since its at the behest of the plaintiff he
RULE 17 Common: Both terminate the action when granted by the court without reaching the trial stage (rule 34 & 35 rendered on the pleadings, summary judgment) Primary difference: 16 filed by the defendant, 17 except sec 3 filed by the plaintiff (but fault is always due to the plaintiff) Sec. 1(retractcit a dismissal effected by the plaintiff without day?) Does not have to file a motion unlike in sec. 2, only give notice to the court that he dismissing Cut-off period: before service of answer or motion for summary judgment o Bec plaintiff might want to dismiss just bec more being demanded by defendant in counterclaim (not fair) so this period is required Required of the court: issue an order confirming the dismissal o o Bec this dismissal will have to attain finality at a certain point in time Even if without prejudice, if it is with prejudice (since nothing to collect, was paid already) then it will amount to a decision period of time to reckon finality and without confirmation cant compute this period so res judicata can later be invoked by defendant Sec. 2 How will it be effected: a motion filed by plaintiff With leave of court Limitation: sec 1, court is only given the right to confirm, here the court may opt for the dismissal to be subject to certain conditions (such as that nothing else can be Two dismissal rule (1057) o Rationale: Avoid vexatious litigations Sec. 3
might not know. Also a dismissal of the action at the instance of either the defendants motion or the courts own initiative (suis corte) Own initiative (moto proprio): o o o Rule 9, sec. 1 Rule 17, sec. 3 Rule 141, sec. 1 (as amended the circular w/ permanent marker comments on top): in case of dishonor of the checkcourt may dismiss the case without prejudice (failure to comply with these rules so can say with prejudice, but since it should be of liberality) o Fails to appear on the date Rule 30, sec. 5 (a) ORDER OF TRIAL Not the lawyers failure to appear but the plaintiffs failure to appear o Fails to prosecute for an unreasonable length of time (1061) Rule 14, nolle prosequi: since sheriff must file a return o Rule 9, Sec. 3 he didnt do anything! Failure to comply with these rules Rule 12, sec. 4 pleading failure to comply Rule 29, sec. 5 Rule 29, sec. 3(c)
Effect: adjudication upon the merits unless otherwise provided by the court No distinction bet. Permissive and compulsory counterclaim bec given the time to say whether he wants to pursue it in the same or a separate action

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Motion for reconsideration? Yes but not required to submit an affidavit of merits unlike motion to set aside order of default
people running the country; writ of prohibition may become moot and academic; those required by law: accused is in detention) Clerk of court controls the calendar only supervised by the judge Sec. 2 Exclusively by raffle but may be acted upon by the executive judge like TRO Only if its a multiple-sala or branch court: depends on the court (CA could be the justices that are raffled) Required: that there be transparency in the raffle RULE 21 Sec. 2 Actually all courts, part of inherent powers (Rule 135, Sec. 5 (e)) Officers: Congressional hearings in aid of legislation, NBI, SEC (before) People v. Oposa: Detention prisoner, escorted to testify, assassinated Ferrer so now need approval of SC, wasnt suspected bec detained Sec. 3 Sec. 4 If violates the Bank Secrecy Law, ask for it to be quashed! Unreasonable, blanket subpoena bec sometimes asked for just to harass an actionable wrong Kilometrage : Rule 141, Sec 14 witness fees Forms 14 and 15 (ROC 573) Subpoena: served upon witnesses, a compulsory process Testify: subpoena ad testificandum (before only males could testify) Sub-poena: under penalty Documents: subpoena duces tectum By CoC under seal and authority of judge so should be addressed to the CoC
Sec. 4 Rule 3, sec. 1 since all refer to what is done by a plaintiff (other pleadings that also assert a claim) RULE 19 Intervention is subject to leave of court bec it may delay proceedings, so it is NOT an absolute right, must show that your interests must be protected Any time? Any time before rendition of judgment Intervention vis--vis interpleader (rule 63) vis--vis third-party complaint: all involve third parties, intervention is an ancillary action, interpleader is an original special civil action, a third party complaint is also an ancillary action it can exist when there is already a pending original action (DEFINITIONS) If motion for intervention is denied can appeal or rule 65 or it may be too late to intervene Interest required? Direct interest, not contingent or speculative whatever the result it will surely affect him Complaint or Answer in intervention Requirement of Rule 15, Sec. 9 (file motion to file a complaint or an answer in intervention or can make both present parties defendants complaint in intervention impleading both parties as defendants) Need to serve a copy to the original parties Within 15 days of notice of order of admitting the same RULE 20 Sec. 1 Preference is given to habeas corpus, election cases etc: because time is of the essence in these cases (deprivation of liberty Rule 102, Sec. 12; election case special rules now bec it may end up a pyrrhic victory, cannot afford uncertainty in the Sec. 5
In Rule 23 as well Clerk of Court must take it on mere notice Court must examine the validity of the request or notice bec it might be intended to just harass

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Sec. 6 Furnishing a subpoena to the party to whom it is addressed: personal or substituted service (Rule 14) not allowed by registered mail Sec. 7 A person refuses to testify but he came along just need to point him out to the Clerk of Court and can be compelled since hes already there Sec. 8 Rule 133, Sec. 5 (an inherent power) thats why court can effect his arrest and charge the expenses to the witness if without justifiable cause Sec. 9 Rule 71, Sec 3 just bec can issue subpoena does not mean they have contempt power so will have to file with the court to file a petition under 71 bec they dont have the inherent power to cite people in contempt Sec. 10 VIATORY RIGHT of the WITNESS: residence is 100 km from place of attendance or a detention prisoner if no permission is obtained (remedy rule 23) RULE 22 Sec. 1 CC Art 13, but there are specific laws where period like this does not apply labor law period is 14 days (non working days are not included) Sec. 2 Rule 11 is controlling Problem is that it doesnt define when it starts and when it ends (justifiable interruption) Obscure circular: Appendix K CA & SC use it, if extension is sought Sec. 1 wont apply, will have to file it before the holiday RULE 18 PRE-TRIAL: a procedural device by which the Court us called upon after the filing of the last pleading Object: to facilitate the proceedings
NUMBER 1
Prior to the presentation of the parties evidence An action may be terminated here Guidelines (Appendix M) changed rules MANDATORY Interrogatories and Admissions required (Modes of Discovery required, Rule 25 & 26): 1.2 expedites the trial can also avail of 23, not 24, 27 motion for production or inspection, rule 28 if relevant: order must be served together with the summons
Full disclosure ASAP, before not mandatory so its prolonged and protracted when could have been cheaper and speedier now can be oviated in reality you can terminate it quickly, encouraged by the court to unclog the dockets of the court because the issues of the court are cleared up
Now equally the responsibility of COC to set it
NUMBER 2 Sec 6, Rule 18 What the pre-trial brief should contain ADR is different from mediation (peace-keeping try to reach a reconciliation) or arbitration Can admit certain things bec may still have defenses against it anyway (like that you received a letter or an amount being claimed) Rule 10, Sec. 5 since all should be threshed out but nobodys perfect so still can be fixed D VERY IMPORTANT, the bold portion (PRECLUSION RULE) is an innovation, different from the exclusionary rule Rule 128, Sec. 4 now it must be disclosed or wont be allowed to present it in trial unless for good cause SHOWN (if dont show no matter how material wont be allowed) LAY ALL THE CARDS ON THE TABLE (so they have immediate access and will know if they should proceed to trial) but there are arguments that it will violate right against self-incrimination (will know if there is logic to your alibi or defense) Need to show the court what mode of court you availed of (Rule 35, summary judgment, Sec. 1) affidavits, depositions, or admissions no need to go to trial

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depositions are always used in US (more realistic to settle) When pr-trail order is issued even number of witnesses is specified (corroborative witnesses no point in calling them just repeat): before they used to just speculate, once hear the other side they choose witnesses, need to also name substance of testimony If PRE-TRIAL BRIEF NOT FILED could be dismissed, evidence presented ex parte; NOT LIKE DEFAULT Rule 129, Sec. 4: Judicial admissions (The parties are bound by the representations and statement in their respective pre-trial briefs: VERBAL or WRITTEN); pre-trial is part of the proceedings since Rule 128, Sec. 1 places this under its purview, controversy lies in the resolution of facts since everyone is assumed to know the law, unless show that the admission was made by palpable mistake or never made NUMBER 3 If no PMC in that region, this does not apply So now pre-trial has 3 stages o Before COC (preliminary conference): reaching a settlement, marking of exhibits (plaintiff A; defendants 1; if many name like Exh A-Rosales; can have a common exhibit) Ideal situation is bring the original, prepare an extra set of photocopies (placed in clearbook), do not allow the original document to be marked or the authenticity of the document becomes questionable, anyway photocopies are admissible if COC makes it of record that the adverse party has seen if and has manifested that it is a faithful copy of the original, and mark is made on the photocopy only or it may also be destroyed (probate court: cant remake a holographic will) bec use NUMBER 5 NUMBER 4 o o
of it is also important in the end of the trial (Rule 132), need to offer it under rules of admissibility Rule 130 then wont have probative value BEST EVIDENCE RULE also then defeats your case Pre-trial hearing before the Judge Admissions and undisputed facts OTHER than what is stated in the PRE-TRIAL Rule 8 certification of forum shoppingBRIEF, on genuineness and due execution of documents for private documents to be admissible MINUTES of PRELIMINARY CONFERENCE (Annex C) Before it was just rushed through, now there are specific requirements AMICABLE SETTLEMENT tried yet again IMPARTIALITY: sometimes will have to inhibit bec forms an opinion after pre-trial Allowed to employ psychology to resolve case (settlement! Psychological comfort level, a party will not enter till he believes he is at an advantage) Since there is already a total disclosure of evidence must ask the two if they do not want to settle based on it NO SPECIFIC MANNER BY WHICH THE COURT MUST DO IT, in open court or chambers, must have some flexibility in pretrail especially since they may not be comfortable presenting evidence in front of everyone: objective is to make them come to terms and settle the case Rule 8 certification against forum shopping Motions: interlocutory matters (like motion to inhibit) To avoid fighting can be the one who determines what the issues are Possible no more triable issues so just summary judgment Dates of trial: cause of delay (so later cant ask for resched bec of conflict, since youre the one who gave the date)

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MOST IMPORTANT WITNESS RULE: the witness that can prove the factual issues, sometimes one witness will be sufficient (Rule 133, Sec. 1)
must avoid hostilities between the parties, like rule 112, the judge must ask the questions so the arguments wont be prolonged practically turning the proceedings into a trial
Another innovation: (k) USE AFFIDAVITS OF WITNESSES instead of having them testify for direct examination (Sec 4, Rule 132) Rule 132, Sec 1&2 sometimes requires too much time so in lieu of it witness may be required to present a JUDICIAL AFFIDAVIT in lieu of oral testimony, must be in a QUESTION and ANSWER form without prejudice to the adverse party to make objections and strike out certain portions, must also comply with rules on competency and it must comply with rules of admissibility of evidence (RELEVANCY and COMPETENCE still must be) o Witness is competent when: (1) has an understanding of the duty to tell the truth thats why placed under oath (2) ABILITY to COMMUNICATE / must be able to perceive, make known his perception Rule 130, sec 20; religious conviction etc doesnt effect it (3)Rule 130 Sec. 36, Knows of his own personal knowledge only! No hearsay NUMBER 8 NUMBER 7 NUMBER 6
Could be extended depending on complexities of the issues on the entry into stipulation of facts, abbreviated bec of the preliminary conference, only additional matters that may be admitted or stipulated Earlier the minutes reported from the preliminary conferencemust be signed by the parties, bec whatever admissions made by the parties shall be binding : what need not be proved (Rule 129, sec. 4) judicial admissions; require no proof at trial, if they do they require proof should make timely objections Now format bec before judges could write it as they wish and important matters were let out; pre-trial order is a roadmap on how the trial should proceed (Rule 34 & 35) Sixto v. Sandiganbayan not allowed to withdraw admissions unless there was fraud and if at their request it should be considered withdrawn this should not be permitted; they MUST examine its contents before signing
(l) when a witness is reluctant to the court, they may have to subpoena him and he doesnt show up, this way the court may still communicate with the witness bec experience has seen that cases calendared, ready to proceed, but subpoenaed witness doesnt show up, only ONE roll call for all the cases, some may have a 2
nd
If you fail to do that, before parties proceed before the trial can request that it be amended
roll call just to
NUMBER 9 Since its a civil action, at any stage of the proeedings the parties are permitted to enter into a compromise, even after jusgment but must submit it to the court but a judgment on a compromise is immediately executory and final MODES OF DISCOVERY Rule 23 28: Depositions pending action, depositions before action and pending appeal, interrogatories to parties, requests for admission by adverse party, production
wait for witness, but if still not there the court has ready access by calling the witness (PRACTICALITY demands this info to be given) (m) delegation of reception of evidence is given to the Clerk of Court (Rule 9, Sec. 3) declaration of the court that a party is in default; Sec. 9, Rule 30 if cant decide on admissibility (n) a referee, accountants, an auditor, and an examiner (Rule 32) to expedite the proceedings sometimes need to refer to them

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or inspection of documents or things, physical and mental examination of persons Discovery = the compulsory disclosure, by a party to an action, of relevant documents referred to by the other party; to make something secret known (essence) MAIN OBJECTIVE: should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to their adversary LAY ALL THEIR CARDS ON THE TABLE, so no FISHING EXPEDITION (no specific objective or target) Modern theory: parties should know the evidence to be presented in trial in advance To know the potential witness and documentary evidence Again bec if not availed of the are deleterious effects if 23 and 25 are not taken since its to expedite the proceedings Rule 35 (Summary Judgment, Sec 1 & 2): basis for the motion is affidavits, depositions or admissions Sec. 2
Rule 8, manner of making allegation in pleadings, just required parties to state the ulitmte facts, leaving evidentiary matter but at this stage you have access to the evidence that why there is some control needed, so either party availing may not abuse these discovery deposition procedures
Whose depositions may be taken: any person, whether party or not to the action because it is the belief by a party that certain persons or individuals has in his possession information that can be utilized at the trial, so no restriction bec just want to find out what they know about the case subject to the provision of Sec. 2, Rule 23
Its to be taken according these rules to protect all the parties If the deponent is a prisoner, there must be leave of court & terms bec as required in rule 21, need to get a subpoena & there are restrictions
May inquire into any matter subject to 2 condition: relevant & not privileged But subject to the control of the court (16 & 18) Rule 128, sec. 3 twin actions of admissibility of evidence Here technically taking in advance evidence but for deposition of the witness it is limited strict rules on admissibility of evidence are NOT applicable nevertheless still cant inquire even if relevant if privilege (Rule 130, Sec. 24 attorney-client, etc.)
RULE 23 2 kinds: o o Sec. 1 Deposition may be subject or leave or court or without leave of court It depends at what stage of the proceeding you are to take the deposition If no answer has been served need leave of court because the issues have not yet been joined, since its in the filing of a responsive pleading that issues are joined, and need leave of court so they can control the matters looked into beca these modes may be abused (Court must see to the reasonableness of the deposition) If answer served parties already before the court, incumbent upon the adverse party to avail of measure to protect themselves in case the deposition is intended for some other purpose other than eliciting information (Sec. 16, Rule 23) Sec. 3 de benne esse in perpetuam rei memoriam (rule 24)
Requirement of competency in Rule 128 GR these things cannot be restricted at the deposition taking bec only privileged matters are restricted, may make statements hearsay in nature bec only trying to discover if he has information on those matters since rules on admissibility at this point arent applicable anyway, only coes ito play when the deposition is to be used already at the trial as evidence Rules on evidence, presentation of evidence etc, since the idea here is to take in advance the evidence should be conducted as if the witness was already before the court

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since intend to use it in court subject to certain objections grounded on the rules on admissibility of evidence anyway (ex. Sec. 4, Rule 132) JUST procedure followed to tie down potential witness, so they cannot contrive or invent, since its done immediately upon filing of the action (cant poach potential witnesses, Rule 132, Sec 1 & 2 similar to Sec. 17, Rule 23 so can be charged with perjury if they alter their testimony) JUST AN INQUIRY!!! Sec. 4 Result of the deposition can be sued at the trial or hearing of ay motion or interlocutory action but at the time the deposition is to be used, it must comply with the rule on admissibility in Rule 130 (since now used as evidence) GR: Where the witness is available at the time of the trial, he must be presented in court, cannot use his deposition except as provided in (c) (a) Impeaching the deponent as a witness: used primarily to refute the testimony; Rule 132, Sec. 13 this is the FIRST and PRIMORDIAL use of a deposition if makes an inconsistent statement during the trial then may use the deposition by narrating the statements earlier made to destroy the credibility of the witness and then the testimony will have no probative value at the time of the judgment (ask to explain discrepancy, if cant credibility is destroyed) and may be charged with perjury deponent may say something adverse or favorable to you during deposition so can then decide not to use the person as a witness, unfortunately the other side may use her as a witness (b) Other purposes: impeach adverse partys witness or use as evidence to support your claim no restriction as to its use (c) If discovered that the deposition will hurt the case its possible that the witness could be hidden or killed, also the viatory right of a witness, or arrested, sick, sent to jail; failed to procure by subpoena if witness decides that he doesnt want to get Sec. 11 Sec. 10 Sec. 9 Sec. 8 Sec. 7 Sec. 6 Sec. 5
involved; exceptional circumstance dying, is going to migrate to the states without a definite date of return, or an OFW Transfer of interest: since everyone was given a chance to take part in the deposition anyway Objections to admissibility, sec. 29 objections as to the taking of the deposition Use of the deposition at the trial, have to object to its admission by applying Rule 132 (so if its hearsay must object) Dont confuse competency of evidence in Rule 128 and the competency of a witness, Rule 132 C, Sec. 36 Rule 130, Sec. 3 (Best evidence rule): if at the time the photocopy of a PN was not objectionable during deposition taking and its being produced again now can make the objections Since just speculating that he knows something useful to you, if it turns out that he is not cannot be compelled to present him as a witness (cant be forced to provide a rope to hang yourself) When you use the deposition then you make the deponent your witness qualified use of the deposition if they say something adverse to ou But does not apply to Sec. 4(b),when you use the deposition of the adverse party, as to the other things you are not bound by this rule, can use the favorable statements but not to the point of making him your own witness Even if something adverse is said can still rebut (Sec. 4 (d)) Judge, notary public, as stipulated in writing by the parties before a judge where the action is NOT pending otherwise it would be a trial already If officers of the republic of the Philippines sec. 1 still applies and still needs leave of

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court since even in (a) these are considered to be extensions of the territory of the Philippines BUT if with letters rogatory etc ALWAYS with leave of court so they can determine if it is necessary to issue a commission or letter rogatory Commission: an instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do nay other act by authority of such court or tribunal (II, 24) they decide a notary public should take it then the court must issue this to authorize it Letter rogatory: a formal communication from a domestic court in which an action is pending to a foreign court requesting that the testimony of a witness residing in such foreign jurisdiction be taken under the direction of the court addressed and transmitted to the court making the request. (forms 21 & 22) Sec. 16 Sec. 17 Like Rule 132, Sec. 1 & 2 since practically taking in advance evidence Read transcript carefully, rely on sounds, may be wrong held in estoppel Must be observant, place on record if believed to be coached because deposing officer cant rule on objections, only judge before whom it will be used can decide on the admissibility Gives party option not to participate in the oral examination because it can be expensive can just send written interrogatories Sec. 18 Protective orders when deposition is being taken 2 courts o o where it is taking place if done by judge court where action is pending Cost: as court may deem reasonable Before actual depositiob taking (protective orders) Object: file a motion Like infringement of a patent
Sec. 19 Ask him to read changes sign (to authenticate) o o o Sec. 21 Sec. 22 Sec. 23 Sec. 24 Sec. 25 Other form, not the same as Rule 25!!!! 23 is broader, here any person!!! But in Rule 25: mandatory is limited to interrogatories to parties exchange questionnaires o o notice direct interrogatories sent cross-interrogatories sent redirect interrogatories like Rule 113, Sec. 5, re-direct interrogatories o Sec. 26 Sec. 28 Sec. 29 RULE 24 Rule 134 no longer exists! Yet to accrue (in perpetuam rei memoriam) Person who expects to be a party or witness Initiatory pleading: petition to perpetuate testimony (a) raise it at first opportunity! (b) raise a question immediately and refuse deposing officer Gregge Shorthand Writing Jet writing system Difference between oath and affirmation?? If violations of the manner specified by Rules Like Sec. 16 & 18 As if its an oral exam and officer is just a proctor Give to deponent who has to answer them ALL before the deposing officer Sec. 5 On subpoena (rule 21) Must ensure that witness will show up or will be accountable Bear expenses bec. Youre at fault Even subpoena!!! So can ask to open or suppress it Sec. 3 (a) possible not here anymore (b) adverse party/ corp. officers, immaterial w/n deponent is found if (a) only if not available

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Venue: Residence of the expected adverse party (so as not to incovenience) Basic allegations: o o o Expects to be a party Interest therein Facts, etc Sec. 2
File AND serve: unlike 23 because result is considered as evidence already Judicial admission Rule 128
Why? Because in effect they are considered judicial admission w/o offering it in parties presentation of evidence
Sec. 3 Notice & Service: served twice o Expected adverse party: your petition then at least 30 days before hearing o o Sec. 6 Sec. 7 Rule 37 (MR or NT Sec. 1 (b) newly discovered evidence) A party after a judgment files MR or NT or has option to pursue an appeal Found witness, very old (advanced age), not sure how long will live & appeal is pending (Rule 41, Sec. 3) Aggrieved party: o Review under Rule 37 (newly discovered evidence): 15 day period Motion to take depositiob pending resolution of NT or MR o So if during pendency & dies can use his deposition All denied, under Rule 41, appeal (Rule 37, Sec. 9) pursue in appellate court If he was available during trial should have presented him!!! RULE 25 (Mandatory!) Sec. 1 Conditions: leave of court or not Scope of examination: stricter than deposition; strictly addressed to the parties of the action Sec. 6 Sec. 5 Sec. 4 Use is the same as Rule 23, on premise that action will be brought Then again the court Personal and substituted service Sec. 3
23 & 29 deposing officer files with CoC and notifies parties, here filed and served May be extended by motion Can be declared in default if dont answer Must interpose objections if there are legal grounds w/ notice as in motion (serve copies to all parties; Rule 15 Sec. 3, 3-day notice to give them an opportunity to respond called an OPPOSITION; Rule 29 Sec. 3(c) Judgment by default possible In the meantime the period is tolled as in answer in an ordinary civil action Rationale: should not be piecemeal, can harass the other party but after 1 can have a judgment under Rule 35 So be sure its all there cant use it to oppress, annoy, embarrass the parties If availed of Rule 23, can avail of Rule 25 since a party can avail of ANY of the modes of discovery At what stage may it be availed of? Similar to Rule 23 subject to the conditions at ANY stage of proceedings, no limit si long as WITHIN the trial Use practically the same as that of a deposition, Sec.3 (b) of Rule 23 Reason why Rule 25 is mandatory this is the adverse effect A sanction or penalty imposed on a party who fails to serve written interrogatories Rule 132, Sec. 12 Par. 3 an adverse party may be called as a witness (plaintiff can call the defendant a hostile or adverse partys witness; if not availed of cant avail of Rule 132, Sec. 12 Par. 3 because had you availed of interrogatories he couldve already answered your queries (speedy disposition!) so now precluded
Court has to determine Same procedure as Rule 23, depending on form (oral or written)

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RULE 26 Sec. 1 After answer already filed (can be availed of) unlike 25 or 23 (already been joined, all relevant facts are now clear to the court) Also filed and served because these documents constitute judicial admissions, Rule 129 Sec. 4 Subject: Genuiness or truth (covers documentary, testimonial evidence; Rule 130 Sec. 2) provided it meets the requisites of MATERIALITY & RELEVANCY Sec. 2 If there is a request for admission, the adverse party must respond in a sworn statement by denying or admitting or say why he cant (must make a SPECIFIC DENIAL under Rule 8 Sec. 10) Impliedly admitted matters are deemed established already, no need to prove it anymore (Rule 35 Sec. 1-2) summary judgment (one of the bases is admissions) Thats why this is mandatory!!!! Difference bet this and Rule 25, Sec. 3: TIME, before filing the sworn stetment; but no equivalent, that in Rule 25 must have notice here no similar requirement but the effect is the same Sec. 3 There is a limitation: Only in so far as that case is concerned, diff from Rule 23 Sec. 5 (may be used in another action involving the same parties) Sec. 4 Sec. 5 Sanction upon, fails to file and serve a request for admission Cant give similar evidence to controvert because it implied admission Guidelines for pre-trial, can already be stipulated, because in rules of evidence private documents must still be duly authenticated RULE 27 Sec. 1 RULE 29 Sec. 3 & 4 Also in Rule 129, Sec. 4 (palpable mistake) Sec. 2 Form 12 (572) RULE 28 Sec. 1
Court cant require delivery Not in custodial egis, just explore Prior to trial so its broader than Rule 21, Sec. 1 (bring it to court) really specific; may be squashed (?--> cant read my own handwriting) Rule 60 can compel delivery ALWAYS requires leave of court through MOTION, others depends on what stage Need to determine reasonableness or inspection and production Rule 8, Sec. 8 (inspection referred to her) Rule 130, Sec. 8 Rule 132, Sec. 18 Rule 116, Sec. 10 Dead person okay! Exhumed under US jurisprudence
Motion!!! Rule 130, Sec 24 (c) no privileged relationship here but there there is a patient-physician relationship Mental and physical examination WITHOUT treatment No treatment; no privilege communication. We simply want to find out the mental and physical condition of the party whether or not he/she is competent. Doctor may be allowed to testify; no treatment involved Right against self incrimination refers to testimonial compulsion only so not violated here Example is petition for guardianship GOOD CAUSE must be shown as well as time and place of examination Rule 92, Sec. 2, DNA! Now done in the National Center for Mental Health (an accredited Government Hospital) they serve a diploma If he gets a copy, he waives the privilege/ right to deny access to his own records Trial: EXPERT WITNESS Availed sanctions depend on mode availed of Paragraph 2 with the very court deposition is being givem

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Rule 132 Sec. 3 to resume court where action is pending; stop either court Rule 71 Sec. 1 (a): contempt when defy Rule 25, 23, 27, 28; default when Sec. 5 and Sec. 3(l) Sec. 2
Should be that I have not conferred w/ the witness when asking for a continuance
Cannot adjourn if hell come back so recess (after session resumed) there could be questions on the manner the court conducted a trial so court must be very cautious
Sec. 4 Sec. 5 Sec. 6 RULE 30 You cannot postpone a hearing for more than 30 days. Rules on postponement in criminal and civil are different. Ex-parteuncontested; no objections Where it should be conducted? Rule 135 Sec. 7 But pre-tral can even be done in chambers because its not a trial Trials are conducted inside Muntinlupa jail: stenographer is in the center; court interpreter, bailiff, sheriff (to maintain order) Trial does not need to proceed and case is decided (action terminated without trial) o o o o o o Rue 34 pleading Rule 35 summary judgment Rule 16 case is dismissed If during pre-trial decides 34 or 35 Failure to comply with Modes of discovery - Rule 29 Sec 3 (c) Rule 17 When by default hearing is only ex parte Distinguish bet w/n w/ prejudice Dismissal even w/ only a partial trial: Rule 33 since can only be done after presentation of evidence Sec. 1 Why 5 days? To prepare counsel and witness for trial Calendar of cases include new trials: to check what cases are to be called Sec. 4 Need legislation to appropriate money so cant charge the Republic of the Philippines Rule 141: exempt because its just putting money from one pocket to another Bonds: presumption that the state is always solvent Sec. 3 Sec. 23 but only those party to the suit Sec. 25 Example is calling an expert witness
Female lawyers: no slacks or sleeveless, no tight pants Associates have to postpone when case is no longer transferable speedy trial in civil and criminal different cant extend for than 6 months ideally if cant finish will have to request for extension w/ court administrator and cant cheat bec cases are audited every year absence of evidence: Rule 130, Sec. 1 (first form of evidence), Sec. 2 (documentary, Sec. 20 3 BASIC FORMS OF EVIDENCE o Availability of object evidence Ex. Prosecution for physical injury bec of a gadget then gadget is off somewhere being tested o Absence of documentary evidence o Dont have certified true copy of a birth certificate Absence of testimonial evidence Cant come for valid reason
MUST SHOW MATERIALITY and RELEVANCY or cant postpone, Rule 128, Sec. 1 & Sec. 3 More important witness rule: ONE-DAY EXAMINATION RULE So always prepare 2 witnesses per schedule so if 1 isnt available another can testify But if not done at pre-trail (parties may stipulate that if witness is called he can just say that the witness need not testify) they are metioned at pre-trial because of the PRECLUSIONARY RULE HERE BEC OF ABSENCE OF EVIDENCE Postponement because of illness of party or counsel HERE BEC OF ABSENCE OF PARTY OR COUNSEL

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Since when was counsel dispensable unless for small claims??? Counsel cant be absent under Rule 17
But can still render decision based on records only (judge retired, died, reassigned, etc.)
Sec. 5 Rule fixed the order of trial so there is no chaos, must control proceedings in court Rule 132, Sec. 4 (must distinguish) order of examination of an individual witness Proponent: one who calls the witness to testify on his behalf Rule 132, Sec. 34: if earlier marked by witness, documentary evidence must be marked formally then Sec 5 of Rule 30 again, defendants turn, same order but reverse because D is now the proponent can have common exhibits Sec. 6 At trial proper, still possible to stipulate and if it completes everything then court should be ready to render judgment Sec. 7 Rule 132, Sec. 7 just variation of Sec. 7 Rule 30 Their questions betray their biases (recusal or inhibition); should be limited to clarify matters, still not responsibility of judge to take such an active part that is practically counsel of party Rules dont apply to administrative inquiries since they only make recommendations (Talbuena v. Sandiganbayan) Sec. 8 Sec. 9 Rule 133, Sec. 1 thats why personally because part of evidence is manner of testifying Make it of record that witness is (crying, laughing, etc.) Thats why finding of facts is binding, they received it personally Sec. 3 Art 2030 of CC can enter into settlement agreement Sec. 2 Sec. 1 Be in writing If agree only on some, the rest must go to trial Sec. 2 Could then present rebuttal then surebuttal evidence but only till there!!! (see drawing)
It can be delegated under Rule 9 (default), ex parte (uncontested, no adverse party to object) fails to appear without justifiable reasons and was notified
But when delegated RESTRICATION cant rule on objections and admissibility but on this parties can also stipulate
RULE 31 Sec. 1 Reason: to prevent conflicting decisions, inconvenience of parties, avoid multiplicity of suit o o Must be at least 2 cases Involving common questions of fact
Not necessarily before the same court (jurisdprudence), if both have not commenced with trial instead of counterclaim, consolidation
Tried before court w/ lower docket number (consolidated judgment)
Severance: separation of trial Earlier there was already an order of trial, if Rule 30, Sec. 5 (c), and will result in confusion can require that separate trials be conducted
RULE 32 Resorted to typically Rule 67, Sec. 5 (action of accounting of 10 years) Both parties consent Only one party consents (b) for the purpose of executing the judgment, issue determined already (like liability established, only question is how much) Its up to him & since merely delegated court is NOT bound to accept (Sec. 11) the report can be modified or disregarded Power of contempt Sec. 7 like in subpoena, here no other proceedings needed

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RULE 33 Grounds: dismiss because of insufficiency of evidence Distinguish from Rule 16 (period of filing different!!) only evidence presented is to support it; basis is different Risk: if granted then accused waived right to present evidence Diff from demurrer in crim actions: the accuse must 1 seek leave of court, if denied doesnt waive Here: if granted and case is dismissed (its an adjudication case terminated) case is no longer sent back for reception of evidence of party raising it then judgment rendered on other partys evidence so only file if SURE that the other party failed to prove cause of action RULE 34 No trial! 2 circumstances here o Answer fails to tender an issue Rule 6, Sec. 5 (a) defenses and Rule 10, Sec. 8 judgment Sec. 1 It covers responsive pleadings (judgment on the pleadings court should consider the pleadings and the annexes to the pleadings; effect admitting hypothetically all the allegations in the answer; as distinguished from Rule 16), all pleadings that assert a claim (complaint, counter-claim, cross-claim, etc.) Since the counterclaimant can move for a judgment depending Grounds: o Fails to tender an issue (Rule 8, Sec 10, Rule 6, Sec. 5): Failure to comply with the requisites of a specific denial would fail to tender an issue and would admit the material allegation of the adverse partys pleadings o Must it always be based upon the motion of the claiming party? The court may, even without motion, file and must announce to Sec. 6 Sec. 5 Sec. 3
st
the parties that he will render a judgment on the pleadings RULE 35 34&35 are rules by which actions may be expedited, since will not have to proceed with trial Distinctions bet rule 34 & 35 o o Court is limited in 34, in 35 he may consider extraneous matters Only actions for recovery of sum of money or debts, declaratory relief in 35 o In 35, required to give notice 10 days because other motions only 3 day notice o Who may move for summary judgment? Claimant or defending party, while in 34 only the claiming party o Proper only when: (118), even before he files his responsive pleading if defending party Depositions in modes of discovery Sham or false defense, so no point in going to trial University of Pangasinan: now can appeal partial summary judgment (old rule is that you cant since there are other issues but now can have several judgments)
133 Personal knowledge: derived from his own perception, if an affiant recollects the facts based on what the affiant saw, hear, touched, etc (5 senses) Twin axioms of admissibility: Rule 128, Sec. 3, material and relevant, competent in the sense that it is not excluded by law, constitution, or rules of court Because youre trifling with the court when you submit to the court affidavits in bad faith (does not meet requirements of admissibility), will have to still find someone to attest to the falsity so must be charged with the expenses or indirect contempt, sec.

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3 rule 71 (thats why have to wait till the end of the proceedings) BASIC RULE: whoever alleges must prove it, annulment, even if not stated here, like no default in legal separation RULE 36 Sec. 1 The formal requirements of the judgment: o In writing, cannot enter a verbal or oral judgment not final and executory till reduced into writing then entered o Personally and directly prepared by the judge now usually initialed by the clerk of court in RTC (but WRONG) o o Must be signed Rule 135, Sec. 9 even if transferred, so long as with the judiciary on the same level, can still sign judgment, even if didnt personally receive or hear the case (or else very few would be decided) o Must state clearly and distinctly the facts and the law constitutional requirement for the purposes of an appeal, Rule 37 (factual findings of the TC are given great weight, usually binding save for few recognized exceptions) o Article 9, Civil Code, no court judge may refuse to render judgment so as not to leave the parties hanging and the termination of an action is usually by judgment o Diff bet judgment and interlocutory orders (rule 41, Sec. 1); judgment completely disposes of the case on the merits, nothing is left to be done; interlocutory orders do not as a rule dispose of the action, they are merely incidents to the case, usually dont go to the merits of the case Parts of a decision: o o Facts Ratio decidendi: reason for the decision Sec. 4 Sec. 3 Sec. 2
o o
Obiter dictum: 528, not necessary to adjudicate the issue Dispositive Portion
Precedent ruling; under the CC decisions of the court interpreting the law shall form part of the law of the land Judgment nunc pro tunc (175-76); actual entry will be after it became final DIFFERENT KINDS OF JUDGMENT, 190, Confession of judgment vis--vis (judgment sin perjuicio, judgment nil dissit, judgment nolle prosequi Rule 17, Sec. 3, judgment by default, final judgment) When the judgment becomes final what will prevent it from becoming final and executory appeal or MR filed, avail of Rule 37, Rule 40, sec. 2, rule 41, sec. 3 (final leaves nothing to do, terminates) [may be final yet not yet executory] A party may avail of those 4 depending on what you are appealing ordinary civ action or special proceeding Rule 109 Rule 41, sec. 2 here, mode of appeal is ordinary appeal If nothing is fled then the period will not be tolled or the running period will not be suspended and may become subject to a writ of execution In reality may become final and executory by operation of law (nothing for the court to do, theres no need for promulgation in civ actions) Judgment by compromise: immediately final and executory to nullify he must move to set it aside, must have the compromise annulled first (destroy the very roots). Rule 41, sec. 2 Ambiguity or difficulty remedy: motion for clarification of the judgment Amendement judgment: Supplemental judgment Rule 3, discussion, joinder of parties (necessary and indispensible parties) to avoid multiplicity of suits, court may tell the parties to determine amongst themselves their liabilities (several debts bet. the two)

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Sec. 5 Sec. 6
Rule 41, sec. 1 (f); rule 31, sec. 2 Because period of prescription runs, so makes everyone appeals at the same time
basis of possession time immemorial, A is an heir of someone, loses, B starts dismantling ancestral house (has secret compartments),
Rule 3, Sec. 15
discovered a paper or ancient document saying that the property was sold by the ancestors of A in favor of the ancestors of B (he had no way of knowing it) ancient document rule, when 30 years old already
FINALITY: GSIS v. Philippine Village Hotel (2004) partial summary judgment is NOT appealable RULE 37 Sec. 1 MR or NT is the immediate, post-judgment remedy available to an aggrieved party, it will toll the period bec the judgment cannot become final, if adverse then can file an appeal Sec. 2, Rule 40; Sec. 3, Rule 41 period depends! [MUST KNOW THE PERIOD FOR APPEALS] most convenient remedy, to have the adverse judgment reviewed, beyond this period its final and executory (Sec. 2, Rule 36) Grounds depends on whether you want an MR, MNT or both (FAME was originally in Sec. 3, Rule 9 same concept) Grounds for NT: o Extrinsic fraud, no properly summoned or did not take part of the trial because told that there was no more by the adverse party (but intrinsic like perjure CANNOT be considered remedy is appeal or MR based on questioning facts or evidence but not FRAUD) AFFIDAVIT OF MERIT! o Requisites for newly discovered evidence: (II 228), diff bet newly discovered and forgotten evidence (II 230) 2 forms: testimonial or documentary AFFIDAIT OF PROSPECTIVE WITNESSES so the court can determine if it will probably alter the results A sues B for unlawful detainer, action for ejectment under Rule 70, B cant show anything to prove o o o MR Grounds:
dont have to prove its authenticity Testimonial: A and B entered into oral transactions, unbeknownst to both someone overheard the conversations, both litigate, only have to prove it by testimonial evidence someone later admits that he overheard it If just corroborative shouldnt allow Damages awarded excessive (do not attack the merits of the judgment) DEFAULT judgment, like the court cannot award more than prayed for! (Rule 9) SC can moto proprio reduce it MR: FIRST OPPORTUNITY for the trial court to review its own judgment so it wont have to go all the way up to SC Evidence insufficient to justify Rule 133, Sec. 1, if plaintiff fails to establish claim or action, if not the dismissed, unless theres a counterclaim and the court fins that the counterclaim must be paid, but here the decision rendered is supposedly established on insufficient evidence Action for enforcement of a contract must first prove the existence of each element of a contact aggrieved party

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points out that only plaintiff testified, call the transcript on how it was proven, and details could not be given yet court still gave credit to the witness but the proof is insufficient! o Contrary to law jurisdiction of the court is a twin: try and decide (presentation of facts), hear and determine (application of the law)blah blah certain things like sale of real property must have been contained in a public instrument, oral testimony was used to prove it and that it was an oral agreement, court grants it, but it was not allowed in the first place Sec. 2 Rule 15, sec. 3, 3-day notice rule, setting of the motion 10 days ; Rule 15, Sec. 8 so must state all the grounds! (cant be piecemeal because of OMNIBUS MOTION RULE) Rule 133, Sec. 7 may call the witness to determine the merits of the motion Must cite the specific portions of the decision which you want to have altered; what is insufficient; what will prove it, but if for NT then the whole judgment is vacated Sec. 3 What are the possibilities (?) that could be done by the trial court Grant MR accordingly modified if denied then appeal o o Sec. 4 Rule 41, Sec. 3, No motion for extension to expedite the proceeding now cant delay! Must be done within 15/30 days or 48 hours Sec. 5 Sec. 9 Damages: awarded amend and reduce Insufficiency of evidence reverse liability, dismiss Grant NT Pro forma MR: when just says that its erroneous in totality without specifying Sec. 8 Sec. 7 Sec. 6
If first NT was based on FAME but during the time waiting, theres newly discovered evidence then can file a new one
2nd paragraph only applies to Trial Courts up to CA bec SC can entertain as much as they want
Court will determine if MNT should be granted new trial not in entirety but only insofar as newly discovered evidence is concerned especially if previous testimonies will not be affected, so no need to reexamine them new judgment if after hearing new testimony only to find out that the not what it was expected to be then reinstate the judgment (revive)
Def. of trial de novo: The rule allows the previous evidence presented need not be retaken so long as they are material and competent
It is without prejudice to the adverse partys right to recall witnesses if they are still available
Does not necessarily mean that it will reverse the original judgments An order denying a MNT is not appealable, remedy: appeal final judgment
Rule 31, Sec. 2: correspondent part Can be partial without disturbing the other parts of the decision
In an orig action, theres a third party complaint, court decides to conduct separate trials, then 3rd party asked for appeal but orig action not appealed, can either have orig executed or stayed
Rule 41, Sec. 3: No motion for extension of time for MR, it must be filed within the period to appeal (before no such prohibition, so it would take 90 days then file actual MR or MNT and this is just dilatory then set the NT at a much later date because there was no rule about when to set it, now 10 days from filing)
In spec pro, what is allowed to be extend is the record of appeal not the notice of appeal (30 days but habeas corpus is 48 hours)

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If a party file a MR or MNT the remedy is to appeal the judgment (581, a, not applicable any more)
When do you reckon the 6 months: (actual recording may take place much after), date of the finality of the judgment shall be the date of entry even if physical entry is not made on the date of the finality sensible bec finality of judgment is by operation of law (rule 36, sec. 2 first sentence) so court does not have to do anything
IMMEDIATE RELIEF AVAILABLE RULE 38 Sec. 1 Petition for relief from judgment: judgment has become final and executory, bec there are still remedies available if not yet Direct attacks (273): o 1st remedy: Rule 38, relief from judgment, through no fault of yours cant MR or MNT because of FAME o 2
nd
Rule 13, Sec. 9; Rule 41, Sec. 3: so have to reckon the date when the judgment was served on you; if the period lapse and fame exists then can get 38 if not its final and executory
Judgments and orders not required to be entered: how do you compute the 60 days and the 6 months? o At the date of the occurrence of the order like the writ of execution
remedy: Rule 47, another direct
attack, only fraud and lack of jurisdiction, most extreme remedy bec failed to avail of petition from relief of judgment (not cumulative remedies!) Another way of attacking a judgment: Collateral attack o Certiorari on the grounds of lack of jurisdiction where the judgment is void on its face Rule 9, Sec. 3 (b): when it is an issue of default its not Rule 38, but the governing rule is this one, so the period to avail is at any time of knowledge but before the judgment Sec. 2 Sec. 3 Rue 36, Sec. 2: rule requires 2 prescriptive periods (within 60 days from the time the petitioner learns of it & within 6 months from the date of entry) Learning: becoming aware when he received notice, not actual date of reading Sec. 5 Other proceedings: o o Effects of a writ of execution (258)
rd
It must be verified (affidavit of merits when not required? 265 or narrated in petition itself and its verified)
Showing facts constituting petitioners good and substantial cause of action or defense And show that there was fame! Who may file: aggrieved party claiming or defending party So that the court may determine if there was fame thats why 2 affidavits if not exercise in futility
Sec. 4
Non-extendible and non-interruptible since it is an equitable remedy No default here!! (even if no answe, court will hear the petition) Must issue and order directing the respondent to file an answer within 15 days, if not he will be (there is no default here bec in Rule 39, Sec. 6), no matter what the court must hear the petition, doesnt even say that a summons must be served on the respondent Could be in other ways as in Rule 13, personal or registered mail Rule 58, preliminary injunction to stop it because absent an injunction the effects may be implemented
Grounds: FAME (3
time)
Mistake will, accident no will
Where: same court (in 47, superior court to annul the judgment) Difference bet. void and voidable judgment: Nature of this remedy: an equitable remedy, given only upon exceptional circumstances

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If there is already an exiting levy, those liens will not be reduce to being useless, they must be respected
far as the aggrieved party is concerned all possible remedies from preventing it from becoming executory are gone so different from a final judgment as defined in Sec.1 , Rule 41 Rule 36, Sec. 2: If no appeal is taken and it is entered in the book NO CHOICE BUT TO EXECUTE IT So different from interlocutory order: (282) incidents that arise from beginning up to the end of the suit that do not touch on the merits of the action, Rule 41, Sec. 1 again remedy against it: Rule 65, last paragraph, sec. 1 RULE 38 OR RULE 47 Sec. 1 As a matter of right: the judgment had become final and executory bec no appeal has been duly perfected within the period specified under the rule, and typically the appeal is the remedy, so by operation of law its final and executory, the records are before the court, determines when it was served to the parties as required in Rule 13 (personal or registered mail), Even if MR or MNT was filed but no further appeal was taken then 1st paragraph applies and the issuance is merely ministerial; last sentence of sec. 8 (e) need to specify the amount you want to be executed so itll be incorporated Duly perfected and finally resolved, rule 41, sec 2: there is a possibility that the case starts at the first level court, only one kind of appeal to the RTC (ordinary), from RTC can be CA, last and ultimate is under rule 45 in SC (question of law, given a set of facts what law should apply); 65 is different; 45 is part of the appeal process If starts at RTC the CA is by ordinary appeal (under 45) So only if the party opted to exhaust all remedies up to the SC then can file a motion for writ of notice; unlike in 1st paragraph where no remedial steps were taken So here must have a hearing first to determine whether the appeal taken has been finally been resolved, and exhausted RULE 39, 2ND PARAGRAPH SEC. 1: in the sense that all others have been exhausted
Levy: the operative fact by which certain properties are separated to satisfy judgment (property in earmarked) and under this rule the judgment issues shall not cancel those
It seeks to restrain what is yet to be done but cannot undo what has already been done
Sec. 6
No injunction, nothing happens Have to put up a bond as provided in Rule 58 Contemplates 3 steps in petition for relief from judgment: o Determine the merits of the petition (hear it), make an assessment of determination If theres fame Assuming there is then has substantial good cause of action or defense He shall set aside judgment and there will be a hearing as aif a timely motion for recon or NT has been granted effect of granting MNT or MR as in Rule 37 and proceedings similar as provided in Rule 37
Sec. 7 In relation to Sec. 2, Rule 38 Distinguish MNT from relief of new judgment same effect o o Same concept of FAME Only difference is the timing of when you can avail of it, in 38 it is already final and executory! RULE 39 Execution: the fruit of litigation, the life of the law, bec at this point in time you see the effects of the law What judgment may be executed: Rule 41, Sec. 1 cant execute that bec it may still be appealed! So long as there is still a remedy cant be executed (281-82) only applies whn theres nothing to be done as

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such that it has become final and executory; but required to attach a certified true copy of the final orders from the appellate court to prove it. So the court can verify. In fact if you dont file an appeal to the SC then Ca is supposed to issue an entry of finality of judgment and this must be sent back to the court of origin for execution; records are retained by the appellate court except when raised to SC bec they dont try facts; but always return and transmit it to court of origin thats why it will entail to delay thats why need to certify true copy o the judgment or order from the appellate court to get a writ of execution Last paragraph: formulated to obviate the delay, bec wouldnt issue till after the records are received, can now ask that the the court of origin be directed to issue a writ of execution, the appellate court cant do it because its sheriffs who do it and they dont have sheriffs There is no execution against the government, even LGUs (will paralyze the govt and cant garnish funds bec all money must be appropriated by the Congress) Instances when the court may refuse: (293) o Doctrine of Supervening Event: if there is one (a new event) (Herrera II 294) o o o Wrong party especially when the action is ____ Rule 38, Sec. 5: A preliminary injunction is issued Where the amount is undetermined or the obligation to be imposed is unlclear o o Dormant judgment, so need to file a new action Novation by subsequent agreement Sec. 4 Sec. 3 (b)
Discretionary: even if the period of appeal had not lapsed, the prevailing party may ask for the execution
Meaning of discretionary: rests on the sound judgment of the court thatt why the court requires a showing of good reason
Good reason: no hard and fast rule (Herrera II 325) the prevailing party is too old, and the court decided that she was entitled to receive certain shares in the harvest, if have to wait then it may be a phyrric victory bec she may not be able to enjoy the fruits of the litigation
Time limitation/ frame: before the expiration of the period to appeal (even if youve already filed an appeal)
Condition precedent: court can still act bec the records have not yet been transmitted so it can determine the merits of the motion for execution the exercise of the authority is called RESIDUAL JURISDICTION
Rule 36, Sec. 4-5: still discretionary to allow partial execution Can wait till other issues are finally resolved The party against whom the writ of execution is sought to be enforced Supersedeas bond: stay the implementation of the writ o execution which was issued discretionarily
Do you need a separate action to enforce against a supersedeas bond? No.
Exception to the general rule: wont be stayed by appeal Rules under corporate rehabilitation is different (corporation code governs) all these orders are interlocutory
Sec. 5
Injunction under rule 58 Accounting: must first determine if accounting is proper Receivership: must determine if insolvent Support: actions for recognition of children TC: decide if the order will be stayed Appellate court: may later the order to protect the parties On motion the court can order restitution
Difference between quashing (there is a writ already) and refusal (no writ of execution yet), same grounds bec same objective: prevent implementation
Sec. 2 (a)
Remedy if denied: appeal

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Restitution: to restore or return as to its previous condition If it is not capable then reparation may be made by way of compensation to make the aggrieved party whole again
was provided in the original judgment For how long may it be enforced by mere motion: and if within the fifth year after by action then by motion, may you still file a new one? It depends on what case you are reading. (345) It must be filed within ten years from the date the judgment becomes final (seemingly conflicting decisions) Regalado so long as within statute of limitations; Gesmundo within the 5 years/5 years only = 10 years (motion, action for revival) since your own fault if you cant collect If judgment is based on compromise: immediately executory; date of reckoning is the date the compromise was approved by the court; can only be rescinded on the grounds of fraud but cannot file an action to have the judgment nullified, need to nullify the compromise first Sec. 7 Effect of the death of a party when in certain stages of the proceedings (time of death affects it; and this depends on what kind of judgment is to be executed) o o Obligee: Obligor: if before, if after
Sec. 6 Can execute by mere motion: if within 5 years from date of judgment, date of entry for purposes of reckoning the period Sec. 2, Rule 36 (controlling date: date of finality should come by operation of law if no appeal or MR or MNT is taken within the period of appeal, if an appeal is taken you must consider the stay or period of interruption final decision from when no further appeal is taken, when the judgment becomes final, get a certificate of entry from appellate court and present to lower court when asking for execution) 5 years: bec Enforcement by action: If after 5 years then need an action for revival because the judgment becomes stale or dormant thats why you can file an independent judgment. Cause of action: the judgment itself and not the merits of the original action (Art 1143; 352) do not relitigate, its DONE, only that was not satisfied for certain reasons right to bring new action based on judgment is given here, since already had been previously decided because of people who were able to hide their assets to the prejudice of judgment creditors so given 5 years again to implement by mere motion but need to first have it revived Defenses available against 2 : (354) o It is subject to the defenses and counterclaims which may have arisen subsequent to the date it became effective such as Payment, prescription, settlement, novation, subject of counterclaim, jurisdiction, subject to rule of venue prevailing a the time the new action is filed Limitations or coverage: o Court cannot award new monetary damages, cannot exceed whatever
nd
Rule 3, Sec. 20 & Sec. 16: If contractual money claims Can you have execution under Rule 3, Sec. 20? No. It must first continue till entry of the final judgment then it must be executed against the estate. Rule 86, Sec. 5 but it will depend! Technically there can be no writ of execution, the plaintiff must present it as a money claim in the probate court. No need to litigate again (as provided in the old rule). The only thing prohibited is to ask for a writ of execution and levy on the estate. It must be paid in the due course of administration. However, if it involves the recovery of real or personal property or the enforcement of the lien thereon then there can be a writ of execution but it is against the executor or administrator of the estate. But if levy is before to the death the can proceed with the execution sale because the cut off point is the levy

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Must consider if levy was effected, what type of action is subject to execution (II 358) Enforcement of a lien: an action for foreclosure of mortgage (SCA), mortgagee can have the property foreclosed even if the mortgagor dies because it is to enforce a lien thereon but under the rule on special proceedings, the creditor is secured by the mortgage during his life time has 3 options (Rule 86, Sec. 7) o Foreclose the property judicially, recovery of deficiency presented during settlement proceedings o o Abandon security and present his claim during settlement proceedings Extrajudicially foreclose but cannot recover any deficiency auction it off
must ask for a writ of possession from the court, may be entitled for reasonable rentals or fees and if covered by the judgment then sheriff must also satisfy this WRIT OF POSSESSION (e) must state all the things he wants to recover, in accordance with the tenor of the judgment, if you dont do that and leave it to the sheriff to do the computation, it will end up more expensive Writ of possession may be issued in a number of cases: o Land registration DOCRTINE OF PRESSED PERIOD RULE: if you file a MR or MNT the period to appeal is back to 15/30 days from date of receipt of the order of the court denying the MR or MNT (so not remaining period anymore, it was abandoned with the ponencia of Corona) Sec. 9 Premise: Rule 3, Sec. 20 does not apply Cant pay in millions of coins because its not legal tender Check: certified bank check (managers or cashiers check) as good as cash only payable to payee, only to the obligee never the sheriff Turned over with another negotiable instrument (not a PN) treasury bonds etc beca its guaranteed by the sovereign (land bank notes also), even personal check as long as youre sure to be paid Sheriffs fees (Rule 141, Sec. 10 l) Fiduciary account: ITF account (in trust for) for the judgment obligee Govt bank depositories: Landbank, Philippine Veterans Bank, PNB under specific motion of the court, Development Bank of the Philippines, Amanah Bank (sp?) (a) situation contemplated collected in a different place from where the court which issued the WOE is located (b) levy act by which property of obligor is segregated; operative fact that validates execution; even sale effected after 5 year period is valid bec already levied; creates a particular LIEN (cannot pay in cash) Innovation of the rule: OPTION OF THE OBLIGOR Personal property first then real property
Sec. 8
(b) applies after the . In the name of the Republic of the Philippines even if not a party in a civil action because it is the sheriff who enforces the writ because he is an officer of the court and has coercive powers; if in the name of the plaintiff then they cannot enforce it
Form 17(RoC 575) Why do you need to quote the dispositive portion verbatim? So the Sheriff cannot deviate from the tenor of the judgment and does not have discretionary powers regarding what is to be enforced and manner if given these powers it may be abused; thats why in case of conflict between the body and dispositive, dispositive is controlling because that is what will be enforced.
Cannot change the tenor!!!! (a) & (b)If not in the possession of the judgment obligor then cannot satisfy it because cannot satisfy with anothers property (3
rd
party involved) garnishment
of credits possible (go to the banks) (c) If the judgment obligor has no money, then can levy his property in accordance to the rules of court (d) Rule 4, any kind of real action: accion in publiciana, reinvidacatoria, or accion interdictal (rule 70) issue replevin so

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Cant sell property which you did not levy Writ of Attachment, Rule 57, Sec. 7 How you levy depends on what kind of property No valid levy, no execution sale (c) N of G to bank does it violate bank secrecy laws? No! Bank is required to disclose needs to CONFIRM that the obligor has funds with them only anyway
concerns, B sues and wins, B now has in his favor a final and executory judgment, he executes it. He is the judgment obligee at 50M but subject to existing lien in favor of A. And when it comes to redemption this matters (junior and senior encumberors) because if subject to judgment in favor of C then As lien will still have to be respected since OPERATIVE FACT is still the date of the levy. Sec. 13 Not in possession of a 3rd party just acquired it subject to the existing liens (As) Not limited since there are other laws that provide for its exemptions RATIONALE: follows the very logic in life, that if you take the means by which a man lives then you take away his life (tools, provisions for survival for at least 4 months, etc.) But executions, as a general rule, must be invoked. The sheriff will not tell you that its exempt. If you dont then the sheriff will take away as much property personal or real of whatever kind or nature! (a) limit: where he personally resides and 500k but may adjust depending on the economic circumstances, Rule 106 is no longer applicable, what now governs is the Family Code (b) that why lawyers have to be familiar with the tools of trade used by people (c) 3 because 1 male to be able to reproduce so its possible that theyll propagate (d) obviously! Clothing. But ostentatious displays of wealth ok like brione suits (e) things used at home (f) Not the rice and cooking oil etc. (g) SCRA etc. (i) difference between a salary (skilled workers who get it at a regular interval) and wage (unskilled workers) (j) lettered gravestones: have no use for it anyway, and exempt because of sacred value (k) insurance exempt because (l) cant even stay the execution of judgment for support so even more here
Sec. 10
Par 3: Situation contemplated: 2 deposits FCDU and Peso Involuntary Novation change in debtor For Specific acts! Delivery of land title (owners duplicate copy) to obligee refuses to do so sec. 10 then allows that
Vendor will have to shoulder the costs of it! Rule 69, Sec. 5 cant partition so court may order to have it all to be sold (c) mentioned in sec. 8; this is the implementation (d) ask from the curt a Writ of Demolition Remove structures, cannot cite in contempt the occupant if they refuse to vacate the place because the judgment is to deliver possession (in connection to c) so have to ask for help if you want to oust them, this is subject to hearing to determine if Builder or Planter in Good Faith (subject to a compulsory counterclaim)
Sec. 11 For special judgments! So not conveyance of property, Rule 65 (mandamus) apply for a mayors permit, meet all requirements, still refused, then file for mandamus to compel him; or employee removed, NLRC said reinstate, refuses, then file mandamus THIS IS A SPECIFIC ACT!!! Sec. 12 Not like garnishments in Sec. 9, defines who is a redemptioner No levy, no sale sale without it is void Property of a judgment obligor is usually sorted out to satisfy the obligations X owns a parcel of land worth 150M, he uses it as collateral to constitute an REM in favor of A for 50M, also borrowed from B another 50M with a PN, X defaults as far as B

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Sec. 14
Ex. Installment sales of appliances, didnt pay it all, cant invoke the exemption! Lifetime of the writ: 5 years (original period from when it may be executed by mere motion) from the date of its issuance (technically should be from the date of entry of the judgment)
onto the scene when the party was being levied to satisfy the judgment) and for him to prevent the levy he has to file an Affidavit of Third Party Claim Not enough to just file that, you also need to set the facts and circumstances in support of your claim. Need to show the basis of your claim. Proof of title if in existence must be attached Sec. 17 When no notice of sale, void, also the officers responsible are held personally liable, also if removed the sign or defacing the notice of sale. As a way of sanction incr liability for damages Sec. 18 Sec. 19 Method of sale: public auction to highest bidder to get highest price, in a negotiated sale could have connivance. But when provide they provide a claque to rig the bid can put a fraud to secure a price penalized in the next section If judgment obigor present, he should direct the conduct of the sale PERSONAL PROPERTY first before resort to the sale of real properties; if several one at a time till sufficient amount raised (kitchen showcase, etc.) Not lump because it will decimate the price and put the judgment obligor at a disadvantage, more importantly it is done for REDEMPTION Dont forget that certain people like judges, lawyers who were involved cannot participate Sec. 20 Can inspect the lots, set the minimum bid then so on If you dont pay because youre a claque then your liability is for the loss with costs there will be a loss because no one will want to buy because theyll wonder why the price dropped; also cited for contempt Cannot ask for the difference in excess of the judgment A chance to prevent it Must give a bond to protect the rights of the third party
But whether it is party or fully satisfied the sheriff must still make a return to the curt that issued the writ from 30 days on his actions (has he made levies or execution sales)
Extent of satisfaction so its not subject to abuses by the sheriff: by looking at the report of the sheriff it become functus officio?
Sec. 15 Requirement that there be notice of the sale Kind of notice depends on the nature of the property o Perishable property: cannot delay the sale of the goods Conspicuous place: in the city halls That early so that the sale can be prevented in case he has the money to satisfy the judgment Time because not before 9 the judgment can prevent the sale and there is a need to make preparations, no later than 2 o clock because there will be documentations required if sale is conducted and banks close at 3, and cant leave money with the sheriff so time to deposit at the fiduciary account Bervi Manu or longga manu so it depends on whether real or personal property capable of being delivered Like instead of taking out all the stock in a warehouse, can just place a guard there and when you conduct the sale can bring the bidders there Sec. 16 Distinguish from 3rd Party Claim in Rule 6 One of the instances when the writ of execution can be quashed is when the property doesnt belong to the judgment obligor, here sheriff wants to levy the property but here comes a 3
rd
party claimant
(not a party to the action but only came

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Sec. 21 One pocket to another, so no need to pay unless theres an excess (the difference) in cash Most people are hesitant to purchase property since its in litigation and wont get it immediately so the judgment obligee is usually the only bidder, bids lower for deficiency Sec. 22 Happens when it cant be completed in one day, then adjourn Here no need to send out another notice, just announce in public to those present that it will continue the following day Sec. 23 Can be hand delivered Cattle have birth certificates If a car, based on OR/CR still has instalments unpaid, then take the property subject to those installments Sec. 24 This is now PERSONAL PROPERTY NOT CAPABLE of manual delivery Need to have sheriff make the certificate to convey the property to the purchaser like machines bolted to the floor Sec. 25 REAL PROPERTY Upon its sale, a certificate of sale (nature: conveys technically no title, it is merely a memorial of the fact of sale bec the right acquired under this provision is inchoate the judgment obligor still has the right to redeem in 1 year) Needs to be registered at the RD, this is the operative fact that makes the period of redemption begin. Absent the registration of this certificate the period shall not commence to run. It must be respected and protected till extinguished by redemption Sec. 26 When there is a third party claim there are remedies available but must show an affidavit in order to run after the bond Sec. 28 Symbolica tradition (Sp?) Certificate, mandatory Brevi manu Sec. 27
without prejudice to his right to file an action to vindicate his right There must be annotation because it provides the warning that the property you are buying, if theres a 3rd party claimant may lose it Period provided here (1 year from certificate), it may be extended by agreement of the parties then no longer legal redemption but conventional redemption Nature of a right of redemption: a real right in the nature of a property right, that can be sold by the judgment obligor, the only one prohibited from purchasing it is the judgment obligee bec will lose right to redeem and consolidate the property in his name (X by public policy) Any creditor who has any attachment or lien over the property but this must be subsequent (b) If X had a property worth 150 M then mortgaged it to A for 50M (REM), B is a judgment creditor for 50M and C for 20M. Who may exercise the right of redemption under this paragraph? C because a creditor having a lien subsequent to the attachment or judgment upon which the property was sold is preferred. Not A because his lien is PRIOR to the judgment upon which the property was sold. If this is Xs only property then what happens to the other creditors forthcoming? Under SecTrans, there are junior and senior encumberance, superior and inferior liens insolvency law, concurrence and preference of creditors so a matter of substantive law What is important is WHO can redeem. Since it can be subject to several successive claims Period: w/in 1 year from the date of the registration Who may redeem? Judgment obligor (and any successor in interest) and the first redemptioner because the succeeding redemptioner is limited to 60 days from the last redemption.

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In the succeeding redemptions, there is an accumulation of interest and costs that must be paid. It becomes more and more burdensome for the successee (?) redemptioners Sec. 34
If theres a 3rd party claim on the property then: Writ of Possession should have a hearing since asserting a claim adverse to the judgment
I am sleepy, I am sleepy, help me out, help me out bwahahahaha Why do you have to give notice? To enable a tracking of who is exercising the right of redemption since not everyone can, and need so that the judgment obligor may find out from whom he can redeem the property. Sec. 35
QUIZ Simple logic: when liability is only partial can collect from co-debtors, COLLECT from the others
Sec. 36 - 43 BASIC PREMISE: Refers to supplementary proceeding but only possible if the writ is returned wholly or partially satisfied Sec. 36 If there is no prob with satisfaction then these proceedings may not be resorted to 1st one limits: cannot be done outside where the JOR is found at the time of the examination, can be taken in the manner through a commissioner (rule 32) like a deposition Sec. 37 INVOLUNTARY NOVATION JORs debtor is required to pay the JOE, even though was never party to the party Examined, and the credits must be turned over to the JOE and theres an involuntary novation Sec. 38 Like deposition taking, examination, request for a subpoena so he can appear before a J or C in order to answer question under oath so they can be cited for contempt or be charged with perjury if lie Sec. 39 Effectively discharging JOR from liability when he pays to the officer making the sale, so much as the .. JOR can no longer collect from obligor bec sheriff gives a receipt which shows debt to JOR was paid Whyd he skip??? Sec. 43 Before said can be examined, if you deny this is the consequence Fix it so that the person suspected hiding of properties of JOR must show it all. But has to do it w/in 4 months
Sec. 29 If judgment obligor effected the redemption obviously there can be no other redemption since its restored Sec. 30 To show who has possession of the property, must show why you are entitle to redeem (under what right) Sec. 31 Example: Parcel of land sold on execution sale, possession of JOR, during period cannot oust him but can pervert him from putting it to waste cant convert agri to a mining claim But cant prevent him from the regular use like husbandry since its consistent with its use at the time of the execution sale Sec. 32 To avoid a controversy, old rule no specific provision on who is entitle to the fruits (account it/ offset) Sec. 33 Completes the process of the execution sale Entitle to the deed of sale (conveyance and possession of the property) The officer who conducted the sale must issue a certificate, file a motion to consolidate title, period of redemption has expired But under the 2nd paragraph the restriction is that he can only acquire the rights that are of the JOR, steps into shoes only, subject to existing lieans at the time of the levy Now very clear that the income derived belongs to the JOR

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Sec. 44 When the judgment is fully satisfied entry must be e=made for the simple reason that cannot leave it hanging or the sheriff can just show up and claim to levy Sec. 45 Must acknowledge and endores a document that shows that it was fully satisfied to prevent sheriff from levying on property when already fully satisfied Satisfaction with admission when done by JOE So judge can make an order saying that based on the record it has been fully satisfied to put to rest the WOE Sec. 46 Rule 3, a surety is not an indispensible party but necessary, so reverse will not apply if dont include the surety in the action, so to obviate this situation just make him a party already! If principal doesnt pay you dont pay The surety can interplead anyway (I dont really understand what hes saying so oh well. You guys have majority of it anyway. Malas if this comes out in the bar or fianals) Sec. 47 Rule 2, goes back to the beginning, classification of actions, who are bound, action in personam, etc. the effect of judgment is those who are bound by the judgment. Reflects the classification as to who are bound as to the judgment in th action rendered by the court of the Philippines (a) pertain to actions in rem, effected by publication, land registration is a specific thing, probate will, status adopted child; Filipino citizen blah blah, legal condition incompetent subjected to guardianship; prima facie because its rebuttable (b) actions in personam: doctrine of res judicata, also in Rule 2, splitting of causes of Action Rule 16,only parties to the action are bound. A first judgment is final an executory! Also successors in interest bound Sec. 48 Thats also why theres a return of the writ So if fully satisfied CoC must make an entry
(c) Doctrine of conclusiveness of Judgment, Rule 70, Sec. 18 (unlawful detainer), issue of possession of already settle then theres an action to settle the issue on ownership cant touch that of possession and relitigate that since already ressolved; as to specific issues that were previously litigated on and decided upon by the court PRECLUSION OF ISSUES
Similar to 47 only that the judgment is by a foreign tribunal (a) also to actions in rem rendered in a FT (b) applies to actions in personam rendered by a FT IMPORTANT: can be repelled remember that FJ cannot per se be executed in our juris, must have an axn before a competent court, Cause of axn is the foreign judgment favorable to you. Depending on a or b, this FJ is only evidence to your right of action and can be controverted by the grounds like juris in the FT or collusion bet the parties, fraud in obtaining the FJ in other words the FJ is not conclusive as to bind the parties rights
ALTERNATIVE DISPUTE RESOLUTION LAW Under UN Convention now must consider those by the Foreign Arbitration tribunals but must undergo the same procedure as a FJ INCLUDING RULE 40 & 41 (discussed in relation to Rule 36)

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Civil Procedure Notes

Justice Alex Gesmundo

i. ii. iii. iv.

Valid service of summons depend on:

Now equally the responsibility of COC to set it

roll call just to

Tried before court w/ lower docket number (consolidated judgment)

remedy: Rule 47, another direct

Mistake will, accident no will

Do you need a separate action to enforce against a supersedeas bond? No.

Remedy if denied: appeal

party involved) garnishment

(not a party to the action but only came

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