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CIVIL PROCEDURE

RULE 1 GENERAL PROVISIONS

1. Civil action – one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong; may be ordinary or special
Criminal action – one by which the state prosecutes a person for an act or omission punishable
by law
Special proceeding – remedy by which a party seeks to establish a status, a right, or a
particular fact
2. Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory
character, and whenever practicable and convenient
a. Election cases;
b. Land registration;
c. Cadastral proceedings;
d. Naturalization proceedings; and
e. Insolvency proceedings

RULE 2 CAUSE OF ACTION

1. Cause of action – an act or omission by which a party violates the right of another
2. REQUISITES OF JOINDER OF CAUSES OF ACTION:
a. The party joining the causes of action shall comply with the rules on joinder of parties;
b. The joinder shall NOT include special civil action or actions governed by special rules;
c. Where the causes of action are between the same parties but pertain to different venues or
jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls
within the jurisdiction of the RTC and the venue lies therein;
3. Where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
4. Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion or motu
proprio, be severed and proceeded with separately.

RULE 3 PARTIES TO CIVIL ACTIONS

1. CLAIMS THAT SURVIVE THE DEATH OF A PARTY:
a. Actions to recover real and personal property against the estate;
b. Actions to enforce liens thereon;
c. Actions to recover for injury to persons or property by reason of tort;
d. Actions to recover money arising from contract, express or implied.
2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground for
dismissal. Action continues until entry of final judgment. Any judgment against estate of
deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved.
3. REQUISITES OF PERMISSIVE JOINDER OF PARTIES:
a. Right to relief arises out of the same transaction or series of transactions, whether jointly,
severally, or in the alternative;
b. There is a question of law or fact common to all the plaintiffs and defendants;
c. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and
venue.
4. REQUISITES OF A CLASS SUIT:
a. Subject matter of the controversy is one of common or general interest to many persons;
b. Parties affected are so numerous that it is impracticable to bring them all to the court;
c. Parties bringing the class suit are sufficiently numerous or representative of the class and have
the legal capacity to file the action.
5. TRANSFER OF INTEREST
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 Action may be continued by or against the original party, unless the court, on motion, directs
the transferee to be substituted in the action or joined with the original party; however, if
transfer is made before commencement of the action, the transferee must necessarily be the
party, since only he is the real party in interest.

RULE 4 VENUE OF ACTIONS

* Uniform rule on venue in RTC and MTC
1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein
real property involved or a portion thereof is situated.
2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the
real property or a portion thereof is situated.
3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides, or where
the defendant or any of the principal defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of the plaintiff.
NOTE: “residence” means place where party actually resides at time of action; does NOT mean
permanent home or domicile.
4. Action against non-resident not found in the Philippines
a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the plaintiff
resides.
b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the property or any
portion thereof is situated or found.
5. Rules on Venue shall NOT apply:
a. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in
cases of libel, where Article 360 of RPC provides specific rules on venue); OR
b. Where the parties have validly agreed IN WRITING before the filing of the action on the
EXCLUSIVE venue thereof.
 In this instance, the action can only be filed in the place agreed upon even if the other
place is the place of residence of the parties or the location of the real property involved.

RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS

1. The procedure in the MTCs shall be the same as that in the RTC.
2. Uniform Procedure shall NOT be applicable:
a. Where a particular provision expressly or impliedly applies only to either of said courts.
b. In civil cases governed by the Rule on Summary Procedure.

RULE 6 KINDS OF PLEADINGS

1. Negative Defense – specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause of action.
2. Affirmative defense – an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him. Includes:
a. Fraud
b. Statute of limitations
c. Release
d. Payment
e. Illegality
f. Statue of frauds
g. Estoppel
h. Former recovery
i. Discharge in bankruptcy
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j. Any other matter by way of confession or avoidance.

3. Compulsory counterclaim – REQUISITES:
a. Arises out of or is necessarily connected with the transaction or occurrence which is the
subject matter of the opposing party’s claim;
b. Does not require for its adjudication the presence of 3rd parties of whom the court cannot
acquire jurisdiction; and
c. Must be within the jurisdiction of the court both as to the nature and the amount, except that in
an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the
amount.
 Agustin vs. Bacalang
A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim
in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may only be
pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim,
but NOT to obtain affirmative relief. MOREOVER, the amount of judgment obtained by the
defendant on appeal cannot exceed the jurisdiction of the court in which the action began.
Since the trial court did not acquire jurisdiction over the counterclaim in excess of the
jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In
such a case, the award in excess of the jurisdiction of the trial court is void.
 Calo vs. Ajax
A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of
the inferior court, will only be considered permissive. Hence, fact that it is not set-up in the
inferior court will not bar plaintiff from instituting a separate action to prosecute it.

RULE 7 PARTS OF A PLEADING

1. FORMAL REQUIREMENTS OF PLEADINGS:
a. Caption
b. Title
c. Body divided into headings and paragraphs
d. Body divided into headings and paragraphs
e. Signature and address
f. Verification in some cases
2. Signature of the lawyer constitutes a certification by him that:
a. He has read pleading
b. To the best of his knowledge, information, and belief, there is good ground to support it
c. It is not interposed for delay.
3. HOW A PLEADING IS VERIFIED: By an affidavit stating that
a. Affiant (person verifying) has read the pleading
b. Allegations therein are true and correct as of his personal knowledge or based on authentic
records. (SC Circular 48-2000, effective May 1, 2000)
4. A pleading required to be verified which:
a. Contains a verification based on “information and belief”, OR
b. Contains a verification based on “knowledge, information and belief,” OR
c. Lacks a proper verification
 Shall be treated as an unsigned pleading.
5. What pleadings have to be verified:
a. Petition for relief from judgment (38.3)
b. Appeal by certiorari from CA to SC (45.1)
c. Complaint with prayer for preliminary attachment (57. 3)
d. Complaint for injunction (58.4)
e. Complaint for replevin (60.2)
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f. Petition for certiorari (65.1)

g. Petition for prohibition (65.2)
h. Petition for mandamus (65.3)
i. Complaint for forcible entry or unlawful detainer (70.4)
j. Petition for appointment of general guardian (93.2)
k. Petition for leave to sell or encumber property of estate or guardian (95.1)
l. Petition for declaration of competency of the ward (97.1)
m. Petition for habeas corpus (102.3)
n. Petition for change of name (103.2)
o. Petition for voluntary dissolution of a corporation (104.1)
p. Petition for cancellation or correction of entries in the civil registry (108.1)
q. Petition to take deposition in perpetuam rei memoriam (before action or pending appeal)
(24.2)
r. Motion to set aside a default order of an inferior court
s. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the
movant while the adverse party can be fully compensated
t. Petition for appointment of receiver
u. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction
of the inferior court, by and elevated to the CA.
v. Pleadings that need not be verified but must be under oath:
w. Denial of the genuineness and due execution of an actionable document (8.8)
x. Denial of allegations of usury (8.11)
y. Answer to written interrogatories (25.2)
z. Answer to request for admission (26.2)
aa. Notice of appeal from administrative tribunals to the CA
6. Supporting affidavits of merit required:
a. Motion to postpone for absence of evidence (30.3)
b. Motion to postpone for illness of a party or counsel (30.4)
c. Motion for summary judgment or opposition thereto (35.1,2,3,5)
d. Motion for new trial on the ground of FAME or opposition thereto (37.2)
e. Petition for relief from judgment (38.3)
f. Third-party claim (39.16)
g. Proof required of a redemptioner (39.30)
h. Motion for preliminary attachment (57.3)
i. Motion for dissolution of preliminary injunction (58.6)
j. Application for writ of replevin (60.2)
k. Claim against the estate of the decedent (86.9)
l. Motion for new trial based on newly discovered evidence in criminal cases (121.4)
7. CERTIFICATION AGAINST FORUM-SHOPPING: Plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading or in a sworn certification annexed and filed therewith:
a. That he has not commenced any action or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or
action pending;
b. If there is such other pending action, a complete statement of the present status thereof;
c. If he should thereafter learn that same or similar action or claim is filed or pending, he shall
report the same within 5 days therefrom to the court where he filed his complaint.
NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE
COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE
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WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE

WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL
WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT.
 For Forum-Shopping to exist, there must be:
i. Same transactions involved;
ii. Same essential facts and circumstances; and
iii. Actions raise identical cause of action, subject matter, and issues

RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS

1. Allegations of capacity
a. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association that is made a party
must be averred;
b. To raise an issue as to the legal existence of a party or the capacity of a party in a
representative capacity, do so by specific denial, including such supporting particulars as are
peculiarly within the pleader’s knowledge.
2. Action or defense based on document
a. Substance of such document set forth in the pleading;
b. Original or copy attached to the pleading as exhibit and deemed to be part of the pleading; OR
c. Copy may be set forth in the pleading with like effect.
3. How to contest actionable document: Genuineness and due execution of instrument deemed
admitted unless adverse party:
a. Specifically denies them under oath;
b. Sets forth what he claims to be the facts.
 Requirement of an oath does NOT apply:
i. When diverse party does not appear to be a party to the instrument; or
ii. When compliance with an order for an inspection of the original instrument is refused.
 Admission of genuineness and due execution:
i. Party whose signature appears admits that he signed it, or that it was signed by another
with his authority
ii. Was in words and figures as set out at the time it was signed
iii. Document was delivered
iv. Any formal requisites required by law which it lacks are waived by him
 The following defenses are cut-off by admission of genuineness and due execution of the
document:
i. Signature is a forgery
ii. Signature is unauthorized
iii. Corporation is not authorized under its charter to sign the instrument
iv. Party charged signed the instrument in some other capacity than that alleged in the
pleading setting it out
v. Document was never delivered.
4. SPECIFIC DENIAL
a. Defendant must specify each material allegation of fact the truth of which he does not admit;
b. Defendant must set forth the substance of the matters upon which he relies to support his
denial, whenever practicable;
c. If denying only part of an averment, he shall specify so much of it as is true and material and
shall deny the remainder;
d. If defendant does not have knowledge or information sufficient to form a belief as to the truth
of a material averment, he shall so state and this has effect of denial.
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 Negative pregnant – a denial which at the same time involves an admission of the
substantial facts in the pleading responded to.
5. Allegations not specifically denied, other than those as to amount of unliquidated damages deemed
admitted.

RULE 9 EFFECT OF FAILURE TO PLEAD

1. General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed
waived (Omnibus Motion Rule).
Exception: Court shall dismiss the claim, even without allegation in answer or motion to dismiss,
if any of the following appear from the pleadings or the evidence on record:
a. Lack of jurisdiction over the subject matter;
b. Litis pendentia between same parties for the same cause;
c. Res judicata
d. Action barred by statute of limitations.
2. DECLARATION OF DEFAULT
a. Defendant entitled to notice of motion to declare him in default and of order of default;
b. Motion to set aside order of default may be filed after notice and before judgment;
c. Party may make motion, under oath, to set aside order of default upon proper showing that
failure to answer was due to FAME;
d. Effect of order of default – party in default entitled to notice of subsequent proceedings but
not to take part in trial;
e. Partial default – if several defending parties and not all in default, the court shall try the case
against all upon the answers thus filed and evidence presented;
f. After declaration of default, court may render judgment on the basis of the complaint or
require claimant to submit evidence;
g. Judgment against party in default shall not exceed the amount or differ in kind from that
prayed for nor award unliquidated damages;
h. No defaults in action for annulment or declaration of nullity of marriage or for legal
separation.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

1. Amendments of pleadings may be made once as a matter of right:
a. At any time before responsive pleading is served
b. In the case of a reply, anytime within 10 days after service.
 Plaintiff may amend complaint as a matter of right even after defendant files a Motion to
Dismiss, since the same is not a “responsive pleading.”
2. Substantial amendments may be made only with leave of court, except as provided above.
3. An amended pleading supersedes the pleading that it amends but admissions in superseded
pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore;
thus, must be formally offered)
4. Claims and defenses alleged in original but not incorporated in the amended pleading shall be
deemed waived.
5. Amended and Supplemental pleadings distinguished:
AMENDED SUPPLEMENTAL
Refers to facts existing at the time of the Refers to facts arising after the filing of the original
commencement of the action pleading
Results in the withdrawal of the original pleading Merely an addition, and does NOT result in the
withdrawal of, the original pleading
Can sometimes be made as a matter of right Always filed with leave of court

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS

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1. Answer to complaint – 15 days from service, unless different period fixed by the courts;
2. Answer of defendant foreign private juridical entity – when service of summons is made on the
government official designated by law, answer to be filed within 30 days from receipt of summons
by such entity.
3. Answer to amended complaint – if amended as a matter of right, 15 days from being served with
copy thereof
 If amended not as a matter of right, 10 days from notice of order admitting the same
 Answer earlier filed may be answer to amended complaint, if no new answer is filed
 Applicable to amended counterclaim, cross, third, etc,
4. Answer to counterclaim or cross-claim – within 10 days from service.
5. Answer to 3rd party complaint – 15 days from service
6. Reply – may be filed within 10 days from service of the pleading responded to

RULE 12 BILL OF PARTICULARS

1. Bill of particulars
a. Period of filing motion – before responding to a pleading; if pleading is a reply, within 10
days from service thereof;
b. Order for bill must be complied with in 10 days from notice OR period fixed by court
c. After service of bill or denial of motion – party has balance of time he was entitled to file
responsive pleading, but not less than 5 days
 Motion for Bill of Particulars may NOT call for matters which form part of the proof of the
complaint. Thus, motion should not be granted if the complaint, while not very definite,
nonetheless already states a sufficient cause of action.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

1. Kinds of service of pleadings:
a. Personal service – to be done whenever practicable (Most preferred mode)
b. Service by mail (ordinary if no registered mail)
c. Substituted service (delivering copy to clerk of court with proof of failure of 1st 2 modes)
 Except with respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done personally.
 Violation of rule may be cause to consider the paper as not filed.
2. Kinds of service of final orders:
a. Personal
b. Registered mail
c. Publication (if summons by publication)
3. Proof of personal service
a. Written admission of party served;
b. Official return of the server; or
c. Affidavit of party serving, containing a full statement of the date, place and manner of service.

RULE 14 SUMMONS
1. Contents of summons
a. Signed by the clerk under the seal of the court
b. Name of the court and that parties to the action
c. Direction that the defendant answer within the time fixed by these rules
d. Notice that unless defendant so answers, plaintiff will take judgment by default
2. Kinds of service of summons:
a. PERSONAL:
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i. Handing a copy to the defendant in person; OR

ii. If he refuses to receive and sign for it, by tendering it to him
B. SUBSTITUTED:
i. Leave copies at his residence, with person of suitable age and discretion residing therein;
OR
ii. Leave copies at defendant’s office/regular place of business, with competent person in
charge thereof.
c. By publication
3. By whom served:
a. Sheriff
b. Other proper court officer
c. Any suitable person specially authorized by the judge
4. When extraterritorial service allowed:
a. Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s
personal status
b. Subject of action is property within the Philippines in which the defendant has or claims a lien
or interest
c. Where relief demanded consists in whole or in part in excluding the defendant from any
interest in such property
d. When property of defendant has been attached within the Philippines
5. Kinds of extra territorial service
a. Personal service
b. Publication and summons sent by registered mail to last known address
c. Any other matter the court may deem sufficient
6. When service by publication in a newspaper of general publication allowed:
a. Identity of defendant unknown
b. Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry
 (a) and (b), applies to ANY action, even actions in personam
c. Defendant is non-resident and the suit is quasi in rem
d. Defendant is temporarily out of the country and the suit is quasi in rem
7. Service upon private domestic juridical entity – refers to corporation, partnership, or association
organized under Phil. Laws with a juridical personality:
a. President
b. Managing partner
c. General manager
d. Corporate secretary
e. Treasurer
f. In-house counsel
8. Service upon private foreign juridical entity transacting business in the Phils:
a. Resident agent designated in accord with Law
b. If no such agent, on government official designated by law OR
c. On any of its officers or agents within the Phils
NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE
SEC.
9. Newspaper of general circulation (RA 4883, PD 1079)
a. Published for the dissemination of local news and general information
b. Has a bona fide subscription list of subscribers
c. Published at regular intervals
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d. Not published for nor devoted to the interest of a particular group of persons
e. Must have been regularly published for at least 2 years before the date of the publication in
question.
 Mere filing of an answer per se should not be automatically treated as a voluntary appearance
by the defendant for the purpose of sumons. It should be noted that when the appearance of
the defendant is precisely to object to the jurisdiction of the court over his person, it cannot be
considered as an appearance in court.

RULE 15 MOTIONS
1. All motions must be in writing except:
a. Those made in open court; OR
b. Those made in the course of a hearing or trial.
2. Exceptions to the three-day notice rule:
a. Ex parte motion
b. Urgent motion
c. When court sets hearing on shorter notice for good cause
d. Motion for summary judgment (must be served at least 10 days before the hearing)
 A prudent judge would, in the absence of the opposing party in the hearing of a motion,
inquire from the other party or inquire from the records the proof of the service of notice
rather than proceed with the hearing. He should not rely on a party’s undertaking to notify the
adverse party of a scheduled hearing. The judge must demand what the rule requires, i.e.,
proof of such notice on the adverse party. Otherwise, a contentious motion should be
considered a mere scrap of paper which should not have even been received for filing.
 Subsequent service of the motion on the adverse party may be considered substantial
compliance with the Rule 15, § 6. Failure to attach to the motion proof of service thereof to
the adverse party is not fatal when the adverse party had actually received a copy of the
motion and was in fact present in court when the motion was heard.

RULE 16 MOTION TO DISMISS

1. Motion to Dismiss must be filed within the time for and before the filing of an answer to
complaint.
2. Grounds for motion to dismiss:
a. Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in motion
to dismiss of other grounds aside from lack of jurisdiction over the person does NOT
constitute a waiver of the said ground or voluntary appearance;
b. Court has no jurisdiction over the subject matter of the claim;
c. Venue is improperly laid;
d. Plaintiff has no legal capacity to sue;
e. There is another action pending between the same parties for the same cause;
 Requisites of litis pendentia:
i. Identity of parties/interest
ii. Identity of rights asserted and prayed for/relief founded on the same facts;
iii. Identity of the 2 cases (such that judgment in one would amount to res judicata in the
other)
f. Cause of action is barred by a prior judgment or by statute of limitations;
 Requisites of res judicata:
i. Final judgment or order
ii. Rendered by court of competent jurisdiction
iii. On the merits (even without trial, such as cases decided by Judgment on the
Pleadings, Summary Judgment, or dismissed for failure to prosecute or for refusal to
obey an order of the court)
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iv. Identity of the parties

g. Pleading asserting claim states no cause of action;
h. Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned, extinguished;
i. Claim on which action is founded is unenforceable under the statute of frauds;
j. Condition precedent for filing has not been complied with (this includes prior recourse to
barangay conciliation, or failure to make attempts to reach a compromise in cases between
members of the same family)
 The court shall not defer the resolution of the motion for the reason that the ground relied
upon is not indubitable.
3. Actions that court may take on a Motion to Dismiss:
a. Grant it – remedy: appeal
b. Deny – NOT appealable; but may avail of certiorari, prohibition and mandamus
c. Order amendment of the pleading
4. If denied, defendant must file answer within the balance of the 15-day period, but not less than 5
days from the time he received notice of the denial;
5. Subject to the right to appeal, dismissal based on the following grounds will be bar to refiling:
a. Res judicata
b. Extinguishment of claim or demand
c. Prescription
d. Unenforceability under the Statute of Frauds
6. The dismissal of the complaint shall be without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer.
 A motion to dismiss on the ground of failure to state a cause of action in the complaint must
hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is
limited only to all material and relevant facts which are well pleaded in the complaint. The
demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal
conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible
facts.

RULE 17 DISMISSAL OF ACTIONS

1. Dismissal by the plaintiff
a. Notice of dismissal any time before service of the answer or a motion for summary judgment;
 Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, which operates as
adjudication on the merits when filed by same plaintiff who has once dismissed an action
based on or including said claim.
b. If answer or motion for summary judgment already served, dismissal by a Motion for
Dismissal, which shall require approval of the court; shall be without prejudice unless
otherwise specified by the court
 If counterclaim has been pleaded by a defendant prior to the service upon him of
plaintiff’s motion to dismiss, dismissal is limited to the complaint; dismissal is without
prejudice to defendant’s right to prosecute counterclaim in a separate action or, if he
makes a manifestation within 15 days from notice of the motion, to prosecute CC in same
action.
2. Dismissal due to plaintiff’s fault - the following must be without justifiable cause
a. If plaintiff fails to appear on the date of presentation of his evidence in chief;
b. Plaintiff fails to prosecute claim for an unreasonable length of time
c. Plaintiff fails to comply with the Rules of Court or any order of the court
 Complaint may be dismissed upon defendant’s motion or motu proprio.
 Unless otherwise declared by the court, dismissal has effect of adjudication upon the merits.
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RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s

motion or due to plaintiff’s fault does not necessarily carry with it the dismissal of the compulsory
CC; defendant is also given option to prosecute the same in same or separate action.
3. Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made by claimant before
a responsive pleading or a motion for summary judgment is served, or if there is none, before the
introduction of evidence.

RULE 18 PRE-TRIAL
1. What to consider in pre-trial (with notice to counsel or party without counsel)
a. Possibility of amicable settlement or arbitration
b. Simplification of the issues
c. Amendments to the pleadings
d. Stipulations or admissions of facts and documents
e. Limitation of number of witnesses
f. Preliminary reference of issues to a commissioner
g. Propriety of judgment on the pleadings, summary judgments, or dismissal of action
h. Other matters for the prompt disposition of the action
2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if
plaintiff answers the defendant’s counterclaim, it will be the latter’s duty to set the pre-trial.
3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of
defendant is cause to allow plaintiff to present evidence ex parte and the court to render judgment
on basis thereof.
4. Non-appearance of party excused only if:
a. A valid cause is shown therefor OR
b. If representative shall appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations
or admissions of facts and of documents,
5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial.
Failure to file brief has same effects as failure to appear at pre-trial.
6. Proceedings recorded, and court shall issue an order reciting in detail matters taken up.

RULE 19 INTERVENTION
1. Grounds for intervention
a. Legal interest in the matter in litigation
b. Interest in the success of either or both parties or interest against both
c. Party is so situated as to be adversely affected by the distribution of the court
d. Disposition of property in the custody of the court or of an officer thereof.
2. Motion may be filed at any time before rendition of judgment.
3. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting
the complaint.
4. Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of
rights or original parties and if the intervenor’s rights may be fully protected in separate
proceedings.
5. Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed if
main action is dismissed.
6. A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a
voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s
petition showing him to be entitled to affirmative relief. The petition will be preserved and heard
regardless of the disposition of the main action.

RULE 20 CALENDAR OF CASES

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1. Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose trials
adjourned or postponed and those with motions set for hearings.
2. Preference given to habeas corpus, election cases, special civil actions and those so required by
law.

RULE 21 SUBPOENA
1. Subpoena issued by:
a. The court before whom witness is required to attend;
b. The court of the place where the deposition is to be taken;
c. The officer or body authorized by law to do so in connection with its investigations;
d. Any Justice of the SC or CA in any case or investigation pending within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any
penal institution shall be brought outside said institution for appearance or attendance in any court
unless authorized by the SC.
3. Grounds for quashing subpoena duces tecum
a. It is unreasonable or oppressive
b. The articles sought to be produced do not appear to be relevant
c. Person asking for subpoena does not advance cost of production
4. Ground for quashing subpoena ad testificandum
a. The witness is not bound thereby – if witness resides more than 100 km from the place where
he is to travel by the ordinary course of travel, or if he is a detention prisoner and no
permission is obtained from the court in which his case is pending
 This is known as the “viatory right” of the witness; NOTE, however, that the right is
available only in CIVIL cases
b. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
5. Service of subpoena made in the same manner as personal or substituted service of summons.
6. Person present in court before a judicial officer may be required to testify as if he were in
attendance upon a subpoena.
7. Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which subpoena issued.

RULE 22 COMPUTATION OF TIME

1. Computing for any period of time: day of the act or event from which designated period of time
begins to run is to be excluded and the date of performance included.
2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, the time
shall not run until the next working day.
3. If there is effective interruption of period, it shall start to run on the day after notice of the
cessation of the cause of the interruption. The day of the act that caused the interruption is
excluded in the computation of the period.

RULE 23 DEPOSITIONS PENDING ACTION

DEPOSITIONS DE BENE ESSE – taken for purposes of pending action
1. Depositions pending action
a. Taken by leave of court after court obtains jurisdiction over any defendant or property subject
of the action
b. Taken without leave after an answer has been served
c. Upon the instance of any party
d. May be deposition upon oral examination or written interrogatories
2. Scope of examination – deponent may be examined regarding any matter not privileged relevant to
the subject of the action
3. Examination and cross-examination proceeds as in trials
4. Depositions and Affidavits distinguished
 13

DEPOSITIONS AFFIDAVITS
Written testimony of witness in course of judicial Mere sworn written statements
proceedings, in advance of trial and hearing
Opportunity for cross-examination No cross-examination
Can be competent testimonial evidence Little probative value (hearsay)

5. Use of depositions
 Any part or all of a deposition which is admissible in evidence may be used against any party
who was present or represented during the taking of the deposition or who had notice thereof
as follows:
DEPOSITION OF MAY BE USED BY PURPOSE
A witness Any party To contradict or impeach the deponent’s
testimony as a witness
Any party, or anyone who at the An adverse party For any purpose
time of taking the deposition was
an officer, director, or managing
agent of a public or private
corporation
Of any witness, whether a party Any party For any purpose, IF court finds that:
or not a. Witness is dead;
b. Witness resides at a distance more than
100 km from place of trial, UNLESS
absence procured by party offering the
deposition
c. Witness is unable to testify because of
age, sickness, infirmity, or
imprisonment;
d. Party offering the deposition has been
unable to procure the attendance of the
witness by subpoena; OR
e. Other exceptional circumstances make
it desirable to allow deposition to be
used.

 Deponent is made the witness of the party offering the deposition.

 If only part of the deposition is introduced, adverse party may require that all of it which is
relevant to the part introduced be introduced.
6. Persons before whom depositions may be taken
a. Within the Philippines
i. Judge
ii. Notary public
iii. Any person authorized to administer oaths if the parties so stipulate in writing
b. In foreign countries
i. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-
consul, consular agent of the Phils
ii. Before such person or officer as may be appointed by commission or under letters-
rogatories
iii. Any person authorized to administer oaths if the parties so stipulate.
Commission – addressed to any authority in a foreign country authorized therein to take down
depositions; the taking of such depositions is subject to the rules laid down by the court issuing the
commission
Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the
depositions is subject to the rules laid down by such foreign judicial authority.
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7. Persons disqualified to take depositions

a. Relative within 6th degree of consanguinity or affinity of any party
b. Employee of any party
c. Counsel of any party
d. Relative within the same degree of party’s counsel
e. Employee of party’s counsel
f. Anyone financially interested in the action
8. Depositions upon written interrogatories
 Party desiring to take such deposition shall serve them upon every other party with a notice
stating the name and address of the person who is to answer them and the name and
descriptive title of the officer before whom the deposition is to be taken;
 Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter
 Re-direct interrogatories served within 5 days
 Re-cross interrogatories served within 3 days
9. Effects of errors and irregularities in the depositions
a. As to notice – waived unless written objection is promptly served upon the party giving the
notice
b. As to disqualification of officer – waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or could be discovered
with reasonable diligence
c. As to competency or relevancy of evidence - NOT waived by failure to make them before or
during the taking of the deposition, unless ground is one which might have been obviated or
removed if presented at that time
d. As to oral exam and other particulars - Errors occurring at the oral exam in the manner of
taking the deposition, in the form of questions and answers, in oath or affirmation, or in
conduct of parties, and errors of any kind which might be obviated, removed, cured if
promptly prosecuted are waived unless reasonable objection is made at the taking of the
deposition.
e. As to form of written interrogatories - waived unless served in writing upon party
propounding them within the time allowed for serving succeeding cross or other
interrogatories and within 3 days after the service of the last interrogatories authorized.
f. As to manner of preparation - errors as to manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or otherwise dealt
with by the officer are waived unless a motion to suppress the deposition or some part of it is
made with reasonable promptness after such defect is, or with due diligence might have been,
ascertained.
 A deposition, in keeping with its nature as a mode of discovery, should be taken before and
not during trial. IN fact, the rules on criminal practice – particularly on the defense of alibi –
states that when a person intends to rely on such a defense, that person must move for the
taking of the deposition of his witness within the time provided for filing a pre-trial motion.

RULE 24 DEPOSITIONS PENDING ACTION

DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case or appeal.
1. Depositions before action
A person desiring to perpetuate his own testimony or that of another person regarding any
matter that may be cognizable in any court of the Phils may file a verified petition in the court of
the place of the residence of any expected adverse party, which petition shall be entitled in the
name of the petitioner and shall show:
a. That petitioner expects to be a party to an action in a court of the Phils but is presently unable
to bring it or cause it to be brought;
b. The subject matter of the expected action and his interest therein;
 15

c. The facts which he desires to establish by the proposed testimony and his reasons for desiring
to perpetuate it;
d. The names or description of the persons he expects will be the adverse parties and their
addresses so far as known;
e. The name and addresses of the persons to be examined and the substance of the testimony
which he expects to elicit from each.
2. Use of deposition
If deposition to perpetuate testimony is taken under this rule or if not so taken is still
admissible in evidence may be used in any action involving the same subject matter subsequent
brought in accordance with the provisions of Rule 23.

RULE 25 INTERROGATORIES TO PARTIES

1. Interrogatories and the answers thereto should be filed in court and served on adverse parties, so
that the answers may constitute judicial admissions.
2. Effect of failure to serve written interrogatories – a party not served with such may NOT be
compelled by the adverse party to give testimony in open court or deposition pending appeal.

RULE 26 ADMISSION BY ADVERSE PARTY

1. Request for admission
A written request for the admission of the other party of the genuineness of any material
or document or request for the truth of any material and relevant matter of fact set forth in the
request may be filed and served upon the other party at any time after issues have been joined.
2. Implied admission
Each of the matter requested to be admitted shall be deemed admitted within a period
designated in the request, which shall not be less than 15 days after service thereof or within such
further time as the court may allow on motion, UNLESS, party requested serves upon the party
requesting a sworn statement either specifically denying or setting forth in detail the reasons why
he cannot truthfully either admit or deny those matters.
3. Effect of admission
Admission is only for the purpose of the pending action and shall NOT constitute an
admission for any other person nor may it be used against him in any other proceeding.
4. A party who fails to file and serve a request for admission on the adverse party of material facts
within the personal knowledge of the latter shall not be permitted to present evidence thereon,

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

1. Any party may move for the court in which the action is pending to order any party to:
a. Produce and permit the inspection and copying or photographing of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, not
privileged, which:
i. Constitute or contain evidence material to any matter involved in the action AND
ii. Are in his possession, custody or control.
b. Permit entry upon designated land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing the property or any designated
relevant object or operation thereon.
2. The order:
a. Shall specify the time, place and manner of making the inspection and taking copies AND
b. May prescribe such terms and conditions which are just.

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS

1. If the mental or physical condition of a party is in controversy, the court may order him to submit
to a physical or mental examination by a physician.
2. The party examined waives any privilege he may have in that action regarding the testimony of the
person who has examined or may examine him with respect to that same mental or physical
examination by:
 16

a. Requesting and obtaining a report of the examination so ordered OR

b. Taking the deposition of the examiner.

RULE 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY

1. If a party/deponent refused to answer:
a. The examination may be completed on other matters
b. The examination may be adjourned
c. The proponent may apply to the court for order to compel answer
 The court may then order:
i. The refusing party or his counsel to pay the expenses incurred in obtaining the order,
including the attorney’s fees (if it finds the refusal to answer without substantial
justification)
ii. The proponent or his counsel to pay the expenses incurred in opposing the
application, including attorney’s fees (if it finds the application to be without
substantial justification)
2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court, the
refusal may be considered a contempt of that court.
3. If a party/officer or managing agent of a party refuses to obey an order requiring him:
a. To answer designated questions
b. To produce a thing for inspection or to permit entry upon property
c. To submit to a physical or mental examination
 the court may order:
i. That the matters regarding which the questions were asked, or the character of the land or
the thing, or the physical and mental condition of the party be taken to be established.
ii. The disallowance of the disobedient party’s claims
iii. The prohibition of the disobedient party to present evidence
iv. The striking out of the pleadings or parts thereof
v. The dismissal of the action or parts thereof
vi. Rendering judgment by default against the disobedient party OR
vii. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical
or mental examination.
4. If a party refuses to attend or serve answers, the court may:
a. Strike out all or any part of any pleading of that party.
b. Dismiss the action or any part thereof.
c. Enter a judgment by default against that party, OR/AND
d. Order that party to pay reasonable expenses incurred, including attorney’s fees.
5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this
Rule.

RULE 30 TRIAL
1. Order of trial
Trial shall be limited to the issues stated in the pre-trial order and shall proceed as
follows:
a. The plaintiff shall adduce evidence in support of his complaint;
b. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and
third-party complaint;
c. The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-
claim, and 4th party complaint;
d. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;
 17

e. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;
f. The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case; and
g. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the
court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any
case where the parties so agree in writing, the court may delegate the reception of evidence to its
clerk of court who is a member of the bar. The clerk shall have no power to rule on objections to
any question or to the admission of exhibits, which objections shall be resolved by the court upon
submission of his report and the transcripts within 10 days from the termination of the hearing.

RULE 31 CONSOLIDATION OR SEVERANCE

1. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue
when actions involving a common question of law or fact are pending before the court.
2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party
complaint, in furtherance of convenience or in the interest of justice.

RULE 32 TRIAL BY COMMISSIONER

Trial by commissioner:
1. Reference by consent of both parties
2. Reference by motion of one of the parties or motu proprio:
a. Trial requires examination of a long account of either side
b. Taking of an account is necessary for the information of the court before judgment or for
carrying a judgment order into effect
c. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage
of the case.

RULE 33 DEMURRER TO EVIDENCE

Demurrer to evidence is made by the defendant after the plaintiff has completed the
presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief.
1. If motion denied – defendant has the right to present evidence
2. If motion granted, but reversed on appeal – defendant deemed to have waived the right to
present evidence.

RULE 34 JUDGMENT ON THE PLEADINGS

1. Judgment on the Pleadings is proper:
a. If answer fails to tender an issue; or
b. If answer otherwise admits the material allegations of the adverse party’s pleading
 Then court may, on motion of that party, direct judgment on the pleadings
2. However, the material facts alleged in the complaint shall always be proved in actions for:
a. Declaration of nullity of marriage
b. Annulment of marriage
c. Legal separation

RULE 35 SUMMARY JUDGMENTS

Summary judgment:
1. Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving
party is entitled to a judgment as a matter of law
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2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties
showing that, except as to the amount of damages, there is no genuine issue.
3. Motion shall be served at least 10 days before the time specified for the hearing.
4. May be asked for by a party seeking to recover upon a claim, counterclaim, cross-claim or to
obtain a declaratory relief.
5. Although Rule does not specifically provide, also unavailable in actions for annulment of and
declaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions “to recover
upon a claim”, or to recover a debt or a liquidated demand for money, or “to obtain declaratory
relief.”
6. Judgment on the pleadings and summary judgment distinguished:
Judgment on the pleadings Summary judgment
Proper when there is no genuine issue between the Proper even if there is an issue as to the damages
parties recoverable
Based exclusively on the pleadings without Based not only on pleadings but also on affidavits,
introduction of evidence depositions and admissions of the parties
Available in any action, except the 3 exceptions Proper only in actions to recover a debt, or for a
liquidated sum of money, or for declaratory relief

 Motions for summary judgment may be filed by the claimant or by the defending party. The
defending party may file such motion, pursuant to Rule 35, §2“at any time”, as distinguished from §1
where the claimant may file the motion at any time after the answer is filed.

RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

1. The date of the finality of the judgment or final order shall be deemed to be the date of its entry.
The judgment or final order shall be entered by the clerk in the book of entries of judgments if no
appeal or motion for new trial or consideration is filed within 15 days
2. Several Judgments
In action against several defendants, the court may render judgment against one or more
of them, leaving the action to proceed against the others.
3. Separate judgments
Judgment rendered to dispose of one of the several claims for relief presented in an
action, made at any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the claim,
which terminates such claim. Action shall proceed as to other claims

RULE 37 NEW TRIAL OR RECONSIDERATION

1. Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved
by the court within 30 days from submission for resolution.
2. Grounds: Motion for New Trial
a. Fraud, accident, mistake, or excusable negligence;
b. Newly discovered evidence
 Requisites:
i. Discovered after trial
ii. Could not have been discovered and produced at trial despite the exercise of
reasonable diligence
iii. If presented, could probably alter the result of the action
3. Grounds: Motion for Reconsideration
a. Damages awarded are excessive
b. Evidence is insufficient to justify the decision or final order
c. Decision is contrary to law
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4. Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is
FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom
such evidence is expected to be given, or by duly authenticated documents to be introduced.
Motion for reconsideration shall specifically point out the findings or conclusions of the
judgment which are unsupported by evidence or contrary to law, with express reference to the
testimonial or documentary evidence or the provisions of law alleged to be contrary to such
findings.
5. Pro forma motion for new trial or reconsideration shall not toll the period for appeal.
6. No second motion for reconsideration allowed. Second motion for new trial must be based on a
ground not existing or available when the first motion was made, which may be filed during the
remainder of the 15-day period.

RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

1. Petition for relief from judgment filed within 60 days after learning of judgment and not more than
6 months after such judgment
 Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s
good or substantial cause of action or defense
2. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one another.
3. Grounds:
a. Judgment or final order entered against a party by FAME; or
b. Judgment or final order is rendered and party has been prevented by FAME from taking an
appeal
 For fraud to be extrinsic, the losing party must never have had a chance to controvert the
adverse party’s evidence.
 Uniform procedure for relief from judgments of MTC and RTC
4. After petition is filed, court shall order adverse parties to answer within 15 days from receipt.
After answer is filed or expiration of period therefor, court shall hear the petition.
5. If granted, judgment set aside and court shall proceed as if timely motion for new trial has been
granted; if granted against denial of appeal, court shall give due course to appeal.

RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

1. Execution as a matter of right
On motion with notice, upon a judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.
 For so long as there is a certificate of entry of judgment, execution may already be issued by
the court of origin or directed to do so by the CA.
2. Discretionary execution – pending period to appeal or during appeal; may issue only upon good
reasons to be stated in a special order after hearing.
a. By trial court – even after the perfection of the appeal for so long as the motion for execution
was filed while the TC has jurisdiction over the case and is in possession or the records, upon
motion of the prevailing party with notice to the adverse party
b. Appellate court – after the TC has lost jurisdiction
 Example:
P receives judgment: June 3
D receives judgment: June 1
D files notice of appeal: June 5
When does trial court lose jurisdiction? June 18
BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.
 Execution with respect to appealed cases- there is no need to await remand of the records.
 20

 Execution with respect to consequential and exemplary damages should be postponed until
such time as the merits of the case have been finally determined in the regular appeal, as the
amounts remain uncertain and indefinite pending resolution.
3. a. Motion for execution of final and executory judgment should be served on adverse party and
set for hearing;
b. In case of appeal, motion is filed with court of origin supported by certified true copies of
final judgment of appellate court.
c. Appellate court may on motion order court of origin to issue writ of execution (SC Circular
No. 24-94, 4/18/94)
4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)
a. Actions for injunction
b. Receivership
c. Accounting
d. Support
e. Judgments declared immediately executory
5. A final and executory judgment may be executed on motion within 5 years from entry. May be
revived and enforced by action after lapse of 5 years but before 10 years from entry. Revived
judgment may be enforced by motion within 5 years from entry and thereafter by action before
barred by statute of limitations – file motion within 10 years from the finality of the revived
judgment.
6. Execution in case of party’s death:
a. Death of judgment obligee - application of his executor or administrator or successor-in-
interest
b. Death of judgment obligor -
i. Against his executor, etc. if the judgment be for recovery of real or personal property or
the enforcement of a lien thereon.
ii. If death after execution is actually levied upon his property, it may be sold for satisfaction
of the obligation.
 If the judgment obligor dies after the entry but before levy, execution will issue if it be for the
recovery of real or personal property. However, if judgment is for a sum of money, and the
judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but
must be filed as a claim against his estate.
7. Writ of execution:
a. Shall issue in the name of the Republic of the Phils from court which granted the motion
b. State the name of the court, case number and title, dispositive portion of the judgment order
c. Require the sheriff or other proper officer to whom it is directed to enforce the writ according
to its terms
8. Manner of executing writ:
a. If judgment against property of the judgment obligor – out of real or personal property with
interest
b. If against his real or personal property in the hands of the personal representatives, heirs,
devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with
interest
c. If for sale of real or personal property – to sell property, describing it and apply the proceeds
in conformity with judgment.
d. If for delivery of possession of property – deliver possession of the same to the party entitled
to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment
out of the personal property of the person against whom it was rendered, and out of real
property if sufficient personal property cannot be found.
e. In all cases, writ of execution shall specifically state the amount of the interest, costs,
damages, rents, or profits due as of date of issuance of writ, aside from principal obligation.
 21

 Judgment obligor is given option to choose which property may be levied on sufficient to
satisfy the judgment.
9. Property exempt from execution
a. Family home as provided by law, homestead in which he resides, and land necessarily used in
connection therewith;
b. Tools and implements used in trade, employment, or livelihood;
c. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;
d. Necessary clothing and articles for ordinary personal use, excluding jewelry;
e. Household furniture and utensils necessary for housekeeping not exceeding P3,000;
f. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding
P300,000;
g. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which
he earns his living;
h. Salaries, wages, or earnings for personal services within the 4 months preceding the levy
which are necessary for the support of the family;
i. Lettered gravestones;
j. Money, benefits, annuities accruing or in any manner growing out of any life insurance;
k. Right to receive legal support or any pension or gratuity from the government;
l. Properties especially exempted by law.
 Exemption does not apply if execution upon a judgment for its purchase price or for
foreclosure of mortgage.
 Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thus
not claim it.
10. Third party claims:
a. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant,
not the sheriff or officer;
b. Amount of bond not less than value of property levied on;
c. Sheriff not liable for damages if bond is filed;
d. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a
separate action.
e. 3rd Party claimant may vindicate his claim to property levied in a separate action because
intervention is no longer allowed since judgment already executory; in preliminary attachment
and replevin, 3rd party claimant may vindicate his claim to the property by intervention since
the action is still pending.
11. Who may redeem real property sold:
a. Judgment obligor or his successor in interest in the whole or any part of the property;
b. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold
subsequent to the lien under which the property was sold. (Redeeming creditor is termed a
redemptioner).
12. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem
property sold by paying the purchaser the amount of his purchase, with 1% per month interest plus
any assessments or taxes which he may have paid thereon after purchase with interest on said
amount at 1% per month.
Redemptioners have one year to redeem from the date of registration of the certificate of
sale. They may also redeem beyond one-year period within 60 days after the last redemption, with
2 % interest on the sum to be paid on the last redemption. The judgment obligor’s right to redeem
within 60 days from last redemption is limited to the one-year period, beyond which he can no
longer redeem.
 Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch
as these belong to the judgment obligor until the expiration of the period of redemption.
13. Effect of judgment or final orders
 22

a. In case of judgment against a specified thing, probate of will, or administration of estate or

legal condition or status, it is conclusive on the title or condition, status, relationship, will or
administration.
b. In other cases/matters directly adjudged, or matters relating thereto that could have been
raised subsequent to commencement of action, judgment is conclusive between parties and
their successors in interest.
c. In any other litigation, that only is deemed to have been adjudged in a former judgment or
which was actually and necessarily included therein.
14. Effect of foreign judgment
a. Judgment upon a specific thing, conclusive upon title to the thing;
b. If against a person, judgment is presumptive evidence of a right as between the parties and
their successors in interest;
15. When foreign judgment may be repelled
a. Evidence of want of jurisdiction
b. Want of notice to party
c. Collusion
d. Fraud
e. Clear mistake of law.
16. Requisites for res judicata
a. Final former judgment
b. Judgment is on the merits
c. Rendered by a court of competent jurisdiction
d. Between first and second actions, identity of subject matter, parties and cause of action.
17. When quashal of writ of execution proper
a. Improperly issued
b. Defective in substance
c. Issued against the wrong party
d. Judgment was already satisfied
e. Issued without authority
f. Change of the situation of the parties renders execution inequitable
g. Controversy was never validly submitted to the court
h. Writ varies the terms of the judgment
i. Writ sought to be enforced against property exempt from execution
j. Ambiguity in the terms of the judgment
18. SPECIAL JUDGMENT - requires the performance of any other act than the payment of money or
the sale or delivery of real or personal property.
19. Remedies against executory judgments or orders:
a. Petition for relief
b. Direct attack
c. Collateral attack - judgment is null on its face or court had no jurisdiction
20. When court may order execution even before an executory judgment and pending an appeal
a. Lapse of time would make the ultimate judgment ineffective;
b. Appeal is clearly dilatory;
c. Judgment is for support and the beneficiary is in need thereof;
d. Articles subject of the case are perishable;
e. Defendants are exhausting their income and have no other property aside from the proceeds
from the subdivision of lots subject of the action;
 23

f. Movants were in extreme need of the premises subject of the suit and the bond to answer for
damages in case of reversal on appeal (supersedeas bond) was posted by them;
g. Judgment debtor is in imminent danger of insolvency;
h. Prevailing party is of advanced age and in a precarious state of health and the right in the
judgment is non-transmissible being for support;
i. Prevailing party posts sufficient bond to answer for damages in case of reversal of judgment
 But in most cases, the mere filing of a bond is not sufficient justification for discretionary
execution.
21. Order granting writ of execution ONLY appealable when:
a. Order varies terms of the judgment
b. When vague and court renders what is believed to be wrong interpretation.
22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or
other incorporeal property in the hands of third persons; merely sets apart such funds but does not
constitute the creditor the owner of the garnished property.
23. Persons disqualified from participating in the execution sale:
a. Officer conducting the execution sale or his deputy;
b. Guardian with respect to the property under his guardianship;
c. Agents, the property entrusted to them, unless with principal’s consent;
d. Executors and administrators, the property of the estate under administration;
e. Public officers and employees, the property of the State or any subdivision thereof, or any
GOCC, the administration of which has been entrusted to them;
f. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees
connected with the administration of justice, the property and rights in litigation or levied
upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions;
g. Lawyers, the property and rights which may be the subject of litigation in which they take part
by virtue of their profession;
h. Others specifically disqualified by law. (e.g. seller of goods who exercise right of resale of
goods).

RULE 40 APPEAL FROM MTC TO RTC

1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to
which MTC pertains. File notice of appeal with the MTC which rendered decision appealed from
within 15 days after notice of such judgment.
2. Record on appeal is filed within 30 days and required only for special proceedings
3. Appellate docket fees paid to clerk of court of MTC - payment not a condition precedent for
perfection of appeal but must nonetheless be paid within the period for taking appeal;
4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:
a. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has
original jurisdiction;
b. If reversed, the case shall be remanded to the MTC;
c. If the first level court tried the case on the merits without jurisdiction, the RTC should not
dismiss the case but shall decide it in the exercise of original jurisdiction.

RULE 41 APPEAL FROM THE RTC

1. Appeal may be taken from a judgment or final order that completely disposes of the case or of a
particular matter therein.
2. No appeal may be taken from:
a. Order denying a motion for new trial or recon;
b. Order denying a petition for relief or any similar motion seeking relief from judgment;
c. Interlocutory order;
 24

d. Order disallowing or dismissing an appeal;

e. Order denying a motion to set aside a judgment by consent, confession, compromise on the
ground of fraud, mistake, or duress, or any other ground vitiating consent;
f. Order of execution;
 Not appealable because execution is only the result of the judgment. If order of execution
is not in accord with the dispositive portion, remedy is certiorari under Rule 65.
g. Judgment or final order for or against one or more of several parties or in separate claims,
while the main case is pending, unless the court allows an appeal therefrom;
h. Order dismissing an action without prejudice;
 In all these cases, aggrieved party may file an appropriate civil action under Rule 65.
3. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of
appeal with the RTC within 15 days from notice of its judgment. Record on appeal required only
for special proceedings and where multiple appeals allowed filed within 30 days.
4. Motion for extension of time to file a motion for new trial or reconsideration is prohibited.
5. Contents of Notice on appeal:
a. Names of the parties to the appeal;
b. Specify judgment or final order or part thereof appealed from;
c. Court to which the appeal is being taken;
d. Material dates showing timeliness of appeal;
6. Contents of Record on appeal:
a. Full names of all parties to the proceedings shall be stated in the caption;
b. Include judgment or final order from which appeal taken;
c. In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory
orders as are related to the appealed judgment;
d. Data showing that appeal perfected in time - material data rule;
e. If an issue of fact is to be raised, include by reference all the evidence, oral or documentary,
taken upon the issues involved.
7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA.
8. Where only questions of law are raised, by petition for review on certiorari with SC.
9. Notice of Appeal and Record of Appeal distinguished:
Notice of Appeal Record of Appeal
Party’s appeal by notice of appeal deemed perfected Deemed perfected as to appellant with respect to the
as to him upon the filing of the notice of appeal in subject matter upon the approval of the record on
due time appeal filed in due time
Court loses jurisdiction over case upon perfection of Court loses jurisdiction only over subject matter
the appeals filed in due time and expiration of time upon approval of records on appeal filed in due time
to appeal of other parties and expiration of the time to appeal of other parties.

10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of
appeal.
11. General Rule: An ordinary appeal stays the execution of a judgment
Exceptions: a. Decisions of quasi-judicial body appealed to the CA
b. Executions pending appeal
c. Cases covered by Summary Procedure

RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA

1. Form and contents of petition for review (from RTC to CA)
In 7 legible copies:
a. Full names of parties to case, without impleading the lower courts or judges thereof;
 25

b. Indicate specific material dates showing it was filed on time;

c. Concise statement of matters involved, issues raised, specification of errors of fact or law, or
both allegedly committed by the RTC, and the reasons or arguments relied upon for the
allowance of the appeal;
d. Accompanied by clearly legible duplicate originals or true copies of the judgments or final
order of both MTC and RTC;
e. Certification under oath of non-forum shopping.
2. Contents of comment
In 7 legible copies, accompanied by certified true copies of material portions of record and other
supporting papers:
a. State whether or not appellee accepts the statement of matters involved in the petition;
b. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of
matters;
c. State reasons why petition should not be give due course.
3. CA may:
a. Require respondent to file a comment; or
b. Dismiss the petition if it finds:
i. Patently without merit
ii. Prosecuted manifestly for delay
iii. Questions raised are to insubstantial to require consideration

RULE 43 APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO THE CA

1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-judicial agencies
in exercise of quasi-judicial functions (unless otherwise provided by law and the Labor Code
[NLRC decisions]) shall be by petition for review to the CA, to be taken within 15 days from
notice of award or judgment or from notice of the denial of the motion for reconsideration. Only 1
Motion for reconsideration allowed
2. Quasi-judicial agencies covered:
a. Civil Service Commission;
b. Central Board of Assessment Appeals;
c. Securities and Exchange Commission;
d. Office of the President;
e. Land Registration Authority;
f. Social Security Commission;
g. Civil Aeronautics Board;
h. Bureau of Patents, Trademarks and Technology Transfer;
i. National Electrification Administration;
j. Energy Regulatory Board;
k. National Telecommunications Commission;
l. Department of Agrarian Reform under RA No. 6657;
m. GSIS;
n. Employees Compensation Commission;
o. Agricultural Inventions Board;
p. Insurance Commission;
q. Construction Industry Arbitration Commission;
r. Voluntary arbitrators
 St. Martin’s Funeral Home vs. NLRC - DECISIONS OF THE NLRC – ORIGINAL ACTION
FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC
 26

 Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the CA under Rule 43.
∅ According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any appeal by way
of petition for review from a decision, final resolution or order of the Ombudsman, or
special civil action relative to such decision, filed with the SC after March 15, 1999 shall
no longer be referred to the CA, but shall be dismissed.

RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT

1. Question of Law – exists when doubt or difference arises as to what the law is, based on a
certain state of facts
Question of Fact – exists when doubt or difference arises as to the truth or the falsehood of
alleged facts
2. Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:
a. The conclusion is a finding grounded entirely on speculations, surmises, or conjectures;
b. The inference made is manifestly mistaken, absurd, or impossible;
c. There is grave abuse of discretion;
d. The judgment is based on misapprehension of facts;
e. Findings of fact of trial court and CA are conflicting;
f. The CA, in making its findings, went beyond the issues of the case and the same is contrary to
the admissions made;
g. CA manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion.
3. Certiorari as mode of appeal:
From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law,
or other courts whenever authorized by law, by filing a petition for review on certiorari with the
SC within 15 days from notice of judgment.
4. Rule 45 and Rule 65 distinguished:
Rule 45 Rule 65
No need for Motion for Recon Motion for Recon generally required
Relates to final judgments Applies to interlocutory orders rendered in
excess/lack of jurisdiction
An appeal Not an appeal in the strict sense
15 days from notice of judgment 60 days from notice of judgment

 Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground
that the issues raised involve a pure question of law, and that the mode of appeal is erroneous.
That is the prerogative of the CA, not the RTC judge. A notice of appeal need not be approved
by the judge, unlike a record on appeal.

RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

1. Grounds for annulment of judgment of RTC in civil cases:
a. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or
petition for relief
b. Lack of jurisdiction.
2. Petition for annulment available only if ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies no longer available through no fault of the Petitioner.
3. Periods:
a. For extrinsic fraud – four years from discovery;
b. Lack of jurisdiction – must be filed before action barred by laches.
4. Effects of judgment of annulment – gives the CA authority to order the trial court on motion to try
the case if the ground for annulment is extrinsic fraud, but not if it is lack of jurisdiction.
 27

 Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is
attributable to the plaintiff in the original action.

RULE 50 DISMISSAL OF APPEAL

1. Grounds for dismissal of appeal by the CA:
a. Failure of the record on appeal to show on its face that the appeal was taken within the
reglamentary period;
b. Failure to file the notice of appeal or record on appeal within the period;
c. Failure of the appellant to pay the docket and other lawful fees;
d. Unauthorized alterations, omissions, or additions in the approved record on appeal;
e. Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided;
f. Absence of specific assignment of errors in appellants brief or page references to the record;
g. Failure of the appellant to take necessary steps for the completion or correction of the record
within the time limited by the order;
h. Failure of appellant to appear at the preliminary conference or to comply with orders,
circulars, or directives of the court without justifiable cause
i. Judgment or order appealed from is not appealable.

RULE 51 JUDGMENT
1. Memorandum decisions are permitted in the CA.
2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are signed
by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon
the date of promulgation and cause true copies to be served upon parties or counsel.
3. Date when judgment or final resolution becomes executory shall be deemed as date of entry.

RULE 56 PROCEDURE IN THE SUPREME COURT

1. Original cases cognizable – exclusive list:
a. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
b. Disciplinary proceedings against judges and attorneys;
c. Cases affecting ambassadors, other public ministers, and consuls.
2. An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases
where the penalty imposed is death, reclusion perpetua, or life imprisonment.
3. Grounds for dismissal of appeal by SC
a. Failure to take appeal within the reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs;
d. Failure to comply with the requirements regarding proof of service and contents of and the
documents which should accompany the petition;
e. Failure to comply with any circular, directive or order of the SC without justifiable cause;
f. Error in choice or mode of appeal
g. Case is not appealable to the SC.
4. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.
5. General Rule: Appeal to SC by notice of appeal shall be dismissed.
Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser
penalty is imposed but involving offenses committed on the same occasion or arising
out of the same occurrence which gave rise to the more serious offense for which the
penalty of death or life imprisonment is imposed (Section 3, Rule 122)
6. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for
decision or appropriate action, without prejudice to considerations on whether or not to give due
course to the appeal as provided in Rule 45.
 28

PROVISIONAL REMEDIES
Provisional remedies (ancillary/auxiliary)
 Writs and processes available during the pendency of the action which may be resorted to by a
litigant to preserve and protect rights and interests therein pending rendition, and for the purpose of
ultimately affecting a final judgment in the case.
 PROVISIONAL - constituting temporary measures availed of during the pendency of the action.
 ANCILLIARY - incidents in and dependent on the result of the main action.

RULE 57 PRELIMINARY ATTACHMENT

1. Preliminary Attachment
a. Available even if the recovery of personal property is only an incidental relief sought in the
action;
b. May be resorted to even if the personal property is in the custody of a third person;
c. Extends to all kinds of property, real or personal or incorporeal;
d. To recover possession of personal property unjustly detained, presupposes that the same is
being concealed, removed, or disposed of to prevent its being found or taken by the applicant;
e. Can still be resorted to even if the property is in custodia legis, as long as the property belongs
to the defendant, or is one in which he has proprietary interests, AND with permission of the
court
2. Grounds
a. Recovery of specified amount of money and damages, except moral or exemplary, where party
is about to depart from the Phils with intent to defraud creditors;
b. Action for money or property embezzled or for willful violation of duty by public officers,
officers of corporation, agent, or fiduciary;
c. Recovery of possession of property (both real and personal) unjustly detained, when the
property is concealed or disposed of to prevent is being found or taken;
d. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the
performance thereof;
e. Action against party who is concealing or disposing of property, or is about to do so, with
intent to defraud creditors;
f. Action against party who is not a resident of the Phils and cannot be found therein or upon
who service by publication can be made.
3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
Enforcement of writ of preliminary attachment must be preceded by or simultaneously
accompanied by service of summons, copy of complaint, application and affidavits for the
attachment and the bond upon the adverse party; BUT the requirement of prior or
contemporaneous service of summons shall not apply where the summons could not be served
despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or
the defendant is a non-resident of the Phils or the action is in rem or quasi in rem.
4. When preliminary attachment is discharged
a. Debtor posts a counterbond or makes requisite cash deposit- if attachment to be discharged is
with respect to particular property, counterbond or deposit shall be equal to the value of the
property as determined by the court; in all other cases, amount of counterbond should be equal
to the amount fixed in the order of attachment.
 CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY
JUDGMENT THAT ATTACHING PARTY MAY RECOVER
b. Applicant’s bond is insufficient or sureties fail to justify;
c. Attachment was improperly or irregularly issued;
d. Property attached is exempt from execution;
e. Judgment is rendered against attaching party;
f. Attachment is excessive – discharge is with respect to the excess
 29

5. Application for discharge may only be filed with the court where the action is pending and may be
filed even before enforcement of the writ so long as there has been an order of attachment.
6. When to apply for damages against the attachment bond
a. Before trial;
b. Before appeal perfected;
c. Before judgment becomes executory;
d. In the appellate court for damages pending appeal, before judgment becomes executory.
7. When judgment becomes executory, sureties on counterbond to lift attachment are charged and can
be held liable for the amount of judgment and costs upon notice and summary hearing. There is no
need to first execute judgment against the judgment obligor before proceeding against sureties.
8. Claims for damages cannot be subject of independent action except:
a. When principal case is dismissed by the trial court for lack of jurisdiction without giving the
claiming party opportunity to prove claim for damages;
b. When damages sustained by a third person not a party to the action.

RULE 58 PRELIMINARY INJUNCTION

1. Preliminary injunction distinguished from Prohibition
Preliminary Injunction Prohibition
Generally directed against party to the action but Directed against a court, tribunal, or person
may be against any person exercising judicial powers
Does NOT involve the jurisdiction of the court May be on the ground that the court against whom
the writ is sought acted without or in excess of
jurisdiction;
May be main action itself or just a provisional Always a main action
remedy in the main action

2. Grounds for Preliminary Injunction

a. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance
of acts (latter is preliminary mandatory injunction);
b. The commission of acts or non-performance during pendency of litigation would probably
work injustice to the plaintiff;
c. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of
the action and tending to render judgment ineffectual.
3. Injunction may be refused or dissolved when:
a. Complaint is insufficient;
b. Defendant is permitted to post a counterbond it appearing that he would sustain great and
irreparable injury if injunction granted or continued while plaintiff can be fully compensated;
c. Plaintiff’s bond is insufficient or defective
4. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse
party and hearing.
5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
 When an application for a writ of preliminary injunction or a temporary restraining order is
included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the
person to be enjoined. In any event, such notice shall be preceded, or contemporaneously
accompanied by service of summons, together with a copy of the complaint and the
applicant’s affidavit and bond, upon the adverse party in the Phils; BUT the requirement of
prior or contemporaneous service of summons shall NOT apply where the summons could not
be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent
therefrom, or the defendant is a non-resident of the Phils
 30

 Difference with principle in preliminary attachment – In attachment, the principle applies only
in the implementation of the writ, while in applications for injunction or TRO, this principle
applies before the raffle and issuance of the writs or TRO.
6. TRO good for only 20 days from service; 60 days for CA; until further orders from SC.
7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice
and irreparable injury. Good for 72 hours from issuance, within which judge must comply with
service of summons, complaint, affidavit and bond, and hold summary hearing to determine
whether TRO should be extended for 20 days. In no case can TRO be longer than 20 days
including 72 hours.
8. No TRO, preliminary injunction or preliminary mandatory injunction may issue against the
government in cases involving implementation of government infrastructure projects. (Garcia vs.
Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)

RULE 59 RECEIVERSHIP
1. When receiver may be appointed:
a. Party has an interest in the property or fund subject of the action and such is in danger of
being lost, removed, or materially injured;
b. Action by mortgagee for foreclosure of mortgage when the property is in danger of being
wasted or materially injured and that its value is probably insufficient to discharge the
mortgage debt, OR that the parties have stipulated in the contract of mortgage;
c. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it,
or to aid in execution when execution has been returned unsatisfied or the judgment debtor
refuses to apply his property to satisfy judgment, or to carry out the judgment.
d. When appointing one is the most convenient and feasible means to preserve, administer, or
dispose of the property in litigation.
2. When receivership may be denied/lifted
a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
c. Applicant or receiver’s bond is insufficient.
3. Both the applicant for the receivership and the receiver appointed must file separate bonds.
4. In claims against the bond, it shall be filed, ascertained and granted under the same procedure as
Section 20, Rule 57, whether is be damages against the applicant’s bond for the unlawful
appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by
reason of the receiver’s management (in the latter case, no longer need to file a separate action).

RULE 60 REPLEVIN
1. Replevin
a. Available only where the principal relief sought in the action is the recovery of possession of
personal property;
b. Can be sought only where the defendant is in the actual or constructive possession of the
personal property involved.
c. Extends only to personal property capable of manual delivery;
d. Available to recover personal property even if the same is NOT being concealed, removed, or
disposed of;
e. Cannot be availed of if property is in custodia legis, as where is it under attachment, or was
seized under a search warrant or distrained for tax assessment.
2. Defendant entitled to return of property taken under writ if:
a. He seasonably posts redelivery bond
b. Plaintiff’s bond is insufficient or defective
c. Property is not delivered to plaintiff for any reason.
 Replevin bond is only intended to indemnify defendant against any loss that he may suffer by
being compelled to surrender the possession of the disputed property pending trial of the
action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff
 31

on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the
plaintiffs which are unconnected with the defendant’s deprivation of possession by the
plaintiff.

SPECIAL CIVIL ACTIONS

1. Types of Special Civil Actions
a. Mandamus
b. Interpleader
c. Certiorari
d. Contempt
e. Prohibition
f. Eminent Domain
g. Declaratory Relief
h. Quo warranto
i. Partition of real estate
j. Foreclosure of mortgage
k. Unlawful detainer
l. Forcible Entry

RULE 62 INTERPLEADER
1. Interpleader
a. Original action
b. Presupposes that the plaintiff has no interest in the subject matter of the action or has an
interest therein which, in whole or part, is not disputed by the other parties to the action;
c. Complaint in interpleader must be answered 15 days from service of summons

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

1. Requisites for action for declaratory relief:
a. Subject matter of controversy is a deed, will, contract, or other written instrument, statute,
executive order, or regulation, or ordinance;
 Court may refuse to adjudicate where decision would not terminate the uncertainty or
controversy which gave rise to the action OR where the declaration is not necessary and
proper at the time;
b. Terms and validity thereof are doubtful and require judicial construction;
c. No breach of the document, otherwise ordinary civil action is the remedy;
 Must be before breach is committed, as in the case where the petitioner paid under protest
the fees imposed by an ordinance. Declaratory relief still proper because the applicability
of the ordinance to future transactions still remains to be resolved, although the matter
could be threshed out in an ordinary suit for the recovery of the fees paid.
d. There is an actual justiciable controversy between persons whose interests are adverse;
e. The same is ripe for adjudication;
f. Adequate relief is not available through other means or other forms of action or proceeding.

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT

 For petition for review of judgments and final orders of the COMELEC and COA – period to file
is 30 days to be counted from notice of the judgment or final order or resolution sought to be
reviewed and not from the receipt of the denial of the Motion for Reconsideration; the period to
file petition is merely interrupted by the filing of the Motion for Reconsideration and continues to
run again for the remaining period which shall not be less than 5 days from notice of denial.
 32

RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS

1. Certiorari
a. Purpose – to correct an act performed by respondent;
b. Act sought to be controlled – discretionary acts;
c. Respondent – one who exercises judicial functions and acted with grave abuse of discretion or
in lack or excess of jurisdiction.
d. Generally directed against an interlocutory order of the court prior to appeal from the
judgment in the main case;
e. Need merely be filed seasonably (within 60 days), without undue delay and before the act,
order, or proceedings, sought to be reviewed or set aside has become fait accompli such that
any reversal thereof shall have become academic;
f. Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged order;
g. Parties are the aggrieved parties against the lower court or quasi-judicial agency and the
prevailing parties;
h. Motion for reconsideration is a condition precedent, subject to certain exceptions;
i. Higher court exercises original jurisdiction under its power of control and supervision over the
orders of lower courts.
 If CA reverses the judge, the latter may not go the SC via a petition for certiorari. He is
merely a nominal party, and he should not seek the reversal of a decision that is
unfavorable to the action taken by him.
 Professional Regulation Commission vs. CA – It is well settled that the remedies of
ordinary appeal and certiorari are mutually exclusive, not alternative or successive.
However, it has also been held that after a judgment has been rendered and an appeal
therefrom had been perfected, a petition for certiorari relating to certain incidents therein
may prosper where the appeal does not appear to be a plain, speedy and adequate remedy.
In this case, the SC noted that, while petitioners tried to justify their recourse to both an
appeal and to a petition for certiorari by claiming that their appeal would not constitute a
plain, speedy and adequate remedy, they did not see fit to withdraw or abandon said
appeal after filing the petition. Thus, both the CA and SC are reviewing the same
decision of the RTC at the same time. Such a situation would lead to absurdity and
confusion in the ultimate disposition of the case.
2. Prohibition
a. Purpose – to prevent the commission or carrying out of an act;
b. Act sought to be controlled – discretionary and ministerial acts;
c. Respondent – one who exercises judicial or non-judicial functions.
3. Mandamus
a. Purpose – to compel the performance of the act desired;
b. Act sought to be controlled – ministerial act;
c. Respondent – one who performs judicial or non-judicial functions.
4. When SC allows the writ of certiorari even when appeal is available and proper:
a. Appeal does not constitute a speedy and adequate remedy;
b. Orders were issued either in excess of or without jurisdiction;
c. For certain special considerations, such as public welfare or policy;
d. Where in criminal actions, the court rejects rebuttal evidence for the prosecution, as in
acquittal;
e. Where the order is a patent nullity;
f. Where the decision in the certiorari case will avoid future litigation.
5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari:
a. Order is a patent nullity;
b. Questions raised in the certiorari proceeding were duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court;
 33

c. Urgent necessity for the resolution of the question and any further delay would prejudice the
interests of the government;
d. Under the circumstances, a motion for recon would be useless;
e. Petitioner was deprived of due process and there is extreme urgency for relief;
f. Where in a criminal case, relief from order or arrest is urgent and the granting of such relief by
the trial court is improbable;
g. Proceedings in the lower court are null for lack of due process;
h. Proceeding was ex parte or in which petitioner had no opportunity to object;
i. Issue raised is one purely of law or where public interest is involved.
6. The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order,
or resolution sought to be reviewed.
 In case a motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the 60-day period shall be counted from notice of the denial of said motion.
(SC Circular 56-2000, effective September 1, 2000)
 No extension of time to file the petition shall be granted except for compelling reason and in
no case exceeding 15 days. (SC Circular 56-2000)

RULE 66 QUO WARRANTO

1. Quo Warranto distinguished from Election Contest:
Quo Warranto
Basis is that occupant is disqualified from holding
office by reason of ineligibility or disloyalty
If successful, respondent is ousted but petitioner
shall not automatically assume the office vacated
Election Contest
Challenge rights of a person to hold office on the
ground of irregularities in the conduct of the
election
Successful protestant will assume office if he had
obtained plurality of valid votes

RULE 67 EXPROPRIATION
1. In expropriation, the complaint must be verified.
2. The defendant can only file an answer instead of a motion to dismiss
3. The final order of expropriation is appealable, but the lower court may determine the just
compensation to be paid.
 The power of eminent domain is exercised by the filing of a complaint which shall join as
defendants all persons owning or claiming to own, or occupying, any party of the expropriated
land or interest therein. If a known owner is not joined as defendant, he is entitled to
intervene in the proceedings; or if he is joined but not served with process and the proceeding
is already closed before he came to know of the condemnation, he may maintain an
independent suit for damages.
 34

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER

1. Forcible entry distinguished from Unlawful detainer
Forcible entry
Possession of land is unlawful from the beginning
due to force, intimidation, threat, strategy or stealth
No requirement of previous demand for defendant
to vacate premises
Plaintiff must prove that he was in prior physical
possession until he was deprived thereof by
defendant
1-year period counted from date of actual entry or
when plaintiff learned thereof.
Unlawful detainer
Possession of defendant is inceptively lawful but
becomes illegal by reason of termination of right of
possession
Demand is jurisdictional
Plaintiff need not have been in prior physical
possession
1-year period from date of last demand

2. When prior demand in unlawful detainer actions not required;

a. When purpose of action is to terminate lease because of expiry of term and not because of
failure to pay rental or to comply with terms of lease contract;
b. Purpose of suit is not for ejectment but for enforcement of terms of contract;
c. When defendant is not a tenant but a pure intruder
 In all other cases, there must be a demand:
i. To pay or to comply with the conditions of the lease; AND
ii. To vacate by written notice on the person in the premises or by posting such notice on the
premises if no person is found thereon and this is a condition precedent to the filing of the
case; ORAL demand is not permitted.
iii. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by
the Rules.
3. When the defendant raises the issue of ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership, the latter issue shall be resolved only
to determine the issue of possession.
 A forcible entry/unlawful detainer action has an entirely different subject matter from that of
an action for reconveyance. The former involves material possession, and the latter,
ownership. Thus, the pendency of an action for reconveyance does not divest the MTC of its
jurisdiction over an action for FE/UD, nor will it preclude execution of judgment in the
ejectment case where the only issue involved is material possession.

RULE 71 CONTEMPT
1. Criminal contempt
a. Purpose is to vindicate public authority;
b. Conduct directed against the dignity or authority of the court.
2. Civil Contempt
a. Purpose is to protect and enforce civil rights and remedies for the litigants;
b. Failure to do something ordered by the court for the benefit of a party.
3. Direct Contempt (contempt in facie curiae)
a. Commit in the presence of or so near a court or judge;
b. Punished summarily without hearing;
c. No appeal may be taken but the party adjudged in contempt may avail himself of actions of
certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed
by the court is filed.
4. Indirect Contempt
a. Not committed in the presence of the court;
b. Punished only after hearing – complaint in writing or motion or party or order of court
requiring person to appear and explain, opportunity to appear and show cause.
 35

JURISDICTION OF THE COURTS

JURISDICTION OF THE SUPREME COURT

1. ORIGINAL jurisdiction over cases involving ambassadors, other public ministers and consuls;
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus (concurrent with
RTC).
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, final judgments of lower courts in:
a. Cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, decree, proclamation, order, instruction, ordinance or regulation is in
question;
b. Cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
thereto;
c. Cases involving the jurisdiction of lower courts;
d. All criminal cases in which the penalty imposed is reclusion perpetua or higher;
e. All cases in which only an error or question of law is involved.

JURISDICTION OF THE COURT OF APPEALS

1. ORIGINAL jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and
quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction
(concurrent with SC and RTCs)
2. EXCLUSIVE original jurisdiction over actions for annulment of judgments of RTCs.
3. EXCLUSIVE appellate jurisdiction over all final judgments, decisions, resolutions, orders or
awards of RTCs and quasi-judicial agencies, bodies, or commissions, EXCEPT those which fall
within the appellate jurisdiction of the SC, namely:
a. COMELEC;
b. Commission on Audit;
c. Sandiganbayan.

JURISDICTION OF THE REGIONAL TRIAL COURTS

I. ORIGINAL
A. CIVIL CASES
1. Cases where the subject of the litigation is incapable of pecuniary estimation;
2. Involving the title to, or possession of, real property, or any interest therein, where the
assessed value of the property involved exceeds P20,000/ P50,000, EXCEPT actions for
forcible entry and unlawful detainer:
3. All actions in admiralty and maritime jurisdiction where the demand or claim exceeds
P200,000/P400,000;
4. Probate proceedings, both testate and intestate, where the gross value of the estate
P200,000/P400,000;
5. In all actions involving the contract of marriage and marital relations;
6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction;
7. In all civil actions and special proceedings falling within the exclusive original
jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian
Relations as now provided by law; and
8. In all other cases in which the demand, exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs or the value of the property in controversy
exceeds P200,000/P400,000;
B. CRIMINAL CASES
All criminal cases not within the exclusive jurisdiction of any court, tribunal, or body
EXCEPT those within the jurisdiction of the Sandiganbayan, where the penalty exceeds 6
years imprisonment irrespective of fine, or if only a fine is imposable, exceeds P6,000,
regardless of the amount of civil liability.
 36

 Manzano vs. Valera

R.A. 7691 places jurisdiction over criminal cases where the penalty is 6 years or
less with the MTCs. Libel is punishable by prision correcional in its minimum and
medium periods and prision correcional has a range from six months and one day to six
years. ON the other hand, Art. 360 of the RPC gives jurisdiction over libel cases to the
CFI (now RTC). The latter is a special law which must prevail over general laws.
Moreover, from the provisions of R.A. 7691, there seems to be no manifest intent to
repeal or alter the jurisdiction in libel cases. Thus, RTCs still have jurisdiction over libel
cases.
II. APPELLATE
All cases decided by the lower courts (MTCs) in their respective territorial jurisdictions.
NOTE: no trial de novo; case is decided on the basis of decision and supporting affidavits.

JURISDICTION OF THE FAMILY COURTS (R.A. 8369)

Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:
1. Criminal cases where:
a. One or more of the accused is below eighteen (18) years of age but not less than nine (9) years
of age, OR
b. One or more of the victims is a minor at the time of the commission of the offense.
Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any
civil liability which the accused may have incurred. The sentence, however, shall be suspended
without need of application pursuant to the "Child and Youth Welfare Code";
2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
3. Petitions for adoption of children and the revocation thereof;
4. Complaints [for]:
a. Annulment of marriage
b. Declaration of nullity of marriage
c. Those relating to marital status and property relations of:
i. Husband and wife OR
ii. Those living together under different status and agreements, AND
d. Petitions for dissolution of conjugal partnership of gains;
5. Petitions for support and/or acknowledgment;
6. Summary judicial proceedings brought under the provisions of the "Family Code of the
Philippines";
7. Petitions for:
a. Declaration of status of children as
i. Abandoned
ii. Dependent OR
iii. Neglected children
b. Voluntary or involuntary commitment of children;
c. The suspension, termination, or restoration of parental authority and other cases cognizable
under "Child and Youth Welfare Code", Executive Order No. 56, (Series of 1986), and other
related laws;
8. Petitions for the constitution of the family home;
9. Cases against minors cognizable under the Dangerous Drugs Act, as amended;
10. Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No.
7658; and
11. Cases of domestic violence against:
a. Women
 37

 Which are acts of gender based violence that results, or are likely to result in physical,
sexual or psychological harm or suffering to women; and other forms of physical abuse
such as battering or threats and coercion which violate a woman's personhood, integrity
and freedom of movement; AND
b. Children
 Which include the commission of all forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other conditions prejudicial to their development.
If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal
proceedings and the corresponding penalties.
If any question involving any of the above matters should arise as an incident in any case
pending in the regular courts, said incident shall be determined in that court.
Decisions and orders of the court shall be appealed in the same manner and subject to the
same conditions as appeals from the ordinary Regional Trial Courts.

JURISDICTION OF THE MUNICIPAL TRIAL COURTS, METROPOLITAN TRIAL COURTS AND THE MUNICIPAL CIRCUIT
TRIAL COURTS
A. CIVIL CASES
1. Civil actions and probate proceedings, testate and intestate, including the grant of provisional
remedies where the demand, exclusive of interest, damages, attorney’s fees and costs, does not
exceed P100,000/200,000.
2. Exclusive original jurisdiction over cases of forcible entry and unlawful detainer; issue of
ownership resolved only to determine issue of possession.
 After lapse of 1 year, MTC loses jurisdiction, and case becomes one for recovery of
possession de jure (accion publicicana), although MTC may still have jurisdiction if
value of property does not exceed P20,000/50,000.
3. Actions involving personal property valued at not more than P100,000/200,000.
4. Actions involving title or possession of real property where the assessed value doe not exceed
P20,000/50,000.
5. Inclusion/exclusion of voters.
B. CRIMINAL JURISDICTION
1. Violations of city or municipal ordinances.
2. All offenses punishable with not more than 6 years imprisonment, irrespective of fine, or a
fine of not more than P6,000, regardless of civil liabilities and accessory penalties.

SUMMARY PROCEDURE
I. CASES APPLICABLE
A. CIVIL CASES
1. All cases of forcible entry and unlawful detainer irrespective of amount of damages or
unpaid rentals; without question of ownership; attorney’s fees not exceeding P20,000 if
quieting of ownership; resolved to determine question of possession.
2. Other civil cases EXCEPT probate proceedings, where the total amount of the claim does
not exceed P10,000, exclusive of interest and cost.
B. CRIMINAL CASES
1. Violation of traffic laws, rules, regulations
2. Violation of rental laws
3. Violations of city or municipality ordinances
4. All other criminal cases where the penalty does not exceed 6 months or a fine of P1000 or
both
5. Damage to property through criminal negligence where the fine does not exceed P10,000.
II. PROHIBITED PLEADINGS AND MOTIONS
 38

1. Motion to dismiss or quash EXCEPT for lack of jurisdiction over subject matter or failure to
comply with Katarungang Pambarangay (LGC) requirements
2. Motion for bill of particulars
3. Motions for new trial, reconsideration, re-opening
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings, affidavits
6. Memoranda
7. Petition for certiorari, mandamus, and prohibition against any interlocutory order issued by
the court
8. Motion to declare defendant in default
9. Dilatory motion for postponement
10. Reply
11. Third-party complaints
12. Motion for intervention

JURISDICTION OF THE HOUSING AND LAND USE REGULATORY BOARD (HLURB)

EXCLUSIVE jurisdiction over
1. Unsound real estate business practices
2. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer
against the project owner, developer, dealer, broker, or salesman
3. Cases involving specific performance of contractual and statutory obligations filed by buyers of
subdivision lots or condominium units against the owner, developer, dealer, broker, or salesman

JURISDICTION OF THE KATARUNGANG PAMBARANGAY (UNDER THE LOCAL GOVERNMENT CODE OF 1991)
1. No complaint, petition, action or proceeding involving any matter within the authority of the lupon
shall be filed or instituted directly in court or any other government office for adjudication, unless:
a. There has been a confrontation between the parties before the lupon chairman or pangkat,
AND
b. That no conciliation or settlement has been reached as certified by the lupon/pangkat secretary
as attested to by lupon chairman or pangkat chairman, or unless such settlement has been
repudiated by the parties thereto
2. Disputes subject to Conciliation Requirement: All disputes between parties actually residing in the
same city or municipality
 HOWEVER, the court in which non-criminal cases not falling within the authority of the
Lupon may, at any time before trial, refer the case to the lupon for amicable settlement.
3. EXCEPTIONS TO CONCILIATION REQUIREMENT (SC Circular 14-93)
a. Where one party is the government, or any subdivision or instrumentality thereof;
b. Where one party is a public officer or employee, and the dispute relates to the performance of
his official functions;
c. Where the dispute involves real properties located in different cities and municipalities, unless
the parties thereto agree to submit their difference to amicable settlement by an appropriate
Lupon;
d. Any complaint by or against corporations, partnerships or juridical entities, since only
individuals shall be parties to Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
e. Disputes involving parties who actually reside in barangays of different cities or
municipalities, EXCEPT:
i. Where such barangay units adjoin each other, AND
ii. The parties thereto agree to submit their differences to amicable settlement by an
appropriate Lupon;
 39

f. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1)
year or a fine over five thousand pesos (P5,000.00);
g. Offenses where there is no private offended party;
h. Disputes where urgent legal action is necessary to prevent injustice from being committed or
further continued, specifically the following:
i. Criminal cases where accused is under police custody or detention;
ii. Petitions for habeas corpus by a person illegally deprived of his rightful custody over
another or a person illegally deprived of his liberty or one acting in his behalf;
iii. Actions coupled with provisional remedies such as preliminary injunction, attachment,
delivery of personal property and support during the pendency of the action; AND
iv. Actions which may be barred by the Statute of Limitations.
i. Any class of disputes which the President may determine in the interest of justice or upon the
recommendation of the Secretary of Justice;
j. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Sections.
46 & 47, R.A. 6657);
k. Labor disputes or controversies arising from employer-employee relations (Montoya vs.
Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to
certain offices of the Department of Labor and Employment);
l. Actions to annul judgment upon a compromise, which may be filed directly in court.

4. VENUE OF PROCEEDINGS:
Situation Venue
Parties reside in same barangay That barangay
Parties reside in different barangays Barangay where respondent, or any of the
respondents, actually resides, at the option of the
complainant
Disputes involving real property or interest therein Barangay where property is situated
Disputes arising at the workplace where the Barangay where such workplace or institution is
contending parties are employed, or at the located
institution where such parties are enrolled for study

 Objections to venue shall be raised in the mediation proceedings before the punong barangay;
otherwise, they are deemed waived. Legal questions confronting the punong barangay which
might arise in resolving such objections are to be submitted to the Secretary of the DOJ, whose
ruling shall be binding.
5. EFFECT OF NON-COMPLIANCE:
a. Dismissal upon motion of defendants for failure to state cause of action or prematurity; OR
b. Suspension of proceedings upon petition and referral of case motu proprio to appropriate
barangay authority.
6. PROCEDURE FOR AMICABLE SETTLEMENT:
a. Complainant pays appropriate filing fees, and shall complain, orally or in writing, to the lupon
chairman of the barangay;
b. Lupon chairman shall make attempts at mediation; if he fails within 15 days from date of first
meeting, he shall set a date for the constitution of a pangkat ng tagapagsundo (3 members;
chosen by the parties from the list of the members of the lupon)
c. Pangkat shall have power to issue summons, and shall hear both parties and their witnesses,
and attempt to arrive at an amicable settlement. It shall arrive at said settlement or resolution
of the dispute within 15 days from the day it convenes.
 During the period while the dispute is under mediation, the prescriptive periods for offenses,
and for causes of action shall be interrupted upon filing of the complaint with the punong
barangay. Said interruption shall not exceed 60 days from said filing.
 40

 In all proceedings, parties must appear in person without the assistance of counsel or
representatives, EXCEPT for minors and incompetents who may be assisted by their next-of-
kin who are not lawyers.
7. Amicable settlement shall have the force and effect of a final judgment upon the expiration of 10
days from its date, unless:
a. It is repudiated, or
 Repudiation must be done within 10 days, by filing a sworn statement with the lupon
chairman;
 The grounds for repudiation are vitiation of consent by fraud, violence or intimidation;
 Such repudiation is a sufficient basis for the issuance of a certification for filing a
complaint with the court.
b. A petition to nullify the settlement is filed in the proper city or municipal court
 The above does not apply to cases not within jurisdiction of the lupon but submitted to it.
In this case, the compromise agreed upon by the parties before the lupon/pangkat chair
shall be submitted to the court and upon approval thereof, shall have the force and effect
of a judgment of said court.
8. EXECUTION OF AMICABLE SETTLEMENT:
a. Within 6 months from date of settlement: by the lupon.
b. Thereafter, by action in the appropriate city of municipal court
9. CERTIFICATION OF BARANGAY AUTHORITIES (for filing a complaint in court) shall be issued only upon
complying with the following requirements:
a. Issued by lupon secretary and attested by lupon chairman/ punong barangay, that
confrontation took place and conciliation settlement was reached, but subsequently
repudiated.
b. Issued by pangkat secretary and attested by pangkat chairman, that:
i. There was a confrontation but no settlement; OR
ii. There was no personal confrontation without any fault on the part of the complainant.
c. Issued by the Punong Barangay, as requested by the proper party, on the ground of failure of
settlement, where the dispute involves members of the same indigenous cultural community,
which shall be settled in accordance with the customs and traditions of that particular cultural
community, or where one or more of the parties to the aforesaid dispute belong to the minority
and the parties mutually agreed to submit their dispute to the indigenous system of amicable
settlement, and there has been no settlement as certified by the datu or tribal leader or elder, to
the Punong Barangay of the place of settlement
 If mediation or conciliation proved unsuccessful before punong barangay there having been
no agreement to conciliate, OR respondent failed to appear before punong barangay, Punong
Barangay shall not issue the certification (because now mandatory for him to constitute the
Pangkat before whom mediation, conciliation, or arbitration proceedings shall be held.)

JURISDICTION OF THE SANDIGANBAYAN

A. ORIGINAL
1. Violations of:
a. “Anti-Graft and Corrupt Practices Act”;
b. R.A. 1379 (“An Act Declaring Forfeiture in Favor of the State of Any Property Found to
Have Been Unlawfully Acquired By Any Public Officer or Employee and Providing for
the Proceedings Therefor”); or
c. Title VII, Chapter II, § 2 of the RPC (i.e., Articles 210-212 of RPC)
 Where one or more of the principal accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim capacity, at the
time of the commission of the offense:
i. Officials of executive branch occupying positions classified as Grade 27 or higher
ii. Members of Congress and officials thereof classified as Grade 27 or higher
 41

iii. Members of the Judiciary, without prejudice to the provisions of the Constitution (on
impeachment)
iv. Chairmen and members of the Constitutional Commissions, without prejudice to the
provisions of the Constitution
v. All other national and local officials classified as Grade 27 or higher; or
2. Other offenses or felonies, committed by public officials and employees mentioned in #1, in
relation to their office, whether simple or complexed with other crimes
3. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A.
B. APPELLATE
If none of the principal accused are occupying positions of grade 27 or higher, original jurisdiction
will be with either the MTC or RTC; SB will exercise exclusive appellate jurisdiction on said
cases.
 The procedure prescribed in BP Blg. 129, as well as the implementing rules that the Supreme
Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review
to the Court of Appeals shall apply to appeals and petitions for review filed with the
Sandiganbayan.
C. NOTES:
1. Private individuals charged as co-principals, accomplices or accessories with the public
officers or employees shall be tried jointly with said public officers and employees in the
proper courts
2. Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action
and the corresponding civil action for the recovery of civil liability arising from the offense
charged shall at all times be simultaneously instituted with, and jointly determined in, the
same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal
action being deemed to necessarily carry with it the filing of the civil action, and no right to
reserve the filing of such civil action separately from the criminal action shall be recognized.
3. Decisions of the Sandiganbayan:
a. Appealable to the SC by petition for review on certiorari raising pure questions of law in
accordance with Rule 45 of the Rules of Court;
b. If SB imposes penalty of reclusion perpetua or higher, the decision shall be appealable to
the SC by Notice of Appeal;
c. If penalty imposed is death, review by the Supreme Court shall be automatic, whether or
not the accused filed an appeal.

REMEDIAL LAW DEFINITIONS/CONCEPTS

JURISDICTION AND VENUE DIFFERENTIATED

JURISDICTION
Authority to hear and determine a case
A matter of substantive law
Fixed by law and cannot be conferred by the parties
Establishes a relation between the court and subject
matter
VENUE
Court/place where the case is to be tried and heard
A matter of procedural law
May be conferred by the act or agreement of the
parties
Establishes a relation between plaintiff and
defendant, or petitioner and respondent

CLASSIFICATIONS OF JURISDICTION
1. General vs. Specific/Limited:
General - power to adjudicate all controversies EXCEPT those expressly withheld from the plenary
powers of the court
 42

Specific/Limited - restricted to particular cases and subject to such limitations as may be provided
by the governing law
2. Original vs. Appellate
Original – power of the court to take judicial cognizance of a case instituted for judicial action for
the first time
Appellate – authority of a court higher in rank to reexamine the final order or judgment of a lower court
which tried the case now elevated for judicial review
3. Exclusive vs. Concurrent
Exclusive – power to adjudicate a case or proceeding to the exclusion of all other courts at that stage
Concurrent – also known as confluent or coordinate jurisdiction; power conferred upon different
courts, whether of the same or different ranks, to take cognizance at the same state of
the same case
NOTE:
General Rule: Jurisdiction, once acquired, continues until the case is finally terminated.
Exceptions:
1. When a subsequent law provides a prohibition for the continued exercise of jurisdiction;
2. Where the law penalizing an act is punishable is repealed by a subsequent law;
3. When accused is deprived of his constitutional right such as where the court fails to
provide counsel for the accused who is unable to obtain one and does not intelligently
waive his constitutional right;
4. Where the statute expressly provides, or is construed to the effect that it intended to
operate as to actions pending before its enactment;
5. When the proceedings in the court acquiring jurisdiction is terminated, abandoned or
declared void;
6. Once appeal has been perfected.

CLASSIFICATION OF ACTIONS
1. Real, personal and mixed
Real – brought for the protection of real rights, land, tenements, or one founded on privity of estate
only
Personal – not founded upon the privity of real rights or real property
Mixed – brought for protection or recovery of real property and also for an award for damages
sustained
2. In rem, in personam, and quasi in rem
In rem – not directed against particular persons but against the thing itself; object is to bar indifferently
all who might be minded to make objection against the right sought to be enforced; hence,
judgment is binding upon the whole world (e.g., land registration; special proceedings)
In personam – directed against particular persons on the basis of their personal liability to establish a
claim against them; judgment is binding only upon the parties impleaded and their
successors in interest (e.g., action for breach of contract)
Quasi in rem – directed against particular persons, but the purpose of which is to bar and bind not only
said persons but any other person who claims any interest in the property or right
subject of the suit (e.g. action for judicial foreclosure of mortgage)
3. Transitory vs. local
Transitory – one the venue of which depends generally upon the residence of the parties, regardless of
where the cause of action arose (e.g., personal actions)
Local – one required by the Rules to be instituted in a particular place in the absence of an agreement
to the contrary (e.g., real actions)

KINDS OF PARTIES
1. Real party in interest – person having an interest in the subject of the action and in obtaining the
relief demanded.
 43

2. Indispensable party – a person without whom no final determination can be had of an action.
3. Proper party – a person who is not indispensable but should be included if complete relief is to
be accorded as between those already parties.
4. Pro forma party – a husband or wife who is required to be joined in suits by or against his spouse
5. Quasi-parties – those in whose behalf a class or representative suit is brought; parties not
initially/ formally impleaded as original parties but later bind themselves to
comply with the terms of a judgment or compromise rendered therein.

PLEADINGS
Pleading – written allegation of the parties of their respective claims and defenses submitted to the
court for trial and judgment.

KINDS OF PLEADINGS
1. COMPLAINT – concise statement of the ultimate facts constituting the plaintiff’s cause or causes of
action.
2. ANSWER – pleading where an adverse party sets forth negative and affirmative defenses upon which
he relies.
a. Negative Defense – specific denial of a fact alleged.
b. Affirmative Defense – an allegation of new matter which, though admits the material
allegations of the complaint, nevertheless prevents recovery.
3. COUNTERCLAIM – any claim for money or other relief which a party may have against an
opposing party.
a. Compulsory Counterclaim – one arising out of or is necessarily connected with the subject
matter of the claim (e.g., recoupment).
b. Permissive Counterclaim – does not arise or is not connected with the subject matter of the
claim (e.g., set-off).
4. CROSS CLAIM – claim by one party against a co-party arising out of a transaction or occurrence
which is the subject matter of the action or counterclaim.
5. REPLY – a pleading that denies or alleges facts in denial of new matters alleged by way of defense
in the answer with the purpose of joining the issues as to such new matters.
6. THIRD-PARTY COMPLAINT – a claim which a defending party may file against a person not a
party to the action for contribution, indemnity, subrogation or
any other relief.

OTHER DEFINITIONS
Specific Denial – specific allegation of the fact the truth of which he does not admit and setting
forth the substance of the matter relied upon to support the denial OR allegation
of lack of knowledge or information sufficient to form a belief as the truth of the
averment.
Negative Pregnant – a form of denial where only the qualification or modification of the fact
alleged is denied while the fact itself is admitted.
Summons – an order directed to a defendant in the name of the court and under its seal directing that
the defendant answer the complaint upon failure of which judgment will be taken.
Motion – application for an order not included in the judgment.
Subpoena – process directed to a person requiring him to attend and to testify at a hearing or the
trial or to bring with him any book or thing under his control.
Demurrer to Evidence – a motion to dismiss based on insufficiency of evidence of the
prosecution.
Preliminary Attachment – an order of the court granted at the commencement of the action or at
any time before entry of judgment to seize the property of the debtor in
advance of final judgment to hold it for the purpose of satisfying the
judgment.
 44

Preliminary Injunction – an order granted at any stage of an action prior to the judgment or final
order requiring a person to refrain from a particular act.
Preliminary Mandatory Injunction – an order requiring the performance of a particular act.
Criminal Complaint – sworn written statement charging a person with an offense subscribed by
an offended party, peace officer, or other public officer.
Information – an accusation in writing charging a person with an offense subscribed by the fiscal
and filed with court.
Preliminary Investigation – an inquiry or proceeding for the purpose of determining whether
there is sufficient ground to engender a well-founded belief that a
crime has been committed and that the respondent is probably guilty
thereof.
Arrest – taking a person into custody in order that he may be bound to answer for the commission of an
offense.
Bail – the security for the release of a person in custody of the law furnished by him or a bondsman
conditioned upon his appearing before any court as required under the condition hereinafter
specified.
Property Bond – an undertaking constituted as lien on the real property given as security for the
amount of bail.

CIVIL PROCEDURE
LET'S START AT THE VERY BEGINNING
Angel of God, my Guardian dear
To Whom His Love entrusts Me here
Ever this day, be at my side
To Light and Guide, to Rule and Guard
Amen
DISCLAIMER: This is not authoritative since this
is based solely on the lecture notes, hence the
frequent WITs (what is this?) NOTE: all WORD
GAMES are not formal definitions but word for
word transcriptions of L's mind maps. Hence,
these are practical definitions just to juggle your
memory according to SIr's mental outline
GILLIAN, IN A DIFFERENT VOICE.
Jake: Rule Based on Principle Based
Resolution. Apply the law, and make allowances
for mistakes in the law. Situation does not create
the rule.
Amy: Relational / Consensual /
Processional Based Resolution
CALIFORNIA FEDERAL SAVINGS AND LOAN
V. GUERRA. Issue: Re: 1978 California
legislation re: State mandated employee benefits
but not for other temporary disabilities. Single
mother lost her job as a receptionist after her
maternity leave, and as a result of her
unemployment, lost custody of her daughter.
Mother filed case to enforce maternity
benefits: employer challenged statute as
inconsistent with Federal Pregnancy
Discrimination Act (PDA) which treats pregnancy
as similar with other temporary disabilities for
employment purposes.
ACLU BRIEF.
Elimination of pregnancy-based
distinctions valid re: employment purposes since
protectionist laws tend to promote stereotype of
female childbearers and caregivers, and deter
employers from hiring them or putting them in
more responsible positions; they make women
appear as more expensive, less reliable employees.
By making pregnancy comparable to other
temporary physical conditions, Congress directs
attention away from debilitating stereotypes and
focus attention on workers' need for disability leave
itself. Benefits should be provided on a gender-
neutral basis.
45
COALITION FOR REPRODUCTIVE
EQUALITY BRIEF.
Though leave policies that are gender-neutral may
affect the employment interests of both sexes, such
policies place an additional burden on females with
the fundamental non-employment right of
procreative choice.
The law in question reduces the discriminatory
impact of inadequate leave policies on women's
procreative rights, while conferring no special
benefit on any group of employees, and imposing
no special burden on others.
There is no inconsistency between the federal law's
goal of removing artificial barriers to equal
employment opportunity between the sexes, and
the California statute's effect of equalizing male
and female employees' ability to exercise
procreative choice w/o jeopardizing their jobs.
MENKEL. PORTIA IN A DIFFERENT VOICE.
Re: Gillian's observations about M/F
differences in moral reasoning re: structure of legal
system, practice of law, creation of laws, legal
reasoning and law as part of the decision-making
process; 2 questions:
1. How has the exclusion, or at least the
devaluation of women's voices affected the choices
made in the values underlying our current legal
structures? (Value system)
2. Is there another set of values within
existing legal structures?
Usually, tendency for one set of characteristics to
mitigate the excesses of the other, therefore the
harshness of law produced the flexibility of equity,
and the abuse of flexibility gave rise to rules of law
to limit discretion. Still, the tendency for male-
dominated or male-created forms and values to
control.
RULE 1
Purpose of Rules
Alonzo v. Villamor, 16 Phil 315, 321-322
Facts: Defendant members of the Municipal Board
took over certain church & personal properties on
the ground that the buildings were erected on the
land owned by the municipality & therefore the
municipality can administer & collect the revenues.
The CFI granted recovery of the properties. One of
the arguments posed by the defendants was that Fr.
Alonso, the parish priest, was not the real party-in-
interest but rather the Bishop of the diocese.
Held: The property in question at the time it was
taken was Church property. It is undoubted that the

Bishop is the real party. But by Code of Civil
Procedure §10, cts. are authorized & directed to
allow a party to amend any pleading or proceeding
at any stage of the action, in furtherance of justice.
§ 503 prohibits the reversal of any judgment on
merely formal or technical grounds or for such
error as has not prejudiced the rights of the
excepting party, The error in CAB is purely
technical. The plaintiff has asserted all throughout
that he is prosecuting the case not for himself but
for the Bishop. Substantially, no one is deceived.
Substitution is not substantial but formal & mere
defect in form cannot possibly prejudice so long as
the substantial is clearly evident.
ALONZO V VILLAMOR. misjoinder/non-
joinder of parties not ground for dismissal. Must
allege lack of cause of action
Amendment allowed for matters of form;
therefore, if parties acquiesce during trial, there
may be no need for formal lesson.
Lesson in ALONZO: If rules are clear, apply; if
there is ambiguity, constr5uct so that there is justice
for all
Jurisdiction
BP Blg. 128
RA No. 7691
RA No. 8369
Javier v. CA, 214 SCRA 572 (1992)
Facts: Javier filed a case vs. Jebsens Maritime, Inc.
in RTC Makati to avail of death benefits when her
husband drowned off the coast of Spain. JMI’s new
counsel instead of continuing the trial filed a
Motion to Dismiss (MTD) on the ground that it is
the POEA that has jurisdiction. RTC denied. JMI
failed to appear at the hearing & RTC declared
them as having waived right to cross-examine.
Motion for Reconsideration was denied. JMI
successfully appealed to CA. Javier’s MFR was
denied.
Held: EO 247 §3 (d) provides that the POEA shall
have exclusive & original jurisdiction to hear &
decide all claims arising out of an EE-ER relation
or by virtue of any law or contract involving
Filipino workers for overseas employment.
Javier’s’ contention that JMI is estopped fr.
assailing the jurisdiction of the RTC considering
that the latter had actively participated in the
proceedings before said ct. is unavailing since JMI
had raised the question of jurisdiction in the RTC.
The doctrine of estoppel cannot be properly
invoked by Javier despite the participation of JMI
at the initial stages of the trial proceedings as the
issue of jurisdiction may be raised at any time & at
any stage of the action.
JAVIER V CA. Doctrine of Primary
Administrative Jurisdiction: file original and
exclusive jurisdiction of administrative tribunal,
even if possible to lead jurisdiction in both.
46
Exhaustion of administrative remedies is to give a
chance for administrative functions to work.
Santos v. NW, 210 SCRA 256 (1992)
Facts: Santos was bumped off his flight back to
the USA despite confirmation. He sued in the
Makati RTC for damages. NWOA filed a MTD for
on the ground of lack of jurisdiction citing the
Warsaw Convention Art. 28(1) w/c states that the
complaint could be instituted only in the territory
of one of the High Contracting Parties, before: (1)
the ct. of the domicile of the carrier; (2) the ct. of
the principal place of business; (3) the ct. where it
has a place of business thru w/c the contract had
been made; & (4) the ct. of the place of destination.
The suit was not filed in any of these places.
Held: The Warsaw Convention applies to all
international transportation cases. A number of
reasons tends to support the characterization of Art.
28 (1) as a jurisdiction & not a venue provision.
First, the wording of Art. 32, w/c indicate the
places where the actin for damages must be
brought underscores the mandatory nature of Art.
28 (1). Second, this characterization is consistent
wit one of the objectives of the Convention w/c is
to regulate in a uniform manner the condition of
international transportation by air. Third, the
Convention does not contain any provision
prescribing rules on jurisdiction other than Art. 28
(1) w/c means that the phrase “rules of jurisdiction”
used in Art. 32 must refer only to Art. 28 (1). In
fact, the last sentence of Art. 32 specifically deals
w/ the exclusive enumeration in Art. 28 (1) as
jurisdictions w/c as such cannot be left to the will
of the parties regardless of the time when the
damage occurred. The Constitutional right on free
access to cts. refers to cts. w/ jurisdiction over the
suit. The place of destination as determined by the
contract is the ultimate destination w/c is San
Francisco, not Manila. Domicile is where NWOA
is incorporated. Important is the distinction
between the country where the principal place of
business is located & the country in w/c it has a
place of business thru w/c the particular contract in
question was made.
SANTOS V NORTHWEST.
Jurisdiction. 2 meanings: a) place of filing and b)
level of court. Can't be changed, set by law.
Venue. Place of filing. Can be changed by consent
of parties subject to pertinent rules.
In the case at bar, the source of law is treaty, not
contract. Therefore, jurisdiction set by law.
Venue prescribed by process or Rules of Court
(what does this mean?)
The difference between jurisdiction and venue.
Look at a) consequence and b) source of law
Lopez v. NW, 223 SCRA 469
Facts: Lopez was bumped off her flight to New
York by Northwest. She filed a complaint for
breach of contract of carriage w/ damages, alleging
bad faith on the part of the airline. NW filed MTD
on the ground that the RTC had no jurisdiction

under the Warsaw Convention. RTC & CA denied:
Art. 28 (1) prescribes venue for actions under Arts.
17-19 & does not cover carrier’s bad faith in
absolutely refusing to comply w/ contract of
carriage; off-loading, & bumping off is not covered
under the Warsaw Convention. Appeal in the SC
failed. After trial on the merits, RTC directed
parties to submit their respective memoranda for
decision 30 days & it expired Feb. 14, 1992. On
July, NW filed MTD after SC ruling on Santos vs.
NW. RTC granted.
Held: RTC had jurisdiction. It is not clear whether
the complaint contains the allegation w/c may fall
w/in Art. 28 (1). What is clear is that NW did not
object to RTC’s order to submit evidence & declare
case submitted for decision pursuant to 1987
Consti, Art. 8, Sec. 15, Nos. 1 & 2. TC had 90 days
fr. Feb. 15 to decide w/c was the only thing left for
it to do. BY virtue of the SC’s resolution, RTC had
prima facie jurisdiction. It was also not established
that the facts in Santos were substantially the same.
Besides, posterior changes in SC doctrines cannot
be retroactively applied to nullify a prior SC ruling.
Jurisdiction continues until termination. While
jurisdiction over subject matter may be raised at
any time, party may be barred on ground of
laches/estoppel.
Bulao v. CA, 218 SCRA 321 (1992)
Facts: Santiago Belleza sued Honorio Bulao for
damages in MuTC for having built a dam on an
irrigation canal, causing the waterflow to divert to
Belleza’s land, resulting into crop damage. Bulao
filed a MTD on the ground that RTC had
jurisdiction - denied. He then argued that it was the
National Water Resources Council that had
jurisdiction - denied. MuTC declared Bulao in
default & ruled for Belleza. Bulao appealed to the
RTC -denied.
Held: MuTC had jurisdiction. But to resolve this,
determine first the nature of the action. This can be
ascertained fr. the ultimate facts averred in the
complaint constituting the COA. Allegations in the
complaint determine the nature of the action &
consequently the jurisdiction of the cts.. It is clear
fr. a reading of the complaint that it is an action for
damages predicated on quasi-delict Although the
title of the complaint (“Damages”) is not
necessarily determinative of the nature of the
action, it would nevertheless indicate that what was
contemplated was an action for damages.
Allegations of the facts set forth in the complaint &
not the prayer for relief determine the nature of the
action.
BULAO V CA. The wonderful thing about the
servient's estate's complaint was the allegation that
the dominant estate "maliciously put a dam" and
this phrase placed it within the court's jurisdiction.
To place the case within the National Water
Resources Council (NWRC)'s jurisdiction, allege
that dominant estate set up dam without a permit in
47
violation of PD 1067 and took control of the water,
in effect appropriated water illegally.
Name game: Jurisdiction is prescribed by law and
acquired by court.
Tijam v. Sibonghanoy, 23 SCRA
Facts: The Tijams filed a civil case against the
Sibonghanoys for recovery of P1,900 + interest.
The Sibonghanoys filed an answer w/
counterclaim, to w/c the Tijams filed a reply. The
CFI Cebu ruled in the Tijam’s favor. A writ of
execution was returned unsatisfied so the Tijams
filed a motion for execution against the Manila
Surety & Fidelity Co., w/c was denied due to lack
of demand. A demand later made was unsatisfied,
so the ct., upon motion, issued a writ of execution.
Appeal w/ the CA failed. MFR filed, alleging that
the CFI had no jurisdiction bec. 1 month before the
case was filed, RA 926, or the Judicial
Reorganization Act of 1948, took effect, Sec. 88 of
w/c places original & exclusive jurisdiction in
inferior cts. over all civil actions where the value of
the subject matter is ≤P2T. CA set aside decision by
certifying the case to the SC, w/c has exclusive
appellate jurisdiction over all cases in w/c the
jurisdiction of inferior cts. is at issue.
Held: Although objections to jurisdiction may be
raised at any stage of the proceedings, in the CAB,
it took almost 15 years before the Surety filed its
MTD (1963), raising lack of jurisdiction for the
first time. It is now barred by laches. From the time
it became a quasi-party upon filing of a counter
bond in 1948, it could have raised the objection.
Instead, at several stages of the action, it invoked
the jurisdiction of said cts. to obtain an affirmative
relief. It was only when the CA ruled adversely that
it finally raised the question of jurisdiction. SC
frowns upon the undesirable practice of a party
submitting his case for decision & then accepting
the judgment only if it is favorable & attacking it
for lack of jurisdiction when adverse.
TIJAM V SIBONGHANOY. The trial court, after
15 years, can act motu proprio and dismiss the case
for lack of jurisdiction. Estoppel by laches does
not apply to judge.
Abalos v. CA, 30 April 1991
Facts: Abalos spouses sued to recover possession
of a lot in Quezon City registered in their name.
The squatters, against whom the action was filed,
lost the case in the QC RTC so they appealed to the
CA on the ground that the RTC erred in not
dismissing the case for failure to comply w/ the
Katarungang Barangay conciliation procedure. CA
granted.
Held: RTC had jurisdiction. When the Abalos
spouses filed their complaint, they placed QC as
their address. But they were able to change it to
Caloocan upon leave of ct. w/o the respondents
objecting. The requirement of conciliation cannot
be enforced since the property is in QC, where the

respondents reside, while the Abalos spouses live
in Caloocan (PD 1508 Sec. 20). Respondents
effectively waived their right when they failed to
object to the correction of the Abalos’ residence fr.
QC to Caloocan participated in the trial on the
merits. The fact that they argued their case &
adduced their evidence amounts to a waiver of this
defense. Once a party submits to the jurisdiction of
the ct. & participates in the trial on the merits, he
cannot thereafter, after an unfavorable judgment,
take a total turnabout & say that compliance w/ PD
1508 was not made.
ABALOS V CA. Ruling (acc. to L): Amendment
already happens implicitly when parties acquiesce
Q: Is failure to undergo Katarunggang
Pambaranggay a ground for dismissal for failure to
comply with condition precedent?
L: Abalos fails to clarify this. Formerly,
grounds for MTD in ROC Rule 16 provided
"failure to state a cause of action". Now clarified
by Revised ROC Rule 16 (j) which now states
"failure to comply with condition precedent"
NOTE: In this class, L is synonymous with A in
Q & A; but more often, he prefers to be Q. All Qs
are Ls unless otherwise indicated
Galuba v. Laureta, 157 SCRA 627
LECTURE ON JURISDICTION
RA 8369: Changes jurisdiction for cases
Jurisdiction, remedy, relief, cause of action, subject
matter (what is this?)
Place: Rules prescribing place to file may not
necessarily refer to venue but to jurisdiction as well
P20T/P50T -- subject matter
P100T/P200T -- relief
If allegations not coMplete, vulnerable to MTD
Judicial power: sum total of all courts comprising
the judiciary power of judicary of make decisions
on actual controversies.
Jurisdiction: a particular court exercising power
over a specific controversy
Flores v. Mallare Philipps, 144 SCRA
Facts: Abalos spouses sued to recover possession
of a lot in Quezon City registered in their name.
The squatters, against whom the action was filed,
lost the case in the QC RTC so they appealed to the
CA on the ground that the RTC erred in not
dismissing the case for failure to comply w/ the
Katarungang Barangay conciliation procedure. CA
granted.
Held: RTC had jurisdiction. When the Abalos
spouses filed their complaint, they placed QC as
their address. But they were able to change it to
Caloocan upon leave of ct. w/o the respondents
48
objecting. The requirement of conciliation cannot
be enforced since the property is in QC, where the
respondents reside, while the Abalos spouses live
in Caloocan (PD 1508 Sec. 20). Respondents
effectively waived their right when they failed to
object to the correction of the Abalos’ residence fr.
QC to Caloocan participated in the trial on the
merits. The fact that they argued their case &
adduced their evidence amounts to a waiver of this
defense. Once a party submits to the jurisdiction of
the ct. & participates in the trial on the merits, he
cannot thereafter, after an unfavorable judgment,
take a total turnabout & say that compliance w/ PD
1508 was not made.
FLORES V MALLARE-PHILIPPS: Example
where it is possible to allege facts in pleading that
gives rise to 2 causes of action: misjoinder of
parties
L: lack cause of action a separate case (WIT?)
Strategy: file answer for 1st cause of action; file
MTD for 2nd cause of action
CALIMLIM V RAMIREZ. Res judicata: bar by
prior judgment (diff. From estoppel)
L: General Rule: Jurisdiction is conferred by law
and thus it can be raised at any point in the
proceedings even on appeal
TIJAM rule: Estoppel by laches occurs when 2
requisites concur
a. passage of an unreasonable length of time
a. party sleep on its rights to make other party
believe that the former has abandoned his rights
Therefore, party can't raise question of jurisdiction
if he is guilty of estoppel by laches
CALIMLIM rule: W/N party asked for affirmative
relief irrelevant; what matters is whether party was
led to believe that the other party slept on his
rights. A rule on equity.
General Rule: Court can dismiss case for lack of
jurisdiction motu proprio
Ortigas & Co. v. CA 106 SCRA
Facts: Ortigas & Co. sold to Maximo Belmonte a
piece of land. Terms: Belmonte would be
considered a lessee until full payment & in case of
default he would be ejected as trespasser or
unlawful detainer. Belmonte failed to pay so an
action for unlawful detainer was field in the San
Juan MuTC, where Ortigas prayed that the
residential building constructed by Belmonte be
forfeited in its favor. Belmonte lost so he appealed
to the CFI Rizal by filing an MTD under ROC 40
Sec. 11 w/c, if granted, would in effect dismiss the
case & render judgment by MuTC invalid for lack
of jurisdiction. It was denied but an appeal to the
CA set aside the MuTC & CFI rulings. On appeal,
the SC ruled that the issues were purely legal &
should have been brought directly to the SC, but it
proceeded to adjudicate the case anyway as if
brought for the first time.

Held: MuTC had jurisdiction according to the
ruling in Fuentes & Goter vs. Muñoz-Palma. An
action for unlawful detainer, w/c is a summary
proceeding to wrest possession fr. one who has no
right thereto, is applicable only when the issue is
that of possession. According to the Judiciary Act
Sec. 44 (b), the CFI has original jurisdiction in all
civil actions w/c involve title to or possession of
real property, except actions of forcible entry &
detainer over lands or buildings where original
jurisdiction is conferred upon city or municipal cts..
This case involves not merely right of possession
but also rights of ownership over the improvements
as indicated in the prayer. CFI should have
dismissed the case when its was brought on appeal
bec. it could only have entertained the same if the
parties did not object to nor raised the question of
jurisdiction.
Dy v. CA, 195 SCRA
Facts: Ramon Roxas filed an ejectment suit in the
MeTC Makati vs. Andres & Gloria Dy where he
won. Dys appealed to the RTC, but failed. MeTC
granted immediate execution, so the next day, the
Sheriff & some policemen ejected the Dys by
throwing their belongings to the street. They filed a
motion to quash/recall of the writ of execution on
the ground that they had not received a copy of the
RTC decision. MeTC denied. CA appeal failed.
Held: There must first be copy of the RTC decision
served on the losing party before judgment is
executed. Refer to ROC 39 Sec. 1, Rules on
Summary Procedure Sec. 12 & BP 129 Sec. 22.
Proof of service of copy of judgment determines
whether or not the appeal period has lapsed. If no
appeal was filed after the copy is served, then the
decision is immediately executory as a matter of
right. A petition for review by CA of RTC
judgment may be filed only after notice of RTC
judgment has been served on the losing party. If no
notice was served, the losing party has no legal
remedy against an illegal judgment nor does the
CA have the power to prevent the execution of an
illegal order. However, the Dys cannot have the
relief prayed for since they failed to appeal after
they were served notice. Nothing is more settled
than the rule that in every litigation, the parties
thereto are entitled to due process, & if there is a
denial thereof, then the validity of the proceedings
is open to question.
Manchester Dev. Co. v. CA, 149 SCRA
Facts: MDC filed a complaint for damages &
specific performance against City Land to compel
the latter to push through w/ the sale of the land.
The amount of damages was not specified in the
prayer but was alleged in the body of the
complaint. Thus, a docket fee of only P410 was
paid on the presumption that the amount involved
was not capable of pecuniary estimation, when in
fact it was. MDC’s second counsel deleted all
mention of damages. SC ordered the reassessment
49
of docket fees. Reduced damages were still not
specified in the prayer. CA ruled that docket fees
should be based on the orig. comp.
Held: A case is deemed filed only upon payment of
docket fees regardless of the actual date of filing in
ct.. Thus, the TC did not acquire jurisdiction w/ the
payment of the P410 docket fee. An amendment of
the complaint or similar pleading will not vest
jurisdiction, much less payment of the docket fee,
based on the amount averred in the amended
pleading. The design to avoid payment is obvious
since it misled the docket clerk. All complaints,
petitions, answers, & similar pleadings should
specify the amount of damages being prayed for
not only in the pleading but also in the prayer &
said damages should be considered in the
assessment of the filing of fees in any case. Any
pleading that fails to comply w/ this requirement
shall not be accepted nor admitted, & shall be
expunged fr. the record.
Sun Insurance v. Asuncion, 170 SCRA
Facts: Sun Insurance filed a complaint in the RTC
for consignation of a premium fund on a private
fire insurance policy against Manuel Uy Po Tiong.
Manuel filed for a refund of the premium but the
amount of damages was not specified in the prayer,
although it could be inferred in the body. Thus,
only P210 docket fee was paid. SC ordered
reassessment of the docket fees. The amended
complaint stated a claim of not less than P10M in
the prayer but a second amendment raised the
amount to P44M+ w/c was admitted in ct.. Sun
questions this order.
Held: Petition dismissed for lack of merit. The
contention that Manchester ruling cannot apply
retroactively to this case is untenable. Statutes
regulating the procedure of the cts. will be
construed to apply to actions pending &
undetermined at the time of their passage.
Procedural laws are retrospective in that sense & to
that extent. It is not simply the filing of the
complaint or pleading but the payment of the
prescribed docket fee that vests the trial ct. w/
jurisdiction over the subject matter or nature of the
action. Where the TC acquires jurisdiction over a
claim w/ the filing of the appropriate pleading &
payment of the prescribed filing fee, but
subsequently the an award of an amount not
specified in the pleading, or if specified, the same
has been left for determination by the ct., the
additional filing fee shall constitute a lien on the
judgment. It shall be the responsibility of the Clerk
of Court or his duly authorized deputy to enforce
said lien & assess the additional fee.
Katarungang Pambarangay
See RA 7160 provisions
Morata v. Go, 125 SCRA 444

Facts: This was a case for the recovery of a sum of
money plus damages = P49,400.00. AA MTD was
filed bec. of failure to undergo conciliation
proceeding in the brgy. The MTD was opposed on
the ground that the law on KP covers only to those
cases falling w/in the exclusive juris. of the MTCs.
Held: There is no distinction whatsoever w/
respect to the classes of civil dispute that should be
compromised at the brgy level as
contradistinguished w/ that of the criminal cases.
Royales v. IAC, 127 SCRA 470
Facts: This is an ejectment case again in the MTC.
R, the lessee, participated in the trial & even cross-
examined the petitioner. R, then, filed a certiorari
& prohibition w/ preliminary injunction when the
decision was adverse to him.
Held: Petition denied. A party who has affirmed &
invoked the jurisdiction of a ct. in a particular
matter to secure an affirmative relief cannot,
afterwards, deny the same jurisdiction to escape a
penalty.
LECTURE ON KATARUNGANG
PAMBARANGAY
General Rule. All civil actions, regardless of
amount of relief, between parties of the same
baranggay, should undergo Katarunggang
Pambaranggay
Remedy: a) Don't arrive at a settlement
b) File case v. Lupon to compel them to
dismiss objectinable Lupon member
(This case need not undergo KP re sec. 408 (b) and
sec. 406 (a)) (WIT?)
MANCHESTER rule: full payment of docket fees
necessary for court to acquire jurisdiction
All prayers must be in the complaint, not
just in the body
Overruled LEGASPI re: installment
payments no longer allowed
SUN INSURANCE: bar problem. If there is an
honest difference of opinion as to amount of docket
fees and P is in good faith, court can grant period of
time to allow payment. Qualifies MANCHESTER
only to that extent
MANCHESTER: if award to judgment creditor is
greater than the amount prayed form, difference in
docket fees constitutes first lien.
NOTE: but no payback of excess fees even if
awarded less
L: Remember to bill your client for "incidental" or
"out of pocket" costs for sheriff's transportation,
food and vitamins
50
JURISDICTION (power to hear, try and decide
cases)
Conferred by law. Law can only be changed by
passing through Congress. Party can't amend rules
on jurisdiction by agreement or voluntary act
Jurisdiction can be raised at any time even on
appeal, after termination of case of decision
becomes final and executory, subject to rules on
prescription. Raise issues of jurisdiction via a
MTD (Rule 16) but court can act motu proprio.
Rule on place not necessarily a rule on venue.
TIJAM. Bar problem. Qualifies who can raise
matters of jurisdiction. If estopped by laches, can't
file MTD in equity
JURISDICTION. May be subject to nature of
1. Cause of action - eg. Admiralty cases, domestic
violence
1. Relief
1. Subject matter (thing over which the rights and
duties occur - eg. rights or title to real property >
P50 T; claims incapable of pecuniary estimation
1. Remedy - eg. forcible entry and unlawful
detainer, review by certiorari; BULAO v CA
Jurisdiction, once acquired, is never lost.
Exception: DY V CA. Court violates constitution;
ousted from jurisdiction.
NOTE: judgment still valid, no jurisdiction only for
purposes of issuing writ of execution due to lack of
notice to party
WORD GAME:
Conferment of Jurisdiction: law prescribes
jurisdiction
Acquisition of Jurisdiction: Rule 1 Section 5:
Filing of complaint vests court with jurisdiction
over res. Summons vests court with jurisdiction
over the corpus.
NOTE: filing of complaint happens upon full
payment of docket fees
CONDITIONS PRECEDENT
NOTE: Failure to undergo Katarunggang
Pambarangay not issue of jurisdiction Sec. 412
Loc. Government Code; neither a defect in
jurisdiction but vulnerable to a MTD (Rule 16 sec.
J) for failure to undergo condition precedent.
Failure to undergo condition precedent
can only be raised in a MTD or as an affirmative
defense
Summary Procedure
Rules on Summary Procedure (Oct. '91)
Del Rosario v. CA, 241 SCRA 519 ('95)
Held: The presence of an action for quieting of
title does not divest the MeTC of original

jurisdiction over the ejectment case. An ejectment
case (possession de facto) is independent of any
claim of ownership (possession de jure). Under the
revised Summary Procedure (Nov. 15, 1991) all
types of ejectment cases are now covered by it
regardless of whether or not the issue of ownership
of subject property is pleaded by a party. No
hearings are required in this procedure. The
adjudication of cases here are done on the basis of
affidavits & position papers.
SUMMARY PROCEDURE
Remedy for forcible entry, unlawful detainer, <
P10,000
Katarunggang Pambaranggay condition precedent
before parties can obtain judicial relief
Not apply to ordinary civil actions in RTC
Summary Procedure
Ordinary Civil Action
Pleadings Allowed
Verified complaint
Compulsory counterclaim
Answer to complaint
Crossclaim v existing defendant
Complaint
Counterclaim
a. Compulsory(relates to transaction)
a. Permissive (not related)
Crossclaim
Third party claim
Intervention
Answer
Reply
Answer
File answer w/in 10 days of service of summons
File answer w/in 15 days of service of summons
Can court act motu proprio in dismissing the case?
YES. Court can act motu proprio and dismiss
NO. Court cannot dismiss action motu proprio but
must wait for MTD
Effect of other party's failure to file an answer
Get judgment. No need for motion for default or
order for default
File a motion to declare the other party in default
Preliminary Conference not later than 30 days
Effect of P's failure to appear
Cause for dismissal
Counterclaim barred
Main Action dismissed but Compulsory
Counterclaim not dismissed. D gets judgment
Cause for dismissal with prejudice
Main action dismissed and Compulsory
counterclaim also dismissed
Process
Submit position papers and affidavits 10 days from
receipt of pre-trail order
51
L: on those affidavits hinge your entire case so
pray (Angel of God, hindi motion) that the court
ask for clarificatory affidavits (motu proprio)
Extension of time not allowed
You figure it out.
Contents of Affidavits
State facts
Show competence to testify
Show admissibility of witness
Absent these: affidavits excluded and lawyer may
be subject to disciplinary action
Prohibited Motions
MTD on sec. 16 except lack of jurisdiction
Bill of particulars
New judgment
Periods
No time period from beginning to end but
mandatory periods in between
Rule 2
Actions in General
Section 1. Ordinary civil actions, basis of. - Every
ordinary civil action must be based on a cause of
action.
Section 2. Cause of action, defined. - A cause of
action is the act or omission by which a party
violates a right of another.
Section 3. One suit for a single cause of action. - A
party may not institute more than one suit for a
single cause of action.
Section 4. Splitting a single cause of action; effect
of. - If two or more suits are instituted on the basis
of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as
a ground for the dismissal of the others.
Section 5. Joinder of causes of action. - A party
may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions:
(a) The party joining the causes of action
shall comply with the rules on joinder of parties;
(b) The joinder shall not include special
civil actions or actions governed by special rules;
(c) Where the causes of action are
between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed
in the Regional Trial Court provided one of the
causes of action falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the causes of
action are principally for recovery of money, the

aggregate amount claimed shall be the test of
jurisdiction.
Section 6. Misjoinder of causes of action. -
Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action
may, on motion of a party or on the initiative of the
court, be severed and proceeded with separately.
Joseph v. Bautista, 170 SCRA 540 ('89)
FACTS: Joseph was a paying passenger in a cargo
truck. The cargo truck tried to overtake a tricycle
proceeding in the same direction. At the same time,
a pick-up truck tried to overtake the cargo truck,
thus the cargo truck was forced to veer towards the
shoulder of the road & rammed a mango tree in the
process. Joseph sustained a bone fracture in one of
his legs. Joseph sued the owner of the cargo truck
for breach of the contract of carriage & the owner
of the pick-up for quasi-delict for injuries he
sustained. The owner of the pick-up paid Joseph
the amount he was claiming thru a settlement
agreement. Joseph still wants to maintain the action
vs. the truck owner claiming that he still has
another cause of action vs. the latter, for breach of
contract of carriage.
HELD: When there is only one delict or wrong
(i.e. one injury), there is only one cause of action
regardless of the number of rights that may have
been violated belonging to one person (violation of
contract of carriage & quasi-delict).
The singleness of a cause of action lies in
the singleness of the delict or wrong violating the
rights of one person. Nevertheless, if only one
injury resulted fr. several acts, only 1 cause of
action arises. In this case, the petitioner sustained a
single injury on his person. That vested in him a
single cause of action, albeit w/ the correlative
rights of action vs. the different respondents thru
appropriate remedies allowed by law.
The resps. having been found to be
solidarily liable to the pet., the full payment made
by some of the solidary debtors & their subsequent
release fr. any & all liability to pet. inevitably
resulted in the extinguishment & release fr. liability
of other solidary debtors.
JOSEPH V BAUTISTA: NCC 2177: Bar v double
recovery
City of Bacolod v. SM Brewery 29 SCRA
FACTS: The City of BCD passed an ordinance
imposing a bottling tax for every case of soft drinks
sold. For delinquency in paying said tax, a
surcharge was to be imposed. For failure to pay
said taxes on time, City of BCD sued SMB. The
SC ruled in favor of the City & ordered SMB to
pay taxes. Later, the City of BCD filed a second
complaint vs. SMB to recover the surcharges it
forgot to claim in the first case.
52
HELD: SMB’s failure to pay the taxes violated the
City’s right to be paid. Thus, there was a single
cause of action. However, under the ordinance, the
City became entitled to 2 reliefs: payment of taxes
& the corresponding surcharges. The act of the City
of filing separate complaints for each of the two
reliefs related to the same single cause of action
resulted in the splitting of the cause of action.
Under the rule that a party may not institute more
than 1 suit for a single cause of action, the City’s
2nd complaint is barred by res judicata.
Bayang v. CA, 148 SCRA 91 ('87)
FACTS: Bayang sued Biong for Quieting of Title
w/ damages in 1969, w/c resulted in a ruling in his
favor in 1978. In 1978, Bayang sued Biong again
but this time for the income earned fr. the land
while it was still in the latter’s possession fr. 1970
to 1978.
HELD: The subject matter in the 2 cases are
essentially the same as the income is only a
consequence or accessory of the disputed property.
The claim for income fr. the land is incidental to,
& should have been raised by Bayang in his earlier
claim for ownership of the land. As the filing of the
2 cases constitute splitting of the cause of action,
the 2nd case is barred by the 1st. Also, for about 7
years, the petitioner made no move at all to amend
his complaint to include a claim for the income
supposedly received by private resp. during that
period. He did not make the proper claim at the
proper time & in the proper proceeding. Whatever
right he might have had is now deemed waived
bec. of his negligence.
Enriquez v. Ramos, 7 SCRA 265 ('63)
FACTS: Enriquez sold to Ramos 11 parcels of land
for P101,000. Ramos paid 5,000 as down
payment.( 2,500-cash, 2,500-check). To secure the
96,000 balance, Ramos mortgaged the land to the
vendors. Enriquez filed a complaint vs. Ramos for
stopping the ;payment of the check. Enriquez filed
another case for foreclosure of the mortgage due to
Ramos’ failure to comply w/ it’s conditions. Ramos
now moves to dismiss the 2nd case on grounds that
Enriquez split the cause of action.
HELD: An examination of the 1st complaint shows
it was based on appellant’s having unlawfully
stopped payment of the check for P2,500 she had
issued in favor of appellees; while the complaint in
the first action is for the non-payment of the
balance of 96,000 guaranteed by the mortgage. The
claim for 2,500 was therefore a distinct debt not
covered by security; the security was for the
balance of the purchase price amounting to 96,000.
Therefore, there is no splitting of C of A in this
case.
Cuevas v. Pineda, 143 SCRA 674 ('86)

FACTS. Priv. Resps. filed a complaint in the CFI
for quieting of title alleging that they are the heirs
of Igaya &, as such, are the rightful owners of the
parcels of land. They came to know that petitioners
have caused the preparation of a table-survey plan
of the lots in the name of Cancio (prepared by
Roxas for Cuevas). Petitioners then filed an
Application for Free Patent for the lots, w/c was
granted. Priv. resps. filed an administrative protest
w/ the Bureau of Lands & Register of Deeds,
seeking the recall & cancellation of the free
patents. They then prayed for the issuance of writ
of preliminary injunction to declare null & void the
free patents & be declared as the absolute owners.
This was granted upon the posting of a bond.
Meanwhile, a hearing on the protest did not
materialize as the ct. had already issued the writ of
preliminary injunction. Did the ct. actually acquire
jurisdiction over the complaint?
HELD: Resps. have assumed inconsistent
positions. After filing an administrative protest w/
the BoL, claiming the lands belong to them, they
questioned the jurisdiction w/c they invoked of
that same agency, claiming that it is the cts. & not
the administrative tribunal that should settle the
issue. At this time, both parties had already invoked
the jurisdxn. of BoL, alleging that since the BoL,
w/c had jurisdiction over the case, had already
issued the free patents, the land had become
private. Orderly procedure requires that BoL, on a
matter w/in its competence & expertise, should first
resolve the issues before it.
CUEVAS V PINEDA: Petition for Certiorari was
dismissed on the ground of non-exhaustion of
administrative remedies, not for lack of cause of
action: was dismissed due to primary
administrative jurisdiction = failure to undergo
condition precedent
L: We are concerned with law, not with justice,
which is why we're not called the College of Justice
but the College of Law. Technique lang lahat iyan.
LECTURE ON ACTIONS
Action : Remedy /
Process
Cause of Action : Basis to file an
action Rule 2 sec. 2
Prohibition against splitting a single cause of
action:
1. Prevent multiplicity of suits
1. Prevent indirect violation / avoidance of res
judicata rule
Remedy: Instead, file cause of action and ask for
different reliefs
BAYANG: File supplemental pleading for new
relief or file amendment to pleading to introduce
new facts which arose after filing
WORD GAME:
REMEDY: Procedure
53
RELIEF: Specific things asked from court or right
granted by a specific court due to violation of
another right
Rule 3
Parties
Section 1. Who may be parties; plaintiff and
defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil
action. The term “plaintiff’ may refer to the
claiming party, the counter-claimant, the cross-
claimant, or the third (fourth etc.)-party plaintiff.
The term “defendant” may refer to the original
defending party, the defendant in a counterclaim,
the cross-defendant, or the third (fourth, etc.)-party
defendant.
Section 2. Parties in interest. - A real party in
interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party
entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must
be prosecuted or defended in the name of the real
party in interest.
Section 3. Representatives as parties. - Where the
action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the real
party in interest. A representative may be a trustee
of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be
sued without joining the principal except when the
contract involves things belonging to the principal.
Section 4. Spouses as parties. - Husband and wife
shall sue or be sued jointly, except as provided by
law.
Section 5. Minor or incompetent persons. - A
minor or a person alleged to be incompetent, may
sue or be sued, with the assistance of his father,
mother, guardian, or if he has none, a guardian ad
litem.
Section 6. Permissive joinder of parties. - All
persons in whom or against whom any right to
relief in respect to or arising out of the same
transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in

these Rules, join as plaintiffs or be joined as
defendants, in one complaint, where any question
of law or fact common to all such plaintiffs or to all
such defendants, may arise in the action; but the
court may make such orders as may be just to
prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with
any proceedings in which he may have no interest.
Section 7. Compulsory joinder of indispensable
parties. - Parties in interest without whom no final
determination can be had of an action shall be
joined either as plaintiffs or defendants.
Section 8. Necessary party. - A necessary party is
one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded
as to those already parties, or for a complete
determination or settlement of the claim subject of
the action.
Section 9. Non-joinder of necessary parties to be
pleaded. - Whenever in any pleading in which a
claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
The failure to comply with the order for
his inclusion, without justifiable cause shall be
deemed a waiver of the claim against such party.
The non-inclusion of a necessary party
does not prevent the court from proceeding in the
action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party.
section 10. Unwilling co-plaintiff. - If the consent
of nay party who should be joined as plaintiff can
not be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint.
Section 11. Misjoinder and non-joinder of parties.
- Neither misjoinder or non-joinder of parties is
ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion
of any party or on its own initiative at any stage of
the action and on such terms as are just. Any claim
against a misjoined party may be severed and
proceeded with separately.
Section 12. Class suit. - When the subject matter of
the controversy is one of common or general
interest to many persons so numerous that it is
impracticable to join all as parties, a number of
them which the court finds to be sufficiently
numerous and representative as to fully protect the
interest of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the
right to intervene to protect his individual interest.
54
Section 13. Alternative defendants. - Where the
plaintiff is uncertain against who of several persons
he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a
right to relief against one may be inconsistent with
a right of relief against the other.
Section 14. Unknown identity or name of
defendant. - Whenever the identity or name of a
defendant is unknown, he may be sued as the
unknown owner, heir, devisee, or by such other
designation as the case may require; when his
identity or true name is discovered, the pleading
must be amended accordingly.
Section 15. Entity without juridical personality as
defendant. - When two or more persons not
organized as an entity with juridical personality
enter into a transaction, they may be sued under the
name by which they are generally or commonly
known.
In the answer of such defendant the names
and addresses or persons composing said entity
must all be revealed.
Section 16. Death of party, duty of counsel. -
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the
duty of his counsel to inform the court within thirty
(3) days after such death of the fact thereof, and to
give the name and address of his legal
representative or representatives. Failure of
counsel to comply with this duty shall be a ground
for disciplinary action.
The heirs of the deceased may be allowed
to be substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint a guardian
ad litem for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice.
If no legal representative is named by the
counsel for the deceased party, or if the one s
named shall fail to appear within the specified
period, the court may order the opposing party
within a specified time, to procure the appointment
of an executor or administrator for the estate of the
deceased and the latter shall immediately appear
for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed
by the opposing party, may be recovered as costs.
Section 17. Death or separation of a party who is a
public officer. - When a public officer is a party in
an action in his official capacity and during its
pendency dies, resigns, or otherwise ceased to hold
office, the action may be continued and maintained
by or against his successor if, within thirty (30)
days after the successor takes office or such time as
may be granted by the court, it is satisfactorily

shown to the court by any party that there is a
substantial need for continuing or maintaining it
and that the successor adopts or continues or
threatens to adopt or continue the action of his
predecessor. Before a substitution is made, the
party or officer to be affected, unless expressly
assenting thereto, shall be given reasonable notice
of the application therefor and accorded an
opportunity to be heard.
Section 18. Incompetency or incapacity. - If a
party becomes incompetent or incapacitated, the
court, upon motion with notice, may allow the
action to be continued by or against the
incompetent or incapacitated person assisted by his
legal guardian or guardian ad litem.
Section 19. Transfer of interest. - In case of any
transfer of interest, the actin may be continued by
or against the original party, unless the court upon
motion directs the person to whom the interest is
transferred to be substituted in the action or joined
with the original party.
Section 20. Action on contractual money claims. -
When the action is for recovery of money arising
from contract, express or implied , and the
defendant dies before entry of final judgment in the
court in which the action was pending at the time
of such death, it shall not be dismissed but shall
instead be allowed to continue until entry or final
judgment. A favorable judgment obtained by the
plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting
claims against the estate of a deceased person.
Section 21. Indigent party. - A party may be
authorized to litigate his action, claim or defense as
an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is
one who has no money or property sufficient and
available for food, shelter and basic necessities for
himself and his family.
Such authority shall include an exemption
from payment of docket and other lawful fees, and
of transcripts of stenographic notes which the court
may order to be furnished him The amount of the
docket and other lawful fees which the indigent
was exempted from paying shall be alien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
Any adverse party may contest the grant
of such authority at any time before judgment is
rendered by the trial court. If the court should
determine after hearing that the party declared as
an indigent is in fact a person with sufficient
income or property, the proper docket and other
lawful fees shall be assessed and collected by the
clerk of court. If payment is not made within the
time fixed by the court, execution shall issue or the
payment thereof; without prejudice to such other
sanctions as the court may impose.
55
Section 22. Notice to the Solicitor General. - In
any action involving the validity of any treaty, law,
ordinance, executive, order, presidential decree,
rules or regulations, the court in its discretion, may
require the appearance of the Solicitor General who
may be heard in person or through a representative
duly designated by him.
Filipinas Industrial Corp. v. Sn. Diego, 23
SCRA 706 ('68)
FACTS: Pastor Ago filed a complaint vs. petitioner
in his name as atty. in fact of Laiz. Petitioner filed a
MTD on the ground that action was not brought in
the name of the real party in interest.
HELD: Under the RoC, every action must be
brought in the name of the real party in interest.
This provision is mandatory. The real party in
interest is the party who would be benefited or
injured by the judgment or is the party entitled to
the avails of the suit. An atty.-in-fact is NOT a real
party in interest; there is no law permitting an
action to be brought by an atty.-in-fact & hence, an
action brought by him cannot be maintained. Even
if the principal authorizes his agent to commence
actions in a ct. for & in behalf of the principal,
such action must still be filed in the name of the
principal who is the real party in interest.
FILIPINAS: Case dismissed due to lack of cause
of action; not due to non-joinder of parties. Atty-in-
fact can't represent principal in the case since atty-
in-fact was not the one injured
REPRESENTATIVE PARTIES: Not the real
parties but are allowed by law or the Rules to sue
on behalf of the principal
Example of representative party authorized by the
Rules: Class suit
Plaintiffs sue in 2 capacities: 1) themselves; 2) on
behalf of the parties of the class or those with an
interest in the subject matter of the suit but are too
numerous to be brought in the suit (OPOSA V
FACTORAN)
L: What if defendant is a volleyball player of a
sportsfest and the plaintiff wants to sue all
participants of the sportsfest?
A: Identify all and do not apply sec. 15 since
identifiable and also a volleyball team is not a
proper juridical entity
JOINDER OF PARTIES (Sec. 6) not necessary
that parties be indispensable or necessary parties
a. Necessary or proper party (Sec. 8) Case may
proceed, only plaintiff may not be able to obtain
complete relief
Aranico-Rabino v. Aquino, 80 SCRA 254 ('77)

Facts: Petitioners filed a complaint for recovery of
a lot w/c priv. resp. claims to be owned by one
Meimban & his successors-in-interest. The ct.
ordered the complaint be amended to include all
the heirs of the late Meimban in order that there
will be a final adjudication of the rights of the
parties in the case. Counsel for petners. refused.
Held: The heirs of Meimban are indispensable
parties who should be included in the complaint in
order that there will be a final adjudication of the
rights of the parties in their case.
ARANICO: Dismissal not due to failure to
implead a party but due to contumacious refusal to
comply with the order of the court; misjoiner or
non-joinder is not basis for the dismissal of case
Laperal Dev. Co. v. CA, 223 SCRA 261 ('93)
Facts: Counsel sought recovery of atty.’s fees fr.
Sunbeams Foods referred to in the complaint as
“Mr. Laperal’s Corporation” but w/c was not joined
by name as a party-defendant.
Held: Sunbeams should have been joined as a
party-deft. in order that the judgment of the lower
ct. could legally affect it. But even if it was not
impleaded, the ct. could still validly proceed w/ the
case bec. Sunbeams was not an indispensable party
but only a proper party. A proper party is one w/c
ought to be a party if complete relief is to be
accorded as between those already parties. A party
is indispensable if no final determination can be
had of an action unless it is joined either as plff. or
deft.
FILIPINAS INDUSTRIAL - Indispensable
LAPERAL DEVT V CA - Proper party. Sunbeam
only a necessary party and therefore not a party to
the compromise agreement. But atty can't collect
atty's fees since there was a udicial admission as to
waiver of all claims
Barfel Dev. Co. v. CA, 223 SCRA 268 ('93)
Facts: Barfel (seller) & Reginas (seller) concluded
an agreement to buy/sell 2 parcels of land w/c the
former warranted to be free fr. liens &
encumbrances except for the BPI mortgage.
Reginas found out later that there was a second
mortgage in favor of PISO Bank. Things went sour
& Reginas found out that Barfel was selling the
land to other parties. Reginas brought suit. Reginas
filed an amended complaint impleading PISO as
additional party.
Held: The reason for the amendment impleading
PISO is to compel the latter to accept payment &
release the 2nd mortgage thereby enabling Barfel to
deliver to Reginas the titles free fr. all liens &
encumbrances. But, PISO is NOT a party to the
contracts w/c are the subject of the action for
specific performance & damages between Barfel &
Reginas. PISO is not a party to the transactions &
56
is thus not an indispensable party. PISO is a 2nd
mortgagee, whatever the outcome of the litigation
between Reginas & Barfel. A “real interest” means
a present substantial interest, as distinguished fr. a
mere expectancy or a future, contingent,
subordinate or consequential interest. Complete
relief by Reginas vs. Barfel can be had even if
PISO was not impleaded as a party deft in the
original case.
Also, amendment sought is a substantial
one. Priv. resp. will have to present additional
evidence on PISO. Effect would be to start trial
anew w/ parties recasting theories of the case.
BARFEL: disclosure, not existence of 2nd
mortgage is the issue. The 2nd mortgagee is liable
to plaintiff in Contract to Purchase. Not a proper
party. Mortgages follow property wherever it goes,
thus, PISO can't become a party since there is no
cause of action against it.
b. Indispensable (Sec. 7) If not impleaded, case
cannot proceed since there can be no final
determination
Oposa v. Factoran, 224 SCRA 792 ('93)
Facts: Plaintiffs-minors duly represented & joined
by their parents instituted this taxpayers’ class suit
vs. the Secretary of DENR to order the latter to
cancel of timber license agreements (TLA) & to
cease & desist fr. renewing & granting new TLAs.
The suit was filed for themselves & others who are
equally concerned about the preservation of natural
resources but are so numerous that it is
impracticable to bring them all before the ct.. The
minors also asseverate that they represent their
generation as well as the generations yet unborn.
Held: The case is a class suit: the subject matter of
the complaint is of common & general interest not
just several but to all citizens of the Phils. Parties
are so numerous that it is impracticable, if not
totally impossible, to bring them all before the ct..
Plaintiffs are so numerous & representative enough
to insure full protection of all concerned interests.
Petitioner-minors can, for themselves, for
others of their generation, & for the succeeding
generation, file a class suit. Their personality to
sue in behalf of succeeding generations can only be
based on the concept of intergenerational
responsibility insofar as the right to a balanced &
healthful ecology is concerned. Every generation
has a responsibility to preserve the rhythm &
harmony for the full enjoyment of a balanced &
healthful ecology. The minor’s assertion of their
right to a sound environment constitutes, at the
same time, the performance of their obligation to
ensure the protection of that right for the
generations to come.
OPOSA V FACTORAN. Are unborn children w/
capacity to be party to a suit? No, but purposes of
this class suit, SC used intergenerational

responsibility argument. Limit Consti Art 11 sec.
16 to ecological suits. L's note: no legal basis,
natural law only. Also, other Art. 11 provisions
hortatory and not basis for a class action suit. Not
all taxpayers' suits are class suits
L: Is the environment property? Note: not need to
be property to be subject of a suit.
Mathay v. Consolidated Bank, 58 SCRA 559
('74)
Facts: The stockholders of Consolidated Mines
filed a class suit vs. the Board of Organizers of
Consolidated Bank of alleged anomalies in the
incorporation of the latter to w/c the stockholders
were subscribers.
Held: The necessary elements for the maintenance
of a class suit are: (1) the subject matter of the
controversy be one of common or general interest
to many persons; & (2) such persons be so
numerous as to make it impracticable to bring them
all in ct.. An action does not become a class suit
bec. it is designated as such in the pleadings: it
depends upon the attending facts & the complaint,
or other pleading initiating the class action should
allege the existence of the necessary facts.
As to the 1st element: the interest that
appellants-plff. & intervenors & the CMI
stockholders had in the subject matter was several,
not common or general in the sense required by
law. Each one had a determinable interest, each
had a right, if any, only to his respective portion of
the stocks None of them had an interest, or a right
to, the stock to w/c another was entitled.
As to the 2nd element, the number of said
CMI subscribing stockholder was not stated in the
complaint. Thus, the ct. could not infer or make
sure that the parties before it were sufficiently
numerous & representative.
Veterans Manpower & Protective Services v,
CA, 214 SCRA 286 ('92)
FACTS: Petitioner filed a complaint vs. the PC
Chief & PC-SUSIA, government agencies
regulating security services, to compel said
agencies to issue licenses to petitioner.
HELD: The State may not be sued w/o its consent.
Invoking this rule, the PC Chief & PC- SUSIA,
being instrumentalities of the national gov’t.
exercising a primarily governmental function may
not be sued w/o the Gov’t’s consent. This doctrine
is also applicable to complaints filed vs. officials of
the state for acts allegedly performed by them in
the discharge of their duties.
A public official may sometimes be held in his
personal or private capacity if he acts in bad faith
or beyond his authority or jurisdiction. In this case,
however, the acts were performed as part of official
duties w/o malice, gross negligence or bad faith.
Thus, no recovery may be had vs. them in their
private capacity as well.
57
LECTURE ON PARTIES: Remedies available for
certain situations. L at his most practical.
1. P not the real party in interest but act as a
plaintiff
Counsel for D: MTD since no cause of action. No
injury v his person
1. X an Indispensable party but P refuses to bring
him in as an indispensable party
Eg. Co-owner sues for partition of property owned
in common; thus, he must implead all co-owners in
order that final determination might be made.
What if P sues only 1 co-owner? (ARANICO-
RABINO)
Counsel for D: Plan A) Motion to implead the
other co-owners
Plan B) If court refuses to implead the other co-
owners, file MTD for lack of due process for
failure to implead an indispensable party
Plan C) Go to CA for certiorari on grounds of
grave abuse of discretion on part of trial court
judge for refusing to iplead indispensable party w/o
whom there can be no final determination of the
case.
To determine whether or not a party is
indispensable:
Proper joinder of parties: Parties necessary
Permissive joinder of parties: not necessarily
imply that parties indispensable or necessary
Rule 3 sec. 6 same transaction or common question
of law or fact is involved
1. Party becomes insane
Counsel for D: Rule 3 sec. 18 file motion to bring
guardian of insane party brought in as a
representative. If insane > 18 years old, ask for
guardian ad litem
1. Party dies. His counsel duty bound to inform
court of such fact and of his legal representative
If there is no rep, court will order Counsel for D to
procure appointment of executor or administrator
NOTE: Personal action: remedy filed where cause
of action involves personal property or right.
Subject matter involves personal property and
others. Not a real action which involves title to or
possession of real property. Important for proper
venue
Rule 4
Venue
Section 1. Venue of real actions. - Actions
affecting title to or possession of real property, or
interest therein, shall be commenced and tried in
the proper court which has jurisdiction over the
 58

area wherein the real property involved, or a
portion thereof, is situated.
Forcible entry and detainer actions shall
be commenced and tried in the municipal trial court
of the municipality or city wherein the real
property involved, or a portion thereof, is situated.
Section 2. Venue of personal actions. - All other
actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal
defendants resides, or in the case of a non-resident
defendant where he may be found, at the election
of the plaintiff.
Section 3. Venue of actions against nonresidents. -
If any of the defendants does not reside and ins not
found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of
said defendant located in the Philippines, the action
may be commenced and tried in the court of the
place where the plaintiff resides, or where the
property of any portion thereof is situated or found.
Section 4. When Rule not applicable. - This Rule
shall not apply -
(a) In those cases where a specific rule or
law provides otherwise; or
(b) Where the parties have validly agreed
in writing before the filing of the action on the
exclusive venue thereof.
Diaz v. Adiong, 219 SCRA 631 ('93)
Facts: Certain public officers instituted separate
criminal & civil complaints arising fr. libel vs. the
publisher & editor of the Mindanao Kris, a
newspaper of general circulation in Cotabato City
in the RTC of Marawi City. Diaz claims it should
not be in Marawi since the resps. didn’t hold office
there; nor was the article published there.
responsive pleading is filed (Sec. 1 Rule 16).
Otherwise, it may be deemed waived.
LECTURE ON VENUE:
Exceptions:
1. non-resident
a) where P resides or
a) b) where property or port6ion thereof is situated
or found
1. when a specific Rule or Law provides otherwise
1. when parties validly agreed in writing before
filing of action in the exclusive venue thereof
L: state in agreement "shall exclusively be" or
"shall only be"; if not phrased this way, can still sue
elsewhere
Person dies (governed by Rule 87) action
dismissed in cases where decedent is required to
personally perform his obligation, where his estate
or his heirs' defense is that the relief cannot be
complied with. If action is for a sum of money, file
it as a creditor in the settlement of estate
proceedings
Pauper litigant: one who has no money or property
sufficient and available for food, shelter and basic
necessities is exempted from payment of fees.
Counsel for D: contest indigent status of party by
filing a motion to reverse order declaring party as
pauper litigant
THE CLAIM-ANSWER-COUNTERCLAIM-
REPLY-CROSSCLAIM-LABYRINTH
P files Complaint So D
files answer
D files
counterclaim
So P files Answer to counterclaim
P then files Amended Complaint due to new
matters raised
So D
files an amended answer called a reply

A third guy files a CROSSCLAIM against

Held: An offended party who is at the same time a D
public official can only institute an action arising fr.
So D
libel in 2 venues: the place where he holds office &
the place where the alleged libelous articles were files an answer to the crossclaim
printed & first published. In this case, although it And
is indubitable that venue was improperly laid, he files his own crossclaim against Third
unless & until the deft. objects to the venue in a While P files his Answer to the 3rd Party
MTD prior to a responsive pleading, the venue Complaint
cannot truly be said to have been improperly laid
since, for all practical intents & purposes, the
venue through technically wrong may yet be THE OGDEN CASE
considered acceptable to the parties for whose
convenience the rules on venue had been devised.
The laying of venue is procedural rather OGDEN-BECTEL
than substantive, relating as it does to jurisdiction
of the ct. over the person rather than the subject FILIPINO LANDOWNERS
matter. Venue relates to trial not to jurisdiction. Cause of action
The rule, therefore, is that objections to improper X breach of contract
venue must be made in a MTD before any
RULE 5

VENUE
Section 1. Uniform procedure. - The procedure in
the Municipal Trial Courts shall be the same as in
the Regional Trial Courts, except (a) where a
particular provision expressly or impliedy applies
only to either of said courts, or (b) in civil cases
governed by the Rule on Summary Procedure.
Section 2. Meaning of terms. - The term
“Municipal Trial Courts” as used in these rules
shall include Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts.
Rule 6
Pleadings
(Substantial Requirements)
NOTES OF ANZIE-GIRL:
PLEADINGS
Definition
Rule 6, Sec. 1.
Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment
Allowed Pleadings
Rule 6, Sec. 2
The claims of a party are asserted in a
complaint, counter-claim, cross-claim, third
(fourth, etc.) party complaint, or complaint - in -
intervention.
The defenses of a party are alleged in the
answer to the pleading asserting a claim against
him.
An answer may be responded to by a
reply.
Liberal construction
Gerales v. CA, 218 SCRA 638
('93)
Facts: Counsel for petitioner: Sir Luigi, este,
Camacho pala) A vehicular accident occurred
resulting in respondent filing a case for damage to
property. Two cases were filed, criminal & civil.
The crim. case was dismissed beech. the parties
entered into an amicable settlement. The civil case
continued but resp. was declared in default for
failure to file an answer. What respondent did was
merely to send a letter to the Clerk of Court
informing the ct. about the amicable settlement.
Held: The trial ct. should have considered the
letter as a responsive pleading even if it lacks the
formalities required by law. The letter contains an
affirmative defense, i.e. mutual settlement w/c, if
proven in preliminary hearing would constitute a
meritorious defense barring pet. fr. recovery.
Pleadings as well as remedial laws should be
liberally construed in order that the litigant may
59
have ample opportunity to prove their respective
claims & to prevent possible denial of substantive
due process. Litigations should be decided on the
merits not merely on technicality.
How allegations made
In General
Rule 8, Sec. 1
Every pleading shall contain in a
methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere
evidentiary facts.
If a defense relied on is based on law, the
pertinent provisions thereof and their applicability
to him shall be clearly and concisely stated.
Capacity
Rule 8, Sec. 4
Facts showing the capacity of a party to
sue or be sued or the authority of a prty to sue or be
sued in a representative capacity or the legal
existence of an organized association of persons
that is made a party, must be averred. A prty
desiring to raise an issue as to the legal existence of
any party or the capacity of any party to sue or be
sued in a representative capacity, shall do so by
specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's
knowledge.
Alternative claims and defenses
Rule 8, Sec. 2
A party may set forth two or more
statements of a claim or defense alternatively or
hypothetically, either in one cause of action or
defense or in separate causes of action or defenses.
When two or more statements are made in the
alternative and one of them if made independently
would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of
the alternative statements.
Conditions precedent
Rule 8, Sec. 3
In any pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient.
Fraud and Mistake
Rule 8, Sec. 5
In all averments of fraud or mistake, the
circumstances constituting the fraud or mistake
must be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a
person may be averred generally.
Condition of mind
Rule 8, Sec. 5 supra.
Judgments

Rule 8, Sec. 6
In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial
tribunal, or of a board or officer, it is sufficient to
aver the judgment or decision without setting forth
the matter showing jurisdiction to render it.
Official Documents
Rule 8, Sec. 9
In pleading an official document or
official act, it is sufficient to aver that the document
was issued or the act done in compliance with law.
Complaint
Defined and in general
Rule 6, Sec. 3
The complaint is the pleading alleging the
plaintiff's cause or causes of action. The names and
residences of the plaintiff and defendant must be
stated in the complaint.
Tantuico v. Republic, 204 SCRA 428 ('91)
Facts: A case was filed by the PCGG vs. the
Marcoses & Tantuico, the latter on the theory that
he collaborated & aided the Marcoses in concealing
the ill-gotten wealth. Tantuico filed a motion for a
bill of particulars. The SolGen opposed the motion
saying that the matters sought by Tantuico are
evidentiary in nature & that the complaint was
sufficient as it contains the essential elements of a
cause of action.
Held: A complaint is defined as a concise
statement of the ultimate facts constituting the
plaintiff’s cause or causes of action. Its office or
purpose is to inform the defendant clearly &
definitely of the claims made vs. him so that he
may be prepared to meet the issues at trial. The
complaint should inform the defendant all the
material facts on w/c the plaintiffs rely to support
his demand The complaint should inform the
defendant of all the material facts on w/c the
plaintiff relies to support his demand; it should
state the theory of a cause of action w/c forms the
bases of the plaintiffs claim of liability. The rules
on pleading speak of two (2) kinds of facts: the
first, the "ultimate facts", & the second, the
"evidentiary facts." The term "ultimate facts" as
used in Sec. 3, Rule 3 of the Rules of Court, means
the essential facts constituting the plaintiffs cause
of action.
TEST: A fact is essential if it cannot be stricken
out w/o leaving the statement of the cause of
action insufficient....
Ultimate facts are important & substantial facts
w/c either directly form the basis of the primary
right & duty, or w/c directly make up the wrongful
acts or omissions of the defendant. The term does
not refer to the details of probative matter or
particulars of evidence by w/c these material
60
elements are to be established. It refers to
principal, determinate, constitutive facts, upon the
existence of w/c, the entire cause of action rests.
"Evidentiary facts" are those facts w/c are
necessary for determination of the ultimate facts;
they are the premises upon w/c conclusions of
ultimate facts are based.
Where the complaint states ultimate facts that
constitute the three (3) essential elements of a
cause of action, namely: (1) the legal right of the
plaintiff, (2) the correlative obligation of the
defendant, & (3) the act or omission of the
defendant in violation of said legal right, the
complaint states a cause of action, otherwise, the
complaint must succumb to a motion to dismiss on
that ground of failure to state a cause of action.
However, where the allegations of the complaint
are vague, indefinite, or in the form of conclusions,
the proper recourse would be, not a motion to
dismiss, but a motion for a bill of particulars.
Allegations
In general
Rule 8, Sec. 1
Every pleading shall contain in a
methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere
evidentiary facts.
If a defense relied on is based on law, the
pertinent provisions thereof and their applicability
to him shall be clearly and concisely stated.
Metropolitan Bank v. Quilts, 222 SCRA 486
('93)
Facts: The property of Quilts was mortgaged to
Metrobank to secure a personal loan of its pres.
Dizon. Quilts asked for the cancellation of the
mortgage on the ground that Dizon had no
authority to mortgage the property. Metrobank
refused. Quilts filed an action vs. Metrobank for
the annulment & cancellation of the mortgage.
Metrobank moved to dismiss the complaint for
failure to state a cause of action as the complaint
merely contained a single par. alleging that
Metrobank committed illegal acts vs. Quilts.
Held: The complaint filed vs. Metrobank does not
contain sufficient COA. The complaint expresses
legal conclusions & not averments or allegations of
ultimate facts. The ultimate facts upon w/c such
conclusions rest must be alleged. In CAB, the bare
allegations neither establishes any right or COA on
part of the plaintiff.
Mathay v. Consolidated Bank, 58 SCRA
Facts: This is the classic case of the class suit filed
by Mathay vs. Consolidated Bank. Mathay & Co.
averred in the complaint that they were denied the

right to subscribe shares in the Bank. All in all, the
complaint filed by Mathay contained 6 COA’s .
Held: Bare allegations that one is entitled to
something is an allegation of a conclusion. Such
kind of allegation adds nothing to the complaint it
being necessary to plead specifically the facts upon
w/c such conclusion is founded. In CAB, the pet.
did not show their qualifications to being
stockholders nor their right to subscribe the shares.
Did not show how they acquired the right, the
extent of its exercise & amount of shareholdings
that they are entitled to.
Capacity of parties
Rule 8, Sec. 4
Facts showing the capacity of a party to
sue or be sued or the authority of a prty to sue or be
sued in a representative capacity or the legal
existence of an organized association of persons
that is made a party, must be averred. A prty
desiring to raise an issue as to the legal existence of
any party or the capacity of any party to sue or be
sued in a representative capacity, shall do so by
specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's
knowledge.
Actions based upon a document
Rule 8, Sec. 7
Whenever an action or defense is based
upon a written instrument or document, the
substance of such instrument or document shall be
set forth in the pleading and the original or a copy
thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set
forth in the pleading.
Answer
Defined and in general
Rule 6, Sec. 4
An answer is a pleading in which a
defending party sets forth his defenses.
Types of Defenses
Negative
Rule 6, Sec. 5(a)
Defenses may either be negative or
affirmative.
(a) A negative defense is the specific
denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause or
causes of action.
How alleged, generally
Rule 8, Sec. 10
A defendant must specify each material
allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth that
substance of the matters upon which he relies to
support his denial. Where a defendant desires to
61
deny only a part of an averment, he shall specify so
much of it as is true and material and shall deny
only the remainder. Where a defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment made in
the complaint, he shall so state, and this shall have
the effect of a denial.
Capacity of parties
Rule 8, Sec. 4
Facts showing the capacity of a party to sue or be
sued or the authority of a party to sue or be sued in
a representative capacity or the legal existence of
an organized association of persons that is made a
party, must be averred. A prty desiring to raise an
issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a
representative capacity, shall do so by specific
denial, which shall include such supporting
particulars as are peculiarly within the pleader's
knowledge.
Genuineness of document
Rule 8, Sec. 8
When an action or defense is founded
upon a written instrument, copied in or attached t o
the corresponding pleading as provided in the
preceding section, the genuineness and due
execution of the instrument shall be deemed unless
the adverse party, under oath specifically denies
them, and sets forth what he claims to be the facts;
but the requirement of an oath does not apply when
the adverse party does not appear to be party to the
instrument or when compliance with an order for
an inspection of the original instrument is refused.
Donato v. CA
Controversy over a parcel of land
allegedly sold to defendants by Rarang by virtue of
special power of attorney executed the by the
mother (deceased) of plaintiffs. Trial court held in
favor of plaintiffs on the ground that defendants
failed to present evidence to prove genuineness of
the power of attorney. CA Affirmed.
Supreme Court held that while R.8, Sec. 8
provides for rule on implied admission of the
genuineness and due execution of a document
subject of an action/defense, one exception is
when the adverse party does not appear to be a
party to the instrument. In this case, their plaintiffs
were mere witnesses to the power of attorney in
question. Besides, the document should not be
afforded presumption of genuineness and due
execution in view of the discrepancies in its
execution.
Negative pregnant
PHILAMGEN v. Sweet Lines

Controversy over several shipments of
chemicals aboard the vessel owned by Sweet Lines
which were delivered damaged and lacking in
number to plaintiff PHILAMGEN. Sweet Lines
argued that the action has prescribed since the
claim for damages were not presented within the
period stipulated in the bills of lading.
PHILAMGEN contended that the bills of lading
were not presented in evidence, therefore, since the
tenor and existence of the stipulations were not
established, it was inconceivable how they can
comply therewith. Trial court held in favor of
PHILAMGEN but CA reversed.
Supreme Court held that the action has
already prescribed. Besides, plaintiff's failure to
specifically deny the existence, genuineness and
due execution of the instruments amounted too an
admission.
PHILAMGEN's denial has procedural
earmarks of a "negative pregnant" which is a denial
pregnant with the admission of the substantial facts
in the pleading responded to which are not squarely
denied. Such defense is in effect an admission of
the averment. Thus, while they objected to the
stipulation in the bills of lading as being contrary to
policy, existence of the bills were nevertheless
impliedly admitted.
Affirmative
Rule 6, Sec. 5(b)
(b) An affirmative defense is an allegation
of a new matter which, while hypothetically
admitting the material allegations in the pleading of
the claimant, would nevertheless prevent or bar
recovery by him. The affirmative defenses include
fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance.
Periods to plead
Rule 11, Sec. 1
The defendant shall file his answer to the
complaint within 15 days after service of summons,
unless a different period is fixed by the court.
Rule 11, Sec. 2
Where the defendant is a foreign private
juridical entity and service of summons is made on
the government official designated by law to
receive the same, the answer shall be filed within
30 days after receipt of summons by such entity.
Rule 11, Sec. 3
Where the plaintiff files an amended
complaint as a matter of right, the defendant shall
answer the same within 15 days after being served
with a copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
within 10 days from notice of the order admitting
62
the same. An answer earlier filed may serve as the
answer to the amended complaint if no new answer
is filed.
This Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc) party complaint, and
amended complaint-in-intervention.
Waiver of defenses
Rule 9, Sec. 2
A compulsory counterclaim, or a cross-
claim, not set up shall be barred.
Director of Lands v. CA, 106 SCRA 426 ('81)
Facts: Resp. filed an application for confirmation
of imperfect title. The Dir. of Lands opposed. The
trial ct. ruled in favor of resp. On appeal, the Dir.
raised the argument that the award to resp. is
erroneous on ground of res judicata. The lots were
already declared public lots in a cadastral
proceeding, it cannot be awarded to the private
resp.
Held: The failure of the Dir. to raise in the
proceedings before the trial ct. to interpose his
objection nor set up the defense of res judicata
constitutes procedural infirmity w/c cannot be
cured on appeal. All defenses not interposed in a
motion to dismiss or in an answer are deemed
waived. It cannot be pleaded for the first time or
on appeal.
Counterclaims
LECTURE ON CLAIMS AND
COUNTERCLAIMS:
L: are all counterclaims that are not compulsory
permissive?
A: No; permissive counterclaims need not arise
from same transaction or occurrence constituting
the subject matter of the opposing party's claim
Compulsory counterclaim: need not pay docket
fees since ancillary to main case
Permissive counterclaim: need to pay docket fees
since has lfe independent of transaction in main
case
Apply Logical Relationship Test: arising out of
same transaction
If there is duplication of effort and time, then
compulsory counterclaim
ROC: if counterclaim only for sum of money less
juridical limit, within RTC jurisdiction via
compulsory/permissive counterclaim
Crossclaims always compulsory since arise from
same transaction or occurrence that is the subject

matter of the complaint. Mandatory to raise it or
else barred forever
GO V CA
L: Go did not sue Lim since business partners or
didn't want to spend more, etc.
SC wanted Go to sue Lim, wondered why?
L: see that SC not acquainted with business
practices
Test: if P chose to sue only one P, then the
other P can be joined as party
Lim could have been necessary
party thus Clover v Go
Go can file 3rd party complaint v.
Lim
L: Do all 3rd party complaints arise from the same
transaction or question of law?
A: No eg. Insurance and torts
Test: if 3rd party D can be subrogated for D and D
can raise same defense (Rule 14)
PASCUAL V BAUTISTA
L: SC did not rule on W/N 3rd party complaint
propert since not put in issue. Here, 3rd-party
complaint, since ancillary, then left behind, not
carried with main cause of action on appeal
(Differentiate from REPUBLIC V CENTRAL
SURETY where CA acquired jurisdiction since
Central Surety appealed) Since Flores did not
appeal, CA did not acquire appellate jurisdiction
over him
Defined and in general
Rule 6, Sec. 6
A counterclaim is any claim which a
defending party may have against an opposing
party.
Rule 6, Sec. 7
A compulsory counterclaim is one which,
being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or
occurrence constituting the subject matter of the
opposing party's claim and does not require for its
adjudication the presence of third parties of whom
the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the
court both as the amount and the nature thereof,
except that in an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount.
BA Finance v. Co, 224 SCRA 163 ('93)
Facts: Does the dismissal of the complaint for
non-appearance of plaintiff at pre-trial upon motion
of the defendant carry w/ it the dismissal of
compulsory counterclaim? In CAB, the plaintiff
did not appear at pre-trial, the defendant moved for
the dismissal of the complaint. The same was
granted. Now, the defendant moves for an
adjudication of his compulsory counterclaim.
63
Held: YES. Compulsory counterclaim is also
dismissed. There are several requirements of a
compulsory counterclaim:
• It arises out or is necessarily. connected w/ the
transaction or occurrence that is the subj. matter of
the opposing parties claim.
• It does not require the presence of third parties of
whom the ct. cannot acquire jurisdiction.
• The trial ct. has jurisdiction to entertain the
same. The test of compulsoriness is : WON the
same evidence to sustain it would refute the
plaintiff’s cause of action.
In CAB, the compulsory counterclaim
cannot remain pending for independent
adjudication. The CC is auxiliary to the proceeding
in the original suit & merely derives its
jurisdictional support fr. the orig. case. If the ct.
has no or loses jurisdiction over the main case, it
has no jurisdxn over the comp. counterclaim. In
CAB, the ct. has lost jurisdxn. over the main case
by virtue of its dismissal upon motion by the
defendant.
Reyes v. CA, 38 SCRA 138 ('71)
Facts: Reyes were lessees of a bldg. owned by
Kalaw. Kalaw sought the ejectment of Reyes.
Reyes filed an action w/ City Court for prel.
injunction & Kalaw filed a counterclaim for
damages. The CA ultimately awarded temperate
damages in favor of Kalaw.
Held: The award of temp. damages is in error. the
damages contemplated in a forcible entry &
detainer cases like the one at bar means rents &
reasonable compensation or for use of the property
excluding profits w/c might be received. The issue
in this kind of suit is merely possession. In CAB,
while the damages arose out of the same
transaction, these are not CC’s bec. they exceed the
jurisdiction of the inferior ct.. The rule on bars to
cc, meaning the counterclaim cannot be set up in a
difference. case if not set up in the main case,
applies only when the inferior ct. involved has
jurisdiction over the claim.
The reason for barring cc not set up in an
orig. case is to avoid multiplicity of suits & to
dispose of the whole matter in controversy in one
action & adjustments of defendants demand by
counterclaim.
Maceda v. CA, 176 SCRA 440 ('89)
Facts: Three ejectment cases were filed in the
MTC vs. Maceda. Maceda set up a counterclaim
amounting to 240,000. The RTC granted Maceda’s
counterclaim. The CA denied the grant on appeal.
Held: The CA correctly ruled that the MTC did
not have original jurisdiction over the counterclaim
as it exceeds 20,000, correspondingly, the RTC
could not have appellate jurisdiction over the
claim. Thus, the award to Maceda is invalid for
lack of jurisdiction. The jurisdiction of the MTC in
a civil action is limited to a demand that does not

exceed 20,000 exclusive of interests & costs but
inclusive of damages of whatever kind. A
counterclaim in a municipal or city ct. beyond that
jurisdictional limit may be pleaded only by way
defense to weaken the plaintiff’s claim but not to
obtain affirmative relief.
How raised
Included in answer
Rule 6, Sec. 9
A counterclaim may be asserted against an
original counterclaimant.
A cross-claim may also be filed against an
original cross-claimant.
Rule 11, Sec. 8
A compulsory counterclaim or a cross-
claim that a defending party has at the time he filed
his answer shall be contained therein.
After answer
Rule 6, Sec. 9 supra.
Rule 11, sec. 9
A counterclaim or a cross-claim which
either matured or was acquired by a party after
serving his pleading may, with the permission of
the court, be presented as a counterclaim or a cross-
claim by supplemental pleading before judgment.
Rule 11, Sec. 10
When a pleader fails to set up a
counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice
requires, he may, by leave of court, set up the
counterclaim or cross-claim by amendment before
judgment.
In criminal actions
Rule 111, Sec. 1
Rule 119, Sec. 3
Shafer v. RTC Judge, 167 SCRA 386 ('88)
Facts: Shafer is the owner of a car involved in an
accident. A case was filed vs. him for reckless
imprudence. Shafer filed a third party complaint
impleading his insurer. The TPC was dismissed
upon motion by the ins. co. on the ground that
Shafer has to pay first & found liable before the
insurer could be made to pay the claim. Shafer
alleges that the dismissal of the TPC amounts to a
denial or curtailment of his right to defend himself
in the civil aspect of the case.
Held: The lower ct. erred in dismissing the TPC on
the ground that there is no COA vs. the ins. co.
There is no need on the part of the insured to wait
for the decision of the trial ct. finding him guilty of
reckless imprudence. The occurrence of the injury
to third party immediately gave rise to the liability
of the insurer. A third party complaint is a device
allowed by the ROC by w/c the defendant can
bring into the original suit a party vs. whom he
will have a claim for indemnity or remuneration as
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a result of a liability established vs. him in an
original suit. TPC’s are allowed to minimize the
number of lawsuits established vs. him to avoid the
necessity. of two or more lawsuits involving the
same subj. matter.
Javier v. IAC, 171 SCRA 605 ('89)
Facts: A case for violation of BP 22 was filed vs.
resp. Resp. on his part filed a separate civil action
in another ct. for damages alleging that the check
was issued through fraud & deception practiced
upon him by the pet. the pet. filed a motion to
dismiss the second case on grounds of lack of
jurisdiction & litis pendentia. The same was
denied.
Held: The lower ct. should dismiss the second case
for damages. As the civil action was not reserved
by the pet. in the orig. case, it is deemed impliedly
instituted w/ the crim. case in the RTC in
accordance. w/ Rule 111 Sec. 1. It was before the
RTC where resp. could have explained why he had
issued the check. The civil action filed by resp.
based on the same act should be deemed filed in
the same RTC too. He could have done this by
way of a counterclaim for damages for the alleged
deception of the pet. In fact, the counterclaim is
compulsory & could have been also set up as an
affirmative defense.
Kinds of counterclaims
Compulsory
Rule 6, Sec. 7, supra.
Rule 9, Sec. 2, supra.
Meliton v. CA, 216 SCRA 485 ('92)
Facts: Ziga filed a complaint adjacent Meliton for
rescission of a contract of lease. Meliton answered
w/ counterclaims. Ziga filed an MTD & the same
was granted. The CC of Meliton was dismissed
w/o prejudice on the ground that the docket fees
were not paid, the ct. did not acquire jurisdiction
over the counterclaim. Meliton instituted a
separate. civil action for his counterclaim but the
same was dismissed on the ground that his claims
are compulsory & should have been set up in the
case filed vs. him by Ziga. Meliton’s failure to do
so amounted to a bar to a filing of a subsequent
case based on the same ground.
Held: While it is true that the counterclaim of
Meliton satisfies the requisites of a compulsory
counterclaim, in CAB, the SC allowed Meliton to
file a separate. civil action on the counterclaim.
The SC held that Sec. 4 of Rule 9 is not applicable
beech. 1) Meliton set up the CC in the prior case
but the same was dismissed. 2) The prior case was
adjudicated not on the merits so that res judicata
would not lie. 3) the first counterclaim was
dismissed by the RTC on the ground of LOJ. 4) In
the RTC order, there was a reservation for the filing
of a separate. case based on the counterclaim.

The lower ct. in the prior case erred in
dismissing the counterclaim for non-payment of
docket fees. The lesson of Manchester provides
that payment of docket fees for purposes of
assuming jurisdiction over the claim is necessary
only for permissive counterclaims & does not apply
for compulsory counterclaims like the one at bar.
TEST OF COMPULSORINESS:
Existence of a logical relationship
between the claim in the complaint & the
counterclaim. Where conducting separate trials of
the respective claims would entail substantial
duplication of effort & time & involves many of
the same factual & legal issues.
Lim Tanhu v. Ramolete, 66 SCRA 425 ('75)
Facts: This is the 30++ page case w/c was so
diligently digested by Miss Secretary Lourie but
was not discussed in class (Ang bitter!). Upon
motion of the plaintiff, 4 of the 6 defendants were
declared in default while the case vs. the remaining
two were dismissed upon motion by the plaintiff.
Held: The respondent judge erred in dismissing
the 2 defendants fr. the case. The respondent judge
disregarded the existence of a counterclaim w/c the
judge earlier declared to be compulsory in nature.
A counterclaim is compulsory nature if it arose out
of or is necessarily connected w/ the occurrence
that is the subject matter of the plaintiff’s claim. It
is compulsory not only bec. the same evidence to
sustain it will also refute the cause of action alleged
in plaintiff’s complaint but also bec. fr. its very
nature it is obvious that the counterclaim cannot
remain pending for independent adjudication of the
ct.. ( see Rule 17 Sec. 2 )
Permissive
Remedies
For failure to raise
Rule 9, Sec. 2, supra.
Visayan Packing v. Reparations Commission,
155 SCRA 542 ('87)
Facts: REPACOM sought to collect vs. Visayan.
Visayan instituted an action for declaratory relief
alleging that the contract bet. them is ambiguous w/
respect to its failure to define clearly the terms of
payment. REPACOM then filed an ordinary civil
action for collection. Visayan moved to dismiss the
collection suit on the ground of LCOA.
Held: The separate. collection suit should have
been dismissed & set up as a CC in the declaratory
relief suit filed by Visayan packing by way of an
amended answer. In CAB, the actions proceeded
independently & were decided on the merits.
However, under the circ. where the length of time
the case has been pending, it would be violative to
subs. justice to pronounce the proceedings in the
collection suit totally defective for breach of the
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rule on compulsory counterclaim. Rules of
Procedure are after all laid down to attain justice &
technicalities cannot prevail over substance.
Oversight, inadvertence, excusable
neglect, et al
Rule 11, Sec. 10, supra.
BA Finance v. Co, 224 SCRA 163 ('93)
Facts: Does the dismissal of the complaint for
non-appearance of plaintiff at pre-trial upon motion
of the defendant carry w/ it the dismissal of
compulsory counterclaim? In CAB, the plaintiff
did not appear at pre-trial, the defendant moved for
the dismissal of the complaint. The same was
granted. Now, the defendant moves for an
adjudication of his compulsory counterclaim.
Held: YES. Compulsory counterclaim is also
dismissed. There are several requirements of a
compulsory counterclaim:
• It arises out or is necessarily. connected w/ the
transaction or occurrence that is the subj. matter of
the opposing parties claim.
• It does not require the presence of third parties of
whom the ct. cannot acquire jurisdiction.
• The trial ct. has jurisdiction to entertain the
same. The test of compulsoriness is : WON the
same evidence to sustain it would refute the
plaintiff’s cause of action.
In CAB, the compulsory counterclaim
cannot remain pending for independent
adjudication. The CC is auxiliary to the proceeding
in the original suit & merely derives its
jurisdictional support fr. the orig. case. If the ct.
has no or loses jurisdiction over the main case, it
has no jurisdxn over the comp. counterclaim. In
CAB, the ct. has lost jurisdxn. over the main case
by virtue of its dismissal upon motion by the
defendant.
In case main action fails
For failure to raise permissive
counterclaims
Answer to counterclaim
In general
Rule 6, Sec. 4, supra.
Period to plead
Rule 11, Sec. 4
An counterclaim or cross-claim must be
answered within 10 days from service.
Reply
Defined and in general
Rule 6, Sec. 10

A reply is a pleading, the office of which
is to deny, or allege facts in denial or avoidance of
new matters alleged by way of defense in the
answer and thereby join or make issue as to such
new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed
controverted.
If a plaintiff wishes to interpose any
claims arising out of the new matters so alleged,
such claims shall be set forth in an amended or
supplemental complaint.
When required
Rule 6, sec. 10, supra.
Challenge due authenticity of documents
Rule 8, Sec. 8, supra.
Usury
Rule 9, sec. 1
Period to plead
Rule 11, Sec. 6
A reply may be filed within 10 days from
service of the pleading responded to.
Third/Fourth Party Complaint
Defined
Rule 6, sec. 11
A third (fourth,etc.)-party complaint is a
claim that a defending party may, with leave of
court, file against a person not a party to the action,
called the third (fourth, etc)-party defendant, for
contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim.
Go v. CA, 224 SCRA 143 ('93)
Facts: Clover delivered denim garments to Go but
the latter refused to pay on the ground that he
received the goods fr. Lim to whom he already
made payments. Lim was made a witness for Go
instead of being impleaded as a third party def.
Held: Lim should have been impleaded as a third
party def. Go should still pay. A third party
complaint is a claim that a def. may w/ leave of ct.
file vs. a third person not party to the action called
third party def. for cont. indemnity, subrogation or
any other relief in respect to opponent’s claim. In
CAB, if payments to Lim were true, then Go could
have impleaded him as a TPD for relief vs.
Clover’s claim vs. him.
Pascual v. Bautista, 33 SCRA 301 ('70)
Facts: The issue involved in this case is the nature
of a third party complaint. Is a third party
complaint arising fr. the same transaction or
occurrence a separate action fr. the main
complaint?
Held: A TPC is similar to a cross-claim in that a
TPC plaintiff seeks to recover fr. another person
some relief w/ respect to the opposing party’s claim
but it differs fr. a cross-claim in that in cross-
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claims, the third party is already impleaded in the
main action while in TPC, the def. seeks to implead
a third party not yet include in the main action. A
counterclaim does not depend upon the main claim
but rests on WON the claim is based or related to
the same transaction. A TPC, the relation must be
to the claim, to the COA & not to the transaction fr.
w/c the claim arises.
Balbastro v. CA, 48 SCRA 232 ('72)
Facts: There are two persons contesting the right
to receive rental payments of Balbastro. the Latter
filed an action for interpleader & consignation vs.
the two claimants. One claimant, Fernandez then
filed a third [party complaint vs. Balbastro for
refusing to pay the rents to him. Balbastro moved
to dismiss the TPC but the RTC & CA denied the
motion.
Held: A TPC has the following requisites.
• The complaint should assert a derivative/
secondary claim for relief fr. the third party
defendant.
• The third party should not be a party to the
action, otherwise, the claim should be a
counterclaim or cross-claim
• Claim vs. the third party def. must be based on
the pltf. claim vs. the orig. def.
Thus, citing the case of Capayas, “ the
test to determine WON to allow a TPC is WON it
arises out of the same transaction on w/c pltf’s
claim is based o retired party’s claim, though
arising out of a different transaction or contract is
connected w/ pltf’s claim. Absent a nexus between
third party def. & third party pltf. showing strong
evidence of a secondary or derivative liability of
former in favor of the latter, no third party
complaint may be allowed.
However, in the CAB, in lieu w/ the
policy of avoiding multiplicity of suits, the SC
allowed the TPC of Fernandez.
Republic v. Central Surety, 25 SCRA 641 ('68)
Facts: Rep. filed an action vs. Central Surety for
forfeiture of the bond it issued when Po Kee Kam,
a def. in CID proceedings failed to appear . The
Surety filed a TPC vs. Po Kee Kam on ground that
the latter executed an indemnity agreement in favor
of the surety. The TC dismissed the TPC on the
ground that the 3rd party claim is only 6,000.
Held: A TPC is an ancillary suit w/c depends on
the jurisdiction of the ct. over the main action.
Jurisdiction over the main action embraces all the
incidental matters arising therefr. or connected
therew/, otherwise there would be split jurisdiction.
The TPC is a continuation of the main action the
purpose of w/c is to seek contribution or any other
relief in resp. to opponents claim. Thus, regardless
of LOJ over the amount in TPC, when ct. has
jurisdxn. over main action, it has jurisdxn. over the
TPC.

In TPC, the defendant sue in capacity he
is being sued w/ resp. to pltf. claim in the main
action. the def. cannot compel the pltf. to implead
the third party def. There must also be privity of
contract in relation to the property in litigation.
TEST: there must be a showing that such
third party is or might be liable to the def. or pltf.
for all or part of the claim vs. the def.
- WON it arises out of the same
transaction on w/c pltf’s claim is based.
( CAVEAT)
The ct. must wait before the 3rd party def.
files his answer before proceeding to trial since
before the answer, the case is not yet ready for
trials as issues have not yet been joined.
Remedies when denied
Appeal, De Dios v. Balagot, 20 SCRA 950
Facts: This is an action for recovery of possession
of land filed by De Dios v. Balagot. the latter filed
a third party complaint fr. his alleged seller of the
lot. The TPC was denied.
Held: The remedy for an order denying motion to
file TPC is APPEAL. An order disallowing TPC is
appealable to enforce the vendor’s warranty vs.
eviction since it leaves no other alternative to
enforce such warranty. Remember Sales, where the
vendee must file an action vs. the vendor to make
him liable for breach of warranty vs. eviction. ( Art.
1559 CC- the vendee may do this in two ways. 1)
As a co-defendant. 2) As a third party def.)
The appeal would finally dispose of
Balagot’s rights to enforce the warranty.
Answer to third/fourth party complaint
In general
Rule 6, Sec. 13
A third (fourth, etc.)-party defendant may
allege in his answer his defenses, counterclaims or
cross-claims, including such defenses that the third
(fourth, etc)-party plaintiff may have against the
original plaintiff's claim. In proper cases, he may
also assert a counterclaim against the original
plaintiff in respect of the latter's claim against the
third-party plaintiff.
Time to plead
Rule 11, Sec. 5
The time to answer a third (fourth, etc.)-
party complaint shall be governed by the same rule
as the answer to the complaint.
Extension of time to plead
Rule 11, Sec. 11
Upon motion and on such terms as may be
just, the court may extend the time to plead as
provided in these Rules.
The court may also, upon like terms, allow
an answer or other pleading to be filed after the
time fixed by these Rules.
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Formal Requirements
Rule 7
Sec. 1 Caption
The caption sets forth the name of the
court, the title of the action, and the docket number
if assigned.
The title of the action indicates the names
of the parties. They shall be named in the original
complaint or petition; but in subsequent pleadings,
it shall be sufficient if the name of the first party in
each side be stated with an appropriate indication
when there are other parties.
Their respective participation in the case
shall be indicated.
Sec. 2 The body
The body of the pleading sets forth its
designation, the allegations of the party's claims or
defenses, the relief prayed for, and the date of the
pleading.
(a) Paragraphs - The allegations in the
body of a pleading shall be divided into paragraphs
so numbered as to be readily identified, each of
which shall contain a statement of a single set of
circumstances so far as that can be done with
convenience. A paragraph may be referred to by its
number in all succeeding pleadings.
(b) Headings - when 2 or more causes of
action are joined, the statement of the first shall be
prefaced by the words ""first cause of action" of
the second by
"second cause of action", and so on for the others.
When one or more paragraphs in the
answer are addressed to one of several causes of
action in the complaint, they shall be prefaced by
the words "answer to the first cause of action", or
"answer to the second cause of action" and so on;
and when one or more paragraphs of the answer
are addressed to several causes of action, they shall
be prefaced by the words to that effect.
(c) Relief - The pleading shall specify the
relief sought, but it may add a general prayer for
such further or other relief as may be deemed just
or equitable.
d) Date - Every pleading shall be dated.
Sec. 3 Signature and address
Every pleading must be signed by the
party or counsel representing him, stating in either
case his address which should not be a post office
box.
The signature of counsel constitutes a
certificate by him that he has read the pleading;
that to the best of his knowledge, information and
belief there is good ground to support it; and that it
is not interposed for delay.
An unsigned pleading produces no legal
effect. However, the court may, in its discretion,
allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence
and not intended for delay. Counsel who

deliberately files an unsigned pleading, or signs a
pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails to
promptly report to the court a change of his
address, shall be subject to appropriate disciplinary
action.
Sec. 4 Verification
Except when otherwise specifically
required by law or rule, pleadings need not be
under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that
the affiant has read the pleading and that the
allegations therein are true and correct of his
knowledge and belief.
A pleading required to be verified which
contains a verification based on "information and
belief", or upon "knowledge, information and
belief", or lacks proper verification shall be treated
as an unsigned pleading.
Sec. 5 Certification against forum shopping
The plaintiff or principal party shall
certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in
a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not
theretofore commenced any action or filed any
claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is
pending therein; (b) if there is such other pending
action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn
that the same or similar action or claim has been
filed or is pending, he shall report that fact within 5
days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Failure to comply with the foregoing
instruments shall not be curable by mere
amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided,
upon motion and after hearing. The submission of
a false certification or non-compliance with any of
the undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal actions.
If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping,
the same shall be ground for summary dismissal
with prejudice and shall constitute direct contempt,
as well as a cause for administrative sanctions
LECTURE ON STAGES OF TRIAL:
68
WORD GAME:
Motion: request for interlocutory order related to
relief prayed for in pleading
Pleading: sets forth ultimate facts and defenses
Complaint: pleading that starts off civil action
Answer: defense against claims in complaint and
present issues in case
Issue: allegation denied
Allegation: ultimate fact
L: Distinguish between: Conclusion of Law;
Ultimate Facts; and Evidentiary Facts
Non-issue if a) not alleged therefore not need
to be denied
b) acceptance of allegation
Defense: tends to defeat claim as alleged in
complaint
L: prayer would be to dismiss for fact of merit
Counterclaim: if answer with affirmative relief
Negative defenses: which factual allegations in
complaint alleged as issues
Issues: allegations and denials joined
General denial: accept everything: admission of
everything: it specifically denies each and every
allegation made by the plaintiff: therefore, no
factual issues anymore and so no more need to go
through trial or pre-trial
L: Counsel for P: file motion for judgment on the
pleading
Specific denial proper: qualified, under oath and
allege lack of knowledge or information sufficient
to support a belief (WIT)
Affirmative defense: defeats allegations contained
in complaint
Effect: if able to prove during hearing,
then entire pleading of the other party is defeated
Eg. Defense of Lack of jurisdiction or failure to
undergo a condition precedent. It is a new matter.
Hypothetical admission but still avoidance. Relief
prayed for is dismissal of complaint
Unlike Counterclaim: raises a relief other than
dismissal of complaint; always allege a new matter
will have specific and general denials.
Compulsory counterclaim: arises from the same
transaction or relation. If not set up immediately,
deemed barred
Test: the logical relationship test - if there is
substantial duplication of efforts or that the same
set of evidences will be used to prove the complaint
and the counterclaim
Reply: if no reply, matters raised in counterclaim
deemed incontroverted

If with reply, all new matters raised in
answer deemed controverted
Reply necessary when need to challenge new
matters raised by affirmative defense. Can't rely on
implied setting up of specific denial
Document: res ipsa loquitur: thing speaks for
itself
Deny under oath: a) genuineness and due
execution of the document
b) usury charges
L: Amended and Supplemental Pleadings
Joinder of Parties: arises from the same transaction
or common question of fact or law
Joinder of Causes of Action: so long as the court
has jurisdiction, party can raise all causes of action
between the original P and D
P can raise all causes of action against D arising
from different sources but if court has no J over the
cause of action, can't join cause of action
But if complaint filed with the RTCF for a sum of
money, if the sum is within RTC's jurisdiction, then
can raise
If you want to bring in a new D, need to find
commonality in cause of action originally raised,
not commonality of parties
Counsel for D: Remedies when a complaint is
filed:
(note: D must wait until court acquires jurisdiction
and serves him with summons (service, not
summons, if court sends him other pleadings) or he
can voluntarily appear and let the court acquire
jurisdiction over him
file bill of particulars; file motion for extension of
time for filing a pleading and file an amended
pleading / supplemental pleading
Final Order/Dismissal
1. MTD (filed by D)
1. Dismissal of action by notice or motion (filed by
P)
1. Default (D not act)
1. Non-sut (P acts maliciously and not do what is
required of him Rule 17 sec. 3
Or P acts passively)
L: the trial is not about justice, it's about what you
can prove
Rule 13
Service of Pleadings
Coverage, Rule 13, Secs. 1, 4
Filing
Defined, Rule 13, Sec. 2
How, Rule 13, Sec. 12
Proof of Filing, Rule 13, Sec. 12
Service
69
Defined, Rule 13, Sec. 12
Modes of Service
Generally, Rule 13, Sec. 5, Sec. 11
Personal, Rule 13, Sec. 6
Registered Mail, Rule 13, Sec. 7
Substituted Service, Rule 13, Sec. 8
Echaus v. CA
Facts: Spouses Gonzales file action for collection
of debt vs. Echaus. Ct. orders E to pay. E files w/
SC certiorari to set aside decision, denied; then
mandamus to allow appeal, granted. E files w/ TC
Urgent Motion to Transmit Record on Appeal to
CA. At the hearing, Judge verbally approves the
record on appeal in abeyance, until resolution of
Gps Motion for Execution of the TC judgment. E
asks CA to order Judge to comply w/ SC decision,
denied. CA says no willful refusal on part of Judge
to comply w/ order. E goes to SC, says her appeal
had been perfected when the Judge verbally
approved the record on appeal.
Held: The oral order approving the record on
appeal had no juridical existence; to give it that
existence it had to be reduced to writing &
promulgated (filed w/ clerk of ct.). But even if it
had been written & promulgated, even if it had
already been properly served on the parties, it still
was w/in the power of the Judge to recall it & set it
aside. For every ct. has the inherent power to
amend its process & orders so as to make them
conform to law & justice.
No judgment, or order whether final or
interlocutory, has juridical existence until & unless
it is set down in writing, signed & promulgated,
i.e., delivered by Judge to clerk of ct. for filing,
release to the parties & implementation & even
after this, it does not bind the parties unless & until
notice thereof is duly served on them by any of the
modes prescribed by law.
Service of Judgments, Final Orders or
Resolutions, Rule 13, Sec. 9
Completeness of Service, Rule 13, Sec. 10
Proof of Service, Rule 13, Sec. 12, 13
See also SC Circular No. 19-91
Rule 14
Summons
Definition and purpose
Duty to issue, Rule 14, Sec 1, 5
Form
Content, Rule 14, Sec 2
If with leave of court, Rule 14, Sec. 17
Who serves, Rule 14, Sec 3
On Whom,
In general, Rule 14, Sec 1, 6
Entity without juridical personality, Rule
14, Sec 8
Associations, Rule 14, Sec 9
Domestic, Rule 14, Sec 11

Rebolido v. CA, 170 SCRA 800 (1989)
Facts: Pepsi Cola was served summons, in
connection w/ a case for damages arising fr.
vehicle-collision, through Sison who represented
herself as a person authorized to received ct.
process as she was a secretary of the legal dept. of
Pepsi Cola. Later, Pepsi Cola was dissolved, & all
its debts & liabilities were assumed by PEPSICO.
Meanwhile, Pepsi Cola was declared in default in
the aforementioned case, & writ of execution was
served on PEPSICO. The latter now moves to
vacate judgment, alleging lack of jurisdiction of the
ct. as the summons was served on the legal
secretary of Pepsi Cola, not PEPSICO.
Held: There was valid service of summons.
1. Although Pepsi Cola was already dissolved
when summons was served, the same may be
served upon the same person upon whom the
process could be served before the dissolution.
Therefore, service to any of the persons in R 14
Sec. 13 is allowed.
2. Purpose of Summons: To render it reasonably
certain that corporation will receive prompt &
proper notice in an action vs. it.
3. Liberal Interpretation of Sec. 13: That there is
Substantial Compliance w/ the requirement of Sec.
13 if the purpose for the service of summons is
attained, & the person served knew what to do w/
the legal papers served upon him.
Summit Trading v. Avendano, 146 SCRA 197
(1986)
Facts: In connection w/ a case for redemption of
lots filed vs. ST (Type!), summons were served on
the Secretary of the President of Summit Trading.
ST was later held in default. Judgment was
rendered vs. it. ST filed MFR contending that ct. in
the first place did not acquire jurisdiction over the
company when it served summons on the Sec of
the Pres. who is not an agent of the company.
Held: Since the Secretary did not explain what she
did to the summons, the logical assumption is that
she gave it to her boss. (SC here considered the
fact that a copy of the default judgment held vs. ST
was also served on the Sec. & the same reached the
Pres., & consequently, ST was able to file a MFR.)
While Summit Trading is technically
correct in contending that there was no strict
compliance w/ Sec. 13, under the facts of this case,
where the President contact the outside world
normally through his Secretary, the latter may be
regarded as an “agent” w/in the meaning of Sec.
13.
Note: Remember that SC did not rule
that service upon Secretaries is always proper. It
was only under the facts of the CAB that Sec. may
be considered as an agent of the corporation.
Foreign, Rule 14, Sec 12
Public corporation, Rule 14, Sec
13
Minors, RuLe 14, Sec 10
Insane, incompetents, Rule 14, Sec 10
70
Prisoners, Rule 14, Sec 9
Unknown defendant, Rule 14, Sec 14
Residents temporarily out, Rule 14, Sec
18, 16
Venturanza v. CA, 156 SCRA 305 (1987)
Facts: Venturanza was sued for collection of a
sum of money. Summons for V was served upon
her father at his residence in Tondo. V was later
held in default. V filed Motion to Set Aside
Default Judgment on the ground that there was no
proper service of summons when it was served not
in her residence w/c was in Pasay City.
Held: There was no proper service of summons.
1. It is only when defendant cannot be served w/in
reasonable time that a substituted service may be
availed of under Sec. 8 (Pls. see Part VI). The law
requires an effort or attempt to personally serve the
defendant, & only after this has failed that a
substituted service may be availed of. Why? Bec.
Substituted Service is in derogation of the usual
method of service. It is a method extraordinary in
character & hence may be used only as prescribed
in the circumstances authorized by statute.
2. Substituted service is valid only if served at
defendant’s residence, NOT former residence.
“Residence” means where he is living at the time
service was made, even though temporarily out of
the country.
Non-resident, Rule 14, Sec 15
Modes of service
Personal, Rule 14, Sec 6
Substituted, Rule 14, Sec 7
Laus v. CA, 219 SCRA 688 (1993)
Facts: This is the 10-minute case. Torres filed a
complaint for Collection vs. Laus. Deputy Sheriff
went to Laus’ residence to serve summons, but
found that there was no one in the house. He
waited for 10 minutes. Then a three-wheeled
vehicle (tricykol) came w/ the savior who claimed
to be the maid in the house. The Sheriff served
summons upon the latter. Laus was declared in
default. Before he received the final judgment,
Laus filed an MTD on the ground that there was
ineffective service of summons bec. there was no
indication that S first exerted efforts to serve the
same personally before resorting to substituted
service.
Held: There was an ineffective service of
summons.
General Rule: Must serve personally.
Exception: If cannot serve personally w/in
reasonable period of time, may resort to Substituted
Service.
How can Impossibility of Service be shown? By
stating efforts made to find defendant personally &
the fact that such efforts failed.
Mapa v. CA, 214 SCRA 417 (1993)
Facts: A complaint for Recovery of sum of money
was filed vs. High Peak Mining. Summons was
issued to be served upon Mapa, the chairperson, &

upon other officers of the corporation. However,
said summons was served upon an employee of
said corp. Defendants were declared in default.
Defs. filed MTD & Set Aside Default Judgment on
the ground of lack of jurisdiction of the ct. over
their person as the service of summons was
improper, i.e., served upon an EE who may not be
considered as an “agent” of the corporation;
moreover, Sheriff did not indicate in his Return his
efforts at serving summons personally before
resorting to substituted service.
Held: Court lacked jurisdiction.
1. General Rule: Sheriff’s Return must show that
prior attempts at personal service were made by the
Sheriff & that such attempts had failed, prompting
him to resort to Substituted service. HOWEVER,
it must be emphasized that Absence in the Sheriff’s
Return of a statement about the impossibility of
personal service DOES NOT conclusively prove
that the service is invalid. Proof of such prior
attempts may be submitted by the plaintiff during
the hearing of any incident assailing the validity of
the substituted service. While Sheriff’ Return
carries w/ it the presumption of regularity, that
entries therein are deemed correct, it does not
necessarily follow that an act done in relation to the
official duty for w/c the return is made was not
simply done bec. it is not disclosed therein.
Besides, the sheriff’s neglect in making such a
disclosure should not unduly prejudice the plaintiff
if what was undisclosed was in fact done.
2. The EE may be considered as an “agent” for
the purpose of Sec. 13, & there was a substantial
compliance under the said sec. bec. in the CAB,
petitioner failed to deny the statement in Sheriff’s
Return that the EE is “authorized to receive process
of this nature”, said Return enjoying the
presumption of regularity, & the logical conclusion
is that she delivered the summons to the
corporation.
3. In an action in personam as in the CAB,
personal service of summons w/in the forum is
essential to the acquisition of jurisdiction over the
person of the defendant who does not voluntarily
submit himself to the authority of the ct..
Extraterritorial, Rule 14, Sec 15
Dial Co. v. Soriano, 161 SCRA 737 (1988)
DIAL CO. V. SORIANO
Facts: Dial is a foreign corporation organized &
existing under the laws of UK, US & Malaysia. It
has NO agents, officers or office in the Philippines.
Imperial Vegetable Oil, a Phil. corp., entered,
through its President, into several contracts w/ Dial
for the delivery of coco oil by the former to the
latter. Later, IVO repudiated said contracts on the
ground that they are “mere paper trading in
futures” as no actual delivery of coco oil was really
intended. IVO also filed complaint for Damages
vs. Dial. RTC, upon motion of IVO, authorized the
latter to effect Extraterritorial Service of Summons
71
to Dial through DHL. Dial, w/o submitting itself to
court’s jurisdiction, filed MTD on the ground that
Extraterritorial Service was improper, hence RTC
acquired no jurisdiction.
Held: There was an Improper service of summons.
1. There are 4 instances when Extraterritorial
service of summons can be properly done:
a) Action affects status of the plaintiff
b) Action relates to, or the subject of w/c is,
property w/in the Phils., in w/c defendant has or
claims a lien or interest, actual or contingent
c) When relief demanded consists in whole or in
part, in excluding the def. fr. any interest in the
property located in the Phils.
d) Defendant non-resident’s property has been
attached w/in the Phils.
2. The CAB is purely an action for Injunction, not
any of the 4. This is only an action in personam.
In any of the 4 instances, Court has
jurisdiction over the RES, i.e. personal status or
property, so jurisdiction over the person is NOT
essential.
In Personam - an action vs. a person on
the basis of his personal liability;
In Rem - action vs. the thing itself instead
of vs. the person.
3. In CAB, Court cannot subject Dial & Co. to
processes of RTC w/c are powerless to reach them
outside the region over w/c they exercise their
authority.
Sievert v. CA, 168 SCRA 692 (1988)
Facts: Sievert, a citizen & resident of the Phils.
received by mail a Petition for Issuance of
Preliminary Attachment w/o previously receiving
any summons & copy of the complaint filed vs.
him. His counsel entered a special appearance for
a limited purpose of objecting to the jurisdiction of
the ct..
Held: RTC has no jurisdiction over Sievert.
1. Rule 57 Sec. 1. -- Writ of Preliminary
Attachment may be applied for by a plaintiff “at
the commencement of the action or at anytime
thereafter...” However, what should be identified is
not the time when the action may be regarded as
having commenced, as this is not necessarily fixed
nor identical. The Critical Time to be identified is
when the trial ct. acquires authority under the law
to act coercively vs. the defendant or his property
in a proceeding in attachment. Answer: the time
of the vesting of jurisdiction in the ct. over the
person of the defendant in the main case.
2. NON-RESIDENT DEFENDANT: Attachment of
property may be sought in order to bring RES w/in
the jurisdiction of the ct., in substitution, as it were,
of the body of the defendant. Jurisdiction over the
res & the person of the defendant is, in such case,
acquired by service of summons by publication,
though that jurisdiction may be made effective only
in respect of the res attached.
RESIDENT DEFENDANT: A ct. w/c has not
acquired jurisdiction over the person of the
defendant cannot bind that def. whether in the main
case or in an ancillary proceeding such as

attachment proceedings. The service of a Petition
for Prelim Attachment w/o the prior or
simultaneous service of summons & a copy of the
complaint in the main case does not confer
jurisdiction upon the issuing ct. over the person of
the defendant.
Citizen's Surety v. Herrera, 38 SCRA 369 (1972)
Facts: Citizen’s Surety filed complaint for
reimbursement of money vs. Dacanay. Since
Dacanay’s address was unknown, CS petitioned the
Court that summons be made by publication.
Petition was granted, but still no Dacanay
appeared. (Kung kayo ba s’ya lalabas kayo?) CS
asked the ct. that Dacanay be held in Default. Trial
ct. denied since this is an action in personam, &
dismissed the case.
Held: The judge was correct that the Court could
not validly acquire jurisdiction on a non-appearing
defendant, absent a personal service of summons
w/in the forum. Otherwise, there would be a
violation of Due Process.
The proper recourse for the creditor is to
locate properties, real or personal, of the resident
defendant debtor w/ unknown address & cause
them to be attached under R57 Sec. 1(f), in w/c
case, the attachment converts the action into a
proceeding in rem or quasi in rem, & the summons
by publication may then accordingly be deemed
valid & effective.
Consolidated Plywood v. Breve,
166 SCRA 589 (1988)
Facts: Consolidated Plywood & Mindanao Hemp
Export are co-owners of real property: land &
building. Consolidated undertook to repair &
improve the property, subject to reimbursement fr.
Mindanao of 1/2 of costs. After Mindanao refused
to pay, a suit for collection was filed by
Consolidated. When summons was issued, it was
found out that Mindanao was no longer doing
business at its former address. Can summons be
served by publication?
Held: No. Suit is for the collection of an amount
of money--a personal action, ct. cannot acquire
jurisdiction over the person by serving summons by
publication. The proper recourse for a creditor is to
locate properties, real or personal, of the resident
defendant debtor w/ unknown address & cause
them to be attached under R57 Sec. 1(f), in w/c
case, the attachment converts the action into a
proceeding in rem or quasi in rem, & the summons
by publication may then accordingly be deemed
valid & effective.
Waiver of service, Rule 14, Sec 20
Delos Santos v. Montesa, 221 SCRA 15
(1993)
Facts: In connection w/ a complaint for Ejectment
filed vs. De los Santos, summons was served upon
the latter through her mother as the process server
failed to locate the defendant. DLS filed an MFR
of MC decision, alleging, inter alia, that the
summons was improperly served.
72
Held: While it may appear that there is no proof
that it was impossible to personally serve the
summons, & the statutory norms on service of
summons were not strictly complied w/, by the acts
of the petitioner’s counsel, such defects are deemed
erased. (Counsel filed MFR ) Appearance of
counsel is equivalent to summons unless such is
made to protest the jurisdiction of the ct. over the
person of the defendant. The MFR filed cannot be
treated as a special appearance as it raised other
grounds than the invalid service of summons, i.e.
failure to state COA, no Katarungang
Pambarangay).
Return of service, Rule 14, Sec 4
Proof of service, Rule 14, Sec 18
Publication, Rule 14, Sec 19
Registered mail, Rule 14, Sec 19
NOTES ON SUMMONS:
Venturanza - residence means "actual residence"
What make time reasonable is the efforts exerted
by the sheriff in serving the summons personally to
the defendants.
Remedies in default judgment:
1. Motion for New Trial
2. Appeal
3. Motion for Relief from Judgment
4. Motion to Set Aside Judgment
A judgment rendered without jurisdiction never
prescribes, passage of time can never correct the
judgment of a court which has never acquired
jurisdiction.
Personal and real actions are important in
determining venue of actions.
Actions in personam and in rem are important for
service of summons.
Actions affecting personal actions are actions in
rem and therefore extraterritorial service by
publication may be made.
Options for service of summons:
1. Personal service
2. Substituted service
3. Extraterritorial service: not a mode of service,
principally
(a) personal
(b) service by publication (always accompanied by
registered mail)
Service of other Pleadings: Rule 13 Service of
Summons: Rule 14
1. Personal Delivery
1. Personal Service
To party/counsel To the
defendant only
Residence, to person of suitable no
such thing as service by registered

Age and Discretion
mail
Purpose: acquisition of jurisdiction
2. Substituted Service
2. Substituted Service
3. Extraterritorial Service
Either personally or by publication
File a motion for leave of court inorder to be able
to serve extraterritorially
Extraterritorial Service by publication - may be
made only in four (4) instances as enumerated in
§15 of Rule 14 and Dial Co. v. Soriano.
In rem for publication.
Resident temporarily out may be served
extraterritorially, personally
Can apply to a foreigner having residence in the
Philippines
Rule 15
Motions
Municipality of Binan v. CA, 219 SCRA
FACTS: P filed a civil case for unlawful detainer
vs. G. After filing an answer, G filed a Motion for
Preliminary Hearing as if a Motion to Dismiss has
been Filed on the ground that the complaint states
no cause of action. The MTC, instead of
conducting a hearing, rendered a judgment order in
G to vacate the premises.
HELD: A motion for Preliminary Hearing is
merely PERMISSIVE. Sec. 5 Rule 16 is not
mandatory even when prayed for. It rests largely
on the sound discretion of the TC & is not a matter
of right demandable. A prelim hearing on an
affirmative defense of lack of cause of action is not
necessary since the question submitted is the
sufficiency of allegation in the complaint itself.
International Container Terminal Services v,
CA, 214 SCRA
Facts: ICTSI adopted its co-respondent PPA’s
MTD the complaint vs. them filed by Sharp. When
such MTD was granted, ICTSI moved for a
reconsideration of said order insofar as it dismissed
ICTSI’s counterclaim.
Held:
1. Dismissal of complaint on defendant’s own
motion operated to also dismiss the counterclaim
questioning the complaint.
2. Defendant himself joined PPA in moving for
dismissal of complaint; it did not object to the
dismissal. Secondly, compulsory claim was so
intertwined w/ complaint that it could not remain
pending for independent adjudication.
Calalang v. CA, 217 SCRA 462
73
Facts: The 7-year delay in the prosecution of the
bank’s case was due to the several MTD’s w/c
required oppositions & replies, pre-trial was reset
several times, & the judges handling the case were
constantly being replaced.
Held:
1. Though it is w/in the discretion of the TC to
declare a party non-suited for non-appearance in
pre-trial conference, such discretion must not be
abused.
2. To constitute sufficient ground for dismissal,
delay must not only be lengthy but also
unnecessary & dilatory resulting in the trifling of
judicial process.
Rule 16
Motion to Dismiss
Lagutan v. Icao, 224 SCRA 9
FACTS: The heirs of L filed a complaint vs. I for
specific performance. I, in his answer, raised the
ff. defenses: lack of cause of action, prescription,
non-compliance w/ the Statute of Frauds.
Afterwards, I filed a motion to dismiss. CFI
granted the MTD.
HELD: Under R. 16, a MTD must be filed w/in
the time for pleading (period to answer). Thus, the
ct. erred in granting the MTD considering that it
was filed 3 mo. after the amended answer was
filed.
The sufficiency of a motion to dismiss
should be tested on the strength of the allegations
of facts contained in the complain & no other. The
ct. cannot inquire into the truth of the allegations &
declare them to be false. Otherwise, there would
be a denial of procedural due process.
Laus v. CA, 219 SCRA
HELD: If a defendant had not been properly
summoned, the period to file a MTD for lack of
jurisdiction over his person does not commence to
run until he voluntarily submits to the jurisdiction
of the ct..
In this case, D did not voluntarily submit.
Thus, the period to file a responsive pleading did
not even commence to run.
As a general rule: an order denying a
MTD being interlocutory cannot be the subject of
certiorari.
EXCEPTION: When TC clearly acted
outside of its jurisdxn or w/ grave abuse of
discretion in denying MTD.
Bar by prior judgment
DBP v. Pondugar, 218 SCRA 118
FACTS: CFI dismissed the injunction suit filed
by IISMI vs. the government, DBP CB BOI &
Sheriff of Lanao del Norte w/ prejudice for IISMI’s
failure to appear during the pre-trial. Fourteen
years later, IISMI, Fernando Jacinto & Jacinto

Steel filed a complaint vs. DBP, NDC & NSC
before the RTC Iligan praying that the extrajudicial
foreclosure conducted in accordance w/ the
decision in the first case be annulled.
HELD:
1. As a general rule, certiorari is not
available since a motion to dismiss is merely
interlocutory. However, when the ct., in denying
the MTD, acts w/o or in excess of jurisdiction or w/
grave abuse of discretion, certiorari becomes
available to relieve the defendant of the trouble of
undergoing the ordeal & expense of a useless trial.
2. 2nd Case should be dismissed bec. of
res judicata.
RES JUDICATA - ELEMENTS
a. Former judgment must be
final. CFI order has attained finality
since there was no motion for recon or
appeal.
b. The ct. w/c rendered it had
jurisdiction over the subject matter
& the parties.
c. Must be a judgment on the
MERITS. The first case was an adjudication
on the merits since the CFI considered the
evidence presented during the hearing;
dismissed w/ prejudice due to failure to
appear during pre-trial despite due notice.
d. There must be, between the
1st & 2nd actions, identity of parties, subject
matter & cause of action.
Absolute identity of parties is not
required. Substantial identity is sufficient.
Inclusion of add’l parties will not affect the
application of RJ.
Test Of Identity of COA does not
lie in the form of the action but on whether
the same evidence would support &
establish the former & present COA
3. RTC has committed grave abuse of
discretion in taking jurisdiction . Although it is not
prayed that the CFI orders be annulled, the effect is
to annul the findings of mismanagement & to
relitigate the same claims. Action for
reconveyance is misleading since it is but the
inevitable consequence if the CFI orders are
annulled.
4. A finding that the complaint states a
COA does not imply that the complainant is
assured of a ruling in his favor. While a MTD
based on failure of the complainant to state a COA
necessarily carries w/ it the admission, for purposes
of the motion, of the truth of all material facts
pleaded in the complaint, what is submitted for
determination therein is the sufficiency of the
allegations in the complaint.
5. A MTD may be granted even if only 1
ground is present.
Litis pendencia
Vitrionics Computers v. RTC, 217 SCRA 1
74
FACTS: P filed w/ the RTC Makati Br. 63 a
complaint for a sum of money & damages vs. PR
(*1st case - Civil Case # 91-2069) The following
day, the PR filed a complaint for the nullification of
the contract on the ground of fraud. This was
docketed as Civil Case # 91-2192 * 2nd case.
PR filed a MTD & or to suspend
proceedings 1st case. RTC Makati Br. 63
dismissed the 1st case on the ground of litis
pendentia
HELD: The 2nd case should be the one dismissed
& not the 1st case.
REQUISITES OF LITIS PENDENTIA
1. Identity of parties or at least such as
representing the same interests in both actions;
2. Identity of rights asserted & relief
prayed for; the relief being founded on the same
facts;
3. Identity in the 2 cases should be such
that the judgment that may be rendered in the
pending case would, regardless of w/c party is
successful, amount to res judicata in the other.
In our jurisdiction, the ROC simply
requires that there is a PENDING action, NOT a
PRIOR PENDING ACTION. Therefore, the
priority in time rule is not applicable.
***CRITERIA IN DETERMINING
WHICH OF THE CASES SHOULD BE ABATED
1. The more appropriate action shall be
maintained (Teodoro vs. Mirasol)
2. Interest of justice test, taking into
account a) the nature of controversy; b)
comparative accessibility of the ct. to the parties; c)
other similar factors (Roa-Magsaysay vs.
Magsaysay)
**In both tests, the bona fides or the good
faith of the parties shall be taken into consideration
Res judicata
Abalos v. CA, 223 SCRA
FACTS: The RTC, acting as a Land Registration
Court, granted the application for registration of
title filed by A. After this, PR filed a complaint vs.
A for the annulment of the document of sale & or
redemption of ownership plus damages. A filed a
MTD on the ground of res judicata.
HELD: MTD granted on the ground of res
judicata. The general rule is that the land
registration ct. has limited jurisdiction.
EXCEPTIONS: 1. The parties have agreed or
have acquiesced in submitting the issues for
determination by the ct. in the proceedings; 2. the
parties were accorded opportunity in presenting
their respective arguments of the issues litigated &
of the evidence in support thereof; 3. the ct. has
already considered the evidence on record & is
convinced that the same is sufficient & adequate
for rendering a decision upon the issues
controverted. In the CAB, the issue of ownership
was fully ventilated.
While the jurisdiction of the LRC is
limited, the power to determine the validity of the

documents pertaining to sale of lands is necessarily
w/in its jurisdiction.
Res judicata v. conclusiveness of judgment
Nabus v. CA, 190 SCRA
FACTS: Nabus brought an action for
reconveyance of land vs. Lim. This was based on
the Public Land Law. Upon failure of N to comply
w/ the ct. order (CFI ordered him to deposit the
repurchase price), the ct., upon L’s filing of a MTD,
dismissed the case w/ prejudice.
N filed a 2nd case for the rescission of the contract
Was the complaint for rescission & damages
barred by prior judgment of dismissal.
HELD: NO.
A. Res Judicata has 2 concepts:
1. Bar by Former Judgment. There is
identity of parties, subject matter & COA. The
judgment on the merits rendered on the 1st case
constitutes an absolute bar to the subsequent action
not only as to every matter w/c was offered but as
to any admissible matter w/c might have been
offered for that purpose.
ELEMENTS OF BAR BY FORMER
JUDGMENT
a. presence of a final former
order
b. former judgment rendered by
a ct. having jurisdiction over
the subject matter & the parties
c. former judgment is a
judgment on the merits.
d. identity of parties, subject
matter & cause of action.
Judgment on the Merits
⇒When it determines the rights & liabilities of the
parties based on disclosed facts, irrespective of
formal, technical or dilatory objections.
⇒Where complaint is dismissed for failure of P to
comply w/ a lawful order of the ct., this has the
effect of an adjudication upon the merits.
In the CAB, there is No identity of Cause
of Action since the evidence that was presented in
the 1st case is not the same evidence that is needed
to sustain the 2nd case.
2. Conclusiveness of Judgment - There is
identity of parties but no identity of cause of action.
In this case, judgment is conclusive only as to
matters actually & directly controverted &
determined & not as to matters merely involved.
This is not applicable bec. the unpaid balance was
never put in issue.
B. Nevertheless, the action was dismissed
bec. it had has already prescribed.
UP v. CA, 218 SCRA 72
75
FACTS: Elizalde & the Tasaday
representatives filed a case vs. B & S based on
torts. UP filed a motion to intervene w/c was
granted. After UP has filed an answer in
intervention, B & S filed a MTD on the ground of
lack of COA. Court denied B & S’s MTD. Up
also filed a MTD but this was denied bec. UP has
already filed an answer.
HELD: Res Judicata does not apply bec. there is
no identity of subject matter. The ct. denied B &
S’s MTD on the ground that there is a COA while it
denied UP’s MTD bec. it had already filed an
answer.
The argument that B & S are protected by
academic freedom is a valid defense that must be
raised during trial.
It is not w/in the competence of the ct. to
declare the Tasadays a distinct ethnic community.
This is akin to a prayer for a judicial declaration of
citizenship w/c may not be granted in a petition for
declaratory relief.
LECTURE ON DISMISSALS
MTD should contain:
a) relief sought to be obtained
a) grounds on which it is based
a) supporting affidavits and other papers as
required by the Rules or to prove the facts alleged
a) notice of hearing since MTD can't be heard ex
parte
Procedure: Movant: one who files motions: sets
date for hearing: clerk of court to calendar it after
getting proof of service: oppositor should have
actual receipt of notice 3 days before hearing and
hearing should not be > 10 days from filing of the
motion: periods depend on how the filing is done
whether personal delivery or registered mail: if the
latter, explainwhy not personal delivery and with
proof of service
Execptions to motions must be in writing:
a) made in open court or made in the course of a
hearing or trial
eg. Exclude public; hold other counsel in
contempt; admissibility of evidence; motion to
leave the court
a) motions which do not substantially prejudice the
rights of the other party
eg. Motions for suspension of the trial
If no MTD filed, any of the grounds for an MTD
can be raised as an affirmative defense
Except lack of jurisdiction over the person
Affirmative defense since it means that D made an
answer and subjected himself to the jurisdiction of
the court
Defenses NOT waived when not set up in an MTD
or affirmative defense Rule 9 sec 1
a) jurisdiction over subject matter
a) res judicata or statute of limitations
 76

a) litis pendencia
if D files MTD for failure to state a cause of action,
P's remedy is to file an amended pleading
Nature of MTD: hypothetically admits allegations
in complaint as true: affirmative defense
MTD confusion and avoidance (WIT):
hypothetical admission and denial
on same ground since already settled that not res
judicata (WIT)
LINA V CA: Remedies for default judgment
a) motion to set aside order of default
b) motion for new trial
c) appeal
d) petition for review of judgment

Possible defenses when served with a complaint. LAUS: no default since D did not receive
Line by line: summons. Period for filing answer has not yet
RTC - lack of jurisdiction started to run. Remedy: MTD. Remedy if MTD
NCR, QC - wrong venue denied: certiorari for arbitrary ruling
P - lack of capacity to sue
Summons - lack of J over D NOTES ON MOTION TO DISMISS
Pleading - no cause of action
Body - litis pendentia, res judicata, Bar by prior judgment
paid/waived/unenforceable conclusiveness of judgment
Allegations of conditions precedent - JUDGMENT Former judgment
failure to undergo conditions precedent F
Failure to include certification against Valid court with jurisdiction
forum shopping under oath V
Merits
Court after proper hearing on MTD can: M
a) sustain MTD and dismiss the complaint
b) deny the MTD and compel D to file an answer
c) order that the complaint be amended IDENTITY Cause of action
Subject matter
Court will rule on face of document: no need to Parties
receive evidence but should give other party the
opportunity to be heard. Other party to file his
opposition to the MTD Certiorari Special civil action
May be related to main cause of
Hearing not necessary if there is no need to present action
evident WON court a quo committed
eg. improper venue, no jurisdiction over subject grave abuse of discretion
matter or person - just study complaint or return of
summons U. P. case - certiorari by Bailen and Salazar in SC
When hearing necessary, movant has the burden of first civil action
proving his opposition. D to present evidence first.
Evidence presented during hearing on MTD Certiorari - as a mode of appeal
automatically reproduced during trial Certiorari - special civil action, grave abuse of
discretion
Hearing on motion: receive evidence in support of Distinguish between petition for review by
motion certiorari and original special civil action for
Trial : receive evidence on ultimate certiorari
causes
UP -orders of MTD contained two (2) different
MTD not a responsive pleading but a motion things
After filing MTD can no longer file Bill of Special civil action is a different thing
Particulars since MTD means that D is presumed to Certiorari is an extraordinary remedy
have understood the complaint. Must file B of P
before MTD then motion for extension of time to Answer-in-intervention: grounds for dismissal may
plead then pleading with counterclaim be raised in an affirmative defense inspite of prior
dismissal of a MTD by the original defendant.
NOTE Rule 16 sec 6 makes it discretionary on the
trial court to rule on affirmative defense raising any Procedure to intervene:
of the grounds of MTD as long as MTD not filed 1. Motion for leave of court to intervene
2. After granting by the court, intervenor may file
L: res judicata already raised as MTD, MTD denied MTD.
during hearing, then can't raise affirmative defense Denial of MTD is only a denial of the hypothetical
admission mode by the defendant but may still be

controverted in the trial. Once a MTD has been
filed and denied, grounds raised can no longer be
set up as affirmative defenses.
Lack of Jurisdiction over the person cannot be
raised in an affirmative defense.
Default - remedy of the complainant
Rule 17 §37 - plaintiff declared non-suited.
If answer filed after reglementary period
and default (motion) filed thereafter, court should
not render an order of default since default are
generally frowned upon.
Remedies for a default judgment:
1. Motion under oath to set aside order of default
2. Motion for new trial - judgment not final &
executory
3. Petition for relief from judgment - judgment
final & executory
4. Appeal - no way that defendant can present
evidence.
Rule 19 § 5 - failure of defendant to appear,
presentation of evidence shall be proved.
No more "as in default"
No opportunity to jump to judgment, only that
plaintiff may present evidence ex-parte.
Lesaca - What judgment can be rendered
Rule 34. Judgment on the Pleadings
If no material issue is contested (e.g. only amount
of damages), judgment on the pleadings may be
issued.
MTD - confession/avoidance
Motion for Summary Judgment - remedy so as not
to go through the entire trial.
Motion for Summary Judgment may be substituted
by an Answer.
Judgment after Trial ] Rule 9, Sec. 3
Summary Judgment ] Default
Judgment on the merits;
Judgement on the Pleadings ] ways
of terminating trial
Judgment by Default ] Facts: supra.
MTD - judgment which do not look at the merits
Final orders
Judgment ] Ways of terminating
trial
Order ] Default, they shall not lose their right to the
Rule 17
Dismissal of Actions
77
Meliton v. CA, supra
Facts: When the complaint vs. Meliton was
dismissed, her counterclaims were also dismissed,
w/ the trial ct. ruling that it acquired no jurisdiction
over such counterclaims due to non-payment of
docket fees. Later, Meliton sued on these
counterclaims. The defendants therein raised the
defense of res judicata.
Held: Where a counterclaim is made the subject of
a separate suit, it may be abated upon a plea of
auter action pendentia or litis pendentia, &/or
dismissal on the ground of res judicata. Res
judicata, however, is not applicable since
counterclaim was dismissed w/o prejudice since the
ct. held that it did not acquire jurisdiction due to
non-payment of docket fees. Neither is there litis
pendentia. Dismissal on the ground of lack of
jurisdiction does not constitute res judicata, there
having been no consideration & adjudication of the
case on the merits.
DBP v. Pondugar, supra
Facts: IISMI instituted an injunction suit to stop
foreclosure on its property. PI was issued. While
case was pending in 1972, Martial Law was
declared. 1972 LC dissolved the writ & held there
was mismanagement b IISMI. LC said applicant
for preliminary injunction should establish a clear
case & must come to ct. w/ clean hands. PI being
an equitable remedy. LC dismissed the case. 14
years later, complaint was filed to set aside the
foreclosure.
Held: Complaint should be dismissed. There is res
judicata as the former judgment was final, ct. had
jurisdiction over subject matter & parties, there was
judgment on the merits, & there was identity of
parties, subject matter & COA’s. Martial Law
doesn’t qualify as a force majeure w/c would
suspend the running of the period. That the Jacintos
were abroad & couldn’t come home as Marcos
canceled their passports is not a bar to the filing of
the injunction case. When they lost, they should
have filed an appeal or separate action to annul the
same through their consuls based here.
Lim Tan Hu v. Ramolete, supra
Held: Parties declared in default waive their right
to be heard & present evidence & are not entitled to
receive notice of other proceedings & to service of
papers except when the latter consist of
substantially amended pleadings & final orders. If
the parties in default file a Motion to Lift Order of
notices.
Malanyaon v. Sunga, 208 SCRA
Facts: Petitioner got sick & asked the judge to
defer the schedule of his appearance at the pre-trial

hearings. As P did not appear at the hearings, the
judge declared P in default & ordered his arrest.
Held: Where the failure to appear at the pre-trial
hearing was uncontrovertedly due to illness, the
default order may be set aside on the ground of
accident over w/c petitioner had no control. Also,
the order of arrest was illegal as there is nothing in
the Rules of Court w/c authorizes such as a
consequence of a default order.
Lesaca v. CA, 215 SCRA
Facts: Defendant failed to appear at the scheduled
preliminary conference for a complaint for
ejectment & as such was declared in default. The
ct. then considered the case submitted for decision.
Held: The Rules on Summary Procedure was
applied in this case. Sec. 6 thereof states that in
case of failure of parties to appear at the pre-trial
conf., the ct. should have issued a "preliminary
conference order" defining the issues of the case.
Thereafter the parties should have submitted their
affidavits & other evidence. Sec. 5 states that it is
only when defendants fail to file a responsive
pleading w/in the reglementary period may the ct.
proceed to render judgment. In the CAB, resp. did
not file an answer. TC may not declare him in
default bec. a motion to declare defendant in
default is a prohibited pleading under Sec. 15 (h) of
the Rules on SumPro.
Datu v. CA, 215 SCRA
Facts: Defendant Habaluyas was declared in
default. Decision was rendered in favor of
Mangelen awarding him exemplary damages w/c
was not included in his prayer for specific
performance.
Held: In a judgment based on evidence presented
ex-parte, judgment should not exceed the amount
or be different in kind fr. that prayed for Thus,
Mangelen is not entitled to exemplary damages.
On the other hand, in a judgment where an answer
was filed but def. did not appear at the hearing, the
award may exceed the amount or be different in
kind fr. that prayed for.
Dulos v. CA, 188 SCRA
Facts: Dulos spouses were declared as in default
for failure to appear at the pre-trial conference. In
their action for certiorari w/ the SC, they contend
that they were not able to move to set aside the
order of default since they were not furnished w/
copies of the order declaring them in default.
Held: Party in default is not entitled to notice of
subsequent proceedings under the Rules of Court.
Ramnami v. CA, 221 SCRA
Facts: A complaint for collection of a sum of
money was filed vs. the Ramnanis, who failed to
appear at pre-trial. They were declared in default.
A motion to lift the order of default was filed w/c
was denied. TC decision rendered vs. them. They
filed w/ the CA a petition for certiorari w/c was
dismissed since it was not the proper remedy.
Hence this petition.
78
Held: Motion to set aside default order could not
be issued since there was inexcusable non-
appearance (remember FAME?). The appropriate
remedy was an ordinary appeal under Sec. 2, Rule
41 of the Rules of Court. Certiorari is proper only
if party was illegally declared in default. In CAB,
no irregularities in the pre-trial have been alleged.
It is w/in the sound discretion of the ct. to set
aside an order of default but it is not error, or abuse
of discretion to refuse to set aside order of default
& to refuse to accept the answer where it finds no
justiciable reason for the delay of the filing of an
answer.
Gerales v. CA, 218 SCRA 68
Facts: supra.
Held: Pleadings, as well as remedial laws, should
be liberally construed in order that litigants may
have ample opportunity to prove their respective
claims, & possible denial of substantial justice, due
to technicalities may be avoided. Default judgment
is frowned upon, & unless it clearly appears that
reopening of the case is intended for delay, it is best
to give parties a chance to fight their case.
Rule 34
Judgment on the Pleadings
Rule 35
Summary Judgments
Rule 18
Pre-Trial
Sec. 1. When conducted. – After the last pleading
has been served and filed, it shall be the duty of the
plaintiff to promptly move ex parte that the case be
set for pre-trial.
Sec. 2. Nature and purpose. – The pre-trial is
mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of
a submission to alternative modes of dispute
resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to
the pleadings;
(d) The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of
issues to a commissioner;
(g) The propriety of rendering judgement on the
pleadings, or summary judgement, or of
dismissing the action should a valid ground
therefor be found to exist;
(h) The advisability or necessity of suspending the
proceedings; and

(i) Such other matters as may aid in the prompt
disposition of the action.
Sec. 3. Notice of pre-trial. – The notice of pre-
trial shall be served on counsel, or on the party who
has no counsel. The counsel served with such
notice is charged with the duty of notifying the
party represented by him.
Sec. 4. Appearance of parties. – It shall be the
duty of the parties and their counsel to appear at the
pre-trail. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if
a representative shall appear in his behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or
admissions of facts and of documents.
Sec. 5. Effect of failure to appear. – The failure of
the plaintiff to appear when so required pursuant to
the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court. A
similar failure on the part of the defendant shall be
cause to allow the plaintiff to present his evidence
ex parte and the court to render judgement on the
basis thereof.
Sec. 6. Pre-trial brief. – The parties shall file with
the court and serve on the adverse party, in such
manner as shall ensure their receipt thereof at least
three (3) days before the date of the pre-trial, their
respective pre-trial briefs which shall contain,
among others:
(a) A statement of their willingness to enter into
amicable settlement or alternative modes of
dispute resolution, indicating the desired terms
thereof.
(b) A summary of admitted facts and proposed
stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented,
stating the purpose thereof;
(e) A manifestation of their having availed or their
intention to avail themselves of discovery
procedures or referral to commissioners; and
(f) The number and names of the witnesses, and
the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial.
Sec. 7. Record of pre-trial. – The proceedings in
the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue an order
which shall recite in detail the matters taken up in
the conference, the action taken thereon, the
amendments allowed to the pleadings, and the
agreements or admissions made by the parties as to
79
any of the matters considered. Should the action
proceed to trial, the order shall explicitly define and
limit the issues to be tried. The contents of the
order shall control the subsequent course of the
action, unless modified before trial to prevent
manifest injustice.
Citibank v, Chua, 220 SCRA
Facts: Pre-Trial was set. Counsel of Citibank
appeared w/ an SPOA executed by Citibank officer
Tarriela in favor of the counsel to represent & bind
Pet at the PT conference. Velezes, the private resps,
moved to have Citibank declared “as in default”
since SPOA was not executed by the Board of
Directors. TC declared the bank “as in default.”
Held: TC should have accepted the first SPOA as
sufficient for PT. SC admonished Courts vs.
precipitate orders of default as they have the effect
of denying the litigant the chance to be heard.
There are instances when parties may properly be
defaulted, but such is the EXC rather than the rule
& should be allowed only in clear cases of
obstinate refusal or inordinate neglect to comply w/
ct. orders.
Municipality of Binan v. Garcia, 180 SCRA
Facts: A special civil action for eminent domain/
expropriation. Defendant, instead of filing answer
filed “MTD” on grounds not specified under Rule
16 (refer to Rule 16). Her MTD was filed pursuant
to R67, S3 of the ROC : “Within the time specified
in the summons, each defendant , in lieu of an
answer, shall present in a single motion to dismiss
of for other appropriate relief, all his objections &
defenses to the right of the plaintiff to take his
property for the use specified in the complaint.”
The TC :
creversed the order of trial allowing defendant to
present her evidence before the plaintiff &
csubsequently rendered order sustaining
defendant’s defense & dismissing the action as to
her, solely on her evidence
Rule: A MTD under Eminent Domain (R67) is
really an answer. Thus if such MTD is filed (under
R67), the order of trial remains under R30.
CAB: There was no valid cause to reverse the
order of trial. MTD here partakes the nature of a
pleading. Plaintiff should thus go first. What the
trial ct. have in mind was the provision of Sec. 5,
R16 allowing “any of the grounds for dismissal in
R16 to “be pleaded as an affirmative defense” &
authorizing the holding of a preliminary hearing x
x thereon as if a MTD has been filed. Defendants
defense however was not a ground for dismissal
under R16. She meant to prove plaintiff’s lack of
cause of action w/c is not the same as failure to
state a cause of action. There is also nothing in the
record to prove the Municipality’s waiver of right
to present contrary proof.
Rule 20
Calendar of Cases
 80

Section 2. By whom issued. - the subpoena may be

issued by -
Rule 30
Trial (a) the court before whom the witness is
required to attend;
(b) the court of the place where the
deposition is to be taken;
(c) the officer or body authorized by law
Rule 31 to do so in connection with investigations
Consolidation or Severance conducted by said officer or body or
(d) any Justice of the Supreme Court or of
the Court of Appeals in any case or investigation
pending within the Philippines.
Rule 32 When the application for a subpoena to a
Trial by Commissioner prisoner is made, the judge or officer shall examine
and study carefully such application to determine
whether the same is made for a valid purpose.
Laluan v. Malpaya, 64 SCRA No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is confined
Lim Tan Hu v. Ramolete, supra in any penal institution for appearance or
attendance in any court unless authorized by the
Pagkatipunan v. Bautista, 108 SCRA Supreme court.

NOTES ON TRIAL BY COMMISSIONER Section 3. Form and Contents. - A subpoena shall

state the name of the court and the title of the
Rule 18. Pre-Trial action or investigation, shall be directed to the
Laying down the issues - allegations and what are person whose attendance is required, and in the
being denied. case of a subpoena duces tecum, it shall also
Stipulation of facts - evidentiary facts contain a reasonable description of the books,
Compromise judgment - final & executory; documents or things demanded which must appear
immediately executory. to the court prima facie relevant.
1. Trial by assessors - Pagkatipunan v. Bautista,
mandatory Section 4. Quashing a subpoena. - The court may
Rarely invoked; tend to earn the ire of the judge quash a subpoena duces tecum upon motion
Sit only for the trial promptly made and, in any event, at or before the
time specified therein if it is unreasonable and
2. Trial by commissioners oppressive, or the relevancy of the books,
3. Delegation of reception of evidence by the Clerk documents or things does not appear, or if the
of Court person in whose behalf the subpoena is issued fails
to advance the reasonable cost of production
Qualifications of Assessors Act 190 - thereof.
The court may quash the subpoena ad
testificandum on the ground that the witness is not
bound thereby. In either case, the subpoena may be
Rule 33 quashed on the ground that the witness fees and
Demurrer to Evidence kilometrage allowed by these Rules were not
tendered when the subpoena was served.

Section 5. Subpoena for depositions. - Proof of

Rule 21
Subpoena
Section 1. Subpoena and subpoena duces tecum. -
Subpoena is a process directed to a person
requiring him to attend and to testify at the hearing
or the trial of an action, or at any investigation
conducted by competent authority, or for the taking
of his deposition. It may also require him to bring
with him any books, documents, or other things
under his control in which case it is called a
subpoena duces tecum.
service of a notice to take a deposition, as provided
in sections 15 and 25 of Rule 23, shall constitute
sufficient authorization for the issuance of
subpoenas for the persons named in said notice by
the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such
person without an order of the court.
Section 6. Service. - Service of a subpoena shall be
made in the same manner as personal or substituted
service of summons. The original shall be
exhibited and a copy thereof delivered to the

person on whom it is served, tendering to him the
fees for one day’s attendance and the kilometrage
allowed by these rules, except that, when a
subpoena is issued by or on behalf of the Republic
of the Philippines or an officer or agency thereof,
the tender need not be made. The service must be
made so as to allow the witness a reasonable time
for preparation and travel of the place of
attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents
or things demanded shall also be tendered.
Section 7. Personal appearance in court. - A person
present in court before a judicial officer may be
required to testify as if he were in attendance upon
a subpoena issued by such court or officer.
Section 8. Compelling attendance. - In case of
failure of a witness to attend, the court or judge
issuing the subpoena, upon proof of the service
thereof and of the failure of the witness, may issue
a warrant to the sheriff of the province, or his
deputy, to arrest the witness and bring him before
the court or officer where his attendance is
required, and the cost of such warrant and seizure
of such witness shall be paid by the witness if the
court issuing it shall determine that his failure to
answer the subpoena was willful; and without just
excuse.
Section 9. Contempt. - Failure by any person
without adequate cause to obey a subpoena served
upon him shall be deemed a contempt of the court
from which the subpoena is issued. If the subpoena
was not issued by a court, the disobedience thereto
shall be punished in accordance with the applicable
law or Rule.
Section 10. Exceptions. - The provisions of
sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100)
kilometers from his residence to the place where he
is to testify by the ordinary course of travel, or to a
detention prisoner if no permission of the court in
which his case is pending was obtained.
Discovery
Modes of Discovery
RULE 23
DEPOSITIONS PENDING ACTION
Section 1. Depositions pending actin, when may
be taken. - By leave of court after jurisdiction has
been obtained over any defendant or over property
which is the subject of the action, or without such
leave after an answer has been served, the
81
testimony of any person, whether a party or not,
may be taken, at the instance of any party, by
deposition upon oral examination or written
interrogatories. The attendance of witnesses may
be compelled by the use of a subpoena as provided
in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a
person confined in prison may be taken only by
leave of court on such terms as the court prescribes.
Section 2. Scope of examination. - Unless
otherwise ordered by the court as provided by
section 16 or 18 or this Rule, the deponent may be
examined regarding any matter, not privileged,
which is relevant to the subject of the pending
action, whether relating to the claim or defense of
any other party, including the existence,
description, nature, custody, condition, and location
of any books, documents, or other tangible things
and the identity and location of persons having
knowledge of relevant facts.
Section 3. Examination and cross-examination. -
Examination and cross-examination of deponents
may proceed as permitted at the trial under sections
3 to 18 of Rule 132.
Section 4. Use of depositions. - At the trial or upon
the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as
admissible under the rules of evidence, may be
used against any party who was present or
represented at the taking of the deposition or who
had due notice thereof, in accordance with any one
of the following provisions:
(a) Any deposition may be used by any
party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;
(b) The deposition of a party or of any one
who at the time of taking the deposition was an
officer, director, or managing agent of a public or
private corporation, partnership, or association
which is a party may be used by an adverse party
for any purpose;
(c) The deposition of a witness, whether
of not a party may be used by any party for any
purpose if the court finds: (1) that the witness is
dead; or (2) that the witness resides at a distance
more than one hundred (100) kilometers from the
place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by
the party offering the deposition; or (3) that the
witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment; or (4)
that the party offering the deposition has been
unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that
such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
regard to the importance of presenting the
testimony of witnesses orally in open court, to
allow the deposition to be used; and

(d) If only part of a deposition is offered
in evidence by a party; the adverse party may
require him to introduce all of it which is relevant
to the part introduced, and any party may introduce
any other parts.
Section 5. Effect of substitution of parties. -
Substitution of parties does not affect the right to
use depositions previously taken, and, when an
action has been dismissed and another action
involving the same subject is afterward brought
between the same parties or their representatives or
successors in interest, all depositions lawfully taken
and duly filed in the former action may be used in
the latter as if originally taken therefor;
section 6. Objections to admissibility. - Subject to
the provisions of section 29 of this Rule, objection
may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any
reason which would require the exclusion of the
evidence if the witness were then present and
testifying.
Section 7. effect of taking depositions. - A party
shall not be deemed to make a person his own
witness for nay purpose by taking his deposition.
Section 8. Effect of using depositions. - The
introduction in evidence of the deposition or any
part thereof for any purpose other than that of
contradicting or impeaching the deponent makes
the deponent the witness of the party introducing
the deposition, but this shall not apply to the use by
an adverse party of a deposition as described in
paragraph (b) of section 4 of this rule.
Section 9. Rebutting deposition. - At the trial or
hearing any party may rebut any relevant evidence
contained in a deposition whether introduced by
him or by any other party,
Section 10. Persons before whom depositions may
be taken within the Philippines. - Within the
Philippines, depositions may be taken before any
judge, notary public, or the person referred to in
section 14 hereof.
Section 11. Persons before whom depositions may
be taken in foreign countries. - In a foreign state or
country, depositions may be taken (a) on notice
before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of
the Republic of the Philippines; (b) before such
person or officer as may be appointed by
commission or under letters rogatory; or (c) the
person referred to in section 14 hereof.
Section 12. Commission or letters rogatory. - A
commission or letters rogatory shall be issued only
when necessary or convenient, on application and
notice, and on such terms and with such direction
82
as are just appropriate. Officers may be designated
in notices or commissions either by name or
descriptive title and letters rogatory may be
addressed to the appropriate judicial authority in
the foreign country.
Section 13. Disqualification by interest. - No
deposition shall be taken before a person who is a
relative within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the
parties; or who is a relative within the same degree,
or employee of such counsel; or who is financially
interested in the action.
Section 14. Stipulations regarding taking of
depositions. - If the parties so stipulate in writing,
depositions may be taken before any person
authorized to administer oaths, at any time or place,
in accordance with these Rules, and when so taken
may be used like other depositions.
Section 15. Deposition upon oral examination;
notice, time and place. - A party desiring to take the
deposition of any person upon oral examination
shall give reasonable notice in writing to every
other party to the action. The notice shall state the
time and place for taking the deposition and the
name and address of each person to be examined, if
known, and if the name is not known, a general
description sufficient to identify him or the
particular class or group to which he belongs. On
motion of any party upon whom the notice is
served, the court may for cause shown enlarge or
shorten the time.
Section 16. Orders for the protection of parties and
deponents. - After notice is served for taking a
deposition by oral examination upon motion
seasonably made by any party or by the person to
be examined and for good cause shown, the court
in which the action is pending may make an order
that the deposition shall not be taken, or that it may
be taken only at some designated place other than
that stated in the notice or that it may be taken only
in written interrogatories, or that certain matters
shall not be inquired into, or that the scope of the
examination shall be held with no one present
except the parties to the action and their officers or
counsel, or that after being sealed the deposition
shall be opened only by order of the court or that
secret processes, developments, or research need
not be disclosed, or that the parties shall
simultaneously file specified documents or
informatin enclosed in sealed envelope to be
opened as directed by the court, or the court may
make any other order which justice requires to
protect the party or witness from annoyance,
embarrassment or oppression.
Section 17. Record of examination; oath;
objections. - The officer before whom the
deposition is to be taken shall put the witness on

oath and shall personally, or by some one acting
under his direction and in his presence, record the
testimony of the witness. The testimony shall be
taken stenographically unless the parties agree
otherwise. All objectins made at the time of the
examination to the qualifications of the officer
taking the deposition, or to the manner of taking it,
or to the evidence presented, or to the conduct of
any party and any other objection to the
proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken
subject to the objections. In lieu of participating in
the oral examination, parties served with notice of
taking a deposition may transmit wrtieen
interrogatories to the officers, who shall propound
them to the witness and record the answers
verbatim.
Section 18. Motion to terminate or limit
examination. - At any time during the taking of the
depositin, on motion or petition of any party or of
the deponent and upon a shwing that the
examination is being conducted in bad faith or in
such manner, as unreasonably to annoy, embarrass,
or oppress the deponent or party, the court in which
the action is pending or the Regional Trial Court of
the place where the deposition is being taken may
order the officer conducting the examinatin to
cease forthwith from taking the deposition , or may
limit the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon
demand of the objecting party or deponent, the
taking of the deposition shall be suspended for the
time necessary to make a notice for an order. In
granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
court may deem reasonable.
Section 19. Submission to witness; changes;
signing. - When the testimony is fully transcribed,
the deposition shall be submitted to the witness for
examination and sahll be read to or by him, unless
such examination and reading are waived by the
witness and by the parties. Any changes in form or
substance which the wirness desires to make shall
be entered upon the deposition by the officer with a
statement of the reasons given by the witness for
making them. The deposition shall then be signed
by the witness, unless the parties by stiplation
waive the signing or the witness is ill or cannot be
found or refuses to sign. If the deposition is not
signed by the witness, the officer shall sign it and
state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of the
refusal to sign together with the reason given
therfor, if any, and the deposition may then be used
as fully as though signed, unless on a motion to
suppress under section 29(f) of this Rule, the court
83
hold that the reasons given for the refusla to sign
require rejection of the deposition in whole or in
part.
Section 20. Certification and filing by officer. -
The officer shall certify on the deposition that the
witness was duly sworn to by him and that the
deposition is a true record of the testimony given
by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of
the action and marked “Deposition of (here insert
the name of witness)” and shall promptly file it
with the court in which the action is pending or
send it by registered mail to the clerk thereof for
filing.
Section 21. Notice of filing. - The officer taking
the deposition shall give prompt notice of its filing
to all the parties.
Section 22. Furnishing copies. - Upon payment of
reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to
the deponent.
Section 23. Failure to attend of party giving notice.
- If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and
another attends in person or by counsel pusuant to
the notice, the court may order the party giving the
notice to pay such other party the amount of the
reasonably expenses incurred by him and his
counsel in so attensing, including reasonable
attorney’s fees.
Section 23. Failure of party giving notice to serve
subpoena. - If the party giving the notice of the
taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of
such failure does not attend, and if another party
attends in person or by counsel because he expects
the deposition of that witness to be taken, the court
may order the party giving the notice to pay to such
other party the amount of the reasonable expenses
incurred by him andhis counsel in so attending,
including reasonable attorney’s fees.
Section 25. Deposition ypon written
interrogatories; service of notice and of
interrogatories. - A party desiring to take the
deposition of any person ypon written
interrogatories shall serve them upon every other
party with a notice stating the name and address of
the person who is to answer them and the name or
descriptive title and address of the officer before
whom the deposition is to be taken. Within ten
(10) days thereafter, a party so served may serve
cross-interrogatories upon the party proposing to
take the deposition. Within five (5) days thereafter,
the latter may serve re-direct interrogatories upon a
party who has served cross-interrogatories. Within
three (3) days after being served with a re-direct

interrogatories, a party may serve recross-
interrogatories upon the party proposing to take the
deposition.
Section 26. Officers to take responses and prepare
record. - A copy of the notice and copies of all
interrogatories served shall be delivered by the
party taking the deposition to the officer designated
in the notice, who shall proceed promptly in the
manner provided by sections 17, 19 and 20 of this
Rule, to take the testimony of the witness in
response to the interrogatories and to prepare,
certify, and file or mail the deposition; attaching
thereto the copy of the notice and the
interrogatories received by him.
Section 27. Notice of filing and furnishing copies.
- When a deposition uon interrogatories is filed, the
officer taking it shall promptly give notice thereof
to all the parties, and may furnish copies to them or
to the deponent upon payment of reasonable
charges therefor.
Section 28. Orders for the protectin of parties and
deponents. = After the service of the interrogatories
and prior to the taking of the testimony of the
deponent, the court in which the action is pending,
on motin promptly made by a party or a deponent,
and for good cause shown, may make any order
specified in sections 15, 16 and 18 of this Rule
which is appropriate and just or an order that the
deposition shall not be taken before the officer
designated in the notice or that it shall not be taken
except upon oral examination.
Section 29. Effect of errors and irregularities in
depositions. -
(a) As to notice. - All errors and
irregularities in the notice for taking a deposition
are waived unless writeen objection is promptly
served upon the party giving the notice.
(b) As to disqualification of officer. -
Objection to taking a deposition because of
disqualification of the officer before whom it is to
be taken is waived unless made before the taking of
the deposition begins or as soon thereafter as the
disqualificatin becomes known or could be
discovered with reasonable diligence.
(c) As to competency or relevancy of
evidence. - Objections to the competency of a
witness or the competency, relevancy, or
materiality of testimony are not waived by failure
to make them bofore or during the taking of the
deposition, unless the ground of the objection is
one which might have been obviated or removed if
presented at that time.
(d) As to oral examinatin and other
particulars. - Errors and irregularities occurring at
the oral examination in the manner of taking the
deposition , in the form of the questions or
answers; in the oath or affirmation, or in the
conduct of the parties and errors of any kind which
84
might be obviated, removed, or cured if promptly
prosectued, are waived unless reasonable objection
thereto is made at the taking of the deposition.
(e) As to form of written interrogatories. -
Objections to the form of written interrogatories
submitted under sections 25 and 26 of this Rule are
waived unless served in writing upon the party
propounding them within the time allowed for
serving succeeding cross or other interrogatories
and within three (3) days after service of the last
interrogatories authorized.
(f) As to manner of preparation. - Errors
and irregularities in the manner in which the
testimony is transcribed or the deposition is
parepared, signed, certified, selaed, indorsed,
transmitted, filed, or otherwise dealt with by the
officer under sections 17, 19, 20 and 26 of this
Rule are waived unless a motion to suppress the
deposition or some part thereof is made with
reasonable promptness after such defect is, or with
due diligence might have been, ascertained.
RULE 24
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
Section 1. Depositions before action; petition. - A
person who desires to perpetuate his own testimony
or taht of another person regarding any matter that
may be cognizable in any court of the Philippines,
may file a verified petition in the court of the place
of the residence of any expected adverse party.
Section 2. Contents of petition. - The petition shall
be entitled in the name of the petitioner and shall
show: (a) that the petitioner expects to be a party to
an action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought; (b) the subject matter of the expected
action and his interest therein; (c) the facts which
he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it; (d) the
names or a description of the persons he expects
will be adverse parties and them addresses so far as
known; and (e) the names and addresses of the
persons to be examined and the substance of the
testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to
take the depositions of the persons to be examined
named in the petition for the purpose of
perpetuating their testimony.
Section 3. Notice and service. - The petitioner
shall serve a notice upon each person named in the
petition as an expected adverse party, together with
a copy of the petition; stating that the petitioner
will apply to the court, at a time and place named
therein, for the order described in the petition. At
least twenty (20) days before the date of the
hearing, the court shall casue notice thereof to be

served on the parties and prospective deponenets
int he manner provided for service of summons.
Section 4. Order and examination. - If the court is
satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make
an order designating or describing the persons
whose depostion may be takne and specifying the
subject matter of the examination and wherher the
depositions shall be taken upon oral examination or
written interrogatories. The depositions may then
be taken in accordance with Rule 23 before the
hearing.
Section 5. Reference to court. - For the purpose of
applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in
which the action is pending shall be deemed to
refer to the court in which the petition for such
deposition was filed.
Section 6. Use of deposition. - If a deposition to
perpetuate testimony is taken under this Rule,or if,
although not so taken, it would be admissible in
evidence, it may be used in any action involving
the smae subject matter subsequently brought in
accordance with the provisions of sections 4 and 5
of Rule 23.
Section 27. Depositions pending appeal. - If an
appeal has been taken from a judgment of a court,
including the Court of Appeals in proper cases, or
before the taking of an appeal if the time therefor
has not expired, the court in which the judgment
was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use in
the event of further proceedings in the said court.
In such case the party who desires to perpetuate the
testimony may make a motion in the said court for
leave to take the depositions, upon the smae notice
and service thereof as if the action was pending
therein.. The motion shall state a) the names and
addresses of the persons to be examined and the
substance of the testimony which he expects to
elicit from each; and (b) the reason for perpetuating
their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order
allowing the depositions so be taken, and thereupon
the depositions may be takne and used in the same
manner and under the smae conditions as are
prescribed in these Rules for depositions taken in
pending actions.
RULE 25
INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties; service
thereof. - Under the same conditions specified in
section 1 of Rule 23, any party desiring to elicit
material and relevant facts from any adverse parties
shall file and serve upon the latter written
85
interrogatories to be answered by the party served
or, fi the party served is a public or private
corporation or a partnership or association, by any
officer thereof competent to testify in its behalf.
Section 2. Answer to interogatories. - The
interrogatories shall be answered fully in writing
and shall be signed and sworn t by the person
making them. The party upon whom the
interrogatories have been sserved shall file and
serve a copy of the answers on the party submitting
the interrogatories within fifteen (15) days after
service thereof, unless the court on motino and for
good cause shown, extends or shortens the time.
Section 3. Objections to interrogatories. -
Objections to any interrogatories may be presented
to the court within ten (10) days after service
thereof, with notice as in case of a motion; and
answers shall be deferred until the objections are
resolved., which shall be at as early a time as is
practicable.
Section 4. Number of interrogatoties. - No party
may, without leave of court, serve more than one
set of interrogatories to be answered by the same
party.
Section 5. Scope and use of interrogatories. -
Interrogatories may relate to any matters that can
be inquired into under section 2 of Rule 23, and the
answers may be used for the same purposes
provided in section 4 of the same Rule.
Section 6. Effect of failure to serve written
interrogatories. - Unless thereafter allowed by the
court for good cause shown and to prevent a failure
of justice; a party not served with written
interrogatories may now be compelled by the
adverse party to give testimony in open court; or to
give a deposition pending appeal.
RULE 26
ADMISSION BY ADVERSE PARTY
Section1. Request for admission. - At any time
after issues have been joined, a party may file and
serve upon any party a written request for the
admission by the latter of the genuineness of any
material and releant document described in and
exhibited with the request or of the truth of any
meterial and relevant matter of fact set forth in the
request. Copies of the documents shall be
delivered with the request unless copies have
already been furnished.
Section 2. Implied admission. -0 Each of the
matters of which an admission is requested shall be
deemed admitted unless, within a period designated
in the request, which shall not be less than fifteen
(15) days after service thereof, or within such
further time as the court may allow on motion, the

party to whom the request directed files and serves
upon the party requesting the admission a sworn
statement either denying specifically the matters of
which an admission si requested or setting forth in
detail the reasons why he cannot truthfully either
admit or deny those matters.
Objections to any request for admission
shall be submitted to the court by the party
requested within the period for and prior to the
filinf of his sworn statement as contemplated in the
preceding paragraph and his compliance therewith
shall be deferred until such obligatins are resolved,
which resolution shall be made as early as
practicable.
Section 3. Effect of admission - Any admission
made by a party pursuant to such request is for the
purpose of the pending actin only and shall not
consitute an admission by him for any other
purpose nor may the same be used against him in
any other proceeding.
Section 4. Withdrawal. - The court may allow the
party making an admissin under this Rule, whether
express or implied, to withdraw or amend it upon
such terms as may be just.
Section 5. Effect of failure to file and serve request
for admission. - Unless otherwise allowed by the
court for good cause shown and to prevent a failure
of justice, a party who fails to file and serve aw
request for admission on the adverse party of
material and relevant facts at issue which, or ought
to be within the personal knowledge of the latter,
shall not be permitted to present evidence on such
facts.
RULE 27
PRODUCTION OR INSPECTION OF
DOCUMENT OR THINGS
Section 1. Motion for productio or inspection;
order. - Upon motion of any party showing good
cause therefor, the court in which an action is
pending may (a) order any party to produce and
permit the inspection and dopying or
photographing, by or on behalf of the moving
party, of any designated documents, papers, books,
accounts, loetters, photographs, objects or tangible
things, not privileged, which constitute or contain
evidence material to any matter involved in the
action and which are in his possessin, custody or
control; or (b) order any party or permit entry upon
designated land or other porpoerty in his possession
or control for the puropse of inspecting, measuring,
surveying, or photogrpahing the property or any
designated relevant object or operation thereon.
The order shall specify the time, place and manner
of making the inspection and taking ciopies and
photogrpahs, and may prescribe such terms and
conditions as are just.
86
RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
Section 1. When examination may be ordered. - In
an action on which the mental or physical condition
of a party is ain controversy, the court in which the
acito is pending may in its discretion order him to
submit to a physical or mental examination by a
physician.
Section 2. Oder for examination. - The orer for
examination may be made only on motion for good
cause shown and upon notice to the party to be
examined and to all other parties, and shall specify
the time, place, manner, conditions and scope of
the esmination and the person or persons by whom
it is to be made.
Section 3. Report of findings. - If requested by the
party examined, the party causeing the esamination
to be madee shall deliver to him a copy of a
detailed written report of the examining physician
setting out his findings and conclusions. After such
request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a like
report of any examination, previously or thereafter
made, of the same metnal or physical condition. If
the party examined refuses to deliver such report,
the court on motion and notice may make an order
requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the
court may exlude his testimony if offered at the
trial.
Section 4. Waiver of Privilege. - By requesting and
obtaining a report of the examination so ordered or
by taking the deposition of the examiner , the party
examined waives any privilege he may have in that
action or any other involving the same controversy,
regarding the testimony of every other person who
has examined or may thereafter examine him in
respect of the mental or physical examination.
RULE 29
REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
Section 1. Refusal to answer. - If a party or other
deponent refuses to answer any question upon oral
examination, the examination may be completed
on other matters or adjourned as the proponent of
the question may prefer. The proponent may
thereafter apply to the proper court of the place
where the deposition is being taken, for an order to
compel an answer. The same procedure may be
availed of when a party or a witness refuses to
answer any interrogatory submitted under Rules 23
or 25.
If the application is granted, the court
shall require the refusing party or deponent to

answer the question or interrogatory and if it also
finds that the refusal to answer was without
substantial justification, it may require the refusing
party or deponent or the counsel advising the
refusal, or both of them, to pay the proponent the
amount of the reasonable expenses incurred in
obtaining the order, including attorney’s fees.
If the application is denied and the court
finds that it was filed without substantial
justification, the court may require the proponent or
the counsel advising the filing of the application, or
both of them, to pay to the refusing party or
deponent the amount of the reasonable expenses
incurred in opposing the application, including
attorney’s fees.
Sec. 2. Contempt of court. - If the party or other
witness refuses to be sworn to answer any question
after being directed to do so by the court of the
place in which the deposition is being taken, the
refusal may be considered a contempt of that court.
Sec. 3. Other consequences - If any party or an
officer or managing agent of a party refuses to obey
an order made under section 1 of this Rule
requiring him to answer designated questions, or an
order under Rule 27 to produce any document or
other thing for inspection copying or
photographing or to permit it to be done, or to
permit entry upon land or other property, or an
order made under Rule 28 requiring him to submit
to a physical or mental examination, the court may
make such orders in regard to the refusal as are
just, and among others the following:
(a) An order that the matters regarding
which the questions were asked, or the character or
description of the thing or land, or the contents of
the paper , or physical or mental condition of the
party, or any other designated facts shall be taken to
be established for the purposes of the action in
accordance with the claim of the party obtaining
the order;
(b) An order refusing to allow the
disobedient party to support or oppose designated
claims or defenses or prohibiting him from
introducing in evidence designated document or
things or items of testimony, or from introducing
evidence of physical or mental condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
judgment by default against the disobedient party;
and
(d) In lieu of any of the foregoing orders
or in addition thereto, an order directing the arrest
of any party or agent of a party for disobeying any
such orders except an order to submit to a physical
or mental examination.
Sec. 4. Expenses on refusal to admit. - If a party
after being served with a request under Rule 26 to
87
admit the genuineness of any document or the truth
of any matter of fact, serves a sworn denial thereof
and if the party requesting the admissions thereafter
proves the genuineness of such document or the
truth of any such matter of fact, he may apply to
the court for an order requiring the other party to
pay him the reasonable expenses incurred in
making such proof, including attorney’s fees.
Unless the court finds that there were good reasons
for the denial or that admissions sought were of no
substantial importance, such order shall be issued.
Sec. 5. Failure of party to attend or serve answers. -
If a party or an officer or managing agent of a party
willfully fails to appear before the officer who is to
take his deposition, after being served with a proper
notice, or fails to serve answers to interrogatories
submitted under Rule 25 after proper service of
such interrogatories, the court on motion and
notice, may strike out all or any part of any
pleading of the party, or dismiss the action or
proceeding or any part thereof, or enter a judgment
by default against the party, and in its discretion,
order him to pay reasonable expenses incurred by
the other, including attorney’s fees.
Sec. 6. Expenses against the Republic of the
Philippines. - Expenses and attorney’s fees are not
to be imposed upon the Republic of the Philippines
under this Rule.
Republic v. Sandiganbayan, 204 SCRA 212
The various modes or instruments of
discovery are meant to serve (1) as a device, along
with the pre-trial hearing, to narrow and clarify the
basic issues between the parties, and (2) as a device
for ascertaining the facts relative to those issues.
The evident purpose is, to repeat, to enable the
parties, consistent with recognized privileges, to
obtain fullest possible knowledge of the issues and
facts before civil trails and thus prevent that said
trials are carried on in the dark. To this end, the
field of inquiry that may be covered by depositions
or interrogatories is as broad as when the
interrogated party is called as a witness to testify
orally at trial. The inquiry extends to all facts
which are relevant, whether they be ultimate or
evidentiary, excepting only those matters which are
privileged. The objective is as much to give every
party the fullest possible information of all relevant
facts before the trial as to obtain evidence for use
upon said trial.
In line with the principle of according
liberal treatment to the deposition-discovery
mechanism, such modes of discovery as a)
depositions (whether by oral examination or
 88

written interrogatories), (b) interrogatories to 2. Written interrogatories of the parties

parties, and (c) requests for admissions, may be 3. Admissions of the adverse party
availed of without leave of court, and generally, 4. Production or inspection of document or things
without court intervention. The Rules of Court 5. Motion for physical and mental examination of
explicitly provide that leave of court is not persons
necessary to avail of said modes of discovery after
an answer to the complaint has been served. It is Two Kinds of Depositions:
only when an answer has not yet been filed (but 1. Oral examination
after jurisdiction has been obtained over the 2. Written Interrogatories - different from two
defendant or property subject of the action) that above
prior leave of court is needed to avail of these
modes of discovery, the reason being that at that
time the issues are not yet joined and the disputed Motions: Don't forget:
facts are not clear. Notice, signatures
Request for admission, questions are
On the other hand, leave of court is answerable by yes or no
required as regards discovery by (a) production or Attach receipt of registered mail in the
inspection of documents or things in accordance pleading to be sent to the court.
with Rule 27, or (b) physical and mental
examination of persons under Rule 28, which may Purpose for suppression of evidence - based on
be granted upon due application and a showing of form.
due course. Purpose of provisional remedies - to prevent
judgment from being useless, judgment can be
satisfied
Po v. CA, 164 SCRA 668
A party should not be compelled to admit DISCOVERY
matters of fact already admitted by his pleading PROVISIONAL
and concerning which there is no issue, nor should
he be required to make a second denial of those PURPOSE to discover evidence
already denied in his answer to the complaint. A prevent judgment from being
request for admission is not intended to merely ineffective
reproduce or reiterate the allegations of the
requesting party’s pleading but should set forth NATURE ancilliary
relevant evidentiary matters of fact, or documents ancilliary
described in and exhibited with the request, whose -may be extrajudicial -should be
purpose is to establish said party’s cause of action applied for before the court where the action is
or defense. pending

Bribonera v. CA, 216 SCRA 607 MODES 1. Deposition

1. Preliminary attachment; pending appeal
(Same ruling as in Po v. CA.) 2. Written
The request for admission should be Interrogatories 2. Preliminary
served upon the party himself and not upon injunction
counsel. 3. Admission of adverse party
3. Receivership - pending appeal
4. Production/Inspection of Doc.
Revilla v. CA, 217 SCRA 583 4. Replevin
5. Physical & mental examination
Evidence is negative when the witness 5. Support pendente lite - pending appeal
states that he did not see or know the occurrence of
a fact, and positive when the witness affirms that a
fact did or did not occur. Don Cayetano’s
declaration that he did not execute a second will, PROVISIONAL REMEDIES
constitutes positive evidence of a fact personally
known to himself: that he did not make a second Preliminary Attachment
will. Rule 57

Sec. 1. Grounds upon which attachment may

NOTES ON DISCOVERY: issue. - At the commencement of the action or at
any time before entry of judgment, a plaintiff or
Modes of Discovery allowed by the Rules: any proper party may have the property of the
1. Depositions adverse party attached as security for the

satisfaction of any judgment that may be recovered
in the following cases:
(a) In an action for the recovery of a
specified amount of money or damages, other than
moral and exemplary, on a cause of action arising
from law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from
the Philippines with intent to defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or converted
to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent,
or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or
for a willful violation of duty;
(c) In an action to recover the possession
of property unjustly or fraudulently taken, detained
or converted, when the property, or any part
thereof, has been concealed, removed, or disposed
of to prevent its being found or taken by the
applicant or an authorized person;
(d) In an action against a party who has
been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is
brought, or in the performance thereof;
(e) In an action against a party who has
removed or disposed of his property, or is about to
do so, with intent to defraud his creditors; or
(f) In an action against a party who does
not reside and is not found in the Philippines, or on
whom summons may be served by publication.
If prayer for writ of attachment is included in a
Complaint, verification in the Complaint is
sufficient, separate affidavit is not necessary.
Sec. 2. Issuance and contents of order. - An order
of attachment may be issued either ex-parte or
upon motion with notice and hearing by the court
in which the action is pending, or by the Court of
Appeals or the Supreme Court, and must require
the sheriff of the court to attach so much of the
property in the Philippines of the party against
whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant’s demand,
unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that
fixed in the order, which may be the amount
sufficient to satisfy the applicant’s demand or the
value of the property to be attached as stated by
the applicant, exclusive of costs. Several writs may
be issued at the same time to the sheriffs of the
courts of different judicial regions.
Consolidated Bank and Trust Company v. Court of
Appeals
197 SCRA
Where the basis for the application of a writ of
attachment is embezzlement of money or property
committed by a defendant who is an officer of a
corporation, a public officer, or an atorney, factor,
89
broker or agent or clerk of the plaintiff, it is not
necessary to establish his fiduciary capacity before
the writ is granted as such fiduciary capacity is
assumed from the nature of his position. it is only
when the misappropriation was committed by any
other person that his fiduciary relationship with the
plaintiff will have to be established. Such
relationship does not have to be shown because it
suffices that the questioned acts of employing
illegal machinations in obtaining enormous credit
facilities for the corporation were committed by the
officers of UPLFC in the course of their duties and
not by “any other person in a fiduciary capacity.”
Sec. 3. Affidavit and bond required. - An order of
attachment shall be granted only when it appears
by the affidavit of the applicant, or some other
person who personally knows the facts, that a
sufficient cause of action exists, that the case is one
of those mentioned in section 1 hereof, that there is
no other sufficient security for the claim sought to
be enforced by the action, and that the amount due
to the applicant, or the value of the property the
possession of which he is entitled to recover, is as
much as the sum for which the order is granted
above all legal counterclaims. The affidavit, and
the bond required by the next succeeding section,
must be duly filed with the court before the order
issues.
K.O. Glass Const. Co., Inc. v. Valenzuela
116 SCRA
Facts:
Held: In pleading for attachment against a
foreigner, allegation must not be merely that
defendant is a foreigner; there must also be a
showing that defendant is about to leave the
Philippines with intent to defraud their creditor, or
that he is a non-resident alien.
Requisites for issuance of writ of attachment:
1. a sufficient cause of action exists;
2. case is one of those mentioned in Sec 1(a) of
Rule 57;
3. there is no other sufficient security for the claim
sought to be enforced by the action;
4. the amount due to the applicant for attachment or
the value of the property of which he is entitled to
recover is as much as the sum for which the order
is granted above all legal counterclaims.
Once defendant files a counter-bond, the writ of
attachment should be dissolved.
Sec. 4. - Condition of applicant’s bond. - The
party applying for the order must thereafter give a
bond executed to the adverse party in the amount
fixed by the court in its order granting the issuance
of the writ, conditioned that the latter will pay all
the costs which may be adjudged to the adverse

party and all damages which he may sustain by
reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto.
Bond - undertaking done by the surety that it will
pay the damages in case the party guaranteed does
not comply with the orders of the court.
Sec. 5. Manner of attaching property. - The sheriff
enforcing the writ shall without delay and with all
reasonable diligence attach, to await judgment and
execution in the action, only so much of the
property in the Philippines of the party against
whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant’s demand, unless the former makes a
deposit with the court from which the writ is
issued, or gives a counter-bond executed to the
applicant, in an amount equal to the bond fixed by
the court in the order of attachment or to the value
of the property to be attached, exclusive of costs.
No levy on attachment pursuant to the writ issued
under section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the
complaint, the application for attachment, the
applicant’s affidavit and bond, and the order and
writ of attachment, on the defendant within the
Philippines.
The requirement of prior
contemporaneous service of summons shall not
apply where the summons could not be served
personally or by substituted service despite diligent
efforts, or the defendant is a resident of the
Philippines temporarily absent therefrom, or the
defendant is a non-resident of the Philippines, or
the action is one in rem or quasi in rem.
Oñate v. Abrogar
230 SCRA 181
Facts:
Held: Writ of preliminary attachment may be
validly applied for and granted even before the
defendant is summoned or is heard from.
Enforcement of the preliminary attachment is valid
even if it preceded the actual service of summons
where a previous attempt to serve the summons and
the writ of attachment failed due to factors beyond
the control of either the plaintiff or the process
server.
Reasons:
1. Defendant may put his property beyond the
reach of the plaintiff while the latter is trying to
serve the summons and the writ anew.
2. Court eventually acquired jurisdiction over the
plaintiffs (6 days later).
3. Ease by which a writ of attachment can be
obtained is counter-balanced by the ease with
90
which the same can be discharged. To discharge
writ of preliminary attachment, defendant simply
has to make a cash deposit or post a counter-bond
equivalent to the value of the property attached.
Sec. 6. Sheriff’s return. - After enforcing the writ,
the sheriff must likewise without delay make a
return thereon to the court from which the writ
issued, with a full statement of his proceedings
under the writ, and a complete inventory of the
property attached, together with any counter-bond
given by the party against whom attachment is
issued, and serve copies thereof on the applicant.
Sec. 7. Attachment of real and personal property;
recording thereof. - Real and personal property
shall be attached by the sheriff executing the writ
in the following manner:
(a) Real property, or growing crops
thereon, or any interest therein, standing upon the
records of the registry of deeds of the province in
the name of the party against whom attachment is
issued, or not appearing at all upon such records,
or belonging to the party against whom attachment
is issued and held by any other person, or standing
on the records of the registry of deeds in the name
of any other person, by filing with the registry of
deeds a copy of the order, together with a
description of the property attached, and a notice
that it is attached, or that such real property and
any interest therein held by or standing in the name
of such other person are attached, and by leaving a
copy of such order, description, and notice with the
occupant of the property, if any, or with such other
person or his agent if found within the province.
Where the Land Registration Act or the Property
Registration Decree, the notice shall contain a
reference to the number of the certificate of title,
the volume and page in the registration book where
the certificate is registered, and the registered
owner or owners thereof.
The registrar of deeds must index
attachments filed under this section in the names of
the applicant, the adverse party, or the person by
whom the property is held or in whose name it
stands in the records. If the attachment is not
claimed on the entire area of the land covered by
the certificate of title, a description sufficiently
accurate for the identification of the land or
interest to be affected shall be included in the
registration of such attachment;
(b) Personal property capable of manual
delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt
therefor;
(c) Stocks or shares, or an interest in
stocks or shares, of any corporation or company,
by leaving with the president or managing agent
thereof, a copy of the writ, and a notice stating that
the stock or interest of the party against whom the
attachment is issued is attached in pursuance of
such writ;
 91

(d) Debts and credits, including bank property not capable of

deposits, financial interest, royalties, commissions manual delivery
and other personal property not capable of manual Serve executor or
delivery, by leaving with the person owing such administrator with a
debts, or having in his possession or under his Interest of an heir, copy of the writ and a
control, such credits or other personal property, or legatee or devisee in notice that said interest
with his agent, a copy of the writ, and notice that the property of a is attached.
the debts owing by him to the party against whom decedent File copy of the writ
attachment is issued, and the credits and other and notice of
personal property in his possession or under his attachment with clerk
control, belonging to said party, are attached in of court where estate is
pursuance of such writ; being settled.
(e) The interest of the party against whom
attachment is issued in the property belonging to Sec. 8. Effect of attachment of debts, credits and
the estate of the decedent, whether as heir, legatee, all other similar personal property. - All persons
or devisee, by serving the executor or having in their possession or under their control
administrator or other personal representative of any credits or other similar personal property
the decedent with a copy of the writ and notice that belonging to the party against whom attachment is
said interest is attached. A copy of said writ of issued, or owing any debts to him, at the time of
attachment and of said notice shall also be filed in service upon them of the copy of the writ of
the office of the clerk of court in which said estate attachment and notice as provided in the last
is being settled and served upon the heir, legatee or preceding section, shall be liable to the applicant
devisee concerned. for the amount of such credits, debts or other
If the property sought to be attached is in similar personal property, until the attachment is
custodia legis, a copy of the writ of attachment discharged, or any judgment recovered by him is
shall be filed with the proper court or quasi- satisfied, unless such property is delivered or
judicial agency, and notice of the attachment transferred, or such debts are paid, to the clerk,
served upon the custodian of such property. sheriff, or other proper officer of the court issuing
the attachment.
Properties subject to Manner of attachment
attachment Garnishment - is a species of attachment for
File with register of reaching any property or credits pertaining or
deeds a copy of the payable to a judgment debtor. It is a forced
order of attachment novation by the substitution of creditors: the
with notice that it is judgment debtor, who is the original creditor of the
Real property, growing attached and a garnishee, is, through the service of the writ of
crops thereon, any description of the garnishment, substituted by the judgment creditor
interest in such real property being who thereby becomes creditor of the garnishee. It
property attached serves as a warning to a person having in his
Leave copy of possession property or credits of the judgment
attachment order, debtor, not to pay the money or deliver the property
description and notice to the latter, but rather to appear and answer the
with the occupant of plaintiff’s suit.
the property
Serve attachment Perla Compania de Seguros, Inc. v. Ramolete
Personal property order, issue receipt for 203 SCRA
capable of manual the property being
delivery attached and take Facts:
property in his custody
Leave with president Held: Service of summons upon the person of the
or managing agent garnishee is not necessary to acquire jurisdiction
Stocks or shares, copy of the writ and over his person, all that is necessary is the service
interest in such stocks notice that said stocks of the writ of garnishment. Through the service of
or shares or shares or any the writ of garnishment, the person who has in his
interest therein is possession credits belonging to the judgment
attached debtor becomes a “virtual party” to or a “forced
Debts and credits Leave with person intervenor” in, the case and the trial court thereby
(bank deposits, owing such debts or acquires jurisdiction over his person. Such person
financial interest, credits a copy of the is, therefore, bound to comply with all orders and
royalties,commissions) writ and a notice that processes of the trial court with a view to the
such debts or credits complete satisfaction of the judgment of the court.
Other personal are attached

Garnishment of third party liability insurance
contract may be effected from the moment the
insured became liable to the third person for it is
also at that moment that the insured acquired an
interest in the insurance contract. Such interest may
be garnished like any other credit. It is not
necessary that the insured has effected payment to
the injured third person in order that the obligation
of the insurer may arise.
Sec. 9. Effect of attachment of interest in property
belonging to the estate of a decedent. - The
attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the powers of the
executor, administrator, or other personal
representative of the decedent over such property
for the purpose of administration. Such personal
representative, however, shall report the
attachment to the court when any petition for
distribution is filed, and in the order made upon
such petition, distribution may be awarded to such
heir, legatee, or devisee, but the property attached
shall be ordered delivered to the sheriff making the
levy, subject to the claim of such heir, legatee, or
devisee, or any person claiming under him.
Sec. 10. Examination of party whose property is
attached and persons indebted to him or
controlling his property; delivery of property to
sheriff. - Any person owing debts to the party
whose property is attached or having in his
possession or under his control any credit or other
personal property belonging to such party, may be
required to attend before the court in which the
action is pending, or before a commissioner
appointed by the court, and be examined on oath
respecting the same. The party whose property is
attached may also be required to attend for the
purpose of giving information respecting his
property, and may be examined on oath. The court
may, after such examination, order personal
property capable of manual delivery belonging to
him, in the possession of the person so required to
attend before the court, to be delivered to the clerk
of court of sheriff on such terms as may be just,
having reference to any lien thereon or claim
against the same, to await the judgment in the
action.
Sec. 11. When attached property may be sold after
levy on attachment and before entry of judgment.
- Whenever it shall be made to appear to the court
in which the action is pending, upon hearing with
notice to both parties, that the property attached is
perishable, or that the interests of all the parties to
the action will be subserved by the sale thereof, the
court may order such property to be sold at public
auction in such manner as it may direct and the
proceeds of such sale to be deposited in court to
abide the judgment in the action.
92
Sec. 12. Discharge of attachment upon giving
counter-bond. - After a writ of attachment has
been enforced, the party whose property has been
attached or the person appearing on his behalf,
may move for the discharge of the attachment
wholly or in part on the security given. The court
shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a
cash deposit, or files a counter-bond executed to
the attaching party with the clerk of the court
where the application is made an amount equal to
that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought
to be discharged with respect to a particular
property, the counter-bond shall be equal to the
value of that property as determined by the court.
In either case, the cash deposit or the counter-
bond shall secure the payment of any judgment that
the attaching party may recover in the action. A
notice of the deposit shall forthwith be served on
the attaching party. Upon the discharge of the
attachment in accordance with the provisions of
this section, the property attached, or the proceeds
of any sale thereof, shall be delivered to the party
making the deposit or giving the counter-bond, or
to the person appearing on his behalf, the deposit
or counter-bond aforesaid standing in place of the
property so released. Should such counter-bond for
any reason be found to be or become insufficient,
and the party furnishing the same fail to file an
additional counter-bond, the attaching party may
apply for a new order of attachment.
Motion to Discharge cannot be acted upon ex-parte
- must be accompanied by hearing.
Sec. 13. Discharge of attachment on other
grounds. - The party whose property has been
ordered attached may file a motion with the court
in which the action is pending, before or after levy
or even after the release of the attached property,
for an order to set aside or discharge the
attachment on the ground that the same was
improperly or irregularly issued or enforced, or
that the bond is insufficient. If the attachment is
excessive, the discharge shall be limited to the
excess. If the motion be made on affidavits on the
part of the movant but not otherwise, the attaching
party may oppose the motion by counter-affidavits
or other evidence in addition to that on which the
attachment was made. After due notice and
hearing, the court shall order the setting aside or
the corresponding discharge of the attachment if it
appears that it was improperly or irregularly
issued or enforced, or that the bond is insufficient,
or that the attachment is excessive and the defect is
not cured forthwith.
Peroxide Philippines Corp. v. Court of Appeals
199 SCRA

Where the order lifting of the writ of attachment
was improperly issued as the attaching creditor was
not allowed to oppose the application for the
discharge of the attachment by counter-affidavit or
other evidence, such order is void and does not
have any effect at all to the writ of attachment. The
writ continued to be valid from its issuance since
the judgment had not been satisfied , nor has there
been a valid discharge thereof either by the filing of
a counter-bond or for improper or irregular
issuance.
Sec. 14. Proceedings where property claimed by
third person. - If the property attached is claimed
by any person other than the party against whom
attachment had been issued or his agent, and such
person makes an affidavit of his title thereto, or
right to the possession thereof, stating the grounds
of such right or title, and serves such affidavit upon
the sheriff while the latter has possession of the
attached property, and a copy thereof upon the
attaching party, the sheriff shall not be bound to
keep the property under attachment, unless the
attaching party or his agent, on demand of the
sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property levied upon. In
case of disagreement as to such value, the same
shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or
keeping of the property may be enforced against
the bond unless the action therefor is filed within
one hundred twenty (120) days from the date of the
filing of the bond.
The sheriff shall not be liable for damages
for the taking or keeping of such property, to any
such third-party claimant, if such bond shall be
filed. Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property, or prevent the attaching
party from claiming damages against a third-party
claimant who filed a frivolous or plainly spurious
claim, in the same or separate action.
When the writ of attachment is issued in
favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued
for damages as a result of the attachment, he shall
be represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose.
Sec. 15. Satisfaction of judgment out of property
attached; return of sheriff. - If judgment be
recovered by the attaching party and execution
issue thereon, the sheriff may cause the judgment
to be satisfied out of the property attached, if it be
sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of the court
93
or so much as shall be necessary to satisfy the
judgment;
(b) If any balance remains due, by selling
so much of the property, real or personal, as may
be necessary to satisfy the balance, if enough for
that purpose remain in the sheriff’s hands, or in
those of the clerk of the court;
(c) By collecting from all persons having
in their possession credits belonging to the
judgment obligor, or owing debts to the latter at
the time of the attachment of such credits or debts,
the amount of such credits and debts as determined
by the court in the action, and stated in the
judgment, and paying the proceeds of such
collection over to the judgment obligee.
The sheriff shall forthwith make a return
in writing to the court of his proceedings under this
section and furnish the parties with copies thereof.
Sec. 16. Balance due collected upon execution;
excess delivered to judgment obligor. - If after
realizing upon all the property attached, including
the proceeds of any debts or credits collected, and
applying the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment, less the expenses of
proceedings upon the judgment, less the expenses
of proceedings upon the judgment, any balance
shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return to
the judgment obligor the attached property
remaining in his hands, and any proceeds of the
sale of the property attached not applied to the
judgment.
Sec. 17. Recovery upon the counter-bond. - When
the judgment has become executory, the surety or
sureties on any counter-bond given pursuant to the
provisions of this Rule to secure the payment of the
judgment shall become charged on such counter-
bond and bound to pay the judgment obligee upon
demand the amount due under the judgment, which
amount may be recovered from such surety or
sureties after notice and summary hearing in the
same action.
Towers Assurance Co. v. Ororama Supermart
80 SCRA
In order that the judgment creditor might recover
from the surety on the counterbond, it is necessary
(1) that execution be first issued against the
principal debtor and that such execution was
returned unsatisfied in whole or in part; (2) that the
creditor made a demand upon the surety for the
satisfaction of the judgment; and (3) that the surety
be given notice and a summary hearing in the same
action as to his liability for the judgment under his
counterbond.

Sec. 18. Disposition of money deposited. - Where
the party against whom attachment had been
issued has deposited money instead of giving
counter-bond, it shall be applied under the
direction of the court to the satisfaction of any
judgment rendered in favor of the attaching party,
and after satisfying the judgment the balance shall
be refunded to the depositor or his assignee. If the
judgment is in favor of the party against whom
attachment was issued, the whole sum deposited
must be refunded to him or his assignee.
Sec. 19, Disposition of attached property where
judgment is for party against whom attachment
was issued. - If judgment be rendered against the
attaching party, all the proceeds of sales and
money collected or received by the sheriff, under
the order of attachment, and all property attached
remaining in any such officer’s hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged.
Sec. 20. Claim for damages on account of
improper, irregular or excessive attachment. - An
application for damages on account of improper,
irregular, or excessive attachment must be filed
before the trial or before appeal is perfected or
before the judgment becomes executory, with due
notice to the attaching party and his surety or
sureties, setting forth the facts showing his right to
damages and the amount thereof. Such damages
may be awarded only after proper hearing and
shall be included in the judgment on the main case.
If the judgment of the appellate court be
favorable to the party against whom attachment
was issued, he must claim damages sustained
during the pendency of the appeal by filing an
application in the appellate court, with notice to
the party in whose favor the attachment was issued
or his surety or sureties, before judgment of the
appellate court becomes executory. The appellate
court may allow the application to be heard and
decided by the trial court.
Nothing herein contained shall prevent the
party against whom the attachment was issued
from recovering in the same action the damages
awarded to him from any property of the attaching
party not exempt from execution should the bond
or deposit given by the latter be insufficient or fail
to fully satisfy the award.
Santos v. Court of Appeals
95 Phil 360
Where a writ of attachment was issued and levied
upon a property belonging to a third person not
party to the main action, said third person may file
a separate action for damages. The rule that
recovery of damages on account of the issuance of
a writ of attachment cannot be subject of a separate
action, is not applicable where damages are sought
94
not because the writ of attachment was illegally or
wrongfully issued by the court, but because said
writ was caused to levied upon the property of the
plaintiff which was not a party in the case where
the attachment was issued.
Rule on Third party Claim & §20, Rule 57,
important.
Status quo ante - refers to a legal situtation
Preliminary writ of injunction - status quo
Final injunction - change in legal relationship,
Bacolod Milling
Grave & irreparable injury - no fair or reasonable
orders can be granted by the court
Right in esse and clear for a writ of preliminary
mandatory injunction
Preliminary Injunction
Rule 58
Sec. 1. Preliminary injunction defined; classes. -
A preliminary injunction is an order granted at any
stage of an action or proceeding prior to the
judgment or final order, requiring a party or a
court , agency or a person to refrain from a
particular act or acts. It may also require the
performance of a particular act or acts, in which
case it shall be known as a preliminary mandatory
injunction.
The primary purpose of injunction is to preserve
the status quo by restraining action or interference
or by furnishing preventive relief. The status quo is
the last actual, peaceable, uncontested status which
precedes the pending controversy.
A mandatory injunction is an extreme remedy and
will be granted only on a showing that (a) the
invasion of the right is material and substantial, (b)
the right of the complainant is clear and
unmistakable, and (c) there is an urgent and
paramount necessity for the writ to prevent serious
damage.
Distinctions between injunction and prohibition:
a. Injunction is generally directed against a party
in the action while prohibition is directed
against a court, tribunal or person exercising
judicial powers;
b. Injunction does not involve the jurisdiction of
the court, whereas prohibition may be on the
ground that the court against whom the writ is
sought acted without or in excess of
jurisdiction;
c. Injunction may be the main action itself, or
just a provisional remedy in the main action,
whereas prohibition is always a main action.
Hence, for temporary restraint in a proceeding

for prohibition, preliminary injunction must be
sought therein.
Bataclan v. Court of Appeals
175 SCRA
A writ of preliminary injunction is primarily
intended to maintain the status quo between the
parties existing prior to the filing of the case. As an
ancillary or preventive remedy, it may only be
resorted to by a litigant to protect or preserve his
rights or interests and for no other purpose during
the pendency of the principal action.
Courts should not just summarily issue an order of
denial without an adequate hearing and judicious
evaluation of the merits of the application as the
same would be a denial of procedural due process
and could result in irreparable prejudice to a party.
Sec. 2. Who may grant preliminary injunction. - A
preliminary injunction may be granted by the court
where the action or proceeding is pending. If the
action or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be issued
by said court or any member thereof.
Sec. 3. Grounds for issuance of preliminary
injunction. - A preliminary injunction may be
granted when it is established:
(a) That the applicant is entitled to the
relief demanded, and the whole or part of such
relief consists in restraining the commission or
continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either
for a limited period or perpetually;
(b) That the commission, continuance or
non-performance of the act or acts complained of
during the litigation would probably work injustice
to the applicant; or
(c) That a party, court, agency or a person
is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts
probable in violation of the rights of the applicant
respecting the subject of the action or proceeding,
and tending to render the judgment ineffectual.
Bacolod Murcia Milling v. Capitol
17 SCRA
For the writ of preliminary injunction to issue,
there must be a showing based on facts that the
party availing of the remedy is entitled to the relief
demanded.
An injunction will not issue to protect a right not in
esse and which may never arise or to restrain an
act, which does not give rise to a cause of action
The function of an injunction is the maintenance of
the status quo as of the time of its issuance. In the
95
case at bar, the right of the Central in using the
railway has already expired: there being no right to
be protected anymore, the writ of preliminary
injunction cannot be had.
Merville Park Homeowners Association Inc. v.
Velez
196 SCRA
Where the village association seeks to take
possession and control of the waterworks system
from the Salandanan who failed to undertake
certain contractual obligations necessary to assure
the homeowners of a steady water supply, a writ of
preliminary mandatory injunction will not be
granted absent a showing that the severe water
shortage had not been remedied and that a clear and
present danger of the same or similar default on
Salandanan’s part, threatening the same severe
consequences for the subdivision residents.
A preliminary mandatory injunction is not a proper
remedy to take property out of the possession and
control of one party and to deliver the same to the
other party where possession of such property is
being disputed. It may issue pendente lite only in
cases of extreme urgency, where the right to the
possession, during the pendency of the main case,
of the property involved is very clear; where the
considerations of relative inconvenience bear
strongly in favor of the complainant seeking the
possession of pendente lite; where there was willful
and unlawful invasion of plaintiff’s rights, over his
protest and remonstrance the injury being a
continuing one; where the effect of the preliminary
mandatory injunction is to re-establish and
maintain a pre-existing and continuing relationship
between the parties, recently and arbitrarily
interrupted by the defendant, rather than to
establish a new relationship during the pendency of
the principal case. It is for the party requesting the
writ to demonstrate clearly the presence of one or
more of the above grounds.
Sec. 4. Verified application and bond for
preliminary injunction or temporary restraining
order. - A preliminary injunction or temporary
restraining order may be granted only when:
(a) The application in the action or
proceeding is verified and shows facts entitling the
applicant to the relief demanded; and
(b) Unless exempted by the court, the
applicant files with the court where the action or
proceeding is pending a bond executed to the party
or person enjoined, in an amount to be fixed by the
court, to the effect that the applicant will pay to
such party or person all damages which he may
sustain by reason of the injunction or temporary
restraining order if the court should finally decide
that the applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of
preliminary injunction shall be issued.

(c) When an application for a writ of
preliminary injunction or a temporary restraining
order is included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the
presence of the adverse party or the person to be
enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied by
service of summons, together with a copy of the
complaint or initiatory pleading and the
applicant’s affidavit and bond, upon the adverse
party in the Philippines.
However, where the summons could not be
served personally or by substituted service despite
diligent efforts, or the adverse party is a resident of
the Philippines temporarily absent therefrom or is
a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not
apply.
(d) The application for a temporary
restraining order shall thereafter be acted upon
only after all parties are heard in a summary
hearing which shall be conducted within twenty-
four (24) hours after the sheriff ’s return of service
and/or the records are received by the branch
selected by raffle and to which the records shall be
transmitted immediately.
Sec. 5. Preliminary injunction not granted
without notice; exception. - No preliminary
injunction shall be granted without hearing and
prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by
affidavits or by verified application that great or
irreparable injury would result to the applicant
before the matter can be heard on notice, the court
to which the application for preliminary injunction
was made, nay issue ex parte a temporary
restraining order to be effective only for a period of
twenty (20) days from service on the party or
person sought to be enjoined, except as herein
provided. Within the said twenty-day period, the
court must order said party or person to show
cause, at a specified time and place, why the
injunction should not be granted, determine within
the same period whether or not the preliminary
injunction shall be granted, and accordingly issue
the corresponding order.
However, and subject to the provisions of
the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave
injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding
judge of a single-sala court may issue ex parte a
temporary restraining order effective for only
seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next
preceding section as to service of summons and the
documents to be served therewith. Thereafter,
within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall
96
conduct a summary hearing to determine whether
the temporary restraining order shall be extended
until the application for preliminary injunction can
be heard. In no case shall the total period of
effectivity of the temporary restraining order
exceed twenty (20 days, including the original
seventy-two hours provided herein.
In the event that the application for
preliminary injunction is denied or not resolved
within the said period, the temporary restraining
order is deemed automatically vacated. The
effectivity of a temporary restraining order is not
extendible without need of any judicial declaration
to that effect and no court shall have authority to
extend or renew the same on the same ground for
which it was issued.
However, if issued by the Court of
Appeals or a member thereof, the temporary
restraining order shall be effective for sixty (60)
days from service on the party or person sought to
be enjoined. A restraining order issued by the
Supreme Court or a member thereof shall be
effective until further orders.
Temporary restraining order, when issued
1. When great or irreparable injury would result
to the applicant even before the application is
heard on notice; 20-day temporary restraining
order is issued.
2. If the matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury, the court may issue ex parte
a 72-hour temporary restraining order; can
only be issued by the executive judge of a
multiple-sala court or by the presiding judge of
a single-sala court.
The judge issuing a 72-hour TRO is obliged to
conduct a summary hearing within the effectivity
of the 72-hour TRO to determine whether the TRO
shall be extended in which case, the same is
converted into a 20-day TRO. Within the 20-day
period of effectivity of the TRO the court shall
determine in a hearing whether or not the
preliminary injunction is to be granted. This 20-day
period is inextendible.
Thus, a TRO may be converted to a preliminary
injunction, which in turn may be converted into a
final injunction. TRO and preliminary injunction
are issued to maintain the status quo ante, that is,
prior to the institution of the main action. A final
injunction confirms a preliminary injunction and
perpetually enjoins a party or person from doing
the act/s complained of.
Effectivity of TROs:

TRO issued by trail court may either be for 72
hours or 20 days; if issued by the CA or a member
thereof, it shall be effective for sixty (60) days;
TROs0 issued by the SC shall be effective until
further notice.
Social Security Commission v. Bayona
5 SCRA
Damages are irreparable within the meaning of the
rule relative to the issuance of injunction when
there is no standard by which their amount can be
measured with reasonable accuracy. An irreparable
injury which a court of equity will enjoin includes
that degree of wrong of a repeated and continuing
kind which produce hurt, inconvenience, or
damage that can be estimated only by conjecture
and not by any accurate standard of measurement.
An irreparable injury to authorize an injunction
consists of “a serious charge of, or is destructive to,
the property it affects, either physically or in the
character in which it has been held and enjoined, or
when the property has some peculiar quality or use,
so that its pecuniary value will not fairly
recompense the owner of the loss thereof.”
For an injury to be irreparable, it does not have to
refer to the amount of damages that may be caused
but rather to the difficulty of measuring the
damages inflicted. If full compensation can be
obtained by way of damages, equity will not apply
the remedy of injunction.
Sec. 6. Grounds for objection to, or for motion of
dissolution of, injunction or restraining order. -
The application for injunction or restraining order
may be denied, upon a showing of its insufficiency.
The injunction or restraining order may also be
denied, or, if granted, may be dissolved, on other
grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant
also by affidavits. It may further be denied or
granted, may be dissolved, if it appears after
hearing that although the applicant is entitled to
the injunction or restraining order, the issuance or
continuance thereof, as the case may be, would
cause irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by
the court conditioned that he will pay all damages
which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If
it appears that the extent of the preliminary
injunction or restraining order granted is too great,
it may be modified.
Sec. 7. Service of copies of bonds; effect of
disapproval of same. - The party filing a bond in
accordance with the provisions of this Rule shall
forthwith serve a copy of such bond on the other
97
party, who may except to the sufficiency of the
bond, or of the surety or sureties thereon. If the
applicant’s bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to
justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the injunction shall be dissolved. If
the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount
with sufficient sureties approved after justification
is not filed forthwith, the injunction shall be
granted or restored, as the case may be.
Sec. 8. Judgment to include damages against
party and sureties. - AT the trial, the amount of
damages to be awarded to either party, upon the
bond of the adverse party, shall be claimed,
ascertained, and awarded under the same
procedure prescribed in section 20 of Rule 57.
Sec. 9. When final injunction granted. - If after
the trial of the action it appears that the applicant
is entitled to have the act or acts complained of
permanently enjoined, the court shall grant a final
injunction perpetually restraining the party or
person enjoined from the commission or
continuance of the act or acts or confirming the
preliminary mandatory injunction.
Gilchrist v. Cuddy
29 Phil 542
Receivership
Rule 59
Sec. 1. Appointment of receiver. - Upon a verified
application , one or more receivers of the property
subject of the actin or proceeding may be
appointed by the court where the action is pending,
or by the Court of Appeals or by the Supreme
Court, or a member thereof, in the following cases:
(a) When it appears from the verified
application, and such other proof as the court may
require, that the party applying for the appointment
of a receiver has an interest in the property or fund
which is the subject of the action or proceeding,
and that such property or fund is in danger of
being lost, removed, or materially injured unless a
receiver be appointed to administer and preserve
it;
(b) When it appears in an action by the
mortgagee for the foreclosure of a mortgage that
the property is in danger of being wasted or
dissipated or materially injured, and that its value
is probable insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the
contract of mortgage;

(c) After judgment, to preserve the
property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid
execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply
his property in satisfaction of the judgment, or
otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears
that the appointment of a receiver is the most
convenient and feasible means of preserving,
administering, or disposing of the property in
litigation.
During the pendency of an appeal, the
appellate court may allow an application for the
appointment of a receiver to be filed in and decided
by the court of origin and the receiver appointed to
be subject to the control of said court.
Commodities Storage v. Court of Appeals
G.R. No. 125008
A petition for receivership requires that the
property or fund which is the subject of the action
must be in danger of loss, removal or material
injury which necessitates protection or
preservation. In the instant case, there is no
sufficient showing that the ice plant is in danger of
disappearing or being wated and reduced to a
‘scrap heap.” At the time the trial court issued the
order for receivership of the property, the problem
had been remedied and there was no imminent
danger of any leakage.
Neither party to a litigation should be appointed as
receiver without the consent of the other because a
receiver should be a person indifferent to the
parties and should be impartial and disinterested.
The receiver is not the representative of any of the
parties but of all of them to the end that their
interests may be equally protected with the least
possible inconvenience and expense.
Sec. 2. Bond on appointment of receiver. - Before
issuing the order appointing a receiver the court
shall require the applicant to file a bond executed
to the party against whom the application is
presented, in an amount to be fixed by the court, to
the effect that the applicant will pay such party all
damages he may sustain by reason of the
appointment of such receiver in case the applicant
shall have procured such appointment without
sufficient cause; and the court may, I its discretion,
at any time after the appointment, require an
additional bond as further security for such
damages.
Sec. 3. Denial of application or discharge of
receiver. - The application may be denied, or the
receiver discharged, when the adverse party files a
bond executed to the applicant, in an amount to be
fixed b the court, to the effect that such party will
pay the applicant all damages he may suffer by
98
reason of the acts, omissions, or other matters
specified in the application as ground for such
appointment. The receiver may also be discharged
if it is shown that his appointment was obtained
without sufficient cause.
Sec. 4. Oath and bond of receiver. - Before
entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum as
the court may direct, to the effect that he will
faithfully discharge his duties in the action or
proceeding and obey the orders of the court.
Sec. 5. Service of copies of bonds; effect of
disapproval of same. - The person filing a bond in
accordance with the provisions of this Rule shall
forthwith serve a copy thereof on each interested
party, who may except to its sufficiency or of the
surety or sureties thereon. If either the applicant’s
of the receiver’s bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to
justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the application shall be denied or
the receiver discharged, as the case may be. If the
bond of the adverse party is found to be insufficient
in amount or the surety or sureties thereon fail to
justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the receiver shall be appointed and
re-appointed, as the case may be.
Sec. 6. General powers of receiver. - Subject to the
control of the court in which the action or
proceeding is pending, a receiver shall have the
power to bring and defend, in such capacity,
actions in his own name; to take and keep
possession of the property in controversy; to
receive rents; o collect debts due to himself as
receiver or to the fund, property, estate, person, or
corporation of which he is the receiver; to
compound and compromise the same; to make
transfers; to pay outstanding debts; to divide the
money and other property that shall remain among
the persons legally entitled to receive the same;
and generally to do such acts respecting the
property as the court may authorize. However,
funds in the hands of a receiver may be invested
only by order of the court upon the written consent
of all the parties to the action.
No action may be filed by or against a
receiver without leave of the court which
appointed him.
Sec. 7. Liability for refusal or neglect to deliver
property to receiver. - A person who refuses or
neglects, upon reasonable demand, to deliver to the
receiver all the property, money, books, deeds,
notes, bills, documents and papers within his
power of control subject of or involved in the
action or proceeding, or in case of disagreement,

as determined and ordered by the court, may be
punished for contempt and shall be liable to the
receiver for the money or the value of the property
and other things so refused or neglected to be
surrendered, together with all damages that may
have been sustained by the party or parties entitled
thereto as a consequence of such refusal or neglect.
Sec. 8. Termination of receivership; compensation
of receiver. - Whenever the court, motu propio or
on motion of either party, shall determine that the
necessity for a receiver n longer exists, it shall,
after due notice to all interested parties and
hearing, settle the accounts of the receiver, direct
the delivery of the funds and other property in his
possession to the person adjudged to be entitled to
receive them, and order the discharge of
thereceiver from further duty as such. The court
shall allow the receiver such reasonable
compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated
party, or apportioned, as justice requires.
Sec. 9. Judgment to include recovery against
sureties. - The amount, if any, to be awarded to any
party upon any bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure
prescribed in section 20 of Rule 57.
Replevin
Rule 60
Sec. 1. Application - A party praying for the
recovery of possession of personal property may, at
the commencement of the action or at any time
before answer, apply for an order for the delivery
of such property to him, in the manner hereinafter
provided.
Sec. 2. Affidavit and bond. - The applicant must
show by his own affidavit or that of some other
person who personally knows the facts:
(a) That the applicant is the owner of the
property claimed, particularly describing it, or is
entitled to the possession thereof;
(b) That the property is wrongfully
detained by the adverse party, alleging the cause of
detention thereof according to the best of his
knowledge, information, and belief;
(c) That the property has not been
distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution
or preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
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(d) The actual market value of the
property.
The applicant must also give a bond,
executed to the adverse party in double the value of
the property as stated in the affidavit
aforementioned, for the return of the property to
the adverse party if such return be adjudged, and
for the payment to the adverse party of such sum as
he may recover from the application in the action.
Sec. 3. Order. - Upon the filing of such affidavit
and approval of the bond, the court shall issue an
order and the corresponding writ of replevin
describing the personal property alleged to be
wrongfully detained and requiring the sheriff
forthwith to take such property into his custody.
Sec. 4. Duty of the sheriff. - Upon receiving such
order, the sheriff must serve a copy thereof on the
adverse party, together with a copy of the
application, affidavit and bond, and must forthwith
take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his
custody. If the property or any part thereof be
concealed in a building or enclosure, the sheriff
must demand its delivery, and if it be not delivered,
he must cause the building or enclosure to be
broken open and take the property as herein
provided, he must keep it in a secure place and
shall be responsible for its delivery to the party
entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the
same.
Sec. 5. Return of property. – If the adverse party
objects of the sufficiency of the applicant’s bond, or
of the surety or sureties thereon, he cannot
immediately require the return of the property, but
if he does not so object, he may, at any time before
the delivery of the property to the applicant,
require the return thereof, by filing with the court
where the action is pending a bond executed to the
applicant, in double the value of the property as
stated in the applicant’s affidavit for the delivery
thereof to the applicant, if such delivery be
adjudged, and for the payment of such sum to him
as may be recovered against the adverse party, and
by serving a copy of such bond on the applicant.
Sec. 6. Disposition of property by sheriff. – If
within five (5) days after taking the property by the
sheriff, the adverse party does not object to the
sufficiency of the bond, or the surety or sureties
thereon; or if the adverse party so objects and the
court affirms its approval of the applicant’s bond
or approves a new bond, or if the adverse party
requires the return of the property but his bond is
objected to and found insufficient and he does not
forthwith file an approved bond, the property shall
be delivered to the applicant. If for any reason the
property is not delivered to the applicant, the
sheriff must return it to the adverse party.

Sec. 7. Proceedings where property claimed by
third person. – If the property taken is claimed by
any third person other than the party against whom
the writ of replevin had been issued or his agent,
and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating
the grounds therefor, and serves such affidavit
upon the sheriff while the latter has possession of
the property and a copy thereof upon the applicant,
the sheriff shall not be bound to keep the property
under replevin or deliver it to the applicant unless
the applicant or his agent, on demand of said
sheriff shall file a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property under replevin
as provided in section 2 hereof. In case of
disagreement as to such value, the court shall
determine the same. No claim for damages for the
taking or keeping of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date
of the filing of the bond.
The sheriff shall not be liable for
damages, for the taking or keeping of such
property, to any such third-party claimant if such
bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from
vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-
party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.
When the writ of replevin is issued in
favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued
for damages as a result of the replevin, he shall be
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose.
Sec. 8. Return of papers. – The sheriff must file the
order, with his proceedings indorsed thereon, with
the court within ten (10) days after taking the
property mentioned therein.
Sec. 9. Judgment. – After trial of the issues, the
court shall determine who has the right to the
possession to and the value of the property and
shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or
for its value in case delivery cannot be made, and
also for such damages as either party may prove,
with costs.
Sec. 10. Judgment to include recovery against
sureties. – The amount, if any, to be awarded to
any party upon any bond filed in accordance with
the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure
as prescribed in section 20 of Rule 57.
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Support Pendente Lite
Rule 61
Sec. 1. Application. - At the commencement of the
proper action or proceeding, or at any time prior
to the judgment or final order, a verified
application of support pendente lite may be filed by
any party stating the grounds for the claim and the
financial conditions of both parties, and
accompanied by affidavits, depositions or other
authentic documents in support thereof.
What is support pendente lite?
It is a provisional remedy which grants a person
entitled to support an amount enough for his
“sustenance, dwelling, clothing, medical
attendance, education and transportation” (Art.
194, Family Code) while the action is pending in
court. It may be availed of by any of the parties in
the action for support or in a proceeding where one
of the reliefs sought is support for the applicant.
The capacity of the person who will provide the
support and the needs of the one entitled to be
supported are taken into consideration in setting the
amount of support to be granted.
Support pendente lite can be availed of at the
commencement of the action or at any time before
the judgment or final order is rendered in the action
or proceeding.
The one claiming for support must establish before
the court the relationship between the parties as to
entitle one to receive support from the other.
The following are obliged to support each other:
1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the
legitimate and illegitimate children of the latter;
and
5. Legitimate brothers and sisters, whether of the
full or half-blood. ( Art. 195, Family Code)
Sec. 2. Comment. - A copy of the application and
all supporting documents shall be served upon the
adverse party, who shall have five (5) days to
comment thereon unless a different period is fixed
by the court upon his motion. The comment shall
be verified and shall be accompanied by affidavits,
depositions or other authentic documents in
support thereof.
The application for support pendente lite is
responded to not by an answer but by a verified

comment accompanied by affidavits, depositions or
other authentic documents in support of the facts
set forth in the comment.
Sec. 3. Hearing. - After the comment is filed, or
after the expiration of the period for its filing, the
application shall be set for hearing not more than
three (3) days thereafter. The facts in issue shall be
proved in the same manner as is provided for
evidence on motions.
Hearing on the application is mandatory. It shall be
held not later than three (3) days from the receipt of
the comment or from the expiration of the period to
file the same.
Sec. 4. Order. - The court shall determine
provisionally the pertinent facts, and shall render
such orders as justice and equity may require,
having due regard to the probable outcome of the
case and such other circumstances as may aid in
the proper resolution of the question involved. If
the application is granted, the court shall fix the
amount of money to be provisionally paid or such
other forms of support as should be provided,
taking into account the necessities of the applicant
and the resources or means of the adverse party,
and the terms of payment or mode for providing the
support, If the application is denied, the principal
case shall be tried and decided as early as
possible.
Ramos v. Court of Appeals
45 SCRA
Held: Where the trial court ruled that the claim of
filiation and support has been adequately proven,
alimony pendente lite can be validly granted
pending appeal of such decision.
Trial court’s refusal to grant support pendente lite
does not deprive the appellate court the authority to
grant the same especially so where, in view of the
poverty of the child, it would be a travesty of
justice to refuse him support until the decision of
the judge is sustained on appeal.
Reyes v. Ines-Luciano
81 SCRA
Facts:
Held: Where petitioner failed to present evidence
on the alleged adultery of his wife when the action
for legal separation is heard on the merits, the grant
of support pendente lite is valid. Adultery is a good
defense and if properly proved and sustained will
defeat the action. However, the alleged adultery of
the wife must be established by competent
evidence. Mere allegation would not suffice to bar
her from receiving support pendente lite.
In determining the amount to be awarded as
support pendente lite it is not necessary to go fully
101
into the merits of the case, it being sufficient that
the court ascertain the kind and amount of evidence
which it may deem sufficient to enable it to justly
resolve the application, one way or the other, in
view of the merely provisional character of the
resolution to be entered. Mere affidavits may
satisfy the court to pass upon the application for
support pendente lite. It is enough that the facts be
established by affidavits or other documentary
evidence appearing in the record.
Sec. 5. Enforcement of order. – If the adverse
party fails to comply with an order granting
support pendente lite, the court shall, motu propio
or upon motion, issue an order of execution against
him, without prejudice to his liability for contempt.
When the person ordered to give support
pendente lite refuses or fails to do so, any third
person who furnished that support to the applicant
may, after due notice and hearing in the same case,
obtain a writ of execution to enforce his right of
reimbursement against the person ordered to
provide support.
Sec. 6. Support in criminal cases. – In criminal
actions where the civil liability includes support for
the offspring as a consequence of the crime and the
civil aspect thereof has not been waived, reserved
or instituted prior to its filing, the accused may be
ordered to provide support pendente lite to the
child born to the offended party allegedly because
of the crime. The application therefor may be filed
successively by the offended party, her parents,
grandparents or guardian and the State in
accordance with the procedure established under
this Rule.
Sec. 7. Restitution. – When the judgment or final
order of the court finds that the person who has
been providing support pendente lite is not liable
therefor, it shall order the recipient thereof to
return to the former the amounts already paid with
legal interest from the dates of actual payment,
without prejudice to the right of the recipient to
obtain reimbursement in a separate action from the
person legally obliged to give support. Should the
recipient fail to reimburse said amounts, the person
who provided the same may likewise seek
reimbursement thereof in a separate action from
the person legally obliged to give such support.
JUDGMENTS AND FINAL ORDERS
FORM
Rule 36, Sec. 1. Rendition of final judgements and
final orders. -- A judgement or final order
determining the merits of the case shall be in
writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and
the law on which it is based, signed by him, and
filed with the clerk of court.

Concept of Final Judgement and Final
Order
Rule 41, Sec. 1. Subject of appeal. – An
appeal may be taken from a judgement or
final order that completely disposes of the
case, or of a particular matter therein
when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from judgement;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a
judgement by consent, confession or
compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent;
(f) An order of execution;
(g) A judgement or final order for or against one
or more of several parties or in separate
claims, counter-claims, cross-claims and third-
party complaints, while the main case is
pending, unless the court allows an appeal
therefrom; and
(h) An order dismissing an action without
prejudice.
In all the above instances where
the judgement or final order is not appealable, the
aggrieved party may file an appropriate special
civil action under Rule 65.
Ceniza v. CA, 218 SCRA 390
Facts: CA, in a resolution, dismissed petitioner
Ceniza’s appeal on the ground of delayed filing of
appellants’ brief. Issue here is WON this resolution
was a final order?
Held: Yes. A final order or judgment is one w/c
either TERMINATES the action itself or operates
to vest some right in such a manner as to put out of
the power of the ct. making the order to place in the
parties in their original conditions. A final order
disposes of the whole subject matter or terminates
proceedings/action, LEAVING NOTHING TO BE
DONE BUT TO ENFORCE BY EXECUTION.
However, a final order is appealable.
KINDS
As to finality
Rendition of Judgement
Rule 36, Sec. 1, supra.
102
Rule 40, Sec. 2. When to appeal. – An appeal may
be taken within fifteen (15) days after notice to the
appellant of the judgement or final order appealed
from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record
on appeal within thirty (30) days after notice of the
judgement or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for
new trial or reconsideration shall be allowed.
Rule 41, Sec. 3. Period of ordinary appeal – The
appeal shall be taken within fifteen (15) days from
notice of the judgement or final order appealed
from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record
on appeal within thirty (30) days from notice of the
judgement or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for
new trial or reconsideration shall be allowed.
Rule 42, Sec. 1. How appeal taken; time for filing
– A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of its
appellate jurisdiction may file a verified petition for
review with the Court of Appeals, paying at the
same time to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P 500.00 for costs, and
furnishing the Regional Trial Court and the
adverse party with a copy of the petition. The
petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion for
new trial or reconsideration filed in due time after
judgement. Upon proper motion and the payment
of the full amount of the docket and other lawful
fees and the deposit for costs before the expiration
of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days
only within which to file the petition for review.
No further extension shall be granted except for the
most compelling reason and in no case to exceed
fifteen (15) days.
Entry of judgement
Rule 36, Sec. 2. Entry of judgements and final
orders. – If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgement or final order shall
forthwith be entered by the clerk in the book of
entries of judgements. The date of finality of the
judgement or final order shall be deemed to be the
date of its entry. The record shall contain the
dispositive part of the judgement or final order and
shall be signed by the clerk, with a certificate that

such judgement or final order has become final and
executory.
Rule 38, Sec. 3. Time for filing petition; contents
and verification. – A petition provided for in either
of the preceding sections of this Rule must be
verified, filed within sixty (60) days after the
petitioner learns of the judgement, final order, or
other proceeding to be set aside, and not more than
six (6) months after such judgement or final order
was entered, or such proceeding was taken; and
must be accompanied with affidavits showing the
fraud, accident, mistake, or excusable negligence
relied upon, and the facts constituting the
petitioner’s good and substantial cause of action or
defense, as the case may be.
Rule 39, Sec. 6. Execution by motion or by
independent action. – A final and executory
judgement or order may be executed on motion
within five (5) years from the date of its entry.
After the lapse of such time, and before it is barred
by the statute of limitations, a judgement may be
enforced by action. The revived judgement may
also be enforced by motion within five (5) years
from the date of its entry and thereafter by action
before it is barred by the statute of limitations.
Entry of Satisfaction of Judgement
Rule 39, Sec. 44. Entry of satisfaction of
judgement by clerk of court. – Satisfaction of a
judgement shall be entered by the clerk of court in
the court docket, and in the execution book, upon
he return of a writ of execution showing the full
satisfaction of the judgement executed and
acknowledged in the same manner as a conveyance
of real property by the judgement obligee or by his
counsel unless a revocation of his authority is filed,
or upon the endorsement of such admission by the
judgement obligee or his counsel on the face of the
record of the judgement.
Sec. 45. Entry of satisfaction with or without
admission. – Whenever a judgement is satisfied in
fact, or otherwise than upon an execution, on
demand of the judgement obligor, the judgement
obligee or his counsel must execute and
acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding
section, and after notice and upon motion the court
may order either the judgement obligee or his
counsel to do so, or may order the entry of
satisfaction to be made without such admission.
As to process of procuring
Judgement of the Pleadings
Rule 34, Sec. 1. Judgement on the pleadings. –
Where an answer fails to tender an issue, or
otherwise admits the material allegations of the
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adverse party’s pleading, the court may, on motion
of that party, direct judgement on such pleading.
However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always
be proved.
Judgement on Demurrer to Evidence
Rule 33, Sec. 1. Demurrer to evidence. – After the
plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on
the ground that upon the facts and the law the
plaintiff has shown no right to relief. If his motion
is denied, he shall have the right to present
evidence. If the motion is granted but on appeal
the order of dismissal is reversed he shall be
deemed to have waived the right to present
evidence.
Summary Judgements
Rule 35
Sec. 1. Summary judgement for claimant. – A party
seeking to recover upon a claim, counter-claim, or
cross-claim or to obtain a declaratory relief may, at
any time after the pleading in answer thereto has
been served, move with supporting affidavits,
depositions or admissions for a summary
judgement in his favor upon all or any part thereof.
Sec. 2. Summary judgement for defending party. –
A party against whom a claim, counter-claim, or
cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary
judgement in his favor as to all or any part thereof.
Sec. 3. Motion and proceedings thereon. – The
motion shall be served at least ten (10) days before
the time specified for the hearing. The adverse
party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the
hearing. After the hearing, the judgement sought
shall be rendered forthwith if the pleadings,
supporting affidavits, depositions, and admissions
on file, show that, except as to the amount of
damages, there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgement as a matter of law.
Sec. 4. Case not fully adjudicated on motion. – If
on motion under this Rule, judgement is not
rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings,
and the evidence before it and by interrogating
counsel shall ascertain what material facts exist
without substantial controversy and what are
actually and in good faith controverted. It shall
thereupon make an order specifying the facts that

appear without substantial controversy, including
the extent to which the amount of damages or other
relief is not in controversy, and directing such
further proceedings in the action as are just. The
facts so specified shall be deemed established, and
the trial shall be conducted on the controverted
facts accordingly.
Sec. 5. Form of affidavits and supporting papers. –
Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify
to the matters stated therein. Certified true copies
of all papers or parts thereof referred to in the
affidavit shall be attached thereto or served
therewith.
Sec. 6. Affidavits in bad faith. -- Should it appear
to its satisfaction at any time that any of the
affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose of
delay, the court shall forthwith order the offending
party or counsel to pay to the other party the
amount of the reasonable expenses which the filing
of the affidavits caused him to incur, including
attorney’s fees. It may, after hearing, further
adjudge the offending party or counsel guilty of
contempt.
Rule 29, Sec. 3. Other consequences. – If any
party or an officer or managing agent of a party
refuses to obey an order made under section 1 of
this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce
any document or other thing for inspection,
copying, or photographing or to permit it to be
done, or to permit entry upon land or other
property, or an order made under Rule 28 requiring
him to submit to a physical or mental examination,
the court may make such orders in regard to the
refusal as are just, and among others the following:
(a) An order that the matters regarding which the
questions were asked, or the character or
description of the thing or land, or the contents
of the paper, or the physical or mental
condition of the party, or any other designated
facts shall be taken to be established for the
purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the disobedient
party to support or oppose designated claims
or defenses or prohibiting him from
introducing in evidence designated documents
or things or items of testimony, or from
introducing evidence of physical or mental
condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
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judgement by default against the disobedient
party; and
(d) In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest of
any party or agent of a party for disobeying
any of such orders except an order to submit to
a physical or mental examination.
Default Judgements
Rule 9, Sec. 3. Default; declaration of. – If the
defending party fails to answer within the time
allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending
party, and proof of such failure, declare the
defending party in default. Thereupon, the court
shall proceed to render judgement granting the
claimant such relief as his pleading may warrant,
unless the court in its discretion requires the
claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
(a) Effect of order of default. – A party in default
shall be entitled to notice of subsequent
proceedings but not to take part in the trial.
(b) Relief from order of default. – A party
declared in default may at any time after notice
thereof and before judgement file a motion
under oath to set aside the order of default
upon proper showing that his failure to answer
was due to fraud, accident, mistake or
excusable negligence and that he has a
meritorious defense. In such case, the order of
default may be set aside on such terms and
conditions as the judge may impose in the
interest of justice.
(c) Effect of partial default. – When a pleading
asserting a claim states a common cause of
action against several defending parties, some
of whom answer and the others fail to do so,
the court shall try the case against all upon the
answers thus filed and render judgement upon
the evidence presented.
(d) Extent of relief to be awarded. – A judgement
rendered against a party in default shall not
exceed the amount or be different in kind from
that prayed for nor award unliquidated
damages.
(e) Where no defaults allowed. – If the defending
party in an action for annulment or declaration
of nullity of marriage or for legal separation
fails to answer, the court shall order the
prosecuting attorney to investigate whether or
not a collusion between the parties exists, and
if there is no collusion, to intervene for the
State in order to see to it that the evidence
submitted is not fabricated.
Judgements after ex parte presentation
of Evidence

Rule 18, Sec. 5. Effect of failure to appear. – The
failure of the plaintiff to appear when so required
pursuant to the next preceding section shall be
cause for dismissal of the action. The dismissal
shall be with prejudice, unless otherwise ordered
by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to
present his evidence ex parte and the court to
render judgement on the basis thereof.
Compromise Judgement
Order for Dismissal
Motion to Dismiss (See Rule 16)
Dismissals under Rule 17 (Dismissal of
Actions)
Dismissals under Rule 18, Sec. 5
Rule 18, Sec. 5. Effect of failure to appear. – The
failure of the plaintiff to appear when so required
pursuant to the next preceding section shall be
cause for dismissal of the action. The dismissal
shall be with prejudice, unless otherwise ordered
by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to
present his evidence ex parte and the court to
render judgement on the basis thereof.
Dismissals under Rule 29, Sec. 5
Rule 29, Sec. 5. Failure of party to attend or serve
answers. – If a party or an officer or managing
agent of a party wilfully fails to appear before the
officer who is to take his deposition, after being
served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25
after proper service of such interrogatories, the
court on motion and notice, may strike out all or
any part of any pleading of that party, or dismiss
the action or proceeding or any part thereof, or
enter a judgement by default against that party, and
in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney’s
fees.
As to parties
As against one or more several parties
Rule 36, Sec. 3. Judgement for or against one or
more of several parties. – Judgement may be given
for or against one or more of several plaintiffs, and
for or against one or more of several defendants.
When justice so demands, the court may require the
parties on each side to file adversary pleadings as
between themselves and determine their ultimate
rights and obligations.
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Several Judgement
Rule 36, Sec. 4. Several judgements. – In an action
against several defendants, the court may, when a
several judgement is proper, render judgement
against one or more of them, leaving the action to
proceed against the others.
Rule 9, Sec. 3 (c). Effect of partial default. – When
a pleading asserting a claim states a common cause
of action against several defending parties, some of
whom answer and the others fail to do so, the court
shall try the case against all upon the answers thus
filed and render judgement upon the evidence
presented.
Against entity without juridical personality
Rule 36, Sec. 6. Judgement against entity without
juridical personality. – When judgement is
rendered against two or more persons sued as an
entity without juridical personality, the judgement
shall set out their individual or proper names, if
known.
As to claims
At various stages or separate judgements
Rule 36, Sec. 5. Separate judgements. – When
more than one claim for relief is presented in an
action, the court, at any stage, upon a determination
of the issues material to a particular claim and all
counter-claims arising out of the transaction or
occurrence which is the subject matter of the claim,
may render a separate judgement disposing of such
claim. The judgement shall terminate the action
with respect to the claim so disposed of and the
action shall proceed as to the remaining claims. In
case a separate judgement is rendered, the court by
order may stay its enforcement until the rendition
of a subsequent judgement or judgements and may
prescribe such conditions as may be necessary to
secured the benefit thereof to the party in whose
favor the judgement is rendered.
Rule 31. Sec. 2. Separate trials. – The court, in
furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-
claim, counter-claim, or third-party complaint, or
of any separate issue or of any number of claims,
cross-claims, counter-claims, third-party
complaints or issues.
Rule 41, Sec. 1 (g). No appeal may be taken from:
x x x x A judgement or final order for or against
one or more of several parties or in separate
claims, counter-claims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and x x x x

As to how executed
Judgements not stayed on appeal
Rule 39, Sec. 4. Judgements not stayed by appeal.
– Judgements in actions for injunction receivership,
accounting, support, and such other judgements as
are now or may hereafter be declared to be
immediately executory, shall be enforceable after
their rendition and shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by the
trial court. On appeal therefrom, the appellate
court in its discretion may make an order
suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of
support.
The stay of execution shall be upon such terms as
to bond or otherwise as may be considered proper
for the security or protection of the rights of the
adverse party.
Judgements for money
Rule 39, Sec. 9. Execution of judgements for
money, how enforced. –
(a) Immediate payment on demand. – The officer
shall enforce an execution of a judgement for
money by demanding from the judgement
obligor the immediate payment of the full
amount stated in the writ of execution and all
lawful fees. The judgement obligor shall pay
in cash, certified bank check payable to the
judgement obligee, or any other form of
payment acceptable to the latter, the amount of
the judgement debt under proper receipt
directly to the judgement obligee or his
authorized representative if present at the time
of payment. The lawful fees shall be handed
under proper receipt to the executing sheriff
who shall turn over the said amount within the
same day to the clerk of court of the court that
issued the writ.
(b) If the judgement obligee or his authorized
representative is not present to receive
payment, the judgement obligor shall deliver
the aforesaid payment to the executing sheriff.
The latter shall turn over all the amounts
coming into his possession within the same
day to the clerk of court of the court that issued
the writ, or if the same is not practicable,
deposit said amounts to a fiduciary account in
the nearest government depository bank of the
Regional Trial Court of the locality.
. of garnishment stating whether or not the
The clerk of said court shall thereafter arrange
for the remittance of the deposit to the account
of the court that issued the writ whose clerk of
court shall then deliver said payment to the
judgement obligee in satisfaction of the
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judgement. The excess, if any, shall be
delivered to the judgement obligor while the
lawful fees shall be retained by the clerk of
court for disposition as provided by law. In no
case shall the executing sheriff demand that
any payment by check be made payable to
him.
(b) Satisfaction by levy. – If the judgement
obligor cannot pay all or part of the obligation
in cash, certified bank check or other mode of
payment acceptable to the judgement obligee,
the officer shall levy upon the properties of the
judgement obligor of every kind and nature
whatsoever which may be disposed of for
value and not otherwise exempt from
execution giving the latter the option to
immediately choose which property or part
thereof may be levied upon, sufficient to
satisfy the judgement. If the judgement
obligor does not exercise the option, the officer
shall first levy on the personal properties, if
any, and then on the real properties if the
personal properties are insufficient to answer
for the judgement.
The sheriff shall sell only a sufficient portion of
the personal or real property of the judgement
obligor which has been levied upon.
When there is more property of the judgement
obligor than is sufficient to satisfy the judgement
and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy
the judgement and lawful fees.
Real property, stocks, shares, debts, credits, and
other personal property, may be levied upon in like
manner and with like effect as under a writ of
attachment.
(c) Garnishment of debts and credits. – The officer
may levy on debts due the judgement obligor
and other credits, including bank deposits,
financial interests, royalties, commissions and
other personal property not capable of manual
delivery in the possession or control of third
parties. Levy shall be made by serving notice
upon the person owing such debts or having in
his possession or control such credits to which
the judgement obligor is entitled. The
garnishment shall only cover such amount as
will satisfy the judgement and all lawful fees.
The garnishee shall make a written report to the
court within five (5) days from service of the notice
judgement obligor has sufficient funds or credits to
satisfy the amount of judgement. If not, the report
shall state how much funds or credits the garnishee
holds for the judgement obligor. The garnished
amount in cash, or certified bank check issued in

the name of the judgement obligee, shall be
delivered directly to the judgement obligee within
ten (10) working days from service of notice on the
said garnishee requiring such delivery, except the
lawful fees which shall be paid directly to the
court.
In the event there are two or more garnishees
holding deposits or credits sufficient to satisfy the
judgement, the judgement obligor, if available,
shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the
amount due; otherwise, the choice shall be made by
the judgement obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to
delivery of payment to the judgement obligee.
Judgements for specific acts
Rule 39, Sec. 10. Execution of judgements for
specific acts. –
(a) Conveyance, delivery of deeds, or other
specific acts; vesting title. – If a judgement
directs a party to execute a conveyance of land
or personal property, or to deliver deeds or
other documents, or to perform any other
specific act in connection therewith, and the
party fails to comply within the time specified,
the court may direct the act to be done at the
cost of the disobedient party by some other
person appointed by the court and the act when
so done shall have like effect as if done by the
party. If real or personal property is situated
within the Philippines, the court in lieu of
directing conveyance thereof may by an order
divest the title of any party and vest it in
others, which shall have the force and effect of
a conveyance executed in due form of law.
(b) Sale of real or personal property. – If the
judgement be for the sale of real or personal
property, to sell such property, describing it,
and apply the proceeds in conformity with the
judgement.
(c) Delivery or restitution of real property. – The
officer shall demand of the person against
whom the judgement for the delivery or
restitution of real property is rendered and all
persons claiming rights under him to peaceably
vacate the property within three (3) working
days, and restore possession thereof to the
judgement obligee; otherwise, the officer shall
oust all such persons therefrom with the
assistance, if necessary, of appropriate peace
officers, and employing such means as may be
reasonably necessary to retake possession, and
place the judgement obligee in possession of
such property. Any costs, damages, rents or
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profits awarded by the judgement shall be
satisfied in the same manner as a judgement
for money.
(d) Removal of improvements on property subject
of execution. – When the property subject of
the execution contains improvements
constructed or planted by the judgement
obligor or his agent, the officer shall not
destroy, demolish or remove said
improvements except upon special order of the
court, issued upon motion of the judgement
oblige after due hearing and after the former
has failed to remove the same within a
reasonable time fixed by the court.
(e) Delivery of personal property. – In judgements
for the delivery of personal property, the
officer shall take possession of the same and
forthwith deliver it to the party entitled thereto
and satisfy any judgement for money as
therein provided.
Special Judgements
Rule 39, Sec. 11. Execution of special judgements.
– When a judgement requires the performance of
any act other than those mentioned in the two
preceding sections, a certified copy of the
judgement shall be attached to the writ of execution
and shall be served by the officer upon the party
against whom the same is rendered, or upon any
other person required thereby, or by law, to obey
the same, and such party or person may be
punished for contempt if he disobeys such
judgement.
Effect of Judgements and Final Orders
Local
Rule 39, Sec. 47. Effect of judgements or final
orders. – The effect of a judgement or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgement or final
order, may be as follows:
(a) In case of a judgement or final order against a
specific thing, or in respect to the probate of a
will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a
particular person or his relationship to another,
the judgement or final order is conclusive upon
the title to the thing, the will or administration,
or the condition, status or relationship of the
person; however, the probate of a will or
granting of letters of administration shall only
be prima facie evidence of the death of the
testator or intestate.

(b) In other cases, the judgement or final order is,
with respect to the matter directly adjudged or
as to any other matter that could have been
raised in relation thereto, conclusive between
the parties and their successors in interest by
title subsequent to the commencement of the
action or special proceeding, litigating for the
same thing and under the same title and in the
same capacity; and
(c) In any other litigation between the same
parties or their successors in interest, that only
is deemed to have been adjudged in a former
judgement or final order which appears upon
its face to have been so adjudged, or which
was actually and necessarily included therein
or necessary thereto.
Foreign
Rule 39, Sec. 48. Effect of foreign judgements or
final orders. – The effect of a judgement or final
order of a tribunal of a foreign country, having
jurisdiction to render the judgement or final order
is as follows:
(a) In case of a judgement or final order upon a
specific thing, the judgement or final order is
conclusive upon the title of the thing; and
(b) In case of a judgement or final order against a
person, the judgement or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title.
In either case, the judgement or final order may be
repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear
mistake of law or fact.
NOTES ON JUDGMENT AND FINAL ORDERS:
Rule 36 § 1. Rendition of judgment and final
orders. A judgment or final order determining the
merits of the case shall be:
(1) in writing
(2) personally and directly prepared by the judge
(3) stating clearly and distinctly the facts and the
law on which it is based.
(4) Signed by him
(5) And filed with the Clerk of Court.
Rule 36 § 3. Judgment for or against one or more
of several parties.
Judgment is rendered in favor of party A;
based on particular judgment is rendered only
against
Final order - Court has nothing else to do.
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Order granting a MTD - a Final Order
Only final orders and judgment are subjects of
appeal. Interlocutory orders are not subject of
appeal.
Rendition of judgment - upon the clerk receiving
the copy
Book of entry of judgment - date of the lapse of the
fifteen (15) days; not on the date of entry.
Book of satisfaction of judgment
Entry of judgment - important for counting of
petition for entry of judgment, among others.
First Sense - terminates action
Second Sense of finality - final and executory.
Final judgment under new rules - that which can
already be executed
Nunc pro tunc - "then as now"
Final & executory - even if ground is substantial
can no longer be modified, except:
1. Clerical errors
2. Nunc pro tunc
3. Annulment of judgment based on extrinsic fraud
(Jep Management Co.)
4. Void judgment (Paluwagan and Vda de Macoy) a
void judgment never prescribes.
Difference between Motion for Re-open and MNT
(taken within the period for taking appeal):
To re-open trial - make use of ordinary prudence,
rules on motions
MNT - extrinsic fraud - basis of the cause of action,
performance of a contract
Content of the action itself.
Extrinsic Fraud - one of the parties prevented the
other by fraudulent acts to be given his day in
court.
Amendment of judgment
Before it becomes final and executory
Eternal Gardens Memorial v. IAC
165 SCRA 439
Facts: A Land Development Agreement was
executed between Eternal & Mission. Mission
owned the property & Eternal was to develop it
into a memorial park. Thereafter, a Deed of
Absolute Sale w/ mortgage was executed. BUT
Maysilo claimed ownership over the land. Thus,
Eternal filed w/ the CFI a complaint for
interpleader vs. Mission & Maysilo Estate. It
alleged that, in view of the conflicting claims & to
protect its interests, defendants should be required
to interplead & litigate between themselves.
Mission filed a Motion for placing on judicial
deposit the amounts due & unpaid fr. Eternal.
Motion was DENIED. The contract was declared

ineffective on the ground that the subject matter of
the sale was not existing.
Mission then filed a Motion to Dismiss the
Interpleader. TC ordered Eternal to comply w/ the
contract EXCEPT w/ regard to the interpleader of
Maysilo Estate. Maysilo filed Motion for Recon
w/c was GRANTED by the TC. Hearings on the
merits were ordered BUT Mission filed for Writ of
Execution. This was DENIED. On appeal, CA
dismissed & this was affirmed by the SC. The order
became final & executory.
In 1983, heirs of Singson spouses filed an action
for quieting of title where Eternal & Mission were
defendants. This case is still pending.
In the present case, Mission filed a petition for
certiorari w/ the CA for the setting aside of RTC
orders regarding the setting of the hearing on the
merits. CA dismissed BUT later on reversed.
Eternal filed a Motion for Recon w/c was again
DENIED.
Held: Courts have the power to amend their
judgments, to make them conformable to the
applicable jurisprudence PROVIDED said
judgments ARE NOT YET FINAL. In the CAB,
Eternal admitted it still has to pay whoever will be
declared as owner. Therefore, there was no
plausible reason for petitioner’s objections to the
deposit order after having asked the ct. by
complaint for interpleader whose deposit is not
only required but is a contractual obligation.
Finally, there is no res judicata here bec. there
was no judgment on the merits. Also, there was no
identity of issues. One case involved the propriety
of motion for recon w/o a hearing & the denial of
the motion for execution. The other case involved
the propriety of a CA order that Eternal shall
deposit what was required of it pending the trial on
the merits.
After it becomes final and executory
David v. CA< 214 SCRA 644
Facts: SUPRA
Held: The filing of the petition for relief fr.
judgment w/ the TC was an unequivocal admission
on Afable’s part that his period to appeal fr. the
decision had already expired. When a final
judgment has become executory, it thereby
becomes immutable & unalterable. The judgment
MAY NO LONGER BE MODIFIED in any respect
even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or
law, & regardless of whether the modification is
attempted to be made by the ct. rendering it or by
the highest ct. of the land.
The only recognized EXCEPTIONS are:
1. Correction of clerical errors
2. Judgment Nunc Pro Tunc
3. Where the judgment is VOID
These are entries w/c cause NO INJURY to any
party.
Judgments nunc pro tunc
109
Cardoza v. Singson, 181 SCRA 45
Annulment of judgment
Top Management Programs v. CA
222 SCRA 763
Facts: Gregorio promised to give a large tract of
land to Trinidad & Fajardo if a case bet. Greggy &
Velasquez regarding the lot will be successful. Trini
& Fajards then filed an action to ENFORCE the
agreement & the TC ruled in their favor. Trini &
Fajards then filed a motion for the issuance of a
writ of execution w/c was granted by the TC. The
Register of Deeds, however, informed the ct. that
the deed of conveyance cannot be issued in favor of
Trini & Fajards bec. the land had already been sold
to other persons. However, the TC directed the
Register of Deeds to issue separate titles in favor of
the two. Top Management then filed this petition to
annul the orders of the TC on the ground of
extrinsic fraud. It claimed the it has title to the
same parcel of land w/c was being levied upon
since it bought the same fr. the heirs of Greggy. The
CA dismissed the petition for annulment.
HELD: Extrinsic fraud is one the effect of w/c
PREVENTS a party fr. having a trial or real contest
or fr. presenting all of his case to the ct. or where it
operates upon matters pertaining NOT TO THE
JUDGMENT ITSELF but of the MANNER in w/c
it was procured so that there is not a fair
submission of the controversy.
In other words, EXTRINSIC FRAUD refers to
any fraudulent act of the prevailing party in the
litigation w/c is committed OUTSIDE OF THE
TRIAL of the case, whereby the defeated party has
been PREVENTED fr. exhibiting FULLY his side
of the case, by fraud, deception or deception
practiced upon him by his opponent.
The relief is granted on the theory that by reason
of the extrinsic fraud preventing a party fr. fully
trying his case, there has never been a real contest
before the ct. on the subject matter of the action.
The allegations that the judge had no
jurisdiction to order the sheriff to levy on execution
since the judge had full knowledge that Top
Management & not Greggy who owned the land,
that the writ vs. the prop. was not justified bec. Top
Management was not a party to the case--These
DO NOT CONSTITUTE FRAUD.
Top Management has not pointed to any act w/c
prevented it form fully ventilating its case. If ever
there was any failure in the presentation of its case,
it was caused by its own inaction.
Paluwagan ng Bayan v. King, 172 SCRA 60
Vda. De Macoy v. CA, 206 SCRA 244
Motion for New Trial/Reconsideration
Grounds and nature, Rule 37, Sec. 1

Motion for new trial, Rule 37, Sec. 1, par
1 judgment.
Distinguished from Motion to reopen trial
Agulto v. CA, 181 SCRA 30
Facts: Agulto was convicted of bigamy. He filed a
motion to reopen trial due to newly discovered
evidence AFTER THE PARTIES HAD RESTED
BUT BEFORE JUDGMENT. His new evidence
was a photocopy of a marriage certificate of his
second wife to another man. (His theory was that if
his second wife had been previously married, he
could not have validly married her, therefore, no
bigamy).
Held: The MNT may be filed AFTER judgment
but w/in the period of perfecting an appeal for the
grounds stated in S1,R37 & S2R121.
A Motion to Reopen Trial may be
presented only after either or both parties have
formally offered & closed their evidence but
BEFORE judgment. The reopening of a trial for
the reception of new evidence is not a grant of a
new trial. There is no specific provision in the
rules w/c governs. It is only a recognized
procedural recourse deriving validity fr. long
established rules. The governing rule is paramount
interests of justice resting entirely on the sound
judicial discretion of the trial ct.. Therefore, the
grant/denial is not subject to certiorari under grave
abuse of discretion.
On the merits, the SC decided that the new
evidence had defects & it failed to show that the
2nd wife's marriage was still existing when she
married Agulto.
Grounds
Velasco v. Ortiz, 184 SCRA 303
Facts: The ward of the spouses Velasco was able to
w/draw money of the dead husband of P Velasco
(the latter was diagnosed as disabled). The ward
argued that she was instructed by the decedent to
w/draw money. The TC ruled in favor of Velasco.
Copy of the decision was given to the 1st counsel
of the ward. The NEW counsel filed an MNT
based on newly discovered evidence (a certification
fr. a doctor that the decedent can still properly
communicate)
Held: For Velasco. There is no dispute that at
the time the MNT was filed, the reglementary
period to appeal had lapsed, & the decision had
become final & executory. A judgment w/c has
become final & executory can no longer be altered
& modified, mush less set aside by the ct. w/c
rendered it since such ct. has already lost
jurisdiction over the case. Thereafter, the power &
prerogative to order suspension of the rules of
procedure is reposed, not in the ct. w/c had
rendered such decision but rather in an appellate ct.
& ultimately in the SC, & then only upon a
showing that otherwise the imperious demands of
substantial justice will be thwarted.
Where the reglementary period to appeal
had expired, the remedy is an MNT. If it has
become final & executory, one can file a petition
110
for relief under R 38 or a petition for annulment of
An MNT upon the ground of newly
discovered evidence is properly granted where
there is concurrence of the following requisites:
1. the evidence had been discovered after
trial;
2. the evidence could not have been
discovered & produced during trial even w/
exercise of reasonable diligence
3. the evidence is material & not merely
corroborative, cumulative or impeaching.
What is essential is not so much the time
when the evidence offered first sprang into
existence not the time when it first came to the
knowledge of the party now submitting it; what is
essential is, rather, that the offering party had
exercised reasonable diligence in seeking to locate
such evidence before or during trial but had not
nonetheless failed to secure ( it must have been
searched for but not found during trial. )
In the CAB, the new evidence was already
presented as evidence in a criminal case vs. the
ward for falsification. Therefore, she had already
come across that evidence before.
Moreover, it is in the nature of an
impeaching evidence for it seeks merely to weaken
or controvert previous evidence; it is not material
or corroborative.
Tumang v. CA 172 SCRA 332
Facts: Tumang filed for an annulment of a deed of
sale bec. there was no consideration. The trial ct.
rule for her. The defendant filed an MFR & an
MNT based on the ground that the decision was
based on insufficiency of evidence & that it was
contrary to law. As evidence, D presented receipts
proving consideration. Tumang assails the decision
of the CA w/c granted the motion of D by saying
that it was FORGOTTEN EVIDENCE (it had
existed at trial & w/c could have been discovered
by D if due diligence was exercised.
Held: NEWLY DISCOVERED EVIDENCE:
need not be newly created evidence. May & does
commonly refer to evidence already in existence
prior or during the trial but w/c could not have been
secured & presented during the trial despite
reasonable diligence.
FORGOTTEN EVIDENCE: evidence already in
existence or available before or during the trial, w/c
was known to & obtainable by the party offering it
w/c could have been presented seasonably were it
not for the oversight or forgetfulness of such party
or his counsel.
In the case at bar, the receipts were found
during a gen. cleaning, w/c goes to show that the it
could hardly have been located w/ the exercise of
reasonable/average diligence.
The receipts are MATERIAL bec. they
are of such import that a reasonably prudent man
would have searched for them. There would be a
great benefit to D if he presents it in trial, therefore,
there is no reason why did not try to locate it.

Motion for reconsideration, Rule 37, Sec.
1, par. 2
Periods. Rule 37, Sec. 1
For filing
Effect of Motion for Extension of
Time to File
See also Rule 41, Sec. 3,
par. 2; Rule 40, Sec. 2, par. 2
Habaluyas v. Japson, 142 SCRA 208
This a resolution on a Motion for Reconsideration
on the SC's 2nd division decision.
Held: In S 39 of BP 129, the period of appeal in
the RTC was reduced fr. 30 to 15 days for appeals
fr. final orders, resolution, awards, judgment or
decision. But only 48 hours for habeas corpus
cases.
Only notice of appeal is required. Record
is not required except in (a) appeals in spl. proc.;
(2) where multiple appeals are allowed. In these
cases, the period is 30 days. According to the
Interim Rules, no appeal bond in necessary for
appeal. Its S 4 disallows a second MFR of a final
order or judgment.
The purpose of such is to avoid procedural
delays. But the Rules does not expressly prohibit a
motion for extension of time to file a MFR of a
final order or judgment.
The interest of justice would be better
served if the ruling in the original decision
(denying extension) were applied prospectively fr.
the time herein stated. It would be unfair to
deprive parties of their right to appeal simply bec.
they availed themselves of a procedure w/c was not
expressly prohibited or allowed by the law or
Rules.
On the other hand, an MNT or MFR is not
a prerequisite to an appeal, a petition for review or
a petition for review on certiorari, & since the
purpose is to expedite the final disposition of cases,
a strict but prospective application of said ruling is
in order
From June 30, 1986, the rule shall be
strictly enforced that no motion for extension of
time to file an MNT or MFR, may be filed w/ the
MeTC, MTC, RTC, & IAC. Such a motion may be
filed only in cases pending w/ the SC as the ct. of
last resort, w/c may in its sound discretion either
grant or deny the extension requested.
In appeals in spl. proc. under R 109 & in
other cases wherein multiple appeals are allowed, a
motion for extension of time to file the record on
appeal may be filed w/in the reglementary period
of 30 days. If the ct. denies the motion for
extension, the appeal must be taken w/in the
original period since such a motion does not
suspend the period for appeal.
The TC may grant said motion after the
expiration of the period for appeal provided it was
filed w/in the original period.
Not required for appeal
111
Director of Lands v. Aquino, 192 SCRA 296
Facts: Abra Industrial applied for registration of a
piece of land w/c was granted. The Director
opposed saying that the land was mineral &
unalienable. Within one year fr. the issuance of the
registration decree, Director filed a petition for
review the decrees of registration.
Held: An MNT or MFR is not a pre-requisite to an
appeal for review or petition for review on
certiorari. The reglementary period for filing a
petition for review on certiorari in the instant case
was 30 days fr. notice of order or judgment subject
of review w/c period, parenthetically, is now 15
days pursuant to S 39 of BP129. The Director
having been granted a total of 60 days w/in w/c to
file the petition, the same was timely filed.
Second Motion for New Trial,
Rule 37, Sec. 5, par. 1
Second Motion for
Reconsideration, Rule 37, Sec. 5, par. 2
For Resolution, Rule 37, Sec. 4
Contents of Motion for New Trial, Rule 37, Sec. 2
In general, Rule 37, Sec. 2; see also Rule
15
Motion for New Trial, Rule 37, Sec. 2,
par. 2
Motion for Reconsideration, Rule 37, Sec.
2, par. 3
Pro forma motion and its effects, Rule 37,
Sec. 2, par. 4
Pojas v. Gozo-Dadole, 192 SCRA 575
Facts: The plaintiff filed a complaint for recovery
of possession. The TC ruled for the plaintiff &
ordered the defendant to vacate. The defendant
filed an MFR BUT IT FAILED TO MENTION
THE DAY THE MOTION IS TO BE RESOLVED
(no notice of hearing). Later, the defendant filed a
notice of appeal.
Held: Notice of appeal denied. The MFR was a
mere scrap of paper & therefore, pro forma. It did
not contain the day when the motion is to be heard,
violating S5 R15. As such it does not suspend the
running of the period of appeal. The notice of
appeal filed out of time.
Action upon Motion for New Trial
Options in general, Rule 37, Sec. 3
Granting, Rule 37, Sec. 6
Effect in general, Rule 37, Sec. 5
Fernan v. CA, 142 SCRA 208
Facts: Fernan was suspected of having stolen a
wallet. The TC ruled against the plaintiff store &
awarded damages to Fernan. The CA affirmed the
TC but upon the MFR of the plaintiff, the TC was
reversed.
Held. The appeal of the store raises no question of
law but of fact Review of facts is not a function of

the CA. An exception to this rule is when
manifestly correct findings has been unwarrantedly
rejected or reversed. In the CAB, the CA reversed
the TC. These instances of conflict of findings
between the CA & TC is a basis of recourse to the
SC.
There must be a showing on the face of
the record of gross or extraordinary misperception
or manifest bias.
In the CAB, there was no substantial
reason given by Fernan refuting the assessment of
the CA w/c ruled that her testimony had
contradictions & inconsistencies.
Partial New Trials, Rule 37, Sec. 6, 7
Denying
Remedies, Rule 37, Sec. 9; Rule
41, Sec. 1 (a)
NOTES ON MOTION FOR NEW TRIAL &
MOTION FOR RECONSIDERATION:
Judgment is vacated.
On appeal - accept evidence as it is; attach the
evidence as it is.
New trial is not de novo, only those affected
Denial of MNT - appeal the judgment within the
remaining time to file an appeal even if less than
five (5) days.
MNT- not supported by evidence, not supported by
law, damages are excessive.
There can be a second MNT only when ________
Order granting MNT - first judgment is vacated for
purposes of entering new evidence.
When judgment may be vacated in part - in case of
separate and several judgments.
Motion to Re-open - governed by rules on Motions.
Options after judgment: but not yet final &
executory:
1. Appeal
2. Motion for new trial FAME/good &
substantial grounds for saying so
Discovery after J is ren
Newly discovered evidence Not discovered
with reasonable evidence
Not merely colorative
3. Motion for reconsideration
(a) evidence
(b) law
(c) award of damages is excessive
After final & executory:
1. Nunc pro tunc
2. Petition for relief from judgment
3. Annulment of judgment
4. Remedies during execution
112
Final judgment - 16th day after notice
No prescriptive period in actions to nullify
Estoppel - by act
Laches - by negligence
Petition for relief from judgment- equitable
remedy; only very highly discretionary on the part
of the court.
Action to annul - separate action. Res judicata may
be raised.
Any kind of order for Petition for relief, if granted,
not appealable.
If not granted, not
appealable - only special civil actions
Relief from Judgments, Orders or other
Proceedings
Grounds and nature, Rule 38, Secs. 1, 2
Grounds
Garcia v. CA, 202 SCRA 228
Facts: Eduardo Garcia was able to secure a
judgment fr. the trial ct. issuing to him the
Certificate of Title to a land actually owned by the
spouses Garcia. He did this by misinforming the
ct. of the spouses’ address so that the notices wont
reach them thereby depriving them of the
opportunity to participate in the trial. Garcia
further made further recovery of the land difficult
by conveying the land to another. The couple filed
a petition for relief (PFR) fr. said judgment but
failed to categorically allege extrinsic fraud in
their affidavit of merit. The PFR was dismissed by
CA saying that extrinsic fraud should be expressly
alleged in the affidavit of merit for the petition to
lie. The SC said that since in case at bar, the
spouses were able to allege facts leading to
extrinsic fraud, express allegation of such is not
necessary.
Held: Where fraud is the ground, the fraud must
be extrinsic or collateral & the facts upon w/c the
extrinsic fraud is based must have not been
controverted or resolved in the case where the
judgment sought to be annulled was rendered. For
this purpose, fraud is regarded as extrinsic or
collateral where it has prevented a party fr. having
a trial or fr. presenting all of his case to the ct..
Intrinsic fraud takes the form of acts of the party in
a litigation during the trial, such as the use of
forged instruments of perjured testimony w/c did
not affect the presentation of the case but did
prevent a fair & just determination of the case.
Conde v. IAC, 144 SCRA 144
Facts: Petitioners alleged fraud. Gutierrez was
able to make it appear that he was the son of
Esteban & Fermina Gutierrez & as a necessary
consequence of such filiation, was the absolute
owner by succession of the prop. in Q.
Held: Petition should be dismissed for lack of
merit bec. the fraud allegedly perpetuated by G is
only intrinsic in nature & not extrinsic. Fraud is

regarded as extrinsic or collateral where it has
prevented a party fr. having a trial or fr. presenting
all of his case to the ct.. In the case at bar, the fraud
was in the nature of documents allegedly
manufactured by G to make it appear he was the
rightful heir of the disputed property. Hence the
fraud is intrinsic in nature.
Meralco v. CA, 187 SCRA 200
Facts: Meralco, after failing to appear at a pre-trial
conference, was declared in default. Thereafter,
Meralco made the following steps: 1) Filed a MFR
to Lift Order of Default & to Vacate Judgment by
Default - bec. of counsel’s influenza. Denied. 2)
Petition for Relief fr. Judgment . Dismissed. 3)
Petition for Certiorari. Propriety of this last action
is the issue in this case.
Held: Certiorari is not proper. Such remedy had
already been lost bec. of Meralco’s neglect or error
in the choice of remedies. Certiorari shall not lie to
shield Meralco fr. the adverse consequences of
such neglect or error. Relief under Rule 38 is of
equitable character & is allowed only in
exceptional cases where there is no other available
or adequate remedy. Meralco could have
proceeded by appeal to vacate or modify the
default judgment. Relief will not be granted when
the loss of remedy at law was due to his own
negligence or a mistaken mode of procedure,
otherwise the petition for relief will be tantamount
to the right of appeal already. Further, when other
lawyers could have appeared & moved for
postponement, sickness of counsel is not excusable.
Requires final judgment or loss of appeal
Villa Rey Transit v. Far East Motor Co., 81
SCRA 298
Facts: Villa Rey failed to answer w/in the
reglementary period even after denial of its motion
to extend time to answer. Hence, & order of default
was rendered. Thereafter it filed a MTQ Service of
Summons, Motion to Lift Order of Default & To
Set Aside Judgment. This was denied. The 30-day
appeal period expired w/o any appeal. Villa Rey
contends the motion it filed should be considered
as Petition for Relief.
Held: This is untenable. A petition for relief
presupposes a final & unappealable judgment. In
this case, judgment has not yet become final &
unappealable at the time of the filing of the motion.
David v CA, 214 SCRA 644
Facts: An RTC decision was affirmed by CA w/
slight modification to reflect the date for the
computation of the interest to be awarded. This
was done after denying the petitioner’s relief fr.
judgment.
Held: CA. In sustaining the RTC decision to deny
the petition for relief fr. judgment the respondent
Court cannot at the same time modify the decision
sought to be overturned by such a petition. The
filing of the petition for relief fr. judgment w/ the
trial ct. was an unequivocal admission on the
private respondent’s that his period to appeal fr. the
decision had already expired. A petition for relief
113
fr. judgment under Rule 38 presupposes a final
judgment or loss of the right to appeal. The
affirmance of the CA of the denial of the petition is
a confirmation of the existence of a final &
executory judgment. CA can neither amend nor
modify it. When a final judgment becomes
executory it becomes immutable & unalterable,
even if modification is meant to correct an
erroneous conclusion of fact or law. Only
corrections of clerical errors or the making of so-
called NUNC PRO TUNC entries & other
judgment w/c cause no prejudice to any party are
the exceptions to this rule, otherwise any other
modifications of a final & executory judgment is
VOID.
Time for Filing, Rule 38, Sec. 3
Strictly followed
First Integrated Bonding v. Hernando, 199
SCRA 796
Facts: FIB was impleaded as the insurance agency
of defendant who figured in an accident killing one
person. FIB failed to answer so it was declared in
default. FIB took no positive step to vacate the
order of default. Instead it chose to file a petition
for relief fr. judgment almost five months fr. its
receipt of copy of the amended decision.
Held: The petition for relief fr. judgment was
filed out of time. The rules require that such
petition should be filed w/in 60 days after receipt of
judgment & not more than six months after entry of
judgment. Period required by R 38 is non-
extendible & never interrupted. It is not subject to
any cond. or contingency, bec. it is itself devised to
meet a condition or contingency. The remedy
under the Rule 38 was an act of grace, designed to
give the party one last chance. Being in the
position of one who begs, such party’s privilege is
not to impose conditions, haggle, or dilly-dally, but
to grab what is offered him.
Contents
Affidavit of Merit, Rule 38, Sec. 3
Garcia v. CA, 202 SCRA 228
Facts: Eduardo Garcia was able to secure a
judgment fr. the trial ct. issuing to him the
Certificate of Title to a land actually owned by the
spouses Garcia. He did this by misinforming the
ct. of the spouses’ address so that the notices wont
reach them thereby depriving them of the
opportunity to participate in the trial. Garcia
further made further recovery of the land difficult
by conveying the land to another. The couple filed
a petition for relief fr. said judgment but failed to
categorically allege extrinsic fraud in their affidavit
of merit. The PFR was dismissed by CA saying
that extrinsic fraud should be expressly alleged in
the affidavit of merit for the petition to lie. The SC
said that since in case at bar, the spouses were able
to allege facts leading to extrinsic fraud, express
allegation of such is not necessary.
Held: CA denied PFR for want of express
allegation of extrinsic fraud. SC reversed saying
that since Rule 38 Sec 3 (FAME as ground in

affidavit of merit for PFR) & that in case at bar,
petitioners were able to show extrinsic fraud,
affidavit is not necessary. HELD: The affidavit of
merit serves as a jurisdictional basis for a ct. to
entertain a petition for relief. But it admits of
exceptions, i.e. Where the attachment of the
affidavit of merit in the petition for relief is
unnecessary. The affidavit of merit is essential bec.
a new trial would be a waste of court’s time if the
complaint turned out to be groundless. Thus,
where there was no jurisdiction over the defendant
on the subject matter of the action, where a
judgment was taken by default before defendant’s
time to answer had expired, where it was
entertained by mistake, or was obtained by fraud &
other similar cases, as when the applicant had no
notice of the trial, we ruled that an affidavit is not
necessary.
When motion for reconsideration
considered as petition for relief
Dulos v. CA, supra
Facts: Nocom spouses filed forcible entry case v
Dulos spouses in the MTC Las Piñas. Pre-trial was
set but the Nocoms still filed another case for
annulment & a writ of preliminary injunction in
Makati. Dulos’ motion for suspension on forcible
entry case was dismissed there being no prejudicial
question. Pre-trial saw that the Dulos spouses were
in default despite the presence of a purported
representative (Rectra) who held a special power of
attorney executed by said spouses. Judgment on
forcible entry case for the Nocoms. The Dulos’
filed a motion for reconsideration of said judgment
w/c was denied & the aggrieved spouses went to
the Supreme Court via special civil action for
certiorari, w/c the Supreme Court dismissed.
Nocoms filed for a writ of demolition w/c was
countered by petitioner spouses by filing for a
petition for certiorari, prohibition & preliminary
injunction, w/c was granted by the CA. Hence, this
appeal.
Held: A motion for reconsideration of a judgment
of default may be considered a petition for relief fr.
judgment under R38 S2 only if it is a)verified, b)
filed w/in 60 days fr. time petitioner learns of the
decision but not more than 6 months fr. entry of
judgment & c) if in case of failure to file an answer
the motion must be accompanied by an affidavit of
merit. It may be considered as a motion for new
trial under R27 S2 only if it is accompanied by an
affidavit of merit.
Action of Court before Answer
Power to Deny, Rule 37, Sec. 4
Remedies after denial, see Rule
41, Sec. 1(b)
Service Specialists v. Sheriff of Manila, 145
SCRA 139
Facts: Service Specialists & counsel failed to
appear at a pre-trial & was declared in default.
Service filed a petition for relief fr. judgment. The
lower ct. dismissed the petition for relief for lack of
114
jurisdiction to hear & determine the same. Service
filed a notice of appeal to the IAC.
Held: Service filed its petition for relief also w/
the RTC Manila but not in the same case but in
another case. This is erroneous. A judgment or
order denying relief under Rule 38 is final & not
appealable, unlike an order granting such relief w/c
is interlocutory. However, in such an appeal, the
appellate ct. is only to determine the existence of
any of the grounds relied upon (fraud, accident,
mistake or excusable negligence) & the merit of the
petitioner’s cause of action or defense, as the case
may be. Moreover, Service merely filed a notice of
appeal to the IAC fr. the order of the lower ct. w/c
dismissed his petition for relief. The appeal should
have been made to this Court through a petition for
review on certiorari.
Prelimnary Injunction pending
proceedings, Rule 38, Sec. 5
Order to file an answer, Rule 38, Sec. 4
Procedure
Order to file an answer, Rule 38, Sec. 4
Availability of preliminary injunction,
Rule 38, Sec. 5
Proceedings after answer is filed, Rule 38,
Sec. 6
Where denial of appeal is set aside, Rule
38, Sec. 7
Action of court after giving due course
Granting of petition for relief, Rule 38,
Sec. 7
Remedies
David v. CA, 214 SCRA 644
Facts: An RTC decision was affirmed by CA w/
slight modification to reflect the date of computing
interest. This was done after denying the
petitioner’s relief fr. judgment.
Held: The remedy under R41 w/c provides that a
judgment denying relief under R38 is subject to
appeal, & in the course thereof, a party may also
assail the judgment on the merits, upon the ground
that it is not supported by the evidence or it is
contrary to law. This provision, however, can’t be
construed as allowing the review of the decision on
the specific ground therein indicated, if the denial
of the petition for relief by the TC is sustained by
the Appellate Court. It may only be done if the
appellate ct. overturns such denial. The CA, after
sustaining the trial court’s denial of the petition for
relief should have dismissed the appeal & to
declare the lower court’s decision as firm, final &
executory.
Cheesman v. IAC, 193 SCRA 93
Facts: Thomas Cheesman attempted to annul the
sale by his Filipino wife of a residential lot &
building to Padilla. The sale was declared void ab
initio. However, judgment was set aside as regards
Padilla on a petition for relief filed by her ground
on fraud, accident, mistake or excusable negligence
w/c had seriously impaired her right to present her
 115

case adequately. The petition for relief fr. judgment
was given due course & a new judge presided over
the case. Padilla filed a motion for summary
judgment w/c was granted. The judgment declared
sale as valid. Cheesman questions the propriety of
such judgment.
Held: An order of the CFI granting a petition for
relief under Rule 38 is interlocutory & is not
appealable. Once the petition for relief is granted
& the judgment subject thereof set aside, & further
proceedings are thereafter had, the ct. in its
judgment on the merits may properly grant the
relief sought in the petitioner’s basic pleadings,
although different fr. that stated in his petition for
relief. Therefore, since both CFI & IAC found that
the facts adequately proved fraud, mistake or
excusable negligence by w/c Padilla’s rights have
been substantially impaired, the sale was declared
valid.
seasonably file a motion for reconsideration. After
the judgment in (favor of Ramirez’s opponent) had
become final & executory. Ramirez filed a petition
for relief fr. judgment even if the period for filing
the same had expired.
Held: There is no means whereby the defeated
party may procure a final & executory judgment to
be set aside w/ a view to the removal of the
litigation beyond the period for seeking relief, fr. a
final order of judgment under Rule 38 unless A)
judgment is void for want of jurisdiction or for lack
of due process of law or B) it has been fraud. (In
other words, period for filing of PFR is mandatory
but admits of exceptions – lack of J & fraud.)
Reopening not allowed
Alvendia v. IAC, 181 SCRA 252

Facts: Alvendia defaulted on his obligation to pay

Denying petition for relief, Rule 41, Sec. 1 (b) Bonamy. Alvendia did not do anything fr. the filing
of the complaint against him up to the time that the
Service Specialists v. Sheriff of Manila, supra judgment became final & executory. Execution has
Facts: Petitioner filed an action for replevin & been ordered & his property has been levied. He
damages against private respondents. A pre-trial moved for extension of time to file petition for
conference was set but private respondent & review.
counsel failed to appear w/c resulted in the Held: It is axiomatic that there is no justification in
issuance of an order & judgment of default against
respondents. Private respondent then moved for law & in fact for the reopening of a case w/c has
relief fr. judgment & order of default. This motion long become final & w/c in fact has been executed.
was opposed by a motion to dismiss filed by Time & again this ct. has said that the doctrine of
petitioner. The Lower ct. dismissed the petition for finality of judgment is grounded on fundamental
relief on the ground of lack of jurisdiction. considerations of public policy & sound practice
Respondent filed a notice of appeal but a writ of that at the risk of occasional error, the judgments of
execution was nevertheless filed. This case stems cts. must become final at some definite date fixed
fr. the deputy sheriff’s refusal to proceed w/ the by law – Alvendia cannot invoke equity to reopen
auction of respondent’s properties. case since they have been given opportunity but
Held: A judgment or order denying relief under failed.
Rule 38 is final & appealable, unlike an order
granting such relief w/c is interlocutory. However,
in the appeal the ct. may not reverse or modify the
judgment on the merits. The judgment fr. w/c relief
is sought is already final & executory. This remedy
only enables the appellate ct. to determine not only
the existence of any of the grounds relied upon
whether it be fraud, accident, mistake or excusable
negligence, but also & primarily, the merit of the
petitioner’s cause of action or the defense, as the
case may be. If the appellate ct. finds that one of
the grounds exist & that the petitioner has a good
cause of action or importance, it will reverse the
denial or dismissal, set aside the judgment in the
main case & remand the case to the lower ct. for a
new trial in accordance w/ Sec 7 Rule 38. Finally,
a notice of appeal fr. the order of the lower ct. w/c
dismissed his petition for relief fr. judgment “for
lack of jurisdiction to hear & determine the same”
should have been made to the SC through a petition
for review on certiorari & not to the IAC.

Remedies after petition for relief expires

Ramirez v. CA, 187 SCRA 153

Facts: Ramirez, as a plaintiff in a suit over an
airstrip failed to do the following: furnish a copy
of the notice of hearing to other party; appear at the
pre-trial; file appeal instead of seeking relief; &